AH Realty Trust, Inc 8-K, filed Nov 3, 2026
AH Realty Trust, Inc. (AHRT)
8-K
2026-11-03
For: 2026-10-28
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Added on
November 03, 2026
About this 8-K
AH Realty Trust, Inc filed this 8-K on November 3, 2026, reporting on events of October 28, 2026.
AH Realty Trust, Inc. entered a $150.0 million revolving facility, two $200.0 million term loans and a $100.0 million term loan on October 28, 2026, with maturities in 2030, 2031 and 2033, replacing four prior facilities. AI summary
Items reported
- Item 1.01: Entered into a material agreement
- Item 2.03: New debt or off-balance-sheet obligation
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): October 28, 2026
(Exact name of registrant as specified in its charter)
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Registrant’s telephone number, including area code: (757 ) 366-4000
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
Securities registered pursuant to Section 12(b) of the Act:
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 Entry into a Material Definitive Agreement.
Recast Credit Facility and 7-Year Loan
On October 28, 2026, AH Realty Trust, Inc. (the “Company”), as parent guarantor, and AH Realty Trust, LP, the Company’s operating partnership (the “Operating Partnership”), as borrower, entered into a Fourth Amended and Restated Credit Agreement (the “Credit Agreement”) with Bank of America, N.A., as Administrative Agent and L/C Issuer, M&T Bank, PNC Bank, National Association, TD Bank, N.A. and Truist Bank, as Documentation Agents, BofA Securities, Inc., M&T Bank, PNC Capital Markets LLC, TD Bank, N.A. and Truist Securities, Inc., as Joint Lead Arrangers, BofA Securities, Inc., as Sole Bookrunner, and the other lenders party thereto. The Credit Agreement provides for (i) a $150.0 million revolving credit facility maturing on October 28, 2031 (the “Revolving Credit Facility”), (ii) a $200.0 million term loan maturing on October 28, 2030 (the “4-Year Term Loan”) and (iii) a $200.0 million term loan maturing on October 28, 2031 (the “5-Year Term Loan” and, together with the Revolving Credit Facility and the 4-Year Term Loan, the “Recast Credit Facility”). The Recast Credit Facility includes an accordion feature that allows the total commitments to be increased to $1.0 billion, subject to certain conditions, including obtaining commitments from any one or more lenders.
On October 28, 2026, the Company, as parent guarantor, and the Operating Partnership, as borrower, also entered into a Term Loan Agreement (the “7-Year Loan Agreement”) with Toronto Dominion (Texas) LLC, as Administrative Agent, TD Securities (USA) LLC and PNC Capital Markets LLC, as Joint Lead Arrangers, TD Securities (USA) LLC, as Sole Bookrunner, and the other lenders party thereto, which provides for a $100.0 million term loan maturing on October 28, 2033 (the “7-Year Term Loan” and, together with the Recast Credit Facility, the “Loans”). The 7-Year Loan Agreement includes an accordion feature permitting aggregate increases of up to $150.0 million, to a maximum outstanding amount of $250.0 million, subject to obtaining lender commitments and satisfying other conditions. The Operating Partnership may make up to three requests for increases, each in a minimum amount of $25.0 million.
The Loans replace the Operating Partnership’s prior (i) $355.0 million revolving credit facility, which was scheduled to mature on January 22, 2027, (ii) $350.0 million term loan facility, which was scheduled to mature on January 21, 2028, (iii) $135.0 million term loan facility with Manufacturers and Traders Trust Company, which was scheduled to mature on March 8, 2027, and (iv) $95.0 million term loan facility with Toronto Dominion (Texas) LLC, which was scheduled to mature on May 19, 2027. The Credit Agreement permits borrowings under the Recast Credit Facility to be used for general corporate and working capital purposes, and the 7-Year Loan Agreement permits proceeds of the 7-Year Term Loan to be used to repay loans under the Operating Partnership’s prior TD term loan agreement and for general corporate and working capital purposes, in each case subject to the terms of the applicable agreement. Amounts repaid or prepaid under the term loans may not be reborrowed. Capitalized terms used herein and not otherwise defined shall have the respective meanings assigned to them in the Credit Agreement or the 7-Year Loan Agreement, as applicable.
As of October 28, 2026, there were $113.0 million outstanding under the Revolving Credit Facility, $200.0 million outstanding under the 4-Year Term Loan, $200.0 million outstanding under the 5-Year Term Loan and $100.0 million outstanding under the 7-Year Term Loan.
The Operating Partnership may extend the maturity of the 4-Year Term Loan to October 28, 2031 by providing written notice to the Administrative Agent not earlier than 60 days and not later than 30 days before its initial maturity date, subject to specified conditions, including the absence of a Default, the accuracy of representations and warranties, delivery of required certificates and approvals, and payment of an extension fee equal to 0.15% of the 4-Year Term Loan facility.
Neither the Revolving Credit Facility, the 5-Year Term Loan nor the 7-Year Term Loan provides for a borrower option to extend its maturity.
The Loans bear interest as follows:
•the Revolving Credit Facility bears interest at Term SOFR or Daily Simple SOFR, each plus a margin ranging from 1.30% to 1.85%, depending on the Operating Partnership’s total leverage;
•the 4-Year Term Loan bears interest at Term SOFR or Daily Simple SOFR, each plus a margin ranging from 1.25% to 1.80%, depending on the Operating Partnership’s total leverage;
•the 5-Year Term Loan bears interest at Term SOFR or Daily Simple SOFR, each plus a margin ranging from 1.25% to 1.80%, depending on the Operating Partnership’s total leverage; and
•the 7-Year Term Loan bears interest at Term SOFR or Daily Simple SOFR, each plus a margin ranging from 1.70% to 2.20%, depending on the Operating Partnership’s total leverage.
Under both the Credit Agreement and the 7-Year Loan Agreement, if the Company or the Operating Partnership attains a long-term unsecured senior, non-credit enhanced debt rating of BBB- or better from S&P or Baa3 or better from Moody’s, the Operating Partnership may, upon written notice to the applicable Administrative Agent, make a one-time irrevocable election to
have the applicable interest rate margins determined by reference to debt ratings rather than total leverage, notwithstanding any subsequent failure to maintain an investment-grade rating or any debt rating.
The Operating Partnership is the borrower under the Loans, and its obligations under the Loans are guaranteed by the Company and certain of its subsidiaries.
The Credit Agreement and the 7-Year Loan Agreement contain customary representations and warranties and financial and other affirmative and negative covenants. Under each agreement, the Company and the Operating Partnership are subject to ongoing compliance with a number of financial covenants, affirmative covenants and other restrictions, including the following:
•Total Leverage Ratio of not more than 60% (or 65% as of the last day of the quarter in which a Significant Acquisition occurs and the two immediately following quarters, available up to two times during the term of the applicable agreement). A Significant Acquisition is an acquisition of real property assets, portfolios or operating businesses in a single transaction or series of related transactions for a purchase price greater than 10% of Total Asset Value;
•Ratio of Adjusted EBITDA to Fixed Charges of not less than 1.50 to 1.0;
•Tangible Net Worth of not less than the sum of (i) $823,879,000 and (ii) an amount equal to 75% of the net equity proceeds received by the Company, the Operating Partnership and their respective subsidiaries after June 30, 2026;
•Ratio of Secured Indebtedness to Total Asset Value of not more than 40% (excluding, for purposes of the Credit Agreement, the Recast Credit Facility if it becomes Secured Indebtedness and, for purposes of the 7-Year Loan Agreement, the 7-Year Term Loan if it becomes Secured Indebtedness);
•Ratio of Secured Recourse Debt to Total Asset Value of not more than 20% (excluding, for purposes of the Credit Agreement, the Recast Credit Facility if it becomes Secured Indebtedness and, for purposes of the 7-Year Loan Agreement, the 7-Year Term Loan if it becomes Secured Indebtedness);
•Total Unsecured Leverage Ratio of not more than 60% (or 65% as of the last day of the quarter in which a Significant Acquisition occurs and the two immediately following quarters, available up to two times during the term of the applicable agreement);
•Unencumbered Interest Coverage Ratio of not less than 1.75 to 1.0;
•Maintenance of at least 15 Unencumbered Properties with an Unencumbered Asset Value of not less than $500.0 million at any time;
•Minimum Occupancy Rate for all Unencumbered Properties in the aggregate of not less than 80% at any time; and
•Aggregate rental revenues from any one tenant under leases of Unencumbered Properties of not more than 25% of rental revenues under all leases of Unencumbered Properties.
The Credit Agreement and the 7-Year Loan Agreement restrict dividends, other distributions and repurchases of equity interests if a Default has occurred and is continuing or would result therefrom. Subject to the exceptions specified in each agreement, distributions may nevertheless be made in the minimum amount required for the Company to maintain its status as a REIT and avoid federal or state income or excise taxes. This exception is unavailable upon specified insolvency or inability-to-pay or attachment defaults or following acceleration under the applicable agreement. The agreements also limit the amount attributable to certain asset categories in calculating Total Asset Value, including unimproved land holdings, development properties, mortgages, mezzanine loans, notes receivable and unconsolidated affiliates.
The Operating Partnership may voluntarily prepay borrowings under the Recast Credit Facility in whole or in part without premium or penalty, subject to applicable notice and minimum prepayment requirements, payment of accrued interest and any applicable SOFR breakage compensation. The Operating Partnership may also voluntarily prepay the 7-Year Term Loan in whole or in part, subject to applicable prepayment penalties under the 7-Year Loan Agreement, notice and minimum prepayment requirements, payment of accrued interest and any applicable SOFR breakage compensation
The Credit Agreement and the 7-Year Loan Agreement include customary events of default, in certain cases subject to customary cure periods. If an event of default occurs and is continuing after expiration of any applicable cure period, the applicable Administrative Agent may, with the consent of the requisite lenders, and shall, at their request, among other things, terminate commitments and declare the unpaid principal, accrued and unpaid interest and all other amounts payable under the applicable agreement to be immediately due and payable. Specified bankruptcy events involving the Operating Partnership result in automatic termination of commitments and acceleration of amounts outstanding. The 7-Year Loan Agreement also expressly provides that an event of default under the Credit Agreement constitutes an event of default under the 7-Year Loan Agreement.
The foregoing summary of the Credit Agreement and the 7-Year Loan Agreement does not purport to be complete and is qualified in its entirety by reference to the Credit Agreement and the 7-Year Loan Agreement, copies of which are attached as Exhibits 10.1 and 10.2 hereto, respectively, and are incorporated herein by reference.
Constellation Energy Building Refinancing
On October 28, 2026, Harbor Point Parcel 2 – Office, LLC, Harbor Point Parcel 2 – Retail, LLC, and Harbor Point Parcel 2 – Transfer Station, LLC, each an indirect subsidiary of the Company (collectively, the “Constellation Borrower”), entered into an Amended and Restated Term Loan Agreement (the “Constellation Loan Agreement”) with PNC Bank, National Association, as Administrative Agent (the “Constellation Agent”), PNC Capital Markets, LLC, as Sole Lead Arranger and Sole Bookrunner, and the other financial institutions party thereto. The Constellation Loan Agreement provides for a $121.8 million term loan (the “Constellation Term Loan”), which matures on October 28, 2029. The Constellation Term Loan is secured by the property known as the Constellation Tower, which we refer to as the Constellation Office and the Constellation Retail.
The Constellation Term Loan bears interest at Daily Simple SOFR (as defined in the Constellation Loan Agreement) plus a margin of 1.80%. Upon the occurrence and during the continuation of an event of default under the Constellation Loan Agreement, the interest rate increases by 3.0%. The Constellation Borrower entered into an interest rate swap for 100% of the Constellation Term Loan providing for a maximum interest rate of 8.25% (the “Interest Rate Hedge”).
The Constellation Term Loan may be prepaid in whole or in part in principal amounts of at least $100,000 upon at least three business days’ notice, generally without premium or penalty, subject to the agreement’s exceptions. Amounts repaid may not be reborrowed.
The Constellation Loan Agreement requires approval of leases unless they satisfy the applicable deemed-approval requirements. Office leases covering more than 25,000 square feet do not qualify for deemed approval. The office and retail deemed-approval requirements also include conditions relating to lease form, tenant qualifications, minimum term, minimum rent and subordination to the mortgage.
Pursuant to a Guaranty Agreement, dated as of October 28, 2026, by the Operating Partnership and the Company, in favor of the Constellation Agent, for itself and all other “Lenders” now or hereafter existing under the Constellation Loan Agreement, the “Constellation Guaranty Agreement”) the Company and the Operating Partnership have provided (i) a guaranty of all obligations of the Constellation Borrower under the Interest Rate Hedge and (ii) guarantees in connection with certain non-recourse carveouts.
The Constellation Borrower, the Company and the Operating Partnership are subject to certain financial covenants under the Constellation Loan Agreement. The Constellation Borrower must maintain a Debt Service Coverage Ratio (as defined in the Constellation Loan Agreement) of at least 1.20 to 1.00. The Company and the Operating Partnership are subject to the same financial covenants as provided for under the Credit Agreement.
If the Debt Service Coverage Ratio is below 1.20 to 1.00 as of a testing date, the Constellation Borrower must either make a principal prepayment within 30 days sufficient to restore that ratio on a pro forma basis or deposit 100% of monthly Excess Cash Flow (as defined in the Constellation Loan Agreement) into a cash collateral account pledged to the Constellation Agent. A cash sweep is also required if Constellation Energy loses its investment-grade credit rating from S&P or Moody’s, or if its entire leased premises goes dark for more than 30 consecutive days. The cash sweep continues until the applicable contractual termination conditions are satisfied, including, as applicable, restoration of Debt Service Coverage Ratio for two consecutive testing dates, restoration of investment-grade ratings from both S&P and Moody’s, or qualifying reletting or subletting of all Constellation Energy space, and no continuing event of default. Distributions to the Constellation Borrower’s equity owners are prohibited during a Trigger Period (as defined in the Constellation Loan Agreement).
The Constellation Term Loan is subject to customary events of default, including events of default related to the lease with Constellation Energy. Specifically, each of the following constitutes an event of default: (i) a monetary default by Constellation Energy in the payment of one or more months' base rent, that continues for a period of 60 or more days, (ii) termination of the Constellation Energy’s lease for any reason or (iii) a material default by the Harbor Point Parcel 2 – Office, LLC under Constellation Energy’s lease that continues beyond any applicable grace, notice and cure period if (y) Constellation Energy has the right to terminate Constellation Energy’s lease by reason of such default or (z) in the case of any other remedy such as a right of off-set or self-help, which remedy, if exercised, would result in a Debt Service Coverage Ratio below 1.00 to 1.00. Upon the occurrence and during the continuance of an event of default, the Constellation Agent may and shall at the direction of the Required Lenders (as defined in the Constellation Loan Agreement), exercise any and all rights and remedies afforded by the Constellation Loan Agreement, including declaring any and all amounts outstanding under the Constellation Term Loan immediately due and payable.
The foregoing summary of the Constellation Loan Agreement and the Constellation Guaranty Agreement does not purport to be complete and is qualified in its entirety by reference to the Constellation Loan Agreement and the Constellation Guaranty Agreement, copies of which are attached as Exhibit 10.3 and Exhibit 10.4 hereto, respectively and are incorporated herein by reference.
Dispositions of The Everly and Solis Gainesville II
On October 30, 2026, the Company completed the disposition of The Everly and Solis Gainesville II, which comprised an aggregate of 407 multifamily units in Gainesville, Georgia, for aggregate proceeds of approximately $89 million, in cash, including the loan repayment of $28 million for the loan secured by the Everly.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information set forth in Item 1.01 of this Current Report on Form 8-K with respect to the Recast Credit Facility, the 7-Year Term Loan and the Constellation Term Loan is incorporated into this Item 2.03 by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
Exhibit No. | Description | |||||||
| 10.1* | ||||||||
| 10.2 | ||||||||
| 10.3* | ||||||||
| 10.4 | ||||||||
| 104 | Cover Page Interactive Data File - the cover page XBRL tags are embedded within the Inline XBRL document | |||||||
| * | Certain schedules and exhibits to this agreement have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The Company agrees to furnish a copy of any omitted schedule or exhibit to the Securities and Exchange Commission upon request. | |||||||
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| AH REALTY TRUST, INC. | ||||||||
| Date: November 3, 2026 | By: | /s/ Matthew Barnes-Smith | ||||||
| Matthew Barnes-Smith | ||||||||
| Chief Financial Officer and Treasurer | ||||||||
4925-1798-1140 v.13 Execution Version FOURTH AMENDED AND RESTATED CREDIT AGREEMENT Dated as of October 28, 2026 among AH REALTY TRUST, LP (formerly Armada Hoffler, L.P.), as Borrower, AH REALTY TRUST, INC. (formerly Armada Hoffler Properties, Inc.), as Parent, BANK OF AMERICA, N.A., as Administrative Agent and L/C Issuer, and The Other Lenders Party Hereto M&T BANK, PNC BANK, NATIONAL ASSOCIATION, TD BANK, N.A., and TRUIST BANK as Documentation Agents BOFA SECURITIES, INC., M&T BANK, PNC CAPITAL MARKETS LLC, TD BANK, N.A., and TRUIST SECURITIES, INC., as Joint Lead Arrangers and BOFA SECURITIES, INC., as Sole Bookrunner Exhibit 10.1
4925-1798-1140 v.13 TABLE OF CONTENTS Section Page Article I. Definitions and Accounting Terms ................................................................................................ 1 1.01 Defined Terms .................................................................................................................... 1 1.02 Other Interpretive Provisions ............................................................................................ 34 1.03 Accounting Terms. ............................................................................................................ 35 1.04 Rounding ........................................................................................................................... 35 1.05 Times of Day; Rates ......................................................................................................... 35 1.06 Letter of Credit Amounts .................................................................................................. 35 1.07 Interest Rates ..................................................................................................................... 35 Article II. The Commitments and Credit Extensions .................................................................................. 36 2.01 The Loans ......................................................................................................................... 36 2.02 Borrowings, Conversions and Continuations of Loans. ................................................... 36 2.03 Letters of Credit. ............................................................................................................... 38 2.04 Prepayments. ..................................................................................................................... 46 2.05 Termination or Reduction of Commitments ..................................................................... 47 2.06 Repayment of Loans ......................................................................................................... 47 2.07 Interest. ............................................................................................................................. 48 2.08 Fees ................................................................................................................................... 49 2.09 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate............. 50 2.10 Evidence of Debt. ............................................................................................................. 50 2.11 Payments Generally; Administrative Agent’s Clawback. ................................................. 51 2.12 Sharing of Payments by Lenders ...................................................................................... 52 2.13 Extension of Maturity Date. .............................................................................................. 53 2.14 Increase in Commitments. ................................................................................................ 54 2.15 Cash Collateral. ................................................................................................................. 55 2.16 Defaulting Lenders. .......................................................................................................... 56 Article III. Taxes, Yield Protection and Illegality....................................................................................... 59 3.01 Taxes. ................................................................................................................................ 59 3.02 Illegality ............................................................................................................................ 63 3.03 Inability to Determine Rates. ............................................................................................ 63 3.04 Increased Costs. ................................................................................................................ 65 3.05 Compensation for Losses .................................................................................................. 66 3.06 Mitigation Obligations; Replacement of Lenders. ............................................................ 67 3.07 Survival ............................................................................................................................. 67 Article IV. Parent Guaranty ........................................................................................................................ 68 4.01 The Guaranty .................................................................................................................... 68 4.02 Obligations Unconditional ................................................................................................ 68 4.03 Reinstatement .................................................................................................................... 69 4.04 Certain Waivers ................................................................................................................ 69 4.05 Remedies ........................................................................................................................... 69 4.06 Rights of Contribution ...................................................................................................... 70 4.07 Guaranty of Payment; Continuing Guaranty .................................................................... 70 Article V. Conditions Precedent to Credit Extensions ................................................................................ 70 5.01 Conditions of Initial Credit Extension .............................................................................. 70
4925-1798-1140 v.13 ii 5.02 Conditions to all Credit Extensions .................................................................................. 72 Article VI. Representations and Warranties ............................................................................................... 72 6.01 Existence, Qualification and Power; Compliance with Laws ........................................... 72 6.02 Authorization; No Contravention ..................................................................................... 73 6.03 Governmental Authorization; Other Consents .................................................................. 73 6.04 Binding Effect ................................................................................................................... 73 6.05 Financial Statements; No Material Adverse Effect........................................................... 73 6.06 Litigation ........................................................................................................................... 73 6.07 No Default......................................................................................................................... 74 6.08 Ownership of Property; Liens ........................................................................................... 74 6.09 Environmental Compliance .............................................................................................. 74 6.10 Insurance ........................................................................................................................... 74 6.11 Taxes ................................................................................................................................. 74 6.12 ERISA Compliance. .......................................................................................................... 74 6.13 Subsidiaries; Equity Interests ............................................................................................ 75 6.14 Margin Regulations; Investment Company Act................................................................ 75 6.15 Disclosure ......................................................................................................................... 75 6.16 Compliance with Laws ..................................................................................................... 76 6.17 Taxpayer Identification Number ....................................................................................... 76 6.18 Unencumbered Properties ................................................................................................. 76 6.19 Solvency............................................................................................................................ 76 6.20 REIT Status ....................................................................................................................... 76 6.21 OFAC ................................................................................................................................ 76 6.22 Anti-Corruption Laws ....................................................................................................... 76 6.23 Affected Financial Institution ........................................................................................... 76 6.24 Covered Entities ................................................................................................................ 76 6.25 Outbound Investment Rules .............................................................................................. 77 Article VII. Affirmative Covenants ............................................................................................................ 77 7.01 Financial Statements ......................................................................................................... 77 7.02 Certificates; Other Information ......................................................................................... 78 7.03 Notices .............................................................................................................................. 79 7.04 Payment of Obligations .................................................................................................... 80 7.05 Preservation of Existence, Etc .......................................................................................... 80 7.06 Maintenance of Properties ................................................................................................ 80 7.07 Maintenance of Insurance ................................................................................................. 80 7.08 Compliance with Laws ..................................................................................................... 81 7.09 Books and Records ........................................................................................................... 81 7.10 Inspection Rights .............................................................................................................. 81 7.11 Use of Proceeds ................................................................................................................ 81 7.12 Loan Documents ............................................................................................................... 81 7.13 Acceptable Ground Leases ............................................................................................... 81 7.14 Guaranties ......................................................................................................................... 82 7.15 REIT Status ....................................................................................................................... 82 7.16 Further Assurances ........................................................................................................... 82 7.17 Material Contracts ............................................................................................................. 82 7.18 Anti-Corruption Laws; Sanctions ..................................................................................... 82 7.19 Keepwell ........................................................................................................................... 83
4925-1798-1140 v.13 iii Article VIII. Negative Covenants ............................................................................................................... 83 8.01 Liens ................................................................................................................................. 83 8.02 Indebtedness...................................................................................................................... 84 8.03 Fundamental Changes ....................................................................................................... 85 8.04 Dispositions ...................................................................................................................... 85 8.05 Restricted Payments .......................................................................................................... 86 8.06 Change in Nature of Business ........................................................................................... 86 8.07 Transactions with Affiliates .............................................................................................. 86 8.08 Burdensome Agreements .................................................................................................. 86 8.09 Use of Proceeds ................................................................................................................ 86 8.10 Acceptable Ground Leases ............................................................................................... 87 8.11 Amendments of Organization Documents ........................................................................ 87 8.12 Accounting Changes ......................................................................................................... 87 8.13 Sanctions ........................................................................................................................... 87 8.14 Financial Covenants .......................................................................................................... 87 8.15 Unencumbered Property Covenants ................................................................................. 88 8.16 ERISA Compliance ........................................................................................................... 88 8.17 Environmental Matters ..................................................................................................... 88 8.18 Anti-Corruption Laws ....................................................................................................... 89 8.19 Outbound Investment Rules .............................................................................................. 89 Article IX. Events of Default and Remedies ............................................................................................... 89 9.01 Events of Default .............................................................................................................. 89 9.02 Remedies Upon Event of Default ..................................................................................... 91 9.03 Application of Funds ........................................................................................................ 91 Article X. Administrative Agent ................................................................................................................. 92 10.01 Appointment and Authority .............................................................................................. 92 10.02 Rights as a Lender ............................................................................................................. 93 10.03 Exculpatory Provisions ..................................................................................................... 93 10.04 Reliance by Administrative Agent .................................................................................... 94 10.05 Delegation of Duties ......................................................................................................... 94 10.06 Resignation of Administrative Agent. .............................................................................. 94 10.07 Non-Reliance on Administrative Agent and Other Lenders ............................................. 95 10.08 No Other Duties, Etc ......................................................................................................... 96 10.09 Administrative Agent May File Proofs of Claim .............................................................. 96 10.10 Guaranty Matters .............................................................................................................. 96 10.11 Lender ERISA Representations ........................................................................................ 97 10.12 Recovery of Erroneous Payments ..................................................................................... 98 Article XI. Miscellaneous ........................................................................................................................... 99 11.01 Amendments, Etc .............................................................................................................. 99 11.02 Notices; Effectiveness; Electronic Communication. ...................................................... 101 11.03 No Waiver; Cumulative Remedies; Enforcement ........................................................... 103 11.04 Expenses; Indemnity; Damage Waiver. .......................................................................... 103 11.05 Payments Set Aside ........................................................................................................ 105 11.06 Successors and Assigns. ................................................................................................. 105 11.07 Treatment of Certain Information; Confidentiality ......................................................... 109 11.08 Right of Setoff ................................................................................................................ 110 11.09 Interest Rate Limitation .................................................................................................. 110 11.10 Integration; Effectiveness ............................................................................................... 111
4925-1798-1140 v.13 iv 11.11 Survival of Representations and Warranties ................................................................... 111 11.12 Severability ..................................................................................................................... 111 11.13 Replacement of Lenders ................................................................................................. 111 11.14 Governing Law; Jurisdiction; Etc. .................................................................................. 112 11.15 Waiver of Jury Trial ........................................................................................................ 113 11.16 No Advisory or Fiduciary Responsibility ....................................................................... 113 11.17 Electronic Execution ....................................................................................................... 114 11.18 USA PATRIOT Act ........................................................................................................ 115 11.19 Time of the Essence ........................................................................................................ 115 11.20 Acknowledgement and Consent to Bail-In of Affected Financial Institution ................. 115 11.21 Acknowledgement Regarding Any Supported QFCs ..................................................... 115 11.22 ENTIRE AGREEMENT ................................................................................................. 116 11.23 Restatement of Existing Credit Agreement .................................................................... 116
4925-1798-1140 v.13 v SCHEDULES 1.01 Existing Letters of Credit 2.01 Commitments and Applicable Percentages 6.06 Litigation 6.09 Environmental Matters 6.13 Subsidiaries; Other Equity Investments; Equity Interests in Borrower 8.01 Existing Liens 8.02 Existing Indebtedness 11.02 Administrative Agent’s Office; Certain Addresses for Notices EXHIBITS Form of A Committed Loan Notice B-1 Revolving Credit Note B-2 Term A-1 Note B-3 Term A-2 Note C Compliance Certificate D-1 Assignment and Assumption D-2 Administrative Questionnaire E U.S. Tax Compliance Certificates F Borrower Detail Form
4925-1798-1140 v.13 FOURTH AMENDED AND RESTATED CREDIT AGREEMENT This FOURTH AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”) is entered into as of October 28, 2026, among AH REALTY TRUST, LP (formerly Armada Hoffler, L.P.), a Virginia limited partnership (“Borrower”), AH REALTY TRUST, INC. (formerly Armada Hoffler Properties, Inc.), a Maryland corporation (“Parent”), each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”), and BANK OF AMERICA, N.A., as Administrative Agent and L/C Issuer. Borrower, Parent, Administrative Agent, L/C Issuer, and certain Lenders are parties to that certain Third Amended and Restated Credit Agreement dated as of August 23, 2022 (as amended, the “Existing Credit Agreement”). The parties hereto desire to amend and restate the Existing Credit Agreement in its entirety. In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows: Article I. Definitions and Accounting Terms 1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below: “Acceptable Ground Lease” means each ground lease with respect to any Unencumbered Property executed by a Loan Party, as lessee, (a) that has a remaining lease term (including extension or renewal rights) of at least thirty-five (35) years, calculated as of the date such Property becomes an Unencumbered Property, (b) that is in full force and effect, (c) is transferable and assignable either without the landlord’s prior consent or with such consent, which, however, will not be unreasonably withheld or conditioned by landlord, (d) pursuant to which (i) no default or terminating event exists thereunder, and (ii) no event has occurred which but for the passage of time, or notice, or both would constitute a default or terminating event thereunder, and (e) that otherwise contains customary “mortgagee protections” provisions that would make it financeable from the standpoint of an institutional lender. “Adjusted EBITDA” means, EBITDA for the Consolidated Group for the most recently ended Calculation Period minus the aggregate Annual Capital Expenditure Adjustment. “Administrative Agent” means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent. “Administrative Agent’s Office” means Administrative Agent’s address and, as appropriate, account as set forth on Schedule 11.02, or such other address or account as Administrative Agent may from time to time notify Borrower and the Lenders. “Administrative Questionnaire” means an Administrative Questionnaire in substantially the form of Exhibit D-2 or any other form approved by Administrative Agent. “Affected Financial Institution” means (a) any EEA Financial Institution, or (b) any UK Financial Institution.
4925-1798-1140 v.13 2 “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. “Aggregate Revolving Credit Commitments” means the Revolving Credit Commitments of all the Lenders, as adjusted from time to time in accordance with the terms of this Agreement. The Aggregate Revolving Credit Commitments as of the Closing Date shall be $150,000,000. “Agreement” has the meaning specified in the introductory paragraph hereto. “Annual Capital Expenditure Adjustment” means, (a) for office Properties, an amount equal to the product of (i) $0.25 multiplied by (ii) the aggregate net rentable area (determined on a square feet basis) of all such Properties; (b) for retail Properties, an amount equal to the product of (i) $0.15 multiplied by (ii) the aggregate net rentable area (determined on a square feet basis) of all such Properties; and (c) for residential Properties, $200 per unit. “Applicable Percentage” means (a) with respect to the Term A-1 Facility, with respect to any Term A-1 Lender at any time, the percentage (carried out to the ninth decimal place) of the Term A-1 Facility represented by (i) at any time during the Availability Period in respect of such Facility, such Term A-1 Lender’s Term A-1 Commitment at such time and (ii) thereafter, the principal amount of such Term A-1 Lender’s Term A-1 Loans at such time, (b) with respect to the Term A-2 Facility, with respect to any Term A-2 Lender at any time, the percentage (carried out to the ninth decimal place) of the Term A-2 Facility represented by (i) at any time during the Availability Period in respect of such Facility, such Term A-2 Lender’s Term A-2 Commitment at such time and (ii) thereafter, the principal amount of such Term A-2 Lender’s Term A-2 Loans at such time, and (c) with respect to the Revolving Credit Facility, with respect to any Revolving Credit Lender at any time, the percentage (carried out to the ninth decimal place) of the Revolving Credit Facility represented by such Revolving Credit Lender’s Revolving Credit Commitment at such time, as any such Applicable Percentage for the respective Facility may be adjusted as provided in Section 2.16. If the Revolving Credit Commitment of each Lender to make Loans and the obligation of L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 9.02 or if the Aggregate Revolving Credit Commitments have expired, then the Applicable Percentage of each Lender shall be determined based on the Applicable Percentage of such Lender most recently in effect, giving effect to any subsequent assignments. The initial Applicable Percentage of each Lender in respect of each Facility is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable. “Applicable Rate” means: (a) Subject to clause (b) below, in respect of the Revolving Credit Facility and the Term Facilities, the applicable percentage per annum set forth below determined by reference to the Total Leverage Ratio as set forth in the most-recent Compliance Certificate received by Administrative Agent pursuant to Section 7.02(a): Applicable Rate Pricing Level Total Leverage Ratio Letters of Credit Revolving Credit Facility Term SOFR Rate Loans and Daily Revolving Credit Facility Base Rate Loans Term Facilities Term SOFR Rate Loans and Daily Term Facilities Base Rate Loans
4925-1798-1140 v.13 3 SOFR Rate Loans SOFR Rate Loans 1 < 40.00% 1.300% 1.300% 0.300% 1.250% 0.250% 2 ≥ 40.00% but < 45.00% 1.400% 1.400% 0.400% 1.300% 0.300% 3 ≥ 45.00% but < 50.00% 1.500% 1.500% 0.500% 1.450% 0.450% 4 ≥ 50.00% but < 55.00% 1.600% 1.600% 0.600% 1.550% 0.550% 5 ≥ 55.00% 1.850% 1.850% 0.850% 1.800% 0.800% Any increase or decrease in the Applicable Rate resulting from a change in the Total Leverage Ratio shall become effective as of the first (1st) Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 7.02(a); provided that if a Compliance Certificate is not delivered when due in accordance with such Section, then, upon the request of Required Lenders, Pricing Level 5 shall apply as of the first (1st) Business Day after the date on which such Compliance Certificate was required to have been delivered and shall remain in effect until the date on which such Compliance Certificate is delivered. The Applicable Rate in effect from the Closing Date until adjusted as set forth above shall be set at Pricing Level 2. Notwithstanding anything to the contrary contained in this clause (a), the determination of the Applicable Rate under this clause (a) for any period shall be subject to the provisions of Section 2.09(b). (b) If Parent or Borrower attains an Investment Grade Rating, then Borrower may, upon written notice to Administrative Agent, make an irrevocable one time written election to exclusively use the below table based on the Debt Rating of Parent or Borrower (setting forth the date for such election to be effective), and thereafter the Applicable Rate shall be determined based on the applicable rate per annum set forth in the below table notwithstanding any failure of Parent or Borrower to maintain an Investment Grade Rating or any failure of Parent or Borrower to maintain a Debt Rating: Applicable Rate Debt Rating Pricing Level Debt Rating Facility Fee Rate Letters of Credit Revolving Credit Facility Term SOFR Rate Loans and Daily SOFR Rate Loans Revolving Credit Facility Base Rate Loans Term Facilities Term SOFR Rate Loans and Daily SOFR Rate Loans Term Facilities Base Rate Loans 1 ≥ A-/A3 0.125% 0.675% 0.675% 0.000% 0.750% 0.000% 2 BBB+/Baa1 0.150% 0.725% 0.725% 0.000% 0.800% 0.000% 3 BBB/Baa2 0.200% 0.800% 0.800% 0.000% 0.900% 0.000% 4 BBB-/Baa3 0.250% 1.000% 1.000% 0.000% 1.150% 0.150% 5 <BBB-/Baa3 or Unrated 0.300% 1.350% 1.350% 0.350% 1.550% 0.550%
4925-1798-1140 v.13 4 If at any time Parent and/or Borrower has two (2) or more Debt Ratings, and such Debt Ratings are split, then: (i) if the difference between the highest and the lowest of such Debt Ratings is one ratings category (e.g., Baa2 by Moody’s and BBB- by S&P or Fitch), the Ratings-Based Applicable Rate shall be the rate per annum that would be applicable if the highest of the applicable Debt Ratings were used; and (ii) if the difference between the highest and the lowest of such Debt Ratings is two (2) ratings categories or more (e.g., Baa1 by Moody’s and BBB- by S&P or Fitch), the Ratings-Based Applicable Rate shall be the rate per annum that would be applicable if the rating that is one lower than the highest of the applicable Debt Ratings were used. If Parent and/or Borrower has only one Debt Rating from either Moody’s or S&P, then the Ratings-Based Applicable Rate shall be the rate per annum applicable to such Debt Rating. If Parent and/or Borrower (x) only has a Debt Rating from Fitch or (y) has no Debt Rating, then the Ratings- Based Applicable Rate shall be deemed to be the rate per annum that would be applicable if the Debt Rating were < BBB-/Baa3 or Unrated. Each change in the Applicable Rate resulting from a change in a Debt Rating shall be effective, in the case of an upgrade, during the period commencing on the date of delivery by Borrower to Administrative Agent of notice thereof pursuant to Section 7.02(f) and ending on the date immediately preceding the effective date of the next such change and, in the case of a downgrade, during the period commencing on the date of the announcement thereof and ending on the date immediately preceding the effective date of the next such change. “Applicable Revolving Credit Percentage” means, with respect to any Revolving Credit Lender at any time, such Revolving Credit Lender’s Applicable Percentage in respect of the Revolving Credit Facility at such time. “Appropriate Lender” means, at any time, (a) with respect to any of the Term A-1 Facility, the Term A-2 Facility or the Revolving Credit Facility, a Lender that has a Commitment with respect to such Facility or holds a Term A-1 Loan, a Term A-2 Loan or a Revolving Credit Loan, respectively, at such time and (b) with respect to the Letter of Credit Sublimit, (i) L/C Issuer and (ii) if any Letters of Credit have been issued pursuant to Section 2.03(a), the Revolving Credit Lenders. “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender. “Arrangers” means BofA Securities, Inc., in its capacity as a joint lead arranger and sole bookrunner, and M&T Bank, PNC Capital Markets LLC, TD Bank, N.A. and Truist Securities, Inc., each in its capacity as a joint lead arranger. “Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 11.06(b)), and accepted by Administrative Agent, in substantially the form of Exhibit D-1 or any other form (including electronic documentation generated by use of an electronic platform) approved by Administrative Agent. “Attributable Indebtedness” means, on any date, (a) in respect of any capital lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a capital lease. “Audited Financial Statements” means the audited consolidated balance sheet of the Consolidated Group for the fiscal year ended December 31, 2025, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year of the Consolidated Group, including the notes thereto.
4925-1798-1140 v.13 5 “Availability Period” means (a) in respect of the Revolving Credit Facility, the period from and including the Closing Date to the earliest of (i) the Maturity Date with respect to the Revolving Credit Facility, (ii) the date of termination of the Revolving Credit Commitments pursuant to Section 2.05, and (iii) the date of termination of the commitment of each Revolving Credit Lender to make Revolving Credit Loans and of the obligation of L/C Issuer to make L/C Credit Extensions pursuant to Section 9.02 and (b) in respect of each of the Term A-1 Facility and the Term A-2 Facility, the Closing Date. “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution. “Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, rule, regulation or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable to the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings). “Bank of America” means Bank of America, N.A. and its successors. “Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus one half of one percent (0.50%), (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate,” (c) Term SOFR plus one percent (1.00%) and (d) one percent (1.00%). The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such prime rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change. “Base Rate Loan” means a Revolving Credit Loan or a Term Loan that bears interest based on the Base Rate. “Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation. “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230. “BHC Act Affiliate” has the meaning specified in Section 11.21(b). “Borrower” has the meaning specified in the introductory paragraph hereto. “Borrower Detail Form” means a certificate provided by or on behalf of Borrower in the form attached hereto as Exhibit F. “Borrower Materials” has the meaning specified in Section 7.02. “Borrowing” means a Revolving Credit Borrowing or a Term Borrowing, as the context may require, consisting of simultaneous Loans of the same Type and, in the case of Term SOFR Rate Loans, having the same Interest Period, in each case made by each of the Lenders pursuant to Section 2.01.
4925-1798-1140 v.13 6 “Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where Administrative Agent’s Office is located. “Calculation Period” means, as of any date, the most recent four (4) fiscal quarter period ending on or prior to such date. “Capitalization Rate” means, (a) with respect to multi-family Properties, six percent (6.00%); (b) with respect to retail Properties, six and one-quarter of one percent (6.25%); and (c) with respect to office Properties, seven percent (7.00%). “Cash Collateralize” means to pledge and deposit with or deliver to Administrative Agent, for the benefit of one or more of Administrative Agent, L/C Issuer or the Lenders, as collateral for L/C Obligations or obligations of the Lenders to fund participations in respect of L/C Obligations, cash or deposit account balances or, if Administrative Agent and L/C Issuer shall agree in their sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to Administrative Agent and L/C Issuer. “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support. “Casualty” means, with respect to any Unencumbered Property, such Unencumbered Property shall be damaged or destroyed, in whole or in part, by fire or other casualty. “Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith or in the implementation thereof and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted, issued or implemented. “Change of Control” means an event or series of events by which: (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of thirty-five percent (35%) or more of the equity securities of Parent entitled to vote for members of the board of directors or equivalent governing body of Parent on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right); or (b) during any period of twelve (12) consecutive months, a majority of the members of the board of directors or other equivalent governing body of Parent cease to be composed of
4925-1798-1140 v.13 7 individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body; or (c) the passage of thirty (30) days from the date upon which any Person or two or more Persons acting in concert shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation thereof, will result in its or their acquisition of the power to exercise, directly or indirectly, a controlling influence over the management or policies of Parent, or control over the equity securities of Parent entitled to vote for members of the board of directors or equivalent governing body of Parent on a fully-diluted basis (and taking into account all such securities that such Person or group has the right to acquire pursuant to any option right) representing thirty-five percent (35%) or more of the combined voting power of such securities; or (d) Parent shall cease to be the sole general partner of Borrower; or (e) the general partner of Borrower shall no longer Control Borrower; or (f) Parent shall cease to own, directly or indirectly, at least forty percent (40%) of the Equity Interests of Borrower. “Closing Date” means the first date all the conditions precedent in Section 5.01 are satisfied or waived in accordance with Section 11.01. “CME” means CME Group Benchmark Administration Limited. “Code” means the Internal Revenue Code of 1986. “Commitment” means a Term Commitment or a Revolving Credit Commitment, as the context may require. “Committed Loan Notice” means a notice of (a) a Term Borrowing, (b) a Revolving Credit Borrowing, (c) a conversion of Loans from one Type to the other, or (d) a continuation of Term SOFR Rate Loans, which shall be substantially in the form of Exhibit A-1 or such other form as may be approved by Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by Administrative Agent), appropriately completed and signed by a Responsible Officer of Borrower. “Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.) and any successor statute. “Communication” has the meaning specified in Section 11.17. “Compliance Certificate” means a certificate substantially in the form of Exhibit C , which shall include (a) a list of any additional and removed Unencumbered Properties since the most-recent Compliance Certificate delivered to Administrative Agent hereunder and (b) supporting calculations and
4925-1798-1140 v.13 8 property level information in reasonable detail with respect to the covenants set forth in Sections 8.14 and 8.15. “Condemnation” means a temporary or permanent taking by any Governmental Authority as the result, in lieu, or in anticipation, of the exercise of the right of condemnation or eminent domain of all or any part of any Property, or any interest therein or right accruing thereto, including any right of access thereto or any change of grade affecting any Property or any part thereof. “Conforming Changes” means with respect to the use, administration of or any conventions associated with SOFR or any proposed Successor Rate, Daily Simple SOFR, or Term SOFR, as applicable, any conforming changes to the definitions of “Base Rate”, “Daily Simple SOFR”, “SOFR”, “Term SOFR”, and “Interest Period”, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including, for the avoidance of doubt, the definitions of “Business Day” and “U.S. Government Securities Business Day”, timing of borrowing requests or prepayment, conversion or continuation notices and length of lookback periods) as may be appropriate, in the reasonable discretion of Administrative Agent (after consultation with Borrower), to reflect the adoption and implementation of such applicable rate(s) and to permit the administration thereof by Administrative Agent in a manner substantially consistent with market practice (or, if Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such rate exists, in such other manner of administration as Administrative Agent determines is reasonably necessary in connection with the administration of this Agreement and any other Loan Document). “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 Group” means the Loan Parties and their Subsidiaries. “Construction-in-Progress Property” means a Property (a) the primary purpose of which is to be leased in the ordinary course of business or to be sold upon completion, (b) on which construction, redevelopment or material rehabilitation of material improvements has commenced and is continuing to be performed and (c) that is classified as “development in progress” on the balance sheet of the applicable owning member of the Consolidated Group or as a redevelopment project in any publicly filed financial and operating reporting supplement of the applicable owning member of the Consolidated Group, with any such Property remaining classified as a Construction-in-Progress Property until the earlier of (i) such Property achieving an Occupancy Rate of eighty percent (80%) and (ii) the first (1st) anniversary of the substantial completion of construction of such Property and material improvements as evidenced by a temporary or permanent certificate of occupancy. “Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound. “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto. “Controlled Account” means each deposit account and securities account that is subject to an account control agreement in form and substance satisfactory to Administrative Agent and L/C Issuer. “Covered Entity” has the meaning specified in Section 11.21(b).
4925-1798-1140 v.13 9 “Covered Party” has the meaning specified in Section 11.21(a). “Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension. “Credit Facility Guaranty” means the Guarantee of the Obligations by Parent pursuant to Article IV and by the Subsidiary Guarantors pursuant to the Subsidiary Guaranty. “Credit Party” has the meaning specified in Section 10.12. “Customary Recourse Exceptions” means, with respect to any Non-Recourse Debt, exclusions from the exculpation provisions with respect to such Non-Recourse Debt for fraud, misapplication of cash, environmental claims, breach of representations or warranties, failure to pay taxes and insurance, obligations for completion or cost overruns in connection with construction related activities, and other circumstances customarily excluded by institutional lenders from exculpation provisions and/or included in separate indemnification agreements in non-recourse financings of real estate. “Daily Simple SOFR” means, with respect to any applicable determination date, SOFR published on the fifth (5th) U.S. Government Securities Business Day preceding such day by the SOFR Administrator on the Federal Reserve Bank of New York’s website (or any successor source); provided, however, that if such day is not a U.S. Government Securities Business Day, then Daily Simple SOFR means such rate so published on the fifth (5th) U.S. Government Securities Business Day preceding the first (1st) U.S. Government Securities Business Day immediately prior thereto. If Daily Simple SOFR as so determined would be less than zero (0), such rate shall be deemed to be zero (0) for purposes of the Loans and Loan Documents. “Daily SOFR Rate Loan” means a Loan made hereunder with respect to which the interest rate is calculated by reference to Daily Simple SOFR. “Debt Rating” means the long-term unsecured senior, non-credit enhanced debt rating of Parent or Borrower by S&P, Moody’s or Fitch. “Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally. “Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default. “Default Rate” means (a) when used with respect to Obligations other than Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the highest Applicable Rate applicable to Base Rate Loans plus (iii) two percent (2%) per annum; provided, however, that with respect to a Term SOFR Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including the highest Applicable Rate applicable to Term SOFR Rate Loans) otherwise applicable to such Loan plus two percent (2%) per annum, and (b) when used with respect to Letter of Credit Fees, a rate equal to the highest Applicable Rate applicable to Letters of Credit plus two percent (2%) per annum. “Default Right” has the meaning specified in Section 11.21(b). “Defaulting Lender” means, subject to Section 2.16(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be
4925-1798-1140 v.13 10 funded hereunder unless such Lender notifies Administrative Agent and Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to Administrative Agent, L/C Issuer or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit) within two (2) Business Days of the date when due, (b) has notified Borrower, Administrative Agent or L/C Issuer in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by Administrative Agent or Borrower, to confirm in writing to Administrative Agent and Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by Administrative Agent and Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-in Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.16(b)) as of the date established therefor by Administrative Agent in a written notice of such determination, which shall be delivered by Administrative Agent to Borrower, L/C Issuer and each other Lender promptly following such determination. “Designated Jurisdiction” means any country or territory to the extent that such country or territory itself is the subject of any Sanction. “Disposition” or “Dispose” means the sale, transfer, license, lease (other than a real estate lease or license entered into in the ordinary course of business as part of Property leasing operations) or other disposition (including any sale and leaseback transaction) (in one transaction or in a series of transactions and whether effected pursuant to a Division or otherwise) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith. “Dividing Person” has the meaning specified in the definition of “Division”. “Division” means the division of the assets, liabilities and/or obligations of a Person (the “Dividing Person”) among two or more Persons (whether pursuant to a “plan of division” or similar arrangement), which may or may not include the Dividing Person and pursuant to which the Dividing Person may or may not survive. “Dollar” and “$” mean lawful money of the United States.
4925-1798-1140 v.13 11 “EBITDA” means, for the Consolidated Group, on a consolidated basis (without duplication), for any period, an amount equal to (a) Net Income of the Consolidated Group for such period, in each case, excluding (i) any non-recurring or extraordinary gains and losses for such period, (ii) any income or gain and any loss in each case resulting from early extinguishment of indebtedness, and (iii) any income or gain or any loss resulting from a swap or other derivative contract (including by virtue of a termination thereof), plus (b) an amount which, in the determination of Net Income for such period pursuant to clause (a) above, has been deducted for or in connection with (i) Interest Expense (plus, amortization of deferred financing costs, to the extent included in the determination of Interest Expense per GAAP), (ii) income taxes, (iii) depreciation and amortization, (iv) amounts deducted as a result of the application of FAS 141, (v) non- cash expenses related to employee and trustee stock and stock option plans, and (vi) adjustments as a result of the straight lining of rents, all as determined in accordance with GAAP, plus (c) without duplication of amounts included in clauses (a) and (b) above with respect to Unconsolidated Affiliates, the amounts described in clauses (a) and (b) above of each Unconsolidated Affiliate of the Consolidated Group multiplied by the respective Unconsolidated Affiliate Interest of each member of the Consolidated Group in such Unconsolidated Affiliate. “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. “Electronic Copy” has the meaning specified in Section 11.17. “Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 11.06(b)(iii) and (v) (subject to such consents, if any, as may be required under Section 11.06(b)(iii)). “Eligible Unencumbered Property” means, as of any date, each Property that satisfies the following: (a) such Property is primarily an office, retail, for-rent multi-family or student housing Property; (b) such Property is located within the continental United States; (c) such Property is Wholly-Owned in fee simple or leased pursuant to an Acceptable Ground Lease by Borrower or a Subsidiary Guarantor which is organized in the continental United States; (d) if such Property is owned or leased pursuant to an Acceptable Ground Lease by a Subsidiary that is not a Wholly-Owned Subsidiary of Borrower, then (i) Borrower owns, directly or indirectly, at least eighty percent (80%) of (A) all rights to receive distributions from the assets
4925-1798-1140 v.13 12 of such Subsidiary or (B) the issued and outstanding Equity Interests of such Subsidiary, free and clear of any Liens, and (ii) such Subsidiary is Controlled (including control over operating activities of such Subsidiary and the ability of such Subsidiary to Dispose of, grant Liens on, or otherwise encumber assets, incur, repay and prepay Indebtedness, provide Guarantees and make Restricted Payments, in each case without any requirement for the consent of any other Person) exclusively by Borrower and/or one or more Wholly-Owned Subsidiaries of Borrower; (e) if such Property is owned or leased pursuant to an Acceptable Ground Lease by a Subsidiary Guarantor, then such Subsidiary Guarantor may not incur, Guarantee, or otherwise be liable for any Indebtedness (other than the Obligations and Unsecured Indebtedness permitted hereunder); (f) such Property is not subject to any ground lease (other than an Acceptable Ground Lease), any Lien (other than Permitted Liens), or any Negative Pledge; (g) except for restrictions set forth herein, Borrower or the applicable Subsidiary Guarantor that owns or leases pursuant to an Acceptable Ground Lease such Property has the unilateral right to (i) Dispose of such Property, and (ii) create a Lien on such Property as security for Indebtedness of Borrower or such Subsidiary Guarantor; (h) such Property is not unimproved land or a Construction-in-Progress Property; (i) such Property is free of all material structural defects, Material Title Defects, or other similar adverse matters which, individually or collectively, could reasonably be expected to result in a Material Property Event; (j) such Property is not currently suffering a Material Environmental Event; and (k) such Property is not subject to any Casualty or Condemnation that is a Material Property Event. “Environmental Claim” means any enforcement, cleanup, removal, containment, remedial, or other private or governmental or regulatory action at any time threatened, instituted, or completed pursuant to any applicable Environmental Law against any member of the Consolidated Group with respect to any Property (including any such action against Administrative Agent or any Lender), and any claim at any time made by any Person against any member of the Consolidated Group with respect to any Property (including any such claim against Administrative Agent or any Lender), relating to damage, contribution, cost recovery, compensation, loss, or injury resulting from or in any way arising in connection with any Hazardous Material or any Environmental Law. “Environmental Laws” means any and all Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules or governmental restrictions relating to pollution and the protection of the environment or the release of any hazardous materials into the environment, including those related to Hazardous Materials. “Environmental Liability” means, with respect to any member of the Consolidated Group, any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of such member of the Consolidated Group directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any
4925-1798-1140 v.13 13 contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing. “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. “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder. “ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with any Loan Party within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code). “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of any Loan Party or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by any Loan Party or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is “insolvent” within the meaning of Section 4245 of ERISA; (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination under Section 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension Plan; (f) any event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (g) the determination that any Pension Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; or (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Loan Party or any ERISA Affiliate. “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time. “Event of Default” has the meaning specified in Section 9.01. “Excluded Taxes” means any of the following Taxes imposed on or with respect to any 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 Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by Borrower under Section 11.13) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 3.01(b), amounts with respect to such Taxes were payable either to such Lender’s
4925-1798-1140 v.13 14 assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.01(g) and (d) any U.S. federal withholding Taxes imposed pursuant to FATCA. “Existing Credit Agreement” has the meaning specified in the recitals. “Existing Letters of Credit” means those certain letters of credit which are described on Schedule 1.01. “Extended Term A-1 Maturity Date” means October 28, 2031. “Facility” means the Term A-1 Facility, the Term A-2 Facility or the Revolving Credit Facility, as the context may require. “FASB ASC” means the Accounting Standards Codification of the Financial Accounting Standards Board. “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, any applicable intergovernmental agreement entered into thereunder (and any foreign legislation implemented to give effect to such intergovernmental agreements) and any agreements entered into pursuant to Section 1471(b)(1) of the Code. “Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of one one-hundredth of one percent (1/100 of 1%)) charged to Bank of America on such day on such transactions as determined by Administrative Agent. “Fee Letter” means any fee letter among Borrower, Administrative Agent and any Arranger. “Fitch” means Fitch, Inc. and any successor thereto. “Fixed Charges” means, for the Consolidated Group, on a consolidated basis for any period, the sum (without duplication) of (a) Interest Expense, plus (b) scheduled principal payments on account of Indebtedness of the Consolidated Group (including, for purposes hereof, scheduled reductions in commitments, but excluding any balloon principal payments on any Indebtedness which pays such Indebtedness in full, but only to the extent that the amount of such final payment is greater than the scheduled principal payment immediately preceding such final payment), plus (c) Restricted Payments paid in cash with respect to preferred Equity Interests of any member of the Consolidated Group, plus (d) the amounts described in clauses (a), (b), and (c) above of each Unconsolidated Affiliate of the Consolidated Group multiplied by the respective Unconsolidated Affiliate Interest of each member of the Consolidated Group in such Unconsolidated Affiliate, all for the most recently ended Calculation Period. “Foreign Lender” means (a) if Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if Borrower is not a U.S. Person, a Lender that is resident or organized under the Laws of a jurisdiction
4925-1798-1140 v.13 15 other than that in which Borrower is resident for tax purposes. For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction. “FRB” means the Board of Governors of the Federal Reserve System of the United States. “Fronting Exposure” means, at any time there is a Defaulting Lender, such Defaulting Lender’s Applicable Percentage of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof. “Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities. “GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied. “Governmental Authority” means the government of the United States or any other nation, or of 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 (including any supra- national bodies such as the European Union or the European Central Bank). “Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning. “Guaranteed Obligations” has the meaning specified in Section 4.01. “Guaranties” means, collectively, the Subsidiary Guaranty and the Guaranty given by Parent pursuant to Article IV of this Agreement, and “Guaranty” means any one of the Guaranties.
4925-1798-1140 v.13 16 “Guarantors” means, collectively (a) Parent, (b) the Subsidiary Guarantors and (c) with respect to the payment and performance by each Specified Loan Party of its obligations under the Subsidiary Guaranty with respect to all Swap Obligations, Borrower; and “Guarantor” means any one of the Guarantors. “Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature, in each case regulated pursuant to any Environmental Law. “Increase Effective Date” has the meaning specified in Section 2.14(d). “Indebtedness” means, for any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP: (a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments; (b) all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments to the extent such instruments or agreements support financial, rather than performance, obligations; for the avoidance of doubt, performance bonds issued for the account of such Person in the ordinary course of business shall be excluded from “Indebtedness;” (c) net obligations of such Person under any Swap Contract (excluding obligations under Swap Contracts relating solely to the Obligations); (d) all obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business and, in each case, not past due for more than sixty (60) days (unless being disputed in good faith by appropriate legal proceedings and for which reserves in accordance with GAAP have been established) after the date on which such trade account payable was created); (e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse; (f) capital leases and Synthetic Lease Obligations; (g) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interest in such Person or any other Person, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; provided that such obligations shall not be considered Indebtedness hereunder to the extent such redemption may be completed through the issuance by such Person of its capital stock in exchange for the Equity Interests being redeemed and such Person has elected or may still elect to issue such capital stock rather than pay other consideration in connection with such redemption; and (h) all Guarantees of such Person in respect of any of the foregoing (excluding Guarantees limited to Customary Recourse Exceptions as long as no demand for payment or performance thereof has been demanded or if so demanded, is being disputed in good faith by
4925-1798-1140 v.13 17 appropriate legal proceedings) and without duplication of any Indebtedness that is recourse to a Subsidiary and is covered under clauses (a)-(g) above. For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date. The amount of any capital lease or Synthetic Lease Obligation as of any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date. “Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes. “Indemnitees” has the meaning specified in Section 11.04(b). “Information” has the meaning specified in Section 11.07. “Initial Term A-1 Maturity Date” means October 28, 2030. “Interest Expense” means, for the Consolidated Group, on a consolidated basis for the most recently ended Calculation Period, without duplication, total interest expense determined in accordance with GAAP (including for the avoidance of doubt capitalized interest and interest expense attributable to the Consolidated Group’s ownership interests in Unconsolidated Affiliates). “Interest Payment Date” means (a) as to any Daily SOFR Rate Loan or Base Rate Loan, the first (1st) Business Day of each calendar month and the Maturity Date with respect to the applicable Facility and (b) as to any Term SOFR Rate Loan, the last day of each Interest Period applicable to such Term SOFR Loan and the Maturity Date with respect to the applicable Facility. “Interest Period” means as to each Term SOFR Rate Loan, the period commencing on the date such Term SOFR Rate Loan is disbursed or converted to or continued as a Term SOFR Rate Loan and ending on the date one (1) month or three (3) months thereafter, in either case subject to availability, as selected by Borrower in its Committed Loan Notice; provided that: (a) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless, in the case of a Term SOFR Rate Loan, such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day; (b) any Interest Period pertaining to a Term SOFR Rate Loan that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and (c) no Interest Period shall extend beyond the Maturity Date of the Facility under which such Loan was made. “Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of capital stock or other securities of
4925-1798-1140 v.13 18 another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor Guarantees Indebtedness of such other Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment. “Investment Grade Rating” means a Debt Rating for Parent or Borrower of BBB- or better from S&P or Baa3 or better from Moody’s. “IRS” means the United States Internal Revenue Service. “ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance). “Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by L/C Issuer and Borrower (or any Subsidiary) or in favor of L/C Issuer and relating to such Letter of Credit. “Laws” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law. “L/C Advance” means, with respect to each Revolving Credit Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Revolving Credit Percentage. “L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Revolving Credit Borrowing. “L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof. “L/C Disbursement” means a payment made by an L/C Issuer pursuant to a Letter of Credit. “L/C Issuer” means Bank of America in its capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder. “L/C Obligations” means, as at any date, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
4925-1798-1140 v.13 19 “Lease” means each existing or future lease, sublease (to the extent of any Loan Party’s rights thereunder), or other agreement (other than an Acceptable Ground Lease) under the terms of which any Person has or acquires any right to occupy or use any Property, or any part thereof, or interest therein, and each existing or future guaranty of payment or performance thereunder. “Lender” has the meaning specified in the introductory paragraph hereto. “Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify Borrower and Administrative Agent, which office may include any Affiliate of such Lender or any domestic or foreign branch of such Lender or such Affiliate. Unless the context otherwise requires each reference to a Lender shall include its applicable Lending Office. “Letter of Credit” means any standby letter of credit issued hereunder providing for the payment of cash upon the honoring of a presentation thereunder and shall include the Existing Letters of Credit. “Letter of Credit Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by L/C Issuer. “Letter of Credit Expiration Date” means the day that is one (1) year after the Maturity Date then in effect for the Revolving Credit Facility (or, if such day is not a Business Day, the next preceding Business Day). “Letter of Credit Fee” has the meaning specified in Section 2.03(j). “Letter of Credit Sublimit” means an amount equal to $20,000,000. The Letter of Credit Sublimit is part of, and not in addition to, the Revolving Credit Facility. “Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to any real property, and any financing lease having substantially the same economic effect as any of the foregoing). “Loan” means an extension of credit by a Lender to Borrower under Article II in the form of a Term Loan or a Revolving Credit Loan. “Loan Documents” means this Agreement, each Note, each Issuer Document, any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.15 of this Agreement, the Subsidiary Guaranty, and the Fee Letter. “Loan Parties” means, collectively, Borrower and each Guarantor, and “Loan Party” means any one of the Loan Parties. “M&T Term Loan Agreement” means that certain term loan agreement, dated as of December 6, 2022, by and among, inter alios, Borrower, as borrower, and Manufacturers and Traders Trust Company, as lender and administrative agent, as amended, restated, amended and restated, supplemented or otherwise modified from time to time. “Master Agreement” has the meaning specified in the definition of “Swap Contract”.
4925-1798-1140 v.13 20 “Material Adverse Effect” means: (a) a material adverse change in, or a material adverse effect upon, the operations, business, properties, liabilities (actual or contingent), condition (financial or otherwise) of Parent and its Subsidiaries, taken as a whole, or Borrower and its Subsidiaries, taken as a whole; (b) a material adverse effect on the rights and remedies of Administrative Agent or any Lender under any Loan Documents, or of the ability of Borrower and the Loan Parties, taken as a whole, to perform their obligations under the Loan Documents; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to which it is a party. “Material Contract” means, with respect to any Person, (a) each contract to which such Person is a party involving aggregate consideration payable to or by such Person of, (i) with respect to an Unencumbered Property, $250,000 or more in any year, or (ii) with respect to any other Property, $1,000,000 or more in any year, and (b) each Property management agreement to which such Person is a party pertaining to any Property owned by such Person. “Material Environmental Event” means, with respect to any Property, (a) a violation of any Environmental Law with respect to such Property, or (b) the presence of any Hazardous Materials on, about, or under such Property that, under or pursuant to any Environmental Law, would require remediation, if in the case of either clause (a) or (b), such event or circumstance could reasonably be expected to result in a Material Adverse Effect or in a Material Property Event. “Material Property Event” means, with respect to any Property, the occurrence of any event or circumstance occurring or arising after the date of this Agreement that could reasonably be expected to result in a material adverse effect with respect to the financial condition or the operations of such Property. “Material Title Defects” means, with respect to any Property, defects, Liens (other than Permitted Liens), and other encumbrances in the nature of easements, servitudes, restrictions, and rights-of-way that would customarily be deemed unacceptable title exceptions for a prudent mortgage lender (i.e., a prudent mortgage lender would reasonably determine that such exceptions, individually or in the aggregate, materially impair the value or operations of such Property, would prevent such Property from being used in the manner in which it is currently being used, or could reasonably be expected to result in a violation of any Law which could result in a Material Property Event). “Maturity Date” means (a) with respect to each of the Revolving Credit Facility and the Term A- 2 Facility, October 28, 2031, and (b) with respect to the Term A-1 Facility, (i) if the Initial Term A-1 Maturity Date is not extended to the Extended Term A-1 Maturity Date pursuant to Section 2.13, then the Initial Term A-1 Maturity Date, and (ii) if the Initial Term A-1 Maturity Date is extended to the Extended Term A-1 Maturity Date pursuant to Section 2.13, then the Extended Term A-1 Maturity Date; provided, however, that, in each case, if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day. “Minimum Collateral Amount” means, at any time, (a) with respect to Cash Collateral consisting of cash or deposit account balances provided to reduce or eliminate Fronting Exposure during the existence of a Defaulting Lender, an amount equal to one hundred and five percent (105%) of the Fronting Exposure of L/C Issuer with respect to Letters of Credit issued and outstanding at such time, (b) with respect to Cash Collateral consisting of cash or deposit account balances provided in accordance with the provisions of Sections 2.15(a)(i), 2.15(a)(ii) or 2.15(a)(iii), an amount equal to one hundred and five percent (105%) of the Outstanding Amount of all LC Obligations, and (c) otherwise, an amount determined by Administrative Agent and L/C Issuer in their sole discretion. “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.
4925-1798-1140 v.13 21 “Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions. “Multiple Employer Plan” means a Plan which has two or more contributing sponsors (including any Loan Party or any ERISA Affiliate) at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA. “Negative Pledge” means a provision of any agreement (other than this Agreement or any other Loan Document and any agreement in favor of holders of Indebtedness that is pari passu with the Obligations that only prohibits creation of a Lien on Unencumbered Properties on terms no more onerous in any material respect than those set forth in this Agreement) that prohibits the creation of any Lien on any assets of a Person; provided, however, that the following shall not constitute a “Negative Pledge” for purposes of this Agreement: (a) an agreement that establishes a maximum ratio of unsecured debt to unencumbered assets, or of secured debt to total assets, or that otherwise conditions a Person’s ability to encumber its assets upon the maintenance of one or more specified ratios that limit such Person’s ability to encumber its assets but that do not generally prohibit the encumbrance of its assets or the encumbrance of specific assets; (b) any requirement for the grant in favor of the holders of any Unsecured Indebtedness of an equal and ratable Lien in connection with a pledge of any property or asset to secure the Facility; and (c) provisions in equipment leases that restrict the sale or encumbrance of the Property leased thereunder. “Net Income” means the net income (or loss) of the Consolidated Group for the subject period; provided, however, that Net Income shall exclude (a) extraordinary gains and extraordinary losses (in each case, as determined in accordance with GAAP) for such period, (b) the net income of any Subsidiary of Parent during such period to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary of such income is not permitted by operation of the terms of its organization documents or any agreement, instrument or law applicable to such Subsidiary during such period, except that Parent’s equity in any net loss of any such Subsidiary for such period shall be included in determining Net Income, and (c) any income (or loss) for such period of any Person if such Person is not a Subsidiary of Parent, except that Parent’s equity in the net income of any such Person for such period shall be included in Net Income up to the aggregate amount of cash actually distributed by such Person during such period to Parent or a Subsidiary thereof as a dividend or other distribution (and in the case of a dividend or other distribution to a Subsidiary of Parent, such Subsidiary is not precluded from further distributing such amount to Parent as described in clause (b) of this proviso). “Net Operating Income” means, for any Property and for any period, an amount equal to (a) the aggregate gross revenues from the operations of such Property during such period (excluding all revenues from (i) tenants that are subject to a proceeding under any Debtor Relief Law and (ii) tenants that are not in occupancy or paying rent (unless any such tenant is in a free rent period with less than three (3) months remaining), provided that revenues from tenants that are not in occupancy, but are paying rent on leases with more than twelve (12) months remaining shall be included, minus (b) the sum of (i) all expenses and other proper charges incurred in connection with the operation of such Property during such period (including accruals for real estate taxes and insurance, but excluding debt service charges, income taxes, depreciation, amortization and other non-cash expenses), which expenses and accruals shall be calculated in accordance with GAAP, and (ii) an amount equal to the greater of (x) three percent (3%) of rents and (y) actual management fees paid in cash. “Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all Lenders or all affected Lenders in accordance with the terms of Section 11.01 and (b) has been approved by Required Lenders.
4925-1798-1140 v.13 22 “Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time. “Non-Recourse Debt” means, for any Person, any Indebtedness of such Person in which the holder of such Indebtedness may not look to such Person personally for repayment, other than to the extent of any security therefor or pursuant to Customary Recourse Exceptions. For purposes hereof, “Non-Recourse Debt” shall include Indebtedness of a Subsidiary of Parent or Borrower (other than a Subsidiary Guarantor) in which the holder of such Indebtedness may look to such Subsidiary personally for repayment (but not to any constituent owner of such Person other than for Customary Recourse Exceptions) and such Subsidiary is a special purpose entity owning only Properties that secure such Indebtedness. “Non-Recourse Subsidiaries” means one (1) or more Subsidiaries of Borrower (other than any Subsidiary Guarantor) that have Non-Recourse Debt under which a default exists, but such default does not result in an Event of Default under Section 9.01(e), and “Non-Recourse Subsidiary” means any one of the Non-Recourse Subsidiaries. “Note” means a Term A-1 Note, a Term A-2 Note or a Revolving Credit Note, as the context may require. “Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit, 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 Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding; provided that all references to “Obligations” in the Guaranties, and any other Guarantees, security agreement, or pledge agreements delivered to Administrative Agent to Guarantee, or create or evidence Liens securing, the Obligations shall, in addition to the foregoing, include all present and future indebtedness, liabilities, and obligations now or hereafter owed to Administrative Agent, any Lender, any Affiliate of Administrative Agent or any Lender arising from, by virtue of, or pursuant to any Swap Contract that relates solely to the Obligations, or any Person who was a Lender or an Affiliate of a Lender at the time such Swap Contract was entered into. “Occupancy Rate” means, for any Property, the percentage of the rentable area of such Property leased by tenants pursuant to bona fide tenant Leases, which tenants are in occupancy and not delinquent on any rent or other payments under such Leases and paying cash rent or that are in a one-time free rent period with less than or equal to three (3) months of free rent remaining and are not subject to a proceeding under any Debtor Relief Law. “OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury. “Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non- U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
4925-1798-1140 v.13 23 “Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document). “Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.06). “Outbound Investment Rules” means the regulations administered and enforced, together with any related public guidance issued, by the United States Treasury Department under U.S. Executive Order 14105 of August 9, 2023, or any similar law or regulation; as of the Closing Date, and as codified at 31 C.F.R. § 850.101 et seq. “Outstanding Amount” means (a) with respect to Revolving Credit Loans and Term Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Revolving Credit Loans and Term Loans, as the case may be, occurring on such date; and (b) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by Borrower of Unreimbursed Amounts. “Parent” has the meaning specified in the introductory paragraph hereto. “Pari Passu Facility” means any Indebtedness of any member of the Consolidated Group that, prior to becoming Secured Indebtedness, was included in Unsecured Indebtedness for purposes of calculating the covenants set forth in Section 8.14(f) and Section 8.14(g), and any modifications, amendments, renewals, extensions, or restructurings of any such Indebtedness. “Participant” has the meaning specified in Section 11.06(d). “Participant Register” has the meaning specified in Section 11.06(d). “PBGC” means the Pension Benefit Guaranty Corporation. “Pension Act” means the Pension Protection Act of 2006. “Pension Funding Rules” means the rules of the Code and ERISA regarding minimum required contributions (including any installment payment thereof) to Pension Plans and set forth in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412 of the Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter, Section 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA. “Pension Plan” means any employee pension benefit plan (including a Multiple Employer Plan or a Multiemployer Plan) that is maintained or is contributed to by any Loan Party or any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code.
4925-1798-1140 v.13 24 “Permitted Liens” means Liens permitted by Section 8.01. “Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity. “Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA (including a Pension Plan), maintained for employees of any Loan Party or any ERISA Affiliate or any such Plan to which any Loan Party or any ERISA Affiliate is required to contribute on behalf of any of its employees. “Plan Assets” means the assets of an “employee benefit plan,” as defined in Section 3(3) of ERISA that is covered by Title I of ERISA or any “plan” defined in Section 4975(e) of the Code, as described in the Plan Assets Regulation, 29 C.F.R. Section 2550.401c-1, pursuant to the principles set forth in John Hancock Mutual Life Insurance Company v. Harris Trust & Savings Bank, 114 S.Ct. 517 (1993), or otherwise. “Plan Assets Regulation” means 29 C.F.R. Section 2510.3-101, et seq., as modified by Section 3(42) of ERISA. “Platform” has the meaning specified in Section 7.02. “Properties” means real estate properties owned by any member of the Consolidated Group, and “Property” means any one of the Properties. “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 specified in Section 7.02. “QFC” has the meaning specified in Section 11.21(b). “QFC Credit Support” has the meaning specified in Section 11.21(b). “Recipient” means Administrative Agent, any Lender, L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder. “Recourse Debt” means, for any Person, Indebtedness of such Person that is not Non-Recourse Debt. “Register” has the meaning specified in Section 11.06(c). “REIT” means a “real estate investment trust” in accordance with Sections 856 through 860 of the Code. “Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates. “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the thirty (30) day notice period has been waived.
4925-1798-1140 v.13 25 “Request for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation of Revolving Credit Loans or Term Loans, a Committed Loan Notice and (b) with respect to an L/C Credit Extension, a Letter of Credit Application. “Required Lenders” means, at any time, Lenders having Total Credit Exposures representing at least fifty-one percent (51%) of the Total Credit Exposures of all Lenders (with the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations being deemed “held” by such Revolving Credit Lender for purposes of this definition); provided that, at all times when two or more Lenders (excluding Defaulting Lenders) are party to this Agreement, the term “Required Lenders” shall in no event mean fewer than two Lenders. The Total Credit Exposure of any Defaulting Lender shall be disregarded in determining Required Lenders at any time; provided that, the amount of any Unreimbursed Amounts that such Defaulting Lender has failed to fund that have not been reallocated to and funded by another Lender shall be deemed to be held by the Lender that is L/C Issuer in making such determination. “Required Revolving Lenders” means, at any time, Revolving Credit Lenders having aggregate Revolving Credit Exposures representing at least fifty-one percent (51%) of the total Revolving Credit Exposures of all Revolving Credit Lenders (with the aggregate amount of each Revolving Credit Lender’s risk participation and funded participation in L/C Obligations being deemed “held” by such Revolving Credit Lender for purposes of this definition). The Revolving Credit Exposure of any Defaulting Lender shall be disregarded in determining Required Revolving Lenders at any time; provided that, the amount of any Unreimbursed Amounts that such Defaulting Lender has failed to fund that have not been reallocated to and funded by another Lender shall be deemed to be held by the Lender that is L/C Issuer in making such determination. “Required Term A-1 Lenders” means, as of any date of determination, Term A-1 Lenders holding at least fifty-one percent (51%) of the Term A-1 Facility on such date. The portion of the Term A-1 Facility held by any Defaulting Lender shall be disregarded in determining Required Term A-1 Lenders at any time. “Required Term A-2 Lenders” means, as of any date of determination, Term A-2 Lenders holding at least fifty-one percent (51%) of the Term A-2 Facility on such date. The portion of the Term A-2 Facility held by any Defaulting Lender shall be disregarded in determining Required Term A-2 Lenders at any time. “Rescindable Amount” has the meaning specified in Section 2.11(b)(ii). “Resignation Effective Date” has the meaning specified in Section 10.06(a). “Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority. “Responsible Officer” means (a) the chief executive officer, president, chief financial officer, treasurer, assistant treasurer, controller or chief operating officer of a Loan Party, (b) solely for purposes of the delivery of incumbency certificates pursuant to Section 5.01, the secretary or any assistant secretary of a Loan Party and, (c) solely for purposes of notices given pursuant to Article II, any other officer or employee of the applicable Loan Party so designated by any of the foregoing officers in a notice to Administrative Agent, in each case with respect to clauses (a) and (c), as listed in the Borrower Detail Form most recently delivered to Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
4925-1798-1140 v.13 26 “Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other Equity Interest of 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 capital stock or other Equity Interest, or on account of any return of capital to Borrower’s stockholders, partners or members (or the equivalent Person thereof). “Revolving Credit Borrowing” means a borrowing consisting of simultaneous Revolving Credit Loans of the same Type and, in the case of Term SOFR Rate Loans, having the same Interest Period made by each of the Revolving Credit Lenders pursuant to Section 2.01(c). “Revolving Credit Commitment” means, as to each Revolving Credit Lender, its obligation to (a) make Revolving Credit Loans to Borrower pursuant to Section 2.01(c) and (b) purchase participations in L/C Obligations, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 under the caption “Revolving Credit Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. “Revolving Credit Exposure” means, as to any Revolving Credit Lender, the sum of such Revolving Credit Lender’s Applicable Revolving Credit Percentage of (a) the unused portion of the Revolving Credit Facility at such time and (b) the Total Revolving Credit Outstandings at such time. “Revolving Credit Facility” means, at any time, the aggregate amount of the Revolving Credit Lenders’ Revolving Credit Commitments at such time. “Revolving Credit Lender” means (a) at any time prior to the last day of the Availability Period in respect of the Revolving Credit Facility, any Lender that has a Revolving Credit Commitment at such time and (b) at any time thereafter, any Lender that holds Revolving Credit Loans and/or has an obligation to purchase participations in L/C Obligations at such time. “Revolving Credit Loan” has the meaning specified in Section 2.01(c). “Revolving Credit Note” means a promissory note made by Borrower in favor of a Revolving Credit Lender evidencing Revolving Credit Loans made by such Revolving Credit Lender, substantially in the form of Exhibit B-2. “Revolving Unused Fee” has the meaning specified in Section 2.08(a). “Revolving Unused Rate” means, with respect to the Revolving Unused Fee to be paid on any date (a) on which there exist any Revolving Credit Commitments and (b) that the Applicable Rate is determined pursuant to clause (a) of the definition of Applicable Rate, (x) a percentage per annum equal to twenty basis points (0.20%) if on such date the Total Revolving Credit Outstandings are less than fifty percent (50%) of the Revolving Credit Facility and (y) a percentage per annum equal to fifteen basis points (0.15%) if on such date the Total Revolving Credit Outstandings are greater than or equal to fifty percent (50.0%) of the Revolving Credit Facility. “S&P” means S&P Global Ratings, a subsidiary of S&P Global, Inc., and any successor thereto.
4925-1798-1140 v.13 27 “Sanction(s)” means any sanction administered or enforced by the United States Government (including OFAC), the United Nations Security Council, the European Union, Her Majesty’s Treasury (“HMT”) or other relevant sanctions authority. “SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions. “Secured Indebtedness” means, for any Person as of any date, Indebtedness of such Person that is secured by a Lien. “Secured Recourse Debt” means, for any Person as of any date, Recourse Debt of such Person that is secured by a Lien. “Significant Acquisition” means the acquisition of one or more real property assets or portfolios of such assets or operating businesses in a single transaction or a series of related transactions for a purchase price that is greater than ten percent (10%) of Total Asset Value. “SOFR” means the Secured Overnight Financing Rate as administered by the SOFR Administrator. “SOFR Administrator” means the Federal Reserve Bank of New York, as the administrator of SOFR, or any successor administrator of SOFR designated by the Federal Reserve Bank of New York or other person acting as the SOFR Administrator at such time. “Solvent” means, with respect to any Person on any date of determination, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature, (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital, and (e) such Person is able to pay its debts and liabilities, contingent obligations and other commitments as they mature in the ordinary course of business. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability. “Specified Loan Party” means any Loan Party that is not an “eligible contract participant” under the Commodity Exchange Act (determined prior to giving effect to Section 7.19). “Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of Borrower. “Subsidiary Guarantors” means, as of any date, all Subsidiaries of Borrower that have executed the Subsidiary Guaranty (or an addendum thereto in the form attached to the Subsidiary Guaranty), but excluding all Subsidiaries of Borrower that have been released from the Subsidiary Guaranty, and “Subsidiary Guarantor” means any one of the Subsidiary Guarantors.
4925-1798-1140 v.13 28 “Subsidiary Guaranty” means the Fourth Amended and Restated Guaranty Agreement executed by each Subsidiary Guarantor in favor of Administrative Agent, for the benefit of the Lenders, in form and substance acceptable to Administrative Agent. “Successor Rate” has the meaning specified in Section 3.03(b). “Supported QFC” has the meaning specified in Section 11.21. “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, floor transactions, collar transactions, currency swap transactions, cross- currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement. “Swap Obligations” means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act. “Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender). “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property creating obligations that do not appear on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment). “Tangible Net Worth” means, for the Consolidated Group as of any date, (a) total equity on a consolidated basis determined in accordance with GAAP, minus (b) all intangible assets on a consolidated basis determined in accordance with GAAP plus (c) all depreciation determined in accordance with GAAP. “Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto. “Term A-1 Borrowing” means a borrowing consisting of simultaneous Term A-1 Loans of the same Type and, in the case of Term SOFR Rate Loans, having the same Interest Period made by each of the Term A-1 Lenders pursuant to Section 2.01(a).
4925-1798-1140 v.13 29 “Term A-1 Commitment” means, as to each Term A-1 Lender, its obligation to make Term A-1 Loans to Borrower pursuant to Section 2.01(a)in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Term A-1 Lender’s name on Schedule 2.01 under the caption “Term A-1 Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such Term A-1 Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The aggregate Term A-1 Commitments of all Term A-1 Lenders as of the Closing Date shall be $200,000,000. “Term A-1 Facility” means (a) at any time prior to the last day of the Availability Period in respect of the Term A-1 Facility, the aggregate amount of the Term A-1 Commitments at such time and (b) at any time thereafter, the Outstanding Amount of the Term A-1 Loans of all Term A-1 Lenders outstanding at such time. “Term A-1 Lender” means (a) at any time prior to the last day of the Availability Period in respect of the Term A-1 Facility, any Lender that has a Term A-1 Commitment at such time and (b) at any time thereafter, any Term A-1 Lender that holds Term A-1 Loans at such time. “Term A-1 Loan” means an advance made by any Term A-1 Lender under the Term A-1 Facility. “Term A-1 Note” means a promissory note made by Borrower in favor of a Term A-1 Lender evidencing Term A-1 Loans made by such Term A-1 Lender, substantially in the form of Exhibit B-2. “Term A-2 Borrowing” means a borrowing consisting of simultaneous Term A-2 Loans of the same Type and, in the case of Term SOFR Rate Loans, having the same Interest Period made by each of the Term A-2 Lenders pursuant to Section 2.01(b). “Term A-2 Commitment” means, as to each Term A-2 Lender, its obligation to make Term A-2 Loans to Borrower pursuant to Section 2.01(b) in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Term A-2 Lender’s name on Schedule 2.01 under the caption “Term A-2 Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such Term A-2 Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The aggregate Term A-2 Commitments of all Term A-2 Lenders as of the Closing Date shall be $200,000,000. “Term A-2 Facility” means (a) at any time prior to the last day of the Availability Period in respect of the Term A-2 Facility, the aggregate amount of the Term A-2 Commitments at such time and (b) at any time thereafter, the Outstanding Amount of the Term A-2 Loans of all Term A-2 Lenders outstanding at such time. “Term A-2 Lender” means (a) at any time prior to the last day of the Availability Period in respect of the Term A-2 Facility, any Lender that has a Term A-2 Commitment at such time and (b) at any time thereafter, any Term A-2 Lender that holds Term A-2 Loans at such time. “Term A-2 Loan” means an advance made by any Term A-2 Lender under the Term A-2 Facility. “Term A-2 Note” means a promissory note made by Borrower in favor of a Term A-2 Lender evidencing Term A-2 Loans made by such Term A-2 Lender, substantially in the form of Exhibit B-3. “Term Borrowing” means a Term A-1 Borrowing or a Term A-2 Borrowing, as the context may require.
4925-1798-1140 v.13 30 “Term Commitment” means a Term A-1 Commitment or a Term A-2 Commitment, as the context may require. “Term Facility” means the Term A-1 Facility or the Term A-2 Facility, as the context may require and “Term Facilities” means the Term A-1 Facility and the Term A-2 Facility, collectively. “Term Lender” means any Term A-1 Lender or Term A-2 Lender, as the context may require. “Term Loan” means a Term A-1 Loan or a Term A-2 Loan, as the context may require. “Term SOFR” means: (a) for any Interest Period with respect to a Term SOFR Rate Loan, the rate per annum equal to the Term SOFR Screen Rate two (2) U.S. Government Securities Business Days prior to the commencement of such Interest Period with a term equivalent to such Interest Period; provided that if the rate is not published prior to 11:00 a.m. Eastern Time on such determination date then Term SOFR means the Term SOFR Screen Rate on the first U.S. Government Securities Business Day immediately prior thereto; and (b) for any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to the Term SOFR Screen Rate with a term of one (1) month commencing that day; provided that if the Term SOFR determined in accordance with either of the foregoing clauses (a) or (b) of this definition would otherwise be less than zero (0), Term SOFR shall be deemed zero (0) for purposes of this Agreement. “Term SOFR Rate Loan” means a Loan made hereunder with respect to which the interest rate is calculated by reference to clause (a) of the definition of Term SOFR. “Term SOFR Replacement Date” has the meaning specified in Section 3.03(b). “Term SOFR Screen Rate” means the forward-looking SOFR term rate administered by CME (or any successor administrator satisfactory to Administrative Agent) and published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by Administrative Agent from time to time). “Threshold Amount” means $25,000,000. “Total Asset Value” means, at any time for the Consolidated Group, without duplication, the sum of the following: (a) an amount, not less than $0, equal to (i)(A) Net Operating Income from all Properties owned or leased (as ground lessee) by the Consolidated Group for the then most recently ended Calculation Period, minus Net Operating Income attributable to all Properties that were sold or otherwise disposed of during the then most recently ended Calculation Period minus (B) the Annual Capital Expenditure Adjustment with respect to such Properties, divided by (ii) the Capitalization Rate; plus (b) the aggregate acquisition costs, including all direct out-of-pocket costs and expenses in connection with each such acquisition, of all real property assets owned or leased (as ground lessee) as of such date by the Consolidated Group for less than four (4) full fiscal quarters; plus (c) the aggregate book value of all unimproved land holdings, mortgage or mezzanine loans, notes receivable and/or Construction-in-Progress Properties owned by the Consolidated Group; plus (d) without duplication of the amounts included in clauses (a), (b) and (c) above with respect to Unconsolidated Affiliates, the amounts described in clauses (a), (b) and (c) above
4925-1798-1140 v.13 31 of each Unconsolidated Affiliate of the Consolidated Group multiplied by the respective Unconsolidated Affiliate Interest of each member of the Consolidated Group in such Unconsolidated Affiliate; plus (e) all Unrestricted Cash; provided that the aggregate amount of Total Asset Value attributable to (i) unimproved land holdings shall not exceed five percent (5%) of Total Asset Value, (ii) Construction-in-Progress Properties shall not exceed twenty percent (20%) of Total Asset Value, (iii) Unconsolidated Affiliates shall not exceed ten percent (10%) of Total Asset Value, (iv) mortgages, mezzanine loans and notes receivable shall not exceed fifteen percent (15%) of Total Asset Value, and (v) Investments in the items described in the foregoing clauses (i) through (iv) shall not exceed thirty percent (30%) of Total Asset Value. “Total Credit Exposure” means, as to any Lender at any time, the unused Commitments and Total Outstandings of such Lender at such time. “Total Indebtedness” means, as of any date, the sum of (a) all Indebtedness of the Consolidated Group, on a consolidated basis, as of such date, plus (b) without duplication of the amount included in clause (a) above with respect to Unconsolidated Affiliates, the amount described in clause (a) above of each Unconsolidated Affiliate of the Consolidated Group multiplied by the respective Unconsolidated Affiliate Interest of each member of the Consolidated Group in such Unconsolidated Affiliate. For purposes of this definition, Indebtedness shall not include surety bonds issued in the ordinary course of Borrower’s business so long as no demand for payment thereunder has been made on any member of the Consolidated Group. For the avoidance of doubt, any unsecured Guarantee by any member of the Consolidated Group of Secured Indebtedness of any other Person shall be treated as Total Indebtedness for the purpose of calculating the Total Leverage Ratio. “Total Leverage Ratio” means, as of any date, the ratio of (a) Total Indebtedness as of such date to (b) Total Asset Value. “Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C Obligations. “Total Revolving Credit Outstandings” means the aggregate Outstanding Amount of all Revolving Credit Loans and L/C Obligations. “Total Unsecured Indebtedness” means, as of any date, (a) all Unsecured Indebtedness of the Consolidated Group determined on a consolidated basis plus (b) without duplication of the amounts included in clause (a) above with respect to Unconsolidated Affiliates, the amounts described in clause (a) above of each Unconsolidated Affiliate of the Consolidated Group multiplied by the respective Unconsolidated Affiliate Interest of each member of the Consolidated Group in such Unconsolidated Affiliate. “Total Unsecured Leverage Ratio” means, as of any date, the ratio of (a) Total Unsecured Indebtedness as of such date to (b) Unencumbered Asset Value. “Type” means, with respect to a Loan, its character as a Base Rate Loan, a Term SOFR Rate Loan or a Daily SOFR Rate Loan. “UCP” means, with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce (“ICC”) Publication No. 600 (or such later version thereof as may be in effect at the time of issuance). “UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation
4925-1798-1140 v.13 32 Authority) or any person subject to IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms. “UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution. “Unconsolidated Affiliate” means, with respect to any Person, any other Person in whom such Person holds an Investment, which Investment is accounted for in the financial statements of such Person on an equity basis of accounting and whose financial statements are not required to be consolidated with the financial statements of Parent in accordance with GAAP. “Unconsolidated Affiliate Interest” means, with respect to any Unconsolidated Affiliate, the aggregate ownership percentage of such member of the Consolidated Group in such Unconsolidated Affiliate, which shall be calculated as the greater of (a) such member of the Consolidated Group’s direct or indirect nominal capital ownership interest in such Unconsolidated Affiliate as set forth in such Unconsolidated Affiliate’s Organization Documents, and (b) such member of the Consolidated Group’s direct or indirect economic ownership interest in such Unconsolidated Affiliate reflecting such member of the Consolidated Group’s current allocable share of income and expenses of such Unconsolidated Affiliate. “Unencumbered Asset Value” means, with respect to the Unencumbered Properties, as of any date, the sum of the following (without duplication): (a) an amount, not less than $0, equal to (i)(A) Net Operating Income for the most recently ended Calculation Period from all Unencumbered Properties owned or leased (as ground lessee) as of such date by the Consolidated Group for at least four (4) fiscal quarters, minus (B) the Annual Capital Expenditure Adjustment with respect to such Unencumbered Properties, divided by (ii) the Capitalization Rate; plus (b) the aggregate acquisition costs of all Unencumbered Properties owned or leased (as ground lessee) as of such date by the Consolidated Group for less than four (4) full fiscal quarters; provided that the amount of the Unencumbered Asset Value attributable to (x) any individual Unencumbered Property shall not exceed twenty-five percent (25%) of the total Unencumbered Asset Value and (y) Subsidiaries of Borrower that are not Wholly-Owned Subsidiaries shall not exceed twenty percent (20%) of the total Unencumbered Asset Value. “Unencumbered Interest Coverage Ratio” means, as of any date, the ratio of (a) Unencumbered NOI to (b) Unencumbered Interest Expense. “Unencumbered Interest Expense” means, as of any date, Interest Expense on the Total Unsecured Indebtedness for the most recently ended Calculation Period. “Unencumbered NOI” means, for the Unencumbered Properties, (a) in the case of any Unencumbered Property that is owned or leased (as ground lessee) for at least four (4) fiscal quarters, the Net Operating Income from such Unencumbered Property for the then most recently ended Calculation Period minus the Annual Capital Expenditure Adjustment with respect to such Unencumbered Property, plus (b) in the case of any Unencumbered Property that is owned or leased (as ground lessee) for less than four (4) fiscal quarters, the Net Operating Income from such Unencumbered Property for the then most recently ended fiscal quarter multiplied by four (4) minus the Annual Capital Expenditure Adjustment with respect to such Unencumbered Property. For the avoidance of doubt, (i) the Net Operating Income of an Unencumbered Property that is owned or leased (as ground lessee) for less than one (1) fiscal quarter will be included in calculating Unencumbered NOI as if such Unencumbered Property was owned or leased (as ground lessee) for the then most recently ended fiscal quarter, and (ii) the Net Operating Income of an Unencumbered Property that is sold within the fiscal quarter will be excluded in calculating Unencumbered NOI.
4925-1798-1140 v.13 33 “Unencumbered Properties” means, as of any date, each Eligible Unencumbered Property identified by Borrower in the most recent Compliance Certificate delivered to Administrative Agent. “Unencumbered Property” means any one of the Unencumbered Properties. “United States” and “U.S.” mean the United States of America. “Unreimbursed Amount” has the meaning specified in Section 2.03(f). “Unrestricted Cash” means, as of any date, an amount equal to all cash and cash equivalents of the Consolidated Group that are not subject to a Lien, control agreement (excluding statutory liens in favor of any depositary bank where such cash is maintained) or Negative Pledge (other than under the Loan Documents). “Unsecured Indebtedness” means, for any Person as of any date, Indebtedness of such Person that is not Secured Indebtedness. For purposes hereof, any unsecured Guarantee by any member of the Consolidated Group of Secured Indebtedness of any other Person shall be treated as Unsecured Indebtedness only to the extent that the amount of the Secured Indebtedness guaranteed by any member of the Consolidated Group exceeds the aggregate market value of all property securing such Secured Indebtedness. “U.S. Government Securities Business Day” means any day, except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities. “U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code; provided that for purposes of Sections 6.25 and 8.19, “U.S. Person” means any United States citizen, lawful permanent resident, entity organized under the laws of the United States or any jurisdiction within the United States, including any foreign branch of any such entity, or any person in the United States. “U.S. Special Resolution Regimes” has the meaning specified in Section 11.21. “U.S. Tax Compliance Certificate” has the meaning specified in Section 3.01(g)(ii)(B)(3). “Wholly-Owned” means, with respect to the ownership by any Person of any Property, that one hundred percent (100%) of the title to such Property is held directly or indirectly by, or one hundred percent (100%) of such Property is leased pursuant to an Acceptable Ground Lease directly or indirectly by, such Person. “Wholly-Owned Subsidiary” means, with respect to any Person on any date, any corporation, partnership, limited liability company or other entity of which one hundred percent (100%) of the Equity Interests and one hundred percent (100%) of the ordinary voting power are, as of such date, owned and Controlled by such Person. “Withholding Agent” means Borrower and Administrative Agent. “Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail- In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change
4925-1798-1140 v.13 34 the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers. 1.02 Other Interpretive Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document: (a) 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, (i) any definition of or reference to any agreement, instrument or other document (including any Organization Document) 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 or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “hereto,” “herein,” “hereof” and “hereunder,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (vi) 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. (b) In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through” means “to and including.” (c) Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document. (d) Any reference herein to a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company, or an allocation of assets to a series of a limited liability company (or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with a separate Person. Any division of a limited liability company shall constitute a separate Person hereunder (and each division of any limited liability company that is a Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).
4925-1798-1140 v.13 35 1.03 Accounting Terms. (a) Generally. All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness of the Consolidated Group shall be deemed to be carried at one hundred percent (100%) of the outstanding principal amount thereof, and the effects of FASB ASC 825 on financial liabilities shall be disregarded. (b) Changes in GAAP. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either Borrower or Required Lenders shall so request, Administrative Agent, the Lenders and Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of Required Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) Borrower shall provide to Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein, all computations of amounts and ratios referred to herein shall be made in a manner such that any obligations relating to a capital lease that was accounted for as an operating lease, “Operating Lease Liability” or “Finance Lease Liability” (as those terms are used in the balance sheet of Parent) as of October 3, 2019 and any similar lease entered into after October 3, 2019 shall be accounted for as obligations relating to an operating lease and not as a capital lease. 1.04 Rounding. Any financial ratios required to be maintained by Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number). 1.05 Times of Day; Rates. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable). 1.06 Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time. 1.07 Interest Rates. Administrative Agent does not warrant, nor accept responsibility, nor shall Administrative Agent have any liability with respect to the administration, submission or any other matter related to any reference rate referred to herein or with respect to any rate (including, for the avoidance of doubt, the selection of such rate and any related spread or other adjustment) that is an alternative or replacement for or successor to any such rate (including, without limitation, any Successor Rate) (or any component of any of the foregoing) or the effect of any of the foregoing, or of any Conforming Changes.
4925-1798-1140 v.13 36 Administrative Agent and its affiliates or other related entities may engage in transactions or other activities that affect any reference rate referred to herein, or any alternative, successor or replacement rate (including, without limitation, any Successor Rate) (or any component of any of the foregoing) or any related spread or other adjustments thereto, in each case, in a manner adverse to Borrower. Administrative Agent may select information sources or services in its reasonable discretion to ascertain any reference rate referred to herein or any alternative, successor or replacement rate (including, without limitation, any Successor Rate) (or any component of any of the foregoing), in each case pursuant to the terms of this Agreement, and shall have no liability to Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or other action or omission related to or affecting the selection, determination, or calculation of any rate (or component thereof) provided by any such information source or service. Article II. The Commitments and Credit Extensions 2.01 The Loans. (a) The Term A-1 Borrowing. Subject to the terms and conditions set forth herein, each Term A-1 Lender severally agrees to make a Term A-1 Borrowing to Borrower on the Closing Date in an amount not to exceed such Term A-1 Lender’s Applicable Percentage of the Term A-1 Facility. Amounts borrowed under this Section 2.01(a) and repaid or prepaid may not be reborrowed. Term A-1 Loans may be either Term SOFR Rate Loans or Daily SOFR Rate Loans, except as further provided herein. (b) The Term A-2 Borrowing. Subject to the terms and conditions set forth herein, each Term A-2 Lender severally agrees to make a Term A-2 Borrowing to Borrower on the Closing Date in an amount not to exceed such Term A-2 Lender’s Applicable Percentage of the Term A-2 Facility. Amounts borrowed under this Section 2.01(b) and repaid or prepaid may not be reborrowed. Term A-2 Loans may be either Term SOFR Rate Loans or Daily SOFR Rate Loans, except as further provided herein. (c) The Revolving Credit Borrowings. Subject to the terms and conditions set forth herein, each Revolving Credit Lender severally agrees to make loans (each such loan, a “Revolving Credit Loan”) to Borrower from time to time, on any Business Day during the Availability Period in respect to the Revolving Credit Facility, in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Revolving Credit Commitment; provided, however, that after giving effect to any Revolving Credit Borrowing, (i) the Total Revolving Credit Outstandings shall not exceed the Revolving Credit Facility; and (ii) the Revolving Credit Exposure of any Lender shall not exceed such Revolving Credit Lender’s Revolving Credit Commitment. Within the limits of each Revolving Credit Lender’s Revolving Credit Commitment, and subject to the other terms and conditions hereof, Borrower may borrow under this Section 2.01(c), prepay under Section 2.04, and reborrow under this Section 2.01(c). Revolving Credit Loans may be either Term SOFR Rate Loans or Daily SOFR Rate Loans, except as further provided herein. 2.02 Borrowings, Conversions and Continuations of Loans. (a) Each Revolving Credit Borrowing, each Term Borrowing, each conversion of Revolving Credit Loans or Term Loans from one Type to the other, and each continuation of Term SOFR Rate Loans shall be made upon Borrower’s irrevocable notice to Administrative Agent, which may be given by (x) telephone or (y) a Committed Loan Notice; provided that any telephonic
4925-1798-1140 v.13 37 notice must be confirmed immediately by delivery to Administrative Agent of a Committed Loan Notice. Each such Committed Loan Notice must be received by Administrative Agent not later than 11:00 a.m. (i) two (2) Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Term SOFR Rate Loans or of any conversion of Term SOFR Rate Loans to Daily SOFR Rate Loans, and (ii) on the requested date of any Borrowing of Daily SOFR Rate Loans. Each Borrowing of, conversion to or continuation of Term SOFR Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Unless otherwise specified herein, no conversion from Term SOFR Rate Loans may be made other than at the end of the corresponding Interest Period. Each Committed Loan Notice shall specify (i) whether Borrower is requesting a Revolving Credit Borrowing, a Term A-1 Borrowing or a Term A-2 Borrowing, a conversion of Revolving Credit Loans, Term A-1 Loans or Term A-2 Loans from one Type to the other, or a continuation of Term SOFR Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Revolving Credit Loans, Term A-1 Loans or Term A-2 Loans are to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto. If Borrower fails to specify a Type of Loan or Term SOFR in a Committed Loan Notice or if Borrower fails to give a timely notice requesting a conversion or continuation of Term SOFR Rate Loans, then the applicable Revolving Credit Loans or Term Loans shall be made as, or converted to, Daily SOFR Rate Loans. Any such automatic conversion to Daily SOFR Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Term SOFR Rate Loans. If Borrower requests a Term SOFR Rate Loan, or a conversion to, or continuation of Term SOFR Rate Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one (1) month. (b) Following receipt of a Committed Loan Notice, Administrative Agent shall promptly notify each Lender of the amount of its Applicable Percentage under the applicable Facility of the applicable Revolving Credit Loans or Term Loans, and if no timely notice of a conversion or continuation is provided by Borrower, Administrative Agent shall notify each Lender of the details of any automatic conversion to Daily SOFR Rate Loans described in the preceding subsection. In the case of a Revolving Credit Borrowing or a Term Borrowing, each Appropriate Lender shall make the amount of its Loan available to Administrative Agent in immediately available funds at Administrative Agent’s Office not later than 1:00 p.m. on the Business Day specified in the applicable Committed Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 5.02 (and, if such Borrowing is the initial Credit Extension, Section 5.01), Administrative Agent shall make all funds so received available to Borrower in like funds as received by Administrative Agent either by (i) crediting the account of Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) Administrative Agent by Borrower; provided, however, that if, on the date the Committed Loan Notice with respect to a Revolving Credit Borrowing is given by Borrower, there are L/C Borrowings outstanding, then the proceeds of such Revolving Credit Borrowing, first, shall be applied to the payment in full of any such L/C Borrowings, and second, shall be made available to Borrower as provided above. (c) Administrative Agent shall promptly notify Borrower and the Lenders of the interest rate applicable to any Interest Period for Term SOFR Rate Loans upon determination of the same. (d) Without limitation of any other conditions herein, a Borrowing or continuation of, or conversion to Term SOFR Rate Loans shall not be permitted if:
4925-1798-1140 v.13 38 (i) an Event of Default or a Default has occurred and is continuing and has not been waived by Required Lenders or all Lenders, as applicable; (ii) after giving effect to the requested Revolving Credit Borrowing or continuation of, or conversion to Term SOFR Rate Loans under the Revolving Credit Facility, the sum of all Revolving Credit Borrowings would exceed the Revolving Credit Facility; (iii) the requested Borrowing or continuation of or conversion to Term SOFR Rate Loans would cause more than ten (10) Interest Periods to be in effect at any one (1) time for Term SOFR Rate Loans, after giving effect to all Term SOFR Rate Loans, all conversions of Loans from one (1) Type to another, and all continuations of Loans as the same Type; (iv) the requested interest period does not conform to the definition of Interest Period herein; or (v) any of the circumstances referred to in Section 3.03 shall apply with respect to the requested Borrowing or continuation of or conversion to Term SOFR Rate Loans. (e) Borrower may not request a Borrowing of, or conversion to, Base Rate Loans unless Daily SOFR Rate Loans and Term SOFR Rate Loans are unavailable, as further provided herein. (f) With respect to Term SOFR and Daily Simple SOFR, Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document; provided that, with respect to any such amendment effected, Administrative Agent shall post each such amendment implementing such Conforming Changes to Borrower and the Lenders reasonably promptly after such amendment becomes effective. (g) Notwithstanding anything to the contrary in this Agreement, any Lender may exchange, continue or rollover all of the portion of its Loans in connection with any refinancing, extension, loan modification or similar transaction permitted by the terms of this Agreement, pursuant to a cashless settlement mechanism approved by Borrower, Administrative Agent, and such Lender. 2.03 Letters of Credit. (a) The Letter of Credit Commitment. Subject to the terms and conditions set forth herein, in addition to the Loans provided for in Section 2.01, Borrower may request that L/C Issuer, in reliance on the agreements of the Revolving Credit Lenders set forth in this Section 2.03, issue, at any time and from time to time during the Availability Period, Letters of Credit denominated in Dollars for its own account or the account of any of its Subsidiaries in such form as is acceptable
4925-1798-1140 v.13 39 to L/C Issuer in its reasonable determination. Letters of Credit issued hereunder shall constitute utilization of the Revolving Credit Commitments. (b) Notice of Issuance, Amendment, Extension, Reinstatement or Renewal. To request the issuance of a Letter of Credit (or the amendment of the terms and conditions, extension of the terms and conditions, extension of the expiration date, or reinstatement of amounts paid, or renewal of an outstanding Letter of Credit), Borrower shall deliver (or transmit by electronic communication, if arrangements for doing so have been approved by L/C Issuer) to L/C Issuer and to Administrative Agent not later than 11:00 a.m. at least two Business Days (or such later date and time as Administrative Agent and L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be, a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, extended, reinstated or renewed, and specifying the date of issuance, amendment, extension, reinstatement or renewal (which shall be a Business Day), the date on which such Letter of Credit is to expire (which shall comply with clause (d) of this Section2.03), the amount of such Letter of Credit, the name and address of the beneficiary thereof, the purpose and nature of the requested Letter of Credit and such other information as shall be necessary to prepare, amend, extend, reinstate or renew such Letter of Credit. If requested by L/C Issuer, Borrower also shall submit a letter of credit application and reimbursement agreement on L/C Issuer’s standard form in connection with any request for a Letter of Credit. 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 and reimbursement agreement or other agreement submitted by Borrower to, or entered into by Borrower with, L/C Issuer relating to any Letter of Credit, the terms and conditions of this Agreement shall control. (c) Limitations on Amounts, Issuance and Amendment. A Letter of Credit shall be issued, amended, extended, reinstated or renewed only if (and upon issuance, amendment, extension, reinstatement or renewal of each Letter of Credit Borrower shall be deemed to represent and warrant that), after giving effect to such issuance, amendment, extension, reinstatement or renewal (i) the aggregate amount of the outstanding Letters of Credit issued by L/C Issuer shall not exceed its L/C Commitment, (ii) the aggregate L/C Obligations shall not exceed the L/C Sublimit, (iii) the Revolving Credit Exposure of any Revolving Credit Lender shall not exceed its Revolving Credit Commitment and (iv) the total Revolving Credit Exposures shall not exceed the Aggregate Revolving Credit Commitments. (i) L/C Issuer shall not be under any obligation to issue any Letter of Credit if: (A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain L/C Issuer from issuing the Letter of Credit, or any Law applicable to L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over L/C Issuer shall prohibit, or request that L/C Issuer refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon L/C Issuer with respect to the Letter of Credit any restriction, reserve or capital requirement (for which L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which L/C Issuer in good faith deems material to it;
4925-1798-1140 v.13 40 (B) the issuance of such Letter of Credit would violate one or more policies of L/C Issuer applicable to letters of credit generally; (C) except as otherwise agreed by Administrative Agent and L/C Issuer, the Letter of Credit is in an initial stated amount less than $200,000; (D) any Revolving Credit Lender is at that time a Defaulting Lender, unless L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to L/C Issuer (in its sole discretion) with Borrower or such Defaulting Lender to eliminate L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.16(a)(iv) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion; or (E) the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder. (ii) L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) L/C Issuer would have no obligation at such time to issue the Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of the Letter of Credit does not accept the proposed amendment to the Letter of Credit. (d) Expiration Date. Each Letter of Credit shall have a stated expiration date no later than the earlier of (i) the date twelve (12) months after the date of the issuance of such Letter of Credit (or, in the case of any extension of the expiration date thereof, twelve (12) months after the then current expiration date of such Letter of Credit) and (ii) the Letter of Credit Expiration Date. (e) Participations. By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount or extending the expiration date thereof), and without any further action on the part of L/C Issuer or the Revolving Credit Lenders, L/C Issuer hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from L/C Issuer, a participation in such Letter of Credit equal to such Revolving Credit Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. Each Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this Section 2.03(e) in respect of Letters of Credit is absolute, unconditional and irrevocable and shall not be affected by any circumstance whatsoever, including any amendment, extension, reinstatement or renewal of any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the Revolving Credit Commitments. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely, unconditionally and irrevocably agrees to pay to Administrative Agent, for the account of L/C Issuer, such Lender’s Applicable Revolving Credit Percentage of each L/C Disbursement made by L/C Issuer not later than 1:00 p.m. on the Business Day specified in the notice provided by Administrative Agent to the Revolving Credit Lenders pursuant to Section 2.03(f) until such L/C Disbursement is reimbursed by Borrower or at any time after any reimbursement payment is required to be refunded to Borrower for any reason, including after the Maturity Date then in effect for the Revolving Credit Facility. Such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each such payment shall be made in the same manner as provided in Section 2.02 with respect to Loans made by such Revolving Credit Lender (and Section 2.02 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and
4925-1798-1140 v.13 41 Administrative Agent shall promptly pay to L/C Issuer the amounts so received by it from the Revolving Credit Lenders. Promptly following receipt by Administrative Agent of any payment from Borrower pursuant to Section 2.03(f), Administrative Agent shall distribute such payment to L/C Issuer or, to the extent that the Revolving Credit Lenders have made payments pursuant to this Section 2.03(e) to reimburse L/C Issuer, then to such Revolving Credit Lenders and L/C Issuer as their interests may appear. Any payment made by a Revolving Credit Lender pursuant to this Section 2.03(e) to reimburse L/C Issuer for any L/C Disbursement shall not constitute a Loan and shall not relieve Borrower of its obligation to reimburse such L/C Disbursement. Each Revolving Credit Lender further acknowledges and agrees that its participation in each Letter of Credit will be automatically adjusted to reflect such Revolving Credit Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit at each time such Revolving Credit Lender’s Revolving Credit Commitment is amended pursuant to the operation of Section 2.13 or 2.14, as a result of an assignment in accordance with Section 11.06 or otherwise pursuant to this Agreement. If any Revolving Credit Lender fails to make available to Administrative Agent for the account of L/C Issuer any amount required to be paid by such Revolving Credit Lender pursuant to the foregoing provisions of this Section 2.03(e), then without limiting the other provisions of this Agreement, L/C Issuer shall be entitled to recover from such Revolving Credit Lender (acting through Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to L/C Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by L/C Issuer in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by L/C Issuer in connection with the foregoing. If such Revolving Credit Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Revolving Credit Lender’s Revolving Credit Loan included in the relevant Revolving Credit Borrowing or L/C Advance, as the case may be. A certificate of L/C Issuer submitted to any Revolving Credit Lender (through Administrative Agent) with respect to any amounts owing under this Section 2.03(e) shall be conclusive absent manifest error. (f) Reimbursement. If L/C Issuer shall make any L/C Disbursement in respect of a Letter of Credit, Borrower shall reimburse L/C Issuer in respect of such L/C Disbursement by paying to Administrative Agent an amount equal to such L/C Disbursement not later than 12:00 noon on (i) the Business Day that Borrower receives notice of such L/C Disbursement, if such notice is received prior to 10:00 a.m. or (ii) the Business Day immediately following the day that Borrower receives such notice, if such notice is not received prior to such time, provided that, if such L/C Disbursement is not less than $1,000,000, Borrower may, subject to the conditions to borrowing set forth herein, request in accordance with Section 2.02 that such payment be financed with a Revolving Credit Borrowing of Daily SOFR Rate Loans in an equivalent amount and, to the extent so financed, Borrower’s obligation to make such payment shall be discharged and replaced by the resulting Revolving Credit Borrowing of Daily SOFR Rate Loans. If Borrower fails to make such payment when due, Administrative Agent shall notify each Revolving Credit Lender of the applicable L/C Disbursement, the payment then due from Borrower in respect thereof (the “Unreimbursed Amount”) and such Revolving Credit Lender’s Applicable Revolving Credit Percentage thereof. In such event, Borrower shall be deemed to have requested a Revolving Credit Borrowing of Daily SOFR Rate Loans to be disbursed on the date of payment by L/C Issuer under a Letter of Credit in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02 for the principal amount of Daily SOFR Rate Loans, but subject to the amount of the unutilized portion of the Aggregate Revolving Credit Commitments and the conditions set forth in Section 5.02 (other than the delivery of a Committed Loan Notice).
4925-1798-1140 v.13 42 Any notice given by L/C Issuer or Administrative Agent pursuant to this Section 2.03(f) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice. (g) Obligations Absolute. Borrower’s obligation to reimburse L/C Disbursement as provided in Section 2.03(f) shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of: (i) any lack of validity or enforceability of this Agreement, any other Loan Document or any Letter of Credit, or any term or provision herein or therein; (ii) the existence of any claim, counterclaim, setoff, defense or other right that Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction; (iii) any draft, demand, certificate or other document presented under a Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement in such draft or other document being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit; (iv) waiver by L/C Issuer of any requirement that exists for L/C Issuer’s protection and not the protection of Borrower or any waiver by L/C Issuer which does not in fact materially prejudice Borrower; (v) honor of a demand for payment presented electronically even if such Letter of Credit required that demand be in the form of a draft; (vi) any payment made by L/C Issuer in respect of an otherwise complying item presented after the date specified as the expiration date of, or the date by which documents must be received under such Letter of Credit if presentation after such date is authorized by the UCC, the ISP or the UCP, as applicable; (vii) payment by L/C Issuer under a Letter of Credit against presentation of a draft or other document that does not comply strictly with the terms of such Letter of Credit; or any payment made by L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; or (viii) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 2.03, constitute a legal or equitable discharge of, or provide a right of setoff against, Borrower’s obligations hereunder.
4925-1798-1140 v.13 43 Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with Borrower’s instructions or other irregularity, Borrower will promptly, and in any event within two (2) Business Days, notify L/C Issuer. Borrower shall be conclusively deemed to have waived any such claim against L/C Issuer and its correspondents unless such notice is given as aforesaid. None of Administrative Agent, the Revolving Credit Lenders, L/C Issuer, or 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 by L/C Issuer or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms, any error in translation or any consequence arising from causes beyond the control of L/C Issuer; provided that the foregoing shall not be construed to excuse L/C Issuer from liability to Borrower to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by Borrower to the extent permitted by applicable Law) suffered by Borrower that are caused by L/C Issuer’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 L/C Issuer (as finally determined by a court of competent jurisdiction), L/C Issuer shall be deemed to have exercised care in each such determination, and that: (i) L/C Issuer may replace a purportedly lost, stolen, or destroyed original Letter of Credit or missing amendment thereto with a certified true copy marked as such or waive a requirement for its presentation; (ii) L/C Issuer may accept documents that appear on their face to be in substantial compliance with the terms of a Letter of Credit without responsibility for further investigation, regardless of any notice or information to the contrary, and may make payment upon presentation of documents that appear on their face to be in substantial compliance with the terms of such Letter of Credit and without regard to any non- documentary condition in such Letter of Credit; (iii) L/C Issuer shall have the right, in its sole discretion, to decline to accept such documents and to make such payment if such documents are not in strict compliance with the terms of such Letter of Credit; and (iv) this sentence shall establish the standard of care to be exercised by L/C Issuer when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof (and the parties hereto hereby waive, to the extent permitted by applicable Law, any standard of care inconsistent with the foregoing). Without limiting the foregoing, none of Administrative Agent, the Revolving Credit Lenders, L/C Issuer, or any of their Related Parties shall have any liability or responsibility by reason of (i) any presentation that includes forged or fraudulent documents or that is otherwise affected by the fraudulent, bad faith, or illegal conduct of the beneficiary or other Person, (ii) L/C Issuer declining to take-up documents and make payment (A) against documents that are fraudulent, forged, or for other reasons by which it is entitled not to honor or (B) following a Borrower’s waiver of discrepancies with respect to such documents or request for honor of such
4925-1798-1140 v.13 44 documents or (iii) L/C Issuer retaining proceeds of a Letter of Credit based on an apparently applicable attachment order, blocking regulation, or third-party claim notified to L/C Issuer. (h) Applicability of ISP and UCP; Limitation of Liability. Unless otherwise expressly agreed by L/C Issuer and Borrower when a Letter of Credit is issued by it (including any such agreement applicable to an Existing Letter of Credit), the rules of the ISP shall apply. Notwithstanding the foregoing, L/C Issuer shall not be responsible to Borrower for, and L/C Issuer’s rights and remedies against Borrower shall not be impaired by, any action or inaction of L/C Issuer required or permitted under any law, order, or practice that is required or permitted to be applied to any Letter of Credit or this Agreement, including the Law or any order of a jurisdiction where L/C Issuer or the beneficiary is located, the practice stated in the ISP or UCP, as applicable, or in the decisions, opinions, practice statements, or official commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade - International Financial Services Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses such law or practice. (i) Role of L/C Issuer. L/C Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and L/C Issuer shall have all of the benefits and immunities (A) provided to Administrative Agent in Article X with respect to any acts taken or omissions suffered by L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article X included L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to L/C Issuer. (j) Letter of Credit Fees. Borrower shall pay to Administrative Agent for the account of each Revolving Credit Lender in accordance with its Applicable Revolving Credit Percentage a Letter of Credit fee (the “Letter of Credit Fee”) equal to the Applicable Rate applicable to Letters of Credit times the daily amount available to be drawn under such Letter of Credit. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06. Letter of Credit Fees shall be (i) due and payable on the tenth (10th) Business Day after the end of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Maturity Date then in effect for the Revolving Credit Facility, on the Letter of Credit Expiration Date and thereafter on demand and (ii) computed on a quarterly basis in arrears. If there is any change in the Applicable Rate applicable to Letters of Credit during any quarter, the daily amount available to be drawn under each standby Letter of Credit shall be computed and multiplied by the Applicable Rate applicable to Letters of Credit separately for each period during such quarter that such Applicable Rate applicable to Letters of Credit was in effect. Notwithstanding anything to the contrary contained herein, upon the request of the Required Revolving Lenders, while any Event of Default exists, all Letter of Credit Fees shall accrue at the Default Rate. (k) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. Borrower shall pay directly to L/C Issuer for its own account a fronting fee with respect to each issued and outstanding Letter of Credit at the rate per annum equal to the percentage separately agreed upon between Borrower and L/C Issuer, computed on the daily amount available to be drawn under such Letter of Credit on a quarterly basis in arrears. Such fronting fee shall be due and payable on the tenth (10th) Business Day after the end of each March, June, September and December in respect of the most recently-ended quarterly period (or portion thereof, in the case of the first payment), commencing with the first such date to occur after the issuance of such Letter of Credit, on the Maturity Date then in effect for the Revolving Credit Facility, on the Letter of
4925-1798-1140 v.13 45 Credit Expiration Date and thereafter on demand. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06. In addition, Borrower shall pay directly to L/C Issuer for its own account the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of L/C Issuer relating to letters of credit as from time to time in effect. Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable. (l) Disbursement Procedures. L/C Issuer for any Letter of Credit shall, within the time allowed by applicable Laws or the specific terms of the Letter of Credit following its receipt thereof, examine all documents purporting to represent a demand for payment under such Letter of Credit. L/C Issuer shall promptly after such examination notify Administrative Agent and Borrower in writing of such demand for payment if L/C Issuer has made or will make an L/C Disbursement thereunder; provided that any failure to give or delay in giving such notice shall not relieve Borrower of its obligation to reimburse L/C Issuer and the Revolving Credit Lenders with respect to any such L/C Disbursement. (m) Interim Interest. If the L/C Issuer for any Letter of Credit shall make any L/C Disbursement, then, unless Borrower shall reimburse such L/C Disbursement in full on the date such L/C Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such L/C Disbursement is made to but excluding the date that Borrower reimburses such L/C Disbursement, at the rate per annum then applicable to Daily SOFR Rate Loans; provided that if Borrower fails to reimburse such L/C Disbursement when due pursuant to clause (f) of this Section 2.03, then Section 2.07(c) shall apply. Interest accrued pursuant to this clause (l) shall be for the account of L/C Issuer, except that interest accrued on and after the date of payment by any Revolving Credit Lender pursuant to clause (f) of this Section 2.03 to reimburse L/C Issuer shall be for the account of such Revolving Credit Lender to the extent of such payment. (n) Replacement of L/C Issuer. L/C Issuer may be replaced at any time by written agreement between Borrower, Administrative Agent, the replaced L/C Issuer and the successor L/C Issuer. Administrative Agent shall notify the Revolving Credit Lenders of any such replacement of L/C Issuer. At the time any such replacement shall become effective, Borrower shall pay all unpaid fees accrued for the account of the replaced L/C Issuer pursuant to Section 2.03(j). From and after the effective date of any such replacement, (i) the successor L/C Issuer shall have all the rights and obligations of an L/C Issuer under this Agreement with respect to Letters of Credit to be issued by it thereafter and (ii) references herein to the term “L/C Issuer” shall be deemed to include such successor or any previous L/C Issuer, or such successor and all previous L/C Issuers, as the context shall require. After the replacement of L/C Issuer hereunder, the replaced L/C Issuer shall remain a party hereto and shall continue to have all the rights and obligations of an L/C Issuer 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. (o) Cash Collateralization. If any Event of Default shall occur and be continuing, on the Business Day that Borrower receives notice from Administrative Agent or the Required Revolving Lenders demanding the deposit of cash collateral pursuant to this clause (n), Borrower shall immediately deposit into an account established and maintained on the books and records of Administrative Agent (the “Collateral Account”) an amount in cash equal to 105% of the total L/C Obligations as of such date plus any accrued and unpaid interest thereon, 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 Borrower described in clause (f) of Section
4925-1798-1140 v.13 46 9.01. Such deposit shall be held by Administrative Agent as collateral for the payment and performance of the obligations of Borrower under this Agreement. In addition, and without limiting the foregoing or clause (d) of this Section 2.03, if any L/C Obligations remain outstanding after the expiration date specified in said clause (d), Borrower shall immediately deposit into the Collateral Account an amount in cash equal to 105% of such L/C Obligations as of such date plus any accrued and unpaid interest thereon; provided that Borrower shall Cash Collateralize each Letter of Credit that has an expiration date beyond the Maturity Date then in effect for the Revolving Credit Facility at least thirty (30) days prior to the Maturity Date then in effect for the Revolving Credit Facility. Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over the Collateral Account. Other than any interest earned on the investment of such deposits, which investments shall be made at the option and sole discretion of Administrative Agent and at Borrower’s risk and expense, such deposits shall not bear interest. Interest or profits, if any, on such investments shall accumulate in the Collateral Account. Moneys in the Collateral Account shall be applied by Administrative Agent to reimburse L/C Issuer for L/C Disbursement for which it has not been reimbursed, together with related fees, costs, and customary processing charges, and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of Borrower for the L/C Obligations at such time or, if the maturity of the Revolving Credit Loans has been accelerated, be applied to satisfy other obligations of Borrower under this Agreement. If 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 Borrower within three Business Days after all Events of Default have been cured or waived. (p) Conflict with Issuer Documents. In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall control. (q) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Subsidiary, Borrower shall be obligated to reimburse L/C Issuer hereunder for any and all drawings under such Letter of Credit. Borrower hereby acknowledges that the issuance of Letters of Credit for the account of Subsidiaries inures to the benefit of Borrower, and that Borrower’s business derives substantial benefits from the businesses of such Subsidiaries. 2.04 Prepayments. (a) Borrower may, upon notice to Administrative Agent, at any time or from time to time voluntarily prepay Revolving Credit Loans and Term Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by Administrative Agent in writing not later than 11:00 a.m. (A) three (3) Business Days prior to any date of prepayment of Term SOFR Rate Loans and (B) on the date of prepayment of Daily SOFR Rate Loans or Base Rate Loans; (ii) any prepayment of Term SOFR Rate Loans or Daily SOFR Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof; and (iii) any prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid and, if Term SOFR Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s ratable portion of such prepayment (based on such Lender’s Applicable Percentage in respect of the relevant Facility). If such notice is given by
4925-1798-1140 v.13 47 Borrower, Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Loan shall be accompanied by all accrued interest on the amount prepaid, together with, in the case of any Term SOFR Rate Loans, any additional amounts required pursuant to Section 3.05. Subject to Section 2.16, each such prepayment shall be paid to the Lenders in accordance with their respective Applicable Percentages in respect of each of the relevant Facilities. (b) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, then Borrower shall immediately prepay the Revolving Credit Loans and the L/C Borrowings, and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess; provided, however, that Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.04(b) unless after the prepayment in full of the Revolving Credit Loans, the Total Revolving Credit Outstandings exceed the Revolving Credit Facility at such time. 2.05 Termination or Reduction of Commitments. (a) Optional. Borrower may, upon notice to Administrative Agent, terminate the Revolving Credit Facility or the Letter of Credit Sublimit, or from time to time permanently reduce the Revolving Credit Facility or the Letter of Credit Sublimit; provided that (i) any such notice shall be received by Administrative Agent not later than 11:00 a.m. three (3) Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $1,000,000 or any whole multiple of $500,000 in excess thereof and (iii) Borrower shall not terminate or reduce (A) the Revolving Credit Facility if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Revolving Credit Outstandings would exceed the Revolving Credit Facility or (B) the Letter of Credit Sublimit if, after giving effect thereto, the Outstanding Amount of L/C Obligations not fully Cash Collateralized hereunder would exceed the Letter of Credit Sublimit. (b) Mandatory. If, after giving effect to any reduction of the Revolving Credit Commitments, the Letter of Credit Sublimit exceeds the amount of the Revolving Credit Facility, such Sublimit shall be automatically reduced by the amount of such excess. (c) Application of Commitment Reductions; Payment of Fees. Administrative Agent will promptly notify the Lenders of any termination or reduction of the Letter of Credit Sublimit or the Revolving Credit Commitments under this Section 2.05. Upon any reduction of the Revolving Credit Facility, the Revolving Credit Commitment of each Revolving Credit Lender shall be reduced by such Revolving Credit Lender’s Applicable Revolving Credit Percentage of such reduction amount. All fees in respect of the Revolving Credit Facility accrued until the effective date of any termination of the Revolving Credit Facility shall be paid on the effective date of such termination. 2.06 Repayment of Loans. (a) Term A-1 Loans. Borrower shall repay to the Term A-1 Lenders on the Maturity Date with respect to the Term A-1 Facility the aggregate principal amount of all Term A-1 Loans outstanding on such date. (b) Term A-2 Loans. Borrower shall repay to the Term A-2 Lenders on the Maturity Date with respect to the Term A-2 Facility the aggregate principal amount of all Term A-2 Loans outstanding on such date.
4925-1798-1140 v.13 48 (c) Revolving Credit Loans. Borrower shall repay to the Revolving Credit Lenders on the Maturity Date with respect to the Revolving Credit Facility the aggregate principal amount of all Revolving Credit Loans outstanding on such date. 2.07 Interest. (a) Revolving Credit Facility. Subject to the provisions of subsection (c) below, (i) each Daily SOFR Rate Loan under the Revolving Credit Facility shall bear interest on the outstanding principal amount thereof at a rate per annum equal to Daily Simple SOFR plus the Applicable Rate for the Revolving Credit Facility applicable to Daily SOFR Rate Loans; (ii) each Term SOFR Rate Loan under the Revolving Credit Facility for any Interest Period shall bear interest on the outstanding principal amount thereof at a rate per annum equal to Term SOFR for such Interest Period plus the Applicable Rate for the Revolving Credit Facility applicable to Term SOFR Rate Loans; and (iii) each Base Rate Loan under the Revolving Credit Facility shall bear interest on the outstanding principal amount thereof at a rate per annum equal to the Base Rate for such Interest Period plus the Applicable Rate for the Revolving Credit Facility applicable to Base Rate Loans. (b) Term Facilities. Subject to the provisions of subsection (c) below, (i) each Daily SOFR Rate Loan under either Term Facility shall bear interest on the outstanding principal amount thereof at a rate per annum equal to Daily Simple SOFR plus the Applicable Rate for such Term Facility applicable to Daily SOFR Rate Loans; (ii) each Term SOFR Rate Loan under either Term Facility for any Interest Period shall bear interest on the outstanding principal amount thereof at a rate per annum equal to Term SOFR for such Interest Period plus the Applicable Rate for such Term Facility applicable to Term SOFR Rate Loans; and (iii) each Base Rate Loan under either Term Facility shall bear interest on the outstanding principal amount thereof at a rate per annum equal to the Base Rate for such Interest Period plus the Applicable Rate for such Term Facility applicable to Base Rate Loans. (c) Default Interest. (i) If any amount of principal of any Loan is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws. (ii) If any amount (other than principal of any Loan) payable by Borrower under any Loan Document is not paid when due (without regard to any applicable grace periods set forth in Section 9.01(a)), whether at stated maturity, by acceleration or otherwise, then upon the request of Required Lenders, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws. (iii) Upon the request of Required Lenders, while any Event of Default exists (other than as set forth in clauses (b)(i) and (b)(ii) above), Borrower shall pay interest on the principal amount of all outstanding Obligations hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws. (iv) Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.
4925-1798-1140 v.13 49 (d) Payment. Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law. 2.08 Fees. In addition to certain fees described in subsections (h) and (i) of Section 2.03: (a) Unused Fee. Borrower shall, for each day during the term of this Agreement (i) on which there exist any Revolving Credit Commitments and (ii) that the Applicable Rate is determined pursuant to clause (a) of the definition of Applicable Rate, pay to Administrative Agent for the account of each Revolving Credit Lender holding a Revolving Credit Commitment (in accordance with such Lender’s Applicable Revolving Credit Percentage thereof), an unused fee (the “Revolving Unused Fee”) equal to the Revolving Unused Rate times the actual daily amount by which the Revolving Credit Facility exceeds the Total Revolving Credit Outstandings as of such date, subject to adjustment as provided in Section 2.16. The Revolving Unused Fee shall accrue at all times during the term of this Agreement at which there exist any Revolving Credit Commitments and when the Applicable Rate is determined pursuant to clause (a) of the definition of Applicable Rate, including at any time during which one or more of the conditions in Article V is not met. The Revolving Unused Fee shall be calculated for each calendar quarter in arrears, based on the applicable daily Revolving Unused Rate during each day of such calendar quarter or portion thereof and shall be due and payable on the fifth day of each January, April, July and October (or the next succeeding Business Day if such day is not a Business Day), commencing January 5, 2027 (with such initial payment to include such fees commencing from the Closing Date), and on the Maturity Date with respect to the Revolving Credit Facility. (b) Facility Fee. Borrower shall, for each day during the term of this Agreement (i) on which there exists any Revolving Credit Exposure and (ii) that the Applicable Rate is determined pursuant to clause (b) of the definition of Applicable Rate, pay to Administrative Agent for the account of each Revolving Credit Lender holding a Revolving Credit Commitment (in accordance with such Lender’s Applicable Revolving Credit Percentage thereof), a facility fee equal to the Applicable Rate times the actual daily amount of the Revolving Credit Facility (or, if the Revolving Credit Facility terminated, on the actual daily Outstanding Amount of all Revolving Credit Loans and L/C Obligations), regardless of usage, subject to adjustment as provided in Section 2.16. The facility fee shall accrue at all times during the Availability Period in respect of the Revolving Credit Facility and when the Applicable Rate is determined pursuant to clause (b) of the definition of Applicable Rate (and thereafter so long as any Revolving Credit Loans or L/C Obligations remain outstanding), including at any time during which one or more of the conditions in Article V is not met, and shall be due and payable quarterly in arrears on the fifth day of each January, April, July and October (or the next succeeding Business Day if such day is not a Business Day), and on the last day of the Availability Period in respect of the Revolving Credit Facility (and, if applicable, thereafter on demand). The facility fee shall be calculated quarterly in arrears, and if there is any change in the Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect. (c) Other Fees. (i) Borrower shall pay to Arrangers and Administrative Agent for their own respective accounts fees in the amounts and at the times specified in the Fee Letter. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
4925-1798-1140 v.13 50 (ii) Borrower shall pay to the Lenders such fees as shall have been separately agreed upon in writing in the amounts and at the times so specified. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever. 2.09 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate. (a) All computations of interest for Base Rate Loans (including Base Rate Loans determined by reference to the Term SOFR Rate) shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.11(a), bear interest for one day. Each determination by Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error. (b) If, as a result of any restatement of or other adjustment to the financial statements of Borrower or for any other reason, Borrower or the Lenders determine that (i) the Total Leverage Ratio as calculated by Borrower as of any applicable date was inaccurate and (ii) a proper calculation of the Total Leverage Ratio would have resulted in higher pricing for such period, Borrower shall immediately and retroactively be obligated to pay to Administrative Agent for the account of the applicable Lenders or L/C Issuer, as the case may be, promptly on demand by Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to Borrower under the Bankruptcy Code of the United States, automatically and without further action by Administrative Agent, any Lender or L/C Issuer), 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. This paragraph shall not limit the rights of Administrative Agent, any Lender or L/C Issuer, as the case may be, under Section 2.03(c)(iii), or 2.03(h), or 2.07(c) or under Article IX. Borrower’s obligations under this paragraph shall survive the termination of the Commitments and the repayment of all other Obligations hereunder. 2.10 Evidence of Debt. (a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by Administrative Agent in the ordinary course of business. The accounts or records maintained by Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of Administrative Agent in respect of such matters, the accounts and records of Administrative Agent shall control in the absence of manifest error. Upon the request of any Lender made through Administrative Agent, Borrower shall execute and deliver to such Lender (through Administrative Agent) one or more Notes, which shall evidence such Lender’s Loans in addition to such accounts or records. Each Lender may attach schedules to its Notes and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto. (b) In addition to the accounts and records referred to in subsection (a) above, each Lender and Administrative Agent shall maintain in accordance with its usual practice accounts or
4925-1798-1140 v.13 51 records evidencing the purchases and sales by such Lender of participations in Letters of Credit. In the event of any conflict between the accounts and records maintained by Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of Administrative Agent shall control in the absence of manifest error. 2.11 Payments Generally; Administrative Agent’s Clawback. (a) General. All payments to be made by Borrower shall be made free and clear of and without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by Borrower hereunder shall be made to Administrative Agent, for the account of the respective Lenders to which such payment is owed, at Administrative Agent’s Office in Dollars and in immediately available funds not later than 2:30 p.m. on the date specified herein. Administrative Agent will promptly distribute to each Lender its Applicable Percentage (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office; provided that any such payment shall, to the extent distributed after the Business Day following Administrative Agent’s receipt thereof, be accompanied by interest on such payment amount (payable by Administrative Agent) calculated at the Federal Funds Rate commencing as of the date which is two (2) days following the Business Day following Administrative Agent’s receipt of such payment through the date on which Administrative Agent makes such payment to the applicable Lender(s). All payments received by Administrative Agent after 2:30 p.m. shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be. (b) Clawback. (i) Funding by Lenders; Presumption by Administrative Agent. Unless Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of Loans that such Lender will not make available to Administrative Agent such Lender’s share of such Borrowing, Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to Administrative Agent, then the applicable Lender and Borrower severally agree to pay to Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to Borrower to but excluding the date of payment to Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by Borrower, the interest rate applicable to Daily SOFR Rate Loans. If Borrower and such Lender shall pay such interest to Administrative Agent for the same or an overlapping period, Administrative Agent shall promptly remit to Borrower the amount of such interest paid by Borrower for such period. If such Lender pays its share of the applicable Borrowing to Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by Borrower shall be without prejudice to any
4925-1798-1140 v.13 52 claim Borrower may have against a Lender that shall have failed to make such payment to Administrative Agent. (ii) Payments by Borrower; Presumptions by Administrative Agent. Unless Administrative Agent shall have received notice from Borrower prior to the date on which any payment is due to Administrative Agent for the account of the Lenders or L/C Issuer hereunder that Borrower will not make such payment, Administrative Agent may assume that Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or L/C Issuer, as the case may be, the amount due. With respect to any payment that Administrative Agent makes for the account of the Lenders or any L/C Issuer hereunder as to which Administrative Agent determines (which determination shall be conclusive absent manifest error) that any of the following applies (such payment referred to as the “Rescindable Amount”): (1) Borrower has not in fact made such payment; (2) Administrative Agent has made a payment in excess of the amount so paid by Borrower (whether or not then owed); or (3) Administrative Agent has for any reason otherwise erroneously made such payment; then each of the Appropriate Lenders or the L/C Issuer, as the case may be, severally agrees to repay to Administrative Agent forthwith on demand the Rescindable Amount so distributed to such Lender or L/C Issuer, in immediately available funds 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 Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by Administrative Agent in accordance with banking industry rules on interbank compensation. A notice of Administrative Agent to any Lender or Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest error. (c) Failure to Satisfy Conditions Precedent. If any Lender makes available to Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to Borrower by Administrative Agent because the conditions to the applicable Credit Extension set forth in Article V are not satisfied or waived in accordance with the terms hereof, Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest. (d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make Revolving Credit Loans and Term Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 11.04(c) are several and not joint. The failure of any Lender to make any Loan, to fund any such participation or to make any payment under Section 11.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 11.04(c). (e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner. 2.12 Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of (a) Obligations in respect of any of the Facilities due and payable to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations due and payable to such Lender at such time to (ii) the aggregate amount of the Obligations in respect of the Facilities due and
4925-1798-1140 v.13 53 payable to all Lenders hereunder and under the other Loan Documents at such time) of payments on account of the Obligations in respect of the Facilities due and payable to all Lenders hereunder and under the other Loan Documents at such time obtained by all the Lenders at such time or (b) Obligations in respect of any of the Facilities owing (but not due and payable) to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations owing (but not due and payable) to such Lender at such time to (ii) the aggregate amount of the Obligations in respect of the Facilities owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time) of payment on account of the Obligations in respect of the Facilities owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time obtained by all of the Lenders at such time, then the Lender receiving such greater proportion shall (x) notify Administrative Agent of such fact, and (y) purchase (for cash at face value) participations in the Loans and subparticipations in L/C Obligations, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of Obligations in respect of the Facilities then due and payable to the Lenders or owing (but not due and payable) to the Lenders, as the case may be, provided that: (i) if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and (ii) the provisions of this Section 2.12 shall not be construed to apply to (x) any payment made by or on behalf of Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), (y) the application of Cash Collateral provided for in Section 2.15, or (z) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or subparticipations in L/C Obligations to any assignee or participant, other than an assignment to Borrower or any Affiliate thereof (as to which the provisions of this Section 2.12 shall apply). Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation. 2.13 Extension of Maturity Date. (a) Request for Extension. Borrower may, by written notice to Administrative Agent (who shall promptly notify the Term A-1 Lenders) not earlier than sixty (60) days and not later than thirty (30) days prior to the Initial Term A-1 Maturity Date, request that the Initial Term A-1 Maturity Date be extended to the Extended Term A-1 Maturity Date. (b) Conditions Precedent. As a condition precedent to the extension of the Initial Term A-1 Maturity Date to the Extended Term A-1 Maturity Date pursuant to this Section 2.13: (i) on the date of the notice described in Section 2.13(a) and the date of such extension and after giving effect thereto, (A) the representations and warranties contained in Article VI and the other Loan Documents are true and correct in all material respects (without duplication of any materiality qualifiers therein) on and as of such 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 (without duplication of any
4925-1798-1140 v.13 54 materiality qualifiers therein) as of such earlier date, and except that for purposes of this Section 2.13, the representations and warranties contained in Sections 6.05(a) and 6.05(b) shall be deemed to refer to the most recent statements furnished pursuant to Sections 7.01(a) and 7.01(b), respectively, and (B) no Default exists; (ii) Borrower shall deliver to Administrative Agent a certificate of each Loan Party (in sufficient copies for each Term A-1 Lender) signed by a Responsible Officer of such Loan Party (A) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such extension and (B) in the case of Borrower, certifying that the conditions set forth in Section 2.13(b)(i) have been satisfied; (iii) Borrower shall deliver to Administrative Agent for any Lender that requests at least seven (7) days prior to the Initial Term A-1 Maturity Date a Beneficial Ownership Certification for any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation; and (iv) on the Initial Term A-1 Maturity Date Borrower shall pay to Administrative Agent, for the pro rata account of each Term A-1 Lender in accordance with their respective Applicable Percentages under the Term A-1 Facility, an extension fee equal to fifteen basis points (0.15%) of the Term A-1 Facility as of such date, which fee shall, when paid, be fully earned and non-refundable under any circumstances. (c) Conflicting Provisions. This Section 2.13 shall supersede any provisions in Section 11.01 to the contrary. 2.14 Increase in Commitments. (a) Request for Increase. Provided there exists no Default, upon notice to Administrative Agent (which shall promptly notify the Lenders), Borrower may from time to time request an increase in the Total Credit Exposure of any of the Lenders or new Lenders (which increase may take the form of additional Revolving Credit Commitments under the Revolving Credit Facility, an increase to either Term Facility, one or more additional term loan tranches, or any combination of the foregoing) by an amount (for all such requests) not exceeding $450,000,000; provided that any such request for an increase shall be in a minimum amount of $5,000,000. At the time of sending such notice, Borrower (in consultation with 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). (b) Lender Elections to Increase. Each Lender shall notify Administrative Agent within such time period whether or not it agrees to increase its Total Credit Exposure 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 Total Credit Exposure. (c) Notification by Administrative Agent; Additional Lenders. Administrative Agent shall notify 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 Administrative Agent and L/C Issuer (which approvals shall not be unreasonably withheld), Borrower may also invite additional Eligible Assignees to become Lenders (each, an “Additional
4925-1798-1140 v.13 55 Lender”) pursuant to a joinder agreement in form and substance satisfactory to Administrative Agent and its counsel. (d) Effective Date and Allocations. If the Total Credit Exposure of any Lender is increased in accordance with this Section 2.14, Administrative Agent and Borrower shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase. Administrative Agent shall promptly notify Borrower and the Lenders of the final allocation of such increase and the Increase Effective Date. (e) Conditions to Effectiveness of Increase. As a condition precedent to such increase, (i) before and after giving effect to such increase, (A) the representations and warranties contained in Article VI and the other Loan Documents are true and correct in all material respects (without duplication of any materiality qualifiers therein) 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 as of such earlier date, and except that for purposes of this Section 2.14, the representations and warranties contained in subsections (a) and (b) of Section 6.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 7.01, and (B) no Default exists; (ii) Borrower shall deliver to Administrative Agent a certificate of each Loan Party dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (x) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (y) in the case of Borrower, certifying that the conditions set forth in Section 2.14(e)(i) have been satisfied; and (iii) (A) upon the reasonable request of any Additional Lender made at least seven (7) days prior to the Increase Effective Date, Borrower shall have provided to such Additional Lender, and such Additional Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Act, in each case at least three (3) days prior to the Increase Effective Date and (B) at least three (3) days prior to the Increase Effective Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party. To the extent that the increase of the Commitments shall take the form of a new term loan tranche, this Agreement shall be amended, in form and substance satisfactory to Administrative Agent and Borrower, to include such terms as are customary for a term loan commitment. Borrower shall prepay any Loans outstanding on the Increase Effective Date (and pay any additional amounts required pursuant to Section 3.05) to the extent necessary to keep the outstanding Loans ratable with any revised Applicable Percentages arising from any nonratable increase in the Total Credit Exposure of any Lender under this Section 2.14, and each Loan Party shall execute and deliver such documents or instruments as Administrative Agent may require to evidence such increase in the Total Credit Exposure of any Lender and to ratify each such Loan Party’s continuing obligations hereunder and under the other Loan Documents. (f) Conflicting Provisions. This Section 2.14 shall supersede any provisions in Section 2.12 or 11.01 to the contrary. 2.15 Cash Collateral. (a) Certain Credit Support Events. If (i) L/C Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in an L/C Borrowing, (ii) as of the Maturity Date then in effect for the Revolving Credit Facility, any L/C Obligation for any reason remains outstanding, (iii) Borrower shall be required to provide Cash Collateral
4925-1798-1140 v.13 56 pursuant to Section 9.02, or (iv) there shall exist a Defaulting Lender, Borrower shall immediately (in the case of clause (iii) above) or within one Business Day (in all other cases) following any request by Administrative Agent or L/C Issuer, provide Cash Collateral in an amount not less than the applicable Minimum Collateral Amount (determined in the case of Cash Collateral provided pursuant to clause (iv) above, after giving effect to Section 2.16(a)(iv) and any Cash Collateral provided by the Defaulting Lender). (b) Grant of Security Interest. Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to (and subjects to the control of) Administrative Agent, for the benefit of Administrative Agent, L/C Issuer and the Lenders, and agrees to maintain, a first priority security interest in all such cash, deposit accounts and all balances therein, and all other property so provided as collateral pursuant hereto, and in all proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be applied pursuant to Section 2.15(c). If at any time Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than Administrative Agent or L/C Issuer as herein provided, or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, Borrower will, promptly upon demand by Administrative Agent, pay or provide to Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency (determined in the case of Cash Collateral provided pursuant to clause (a)(iv) above, after giving effect to Section 2.16(a)(iv) and any Cash Collateral provided by the Defaulting Lender). All Cash Collateral (other than credit support not constituting funds subject to deposit) shall be maintained in one or more Controlled Accounts at Bank of America. Borrower shall pay on demand therefor from time to time all customary account opening, activity and other administrative fees and charges in connection with the maintenance and disbursement of Cash Collateral. (c) Application. Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under any of this Section 2.15 or Sections 2.03, 2.04, 2.16 or 9.02 in respect of Letters of Credit shall be held and applied to the satisfaction of the specific L/C Obligations, obligations to fund participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein. (d) Release. Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or to secure other obligations shall be released promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee following compliance with Section 11.06(b)(vi) or (ii) the determination by Administrative Agent and L/C Issuer that there exists excess Cash Collateral; provided, however, (x) any such release shall be without prejudice to, and any disbursement or other transfer of Cash Collateral shall be and remain subject to, any other Lien conferred under the Loan Documents and the other applicable provisions of the Loan Documents, and (y) the Person providing Cash Collateral and L/C Issuer may agree that Cash Collateral shall not be released but instead held to support future anticipated Fronting Exposure or other obligations. 2.16 Defaulting Lenders. (a) Adjustments. Notwithstanding anything to the contrary contained in this 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:
4925-1798-1140 v.13 57 (i) Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of “Required Lenders” and Section 11.01. (ii) Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article IX or otherwise) or received by Administrative Agent from a Defaulting Lender pursuant to Section 11.08), 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 such Defaulting Lender to Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to L/C Issuer hereunder; third, to Cash Collateralize L/C Issuer’s Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.15; fourth, as Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by Administrative Agent; fifth, if so determined by Administrative Agent and Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize L/C Issuer’s future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.15; sixth, to the payment of any amounts owing to the Lenders or L/C Issuer as a result of any judgment of a court of competent jurisdiction obtained by any Lender or L/C Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to Borrower as a result of any judgment of a court of competent jurisdiction obtained by Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or L/C Borrowings in respect of which such Defaulting Lender has not fully funded its appropriate share and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 5.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in L/C Obligations are held by the Lenders pro rata in accordance with the Commitments hereunder without giving effect to Section 2.16(a)(iv). 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 2.16(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto. (iii) Certain Fees. (A) No Defaulting Lender shall be entitled to receive any fee payable under (x) Section 2.08(a) for any period during which that Lender is a Defaulting Lender (and Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender) or (y) Section 2.08(b) for any period during which that Lender is a Defaulting Lender except to extent allocable to the sum of (1) the outstanding principal amount of the
4925-1798-1140 v.13 58 Revolving Credit Loans funded by it, and (2) its Applicable Percentage of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to this Section 2.16. (B) Each Defaulting Lender shall be entitled to receive Letter of Credit Fees for any period during which that Lender is a Defaulting Lender only to the extent allocable to its Applicable Revolving Credit Percentage of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section 2.15. (C) With respect to any fee payable under Section 2.08(a) and (b) or any Letter of Credit Fee not required to be paid to any Defaulting Lender pursuant to clause (A) or (B) above, Borrower shall (1) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in L/C Obligations that has been reallocated to such Non-Defaulting Lender pursuant to clause (iv) below, (2) pay to L/C Issuer the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such L/C Issuer’s Fronting Exposure to such Defaulting Lender, and (3) not be required to pay the remaining amount of any such fee. (iv) Reallocation of Applicable Percentages to Reduce Fronting Exposure. All or any part of such Defaulting Lender’s participation in L/C Obligations shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Revolving Credit Percentages (calculated without regard to such Defaulting Lender’s Revolving Credit Commitment) but only to the extent that (A) the conditions set forth in Section 5.02 are satisfied at the time of such reallocation (and, unless Borrower shall have otherwise notified Administrative Agent at such time, Borrower shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (B) such reallocation does not cause the aggregate Revolving Credit Exposure of any Non- Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving Credit Commitment. Subject to Section 11.20, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation. (v) Cash Collateral. If the reallocation described in Section 2.16(a)(iv) above cannot, or can only partially, be effected, Borrower shall, without prejudice to any right or remedy available to it hereunder or under applicable Law, Cash Collateralize L/C Issuer’s Fronting Exposure in accordance with the procedures set forth in Section 2.15. (b) Defaulting Lender Cure. If Borrower, Administrative Agent and L/C Issuer agree in writing that a Lender is no longer 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), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit to be held on a pro rata basis by the Lenders in accordance with their Applicable Revolving Credit Percentages (without giving effect to Section 2.16(a)(iv)), whereupon such Lender will cease to be a Defaulting Lender;
4925-1798-1140 v.13 59 provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. (c) New Letters of Credit. So long as any Lender is a Defaulting Lender, L/C Issuer shall not be required to issue, extend, increase, reinstate or renew any Letter of Credit unless it is satisfied that it will have no Fronting Exposure after giving effect to such issuance, extension, increase, reinstatement or renewal, as applicable. Article III. Taxes, Yield Protection and Illegality 3.01 Taxes. (a) Defined Terms. For purposes of this Section 3.01, the term “Applicable Law” includes FATCA and all other applicable Laws binding upon such Person or to which such a Person is subject. (b) Payments Free of Taxes. Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by Applicable Law. If any Applicable Law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with Applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 3.01) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made. (c) Payment of Other Taxes by Borrower. The Loan Parties shall timely pay to the relevant Governmental Authority in accordance with Applicable Law, or at the option of Administrative Agent timely reimburse it for the payment of, any Other Taxes. (d) Indemnification by Borrower. Each of the Loan Parties shall indemnify each Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 3.01) 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 Borrower by a Lender (with a copy to Administrative Agent), or by Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. (e) Indemnification by the Lenders. Each Lender shall severally indemnify Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan
4925-1798-1140 v.13 60 Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 11.06(d) 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 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 Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes 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 Administrative Agent to the Lender from any other source against any amount due to Administrative Agent under this clause (e). (f) Evidence of Payments. As soon as practicable after any payment of Taxes by Borrower to a Governmental Authority as provided in this Section 3.01, Borrower shall deliver to Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by Laws to report such payment or other evidence of such payment reasonably satisfactory to Administrative Agent. (g) Status of Lenders; Tax Documentation. (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 Borrower and Administrative Agent, at the time or times reasonably requested by Borrower or Administrative Agent, such properly completed and executed documentation reasonably requested by Borrower or 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 Borrower or Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by Borrower or Administrative Agent as will enable Borrower or 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 Section 3.01(g)(ii)(A), 3.01(g)(ii)(B) and 3.01(g)(ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. (ii) Without limiting the generality of the foregoing, in the event that Borrower is a U.S. Person: (A) any Lender that is a U.S. Person shall deliver to Borrower and 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 Borrower or Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax; (B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Borrower and 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
4925-1798-1140 v.13 61 upon the reasonable request of Borrower or Administrative Agent), whichever of the following is applicable: (1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN-E (or W-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN-E (or W-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty; (2) executed copies of IRS Form W-8ECI, (3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit E-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 Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN-E (or W- 8BEN, as applicable); or (4) to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN-E (or W-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit E-2 or Exhibit E-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 E-4 on behalf of each such direct and indirect partner; (C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Borrower and 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 Borrower or Administrative Agent), executed copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit Borrower or Administrative Agent to determine the withholding or deduction required to be made; and (D) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA
4925-1798-1140 v.13 62 (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to Borrower and Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by Borrower or Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by Borrower or Administrative Agent as may be necessary for Borrower and 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. (iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify Borrower and Administrative Agent in writing of its legal inability to do so. (h) FATCA. For purposes of determining withholding Taxes imposed under FATCA from and after the date hereof, Borrower and Administrative Agent will treat (and the Lenders hereby authorize Administrative Agent to treat) the Obligations under this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i). (i) Treatment of Certain Refunds. Unless required by applicable Laws, at no time shall Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender or L/C Issuer, or have any obligation to pay to any Lender or L/C Issuer, any refund of Taxes withheld or deducted from funds paid for the account of such Lender or L/C Issuer, as the case may be. If any Recipient 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 by any Loan Party or with respect to which any Loan Party has paid additional amounts pursuant to this Section 3.01, it shall pay to the Loan Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by a Loan Party under this Section 3.01 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) incurred by such Recipient, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that the Loan Party, upon the request of the Recipient, agrees to repay the amount paid over to the Loan Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Recipient in the event the Recipient is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (h), in no event will the applicable Recipient be required to pay any amount to the Loan Party pursuant to this clause (h) the payment of which would place the Recipient in a less favorable net after-Tax position than such Recipient would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This subsection shall not be construed to require any Recipient to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Loan Party or any other Person. (j) Survival. Each party’s obligations under this Section 3.01 shall survive the resignation or replacement of Administrative Agent or any assignment of rights by, or the
4925-1798-1140 v.13 63 replacement of, a Lender or L/C Issuer, the termination of the Commitments and the repayment, satisfaction or discharge of all other Obligations. 3.02 Illegality. If any Lender determines that any 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 SOFR, Term SOFR, or Daily Simple SOFR, or to determine or charge interest rates based upon SOFR, Term SOFR or Daily Simple SOFR, or any Governmental Authority has imposed material restrictions on the authority of such Lender to engage in reverse repurchase of U.S. Treasury securities transactions of the type included in the determination of SOFR, then, on notice thereof by such Lender to Borrower through Administrative Agent, (a) any obligation of such Lender to make or continue either Term SOFR Rate Loans or Daily SOFR Rate Loans shall be suspended and (b) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Term SOFR component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by Administrative Agent without reference to the Term SOFR component of the Base Rate, in each case until such Lender notifies Administrative Agent and Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (i) Borrower shall, upon demand from such Lender (with a copy to Administrative Agent), prepay or, if applicable, convert all Term SOFR Rate Loans of such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by Administrative Agent without reference to the Term SOFR component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Term SOFR Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Term SOFR Rate Loans, (ii) Borrower shall, upon demand from such Lender (with a copy to Administrative Agent), immediately prepay or, if applicable, convert all Daily SOFR Rate Loans of such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by Administrative Agent without reference to the Term SOFR component of the Base Rate), and (iii) if such notice asserts the illegality of such Lender determining or charging interest rates based upon SOFR, Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to Term SOFR component thereof 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 SOFR. Upon any such prepayment or conversion, Borrower shall also pay accrued interest on the amount so prepaid or converted, together with any additional amounts required pursuant to Section 3.05. 3.03 Inability to Determine Rates. (a) If in connection with any request for a Term SOFR Rate Loan, or Daily SOFR Rate Loan, or a conversion of Daily SOFR Rate Loans to Term SOFR Rate Loans or a continuation of any of such advances, as applicable, (a) Administrative Agent determines (which determination shall be conclusive absent manifest error) that (i) no Successor Rate has been determined in accordance with Section 3.03(a), and the circumstances under Section 3.03(b) or the Scheduled Unavailability Date has occurred, or (ii) adequate and reasonable means do not otherwise exist for determining Term SOFR for any requested Interest Period with respect to a proposed Term SOFR Rate Loan or in connection with an existing or proposed Base Rate Loan, or (iii) adequate and reasonable means do not otherwise exist for determining Daily Simple SOFR in connection with an existing or proposed Daily SOFR Rate Loan, or (b) Administrative Agent or Required Lenders determine that for any reason that Term SOFR for any requested Interest Period or Daily Simple SOFR with respect to a proposed advance does not adequately and fairly reflect the cost to such Lenders of funding such advance, Administrative Agent will promptly so notify Borrower and each Lender. Thereafter, (x) the obligation of Lenders to make or maintain Term SOFR Rate Loans,
4925-1798-1140 v.13 64 Daily SOFR Rate Loans, or to convert Daily SOFR Rate Loans to Term SOFR Rate Loans, shall be suspended (to the extent of the affected Term SOFR Rate Loans, Daily SOFR Rate Loans, or Interest Periods), and (y) in the event of a determination described in the preceding sentence with respect to the Term SOFR component of the Base Rate, the utilization of the Term SOFR component in determining the Base Rate shall be suspended, in each case until Administrative Agent (or, in the case of a determination by Required Lenders described in Section 3.03(a), until Administrative Agent upon instruction of Required Lenders) revokes such notice. Upon receipt of such notice, (1) Borrower may revoke any pending request for a borrowing of, or conversion to, or continuation of Term SOFR Rate Loans or Daily SOFR Rate Loans (to the extent of the affected Term SOFR Rate Loans, Daily SOFR Rate Loans, or Interest Periods) or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified therein, (2) any outstanding Term SOFR Rate Loans shall be deemed to have been converted to Base Rate Loans immediately at the end of their respective applicable Interest Period, and (3) any outstanding Daily SOFR Rate Loans shall immediately be deemed to have been converted to Base Rate Loans. (b) Notwithstanding anything to the contrary in this Agreement or any other Loan Documents, if Administrative Agent determines (which determination shall be conclusive absent manifest error), or Borrower or Required Lenders notify Administrative Agent (with, in the case of Required Lenders, a copy to Borrower) that Borrower or Required Lenders (as applicable) have determined, that: (i) if adequate and reasonable means do not exist for ascertaining one (1) month or three (3) month interest periods of Term SOFR, including because the Term SOFR Screen Rate is not available or published on a current basis and such circumstances are unlikely to be temporary; or (ii) CME or any successor administrator of the Term SOFR Screen Rate or a Governmental Authority having jurisdiction over Administrative Agent or such administrator with respect to its publication of Term SOFR, in each case acting in such capacity, has made a public statement identifying a specific date after which one (1) month and three (3) month interest periods of Term SOFR or the Term SOFR Screen Rate shall or will no longer be made available, or permitted to be used for determining the interest rate of Dollar denominated syndicated loans, or shall or will otherwise cease, provided that, at the time of such statement, there is no successor administrator that is satisfactory to Administrative Agent, that will continue to provide such interest periods of Term SOFR after such specific date (the latest date on which one (1) month and three (3) month interest periods of Term SOFR or the Term SOFR Screen Rate are no longer available permanently or indefinitely, the “Scheduled Unavailability Date”); then, on a date and time determined by Administrative Agent (any such date, the “Term SOFR Replacement Date”), which date shall be at the end of an Interest Period or on the relevant interest payment date, as applicable, for interest calculated and, solely with respect to clause (a) above, no later than the Scheduled Unavailability Date, Term SOFR will be replaced hereunder and under any Loan Document with Daily Simple SOFR for any payment period for interest calculated that can be determined by Administrative Agent, in each case, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document (the “Successor Rate”). If the Successor Rate is Daily Simple SOFR, all interest payments will be payable on a monthly basis.
4925-1798-1140 v.13 65 Notwithstanding anything to the contrary herein, (i) if Administrative Agent determines that Daily Simple SOFR is not available on or prior to the Term SOFR Replacement Date, or (ii) if the events or circumstances of the type described in clauses (a) or (b) above have occurred with respect to Daily Simple SOFR or the Successor Rate then in effect, then in each case, Administrative Agent and Borrower may amend this Agreement solely for the purpose of replacing Term SOFR, Daily Simple SOFR, and/or any then current Successor Rate in accordance with this Section at the end of any Interest Period, relevant interest payment date or payment period for interest calculated, as applicable, with an alternative benchmark rate giving due consideration to any evolving or then existing convention for similar Dollar denominated credit facilities syndicated and agented in the United States for such alternative benchmark. and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for similar Dollar denominated credit facilities syndicated and agented in the United States for such benchmark, which adjustment or method for calculating such adjustment shall be published on an information service as selected by Administrative Agent from time to time in its reasonable discretion and may be periodically updated. For the avoidance of doubt, any such proposed rate and adjustments, shall constitute a “Successor Rate”. Any such amendment shall become effective at 5:00 p.m. on the fifth (5th) Business Day after Administrative Agent shall have posted such proposed amendment to all Lenders and Borrower unless, prior to such time, Lenders comprising the Required Lenders have delivered to Administrative Agent written notice that such Required Lenders object to such amendment. Administrative Agent will promptly (in one (1) or more notices) notify Borrower and each Lender of the implementation of any Successor Rate. Any Successor Rate shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for Administrative Agent, such Successor Rate shall be applied in a manner as otherwise reasonably determined by Administrative Agent. Notwithstanding anything else herein, if at any time any Successor Rate as so determined would otherwise be less than zero (0) the Successor Rate will be deemed to be zero (0) for the purposes of this Agreement and the other Loan Documents. In connection with the implementation of a Successor Rate, Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement; provided that, with respect to any such amendment effected, Administrative Agent shall post each such amendment implementing such Conforming Changes to Borrower and the Lenders reasonably promptly after such amendment becomes effective. 3.04 Increased Costs. (a) Increased Costs Generally. If any Change in Law shall: (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or L/C Issuer; (ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments,
4925-1798-1140 v.13 66 or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or (iii) impose on any Lender or L/C Issuer any other condition, cost or expense (other than Taxes) affecting this Agreement or Term SOFR Rate Loans or Daily SOFR Rate Loans made by such Lender or any Letter of Credit or participation therein; and the result of any of the foregoing shall be to increase the cost to such Lender of making, converting to, continuing or maintaining any Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or L/C Issuer, Borrower will pay to such Lender or L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or L/C Issuer, as the case may be, for such additional costs actually incurred or reduction actually suffered. (b) Capital Requirements. If any Lender or L/C Issuer determines that any Change in Law affecting such Lender or L/C Issuer or any Lending Office of such Lender or such Lender’s or L/C Issuer’s holding company, if any, regarding capital or liquidity ratios or requirements has or would have the effect of reducing the rate of return on such Lender’s or L/C Issuer’s capital or on the capital of such Lender’s or L/C Issuer’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by L/C Issuer, to a level below that which such Lender or L/C Issuer or such Lender’s or L/C Issuer’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or L/C Issuer’s policies and the policies of such Lender’s or L/C Issuer’s holding company with respect to capital adequacy), then from time to time Borrower will pay to such Lender or L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or L/C Issuer or such Lender’s or L/C Issuer’s holding company for any such reduction suffered. (c) Certificates for Reimbursement. A certificate of a Lender or L/C Issuer setting forth the amount or amounts necessary to compensate such Lender or L/C Issuer or its holding company, as the case may be, as specified in subsection (a) or (b) of this Section and delivered to Borrower shall be conclusive absent manifest error. Borrower shall pay such Lender or L/C Issuer, as the case may be, the amount shown as due on any such certificate within thirty (30) days after receipt thereof. (d) Delay in Requests. Failure or delay on the part of any Lender or L/C Issuer to demand compensation pursuant to the foregoing provisions of this Section 3.04 shall not constitute a waiver of such Lender’s or L/C Issuer’s right to demand such compensation, provided that Borrower shall not be required to compensate a Lender or L/C Issuer pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than nine (9) months prior to the date that such Lender or L/C Issuer, as the case may be, notifies Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or L/C Issuer’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof). 3.05 Compensation for Losses. Upon demand of any Lender (with a copy to Administrative Agent) from time to time, Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense actually incurred by it as a result of:
4925-1798-1140 v.13 67 (a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise); (b) any failure by Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the amount notified by Borrower; or (c) any assignment of a Term SOFR Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by Borrower pursuant to Section 11.13; including any loss of anticipated profits and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained. Borrower shall also pay any customary administrative fees charged by such Lender in connection with the foregoing. The amounts payable by Borrower under this Section 3.05, shall never be less than zero (0) or greater than is permitted by applicable Law. For the avoidance of doubt, no amounts will be owing under this Section 3.05 in connection with the prepayment of any Daily SOFR Rate Loan or Base Rate Loan (if any). 3.06 Mitigation Obligations; Replacement of Lenders. (a) Designation of a Different Lending Office. If any Lender requests compensation under Section 3.04, or requires Borrower to pay any Indemnified Taxes or additional amounts to any Lender, L/C Issuer, or any Governmental Authority for the account of any Lender or L/C Issuer pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then at the request of Borrower such Lender or L/C Issuer shall, as applicable, use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender or L/C Issuer, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and (ii) in each case, would not subject such Lender or L/C Issuer, as the case may be, to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender or L/C Issuer, as the case may be. Borrower hereby agrees to pay all reasonable out-of-pocket costs and expenses incurred by any Lender or L/C Issuer in connection with any such designation or assignment. (b) Replacement of Lenders. If any Lender requests compensation under Section 3.04, or if Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01 and, in each case, such Lender has declined or is unable to designate a different lending office in accordance with Section 3.06(a), Borrower may replace such Lender in accordance with Section 11.13. 3.07 Survival. All of Borrower’s obligations under this Article III shall survive termination of the Commitments, repayment of all other Obligations hereunder, and resignation of Administrative Agent.
4925-1798-1140 v.13 68 Article IV. Parent Guaranty 4.01 The Guaranty. Parent hereby guarantees to Administrative Agent and each of the holders of the Obligations, as hereinafter provided, as primary obligor and not as surety, the prompt payment of the Obligations (the “Guaranteed Obligations”) in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) strictly in accordance with the terms thereof. Parent hereby further agrees that if any of the Guaranteed Obligations are not paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory Cash Collateral or otherwise), Parent will promptly pay the same, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) in accordance with the terms of such extension or renewal. 4.02 Obligations Unconditional. The obligations of Parent under Section 4.01 are absolute and unconditional, irrespective of the value, genuineness, validity, regularity or enforceability of any of the Loan Documents or other documents relating to the Obligations, or any substitution, compromise, release, impairment or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, to the fullest extent permitted by applicable Laws, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being the intent of this Section 4.02 that the obligations of Parent hereunder shall be absolute and unconditional under any and all circumstances. Parent agrees that Parent shall have no right of subrogation, indemnity, reimbursement or contribution against Borrower or any other Guarantor for amounts paid under this Article IV until such time as the Obligations have been irrevocably paid in full and the commitments relating thereto have expired or been terminated. Without limiting the generality of the foregoing, it is agreed that, to the fullest extent permitted by applicable Laws, the occurrence of any one or more of the following shall not alter or impair the liability of Parent hereunder, which shall remain absolute and unconditional as described above: (a) at any time or from time to time, without notice to Parent, the time for any performance of or compliance with any of the Guaranteed Obligations shall be extended, or such performance or compliance shall be waived; (b) any of the acts mentioned in any of the provisions of any of the Loan Documents, or other documents relating to the Guaranteed Obligations or any other agreement or instrument referred to therein shall be done or omitted; (c) the maturity of any of the Guaranteed Obligations shall be accelerated, or any of the Obligations shall be modified, supplemented or amended in any respect, or any right under any of the Loan Documents or other documents relating to the Guaranteed Obligations, or any other agreement or instrument referred to therein shall be waived or any other guarantee of any of the Guaranteed Obligations or any security therefor shall be released, impaired or exchanged in whole or in part or otherwise dealt with; (d) any Lien granted to, or in favor of, Administrative Agent or any of the holders of the Guaranteed Obligations as security for any of the Guaranteed Obligations shall fail to attach or be perfected; or
4925-1798-1140 v.13 69 (e) any of the Guaranteed Obligations shall be determined to be void or voidable (including, without limitation, for the benefit of any creditor of Parent) or shall be subordinated to the claims of any Person (including, without limitation, any creditor of Parent). With respect to its obligations hereunder, Parent hereby expressly waives diligence, presentment, demand of payment, protest notice of acceptance of the guaranty given hereby and of Credit Extensions that may constitute obligations guaranteed hereby, notices of amendments, waivers and supplements to the Loan Documents and other documents relating to the Guaranteed Obligations, or the compromise, release or exchange of collateral or security, and all notices whatsoever, and any requirement that Administrative Agent or any holder of the Guaranteed Obligations exhaust any right, power or remedy or proceed against any Person under any of the Loan Documents or any other documents relating to the Guaranteed Obligations or any other agreement or instrument referred to 4.03 Reinstatement. Neither Parent’s obligations hereunder nor any remedy for the enforcement thereof shall be impaired, modified, changed or released in any manner whatsoever by an impairment, modification, change, release or limitation of the liability of Borrower, by reason of Borrower’s bankruptcy or insolvency or by reason of the invalidity or unenforceability of all or any portion of the Guaranteed Obligations. The obligations of Parent under this Article IV shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of any Person in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Obligations, whether as a result of any proceedings pursuant to any Debtor Relief Law or otherwise, and Parent agrees that it will indemnify Administrative Agent and each holder of Guaranteed Obligations on demand for all reasonable out-of-pocket costs and expenses (including all reasonable fees, expenses and disbursements of any law firm or other outside counsel incurred by Administrative Agent) incurred by Administrative Agent or such holder of Guaranteed Obligations in connection with such rescission or restoration, including any such costs and expenses incurred in defending against any claim alleging that such payment constituted a preference, fraudulent transfer or similar payment under any Debtor Relief Law. 4.04 Certain Waivers. Parent acknowledges and agrees that (a) the guaranty given hereby may be enforced without the necessity of resorting to or otherwise exhausting remedies in respect of any other security or collateral interests, and without the necessity at any time of having to take recourse against Borrower hereunder or against any collateral securing the Guaranteed Obligations or otherwise, (b) it will not assert any right to require the action first be taken against Borrower or any other Person (including any co guarantor) or pursuit of any other remedy or enforcement any other right and (c) nothing contained herein shall prevent or limit action being taken against Borrower hereunder, under the other Loan Documents or the other documents and agreements relating to the Guaranteed Obligations or from foreclosing on any security or collateral interests relating hereto or thereto, or from exercising any other rights or remedies available in respect thereof, if neither Borrower nor Guarantors shall timely perform their obligations, and the exercise of any such rights and completion of any such foreclosure proceedings shall not constitute a discharge of Parent’s obligations hereunder unless as a result thereof, the Guaranteed Obligations shall have been paid in full and the commitments relating thereto shall have expired or been terminated, it being the purpose and intent that Parent’s obligations hereunder be absolute, irrevocable, independent and unconditional under all circumstances. 4.05 Remedies. Parent agrees that, to the fullest extent permitted by applicable Laws, as between Guarantors, on the one hand, and Administrative Agent and the holders of the Guaranteed Obligations, on the other hand, the Guaranteed Obligations may be declared to be forthwith due and payable as provided in Section 9.02 (and shall be deemed to have become automatically due and payable in the circumstances provided in Section 9.02) for purposes of Section 4.01, notwithstanding any stay, injunction or other prohibition preventing such declaration (or preventing the Guaranteed Obligations from becoming automatically due and payable) as against any other Person and that, in the event of such declaration (or the
4925-1798-1140 v.13 70 Guaranteed Obligations being deemed to have become automatically due and payable), the Guaranteed Obligations (whether or not due and payable by any other Person) shall forthwith become due and payable by Parent for purposes of Section 4.01. 4.06 Rights of Contribution. Parent hereby agrees that, in connection with payments made hereunder, Parent shall have a right of contribution from each other Guarantor in accordance with applicable Laws. Such contribution rights shall be subordinate and subject in right of payment to the Guaranteed Obligations until such time as the Guaranteed Obligations have been irrevocably paid in full and the commitments relating thereto shall have expired or been terminated, and Parent shall not exercise any such contribution rights until the Guaranteed Obligations have been irrevocably paid in full and the commitments relating thereto shall have expired or been terminated. 4.07 Guaranty of Payment; Continuing Guaranty. The guarantee in this Article IV is a guaranty of payment and performance, and not merely of collection, and is a continuing guarantee, and shall apply to all Guaranteed Obligations whenever arising. Article V. Conditions Precedent to Credit Extensions 5.01 Conditions of Initial Credit Extension. The obligation of L/C Issuer and each Lender to make its respective initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent: (a) Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) or electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Administrative Agent and each of the Lenders: (i) executed counterparts of this Agreement and the Subsidiary Guaranty, in each case sufficient in number for distribution to Administrative Agent, each Lender, Parent, and Borrower; (ii) a Note executed by Borrower in favor of each Lender requesting a Note; (iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party; (iv) such documents and certifications as Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
4925-1798-1140 v.13 71 (v) a favorable opinion of Morrison & Foerster LLP, counsel to the Loan Parties, addressed to Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as Required Lenders may reasonably request; (vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required; (vii) a certificate signed by a Responsible Officer of Parent, for itself and on behalf of Borrower, certifying (A) that the conditions specified in Sections 5.02(a) and (b) have been satisfied; (B) that there has been no event or circumstance since June 30, 2026, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or governmental authority related to the transactions contemplated by this Agreement or that could reasonably be expected to have a Material Adverse Effect; (viii) a duly completed Compliance Certificate certifying compliance with all financial covenants set forth in Section 8.14, in each case prepared as of June 30, 2026, on a pro forma basis to reflect the amount of any Borrowings on the Closing Date, and signed by a Responsible Officer of Borrower and Parent; (ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect; (x) evidence that the M&T Term Loan Agreement has been or concurrently with the Closing Date is being terminated; and (xi) such other assurances, certificates, documents, consents or opinions as Administrative Agent, L/C Issuer or Required Lenders may reasonably require, including, if requested by Administrative Agent, an updated Borrower Detail Form. (b) (i) Upon the reasonable request of any Lender made at least seven (7) days prior to the Closing Date, Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, 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 three (3) Business Days prior to the Closing Date and (ii) at least three (3) Business Days prior to the Closing Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party. (c) Any fees required to be paid on or before the Closing Date shall have been paid. (d) Unless waived by Administrative Agent, Borrower shall have paid all fees, charges and disbursements of counsel to Administrative Agent (directly to such counsel if requested by Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings
4925-1798-1140 v.13 72 (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower and Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 5.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. 5.02 Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Loans to the other Type, or a continuation of Term SOFR Rate Loans) is subject to the following conditions precedent: (a) The representations and warranties of Borrower and each other Loan Party contained in Article VI or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (without duplication of any materiality qualifiers therein) on and as of the date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes of this Section 5.02, the representations and warranties contained in subsections (a) and (b) of Section 6.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01. (b) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof. (c) Administrative Agent and, if applicable, L/C Issuer shall have received a Request for Credit Extension in accordance with the requirements hereof. (d) If such proposed Credit Extension is under the Revolving Credit Facility, then after giving effect to such proposed Credit Extension, the Total Revolving Credit Outstandings do not exceed the Revolving Credit Facility. Each Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Loans to the other Type or a continuation of Term SOFR Rate Loans) submitted by Borrower shall be deemed to be a representation and warranty that the conditions specified in Sections 5.02(a) and (b) have been satisfied on and as of the date of the applicable Credit Extension. Article VI. Representations and Warranties Each of Parent and Borrower represents and warrants to Administrative Agent and the Lenders that: 6.01 Existence, Qualification and Power; Compliance with Laws. Each member of the Consolidated Group (a) is duly organized or formed, validly existing and, as applicable, in good standing under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and carry on its business and (ii) in the case of the Loan Parties, execute, deliver and perform its obligations under the Loan Documents to which it is a party, and (c) is duly qualified and is licensed and,
4925-1798-1140 v.13 73 as applicable, in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license; except in each case referred to in clause (b)(i) or (c) to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect. 6.02 Authorization; No Contravention. The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is party, have been duly authorized by all necessary corporate or other organizational action, and do not and will not (a) contravene the terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (i) any Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (c) violate any Law. 6.03 Governmental Authorization; Other Consents. No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document. 6.04 Binding Effect. This Agreement has been, and each other Loan Document, when delivered hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto. This Agreement constitutes, and each other Loan Document when so delivered will constitute, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in accordance with its terms. 6.05 Financial Statements; No Material Adverse Effect. (a) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii) fairly present the financial condition of the Consolidated Group as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; and (iii) show all material indebtedness and other liabilities, direct or contingent, of the Consolidated Group as of the date thereof, including liabilities for taxes, material commitments and Indebtedness. (b) The unaudited consolidated and consolidating balance sheet of the Consolidated Group dated June 30, 2026 and the related consolidated and consolidating statements of income or operations, shareholders’ equity and cash flows for the fiscal quarter ended on that date (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and (ii) fairly present the financial condition of the Consolidated Group as of the date thereof and their results of operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal year- end audit adjustments. (c) There has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect since June 30, 2026. 6.06 Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of Borrower, threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against any member of the Consolidated Group or against any of their properties or revenues that (a) purport to affect or pertain to this Agreement or any other Loan Document,
4925-1798-1140 v.13 74 or any of the transactions contemplated hereby, or (b) except as specifically disclosed in Schedule 6.06, either individually or in the aggregate, if determined adversely, could reasonably be expected to have a Material Adverse Effect, and there has been no adverse change in the status, or financial effect on any member of the Consolidated Group, of the matters described on Schedule 6.06. 6.07 No Default. No member of the Consolidated Group is in default under or with respect to any Contractual Obligation that could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. No Default has occurred and is continuing or would result from the consummation of the transactions contemplated by this Agreement or any other Loan Document. 6.08 Ownership of Property; Liens. Each member of the Consolidated Group has good record and marketable title in fee simple to, or valid leasehold interests in, all Properties necessary or used in the ordinary conduct of its business, except for such defects in title as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Each applicable Loan Party has good record and marketable fee simple title (or, in the case of Acceptable Ground Leases, a valid leasehold) to the Unencumbered Property owned by such Loan Party, subject only to Liens permitted by Section 8.01. 6.09 Environmental Compliance. The members of the Consolidated Group have conducted in the ordinary course of business a review of the effect of existing Environmental Laws and claims alleging potential liability or responsibility for violation of any Environmental Law on their respective businesses, operations and properties, and to Parent’s and Borrower’s knowledge, the Properties are in compliance with all Environmental Laws, except as specifically disclosed on Schedule 6.09 and except such non-compliance that could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. 6.10 Insurance. The properties of the Consolidated Group are insured with financially sound and reputable insurance companies not Affiliates of any member of the Consolidated Group, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the members of the Consolidated Group operate. 6.11 Taxes. The members of the Consolidated Group have filed all Federal, state and other material tax returns and reports required to be filed, and have paid all Federal, state and other material taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP. There is no proposed tax assessment against any member of the Consolidated Group that would, if made, have a Material Adverse Effect. No member of the Consolidated Group is party to any tax sharing agreement. 6.12 ERISA Compliance. (a) Each Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code and other Federal or state laws. Each Plan that is intended to be a qualified plan under Section 401(a) of the Code has received a favorable determination letter from the IRS to the effect that the form of such Plan is qualified under Section 401(a) of the Code and the trust related thereto has been determined by the IRS to be exempt from federal income tax under Section 501(a) of the Code, or an application for such a letter is currently being processed by the IRS. To the best knowledge of Parent and Borrower, nothing has occurred that would prevent or cause the loss of such tax-qualified status.
4925-1798-1140 v.13 75 (b) There are no pending or, to the best knowledge of each Loan Party, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect. (c) (i) No ERISA Event has occurred, and no Loan Party nor any ERISA Affiliate is aware of any fact, event or circumstance that could reasonably be expected to constitute or result in an ERISA Event with respect to any Pension Plan; (ii) each Loan Party and each ERISA Affiliate has met all applicable requirements under the Pension Funding Rules in respect of each Pension Plan, and no waiver of the minimum funding standards under the Pension Funding Rules has been applied for or obtained; (iii) as of the most recent valuation date for any Pension Plan, the funding target attainment percentage (as defined in Section 430(d)(2) of the Code) is sixty percent (60%) or higher and no Loan Party nor any ERISA Affiliate knows of any facts or circumstances that could reasonably be expected to cause the funding target attainment percentage for any such plan to drop below sixty (60%) as of the most recent valuation date; (iv) no Loan Party nor any ERISA Affiliate has incurred any liability to the PBGC other than for the payment of premiums, and there are no premium payments which have become due that are unpaid; (v) no Loan Party nor any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or Section 4212(c) of ERISA; and (vi) no Pension Plan has been terminated by the plan administrator thereof nor by the PBGC, and no event or circumstance has occurred or exists that could reasonably be expected to cause the PBGC to institute proceedings under Title IV of ERISA to terminate any Pension Plan. (d) The underlying assets of each member of the Consolidated Group do not constitute Plan Assets and no member of the Consolidated Group will be using Plan Assets in connection with the Loans, the Letters of Credit or the Commitments; 6.13 Subsidiaries; Equity Interests. Parent has no Subsidiaries other than those specifically disclosed in Part (a) of Schedule 6.13, and all of the outstanding Equity Interests in such Subsidiaries have been validly issued, are fully paid and nonassessable and are owned by the applicable member of the Consolidated Group in the amounts specified on Part (a) of Schedule 6.13 free and clear of all Liens. Parent has no direct or indirect equity investments in any other corporation or entity other than those specifically disclosed in Part (b) of Schedule 6.13. 6.14 Margin Regulations; Investment Company Act. (a) Neither Parent nor Borrower is engaged and will not engage, principally or as one of their important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock. (b) None of Parent, Borrower, any Person Controlling Borrower, or any other member of the Consolidated Group is or is required to be registered as an “investment company” under the Investment Company Act of 1940. 6.15 Disclosure. (a) Parent and Borrower have disclosed to Administrative Agent and the Lenders all agreements, instruments and corporate or other restrictions to which any member of the Consolidated Group is subject, and all other matters known to them, that, individually or in the
4925-1798-1140 v.13 76 aggregate, could reasonably be expected to result in a Material Adverse Effect. No report, financial statement, certificate or other information furnished (whether in writing or orally) by or on behalf of any member of the Consolidated Group to Administrative Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other Loan Document (in each case, 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 light of the circumstances under which they were made, not misleading; provided that, with respect to projected financial information, Borrower represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time. (b) As of the Closing Date, the information included in the Beneficial Ownership Certification, if applicable, is true and correct in all respects 6.16 Compliance with Laws. Each member of the Consolidated Group is in compliance in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. 6.17 Taxpayer Identification Number. Each Loan Party’s true and correct U.S. taxpayer identification number is set forth on Schedule 11.02. 6.18 Unencumbered Properties. Each Property identified by Borrower as an Unencumbered Property in the most-recent Compliance Certificate delivered to Administrative Agent hereunder is an Eligible Unencumbered Property as of the date of such Compliance Certificate. 6.19 Solvency. Each Loan Party is, individually and together with its Subsidiaries on a consolidated basis, Solvent. 6.20 REIT Status. Parent is qualified and taxed as a REIT. 6.21 OFAC. Neither Borrower, nor any of its Subsidiaries, nor, to the knowledge of Borrower and its Subsidiaries, any director, officer, employee, agent, affiliate or representative thereof, is an individual or entity that is, or is owned or controlled by one or more individuals or entities that are (a) currently the subject or target of any Sanctions, (b) included on OFAC’s List of Specially Designated Nationals or HMT’s Consolidated List of Financial Sanctions Targets, or any similar list enforced by any other relevant sanctions authority or (c) located, organized or resident in a Designated Jurisdiction. Borrower and its Subsidiaries have conducted their businesses in compliance in all material respects with all applicable Sanctions and have instituted and maintained policies and procedures designed to promote and achieve compliance with such Sanctions. 6.22 Anti-Corruption Laws. Borrower and its Subsidiaries have conducted their businesses in compliance in all material respects with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and other applicable anti-corruption legislation in other jurisdictions and have instituted and maintained policies and procedures designed to promote and achieve compliance with such laws. 6.23 Affected Financial Institution. No Loan Party is an Affected Financial Institution. 6.24 Covered Entities. No Loan Party is a Covered Entity.
4925-1798-1140 v.13 77 6.25 Outbound Investment Rules. Neither Parent nor any of its Subsidiaries is a ‘covered foreign person’ as that term is used in the Outbound Investment Rules. Neither Parent nor any of its Subsidiaries currently engages, or has any present intention to engage in the future, directly or indirectly, in (a) a “covered activity” or a “covered transaction”, as each such term is defined in the Outbound Investment Rules, (b) any activity or transaction that would constitute a “covered activity” or a “covered transaction”, as each such term is defined in the Outbound Investment Rules, if any of Parent or its Subsidiaries was a U.S. Person or (c) any other activity that would cause Administrative Agent and/or Lenders to be in violation of the Outbound Investment Rules or cause Administrative Agent and/or Lenders to be legally prohibited by the Outbound Investment Rules from performing under this Agreement. Article VII. Affirmative Covenants So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding: 7.01 Financial Statements. Each of Parent and Borrower shall deliver to Administrative Agent and each Lender, in form and detail reasonably satisfactory to Administrative Agent and Required Lenders: (a) as soon as available, but in any event within ninety (90) days after the end of each fiscal year of Parent (or, if earlier, fifteen (15) days after the date required to be filed with the SEC (without giving effect to any extension permitted by the SEC)) (commencing with the fiscal year ended December 31, 2026), a consolidated and consolidating balance sheet of Parent as at the end of such fiscal year (including consolidating financial information with respect to Borrower), and the related consolidated and consolidating statements of income or operations, changes in shareholders’ equity, and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, such consolidated statements to be audited and accompanied by a report and opinion of an independent certified public accountant of nationally recognized standing reasonably acceptable to Required Lenders, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit, and such consolidating statements to be certified by the chief executive officer, chief financial officer, treasurer or controller of Parent to the effect that such statements are fairly stated in all material respects when considered in relation to the consolidated financial statements of Parent; and (b) as soon as available, but in any event within fifty (50) days after the end of each of the first three (3) fiscal quarters of each fiscal year of Parent (or, if earlier, five (5) days after the date required to be filed with the SEC (without giving effect to any extension permitted by the SEC)) (commencing with the fiscal quarter ended September 30, 2026), a consolidated and consolidating balance sheet of Parent as at the end of such fiscal quarter (including consolidating financial information with respect to Borrower), the related consolidated and consolidating statements of income or operations for such fiscal quarter and for the portion of Parent’s fiscal year then ended, and the related consolidated and consolidating statements of changes in shareholders’ equity, and cash flows for the portion of Parent’s fiscal year then ended, in each case setting forth in comparative form, as applicable, the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail, such consolidated statements to be certified by the chief executive officer, chief financial officer, treasurer or controller of Parent as fairly presenting the financial condition, results of operations, shareholders’ equity and cash flows of the Consolidated Group in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes and such consolidating
4925-1798-1140 v.13 78 statements to be certified by the chief executive officer, chief financial officer, treasurer or controller of Parent to the effect that such statements are fairly stated in all material respects when considered in relation to the consolidated financial statements of Parent. 7.02 Certificates; Other Information. Each of Parent and Borrower shall deliver to Administrative Agent and each Lender, in form and detail reasonably satisfactory to Administrative Agent and Required Lenders: (a) concurrently with the delivery of the financial statements referred to in Sections 7.01(a) and (b), a duly completed Compliance Certificate signed by the chief executive officer, chief financial officer, treasurer or controller of Parent (which delivery may, unless Administrative Agent, or a Lender requests executed originals, be by electronic communication including fax or email and shall be deemed to be an original authentic counterpart thereof for all purposes); (b) promptly following any request therefor, provide information and documentation reasonably requested by Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act and the Beneficial Ownership Regulation; (c) promptly after any reasonable request by Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of Parent by independent accountants in connection with the accounts or books of any member of the Consolidated Group, or any audit of any of them; (d) promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Parent, and copies of all annual, regular, periodic and special reports and registration statements which Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to Administrative Agent pursuant hereto; (e) promptly upon reasonable request by Administrative Agent at each time a Property is to be added as an Unencumbered Property and at any other time, but no more often than once per annum when such request is not in connection with the addition of an Unencumbered Property, rent rolls, operating statements and similar information concerning the Unencumbered Properties; (f) promptly, notice of any change in any Debt Rating; and (g) promptly, such additional information regarding the business, financial or corporate affairs of the Consolidated Group, or compliance with the terms of the Loan Documents, as Administrative Agent or any Lender may from time to time reasonably request. Documents required to be delivered pursuant to Section 7.01(a) and (b) or Section 7.02(d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which Parent posts such documents, or provides a link thereto on Parent’s website on the Internet at the website address listed on Schedule 11.02; or (ii) on which such documents are posted on Parent’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); provided that: (i) Parent or Borrower shall deliver paper copies of such documents to Administrative Agent or any Lender upon its
4925-1798-1140 v.13 79 request to Parent or Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by Administrative Agent or such Lender and (ii) Borrower shall notify Administrative Agent and each Lender (by facsimile or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. 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. Borrower hereby acknowledges that (a) Administrative Agent and/or Arrangers may, but shall not be obligated to, make available to the Lenders and L/C Issuer materials and/or information provided by or on behalf of Borrower hereunder (collectively, “Borrower Materials”) by posting Borrower Materials on Debt Domain, IntraLinks, Syndtrak 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 Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Borrower hereby agrees 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,” Borrower shall be deemed to have authorized Administrative Agent, Arrangers, L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 11.07); (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 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.” 7.03 Notices. Each of Parent and Borrower shall promptly notify Administrative Agent and each Lender: (a) of the occurrence of any Default; (b) of any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect, including (i) breach or non-performance of, or any default under, a Contractual Obligation of any member of the Consolidated Group; (ii) any dispute, litigation, investigation, proceeding or suspension between any member of the Consolidated Group and any Governmental Authority; or (iii) the commencement of, or any material development in, any litigation or proceeding affecting any member of the Consolidated Group, including pursuant to any applicable Environmental Laws; (c) of the occurrence of any ERISA Event; (d) any material litigation, arbitration or governmental investigation or proceeding instituted or threatened against an Unencumbered Property, and any material development therein in each case to the extent the same has resulted or could reasonably be expected to result in a Material Adverse Effect or a Material Property Event; (e) any actual or threatened material Condemnation of any portion of an Unencumbered Property, any material negotiations with respect to any such taking, or any Casualty or other loss of or substantial damage to any Unencumbered Property;
4925-1798-1140 v.13 80 (f) of any material change in accounting policies or financial reporting practices by Parent; (g) of any Environmental Liability or the discovery of any Hazardous Material on any Unencumbered Property that has resulted or could reasonably be expected to result in a Material Adverse Effect including a full description of the nature and extent of the Environmental Liability and/or Hazardous Material; (h) of any event or circumstance that results in a Property previously qualifying as an Unencumbered Property ceasing to qualify as such together with a Compliance Certificate duly completed and delivered by a Responsible Officer calculating all relevant financial covenants as of the most-recent fiscal quarter calculated on a pro forma basis assuming that such Property is no longer an Unencumbered Property; and (i) any labor controversy pending or threatened against any member of the Consolidated Group or any contractor performing work on an Unencumbered Property, and any material development in any labor controversy. Each notice pursuant to this Section 7.03 shall be accompanied by a statement of a Responsible Officer of Borrower setting forth details of the occurrence referred to therein and stating what action Borrower has taken and proposes to take with respect thereto. Each notice pursuant to Section 7.03(a) shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached. 7.04 Payment of Obligations. Each of Parent and Borrower shall, and shall cause each other member of the Consolidated Group to, pay and discharge as the same shall become due and payable, all its obligations and liabilities, which if not paid or performed would result or could reasonably be expected to result in a Material Adverse Effect, including (a) all tax liabilities, assessments and governmental charges or levies upon a member of the Consolidated Group or its properties or assets; and (b) all lawful claims which, if unpaid, would by law become a Lien upon its property, unless, in all instances, the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by such member of the Consolidated Group. 7.05 Preservation of Existence, Etc. Each of Parent and Borrower shall, and shall cause each other member of the Consolidated Group to: (a) preserve, renew and maintain in full force and effect its legal existence and good standing under the Laws of the jurisdiction of its organization except in a transaction permitted by Section 8.03 or 8.04; (b) take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c) preserve or renew all of its registered patents, trademarks, trade names and service marks, the non- preservation of which could reasonably be expected to have a Material Adverse Effect. 7.06 Maintenance of Properties. Each of Parent and Borrower shall, and shall cause each other Loan Party to, keep the Unencumbered Properties in good order, repair, operating condition, and appearance, causing all necessary repairs, renewals, replacements, additions, and improvements to be promptly made, and not allow any of the Unencumbered Properties to be misused, abused or wasted or to deteriorate (ordinary wear and tear excepted). 7.07 Maintenance of Insurance. Each of Parent and Borrower shall, and shall cause each other member of the Consolidated Group to, maintain with financially sound and reputable insurance companies not Affiliates of any member of the Consolidated Group, insurance with respect to its properties and
4925-1798-1140 v.13 81 business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts as are customarily carried under similar circumstances by such other Persons. 7.08 Compliance with Laws. Each of Parent and Borrower shall, and shall cause each other member of the Consolidated Group to, comply in all material respects with the requirements of all Laws (including Environmental Laws) and all orders, writs, injunctions and decrees applicable to it or to its business or property, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted; or (b) the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect. 7.09 Books and Records. Each of Parent and Borrower shall, and shall cause each other member of the Consolidated Group to, maintain: (a) proper books of record and account, in which full, true and correct entries in conformity with GAAP consistently applied shall be made of all financial transactions and matters involving the assets and business of Borrower or such member of the Consolidated Group, as the case may be; and (b) such books of record and account in material conformity with all applicable requirements of any Governmental Authority having regulatory jurisdiction over Borrower or such Subsidiary, as the case may be. 7.10 Inspection Rights. Each of Parent and Borrower shall, and shall cause each other Loan Party to, permit representatives and independent contractors engaged by Administrative Agent and each Lender to visit and inspect and photograph any Unencumbered Property, to examine its corporate, financial and operating records, and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants, all at the reasonable expense of Borrower and at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to Parent, Borrower or such other Loan Party, as applicable; provided, however, that as long as no Event of Default has occurred, such inspections shall be at Borrower’s expense only once per annum; provided, further, that when an Event of Default exists Administrative Agent or any Lender (or any of their respective representatives or independent contractors) may do any of the foregoing at the reasonable expense of Borrower at any time during normal business hours and without advance notice and, provided further, that any visit to or inspection of any Unencumbered Property shall be subject to the rights of tenants under Leases at such Unencumbered Property. 7.11 Use of Proceeds. Borrower shall use the proceeds of the Credit Extensions for general corporate and working capital purposes not in contravention of any Law or of any Loan Document. 7.12 Loan Documents. Each of Parent and Borrower shall, and shall cause each other Loan Party to comply with all covenants and requirements set forth in the Loan Documents. 7.13 Acceptable Ground Leases. Each of Parent and Borrower shall, and shall cause each other member of the Consolidated Group to: (a) pay or cause to be paid all rents, additional rents, and other sums required to be paid by the applicable member of the Consolidated Group, as tenant under and pursuant to the provisions of each Acceptable Ground Lease; (b) diligently perform and observe all of the material terms, covenants, and conditions of each Acceptable Ground Lease as tenant under such Acceptable Ground Lease; and (c) promptly notify Administrative Agent of (i) the giving to any member of the Consolidated Group of any notice of any default by such member of the Consolidated Group under
4925-1798-1140 v.13 82 any Acceptable Ground Lease and deliver to Administrative Agent a true copy of each such notice, and (ii) any bankruptcy, reorganization, or insolvency of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to Administrative Agent a true copy of such notice. 7.14 Guaranties. Each of Parent and Borrower shall cause each Subsidiary that (a) Guarantees any Unsecured Indebtedness, (b) owns (or leases pursuant to an Acceptable Ground Lease) an Unencumbered Property or (c) directly or indirectly owns Equity Interests in a Subsidiary of Borrower that owns (or leases pursuant to an Acceptable Ground Lease) an Unencumbered Property, in each case, (i) on or before the delivery of a Compliance Certificate pursuant Section 7.02(a) for the first fiscal quarter following the date on which such Subsidiary meets the qualifications set forth in clauses (a), (b) or (c) above to (A) become a Subsidiary Guarantor by executing and delivering to Administrative Agent, a Guaranty (or an addendum thereto in the form attached to a Guaranty), and (B) deliver to Administrative Agent documents of the types referred to in Sections 5.01(a)(iii), 5.01(a)(iv) and 5.01(a)(vi), together with a favorable opinion of counsel of such Person, all such documentation and opinion to be in form, content and scope reasonably satisfactory to Administrative Agent. A Subsidiary that meets the qualifications set forth in clauses (b) or (c) above shall not be required to become a Subsidiary Guarantor if the Subsidiary Guarantors have been released from their obligations under the Subsidiary Guaranty pursuant to Section 10.10. 7.15 REIT Status. Parent shall take all action necessary to ensure that Parent is organized and operated in a manner so as to qualify to be taxed as a REIT under the Code. 7.16 Further Assurances. Each of Parent, Borrower and each Loan Party shall, promptly upon request by Administrative Agent, or any Lender through Administrative Agent, (a) correct any material defect or error that may be discovered in any Loan Document or in the execution, acknowledgment, filing or recordation thereof, and (b) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as Administrative Agent, or any Lender through Administrative Agent, may reasonably require from time to time in order to (i) carry out more effectively the purposes of the Loan Documents, and (ii) assure, convey, grant, assign, transfer, preserve, protect and confirm more effectively unto Administrative Agent or any Lender the rights granted or now or hereafter intended to be granted to Administrative Agent or any Lender under any Loan Document or under any other instrument executed in connection with any Loan Document to which any Loan Party or any of its Subsidiaries is or is to be a party, and cause each of its Subsidiaries to do so. 7.17 Material Contracts. Each of Parent and Borrower shall, and shall cause each other member of the Consolidated Group to, perform and observe all the terms and provisions of each Material Contract to be performed or observed by it, maintain each such Material Contract in full force and effect, enforce each such Material Contract in accordance with its terms, take all such action to such end as may be from time to time reasonably requested by Administrative Agent and, upon the reasonable request of Administrative Agent, make to each other party to each such Material Contract such demands and requests for information and reports or for action as any Loan Party or any of its Subsidiaries is entitled to make under such Material Contract, and cause each of its Subsidiaries to do so. 7.18 Anti-Corruption Laws; Sanctions. Each of Parent and Borrower shall, and shall cause each other Loan Party to, conduct its businesses in compliance in all material respects with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and other applicable anti-corruption legislation in other jurisdictions and with all applicable Sanctions, and maintain policies and procedures designed to promote and achieve compliance with such laws and Sanctions.
4925-1798-1140 v.13 83 7.19 Keepwell. Each of Parent and Borrower at the time the Subsidiary Guaranty by any Specified Loan Party becomes effective with respect to any Swap Obligation, hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds or other support to each Specified Loan Party with respect to such Swap Obligation as may be needed by such Specified Loan Party from time to time to honor all of its obligations under the Subsidiary Guaranty and the other Loan Documents in respect of such Swap Obligation (but, in each case, only up to the maximum amount of such liability that can be hereby incurred without rendering Borrower’s or Parent’s obligations and undertakings under this Section 7.19 voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations and undertakings of each of Borrower and Parent under this Section 7.19 shall remain in full force and effect until the Obligations have been indefeasibly paid and performed in full. Each of Borrower and Parent intends this Section 7.19 to constitute, and this Section 7.19 shall be deemed to constitute, a Guarantee of the obligations of, and a “keepwell, support, or other agreement” for the benefit of, each Specified Loan Party for all purposes of the Commodity Exchange Act. Article VIII. Negative Covenants So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding: 8.01 Liens. Each of Parent and Borrower shall not, and shall not permit any other member of the Consolidated Group to, directly or indirectly create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, other than the following: (a) Liens existing on the date hereof and listed on Schedule 8.01 and any renewals, modifications or extensions thereof, provided that (i) the property covered thereby is not changed, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 8.02(b), (iii) the direct or any contingent obligor with respect thereto is not changed, and (iv) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 8.02(b); (b) Liens for taxes not yet delinquent or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP; (c) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business which are not overdue for a period of more than sixty (60) days or (i) which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person, or (ii) for which the applicable member of the Consolidated Group is insured against such Liens by title insurance, bonds, or other similar arrangements reasonably satisfactory to Administrative Agent; (d) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA; (e) deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
4925-1798-1140 v.13 84 (f) easements, rights-of-way, restrictions, restrictive covenants, encroachments, protrusions, and other similar encumbrances affecting any Property which do not in any case materially detract from the value of such Property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person; (g) Liens of any member of the Consolidated Group (other than a Subsidiary Guarantor) that is engaged in construction projects for the purpose of securing surety bonds, performance bonds, or similar instruments (other than Indebtedness); (h) Liens securing judgments for the payment of money not constituting an Event of Default under Section 9.01(h); (i) Liens on Properties (other than Unencumbered Properties) securing Indebtedness permitted under Sections 8.02(e) and (f); provided that (i) such Liens do not at any time encumber any Property or assets other than the Property financed by such Indebtedness and (ii) the Indebtedness secured thereby does not exceed the cost or fair market value, whichever is lower, of the Property being acquired on the date of acquisition; and (j) Liens on Properties (other than Unencumbered Properties) securing Indebtedness that has been paid or otherwise satisfied, but which Liens have not been released of record; provided that Borrower is exercising commercially reasonable efforts to obtain the release thereof. 8.02 Indebtedness. Each of Parent and Borrower shall not, and shall not permit any other member of the Consolidated Group to, create, incur, assume, or suffer to exist any Indebtedness, except: (a) Indebtedness under the Loan Documents; (b) Indebtedness outstanding on the date hereof and listed on Schedule 8.02 and any refinancings, refundings, modifications, renewals or extensions thereof; provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, refunding, modifications renewal or extension except (x) by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder or (y) to the extent such increase in Indebtedness is otherwise permitted under this Section 8.02; and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, refunding, modification, renewing or extending of Indebtedness, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the Consolidated Group or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, refunded, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate; (c) Guarantees by Borrower or any Subsidiary in respect of (i) Indebtedness of any member of the Consolidated Group otherwise permitted hereunder (including “bad boy” and completion Guarantees), and (ii) Secured Indebtedness of any Person (other than a member of the Consolidated Group) not to exceed $100,000,000 in the aggregate at any time outstanding; (d) obligations (contingent or otherwise) of any member of the Consolidated Group existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks
4925-1798-1140 v.13 85 associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party; (e) Non-Recourse Debt so long as Parent and Borrower are in compliance with Section 8.14(d); (f) Secured Recourse Debt so long as Parent and Borrower are in compliance with Sections 8.14(d) and (e); and (g) Unsecured Indebtedness so long as Parent and Borrower are in compliance with Sections 8.14(d) and (f); provided that if Parent attains an Investment Grade Rating and Borrower requests the Subsidiary Guarantors be released from the Subsidiary Guaranty, then the released Subsidiary Guarantors shall not guarantee any other Unsecured Indebtedness. 8.03 Fundamental Changes. Each of Parent and Borrower shall not, and shall not permit any other member of the Consolidated Group to, merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (including, in each case, pursuant to a Division), except that, so long as no Default exists or would result therefrom: (a) any Subsidiary may merge with (i) Borrower, provided that Borrower shall be the continuing or surviving Person, or (ii) any one or more other Subsidiaries, provided that when any Subsidiary Guarantor is merging with another Subsidiary, the Subsidiary Guarantor shall be the continuing or surviving Person; (b) any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to Borrower or to another Subsidiary; provided that if the transferor in such a transaction is a Subsidiary Guarantor, then the transferee must either be Borrower or a Subsidiary Guarantor; and (c) each of Parent, Borrower or any Subsidiary may merge or consolidate with any other Person that is neither Parent, Borrower nor any Subsidiary so long as: (i) if such merger or consolidation is with either Parent or Borrower, then Parent or Borrower, as applicable, shall be the continuing or surviving Person; (ii) if such merger or consolidation is with a Subsidiary Guarantor, then the continuing or surviving Person shall be or become a Subsidiary Guarantor (if such surviving entity is required to be a Subsidiary Guarantor hereunder); and (iii) after giving effect to such merger or consolidation, no Change of Control has occurred. 8.04 Dispositions. Each of Parent and Borrower shall not, and shall not permit any other member of the Consolidated Group to, make any Disposition or enter into any agreement to make any Disposition, except: (a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business; (b) Dispositions of inventory in the ordinary course of business;
4925-1798-1140 v.13 86 (c) Dispositions of equipment to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property; (d) Dispositions of property by any Subsidiary to Borrower or to a Wholly-Owned Subsidiary; provided that if the transferor of such property is a Subsidiary Guarantor, the transferee thereof must either be Borrower or a Subsidiary Guarantor; (e) Dispositions of Properties or Subsidiaries that own Properties so long as no Default exists or would result therefrom; and (f) Dispositions permitted by Section 8.03. 8.05 Restricted Payments. Each of Parent and Borrower shall not, and shall not permit any other member of the Consolidated Group to, declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, if a Default has occurred and is continuing or would result therefrom; provided that to the extent a Default is then-existing or would result from the making of such Restricted Payment (other than a Default specified in Sections 9.01(f) or 9.01(g) or a Default that has resulted in Administrative Agent exercising its remedies under Section 9.02(b), in which case no Restricted Payments otherwise permitted under this Section 8.05 may be made), the Consolidated Group may make Restricted Payments in the minimum amount required in order for Parent to (i) maintain its REIT status and (ii) avoid federal or state income excise taxes. 8.06 Change in Nature of Business. Each of Parent and Borrower shall not, and shall not permit any other member of the Consolidated Group to, engage in any material line of business substantially different from those lines of business conducted by the Consolidated Group on the date hereof or any business substantially related or incidental thereto. 8.07 Transactions with Affiliates. Each of Parent and Borrower shall not, and shall not permit any other member of the Consolidated Group to, enter into any transaction of any kind with any Affiliate of a member of the Consolidated Group, whether or not in the ordinary course of business, other than on fair and reasonable terms substantially as favorable to such member of the Consolidated Group as would be obtainable by such member of the Consolidated Group at the time in a comparable arm’s length transaction with a Person other than an Affiliate. 8.08 Burdensome Agreements. Each of Parent and Borrower shall not, and shall not permit any other member of the Consolidated Group to, enter into or permit to exist any Contractual Obligation (other than the Loan Documents) that (a) constitutes a Negative Pledge with respect to any Unencumbered Property or the Equity Interests in any member of the Consolidated Group (other than Borrower) that owns or leases an Unencumbered Property, other than a Negative Pledge contained in an agreement relating to the sale of any such Unencumbered Property or Equity Interests pending such sale, provided that, in any such case, the Negative Pledge applies only to the Unencumbered Property or Equity Interests that are the subject of such sale, or (b) limits the ability of any member of the Consolidated Group to transfer ownership of any Unencumbered Property or the Equity Interests in any member of the Consolidated Group (other than Borrower) that owns or leases an Unencumbered Property. 8.09 Use of Proceeds. Each of Parent and Borrower shall not use the proceeds of any Credit Extension, whether directly or indirectly, and whether immediately, incidentally or ultimately, to (a) finance or refinance any (i) commercial paper issued by any Loan Party or (ii) any other Indebtedness, except (A) for Indebtedness that such Loan Party incurred for development activities or other general corporate or working capital purposes, or (B) to refinance Indebtedness on Properties that will become Unencumbered
4925-1798-1140 v.13 87 Properties, (b) purchase or carry margin stock (within the meaning of Regulation U of the FRB) or (c) extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose. 8.10 Acceptable Ground Leases. Each of Parent and Borrower shall not, and shall not permit any other member of the Consolidated Group to: (a) without the prior written consent of Administrative Agent, surrender the leasehold estate created by any Acceptable Ground Lease or terminate or cancel any Acceptable Ground Lease or materially modify, change, supplement, alter, or amend any Acceptable Ground Lease, either orally or in writing; or (b) without the prior written consent of Administrative Agent, sublet (other than space leases in the ordinary course of business) any portion of any Unencumbered Property held pursuant to an Acceptable Ground Lease. 8.11 Amendments of Organization Documents. Each of Parent and Borrower shall not, and shall not permit any other member of the Consolidated Group to, amend any of its Organization Documents in any manner that would adversely affect any Loan Party’s ability to pay its Obligations hereunder or materially and adversely impairs any rights or remedies of Administrative Agent or any Lender under the Loan Documents or applicable Laws. 8.12 Accounting Changes. Each of Parent and Borrower shall not, and shall not permit any other member of the Consolidated Group to, make any change in (a) accounting policies or reporting practices, except as required by or otherwise in accordance with GAAP, or (b) fiscal year. 8.13 Sanctions. Each of Parent and Borrower shall not, and shall not permit any other member of the Consolidated Group to, directly or indirectly, use the proceeds of any Credit Extension or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other individual or entity, to fund any activities of or business with any individual or entity, or in any Designated Jurisdiction, that, at the time of such funding, is the subject of Sanctions, or in any other manner that will result in a violation by any individual or entity (including any individual or entity participating in the transaction, whether as Lender, Arranger, Administrative Agent, L/C Issuer or otherwise) of Sanctions. 8.14 Financial Covenants. Each of Parent and Borrower shall not: (a) Maximum Leverage Ratio. Permit the Total Leverage Ratio, as of the last day of any fiscal quarter of Parent to exceed sixty percent (60%); provided that as of the last day of the fiscal quarter in which any Significant Acquisition occurs and the last day of the two (2) immediately following quarters thereafter (but only for up to two (2) times during the term of this Agreement), the Total Leverage Ratio may exceed sixty percent (60%) so long as it does not exceed sixty-five percent (65%). (b) Minimum Fixed Charge Coverage Ratio. Permit the ratio of (i) Adjusted EBITDA to (ii) Fixed Charges, as of the last day of any fiscal quarter of Parent, to be less than 1.50 to 1.0. (c) Minimum Tangible Net Worth. Permit Tangible Net Worth, at any time, to be less than the sum of (i) an amount equal to $823,879,000, and (ii) an amount equal to seventy-five percent (75%) of the net equity proceeds received by the Consolidated Group after June 30, 2026.
4925-1798-1140 v.13 88 (d) Maximum Secured Indebtedness. Permit the Secured Indebtedness of the Consolidated Group (excluding the Facility if it becomes Secured Indebtedness) to be greater than forty percent (40%) of Total Asset Value. Notwithstanding the foregoing, each of Parent and Borrower shall not, and shall not permit any other member of the Consolidated Group to, secure any Indebtedness outstanding under or pursuant to any Pari Passu Facility unless and until the Obligations (including the Guaranties) shall concurrently be secured equally and ratably with such Indebtedness pursuant to documentation reasonably acceptable to Administrative Agent in substance and in form including an intercreditor agreement and opinions of counsel to Parent, Borrower and/or any other members of the Consolidated Group, as the case may be, from counsel and in a form that is reasonably acceptable to Administrative Agent. (e) Maximum Secured Recourse Debt. Permit the Secured Recourse Debt of the Consolidated Group (excluding the Facility if it becomes Secured Indebtedness) to be greater than twenty percent (20%) of Total Asset Value. (f) Maximum Unsecured Leverage Ratio. Permit the Total Unsecured Leverage Ratio, as of the last day of any fiscal quarter of Parent to exceed sixty percent (60%); provided that as of the last day of the fiscal quarter in which any Significant Acquisition occurs and the last day of the two (2) immediately following quarters thereafter (but only for up to two (2) times during the term of this Agreement), the Total Unsecured Leverage Ratio may exceed sixty percent (60%) so long as it does not exceed sixty-five percent (65%). (g) Minimum Unencumbered Interest Coverage Ratio. Permit the Unencumbered Interest Coverage Ratio, as of the last day of any fiscal quarter of Parent, to be less than 1.75 to 1.0. 8.15 Unencumbered Property Covenants. Each of Parent and Borrower shall not: (a) Unencumbered Asset Value. Permit the Unencumbered Asset Value for all Unencumbered Properties to be less than $500,000,000; (b) Minimum Unencumbered Properties. Permit there to be less than fifteen (15) Unencumbered Properties at any time; (c) Occupancy Rate. Permit the Occupancy Rate to be less than eighty percent (80%) for all Unencumbered Properties in the aggregate; and (d) Tenant Concentration. Permit aggregate rental revenues of any one tenant with respect to Leases of Unencumbered Properties to constitute more than twenty-five percent (25%) of rental revenues with respect to all Leases of Unencumbered Properties. 8.16 ERISA Compliance. Each Loan Party shall not, and shall not permit any other member of the Consolidated Group to, take any action that would cause its underlying assets to constitute Plan Assets. 8.17 Environmental Matters. Each of Parent and Borrower shall not, and shall not permit any other member of the Consolidated Group to, (a) cause, commit, permit, or allow to continue any violation of any Environmental Law which could reasonably be expected to have a Material Adverse Effect, or (b) place, install, dispose of, or release, or cause, permit, or allow the placing, installation, disposal, spilling, leaking, dumping, or release of, any Hazardous Material on any Property (other than routine office, cleaning, janitorial and other materials and supplies necessary to operate, maintain, repair, improve and lease such Property, in each case in commercially reasonable quantities and used and stored in compliance
4925-1798-1140 v.13 89 with all Environmental Laws) or storage tank (or similar vessel) on any Property, in each case which could reasonably be expected to have a Material Adverse Effect. 8.18 Anti-Corruption Laws. Directly or indirectly use the proceeds of any Credit Extension for any purpose which would breach the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, or other similar legislation in other jurisdictions. 8.19 Outbound Investment Rules. Permit itself or any of its Subsidiaries to, (a) be or become a “covered foreign person”, as that term is defined in the Outbound Investment Rules, or (b) engage, directly or indirectly, in (i) a “covered activity” or a “covered transaction”, as each such term is defined in the Outbound Investment Rules, (ii) any activity or transaction that would constitute a “covered activity” or a “covered transaction”, as each such term is defined in the Outbound Investment Rules, if Parent or Borrower were a U.S. Person or (iii) any other activity that would cause Administrative Agent and/or Lenders to be in violation of the Outbound Investment Rules or cause Administrative Agent and/or Lenders to be legally prohibited by the Outbound Investment Rules from performing under this Agreement. Article IX. Events of Default and Remedies 9.01 Events of Default. Any of the following shall constitute an Event of Default (each, an “Event of Default”): (a) Non-Payment. Borrower or any other Loan Party fails to pay (i) when and as required to be paid herein, any amount of principal of any Loan or any L/C Obligation, or (ii) within three (3) days after the same becomes due, any interest on any Loan or on any L/C Obligation, or any fee due hereunder, or (iii) within five (5) days after the same becomes due, any other amount payable hereunder or under any other Loan Document; or (b) Specific Covenants. Any member of the Consolidated Group fails to perform or observe any term, covenant or agreement contained in (i) any of Section 7.01 or 7.02, and such failure continues for five (5) Business Days, or (ii) any of Section 7.03, 7.05, 7.10, 7.11, 7.14, 7.19 or Article VIII , or any Guarantor fails to perform or observe any term, covenant, or agreement contained in the Guaranties; or (c) Other Defaults. Any Loan Party fails to perform or observe any other covenant or agreement (not specified in subsection (a) or (b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for thirty (30) days, or if such failure is capable of cure but not within thirty (30) days, such longer period (but in no event to exceed an additional sixty (60) days) as may be reasonably necessary to cure such failure so long as such Loan Party commences such cure within the initial thirty (30) days and diligently pursues achieving such cure; or (d) Representations and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of Borrower or any other Loan Party herein, in any other Loan Document, or in any document delivered in connection herewith or therewith shall be incorrect or misleading in any material respect (without duplication of any materiality qualifiers therein) when made or deemed made; or (e) Cross-Default. (i) any member of the Consolidated Group (A) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and
4925-1798-1140 v.13 90 Indebtedness under Swap Contracts) having an aggregate principal amount (including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of (x) exceeding the Threshold Amount, either individually or in the aggregate, with respect to Recourse Debt or (y) $65,000,000 or more, either individually or in the aggregate, with respect to Non-Recourse Debt, or (B) fails to observe or perform any other agreement or condition relating to any such Indebtedness or Guarantee or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event is to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable or cash collateral in respect thereof to be demanded; or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from (A) any event of default under such Swap Contract as to which any member of the Consolidated Group is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as defined in such Swap Contract) under such Swap Contract as to which any member of the Consolidated Group is an Affected Party (as defined in such Swap Contract) and, in either event, the Swap Termination Value owed by such member of the Consolidated Group as a result thereof is greater than the Threshold Amount; or (f) Insolvency Proceedings, Etc. Any member of the Consolidated Group (other than a Non-Recourse Subsidiary) institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for sixty (60) calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for sixty (60) calendar days, or an order for relief is entered in any such proceeding; or (g) Inability to Pay Debts; Attachment. (i) Any member of the Consolidated Group (other than a Non-Recourse Subsidiary) becomes unable or admits in writing its inability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of any such Person and is not released, vacated or fully bonded within thirty (30) days after its issue or levy; or (h) Judgments. There is entered against any member of the Consolidated Group (other than a Non-Recourse Subsidiary) (i) one or more final judgments or orders for the payment of money in an aggregate amount (as to all such judgments or orders) exceeding the Threshold Amount (to the extent not covered by independent third-party insurance as to which the insurer does not dispute coverage), or (ii) any one or more non-monetary final judgments that have, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) there is a period of thirty (30) consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or (i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or could reasonably be expected to result in liability of the Consolidated Group or any member of the Consolidated Group under Title IV of ERISA to the
4925-1798-1140 v.13 91 Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold Amount, or (ii) any Loan Party or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; or (j) Invalidity of Loan Documents. Any provision of any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect; or any Loan Party or any other Person contests in any manner the validity or enforceability of any provision of any Loan Document; or any Loan Party denies that it has any or further liability or obligation under any Loan Document, or purports to revoke, terminate or rescind any provision of any Loan Document; or (k) Change of Control. There occurs any Change of Control. (l) REIT Status. Parent ceases to be treated as a REIT in any taxable year. (m) Stock Exchange Listing. Parent’s common Equity Interests shall cease to be traded on the New York Stock Exchange. 9.02 Remedies Upon Event of Default. If any Event of Default occurs and is continuing, Administrative Agent shall, at the request of, or may, with the consent of, Required Lenders, take any or all of the following actions: (a) declare the commitment of each Lender to make Loans and any obligation of L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such commitments and obligation shall be terminated; (b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by Borrower; (c) require that Borrower Cash Collateralize the L/C Obligations (in an amount equal to the Minimum Collateral Amount with respect thereto); and (d) exercise on behalf of itself, the Lenders and L/C Issuer all rights and remedies available to it, the Lenders and L/C Issuer under the Loan Documents; provided, however, that upon the occurrence of an actual or deemed entry of an order for relief with respect to Borrower under the Bankruptcy Code of the United States, the obligation of each Lender to make Loans and any obligation of L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of Administrative Agent or any Lender. 9.03 Application of Funds. After the exercise of remedies provided for in Section 9.02 (or after the Loans have automatically become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso to Section 9.02), any
4925-1798-1140 v.13 92 amounts received on account of the Obligations shall, subject to the provisions of Sections 2.15 and 2.16, be applied by Administrative Agent in the following order: First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to Administrative Agent and amounts payable under Article III) payable to Administrative Agent in its capacity as such; Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders and L/C Issuer (including fees, charges and disbursements of counsel to the respective Lenders and L/C Issuer and amounts payable under Article III), ratably among them in proportion to the respective amounts described in this clause Second payable to them; Third, to payment of that portion of the Obligations constituting accrued and unpaid Letter of Credit Fees and interest on the Loans, L/C Borrowings and other Obligations, ratably among the Lenders and L/C Issuer in proportion to the respective amounts described in this clause Third payable to them; Fourth, to payment of that portion of the Obligations constituting (i) unpaid principal of the Loans and L/C Borrowings and (ii) breakage, termination or other payments due under any Swap Contract (that relates solely to the Obligations) between any Loan Party and Administrative Agent, any Lender or any Affiliate of Administrative Agent or a Lender, ratably among the Lenders, the applicable Affiliates (with respect to clause (ii)) and L/C Issuer in proportion to the respective amounts described in this clause Fourth held by them; Fifth, to Administrative Agent for the account of L/C Issuer, to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit to the extent not otherwise Cash Collateralized by Borrower pursuant to Sections 2.03 and 2.15; and Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to Borrower or as otherwise required by Law; provided that Excluded Swap Obligations (as defined in the Subsidiary Guaranty) with respect to any Subsidiary Guarantor shall not be paid with amounts received from such Subsidiary Guarantor or its assets, but appropriate adjustments shall be made with respect to payments from other Loan Parties to preserve the allocation to Obligations otherwise set forth in this Section 9.03. Subject to Sections 2.03 and 2.15, amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above. Article X. Administrative Agent 10.01 Appointment and Authority. Each of the Lenders and L/C Issuer hereby irrevocably appoints Bank of America to act on its behalf as Administrative Agent hereunder and under the other Loan Documents and authorizes Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of Administrative Agent, the Lenders and L/C Issuer, and neither Borrower nor any other Loan Party shall have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to
4925-1798-1140 v.13 93 Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties. 10.02 Rights as a Lender. The Person serving as 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 Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with Borrower or any Subsidiary thereof or other Affiliate thereof as if such Person were not Administrative Agent hereunder and without any duty to account therefor to the Lenders. 10.03 Exculpatory Provisions. Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, Administrative Agent: (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; (b) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that Administrative Agent is required to exercise as directed in writing by Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), provided that Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 11.01 and 9.02) or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and nonappealable judgment. Administrative Agent shall not be deemed to have knowledge of any Default, except with respect to those Defaults specified in Section 9.01(a), unless and until notice describing such Default is given in writing to Administrative Agent by Borrower, a Lender or L/C Issuer. 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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan
4925-1798-1140 v.13 94 Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article V or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to Administrative Agent. 10.04 Reliance by Administrative Agent. 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or L/C Issuer, Administrative Agent may presume that such condition is satisfactory to such Lender or L/C Issuer unless Administrative Agent shall have received notice to the contrary from such Lender or L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit. Administrative Agent may consult with legal counsel (who may be counsel for Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. 10.05 Delegation of Duties. Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by Administrative Agent. Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of 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. Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. 10.06 Resignation of Administrative Agent. (a) Administrative Agent may at any time give notice of its resignation to the Lenders, L/C Issuer and Borrower. Upon receipt of any such notice of resignation, Required Lenders shall have the right, in consultation with Borrower, to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by Required Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent may (but shall not be obligated to) on behalf of the Lenders and L/C Issuer, appoint a successor Administrative Agent meeting the qualifications set forth above. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date. (b) If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, Required Lenders may, to the extent permitted by applicable Law, by notice in writing to Borrower and such Person remove such Person as Administrative Agent and, in consultation with Borrower, appoint a successor. If no such successor shall have been so appointed by Required Lenders and shall have accepted such appointment within thirty (30) days (or such earlier day as shall be agreed by Required Lenders) (the “Removal Effective
4925-1798-1140 v.13 95 Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date. (c) With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (i) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (ii) except for any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through Administrative Agent shall instead be made by or to each Lender and L/C Issuer directly, until such time, if any, as Required Lenders appoint a successor Administrative Agent as provided for above. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or removed) Administrative Agent (other than as provided in Section 3.01(j) and other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section 10.06) . The fees payable by Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between Borrower and such successor. After the retiring or removed Administrative Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Article X and Section 11.04 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring or removed Administrative Agent was acting as Administrative Agent. (d) Any resignation by Bank of America as Administrative Agent pursuant to this Section 10.06 shall also constitute its resignation as L/C Issuer. If Bank of America resigns as an L/C Issuer, it shall retain all the rights, powers, privileges and duties of L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto, including the right to require the Lenders to make Daily SOFR Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03. Upon the appointment by Borrower of a successor L/C Issuer hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (i) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer, (ii) the retiring L/C Issuer, shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents, and (iii) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Bank of America to effectively assume the obligations of Bank of America with respect to such Letters of Credit. 10.07 Non-Reliance on Administrative Agent and Other Lenders. Each Lender and L/C Issuer acknowledges that it has, independently and without reliance upon Administrative Agent or any other Lender or any of their Related Parties 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 and L/C Issuer also acknowledges that it will, independently and without reliance upon Administrative Agent or any other Lender or any of their Related Parties 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 other Loan Document or any related agreement or any document furnished hereunder or thereunder.
4925-1798-1140 v.13 96 10.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the Bookrunners, or Arrangers listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as Administrative Agent, a Lender or L/C Issuer hereunder. 10.09 Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether Administrative Agent shall have made any demand on Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise: (a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, L/C Issuer and Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, L/C Issuer and Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, L/C Issuer and Administrative Agent under Section 2.03, 2.08 and 11.04) allowed in such judicial proceeding; and (b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and L/C Issuer to make such payments to Administrative Agent and, in the event that Administrative Agent shall consent to the making of such payments directly to the Lenders and L/C Issuer, to pay to Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of Administrative Agent and its agents and counsel, and any other amounts due Administrative Agent under Sections 2.08 and 11.04. Nothing contained herein shall be deemed to authorize Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or L/C Issuer to authorize Administrative Agent to vote in respect of the claim of any Lender or L/C Issuer in any such proceeding. 10.10 Guaranty Matters. The Lenders and L/C Issuer irrevocably authorize Administrative Agent, at the written request of Borrower, to release any Subsidiary Guarantor from its obligations under any Subsidiary Guaranty if (a)(i) such Subsidiary Guarantor no longer owns or leases an Unencumbered Property (or owns any of the Equity Interest in any Subsidiary of Borrower that owns or leases an Unencumbered Property) or (ii) Borrower or Parent attains an Investment Grade Rating, in which case the released Subsidiary Guarantors shall not guarantee any other Unsecured Indebtedness; (b) no Default exists before and after giving effect thereto; (c) all representations and warranties of Borrower and each other Loan Party contained in Article VI or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (without duplication of any materiality qualifiers therein) on and as of the date of such requested release after giving effect thereto, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date; and (d) the Loan Parties, immediately following such removal, are in covenant compliance with all relevant financial covenants as of the most-recent fiscal quarter calculated on a pro forma basis assuming that such Property is no longer an Unencumbered Property, as evidenced by a Compliance Certificate duly completed and
4925-1798-1140 v.13 97 delivered by a Responsible Officer. Upon Borrower’s request and satisfaction of the conditions set forth above, Administrative Agent agrees to execute and deliver to Borrower, within ten (10) Business Days of Administrative Agent’s receipt of Borrower’s request, a release of the applicable Subsidiary Guarantor from the Subsidiary Guaranty. Upon request by Administrative Agent at any time, Required Lenders will confirm in writing Administrative Agent’s authority to release any Subsidiary Guarantor from its obligations under the Subsidiary Guaranty executed by such Subsidiary Guarantor pursuant to this Section 10.10. 10.11 Lender ERISA Representations. (a) Each Lender represents and warrants, as of the date such Person became a Lender party hereto, to, and 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, Administrative Agent, Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of 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 in connection with the Loans, the Letters of Credit or the Commitments, (ii) the transaction exemption set forth in one or more PTEs, such as PTE 84- 14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96- 23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, (iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Section VI of PTE 84-14) that (i) is not ineligible pursuant to Section I(g) of PTE 84-14 and (ii) has satisfied the requirements of Section I(k) 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 (f) of Section I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Section 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 Administrative Agent, in its sole discretion, and such Lender. (b) In addition, unless Section 10.11(a)(i) is true with respect to a Lender or such Lender has not provided another representation, warranty and covenant as Section 10.11(a)(iv), 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, Administrative Agent, Arrangers
4925-1798-1140 v.13 98 and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of Borrower or any other Loan Party, that: (i) none of Administrative Agent, any Arranger or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender (including in connection with the reservation or exercise of any rights by Administrative Agent under this Agreement, any Loan Document or any documents related to hereto or thereto), (ii) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21) and is a bank, an insurance carrier, an investment adviser, a broker-dealer or other person that holds, or has under management or control, total assets of at least $50 million, in each case as described in 29 CFR § 2510.3- 21(c)(1)(i)(A)-(E), (iii) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies (including in respect of the Obligations), (iv) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is a fiduciary under ERISA or the Code, or both, with respect to the Loans, the Letters of Credit, the Commitments and this Agreement and is responsible for exercising independent judgment in evaluating the transactions hereunder, and (v) no fee or other compensation is being paid directly to Administrative Agent, any Arranger or any their respective Affiliates for investment advice (as opposed to other services) in connection with the Loans, the Letters of Credit, the Commitments or this Agreement. (c) Administrative Agent and each Arranger hereby informs the Lenders that each such Person is not undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Letters of Credit, the Commitments and this Agreement, (ii) may recognize a gain if it extended the Loans, the Letters of Credit or the Commitments for an amount less than the amount being paid for an interest in the Loans, the Letters of Credit or the Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing. 10.12 Recovery of Erroneous Payments. Without limitation of any other provision in this Agreement, if at any time Administrative Agent makes a payment hereunder in error to any Lender or L/C
4925-1798-1140 v.13 99 Issuer (the “Credit Party”), whether or not in respect of an Obligation due and owing by Borrower at such time, where such payment is a Rescindable Amount, then in any such event, each Credit Party receiving a Rescindable Amount severally agrees to repay to Administrative Agent forthwith on demand the Rescindable Amount received by such Credit Party in immediately available funds in the currency so received, with interest thereon, for each day from and including the date such Rescindable Amount is received by it to but excluding the date of payment to Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by Administrative Agent in accordance with banking industry rules on interbank compensation. Each Credit Party irrevocably waives any and all defenses, including any “discharge for value” (under which a creditor might otherwise claim a right to retain funds mistakenly paid by a third party in respect of a debt owed by another) or similar defense to its obligation to return any Rescindable Amount. Administrative Agent shall inform each Credit Party promptly upon determining that any payment made to such Credit Party comprised, in whole or in part, a Rescindable Amount. Article XI. Miscellaneous 11.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by Borrower or any other Loan Party therefrom, shall be effective unless in writing signed by Required Lenders and Borrower or the applicable Loan Party, as the case may be, and acknowledged by Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such amendment, waiver or consent shall: (a) waive any condition set forth in Section 5.01 (other than Section 5.01(d)) without the written consent of each Lender; (b) without limiting the generality of the first paragraph of this Section 11.01, waive any condition set forth in Section 5.02 as to any Credit Extension under a particular Facility without the written consent of the Required Revolving Lenders, the Required Term A-1 Lenders or the Required Term A-2 Lenders, as the case may be; (c) except in accordance with Section 2.13, extend or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 9.02) without the written consent of such Lender; (d) except in accordance with Section 2.13, postpone any date fixed by this Agreement or any other Loan Document for any payment or mandatory prepayment of principal, interest, fees or other amounts due to the Lenders (or any of them) hereunder or under any other Loan Document without the written consent of each Lender directly affected thereby; (e) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or any fees or other amounts payable hereunder or under any other Loan Document, without the written consent of each Lender directly affected thereby; provided, however, that only the consent of Required Lenders shall be necessary to (i) amend the definition of “Default Rate” or to waive any obligation of Borrower to pay interest or Letter of Credit Fees at the Default Rate or (ii) amend any financial covenant in the Loan Documents including Section 8.14 (or any defined term used therein) even if the effect of such amendment would be to reduce the rate of interest on any Loan or L/C Borrowing or to reduce any fee payable under the Loan Documents); (f) change (i) Section 9.03 or 2.12 in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender directly affected thereby; or
4925-1798-1140 v.13 100 (ii) the order of application of any reduction in the Commitments or any prepayment of Loans among the Facilities from the application thereof set forth in the applicable provisions of Section 2.05(c) in any manner that materially and adversely affects the Lenders under a Facility without the written consent of (A) if such Facility is the Term A-1 Facility, the Required Term A- 1 Lenders, (B) if such Facility is the Term A-2 Facility, the Required Term A-2 Lenders, and (C) if such Facility is the Revolving Credit Facility, the Required Revolving Lenders; (g) subordinate, or have the effect of subordinating, the Obligations hereunder to any other Indebtedness of Borrower without the written consent of each Lender directly affected thereby; (h) change (i) any provision of this Section 11.01 or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder (other than the definitions specified in clause (ii) of this Section 11.01(h)), without the written consent of each Lender; or (ii) the definition of “Required Revolving Lenders”, “Required Term A-1 Lenders” or “Required Term A-2 Lenders” without the written consent of each Lender under the applicable Facility; (i) release all or substantially all of the value of the Guaranties without the written consent of each Lender, except to the extent the release of any Subsidiary Guarantor is permitted pursuant to Sections 10.10 (in which case such release may be made by Administrative Agent acting alone); or (j) impose any greater restriction on the ability of any Lender under a Facility to assign any of its rights or obligations hereunder without the written consent of (i) if such Facility is the Term A-1 Facility, the Required Term A-1 Lenders, (ii) if such Facility is the Term A-2 Facility, the Required Term A-2 Lenders and (iii) if such Facility is the Revolving Credit Facility, the Required Revolving Lenders; and, provided further, that (i) no amendment, waiver or consent shall, unless in writing and signed by L/C Issuer in addition to the Lenders required above, affect the rights or duties of L/C Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by Administrative Agent in addition to the Lenders required above, affect the rights or duties of Administrative Agent under this Agreement or any other Loan Document; and (iii) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. 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 disproportionately adversely relative to other affected Lenders shall require the consent of such Defaulting Lender. Notwithstanding any provision herein to the contrary, this Agreement may be amended with the written consent of Administrative Agent, Parent and Borrower (i) to add one or more additional term loan facilities to this Agreement subject to the limitations in Section 2.14 and to permit the extensions of credit and all related obligations and liabilities arising in connection therewith from time to time outstanding to share ratably (or on a basis subordinated to the existing Facilities hereunder) in the benefits of this Agreement
4925-1798-1140 v.13 101 and the other Loan Documents with the obligations and liabilities from time to time outstanding in respect of the existing Facilities hereunder, and (ii) in connection with the foregoing, to permit, as deemed appropriate by Administrative Agent, the Lenders providing such additional credit facilities to participate in any required vote or action required to be approved by the Required Lenders or by any other number, percentage or class of Lenders hereunder. 11.02 Notices; Effectiveness; Electronic Communication. (a) Notices Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in subsection (b) below), 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 facsimile as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows: (i) if to Borrower, Administrative Agent, L/C Issuer, to the address, electronic mail address or telephone number specified for such Person on Schedule 11.02; and (ii) if to any other Lender, to the address, electronic mail address or telephone number specified in its Administrative Questionnaire (including, as appropriate, notices delivered solely to the Person designated by a Lender on its Administrative Questionnaire then in effect for the delivery of notices that may contain material non-public information relating to Borrower). Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices and other communications delivered through electronic communications to the extent provided in subsection (b) below, shall be effective as provided in such subsection (b). (b) Electronic Communications. Notices and other communications to the Lenders and L/C Issuer hereunder may be delivered or furnished by electronic communication (including e-mail, FpML messaging and Internet or intranet websites) pursuant to procedures approved by Administrative Agent, provided that the foregoing shall not apply to notices to any Lender or L/C Issuer pursuant to Article II if such Lender or L/C Issuer, as applicable, has notified Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. Administrative Agent, L/C Issuer or Borrower may each, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications. Unless Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefore; provided that, for both clauses (i) and (ii), if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice, email or
4925-1798-1140 v.13 102 communication shall be deemed to have been sent at the opening of business on the next business day for the recipient. (c) The Platform. 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, L/C Issuer 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 or notices through the Platform, any other electronic platform or electronic messaging service, or 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 any Loan Party, any Lender, any L/C Issuer or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages). (d) Change of Address, Etc. Each of Borrower, Administrative Agent and L/C Issuer may change its address or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address or telephone number for notices and other communications hereunder by notice to Borrower, Administrative Agent and L/C Issuer. In addition, each Lender agrees to notify Administrative Agent from time to time to ensure that Administrative Agent has on record (i) an effective address, contact name, telephone number, facsimile number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender agrees to cause at least one 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 applicable Law, 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 securities for purposes of United States Federal or state securities laws. (e) Reliance by Administrative Agent, L/C Issuer and Lenders. Administrative Agent, L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including telephonic or electronic Committed Loan Notices, Letter of Credit Applications) even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. Borrower shall indemnify Administrative Agent, L/C Issuer, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of Borrower. All telephonic notices to and other telephonic communications with
4925-1798-1140 v.13 103 Administrative Agent may be recorded by Administrative Agent, and each of the parties hereto hereby consents to such recording. 11.03 No Waiver; Cumulative Remedies; Enforcement. No failure by any Lender, L/C Issuer or Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided, and provided under each other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law. Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, Administrative Agent in accordance with Section 9.02 for the benefit of all the Lenders and L/C Issuer; provided, however, that the foregoing shall not prohibit (a) Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) L/C Issuer from exercising the rights and remedies that inure to its benefit (solely in its capacity as L/C Issuer) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in accordance with Section 11.08 (subject to the terms of Section 2.12), or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and provided, further, that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) Required Lenders shall have the rights otherwise ascribed to Administrative Agent pursuant to Section 9.02 and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to Section 2.12, any Lender may, with the consent of Required Lenders, enforce any rights and remedies available to it and as authorized by Required Lenders. 11.04 Expenses; Indemnity; Damage Waiver. (a) Costs and Expenses. Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by Administrative Agent and its Affiliates (including the reasonable fees, charges and disbursements of counsel for Administrative Agent), in connection with the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket expenses incurred by L/C Issuer 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 Administrative Agent, any Lender or L/C Issuer (including the fees, charges and disbursements of any counsel for Administrative Agent, any Lender or L/C Issuer), in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section, or (B) in connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit. (b) Indemnification by Borrower. Borrower shall indemnify Administrative Agent (and any sub-agent thereof), each Lender and L/C Issuer, 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
4925-1798-1140 v.13 104 (including the fees, charges and disbursements of any counsel for any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any Person (including Borrower or any other Loan Party) other than such Indemnitee and its Related Parties arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder, the consummation of the transactions contemplated hereby or thereby, or, in the case of Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents (including in respect of any matters addressed in Section 3.01), (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by L/C Issuer 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 Borrower or any of its Subsidiaries, or any Environmental Claim or Environmental Liability related in any way to any member of the Consolidated Group, 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, whether brought by a third party or by any member of the Consolidated Group, and regardless of whether any Indemnitee is a party thereto, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by Borrower or any other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if Borrower or such other Loan Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction. Without limiting the provisions of Section 3.01(d), this Section 11.04(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim. (c) Reimbursement by Lenders. To the extent that Borrower for any reason fails to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it to Administrative Agent (or any sub-agent thereof), L/C Issuer or any Related Party of any of the foregoing, each Lender severally agrees to pay to Administrative Agent (or any such sub-agent), L/C Issuer or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s share of the Total Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender), such payment to be made severally among them based on such Lenders’ Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought), provided further that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against Administrative Agent (or any such sub-agent), L/C Issuer in its capacity as such, or against any Related Party of any of the foregoing acting for Administrative Agent (or any such sub-agent), L/C Issuer in connection with such capacity. The obligations of the Lenders under this subsection (c) are subject to the provisions of Section 2.11(d). (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable Law, Borrower shall not assert, and hereby waives, and acknowledges that no other Person shall have, 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
4925-1798-1140 v.13 105 connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual damages resulting from the gross negligence or willful misconduct of such Indemnitee as determined by a final and nonappealable judgment of a court of competent jurisdiction. (e) Payments. All amounts due under this Section shall be payable not later than ten (10) Business Days after demand therefor. (f) Survival. The agreements in this Section 11.04 and the indemnity provisions of Section 11.02(e) shall survive the resignation of Administrative Agent, L/C Issuer, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations. 11.05 Payments Set Aside. To the extent that any payment by or on behalf of Borrower is made to Administrative Agent, L/C Issuer or any Lender, or Administrative Agent, L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by Administrative Agent, L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender and L/C Issuer severally agrees to pay to Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders and L/C Issuer under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement. 11.06 Successors and Assigns. (a) Successors and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that neither Borrower nor any other Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this Section, or (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (e) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of Administrative Agent, L/C Issuer and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
4925-1798-1140 v.13 106 (b) Assignments by Lenders. Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans (including for purposes of this subsection (b), participations in L/C Obligations) at the time owing to it); provided that any such assignment shall be subject to the following conditions: (i) Minimum Amounts. (A) in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to it or contemporaneous assignments to related Approved Funds that equal at least the amount specified in Section 11.06(b)(i)(B) in the aggregate or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and (B) in any case not described in Section 11.06(b)(i)(A), the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000 unless each of Administrative Agent and, so long as no Event of Default has occurred and is continuing, Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed). (ii) Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned, except that this clause (ii) shall not prohibit any Lender from assigning all or a portion of its rights and obligations under separate Facilities on a non-pro-rata basis; (iii) Required Consents. No consent shall be required for any assignment except to the extent required by subsection (b)(i)(B) of this Section 11.06 and, in addition: (A) the consent of Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of Default has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; provided that Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to Administrative Agent within five (5) Business Days after having received notice thereof; (B) the consent of Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect of (1) any Term Commitment or Revolving Credit Commitment if such assignment is to a Person that is not a Lender with a Commitment in respect of the applicable Facility, an Affiliate of such Lender or an Approved Fund with respect to such Lender or (2) any Term Loan to a Person that is not a Lender, an Affiliate of a Lender or an Approved Fund; and
4925-1798-1140 v.13 107 (C) the consent of L/C Issuer shall be required for any assignment in respect of the Revolving Credit Facility. (iv) Assignment and Assumption. The parties to each assignment shall execute and deliver to Administrative Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500; provided, however, that no such processing and recordation fee shall be payable in connection with an assignment to an Affiliate of a Lender and Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any other assignment. The assignee, if it is not a Lender, shall deliver to Administrative Agent an Administrative Questionnaire. (v) No Assignment to Certain Persons. No such assignment shall be made (A) to Borrower or any member of the Consolidated Group, or (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B), or (C) to a natural person. (vi) Certain Additional Payments. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of Borrower and Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to Administrative Agent, L/C Issuer or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs. Subject to acceptance and recording thereof by Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05, and 11.04 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Upon request, Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this
4925-1798-1140 v.13 108 Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with subsection (d) of this Section. (c) Register. Administrative Agent, acting solely for this purpose as an agent of Borrower (and such agency being solely for tax purposes), shall maintain at Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it (or the equivalent in electronic form) and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans and L/C Obligations 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 Borrower, Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice. (d) Participations. Any Lender may at any time, without the consent of, or notice to, Borrower or Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting Lender or Borrower or any of Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations) 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) Borrower, Administrative Agent, the Lenders and L/C Issuer shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 11.04(c) without regard to the existence of any participation. 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, waiver or other modification described in the first proviso to Section 11.01 that affects such Participant. Subject to subsection (b) of this Section, Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section (it being understood that the documentation required under Section 3.01(g) shall be delivered to the Lender who sells the participation) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Sections 3.06 and 11.13 as if it were an assignee under paragraph (b) of this Section and (B) shall not be entitled to receive any greater payment under Sections 3.01 or 3.04, with respect to any participation, than the Lender from whom it acquired the applicable participation would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at Borrower’s request and expense, to use reasonable efforts to cooperate with Borrower to effectuate the provisions of Section 3.06 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.08 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.12 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as an agent of Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall
4925-1798-1140 v.13 109 have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (e) Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. (f) Resignation as L/C Issuer after Assignment. Notwithstanding anything to the contrary contained herein, if at any time Bank of America assigns all of its Commitment and Loans pursuant to subsection (b) above, Bank of America may, upon thirty (30) days’ notice to Borrower and the Lenders, resign as L/C Issuer. In the event of any such resignation as L/C Issuer, Borrower shall be entitled to appoint from among the Lenders a successor L/C Issuer hereunder; provided, however, that no failure by Borrower to appoint any such successor shall affect the resignation of Bank of America as L/C Issuer. If Bank of America resigns as L/C Issuer, it shall retain all the rights, powers, privileges and duties of L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders to make Daily SOFR Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03. Upon the appointment of a successor L/C Issuer, (i) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer, and (ii) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Bank of America to effectively assume the obligations of Bank of America with respect to such Letters of Credit. 11.07 Treatment of Certain Information; Confidentiality. Each of Administrative Agent, the Lenders and L/C Issuer agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its and its Related Parties (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent required or requested by any regulatory authority purporting to have jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable Laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or any Eligible Assignee invited to be a Lender pursuant to Section 2.14(c) or (ii) any actual or prospective party (or its Related Parties) to any swap, derivative or other transaction under which payments are to be made by reference to Borrower and its obligations, this Agreement or payments hereunder, (g) on a confidential basis to (i) any rating agency in connection with rating Borrower or its Subsidiaries or the credit facilities provided
4925-1798-1140 v.13 110 hereunder or (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers or other market identifiers with respect to the credit facilities provided hereunder, (h) with the consent of Borrower or (i) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to Administrative Agent, any Lender, L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than Borrower. For purposes of this Section, “Information” means all information received from Borrower or any Subsidiary relating to Borrower or any Subsidiary or any of their respective businesses, other than any such information that is available to Administrative Agent, any Lender or L/C Issuer on a nonconfidential basis prior to disclosure by Borrower or any Subsidiary, provided that, in the case of information received from Borrower or any Subsidiary 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. Each of Administrative Agent, the Lenders and L/C Issuer acknowledges that (a) the Information may include material non-public information concerning Borrower or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in accordance with applicable Law, including United States Federal and state securities Laws. 11.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender, L/C Issuer and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender, L/C Issuer or any such Affiliate to or for the credit or the account of Borrower or any other Loan Party against any and all of the obligations of Borrower or such Loan Party now or hereafter existing under this Agreement or any other Loan Document to such Lender or L/C Issuer or their respective Affiliates, irrespective of whether or not such Lender, L/C Issuer or Affiliate shall have made any demand under this Agreement or any other Loan Document and although such obligations of Borrower or such Loan Party may be contingent or unmatured or are owed to a branch, office or Affiliate of such Lender or L/C Issuer different from the branch, office or Affiliate holding such deposit or obligated on such indebtedness; provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to Administrative Agent for further application in accordance with the provisions of Section 2.16 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of Administrative Agent, L/C Issuer and the Lenders, and (y) the Defaulting Lender shall provide promptly to Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender, L/C Issuer and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, L/C Issuer or their respective Affiliates may have. Each Lender and L/C Issuer agrees to notify Borrower and Administrative Agent promptly after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application. 11.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to Borrower. In determining whether the interest contracted for, charged, or received by Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted
4925-1798-1140 v.13 111 by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder. 11.10 Integration; Effectiveness. This Agreement, together with the other Loan Documents, comprises the complete and integrated agreement of the parties on the subject matter hereof and thereof and supersedes all prior agreements, written or oral, on such subject matter. In the event of any conflict between the provisions of this Agreement and those of any other Loan Document, the provisions of this Agreement shall control; provided that the inclusion of supplemental rights or remedies in favor of Administrative Agent or the Lenders in any other Loan Document shall not be deemed a conflict with this Agreement. Each Loan Document was drafted with the joint participation of the respective parties thereto and shall be construed neither against nor in favor of any party, but rather in accordance with the fair meaning thereof. Except as provided in Section 5.01, this Agreement shall become effective when it shall have been executed by Administrative Agent and when Administrative Agent shall have received counterparts hereof that, 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. 11.11 Survival of Representations and Warranties. All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by Administrative Agent and each Lender, regardless of any investigation made by Administrative Agent or any Lender or on their behalf and notwithstanding that Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding. 11.12 Severability. If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions of this Section 11.12, if and to the extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by Administrative Agent or L/C Issuer, as applicable, then such provisions shall be deemed to be in effect only to the extent not so limited. 11.13 Replacement of Lenders. If Borrower is entitled to replace a Lender pursuant to the provisions of Section 3.06, or if any Lender is a Defaulting Lender or a Non-Consenting Lender, then Borrower may, at its sole expense and effort, upon notice to such Lender and Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 11.06), all of its interests, rights (other than its existing rights to payments pursuant to Sections 3.01 and 3.04) and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that:
4925-1798-1140 v.13 112 (a) Borrower shall have paid to Administrative Agent the assignment fee specified in Section 11.06(b); (b) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.05) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or Borrower (in the case of all other amounts); (c) in the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made pursuant to Section 3.01, such assignment will result in a reduction in such compensation or payments thereafter; (d) such assignment does not conflict with applicable Laws; and (e) in the case of an assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the applicable amendment, waiver or consent. A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling Borrower to require such assignment and delegation cease to apply. 11.14 Governing Law; Jurisdiction; Etc. (a) GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. (b) SUBMISSION TO JURISDICTION. BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST ADMINISTRATIVE AGENT, ANY LENDER, L/C ISSUER, OR ANY RELATED PARTY OF THE FOREGOING IN ANY WAY RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE
4925-1798-1140 v.13 113 CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT ADMINISTRATIVE AGENT, ANY LENDER OR L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION. (c) WAIVER OF VENUE. BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY 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 APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT. (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW. 11.15 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY 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 OR 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 PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON 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 AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. 11.16 No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), Borrower and each other Loan Party acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i)(A) the arranging and other services regarding this Agreement provided by Administrative Agent and Arrangers, and the Lenders are arm’s- length commercial transactions between Borrower , each other Loan Party and their respective Affiliates, on the one hand, and Administrative Agent and Arrangers, and the Lenders, on the other hand, (B) each of Borrower and the other Loan Parties has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) Borrower and each other Loan Party is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii)(A) Administrative Agent, each Arranger and each Lender is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for Borrower, any other Loan Party or
4925-1798-1140 v.13 114 any of their respective Affiliates, or any other Person and (B) neither Administrative Agent, any Arranger nor any Lender has any obligation to Borrower, any other Loan Party or any of their respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) Administrative Agent, Arrangers and the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of Borrower, the other Loan Parties and their respective Affiliates, and neither Administrative Agent, any Arranger nor any Lender has any obligation to disclose any of such interests to Borrower, any other Loan Party or any of their respective Affiliates. To the fullest extent permitted by law, each of Borrower and the other Loan Parties hereby waives and releases any claims that it may have against Administrative Agent and Arrangers or any Lender with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby. 11.17 Electronic Execution. This Agreement, any Loan Document, any Committed Loan Notice and any other document, amendment, approval, consent, information, notice, certificate, request, statement, disclosure or authorization related to this Agreement (each a “Communication”), including Communications required to be in writing, may be in the form of an Electronic Record and may be executed using Electronic Signatures. Each of the Loan Parties and each of Administrative Agent and the Lender Parties agrees that any Electronic Signature on or associated with any Communication shall be valid and binding on such Person to the same extent as a manual, original signature, and that any Communication entered into by Electronic Signature, will constitute the legal, valid and binding obligation of such Person enforceable against such Person in accordance with the terms thereof to the same extent as if a manually executed original signature was delivered. Any Communication may be executed in as many counterparts as necessary or convenient, including both paper and electronic counterparts, but all such counterparts are one and the same Communication. For the avoidance of doubt, the authorization under this paragraph may include, without limitation, use or acceptance of a manually signed paper Communication which has been converted into electronic form (such as scanned into PDF format), or an electronically signed Communication converted into another format, for transmission, delivery and/or retention. Administrative Agent and each of the Lender Parties may, at its option, create one or more copies of any Communication in the form of an imaged Electronic Record (“Electronic Copy”), which shall be deemed created in the ordinary course of such Person’s business, and destroy the original paper document. All Communications in the form of an Electronic Record, including an Electronic Copy, shall be considered an original for all purposes, and shall have the same legal effect, validity and enforceability as a paper record. Notwithstanding anything contained herein to the contrary, neither Administrative Agent nor any L/C Issuer is under any obligation to accept an Electronic Signature in any form or in any format unless expressly agreed to by such Person pursuant to procedures approved by it; provided, further, without limiting the foregoing, (a) to the extent Administrative Agent and/or L/C Issuer has agreed to accept such Electronic Signature, Administrative Agent and each of the Lender Parties shall be entitled to rely on any such Electronic Signature purportedly given by or on behalf of any Loan Party and/or any Credit Party without further verification and (b) upon the request of Administrative Agent or any Credit Party, any Electronic Signature shall be promptly followed by such manually executed counterpart. For purposes hereof, “Electronic Record” and “Electronic Signature” shall have the meanings assigned to them, respectively, by 15 USC §7006, as it may be amended from time to time. Neither Administrative Agent nor L/C Issuer shall be responsible for or have any duty to ascertain or inquire into the sufficiency, validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document (including, for the avoidance of doubt, in connection with Administrative Agent’s or L/C Issuer’s reliance on any Electronic Signature transmitted by telecopy, emailed .pdf or any other electronic means). Administrative Agent and L/C Issuer shall be entitled to rely on, and shall incur no liability under or in respect of this Agreement or any other Loan Document by acting upon, any Communication (which writing may be a fax, any electronic message, Internet or intranet website posting or other distribution or signed using an Electronic Signature) or any statement made to it orally or
4925-1798-1140 v.13 115 by telephone and believed by it to be genuine and signed or sent or otherwise authenticated (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the maker thereof). Each of the Loan Parties and each Credit Party hereby waives (i) any argument, defense or right to contest the legal effect, validity or enforceability of this Agreement, any other Loan Document based solely on the lack of paper original copies of this Agreement, such other Loan Document, and (ii) waives any claim against Administrative Agent, each Credit Party and each Related Party for any liabilities arising solely from Administrative Agent’s and/or any Credit Party’s reliance on or use of Electronic Signatures, including any liabilities arising as a result of the failure of the Loan Parties to use any available security measures in connection with the execution, delivery or transmission of any Electronic Signature. 11.18 USA PATRIOT Act. Each Lender that is subject to the 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 “Act”), it is required to obtain, verify and record information that identifies the Loan Parties, which information includes the name and address of the Loan Parties and other information that will allow such Lender or Administrative Agent, as applicable, to identify the Loan Parties in accordance with the Act. Borrower shall, and shall cause all other Loan Parties to, 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 Act. 11.19 Time of the Essence. Time is of the essence of the Loan Documents. 11.20 Acknowledgement and Consent to Bail-In of Affected Financial Institution. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Lender that is an Affected 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 the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by: (a) the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any Lender that is an EEA Financial Institution; and (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 Affected 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 the applicable Resolution Authority. 11.21 Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any Swap Contract or any other agreement or instrument that is a QFC (such support, “QFC Credit Support”, and each such QFC, a
4925-1798-1140 v.13 116 “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States): (a) In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support. (b) As used in this Section 11.21 the following terms have the following meanings: “BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party. “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §382.2(b). “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§252.81, 47.2 or 382.1, as applicable. “QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D). 11.22 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES. 11.23 Restatement of Existing Credit Agreement. The parties hereto agree that as of the Closing Date: (a) the Obligations hereunder represent the amendment, restatement, extension, and
4925-1798-1140 v.13 117 consolidation of the “Obligations” under (and as defined in) the Existing Credit Agreement; (b) this Agreement amends, restates, supersedes, and replaces the Existing Credit Agreement in its entirety; and (c) the Guaranties executed pursuant to this Agreement amend, restate, supersede, and replace the “Guaranties” executed pursuant to (and as defined in) the Existing Credit Agreement. On the Closing Date, (i) the commitment of any “Lender” under the Existing Credit Agreement that is not continuing as a Lender hereunder shall terminate and the loans of any “Lender” under the Existing Credit Agreement that is not continuing as a Lender shall be repaid with the proceeds of the Loans hereunder and (ii) Administrative Agent shall reallocate the Commitments and Loans hereunder to reflect the terms hereof, such reallocation being hereby deemed effective simultaneous with the effectiveness of this Agreement. [Remainder of page intentionally blank. Signature pages follow.]
ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A., as Administrative Agent By: Signature Page to Fourth Amended and Restated Credit Agreement Nam erA Title: Senior Vice President
LENDERS: BANK OF AMERICA, N.A.. as L/C Issuer and a Lender By: sident Signature Page to Fourth Amended and Restated Credit Agreement Nam^fA-I^^L. Pel Title: SeniorVfue-
M&T BANK, as a Lender By: Signature Page to Fourth Amended and Restated Credit Agreement Jeffrey Prather Senior Vice President
TD BANK, N.A., as a Lender By: Internal / Interne Signature Page to Fourth Amended and Restated Credit Agreement Name: Michael Duganich Title: Vice President
Signature Page to Fourth Amended and Restated Credit Agreement TRUIST BANK, as a Lender By: Name: C. Vincent Hughes, Jr. Title: Director
ATLANTIC UNION BANK, LTD., as a Lender By; Signature Page to Fourth Amended and Restated Credit Agreement Name: Ricky Frantz Title: Senior Vice President
BANK UNITED, N.A., as a Lender Signature Page to Fourth Amended and Restated Credit Agreement By: : Title:
Signature Page to Fourth Amended and Restated Credit Agreement PINNACLE BANK, as a Lender By: Name: Zachary Braun Title: Managing Director
4919-4457-0839 v.4 Schedule 1.01 SCHEDULE 1.01 EXISTING LETTERS OF CREDIT None.
4919-4457-0839 v.4 Schedule 2.01 SCHEDULE 2.01 COMMITMENTS AND APPLICABLE PERCENTAGES Lender Revolving Credit Commitment Applicable Revolving Credit Percentage Term A-1 Commitment Applicable Term A-1 Loan Percentage Term A-2 Commitment Applicable Term A-2 Loan Percentage Total Bank of America, N.A. $29,000,000.00 19.333333334% $38,000,000.00 19.000000000% $38,000,000.00 19.000000000% $105,000,000.00 M&T Bank $23,250,000.00 15.500000000% $30,875,000.00 15.437500000% $30,875,000.00 15.437500000% $85,000,000.00 PNC Bank, National Association $23,250,000.00 15.500000000% $30,875,000.00 15.437500000% $30,875,000.00 15.437500000% $85,000,000.00 TD Bank, N.A. $23,250,000.00 15.500000000% $30,875,000.00 15.437500000% $30,875,000.00 15.437500000% $85,000,000.00 Truist Bank $23,250,000.00 15.500000000% $30,875,000.00 15.437500000% $30,875,000.00 15.437500000% $85,000,000.00 Atlantic Union Bank, Ltd. $13,500,000.00 9.000000000% $18,250,000.00 9.125000000% $18,250,000.00 9.125000000% $50,000,000.00 Bank United, N.A. $8,000,000.00 5.333333333% $11,000,000.00 5.500000000% $11,000,000.00 5.500000000% $30,000,000.00 Pinnacle Bank $6,500,000.00 4.333333333% $9,250,000.00 4.625000000% $9,250,000.00 4.625000000% $25,000,000.00 Total $150,000,000.00 100.000000000% $200,000,000.00 100.000000000% $200,000,000.00 100.000000000% $550,000,000.00
4919-4457-0839 v.4 Schedule 6.06 SCHEDULE 6.06 LITIGATION None.
4919-4457-0839 v.4 Schedule 6.09 SCHEDULE 6.09 ENVIRONMENTAL MATTERS No environmental concerns; however, various properties are eligible for Brownsfields tax credits: 1. Wills Wharf Baltimore LLC 2. Harding Place Residential Partners, LLC 3. Wendover Village Greensboro, LLC 4. Wendover Village Greensboro II, LLC 5. Wendover Village III, LLC
4919-4457-0839 v.4 Schedule 6.13 SCHEDULE 6.13 SUBSIDIARIES; OTHER EQUITY INVESTMENTS; EQUITY INTERESTS IN BORROWER Part (a) [See attached.]
Entity Equity Percentage Owned by Parent 1023 Roswell, LLC 100% 1300 Thames Street Office, LLC 100% 660 Delray Beach, LLC 100% 660 Delray Beach MC, LLC 100% A/H Harrisonburg Regal LLC 100% AH Columbus II, LLC 100% AH Greentree, LLC 100% AH Sandbridge, LLC 100% AHP Holding, Inc. 100% Armada Hoffler Tower 4, LLC 100% Armada/Hoffler Block 8 Associates, LLC 100% Armada Hoffler Manager, LLC 100% Armada Hoffler JV Manager, LLC 100% Baltimore Parcel 2E Holding, LLC 100% Baltimore Parcel 2E, LLC 100% Baltimore Parcel 3 Holding, LLC 100% Baltimore Parcel 3, LLC 100% Broad Creek PH. I, LLC 100% Broad Creek PH. III, LLC 100% Broadmoor Plaza Indiana, LLC 100% Brooks Crossing II, LLC 100% BSE/AH Blacksburg Apartments, LLC 100% Columbus Tower, LLC 100% Columbus Town Center II, LLC 100% Columbus Town Center, LLC 100% Dimmock Square Marketplace, LLC 100% Ferrell Parkway Associates, LLC 100% Gainesville Development II, LLC 100% Gainesville Development, LLC 100% Greenbrier Square Chesapeake, LLC 100% Greenbrier Technology Center II Associates, LLC 100% Hanbury Village II, LLC 100% Harding Place Residential Partners, LLC 100% Hilltop Laskin, LLC 100% HT Tyre Neck, LLC 100% Interlock Atlanta, LLC 100% Kennesaw Holding, LLC 100% Lexington at Hope Ferry, LLC 100% North Hampton Market South Carolina, LLC 100% North Pointe-CGL, LLC 100% North Pointe Development Associates, LLC 100% Schedule 6.13
North Pointe Development Associates, LP 100% North Pointe Outparcels, L.L.C. 100% North Pointe Ph. I Limited Partnership 100% North Pointe VW4, LLC 100% OCC Commercial, LLC 100% Overlook Village Asheville, LLC 100% Parkway Centre Moultrie, LLC 100% Paterson Place Durham, LLC 100% Perry Hall Maryland LLC 100% Providence Plaza Charlotte, LLC 100% Red Mill Central, LLC 100% Red Mill North, LLC 100% Red Mill Outparcels, LLC 100% Red Mill South, LLC 100% Red Mill West, LLC 100% South Square Durham, LLC 100% Southern Post, LLC 100% Southgate Square Virginia, LLC 100% Southshore Pointe, LLC 100% TCA 10 GP, LLC 100% TCA Block 4 Retail, LLC 100% TCA Block 6, LLC 100% TCA Block 11 Office, LLC 100% Town Center Associates 12, LLC 100% Town Center Associates 7, LLC 100% Town Center Associates 9, LLC 100% Town Center Associates, LLC 100% Town Center Block 9 Owners, LLC 100% Town Center Pembroke TIC, LLC 100% Town Center Pembroke, LLC 100% Wendover Village Greensboro II, LLC 100% Wendover Village Greensboro, LLC 100% Wendover Village III, LLC 100% Wills Wharf Baltimore LLC 100% Southeast Commerce Associates II, LLC 65% Lightfoot Marketplace Shopping Center, LLC 60% Harbor Point Parcel 2 Holdings, LLC 90% Kennesaw Pad D Apartments, LLC 95% Harbor Point Parcel 3 Development, LLC 50%
4919-4457-0839 v.4 Schedule 6.13 Part (b) None.
4919-4457-0839 v.4 Schedule 8.01 SCHEDULE 8.01 EXISTING LIENS None.
4919-4457-0839 v.4 Schedule 8.02 SCHEDULE 8.02 EXISTING INDEBTEDNESS [See attached.]
SCHEDULE 8.02 Entity Name Description of Debt Lender Original Loan Amount Transaction Date Maturity Town Center Associates 9, LLC Premier Apartments and Retail PNC Bank (Originator), Federal Home Loan Mortgage Corporation $ 29,415,000 11/27/2024 12/1/2029 1300 Thames Street Office, LLC Thames Street Wharf Bank of America $ 71,000,000 9/30/2021 9/30/2031 Harbor Point Parcel 2 Holdings, LLC Constellation Building PNC Bank, TD Bank, Atlantic Union Bank* $ 121,800,000 10/28/2026 10/28/2029 Greenbrier Square Chesapeake, LLC Greenbrier Square New York Life Insurance Company $ 20,000,000 9/10/2021 10/10/2027 Lexington at Hope Ferry, LLC Lexington Square Transamerica Premier Life Insurance Company $ 15,000,000 8/28/2018 9/1/2028 Red Mill North, LLC Red Mill North Genworth Life Insurance Company $ 4,900,000 5/23/2019 12/31/2028 Harding Place Residential Partners, LLC Greenside Apartments Northwestern Mutual Life Insurance Company $ 34,000,000 12/12/2019 12/15/2029 BSE/AH Blacksburg Apartments, LLC Smith's Landing Berkadia $ 21,573,000 5/27/2018 6/1/2035 Gainesville Development, LLC** The Everly PNC Bank $ 30,000,000 12/20/2022 3/17/2027 EXISTING INDEBTEDNESS * Reflects refinancing of loan on October 28, 2026. Previous lenders were Bank of America, Huntington National Bank, and PNC Bank ** This loan is expected to be paid off on October 29, 2026 in conjunction with the sale of the collateral.
4919-4457-0839 v.4 Schedule 11.02 – Page 1 SCHEDULE 11.02 ADMINISTRATIVE AGENT’S OFFICE; CERTAIN ADDRESSES FOR NOTICE LOAN PARTIES: c/o AH Realty Trust, Inc. 222 Central Park Avenue, Suite 2100 Virginia Beach, VA 23462 Attn: Matthew T. Barnes-Smith Telephone Number: 757.567.0053 Email Address: mbarnessmith@ahrealtytrust.com Loan Party Taxpayer Identification Number 1. AH Realty Trust, Inc. 46 1214914 2. AH Realty Trust, LP 36 4745113 3. 1023 Roswell, LLC 36 4745113 4. 1300 Thames Street Office, LLC 36 4745113 5. 660 Delray Beach, LLC 36 4745113 6. 660 Delray Beach MC, LLC 36 4745113 7. A/H Harrisonburg Regal LLC 36 4745113 8. AH Columbus II, L.L.C. 36 4745113 9. AH Greentree, LLC 36 4745113 10. AH Sandbridge, LLC 36 4745113 11. AHP Holding, Inc. 36 4745113 12. Armada Hoffler Tower 4, L.L.C. 36 4745113 13. Armada/Hoffler Block 8 Associates, LLC 36 4745113 14. Armada Hoffler Manager, LLC 36 4745113 15. Armada Hoffler JV Manager, LLC 36 4745113 16. Baltimore Parcel 2E Holding, LLC 36 4745113 17. Baltimore Parcel 2E, LLC 36 4745113 18. Baltimore Parcel 3 Holding, LLC 36 4745113 19. Baltimore Parcel 3, LLC 36 4745113 20. Broad Creek PH. I, L.L.C. 36 4745113 21. Broad Creek Ph. III, L.L.C. 36 4745113 22. Broadmoor Plaza Indiana, LLC 36 4745113 23. Brooks Crossing II, LLC 36 4745113 24. BSE/AH Blacksburg Apartments, LLC 36 4745113 25. Columbus Tower, L.L.C. 36 4745113 26. Columbus Town Center, LLC 36 4745113 27. Columbus Town Center II, LLC 36 4745113 28. Dimmock Square Marketplace, LLC 36 4745113
4919-4457-0839 v.4 Schedule 11.02 – Page 2 29. Ferrell Parkway Associates, L.L.C. 36 4745113 30. Greenbrier Technology Center II Associates, LLC 36 4745113 31. Hanbury Village II, L.L.C. 36 4745113 32. Harding Place Residential Partners, LLC 36 4745113 33. Hilltop Laskin, LLC 36 4745113 34. HT Tyre Neck, LLC 36 4745113 35. Interlock Atlanta, LLC 36 4745113 36. Kennesaw Holding, LLC 36 4745113 37. Lexington at Hope Ferry, LLC 36 4745113 38. North Hampton Market South Carolina, LLC 36 4745113 39. North Pointe-CGL, LLC 36 4745113 40. North Pointe Development Associates, LLC 36 4745113 41. North Pointe Development Associates, LP 36 4745113 42. North Pointe Outparcels, L.L.C. 36 4745113 43. North Pointe Ph. I Limited Partnership 36 4745113 44. North Pointe VW4, L.L.C. 36 4745113 45. OCC Commercial, LLC 36 4745113 46. Overlook Village Asheville, LLC 36 4745113 47. Parkway Centre Moultrie, LLC 36 4745113 48. Paterson Place Durham, LLC 36 4745113 49. Perry Hall Maryland LLC 36 4745113 50. Providence Plaza Charlotte, LLC 36 4745113 51. Red Mill Central, LLC 36 4745113 52. Red Mill North, LLC 36 4745113 53. Red Mill Outparcels, LLC 36 4745113 54. Red Mill South, LLC 36 4745113 55. Red Mill West, LLC 36 4745113 56. South Square Durham, LLC 36 4745113 57. Southern Post, LLC 36 4745113 58. Southgate Square Virginia, LLC 36 4745113 59. Southshore Pointe, LLC 36 4745113 60. TCA 10 GP, LLC 36 4745113 61. TCA Block 11 Office, LLC 36 4745113 62. TCA Block 4 Retail, L.L.C. 36 4745113 63. TCA Block 6, LLC 36 4745113 64. Town Center Associates 12, LLC 36 4745113 65. Town Center Associates 7, L.L.C. 36 4745113 66. Town Center Associates 9, L.L.C. 36 4745113 67. Town Center Associates, LLC 36 4745113 68. Town Center Block 9 Owners, LLC 36 4745113
4919-4457-0839 v.4 Schedule 11.02 – Page 3 69. Town Center Pembroke TIC, LLC 36 4745113 70. Town Center Pembroke, LLC 36 4745113 71. Wendover Village III, LLC 36 4745113 72. Wendover Village Greensboro II, LLC 36 4745113 73. Wendover Village Greensboro, LLC 36 4745113 74. Wills Wharf Baltimore LLC 36 4745113 ADMINISTRATIVE AGENT: Administrative Agent’s Office (for payments and Requests for Credit Extensions): Bank of America, N.A. 900 W Trade St Mail Code: NC1-026-07-03 Charlotte, NC 28255 Attention: Amanda Artale Telephone: 980-386-4593 Electronic Mail: amanda.artale@bofa.com Ref: AH Realty Trust Other Notices as Administrative Agent: Bank of America, N.A. 900 W Trade St Mail Code: NC1-026-07-03 Charlotte, NC 28255 Attention: Amanda Artale Telephone: 980-386-4593 Electronic Mail: amanda.artale@bofa.com Ref: AH Realty Trust L/C ISSUER: Bank of America, N.A. 900 W Trade St Mail Code: NC1-026-07-03 Charlotte, NC 28255 Attention: Amanda Artale Telephone: 980-386-4593 Electronic Mail: amanda.artale@bofa.com Ref: AH Realty Trust
4916-0001-5317 v.5 Exhibit A EXHIBIT A FORM OF COMMITTED LOAN NOTICE Date: ___________, _____ To: Bank of America, N.A., as Administrative Agent Ladies and Gentlemen: Reference is made to that certain Fourth Amended and Restated Credit Agreement, dated as of October 28, 2026 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as therein defined), among AH Realty Trust, LP, a Virginia limited partnership (“Borrower”), AH Realty Trust, Inc., a Maryland corporation, the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent and L/C Issuer. The undersigned hereby requests (select one): A Borrowing of [Revolving Credit][Term A-1][Term A-2] Loans A conversion of [Revolving Credit][Term A-1][Term A-2] Loans from one Type to the other A continuation of Term SOFR Rate Loans 1. On (a Business Day). 2. In the amount of $ . 3. Comprised of [Daily SOFR Rate] [Term SOFR Rate] [Base Rate] Loans. 4. For Term SOFR Rate Loans: with an Interest Period of [1] [3] month(s). The Revolving Credit Borrowing, if any, requested herein complies with the proviso to the first sentence of Section 2.01(c) of the Agreement. The Borrowing of any loan proceeds should be credited to Bank of America Account ending in [0118]. [SIGNATURE PAGE FOLLOWS]
4916-0001-5317 v.5 Exhibit A BORROWER: AH REALTY TRUST, LP By: AH REALTY TRUST, INC., its general partner By: Name: Title:
4916-0001-5317 v.5 Exhibit B-1 – Page 1 EXHIBIT B-1 FORM OF REVOLVING CREDIT NOTE FOR VALUE RECEIVED, the undersigned (“Borrower”), hereby promises to pay to [_____________________] or registered assigns (“Lender”), in accordance with the provisions of the Agreement (as hereinafter defined), the principal amount of each Revolving Credit Loan from time to time made by Lender to Borrower under that certain Fourth Amended and Restated Credit Agreement, dated as of October 28, 2026 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as therein defined), among Borrower, AH Realty Trust, Inc., a Maryland corporation, the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent and L/C Issuer. Borrower promises to pay interest on the unpaid principal amount of each Revolving Credit Loan from the date of such Revolving Credit Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Agreement. All payments of principal and interest shall be made to Administrative Agent for the account of Lender in Dollars in immediately available funds at Administrative Agent’s Office. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Agreement. This Revolving Credit Note is one of the Revolving Credit Notes referred to in the Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. This Revolving Credit Note is also entitled to the benefits of the Guarantees of the Guarantors. Upon the occurrence and continuation of one or more of the Events of Default specified in the Agreement, all amounts then remaining unpaid on this Revolving Credit Note shall become, or may be declared to be, immediately due and payable all as provided in the Agreement. Revolving Credit Loans made by Lender shall be evidenced by one or more loan accounts or records maintained by Lender in the ordinary course of business. Lender may also attach schedules to this Revolving Credit Note and endorse thereon the date, amount and maturity of its Revolving Credit Loans and payments with respect thereto. Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Revolving Credit Note. THIS REVOLVING CREDIT NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. [SIGNATURE PAGE FOLLOWS]
4916-0001-5317 v.5 Exhibit B-1 – Page 2 BORROWER: AH REALTY TRUST, LP By: AH REALTY TRUST, INC., its general partner By: Name: Title:
4916-0001-5317 v.5 Exhibit B-1 – Page 3 LOANS AND PAYMENTS WITH RESPECT THERETO Date Type of Loan Made Amount of Loan Made End of Interest Period Amount of Principal or Interest Paid This Date Outstanding Principal Balance This Date Notation Made By
4916-0001-5317 v.5 Exhibit B-2 – Page 1 EXHIBIT B-2 FORM OF TERM A-1 NOTE FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to _____________________ or registered assigns (the “Lender”), in accordance with the provisions of the Agreement (as hereinafter defined), the principal amount of each Term A-1 Loan from time to time made by the Lender to the Borrower under that certain Fourth Amended and Restated Credit Agreement, dated as of October 28, 2026 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as therein defined), among Borrower, AH Realty Trust, Inc., a Maryland corporation, the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent and L/C Issuer. Borrower promises to pay interest on the unpaid principal amount of each Term A-1 Loan from the date of such Term A-1 Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Agreement. All payments of principal and interest shall be made to Administrative Agent for the account of Lender in Dollars in immediately available funds at Administrative Agent’s Office. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Agreement. This Term A-1 Note is one of the Term Notes referred to in the Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. This Term A-1 Note is also entitled to the benefits of the Guarantees of the Guarantors. Upon the occurrence and continuation of one or more of the Events of Default specified in the Agreement, all amounts then remaining unpaid on this Term A-1 Note shall become, or may be declared to be, immediately due and payable all as provided in the Agreement. Each Term A-1 Loan made by Lender shall be evidenced by one or more loan accounts or records maintained by Lender in the ordinary course of business. Lender may also attach schedules to this Term A-1 Note and endorse thereon the date, amount and maturity of its Term A-1 Loans and payments with respect thereto. Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Term A-1 Note. THIS TERM A-1 NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. [SIGNATURE PAGE FOLLOWS]
4916-0001-5317 v.5 Exhibit B-2 – Page 2 BORROWER: AH REALTY TRUST, LP By: AH REALTY TRUST, INC., its general partner By: Name: Title:
4916-0001-5317 v.5 Exhibit B-2 – Page 3 LOANS AND PAYMENTS WITH RESPECT THERETO Date Type of Loan Made Amount of Loan Made End of Interest Period Amount of Principal or Interest Paid This Date Outstanding Principal Balance This Date Notation Made By
4916-0001-5317 v.5 Exhibit B-3 – Page 1 EXHIBIT B-3 FORM OF TERM A-2 NOTE FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to _____________________ or registered assigns (the “Lender”), in accordance with the provisions of the Agreement (as hereinafter defined), the principal amount of each Term A-2 Loan from time to time made by the Lender to the Borrower under that certain Fourth Amended and Restated Credit Agreement, dated as of October 28, 2026 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as therein defined), among Borrower, AH Realty Trust, Inc., a Maryland corporation, the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent and L/C Issuer. Borrower promises to pay interest on the unpaid principal amount of each Term A-2 Loan from the date of such Term A-2 Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Agreement. All payments of principal and interest shall be made to Administrative Agent for the account of Lender in Dollars in immediately available funds at Administrative Agent’s Office. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Agreement. This Term A-2 Note is one of the Term Notes referred to in the Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. This Term A-2 Note is also entitled to the benefits of the Guarantees of the Guarantors. Upon the occurrence and continuation of one or more of the Events of Default specified in the Agreement, all amounts then remaining unpaid on this Term A-2 Note shall become, or may be declared to be, immediately due and payable all as provided in the Agreement. Each Term A-2 Loan made by Lender shall be evidenced by one or more loan accounts or records maintained by Lender in the ordinary course of business. Lender may also attach schedules to this Term A-2 Note and endorse thereon the date, amount and maturity of its Term A-2 Loans and payments with respect thereto. Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Term A-2 Note. THIS TERM A-2 NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. [SIGNATURE PAGE FOLLOWS]
4916-0001-5317 v.5 Exhibit B-3 – Page 2 BORROWER: AH REALTY TRUST, LP By: AH REALTY TRUST, INC., its general partner By: Name: Title:
4916-0001-5317 v.5 Exhibit B-3 – Page 3 LOANS AND PAYMENTS WITH RESPECT THERETO Date Type of Loan Made Amount of Loan Made End of Interest Period Amount of Principal or Interest Paid This Date Outstanding Principal Balance This Date Notation Made By 1.
4916-0001-5317 v.5 Exhibit D-1 – Page 1 EXHIBIT D-1 FORM OF ASSIGNMENT AND ASSUMPTION This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between [the][each]3 Assignor identified in item 1 below ([the][each, an] “Assignor”) and [the][each]4 Assignee identified in item 2 below ([the][each, an] “Assignee”). [It is understood and agreed that the rights and obligations of [the Assignors][the Assignees]5 hereunder are several and not joint.]6 Capitalized terms used but not defined herein shall have the meanings given to them in the Fourth Amended and Restated Credit Agreement identified below (the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full. For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and assumes from [the Assignor][the respective Assignors], subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’] rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of [the Assignor][the respective Assignors] under the respective facilities identified below (including, without limitation, the Letters of Credit included in such facilities7) and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of [the Assignor (in its capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)] against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as [the][an] “Assigned Interest”). Each such sale and assignment is without recourse to [the][any] Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by [the][any] Assignor. 1. Assignor[s]: 3 For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose the second bracketed language. 4 For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language. 5 Select as appropriate. 6 Include bracketed language if there are either multiple Assignors or multiple Assignees. 7 Include all applicable subfacilities.
4916-0001-5317 v.5 Exhibit D-1 – Page 2 2. Assignee[s]: [for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]] 3. Borrower: AH Realty Trust, LP, a Virginia limited partnership 4. Administrative Agent: Bank of America, N.A., as administrative agent under the Credit Agreement 5. Credit Agreement: Fourth Amended and Restated Credit Agreement, dated as of October 28, 2026, among AH Realty Trust, LP, a Virginia limited partnership, AH Realty Trust, Inc., a Maryland corporation, the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent and L/C Issuer 6. Assigned Interest[s]: Assignor[s]8 Assignee[s]9 Facility Assigned Aggregate Amount of Commitment for all Lenders10 Amount of Commitment Assigned Percentage Assigned of Commitment 11 CUSIP Number $____________ $__________ _________% $____________ $__________ _________% $____________ $__________ _________% [7. Trade Date: __________________]12 Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.] 8 List each Assignor, as appropriate. 9 List each Assignee, as appropriate. 10 Amounts in this column and in the column immediately to the right to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date. 11 Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder. 12 To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date.
4916-0001-5317 v.5 Exhibit D-1 – Page 3 The terms set forth in this Assignment and Assumption are hereby agreed to: ASSIGNOR [NAME OF ASSIGNOR] By: Title: ASSIGNEE [NAME OF ASSIGNEE] By: Title: [Consented to and]13 Accepted: BANK OF AMERICA, N.A., as Administrative Agent By: Title: [Consented to:]14 BORROWER: AH REALTY TRUST, LP By: AH REALTY TRUST, INC., its general partner By: Name: Title: PARENT: AH REALTY TRUST, INC. By: Name: Title: 13 To be added only if the consent of Administrative Agent is required by the terms of the Credit Agreement. 14 To be added only if the consent of Borrower and/or other parties (e.g. L/C Issuer) is required by the terms of the Credit Agreement.
4916-0001-5317 v.5 Exhibit D-1 – Page 4 ANNEX 1 TO ASSIGNMENT AND ASSUMPTION STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT AND ASSUMPTION 1. Representations and Warranties. 1.1. Assignor. [The][Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the][the relevant] Assigned Interest, (ii) [the][such] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and (iv) it is [not] a Defaulting Lender; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document. 1.2. Assignee. [The][Each] Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all the requirements to be an assignee under Section 11.06(b)(iii), (v) and (vi) of the Credit Agreement (subject to such consents, if any, as may be required under Section 11.06(b)(iii) of the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of [the][the relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by [the][such] Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire [the][such] Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 7.01(a) or Section 7.01(b) thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi) it has, independently and without reliance upon 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 Assignment and Assumption and to purchase [the][such] Assigned Interest, and (vii) if it is a Foreign Lender, attached hereto is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees that (i) it will, independently and without reliance upon Administrative Agent, [the][any] Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender. 2. Payments. From and after the Effective Date, Administrative Agent shall make all payments in respect of [the][each] Assigned Interest (including payments of principal, interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to but excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued from and after the Effective Date.
4916-0001-5317 v.5 Exhibit D-1 – Page 5 3. General Provisions. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of New York.
4925-8322-8116 v.5 Execution Version TERM LOAN AGREEMENT Dated as of October 28, 2026 among AH REALTY TRUST, LP, as Borrower, AH REALTY TRUST, INC., as Parent, TORONTO DOMINION (TEXAS) LLC, as Administrative Agent, and The Other Lenders Party Hereto TD SECURITIES (USA) LLC, and PNC CAPITAL MARKETS LLC, as Joint Lead Arrangers and TD SECURITIES (USA) LLC as Sole Bookrunner Exhibit 10.2
4925-8322-8116 v.5 TABLE OF CONTENTS Section Page Article I. Definitions and Accounting Terms ................................................................................................ 1 1.01 Defined Terms .................................................................................................................... 1 1.02 Other Interpretive Provisions ............................................................................................ 29 1.03 Accounting Terms. ............................................................................................................ 29 1.04 Rounding ........................................................................................................................... 30 1.05 Times of Day; Rates ......................................................................................................... 30 1.06 Interest Rates ..................................................................................................................... 30 Article II. The Commitments and Borrowings ........................................................................................... 31 2.01 The Loans ......................................................................................................................... 31 2.02 Borrowings, Conversions and Continuations of Loans. ................................................... 31 2.03 Prepayments ...................................................................................................................... 32 2.04 Termination or Reduction of Commitments ..................................................................... 33 2.05 Repayment of Loans ......................................................................................................... 33 2.06 Interest. ............................................................................................................................. 33 2.07 Fees ................................................................................................................................... 34 2.08 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate............. 34 2.09 Evidence of Debt. ............................................................................................................. 35 2.10 Payments Generally; Administrative Agent’s Clawback. ................................................. 35 2.11 Sharing of Payments by Lenders ...................................................................................... 37 2.12 Increase in Commitments. ................................................................................................ 37 2.13 Defaulting Lenders. .......................................................................................................... 39 Article III. Taxes, Yield Protection and Illegality....................................................................................... 40 3.01 Taxes. ................................................................................................................................ 40 3.02 Illegality ............................................................................................................................ 44 3.03 Inability to Determine Rates. ............................................................................................ 44 3.04 Increased Costs. ................................................................................................................ 46 3.05 Compensation for Losses .................................................................................................. 47 3.06 Mitigation Obligations; Replacement of Lenders. ............................................................ 48 3.07 Survival ............................................................................................................................. 48 Article IV. Parent Guaranty ........................................................................................................................ 49 4.01 The Guaranty .................................................................................................................... 49 4.02 Obligations Unconditional ................................................................................................ 49 4.03 Reinstatement .................................................................................................................... 50 4.04 Certain Waivers ................................................................................................................ 50 4.05 Remedies ........................................................................................................................... 50 4.06 Rights of Contribution ...................................................................................................... 51 4.07 Guaranty of Payment; Continuing Guaranty .................................................................... 51 Article V. Conditions Precedent ................................................................................................................. 51 5.01 Conditions to Funding ...................................................................................................... 51 Article VI. Representations and Warranties ............................................................................................... 53 6.01 Existence, Qualification and Power; Compliance with Laws ........................................... 53 6.02 Authorization; No Contravention ..................................................................................... 53
4925-8322-8116 v.5 ii 6.03 Governmental Authorization; Other Consents .................................................................. 54 6.04 Binding Effect ................................................................................................................... 54 6.05 Financial Statements; No Material Adverse Effect........................................................... 54 6.06 Litigation ........................................................................................................................... 54 6.07 No Default......................................................................................................................... 54 6.08 Ownership of Property; Liens ........................................................................................... 55 6.09 Environmental Compliance .............................................................................................. 55 6.10 Insurance ........................................................................................................................... 55 6.11 Taxes ................................................................................................................................. 55 6.12 ERISA Compliance. .......................................................................................................... 55 6.13 Subsidiaries; Equity Interests ............................................................................................ 56 6.14 Margin Regulations; Investment Company Act................................................................ 56 6.15 Disclosure ......................................................................................................................... 56 6.16 Compliance with Laws ..................................................................................................... 57 6.17 Taxpayer Identification Number ....................................................................................... 57 6.18 Unencumbered Properties ................................................................................................. 57 6.19 Solvency............................................................................................................................ 57 6.20 REIT Status ....................................................................................................................... 57 6.21 OFAC ................................................................................................................................ 57 6.22 Anti-Corruption Laws ....................................................................................................... 57 6.23 Affected Financial Institution ........................................................................................... 57 6.24 Covered Entities ................................................................................................................ 57 6.25 Beneficial Ownership Certification .................................................................................. 57 6.26 Outbound Investment Rules .............................................................................................. 57 Article VII. Affirmative Covenants ............................................................................................................ 58 7.01 Financial Statements ......................................................................................................... 58 7.02 Certificates; Other Information ......................................................................................... 59 7.03 Notices .............................................................................................................................. 60 7.04 Payment of Obligations .................................................................................................... 61 7.05 Preservation of Existence, Etc .......................................................................................... 61 7.06 Maintenance of Properties ................................................................................................ 61 7.07 Maintenance of Insurance ................................................................................................. 62 7.08 Compliance with Laws ..................................................................................................... 62 7.09 Books and Records ........................................................................................................... 62 7.10 Inspection Rights .............................................................................................................. 62 7.11 Use of Proceeds ................................................................................................................ 62 7.12 Loan Documents ............................................................................................................... 62 7.13 Acceptable Ground Leases ............................................................................................... 62 7.14 Guaranties ......................................................................................................................... 63 7.15 REIT Status ....................................................................................................................... 63 7.16 Further Assurances ........................................................................................................... 63 7.17 Material Contracts ............................................................................................................. 63 7.18 Anti-Corruption Laws; Sanctions ..................................................................................... 64 7.19 Keepwell ........................................................................................................................... 64 Article VIII. Negative Covenants ............................................................................................................... 64 8.01 Liens ................................................................................................................................. 64 8.02 Indebtedness...................................................................................................................... 65 8.03 Fundamental Changes ....................................................................................................... 66 8.04 Dispositions ...................................................................................................................... 67
4925-8322-8116 v.5 iii 8.05 Restricted Payments .......................................................................................................... 67 8.06 Change in Nature of Business ........................................................................................... 67 8.07 Transactions with Affiliates .............................................................................................. 67 8.08 Burdensome Agreements .................................................................................................. 67 8.09 Use of Proceeds ................................................................................................................ 68 8.10 Acceptable Ground Leases ............................................................................................... 68 8.11 Amendments of Organization Documents ........................................................................ 68 8.12 Accounting Changes ......................................................................................................... 68 8.13 Sanctions ........................................................................................................................... 68 8.14 Financial Covenants .......................................................................................................... 68 8.15 Unencumbered Property Covenants ................................................................................. 69 8.16 ERISA Compliance ........................................................................................................... 70 8.17 Environmental Matters ..................................................................................................... 70 8.18 Anti-Corruption Laws ....................................................................................................... 70 8.19 Outbound Investment Rules .............................................................................................. 70 Article IX. Events of Default and Remedies ............................................................................................... 70 9.01 Events of Default .............................................................................................................. 70 9.02 Remedies Upon Event of Default ..................................................................................... 72 9.03 Application of Funds ........................................................................................................ 73 Article X. Administrative Agent ................................................................................................................. 73 10.01 Appointment and Authority .............................................................................................. 73 10.02 Rights as a Lender ............................................................................................................. 74 10.03 Exculpatory Provisions ..................................................................................................... 74 10.04 Reliance by Administrative Agent .................................................................................... 75 10.05 Delegation of Duties ......................................................................................................... 75 10.06 Resignation of Administrative Agent. .............................................................................. 75 10.07 Non-Reliance on Administrative Agent and Other Lenders ............................................. 76 10.08 No Other Duties, Etc ......................................................................................................... 76 10.09 Administrative Agent May File Proofs of Claim .............................................................. 76 10.10 Guaranty Matters .............................................................................................................. 77 10.11 Lender ERISA Representations ........................................................................................ 77 10.12 Recovery of Erroneous Payments ..................................................................................... 79 Article XI. Miscellaneous ........................................................................................................................... 79 11.01 Amendments, Etc .............................................................................................................. 79 11.02 Notices; Effectiveness; Electronic Communication. ........................................................ 81 11.03 No Waiver; Cumulative Remedies; Enforcement ............................................................. 83 11.04 Expenses; Indemnity; Damage Waiver. ............................................................................ 83 11.05 Payments Set Aside .......................................................................................................... 85 11.06 Successors and Assigns. ................................................................................................... 85 11.07 Treatment of Certain Information; Confidentiality ........................................................... 89 11.08 Right of Setoff .................................................................................................................. 90 11.09 Interest Rate Limitation .................................................................................................... 90 11.10 Integration; Effectiveness ................................................................................................. 90 11.11 Survival of Representations and Warranties ..................................................................... 91 11.12 Severability ....................................................................................................................... 91 11.13 Replacement of Lenders ................................................................................................... 91 11.14 Governing Law; Jurisdiction; Etc. .................................................................................... 92 11.15 Waiver of Jury Trial .......................................................................................................... 93
4925-8322-8116 v.5 iv 11.16 No Advisory or Fiduciary Responsibility ......................................................................... 93 11.17 Electronic Execution ......................................................................................................... 94 11.18 USA PATRIOT Act .......................................................................................................... 95 11.19 Time of the Essence .......................................................................................................... 95 11.20 Acknowledgement and Consent to Bail-In of Affected Financial Institution ................... 95 11.21 Acknowledgement Regarding Any Supported QFCs ....................................................... 95 11.22 ENTIRE AGREEMENT ................................................................................................... 96
4925-8322-8116 v.5 v SCHEDULES 2.01 Commitments and Applicable Percentages 6.06 Litigation 6.09 Environmental Matters 6.13 Subsidiaries; Other Equity Investments; Equity Interests in Borrower 8.01 Existing Liens 8.02 Existing Indebtedness 11.02 Administrative Agent’s Office; Certain Addresses for Notices EXHIBITS Form of A Committed Loan Notice B Term Note C Compliance Certificate D-1 Assignment and Assumption D-2 Administrative Questionnaire E U.S. Tax Compliance Certificates
4925-8322-8116 v.5 TERM LOAN AGREEMENT This TERM LOAN AGREEMENT (this “Agreement”) is entered into as of October 28, 2026, among AH REALTY TRUST, LP, a Virginia limited partnership (“Borrower”), AH REALTY TRUST, INC., a Maryland corporation (“Parent”), each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”), and TORONTO DOMINION (TEXAS) LLC, as Administrative Agent. Borrower has requested that the Lenders provide a term loan facility to Borrower in the initial aggregate amount of $100,000,000, and the Lenders are willing to provide such facility to Borrower on the terms and conditions set forth herein. In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows: Article I. Definitions and Accounting Terms 1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below: “Acceptable Ground Lease” means each ground lease with respect to any Unencumbered Property executed by a Loan Party, as lessee, (a) that has a remaining lease term (including extension or renewal rights) of at least thirty-five (35) years, calculated as of the date such Property becomes an Unencumbered Property, (b) that is in full force and effect, (c) is transferable and assignable either without the landlord’s prior consent or with such consent, which, however, will not be unreasonably withheld or conditioned by landlord, (d) pursuant to which (i) no default or terminating event exists thereunder, and (ii) no event has occurred which but for the passage of time, or notice, or both would constitute a default or terminating event thereunder, and (e) that otherwise contains customary “mortgagee protections” provisions that would make it financeable from the standpoint of an institutional lender. “Adjusted EBITDA” means, EBITDA for the Consolidated Group for the most recently ended Calculation Period minus the aggregate Annual Capital Expenditure Adjustment. “Administrative Agent” means Toronto Dominion (Texas), LLC in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent. “Administrative Agent’s Office” means Administrative Agent’s address and, as appropriate, account as set forth on Schedule 11.02, or such other address or account as Administrative Agent may from time to time notify Borrower and the Lenders. “Administrative Questionnaire” means an Administrative Questionnaire in substantially the form of Exhibit D-2 or any other form approved by Administrative Agent. “Affected Financial Institution” means (a) any EEA Financial Institution, or (b) any UK Financial Institution. “Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
4925-8322-8116 v.5 2 “Agreement” has the meaning specified in the introductory paragraph hereto. “Annual Capital Expenditure Adjustment” means, (a) for office Properties, an amount equal to the product of (i) $0.25 multiplied by (ii) the aggregate net rentable area (determined on a square feet basis) of all such Properties; (b) for retail Properties, an amount equal to the product of (i) $0.15 multiplied by (ii) the aggregate net rentable area (determined on a square feet basis) of all such Properties; and (c) for residential Properties, $200 per unit. “Applicable Percentage” means, with respect to any Lender at any time, the percentage (carried out to the ninth decimal place) of the Facility represented by (a) at any time prior to the termination of the Commitments, such Lender’s Commitment at such time and (b) thereafter, the principal amount of such Lender’s Loans at such time. The initial Applicable Percentage of each Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable. “Applicable Rate” means: (a) Subject to clause (b) below, the applicable percentage per annum set forth below determined by reference to the Total Leverage Ratio as set forth in the most-recent Compliance Certificate received by Administrative Agent pursuant to Section 7.02(a): Pricing Level Total Leverage Ratio Term SOFR Rate Loans and Daily Simple SOFR Rate Loans Base Rate Loans 1 < 40.00% 1.700% 0.700% 2 ≥ 40.00% but < 45.00% 1.750% 0.750% 3 ≥ 45.00% but < 50.00% 1.900% 0.900% 4 ≥ 50.00% but < 55.00% 2.000% 1.000% 5 ≥ 55.00% 2.200% 1.200% Any increase or decrease in the Applicable Rate resulting from a change in the Total Leverage Ratio shall become effective as of the first (1st) Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 7.02(a); provided that if a Compliance Certificate is not delivered when due in accordance with such Section, then, upon the request of Required Lenders, Pricing Level 5 shall apply as of the first (1st) Business Day after the date on which such Compliance Certificate was required to have been delivered and shall remain in effect until the date on which such Compliance Certificate is delivered. The Applicable Rate in effect from the Closing Date until adjusted as set forth above shall be set at Pricing Level 2. Notwithstanding anything to the contrary contained in this clause (a), the determination of the Applicable Rate under this clause (a) for any period shall be subject to the provisions of Section 2.08(b).
4925-8322-8116 v.5 3 (b) If Parent or Borrower attains an Investment Grade Rating, then Borrower may, upon written notice to Administrative Agent, make an irrevocable one time written election to exclusively use the below table based on the Debt Rating of Parent or Borrower (setting forth the date for such election to be effective), and thereafter the Applicable Rate shall be determined based on the applicable rate per annum set forth in the below table notwithstanding any failure of Parent or Borrower to maintain an Investment Grade Rating or any failure of Parent or Borrower to maintain a Debt Rating: Debt Rating Pricing Level Debt Rating Term SOFR Rate Loans and Daily SOFR Rate Loans Base Rate Loans 1 ≥ A-/A3 1.200% 0.200% 2 BBB+/Baa1 1.250% 0.250% 3 BBB/Baa2 1.350% 0.350% 4 BBB-/Baa3 1.650% 0.650% 5 <BBB-/Baa3 or Unrated 2.200% 1.200% If at any time Parent and/or Borrower has two (2) or more Debt Ratings, and such Debt Ratings are split, then: (i) if the difference between the highest and the lowest of such Debt Ratings is one ratings category (e.g., Baa2 by Moody’s and BBB- by S&P or Fitch), the Ratings-Based Applicable Rate shall be the rate per annum that would be applicable if the highest of the applicable Debt Ratings were used; and (ii) if the difference between the highest and the lowest of such Debt Ratings is two (2) ratings categories or more (e.g., Baa1 by Moody’s and BBB- by S&P or Fitch), the Ratings-Based Applicable Rate shall be the rate per annum that would be applicable if the rating that is one lower than the highest of the applicable Debt Ratings were used. If Parent and/or Borrower has only one Debt Rating from either Moody’s or S&P, then the Ratings-Based Applicable Rate shall be the rate per annum applicable to such Debt Rating. If Parent and/or Borrower (x) only has a Debt Rating from Fitch or (y) has no Debt Rating, then the Ratings-Based Applicable Rate shall be deemed to be the rate per annum that would be applicable if the Debt Rating were < BBB-/Baa3 or Unrated. Each change in the Applicable Rate resulting from a change in a Debt Rating shall be effective, in the case of an upgrade, during the period commencing on the date of delivery by Borrower to Administrative Agent of notice thereof pursuant to Section 7.02(f) and ending on the date immediately preceding the effective date of the next such change and, in the case of a downgrade, during the period commencing on the date of the announcement thereof and ending on the date immediately preceding the effective date of the next such change. “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender. “Arrangers” means TDS, in its capacity as left lead arranger and sole bookrunner, and PNC Capital Markets LLC, in its capacity as a right lead arranger. “Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 11.06(b)), and accepted by Administrative Agent, in substantially the form of Exhibit D-1 or any other form (including electronic documentation generated by use of an electronic platform) approved by Administrative Agent.
4925-8322-8116 v.5 4 “Attributable Indebtedness” means, on any date, (a) in respect of any capital lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a capital lease. “Audited Financial Statements” means the audited consolidated balance sheet of the Consolidated Group for the fiscal year ended December 31, 2025, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year of the Consolidated Group, including the notes thereto. “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution. “Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, rule, regulation or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable to the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings). “Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus one half of one percent (0.50%), (b) the rate of interest in effect for such day as publicly announced from time to time by Administrative Agent as its “prime rate,” (c) Term SOFR plus one percent (1.00%) and (d) one percent (1.00%). The “prime rate” is a rate set by Administrative Agent based upon various factors including Administrative Agent’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such prime rate announced by Administrative Agent shall take effect at the opening of business on the day specified in the public announcement of such change. “Base Rate Loan” means a Loan that bears interest based on the Base Rate. “Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation. “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230. “BHC Act Affiliate” has the meaning specified in Section 11.21(b). “Borrower” has the meaning specified in the introductory paragraph hereto. “Borrower Materials” has the meaning specified in Section 7.02. “Borrowing” means a borrowing consisting of simultaneous Loans of the same Type and, in the case of Term SOFR Rate Loans, having the same Interest Period made by each of the Lenders pursuant to Section 2.01.
4925-8322-8116 v.5 5 “Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where Administrative Agent’s Office is located. “Calculation Period” means, as of any date, the most recent four (4) fiscal quarter period ending on or prior to such date. “Capitalization Rate” means, (a) with respect to multi-family Properties, six percent (6.00%); (b) with respect to retail Properties, six and one-quarter of one percent (6.25%); and (c) with respect to office Properties, seven percent (7.00%). “Casualty” means, with respect to any Unencumbered Property, such Unencumbered Property shall be damaged or destroyed, in whole or in part, by fire or other casualty. “Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith or in the implementation thereof and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted, issued or implemented. “Change of Control” means an event or series of events by which: (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of thirty-five percent (35%) or more of the equity securities of Parent entitled to vote for members of the board of directors or equivalent governing body of Parent on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right); or (b) during any period of twelve (12) consecutive months, a majority of the members of the board of directors or other equivalent governing body of Parent cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body; or
4925-8322-8116 v.5 6 (c) the passage of thirty (30) days from the date upon which any Person or two or more Persons acting in concert shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation thereof, will result in its or their acquisition of the power to exercise, directly or indirectly, a controlling influence over the management or policies of Parent, or control over the equity securities of Parent entitled to vote for members of the board of directors or equivalent governing body of Parent on a fully-diluted basis (and taking into account all such securities that such Person or group has the right to acquire pursuant to any option right) representing thirty-five percent (35%) or more of the combined voting power of such securities; or (d) Parent shall cease to be the sole general partner of Borrower; or (e) the general partner of Borrower shall no longer Control Borrower; or (f) Parent shall cease to own, directly or indirectly, at least forty percent (40%) of the Equity Interests of Borrower. “Closing Date” means the first date all the conditions precedent in Section 5.01 are satisfied or waived in accordance with Section 11.01. “CME” means CME Group Benchmark Administration Limited. “Code” means the Internal Revenue Code of 1986. “Commitment” means, as to each Lender, its obligation to make Loans to Borrower pursuant to Section 2.01 in an aggregate principal amount not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 under the caption “Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. “Committed Loan Notice” means a notice of (a) the initial Borrowing on the Closing Date, (b) a conversion of Loans from one Type to the other, or (c) a continuation of Term SOFR Rate Loans, which shall be substantially in the form of Exhibit A or such other form as may be approved by Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by Administrative Agent), appropriately completed and signed by a Responsible Officer of Borrower. “Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.) and any successor statute. “Communication” has the meaning specified in Section 11.17. “Compliance Certificate” means a certificate substantially in the form of Exhibit C , which shall include (a) a list of any additional and removed Unencumbered Properties since the most-recent Compliance Certificate delivered to Administrative Agent hereunder and (b) supporting calculations and property level information in reasonable detail with respect to the covenants set forth in Sections 8.14 and 8.15. “Condemnation” means a temporary or permanent taking by any Governmental Authority as the result, in lieu, or in anticipation, of the exercise of the right of condemnation or eminent domain of all or
4925-8322-8116 v.5 7 any part of any Property, or any interest therein or right accruing thereto, including any right of access thereto or any change of grade affecting any Property or any part thereof. “Conforming Changes” means with respect to the use, administration of or any conventions associated with SOFR or any proposed Successor Rate, Daily Simple SOFR, or Term SOFR, as applicable, any conforming changes to the definitions of “Base Rate”, “Daily Simple SOFR”, “SOFR”, “Term SOFR”, and “Interest Period”, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including, for the avoidance of doubt, the definitions of “Business Day” and “U.S. Government Securities Business Day”, timing of borrowing requests or prepayment, conversion or continuation notices and length of lookback periods) as may be appropriate, in the reasonable discretion of Administrative Agent (after consultation with Borrower), to reflect the adoption and implementation of such applicable rate(s) and to permit the administration thereof by Administrative Agent in a manner substantially consistent with market practice (or, if Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such rate exists, in such other manner of administration as Administrative Agent determines is reasonably necessary in connection with the administration of this Agreement and any other Loan Document). “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 Group” means the Loan Parties and their Subsidiaries. “Construction-in-Progress Property” means a Property (a) the primary purpose of which is to be leased in the ordinary course of business or to be sold upon completion, (b) on which construction, redevelopment or material rehabilitation of material improvements has commenced and is continuing to be performed and (c) that is classified as “development in progress” on the balance sheet of the applicable owning member of the Consolidated Group or as a redevelopment project in any publicly filed financial and operating reporting supplement of the applicable owning member of the Consolidated Group, with any such Property remaining classified as a Construction-in-Progress Property until the earlier of (i) such Property achieving an Occupancy Rate of eighty percent (80%) and (ii) the first (1st) anniversary of the substantial completion of construction of such Property and material improvements as evidenced by a temporary or permanent certificate of occupancy. “Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound. “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto. “Covered Entity” has the meaning specified in Section 11.21(b). “Covered Party” has the meaning specified in Section 11.21(a). “Credit Facility Guaranty” means the Guarantee of the Obligations by the Parent pursuant to Article IV and by the Subsidiary Guarantors pursuant to the Subsidiary Guaranty. “Credit Parties” means, collectively, Administrative Agent and Lenders and “Credit Party” means any one of the Credit Parties.
4925-8322-8116 v.5 8 “Customary Recourse Exceptions” means, with respect to any Non-Recourse Debt, exclusions from the exculpation provisions with respect to such Non-Recourse Debt for fraud, misapplication of cash, environmental claims, breach of representations or warranties, failure to pay taxes and insurance, obligations for completion or cost overruns in connection with construction related activities, and other circumstances customarily excluded by institutional lenders from exculpation provisions and/or included in separate indemnification agreements in non-recourse financings of real estate. “Daily Simple SOFR” means, with respect to any applicable determination date, SOFR published on the fifth (5th) U.S. Government Securities Business Day preceding such day by the SOFR Administrator on the Federal Reserve Bank of New York’s website (or any successor source); provided, however, that if such day is not a U.S. Government Securities Business Day, then Daily Simple SOFR means such rate so published on the fifth (5th) U.S. Government Securities Business Day preceding the first (1st) U.S. Government Securities Business Day immediately prior thereto. If Daily Simple SOFR as so determined would be less than zero (0), such rate shall be deemed to be zero (0) for purposes of the Loans and Loan Documents. “Daily SOFR Rate Loan” means a Loan made hereunder with respect to which the interest rate is calculated by reference to Daily Simple SOFR. “Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally. “Debt Rating” means the long term unsecured senior, non-credit enhanced debt rating of Parent or Borrower by S&P, Moody’s or Fitch. “Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default. “Default Rate” means (a) the Base Rate plus (b) the highest Applicable Rate applicable to Base Rate Loans plus (c) two percent (2%) per annum; provided, however, that with respect to a Term SOFR Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including the highest Applicable Rate applicable to Term SOFR Rate Loans) otherwise applicable to such Loan plus two percent (2%) per annum. “Default Right” has the meaning specified in Section 11.21(b). “Defaulting Lender” means, subject to Section 2.13(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies Administrative Agent and Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to Administrative Agent or any other Lender any other amount required to be paid by it hereunder within two (2) Business Days of the date when due, (b) has notified Borrower, Administrative Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by
4925-8322-8116 v.5 9 Administrative Agent or Borrower, to confirm in writing to Administrative Agent and Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by Administrative Agent and Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-in Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.13(b)) as of the date established therefor by Administrative Agent in a written notice of such determination, which shall be delivered by Administrative Agent to Borrower and each other Lender promptly following such determination. “Designated Jurisdiction” means any country or territory to the extent that such country or territory itself is the subject of any Sanction. “Disposition” or “Dispose” means the sale, transfer, license, lease (other than a real estate lease or license entered into in the ordinary course of business as part of Property leasing operations) or other disposition (including any sale and leaseback transaction) (in one transaction or in a series of transactions and whether effected pursuant to a Division or otherwise) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith. “Dividing Person” has the meaning specified in the definition of “Division”. “Division” means the division of the assets, liabilities and/or obligations of a Person (the “Dividing Person”) among two or more Persons (whether pursuant to a “plan of division” or similar arrangement), which may or may not include the Dividing Person and pursuant to which the Dividing Person may or may not survive. “Dollar” and “$” mean lawful money of the United States. “EBITDA” means, for the Consolidated Group, on a consolidated basis (without duplication), for any period, an amount equal to (a) Net Income of the Consolidated Group for such period, in each case, excluding (i) any non-recurring or extraordinary gains and losses for such period, (ii) any income or gain and any loss in each case resulting from early extinguishment of indebtedness, and (iii) any income or gain or any loss resulting from a swap or other derivative contract (including by virtue of a termination thereof), plus (b) an amount which, in the determination of Net Income for such period pursuant to clause (a) above, has been deducted for or in connection with (i) Interest Expense (plus, amortization of deferred financing costs, to the extent included in the determination of Interest Expense per GAAP), (ii) income taxes, (iii) depreciation and amortization, (iv) amounts deducted as a result of the application of FAS 141, (v) non-cash expenses related to employee and trustee stock and stock option plans, and (vi) adjustments as a result of the straight lining of rents, all as determined in accordance with GAAP,
4925-8322-8116 v.5 10 plus (c) without duplication of amounts included in clauses (a) and (b) above with respect to Unconsolidated Affiliates, the amounts described in clauses (a) and (b) above of each Unconsolidated Affiliate of the Consolidated Group multiplied by the respective Unconsolidated Affiliate Interest of each member of the Consolidated Group in such Unconsolidated Affiliate. “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. “Electronic Copy” has the meaning specified in Section 11.17. “Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 11.06(b)(iii) and (v) (subject to such consents, if any, as may be required under Section 11.06(b)(iii)). “Eligible Unencumbered Property” means, as of any date, each Property that satisfies the following: (a) such Property is primarily an office, retail, for-rent multi-family or student housing Property; (b) such Property is located within the continental United States; (c) such Property is Wholly-Owned in fee simple or leased pursuant to an Acceptable Ground Lease by Borrower or a Subsidiary Guarantor which is organized in the continental United States; (d) if such Property is owned or leased pursuant to an Acceptable Ground Lease by a Subsidiary that is not a Wholly-Owned Subsidiary of Borrower, then (i) Borrower owns, directly or indirectly, at least eighty percent (80%) of (A) all rights to receive distributions from the assets of such Subsidiary or (B) the issued and outstanding Equity Interests of such Subsidiary, free and clear of any Liens, and (ii) such Subsidiary is Controlled (including control over operating activities of such Subsidiary and the ability of such Subsidiary to Dispose of, grant Liens on, or otherwise encumber assets, incur, repay and prepay Indebtedness, provide Guarantees and make Restricted Payments, in each case without any requirement for the consent of any other Person) exclusively by Borrower and/or one or more Wholly-Owned Subsidiaries of Borrower; (e) if such Property is owned or leased pursuant to an Acceptable Ground Lease by a Subsidiary Guarantor, then such Subsidiary Guarantor may not incur, Guarantee, or otherwise be liable for any Indebtedness (other than the Obligations and Unsecured Indebtedness permitted hereunder);
4925-8322-8116 v.5 11 (f) such Property is not subject to any ground lease (other than an Acceptable Ground Lease), any Lien (other than Permitted Liens), or any Negative Pledge; (g) except for restrictions set forth herein, Borrower or the applicable Subsidiary Guarantor that owns or leases pursuant to an Acceptable Ground Lease such Property has the unilateral right to (i) Dispose of such Property, and (ii) create a Lien on such Property as security for Indebtedness of Borrower or such Subsidiary Guarantor; (h) such Property is not unimproved land or a Construction-in-Progress Property; (i) such Property is free of all material structural defects, Material Title Defects, or other similar adverse matters which, individually or collectively, could reasonably be expected to result in a Material Property Event; (j) such Property is not currently suffering a Material Environmental Event; and (k) such Property is not subject to any Casualty or Condemnation that is a Material Property Event. “Environmental Claim” means any enforcement, cleanup, removal, containment, remedial, or other private or governmental or regulatory action at any time threatened, instituted, or completed pursuant to any applicable Environmental Law against any member of the Consolidated Group with respect to any Property (including any such action against Administrative Agent or any Lender), and any claim at any time made by any Person against any member of the Consolidated Group with respect to any Property (including any such claim against Administrative Agent or any Lender), relating to damage, contribution, cost recovery, compensation, loss, or injury resulting from or in any way arising in connection with any Hazardous Material or any Environmental Law. “Environmental Laws” means any and all Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules or governmental restrictions relating to pollution and the protection of the environment or the release of any hazardous materials into the environment, including those related to Hazardous Materials. “Environmental Liability” means, with respect to any member of the Consolidated Group, any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of such member of the Consolidated Group directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing. “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.
4925-8322-8116 v.5 12 “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder. “ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with any Loan Party within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code). “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of any Loan Party or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by any Loan Party or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is “insolvent” within the meaning of Section 4245 of ERISA; (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination under Section 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension Plan; (f) any event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (g) the determination that any Pension Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; or (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Loan Party or any ERISA Affiliate. “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time. “Event of Default” has the meaning specified in Section 9.01. “Excluded Taxes” means any of the following Taxes imposed on or with respect to any 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 Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by Borrower under Section 11.13) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 3.01(b), amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.01(g) and (d) any U.S. federal withholding Taxes imposed pursuant to FATCA. “Existing Revolving Credit Agreement” means that certain Fourth Amended and Restated Credit Agreement dated October 28, 2026, by and among Borrower, Parent, the lenders from time to time party thereto, and Bank of America, N.A., as “Administrative Agent” and “L/C Issuer” thereunder, as amended or otherwise modified from time to time. “Existing MTTC Term Loan Agreement” means that certain Term Loan Agreement dated December 6, 2022, by and among Borrower, Parent, the lenders from time to time party thereto, and Manufacturers and Traders Trust Company, as “Administrative Agent” thereunder, as amended or otherwise modified from time to time.
4925-8322-8116 v.5 13 “Existing TD Term Loan Agreement” means that certain Term Loan Agreement dated May 19, 2023, by and among Borrower, Parent, the lenders from time to time party thereto, and Toronto Dominion (Texas) LLC, as “Administrative Agent” thereunder, as amended or otherwise modified from time to time. “Facility” means (a) on the Closing Date prior to the funding of the Loans, the aggregate amount of the Commitments at such time, and (b) at any time thereafter, the Outstanding Amount of the Loans of all Lenders at such time. “FASB ASC” means the Accounting Standards Codification of the Financial Accounting Standards Board. “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, any applicable intergovernmental agreement entered into thereunder (and any foreign legislation implemented to give effect to such intergovernmental agreements) and any agreements entered into pursuant to Section 1471(b)(1) of the Code. “Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of one one-hundredth of one percent (1/100 of 1%)) charged to TD on such day on such transactions as determined by Administrative Agent. “Fee Letter” means the letter agreement dated October 7, 2026 among Borrower, Administrative Agent, TDS and TD. “Fitch” means Fitch, Inc., and any successor thereto. “Fixed Charges” means, for the Consolidated Group, on a consolidated basis for any period, the sum (without duplication) of (a) Interest Expense, plus (b) scheduled principal payments on account of Indebtedness of the Consolidated Group (including, for purposes hereof, scheduled reductions in commitments, but excluding any balloon principal payments on any Indebtedness which pays such Indebtedness in full, but only to the extent that the amount of such final payment is greater than the scheduled principal payment immediately preceding such final payment), plus (c) Restricted Payments paid in cash with respect to preferred Equity Interests of any member of the Consolidated Group, plus (d) the amounts described in clauses (a), (b), and (c) above of each Unconsolidated Affiliate of the Consolidated Group multiplied by the respective Unconsolidated Affiliate Interest of each member of the Consolidated Group in such Unconsolidated Affiliate, all for the most recently ended Calculation Period. “Foreign Lender” means (a) if Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if 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 Borrower is resident for tax purposes. For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.
4925-8322-8116 v.5 14 “FRB” means the Board of Governors of the Federal Reserve System of the United States. “Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities. “GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied. “Governmental Authority” means the government of the United States or any other nation, or of 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 (including any supra- national bodies such as the European Union or the European Central Bank). “Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning. “Guaranteed Obligations” has the meaning specified in Section 4.01. “Guaranties” means, collectively, the Subsidiary Guaranty and the Guaranty given by Parent pursuant to Article IV of this Agreement, and “Guaranty” means any one of the Guaranties. “Guarantors” means, collectively (a) Parent, (b) the Subsidiary Guarantors and (c) with respect to the payment and performance by each Specified Loan Party of its obligations under the Subsidiary Guaranty with respect to all Swap Obligations, Borrower; and “Guarantor” means any one of the Guarantors. “Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or
4925-8322-8116 v.5 15 asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature, in each case regulated pursuant to any Environmental Law. “Increase Effective Date” has the meaning specified in Section 2.12(d). “Indebtedness” means, for any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP: (a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments; (b) all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments to the extent such instruments or agreements support financial, rather than performance, obligations; for the avoidance of doubt, performance bonds issued for the account of such Person in the ordinary course of business shall be excluded from “Indebtedness;” (c) net obligations of such Person under any Swap Contract (excluding obligations under Swap Contracts relating solely to the Obligations); (d) all obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business and, in each case, not past due for more than sixty (60) days (unless being disputed in good faith by appropriate legal proceedings and for which reserves in accordance with GAAP have been established) after the date on which such trade account payable was created); (e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse; (f) capital leases and Synthetic Lease Obligations; (g) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interest in such Person or any other Person, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; provided that such obligations shall not be considered Indebtedness hereunder to the extent such redemption may be completed through the issuance by such Person of its capital stock in exchange for the Equity Interests being redeemed and such Person has elected or may still elect to issue such capital stock rather than pay other consideration in connection with such redemption; and (h) all Guarantees of such Person in respect of any of the foregoing (excluding Guarantees limited to Customary Recourse Exceptions as long as no demand for payment or performance thereof has been demanded or if so demanded, is being disputed in good faith by appropriate legal proceedings) and without duplication of any Indebtedness that is recourse to a Subsidiary and is covered under clauses (a)-(g) above. For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is
4925-8322-8116 v.5 16 expressly made non-recourse to such Person. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date. The amount of any capital lease or Synthetic Lease Obligation as of any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date. “Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes. “Indemnitees” has the meaning specified in Section 11.04(b). “Information” has the meaning specified in Section 11.07. “Interest Expense” means, for the Consolidated Group, on a consolidated basis for the most recently ended Calculation Period, without duplication, total interest expense determined in accordance with GAAP (including for the avoidance of doubt capitalized interest and interest expense attributable to the Consolidated Group’s ownership interests in Unconsolidated Affiliates). “Interest Payment Date” means (a) as to any Daily SOFR Rate Loan or Base Rate Loan, the first (1st) Business Day of each calendar month and the Maturity Date and (b) as to any Term SOFR Rate Loan, the last day of each Interest Period applicable to such Term SOFR Loan and the Maturity Date. “Interest Period” means as to each Term SOFR Rate Loan, the period commencing on the date such Term SOFR Rate Loan is disbursed or converted to or continued as a Term SOFR Rate Loan and ending on the date one (1) month or three (3) months thereafter, in either case subject to availability, as selected by Borrower in its Committed Loan Notice; provided that: (a) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless, in the case of a Term SOFR Rate Loan, such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day; (b) any Interest Period pertaining to a Term SOFR Rate Loan that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and (c) no Interest Period shall extend beyond the Maturity Date. “Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of capital stock or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor Guarantees Indebtedness of such other Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment. “Investment Grade Rating” means a Debt Rating for Parent or Borrower of BBB- or better from S&P or Baa3 or better from Moody’s.
4925-8322-8116 v.5 17 “IRS” means the United States Internal Revenue Service. “Laws” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law. “Lease” means each existing or future lease, sublease (to the extent of any Loan Party’s rights thereunder), or other agreement (other than an Acceptable Ground Lease) under the terms of which any Person has or acquires any right to occupy or use any Property, or any part thereof, or interest therein, and each existing or future guaranty of payment or performance thereunder. “Lender” has the meaning specified in the introductory paragraph hereto. “Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify Borrower and Administrative Agent, which office may include any Affiliate of such Lender or any domestic or foreign branch of such Lender or such Affiliate. Unless the context otherwise requires each reference to a Lender shall include its applicable Lending Office. “Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to any real property, and any financing lease having substantially the same economic effect as any of the foregoing). “Loan” means an advance made by a Lender to Borrower under the Facility pursuant to Section 2.01 or Section 2.12. “Loan Documents” means this Agreement, each Note, the Subsidiary Guaranty, and the Fee Letter. “Loan Parties” means, collectively, Borrower and each Guarantor, and “Loan Party” means any one of the Loan Parties. “Master Agreement” has the meaning specified in the definition of “Swap Contract”. “Material Adverse Effect” means: (a) a material adverse change in, or a material adverse effect upon, the operations, business, properties, liabilities (actual or contingent), condition (financial or otherwise) of Parent and its Subsidiaries, taken as a whole, or Borrower and its Subsidiaries, taken as a whole; (b) a material adverse effect on the rights and remedies of Administrative Agent or any Lender under any Loan Documents, or of the ability of Borrower and the Loan Parties, taken as a whole, to perform their obligations under the Loan Documents; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to which it is a party. “Material Contract” means, with respect to any Person, (a) each contract to which such Person is a party involving aggregate consideration payable to or by such Person of, (i) with respect to an
4925-8322-8116 v.5 18 Unencumbered Property, $250,000 or more in any year, or (ii) with respect to any other Property, $1,000,000 or more in any year, and (b) each Property management agreement to which such Person is a party pertaining to any Property owned by such Person. “Material Environmental Event” means, with respect to any Property, (a) a violation of any Environmental Law with respect to such Property, or (b) the presence of any Hazardous Materials on, about, or under such Property that, under or pursuant to any Environmental Law, would require remediation, if in the case of either clause (a) or (b), such event or circumstance could reasonably be expected to result in a Material Adverse Effect or in a Material Property Event. “Material Property Event” means, with respect to any Property, the occurrence of any event or circumstance occurring or arising after the date of this Agreement that could reasonably be expected to result in a material adverse effect with respect to the financial condition or the operations of such Property. “Material Title Defects” means, with respect to any Property, defects, Liens (other than Permitted Liens), and other encumbrances in the nature of easements, servitudes, restrictions, and rights-of-way that would customarily be deemed unacceptable title exceptions for a prudent mortgage lender (i.e., a prudent mortgage lender would reasonably determine that such exceptions, individually or in the aggregate, materially impair the value or operations of such Property, would prevent such Property from being used in the manner in which it is currently being used, or could reasonably be expected to result in a violation of any Law which could result in a Material Property Event). “Maturity Date” means October 28, 2033. “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto. “Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions. “Multiple Employer Plan” means a Plan which has two or more contributing sponsors (including any Loan Party or any ERISA Affiliate) at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA. “Negative Pledge” means a provision of any agreement (other than this Agreement or any other Loan Document and any agreement in favor of holders of Indebtedness that is pari passu with the Obligations that only prohibits creation of a Lien on Unencumbered Properties on terms no more onerous in any material respect than those set forth in this Agreement) that prohibits the creation of any Lien on any assets of a Person; provided, however, that the following shall not constitute a “Negative Pledge” for purposes of this Agreement: (a) an agreement that establishes a maximum ratio of unsecured debt to unencumbered assets, or of secured debt to total assets, or that otherwise conditions a Person’s ability to encumber its assets upon the maintenance of one or more specified ratios that limit such Person’s ability to encumber its assets but that do not generally prohibit the encumbrance of its assets or the encumbrance of specific assets; (b) any requirement for the grant in favor of the holders of any Unsecured Indebtedness of an equal and ratable Lien in connection with a pledge of any property or asset to secure the Facility; and (c) provisions in equipment leases that restrict the sale or encumbrance of the Property leased thereunder.
4925-8322-8116 v.5 19 “Net Income” means the net income (or loss) of the Consolidated Group for the subject period; provided, however, that Net Income shall exclude (a) extraordinary gains and extraordinary losses (in each case, as determined in accordance with GAAP) for such period, (b) the net income of any Subsidiary of Parent during such period to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary of such income is not permitted by operation of the terms of its organization documents or any agreement, instrument or law applicable to such Subsidiary during such period, except that Parent’s equity in any net loss of any such Subsidiary for such period shall be included in determining Net Income, and (c) any income (or loss) for such period of any Person if such Person is not a Subsidiary of Parent, except that Parent’s equity in the net income of any such Person for such period shall be included in Net Income up to the aggregate amount of cash actually distributed by such Person during such period to Parent or a Subsidiary thereof as a dividend or other distribution (and in the case of a dividend or other distribution to a Subsidiary of Parent, such Subsidiary is not precluded from further distributing such amount to Parent as described in clause (b) of this proviso). “Net Operating Income” means, for any Property and for any period, an amount equal to (a) the aggregate gross revenues from the operations of such Property during such period (excluding all revenues from (i) tenants that are subject to a proceeding under any Debtor Relief Law and (ii) tenants that are not in occupancy or paying rent (unless any such tenant is in a free rent period with less than three (3) months remaining), provided that revenues from tenants that are not in occupancy, but are paying rent on leases with more than twelve (12) months remaining shall be included, minus (b) the sum of (i) all expenses and other proper charges incurred in connection with the operation of such Property during such period (including accruals for real estate taxes and insurance, but excluding debt service charges, income taxes, depreciation, amortization and other non-cash expenses), which expenses and accruals shall be calculated in accordance with GAAP, and (ii) an amount equal to the greater of (x) three percent (3%) of rents and (y) actual management fees paid in cash. “Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all Lenders or all affected Lenders in accordance with the terms of Section 11.01 and (b) has been approved by Required Lenders. “Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time. “Non-Recourse Debt” means, for any Person, any Indebtedness of such Person in which the holder of such Indebtedness may not look to such Person personally for repayment, other than to the extent of any security therefor or pursuant to Customary Recourse Exceptions. For purposes hereof, “Non-Recourse Debt” shall include Indebtedness of a Subsidiary of Parent or Borrower (other than a Subsidiary Guarantor) in which the holder of such Indebtedness may look to such Subsidiary personally for repayment (but not to any constituent owner of such Person other than for Customary Recourse Exceptions) and such Subsidiary is a special purpose entity owning only Properties that secure such Indebtedness. “Non-Recourse Subsidiaries” means one (1) or more Subsidiaries of Borrower (other than any Subsidiary Guarantor) that have Non-Recourse Debt under which a default exists, but such default does not result in an Event of Default under Section 9.01(e), and “Non-Recourse Subsidiary” means any one of the Non-Recourse Subsidiaries. “Note” means a promissory note made by Borrower in favor of a Lender evidencing Loans made by such Lender, substantially in the form of Exhibit B.
4925-8322-8116 v.5 20 “Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding; provided that all references to “Obligations” in the Guaranties, and any other Guarantees, security agreement, or pledge agreements delivered to Administrative Agent to Guarantee, or create or evidence Liens securing, the Obligations shall, in addition to the foregoing, include all present and future indebtedness, liabilities, and obligations now or hereafter owed to Administrative Agent, any Lender, any Affiliate of Administrative Agent or any Lender arising from, by virtue of, or pursuant to any Swap Contract that relates solely to the Obligations, or any Person who was a Lender or an Affiliate of a Lender at the time such Swap Contract was entered into. “Occupancy Rate” means, for any Property, the percentage of the rentable area of such Property leased by tenants pursuant to bona fide tenant Leases, which tenants are in occupancy and not delinquent on any rent or other payments under such Leases and paying cash rent or that are in a one-time free rent period with less than or equal to three (3) months of free rent remaining and are not subject to a proceeding under any Debtor Relief Law. “OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury. “Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity. “Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document). “Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.06). “Outbound Investment Rules” means the regulations administered and enforced, together with any related public guidance issued, by the United States Treasury Department under U.S. Executive Order 14105 of August 9, 2023, or any similar law or regulation; as of the Closing Date, and as codified at 31 C.F.R. § 850.101 et seq.
4925-8322-8116 v.5 21 “Outstanding Amount” means with respect to the Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Loans occurring on such date. “Parent” has the meaning specified in the introductory paragraph hereto. “Pari Passu Facility” means any Indebtedness of any member of the Consolidated Group that, prior to becoming Secured Indebtedness, was included in Unsecured Indebtedness for purposes of calculating the covenants set forth in Section 8.14(f) and Section 8.14(g), and any modifications, amendments, renewals, extensions, or restructurings of any such Indebtedness, including, without limitation, the Indebtedness under the Existing Revolving Credit Agreement. “Participant” has the meaning specified in Section 11.06(d). “Participant Register” has the meaning specified in Section 11.06(d). “PBGC” means the Pension Benefit Guaranty Corporation. “Pension Act” means the Pension Protection Act of 2006. “Pension Funding Rules” means the rules of the Code and ERISA regarding minimum required contributions (including any installment payment thereof) to Pension Plans and set forth in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412 of the Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter, Section 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA. “Pension Plan” means any employee pension benefit plan (including a Multiple Employer Plan or a Multiemployer Plan) that is maintained or is contributed to by any Loan Party or any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code. “Permitted Liens” means Liens permitted by Section 8.01. “Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity. “Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA (including a Pension Plan), maintained for employees of any Loan Party or any ERISA Affiliate or any such Plan to which any Loan Party or any ERISA Affiliate is required to contribute on behalf of any of its employees. “Plan Assets” means the assets of an “employee benefit plan,” as defined in Section 3(3) of ERISA that is covered by Title I of ERISA or any “plan” defined in Section 4975(e) of the Code, as described in the Plan Assets Regulation, 29 C.F.R. Section 2550.401c-1, pursuant to the principles set forth in John Hancock Mutual Life Insurance Company v. Harris Trust & Savings Bank, 114 S.Ct. 517 (1993), or otherwise. “Plan Assets Regulation” means 29 C.F.R. Section 2510.3-101, et seq., as modified by Section 3(42) of ERISA. “Platform” has the meaning specified in Section 7.02.
4925-8322-8116 v.5 22 “Properties” means real estate properties owned by any member of the Consolidated Group, and “Property” means any one of the Properties. “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 specified in Section 7.02. “QFC” has the meaning specified in Section 11.21(b). “QFC Credit Support” has the meaning specified in Section 11.21(b). “Recipient” means Administrative Agent or any Lender or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder. “Recourse Debt” means, for any Person, Indebtedness of such Person that is not Non-Recourse Debt. “Register” has the meaning specified in Section 11.06(c). “REIT” means a “real estate investment trust” in accordance with Sections 856 through 860 of the Code. “Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates. “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the thirty (30) day notice period has been waived. “Required Lenders” means, as of any date of determination, Lenders holding at least fifty-one percent (51%) of the Outstanding Amount on such date; provided that if there are only two (2) Non- Defaulting Lenders, “Required Lenders” means both Lenders and provided; further, that if there are two (2) or more Non-Defaulting Lenders, “Required Lenders” will require two (2) or more unaffiliated Lenders. The Outstanding Amount held by any Defaulting Lender shall be disregarded in determining Required Lenders at any time. “Rescindable Amount” has the meaning specified in Section 2.10(b)(ii). “Resignation Effective Date” has the meaning specified in Section 10.06(a). “Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority. “Responsible Officer” means (a) the chief executive officer, president, chief financial officer, treasurer, assistant treasurer, controller or chief operating officer of a Loan Party, (b) solely for purposes of the delivery of incumbency certificates pursuant to Section 5.01, the secretary or any assistant secretary of a Loan Party and, (c) solely for purposes of notices given pursuant to Article II, any other officer or employee of the applicable Loan Party so designated by any of the foregoing officers in a notice to Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate,
4925-8322-8116 v.5 23 partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party. “Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other Equity Interest of 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 capital stock or other Equity Interest, or on account of any return of capital to Borrower’s stockholders, partners or members (or the equivalent Person thereof). “S&P” means S&P Global Ratings, a subsidiary of S&P Global, Inc., and any successor thereto. “Sanction(s)” means any sanction administered or enforced by the United States Government (including OFAC), the United Nations Security Council, the European Union, Her Majesty’s Treasury (“HMT”) or other relevant sanctions authority. “SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions. “Secured Indebtedness” means, for any Person as of any date, Indebtedness of such Person that is secured by a Lien. “Secured Recourse Debt” means, for any Person as of any date, Recourse Debt of such Person that is secured by a Lien. “Significant Acquisition” means the acquisition of one or more real property assets or portfolios of such assets or operating businesses in a single transaction or a series of related transactions for a purchase price that is greater than ten percent (10%) of Total Asset Value at such time. “SOFR” means the Secured Overnight Financing Rate as administered by the SOFR Administrator. “SOFR Administrator” means the Federal Reserve Bank of New York, as the administrator of SOFR, or any successor administrator of SOFR designated by the Federal Reserve Bank of New York or other person acting as the SOFR Administrator at such time. “Solvent” means, with respect to any Person on any date of determination, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature, (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital, and (e) such Person is able to pay its debts and liabilities, contingent obligations and other commitments as they mature in the ordinary course of business. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability. “Specified Loan Party” means any Loan Party that is not an “eligible contract participant” under the Commodity Exchange Act (determined prior to giving effect to Section 7.19).
4925-8322-8116 v.5 24 “Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of Borrower. “Subsidiary Guarantors” means, as of any date, all Subsidiaries of Borrower that have executed the Subsidiary Guaranty (or an addendum thereto in the form attached to the Subsidiary Guaranty), but excluding all Subsidiaries of Borrower that have been released from the Subsidiary Guaranty, and “Subsidiary Guarantor” means any one of the Subsidiary Guarantors. “Subsidiary Guaranty” means the Guaranty Agreement executed by each Subsidiary Guarantor in favor of Administrative Agent, for the benefit of the Lenders, in form and substance acceptable to Administrative Agent. “Successor Rate” has the meaning specified in Section 3.03(b). “Supported QFC” has the meaning specified in Section 11.21. “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, floor transactions, collar transactions, currency swap transactions, cross- currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement. “Swap Obligations” means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act. “Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender). “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property creating obligations that do not appear on the balance sheet of such Person but which, upon the
4925-8322-8116 v.5 25 insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment). “Tangible Net Worth” means, for the Consolidated Group as of any date, (a) total equity on a consolidated basis determined in accordance with GAAP, minus (b) all intangible assets on a consolidated basis determined in accordance with GAAP plus (c) all depreciation determined in accordance with GAAP. “Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto. “TD” means TD Bank, N.A. “TDS” means TD Securities (USA) LLC. “Term SOFR” means: (a) for any Interest Period with respect to a Term SOFR Rate Loan, the rate per annum equal to the Term SOFR Screen Rate two (2) U.S. Government Securities Business Days prior to the commencement of such Interest Period with a term equivalent to such Interest Period; provided that if the rate is not published prior to 11:00 a.m. Eastern Time on such determination date then Term SOFR means the Term SOFR Screen Rate on the first U.S. Government Securities Business Day immediately prior thereto; and (b) for any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to the Term SOFR Screen Rate with a term of one (1) month commencing that day; provided that if the Term SOFR determined in accordance with either of the foregoing clauses (a) or (b) of this definition would otherwise be less than zero (0), Term SOFR shall be deemed zero (0) for purposes of this Agreement. “Term SOFR Rate Loan” means a Loan made hereunder with respect to which the interest rate is calculated by reference to clause (a) of the definition of Term SOFR. “Term SOFR Replacement Date” has the meaning specified in Section 3.03(b). “Term SOFR Screen Rate” means the forward-looking SOFR term rate administered by CME (or any successor administrator satisfactory to Administrative Agent) and published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by Administrative Agent from time to time). “Threshold Amount” means $25,000,000. “Total Asset Value” means, at any time for the Consolidated Group, without duplication, the sum of the following: (a) an amount, not less than $0, equal to (i)(A) Net Operating Income from all Properties owned or leased (as ground lessee) by the Consolidated Group for the then most recently ended Calculation Period, minus Net Operating Income attributable to all Properties that were sold or otherwise disposed of during the then most recently ended Calculation Period minus (B) the Annual Capital Expenditure Adjustment with respect to such Properties, divided by (ii) the Capitalization Rate; plus
4925-8322-8116 v.5 26 (b) the aggregate acquisition costs, including all direct out-of-pocket costs and expenses in connection with each such acquisition, of all real property assets owned or leased (as ground lessee) as of such date by the Consolidated Group for less than four (4) full fiscal quarters; plus (c) the aggregate book value of all unimproved land holdings, mortgage or mezzanine loans, notes receivable and/or Construction-in- Progress Properties owned by the Consolidated Group; plus (d) without duplication of the amounts included in clauses (a), (b) and (c) above with respect to Unconsolidated Affiliates, the amounts described in clauses (a), (b) and (c) above of each Unconsolidated Affiliate of the Consolidated Group multiplied by the respective Unconsolidated Affiliate Interest of each member of the Consolidated Group in such Unconsolidated Affiliate; plus (e) all Unrestricted Cash; provided that the aggregate amount of Total Asset Value attributable to (i) unimproved land holdings shall not exceed five percent (5%) of Total Asset Value, (ii) Construction-in-Progress Properties shall not exceed twenty percent (20%) of Total Asset Value, (iii) Unconsolidated Affiliates shall not exceed ten percent (10%) of Total Asset Value, (iv) mortgages, mezzanine loans and notes receivable shall not exceed fifteen percent (15%) of Total Asset Value, and (v) Investments in the items described in the foregoing clauses (e)(i) through (e)(iv) shall not exceed thirty percent (30%) of Total Asset Value. “Total Indebtedness” means, as of any date, the sum of (a) all Indebtedness of the Consolidated Group, on a consolidated basis, as of such date, plus (b) without duplication of the amount included in clause (a) above with respect to Unconsolidated Affiliates, the amount described in clause (a) above of each Unconsolidated Affiliate of the Consolidated Group multiplied by the respective Unconsolidated Affiliate Interest of each member of the Consolidated Group in such Unconsolidated Affiliate. For purposes of this definition, Indebtedness shall not include surety bonds issued in the ordinary course of Borrower’s business so long as no demand for payment thereunder has been made on any member of the Consolidated Group. For the avoidance of doubt, any unsecured Guarantee by any member of the Consolidated Group of Secured Indebtedness of any other Person shall be treated as Total Indebtedness for the purpose of calculating the Total Leverage Ratio. “Total Leverage Ratio” means, as of any date, the ratio of (a) Total Indebtedness as of such date to (b) Total Asset Value. “Total Unsecured Indebtedness” means, as of any date, (a) all Unsecured Indebtedness of the Consolidated Group determined on a consolidated basis plus (b) without duplication of the amounts included in clause (a) above with respect to Unconsolidated Affiliates, the amounts described in clause (a) above of each Unconsolidated Affiliate of the Consolidated Group multiplied by the respective Unconsolidated Affiliate Interest of each member of the Consolidated Group in such Unconsolidated Affiliate. “Total Unsecured Leverage Ratio” means, as of any date, the ratio of (a) Total Unsecured Indebtedness as of such date to (b) Unencumbered Asset Value. “Type” means, with respect to a Loan, its character as a Base Rate Loan, a Term SOFR Rate Loan or a Daily SOFR Rate Loan. “UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person subject to IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms. “UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
4925-8322-8116 v.5 27 “Unconsolidated Affiliate” means, with respect to any Person, any other Person in whom such Person holds an Investment, which Investment is accounted for in the financial statements of such Person on an equity basis of accounting and whose financial statements are not required to be consolidated with the financial statements of Parent in accordance with GAAP. “Unconsolidated Affiliate Interest” means, with respect to any Unconsolidated Affiliate, the aggregate ownership percentage of such member of the Consolidated Group in such Unconsolidated Affiliate, which shall be calculated as the greater of (a) such member of the Consolidated Group’s direct or indirect nominal capital ownership interest in such Unconsolidated Affiliate as set forth in such Unconsolidated Affiliate’s Organization Documents, and (b) such member of the Consolidated Group’s direct or indirect economic ownership interest in such Unconsolidated Affiliate reflecting such member of the Consolidated Group’s current allocable share of income and expenses of such Unconsolidated Affiliate. “Unencumbered Asset Value” means, with respect to the Unencumbered Properties, as of any date, the sum of the following (without duplication): (a) an amount, not less than $0, equal to (i)(A) Net Operating Income for the most recently ended Calculation Period from all Unencumbered Properties owned or leased (as ground lessee) as of such date by the Consolidated Group for at least four (4) fiscal quarters, minus (B) the Annual Capital Expenditure Adjustment with respect to such Unencumbered Properties, divided by (ii) the Capitalization Rate; plus (b) the aggregate acquisition costs of all Unencumbered Properties owned or leased (as ground lessee) as of such date by the Consolidated Group for less than four (4) full fiscal quarters; provided that the amount of the Unencumbered Asset Value attributable to (x) any individual Unencumbered Property shall not exceed twenty-five percent (25%) of the total Unencumbered Asset Value and (y) Subsidiaries of Borrower that are not Wholly-Owned Subsidiaries shall not exceed twenty percent (20%) of the total Unencumbered Asset Value. “Unencumbered Interest Coverage Ratio” means, as of any date, the ratio of (a) Unencumbered NOI to (b) Unencumbered Interest Expense. “Unencumbered Interest Expense” means, as of any date, Interest Expense on the Total Unsecured Indebtedness for the most recently ended Calculation Period. “Unencumbered NOI” means, for the Unencumbered Properties, (a) in the case of any Unencumbered Property that is owned or leased (as ground lessee) for at least four (4) fiscal quarters, the Net Operating Income from such Unencumbered Property for the then most recently ended Calculation Period minus the Annual Capital Expenditure Adjustment with respect to such Unencumbered Property, plus (b) in the case of any Unencumbered Property that is owned or leased (as ground lessee) for less than four (4) fiscal quarters, the Net Operating Income from such Unencumbered Property for the then most recently ended fiscal quarter multiplied by four (4) minus the Annual Capital Expenditure Adjustment with respect to such Unencumbered Property. For the avoidance of doubt, (i) the Net Operating Income of an Unencumbered Property that is owned or leased (as ground lessee) for less than one (1) fiscal quarter will be included in calculating Unencumbered NOI as if such Unencumbered Property was owned or leased (as ground lessee) for the then most recently ended fiscal quarter, and (ii) the Net Operating Income of an Unencumbered Property that is sold within the fiscal quarter will be excluded in calculating Unencumbered NOI. “Unencumbered Properties” means, as of any date, each Eligible Unencumbered Property identified by Borrower in the most recent Compliance Certificate delivered to Administrative Agent. “Unencumbered Property” means any one of the Unencumbered Properties. “United States” and “U.S.” mean the United States of America.
4925-8322-8116 v.5 28 “Unrestricted Cash” means, as of any date, an amount equal to all cash and cash equivalents of the Consolidated Group that are not subject to a Lien, control agreement (excluding statutory liens in favor of any depositary bank where such cash is maintained) or Negative Pledge (other than under the Loan Documents). “Unsecured Indebtedness” means, for any Person as of any date, Indebtedness of such Person that is not Secured Indebtedness. For purposes hereof, any unsecured Guarantee by any member of the Consolidated Group of Secured Indebtedness of any other Person shall be treated as Unsecured Indebtedness only to the extent that the amount of the Secured Indebtedness guaranteed by any member of the Consolidated Group exceeds the aggregate market value of all property securing such Secured Indebtedness. “U.S. Government Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities. “U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code; provided that for purposes of Sections 6.26 and 8.19, “U.S. Person” means any United States citizen, lawful permanent resident, entity organized under the laws of the United States or any jurisdiction within the United States, including any foreign branch of any such entity, or any person in the United States. “U.S. Special Resolution Regimes” has the meaning specified in Section 11.21. “U.S. Tax Compliance Certificate” has the meaning specified in Section 3.01(g)(ii)(B)(3). “Wholly-Owned” means, with respect to the ownership by any Person of any Property, that one hundred percent (100%) of the title to such Property is held directly or indirectly by, or one hundred percent (100%) of such Property is leased pursuant to an Acceptable Ground Lease directly or indirectly by, such Person. “Wholly-Owned Subsidiary” means, with respect to any Person on any date, any corporation, partnership, limited liability company or other entity of which one hundred percent (100%) of the Equity Interests and one hundred percent (100%) of the ordinary voting power are, as of such date, owned and Controlled by such Person. “Withholding Agent” means Borrower and Administrative Agent. “Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
4925-8322-8116 v.5 29 1.02 Other Interpretive Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document: (a) 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, (i) any definition of or reference to any agreement, instrument or other document (including any Organization Document) 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 or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “hereto,” “herein,” “hereof” and “hereunder,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (vi) 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. (b) In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through” means “to and including.” (c) Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document. (d) Any reference herein to a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company, or an allocation of assets to a series of a limited liability company (or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with a separate Person. Any division of a limited liability company shall constitute a separate Person hereunder (and each division of any limited liability company that is a Subsidiary, joint venture or any other like term shall also constitute such a Person or entity). 1.03 Accounting Terms. (a) Generally. All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as
4925-8322-8116 v.5 30 otherwise specifically prescribed herein. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness of the Consolidated Group shall be deemed to be carried at one hundred percent (100%) of the outstanding principal amount thereof, and the effects of FASB ASC 825 on financial liabilities shall be disregarded. (b) Changes in GAAP. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either Borrower or Required Lenders shall so request, Administrative Agent, the Lenders and Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of Required Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) Borrower shall provide to Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein, all computations of amounts and ratios referred to herein shall be made in a manner such that any obligations relating to a capital lease that was accounted for as an operating lease, “Operating Lease Liability” or “Finance Lease Liability” (as those terms are used in the balance sheet of the Parent) as of October 3, 2019 and any similar lease entered into after October 3, 2019 shall be accounted for as obligations relating to an operating lease and not as a capital lease. 1.04 Rounding. Any financial ratios required to be maintained by Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number). 1.05 Times of Day; Rates. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable). 1.06 Interest Rates. Administrative Agent does not warrant, nor accept responsibility, nor shall Administrative Agent have any liability with respect to the administration, submission or any other matter related to any reference rate referred to herein or with respect to any rate (including, for the avoidance of doubt, the selection of such rate and any related spread or other adjustment) that is an alternative or replacement for or successor to any such rate (including, without limitation, any Successor Rate) (or any component of any of the foregoing) or the effect of any of the foregoing, or of any Conforming Changes. Administrative Agent and its affiliates or other related entities may engage in transactions or other activities that affect any reference rate referred to herein, or any alternative, successor or replacement rate (including, without limitation, any Successor Rate) (or any component of any of the foregoing) or any related spread or other adjustments thereto, in each case, in a manner adverse to Borrower. Administrative Agent may select information sources or services in its reasonable discretion to ascertain any reference rate referred to herein or any alternative, successor or replacement rate (including, without limitation, any Successor Rate) (or any component of any of the foregoing), in each case pursuant to the terms of this Agreement, and shall have no liability to Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or other action or omission related to or affecting the selection, determination, or calculation of any rate (or component thereof) provided by any such information source or service.
4925-8322-8116 v.5 31 Article II. The Commitments and Borrowings 2.01 The Loans. Subject to the terms and conditions set forth herein, each Lender severally agrees to make a single loan to Borrower on the Closing Date in an amount equal to such Lender’s Commitment. Amounts borrowed under this Section 2.01 and repaid or prepaid may not be reborrowed. Amounts borrowed under this Section 2.01 may be either Term SOFR Rate Loans or Daily SOFR Rate Loans, except as further provided herein. 2.02 Borrowings, Conversions and Continuations of Loans. (a) The initial Borrowing on the Closing Date, each conversion of Loans from one Type to the other, and each continuation of Term SOFR Rate Loans shall be made upon Borrower’s irrevocable notice to Administrative Agent, which may be given by (x) telephone or (y) a Committed Loan Notice; provided that any telephonic notice must be confirmed immediately by delivery to Administrative Agent of a Committed Loan Notice. Each such Committed Loan Notice must be received by Administrative Agent not later than 11:00 a.m. (i) two (2) Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Term SOFR Rate Loans or of any conversion of Term SOFR Rate Loans to Daily SOFR Rate Loans, and (ii) on the requested date of any Borrowing of Daily SOFR Rate Loans. Each Borrowing of, conversion to or continuation of Term SOFR Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Unless otherwise specified herein, no conversion from Term SOFR Rate Loans may be made other than at the end of the corresponding Interest Period. Each Committed Loan Notice shall specify (i) whether Borrower is requesting a Borrowing, a conversion of Loans from one Type to the other, or a continuation of Term SOFR Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Loans are to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto. If Borrower fails to specify a Type of Loan or Term SOFR in a Committed Loan Notice or if Borrower fails to give a timely notice requesting a conversion or continuation of Term SOFR Rate Loans, then the applicable Loans shall be made as, or converted to, Daily SOFR Rate Loans. Any such automatic conversion to Daily SOFR Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Term SOFR Rate Loans. If Borrower requests a Term SOFR Rate Loan, or a conversion to, or continuation of Term SOFR Rate Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one (1) month. (b) Following receipt of a Committed Loan Notice, Administrative Agent shall promptly notify each Lender of the amount of its Applicable Percentage of the Loans, and if no timely notice of a conversion or continuation is provided by Borrower, Administrative Agent shall notify each Lender of the details of any automatic continuation as Term SOFR Rate Loans described in the preceding subsection. In the case of a Borrowing, each Lender shall make the amount of its Loan available to Administrative Agent in immediately available funds at Administrative Agent’s Office not later than 1:00 p.m. on the Business Day specified in the applicable Committed Loan Notice. Upon satisfaction of the applicable conditions set forth in Article V, Administrative Agent shall make all funds so received available to Borrower in like funds as received by Administrative Agent either by (i) crediting the account of Borrower on the books of TD with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) Administrative Agent by Borrower.
4925-8322-8116 v.5 32 (c) Administrative Agent shall promptly notify Borrower and the Lenders of the interest rate applicable to any Interest Period for Term SOFR Rate Loans upon determination of the same. (d) Without limitation of any other conditions herein, a Borrowing or continuation of, or conversion to Term SOFR Rate Loans shall not be permitted if: (i) an Event of Default or a Default has occurred and is continuing and has not been waived by Required Lenders or all Lenders, as applicable; (ii) the requested Borrowing or continuation of or conversion to Term SOFR Rate Loans would cause more than ten (10) Interest Periods to be in effect at any one (1) time for Term SOFR Rate Loans, after giving effect to all Term SOFR Rate Loans, all conversions of Loans from one (1) Type to another, and all continuations of Loans as the same Type; (iii) the requested interest period does not conform to the definition of Interest Period herein; or (iv) any of the circumstances referred to in Section 3.03 shall apply with respect to the requested Borrowing or continuation of or conversion to Term SOFR Rate Loans. (e) Borrower may not request a Borrowing of, or conversion to, Base Rate Loans unless Daily SOFR Rate Loans and Term SOFR Rate Loans are unavailable, as further provided herein. (f) With respect to Term SOFR and Daily Simple SOFR, Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document; provided that, with respect to any such amendment effected, Administrative Agent shall post each such amendment implementing such Conforming Changes to Borrower and the Lenders reasonably promptly after such amendment becomes effective. (g) Notwithstanding anything to the contrary in this Agreement, any Lender may exchange, continue or rollover all of the portion of its Loans in connection with any refinancing, extension, loan modification or similar transaction permitted by the terms of this Agreement, pursuant to a cashless settlement mechanism approved by Borrower, Administrative Agent, and such Lender. 2.03 Prepayments. Borrower may, upon notice to Administrative Agent, at any time or from time to time voluntarily prepay Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by Administrative Agent in writing not later than 11:00 a.m. (A) three (3) Business Days prior to any date of prepayment of Term SOFR Rate Loans and (B) on the date of prepayment of Daily SOFR Rate Loans or Base Rate Loans; (ii) any prepayment of Term SOFR Rate Loans or Daily SOFR Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof (except with respect to a prepayment of the Loans in full); (iii) any prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof (except with respect to a prepayment of the Loans in full) or, in each case, if
4925-8322-8116 v.5 33 less, the entire principal amount thereof then outstanding; (iv) if such prepayment is on or before October 28, 2027, then Borrower shall, concurrently with such prepayment, pay to Administrative Agent, for the account of Lenders, a prepayment penalty equal to two percent (2%) of the principal amount of the Loan prepaid, concurrently with such prepayment; (v) if such prepayment is after October 28, 2027 but on or before October 27, 2028, then Borrower shall, concurrently with such prepayment, pay to Administrative Agent, for the account of Lenders, a prepayment penalty equal to one percent (1%) of the principal amount of the Loan prepaid, concurrently with such prepayment; and (vi) if such prepayment is after October 28, 2027, then such prepayment shall be made without premium or penalty. Each such notice shall specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid and, if Term SOFR Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s ratable portion of such prepayment. If such notice is given by Borrower, Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Loan shall be accompanied by all accrued interest on the amount prepaid, together with, in the case of any Term SOFR Rate Loans, any additional amounts required pursuant to Section 3.05. Subject to Section 2.13, each such prepayment shall be paid to the Lenders in accordance with their respective Applicable Percentages. 2.04 Termination or Reduction of Commitments. The Commitments shall be automatically and permanently reduced to zero (0) on the date of the initial Borrowing of Loans pursuant to Section 2.01 on the Closing Date. 2.05 Repayment of Loans. Borrower shall repay to the Lenders on the Maturity Date the aggregate principal amount of all Loans outstanding on such date. 2.06 Interest. (a) Facility. Subject to the provisions of subsection (b) below, (i) each Daily SOFR Rate Loan shall bear interest on the outstanding principal amount thereof at a rate per annum equal to Daily Simple SOFR plus the Applicable Rate applicable to Daily SOFR Rate Loans; (ii) each Term SOFR Rate Loan for any Interest Period shall bear interest on the outstanding principal amount thereof at a rate per annum equal to Term SOFR for such Interest Period plus the Applicable Rate applicable to Term SOFR Rate Loans; and (iii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof at a rate per annum equal to the Base Rate for such Interest Period plus the Applicable Rate applicable to Base Rate Loans. (b) Default Interest. (i) If any amount of principal of any Loan is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws. (ii) If any amount (other than principal of any Loan) payable by Borrower under any Loan Document is not paid when due (without regard to any applicable grace periods set forth in Section 9.01(a)), whether at stated maturity, by acceleration or otherwise, then upon the request of Required Lenders, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
4925-8322-8116 v.5 34 (iii) Upon the request of Required Lenders, while any Event of Default exists (other than as set forth in clauses (b)(i) and (b)(ii) above), Borrower shall pay interest on the principal amount of all outstanding Obligations hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws. (iv) Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand. (c) Payment. Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law. 2.07 Fees. (a) Borrower shall pay to Arrangers and Administrative Agent for their own respective accounts fees in the amounts and at the times specified in the Fee Letter. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever. (b) Borrower shall pay to the Lenders such fees as shall have been separately agreed upon in writing in the amounts and at the times so specified. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever. 2.08 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate. (a) All computations of interest for Base Rate Loans (including Base Rate Loans determined by reference to the Term SOFR Rate) shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.10(a), bear interest for one day. Each determination by Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error. (b) If, as a result of any restatement of or other adjustment to the financial statements of Borrower or for any other reason, Borrower or the Lenders determine that (i) the Total Leverage Ratio as calculated by Borrower as of any applicable date was inaccurate and (ii) a proper calculation of the Total Leverage Ratio would have resulted in higher pricing for such period, Borrower shall immediately and retroactively be obligated to pay to Administrative Agent for the account of the applicable Lenders promptly on demand by Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to Borrower 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. This paragraph shall not limit the rights of Administrative Agent, any Lender under Section 2.06(b) or under Article IX. Borrower’s obligations under this paragraph shall
4925-8322-8116 v.5 35 survive the termination of the Commitments and the repayment of all other Obligations hereunder. 2.09 Evidence of Debt. The Loans made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by Administrative Agent in the ordinary course of business. The accounts or records maintained by Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Loans made by the Lenders to Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of Administrative Agent in respect of such matters, the accounts and records of Administrative Agent shall control in the absence of manifest error. Upon the request of any Lender made through Administrative Agent, Borrower shall execute and deliver to such Lender (through Administrative Agent) one or more Notes, which shall evidence such Lender’s Loans in addition to such accounts or records. Each Lender may attach schedules to its Notes and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto. 2.10 Payments Generally; Administrative Agent’s Clawback. (a) General. All payments to be made by Borrower shall be made free and clear of and without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by Borrower hereunder shall be made to Administrative Agent, for the account of the respective Lenders to which such payment is owed, at Administrative Agent’s Office in Dollars and in immediately available funds not later than 2:30 p.m. on the date specified herein. Administrative Agent will promptly distribute to each Lender its Applicable Percentage (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office; provided that any such payment shall, to the extent distributed after the Business Day following Administrative Agent’s receipt thereof, be accompanied by interest on such payment amount (payable by Administrative Agent) calculated at the Federal Funds Rate commencing as of the date which is two (2) days following the Business Day following Administrative Agent’s receipt of such payment through the date on which Administrative Agent makes such payment to the applicable Lender(s). All payments received by Administrative Agent after 2:30 p.m. shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be. (b) Clawback. (i) Funding by Lenders; Presumption by Administrative Agent. Unless Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of Loans that such Lender will not make available to Administrative Agent such Lender’s share of such Borrowing, Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to Administrative Agent, then the applicable Lender and Borrower severally agree to pay to Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to Borrower to but excluding the date
4925-8322-8116 v.5 36 of payment to Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by Borrower, the interest rate applicable to Daily SOFR Rate Loans. If Borrower and such Lender shall pay such interest to Administrative Agent for the same or an overlapping period, Administrative Agent shall promptly remit to Borrower the amount of such interest paid by Borrower for such period. If such Lender pays its share of the applicable Borrowing to Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by Borrower shall be without prejudice to any claim Borrower may have against a Lender that shall have failed to make such payment to Administrative Agent. (ii) Payments by Borrower; Presumptions by Administrative Agent. Unless Administrative Agent shall have received notice from Borrower prior to the date on which any payment is due to Administrative Agent for the account of the Lenders that Borrower will not make such payment, Administrative Agent may assume that Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due. With respect to any payment that Administrative Agent makes for the account of the Lenders as to which Administrative Agent determines (which determination shall be conclusive absent manifest error) that any of the following applies (such payment referred to as the “Rescindable Amount”): (1) Borrower has not in fact made such payment; (2) Administrative Agent has made a payment in excess of the amount so paid by Borrower (whether or not then owed); or (3) Administrative Agent has for any reason otherwise erroneously made such payment; then each of the Lenders severally agrees to repay to Administrative Agent forthwith on demand the Rescindable Amount so distributed to such Lender, in immediately available funds 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 Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by Administrative Agent in accordance with banking industry rules on interbank compensation. A notice of Administrative Agent to any Lender or Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest error. (c) Failure to Satisfy Conditions Precedent. If any Lender makes available to Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to Borrower by Administrative Agent because the conditions to the applicable Borrowing set forth in Article V are not satisfied or waived in accordance with the terms hereof, Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest. (d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make Loans and to make payments pursuant to Section 11.04(c) are several and not joint. The failure of any Lender to make any Loan or to make any payment under Section 11.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 11.04(c).
4925-8322-8116 v.5 37 (e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner. 2.11 Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of (a) Obligations in respect of the Facility due and payable to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations due and payable to such Lender at such time to (ii) the aggregate amount of the Obligations in respect of the Facility due and payable to all Lenders hereunder and under the other Loan Documents at such time) of payments on account of the Obligations in respect of the Facility due and payable to all Lenders hereunder and under the other Loan Documents at such time obtained by all the Lenders at such time or (b) Obligations in respect of any of the Facility owing (but not due and payable) to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations owing (but not due and payable) to such Lender at such time to (ii) the aggregate amount of the Obligations in respect of the Facility owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time) of payment on account of the Obligations in respect of the Facility owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time obtained by all of the Lenders at such time,, then the Lender receiving such greater proportion shall (x) notify Administrative Agent of such fact, and (y) purchase (for cash at face value) participations in the Loans, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of Obligations in respect of the Facility then due and payable to the Lenders or owing (but not due and payable) to the Lenders, as the case may be, provided that: (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and (ii) the provisions of this Section 2.11 shall not be construed to apply to (y) any payment made by or on behalf of Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), or (z) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or participant, other than an assignment to Borrower or any Affiliate thereof (as to which the provisions of this Section 2.11 shall apply). Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation. 2.12 Increase in Commitments. (a) Request for Increase. Provided there exists no Default, upon notice to Administrative Agent (which shall promptly notify the Lenders), Borrower may from time to time, request an increase in the Outstanding Amount of Loans of all Lenders by an amount (for all such requests) not exceeding $150,000,000; provided that (i) any such request for an increase shall be in a minimum amount of $25,000,000, (ii) Borrower may make a maximum of three (3)
4925-8322-8116 v.5 38 such requests and (iii) after giving effect to each such request, the Outstanding Amount of Loans of all Lenders shall not exceed $250,000,000. At the time of sending such notice, Borrower (in consultation with 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). (b) Lender Elections to Increase. Each Lender shall notify Administrative Agent within such time period whether or not it agrees to increase its Loans 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 Loans. (c) Notification by Administrative Agent; Additional Lenders. Administrative Agent shall notify 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 Administrative Agent (which approval shall not be unreasonably withheld), Borrower may also invite additional Eligible Assignees to become Lenders (each, an “Additional Lender”) pursuant to a joinder agreement in form and substance satisfactory to Administrative Agent and its counsel. (d) Effective Date and Allocations. If the Outstanding Amount of Loans of any Lender is to be increased in accordance with this Section 2.12, Administrative Agent and Borrower shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase. Administrative Agent shall promptly notify Borrower and the Lenders of the final allocation of such increase and the Increase Effective Date. On the Increase Effective Date, each such Lender shall make an additional Loan (or increase in existing Loans) in an amount equal to such Lender’s Applicable Percentage of such increase. (e) Conditions to Effectiveness of Increase. As a condition precedent to such increase, (i) before and after giving effect to such increase, (A) the representations and warranties contained in Article VI and the other Loan Documents are true and correct in all material respects (without duplication of any materiality qualifiers therein) 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 as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 6.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 7.01, and (B) no Default exists; (ii) Borrower shall deliver to Administrative Agent a certificate of each Loan Party dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (x) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (y) in the case of Borrower, certifying that the conditions set forth in Section 2.12(e)(i) have been satisfied; and (iii) (A) upon the reasonable request of any Additional Lender made at least seven (7) days prior to the Increase Effective Date, Borrower shall have provided to such Additional Lender, and such Additional Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Act, in each case at least three (3) days prior to the Increase Effective Date and (B) at least three (3) days prior to the Increase Effective Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party. To the extent that the increase of the Commitments shall take the form of a new term loan tranche, this
4925-8322-8116 v.5 39 Agreement shall be amended, in form and substance satisfactory to Administrative Agent and Borrower, to include such terms as are customary for a term loan commitment. Each Loan Party shall execute and deliver such documents or instruments as Administrative Agent may require to evidence such increase in the Outstanding Amount of Loans of any Lender and to ratify each such Loan Party’s continuing obligations hereunder and under the other Loan Documents. (f) Conflicting Provisions. This Section 2.12 shall supersede any provisions in Section 2.11 or 11.01 to the contrary. 2.13 Defaulting Lenders. (a) Adjustments. Notwithstanding anything to the contrary contained in this 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. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of “Required Lenders” and Section 11.01. (ii) Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article IX or otherwise) or received by Administrative Agent from a Defaulting Lender pursuant to Section 11.08), 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 such Defaulting Lender to Administrative Agent hereunder; second, as Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by Administrative Agent; third, if so determined by Administrative Agent and Borrower, to be held in a deposit account and released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement; fourth, to the payment of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifth, so long as no Default or Event of Default exists, to the payment of any amounts owing to Borrower as a result of any judgment of a court of competent jurisdiction obtained by Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and sixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans in respect of which such Defaulting Lender has not fully funded its appropriate share and (y) such Loans were made at a time when the conditions set forth in Article V were satisfied or waived, such payment shall be applied solely to pay the Loans of all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of such Defaulting Lender until such time as all Loans and funded are held by the Lenders pro rata in accordance with the Commitments hereunder. 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 shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
4925-8322-8116 v.5 40 (b) Defaulting Lender Cure. If Borrower and Administrative Agent agree in writing that a Lender is no longer 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, that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as Administrative Agent may determine to be necessary to cause the Loans to be held on a pro rata basis by the Lenders in accordance with their Applicable Percentages, whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Article III. Taxes, Yield Protection and Illegality 3.01 Taxes. (a) Defined Terms. For purposes of this Section 3.01, the term “Applicable Law” includes FATCA and all other applicable Laws binding upon such Person or to which such a Person is subject. (b) Payments Free of Taxes. Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by Applicable Law. If any Applicable Law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with Applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 3.01) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made. (c) Payment of Other Taxes by Borrower. The Loan Parties shall timely pay to the relevant Governmental Authority in accordance with Applicable Law, or at the option of Administrative Agent timely reimburse it for the payment of, any Other Taxes. (d) Indemnification by Borrower. Each of the Loan Parties shall indemnify each Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 3.01) 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 Borrower by a Lender (with a copy to Administrative Agent), or by Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. (e) Indemnification by the Lenders. Each Lender shall severally indemnify Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes
4925-8322-8116 v.5 41 attributable to such Lender (but only to the extent that any Loan Party has not already indemnified Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 11.06(d) 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 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 Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes 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 Administrative Agent to the Lender from any other source against any amount due to Administrative Agent under this clause (e). (f) Evidence of Payments. As soon as practicable after any payment of Taxes by Borrower to a Governmental Authority as provided in this Section 3.01, Borrower shall deliver to Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by Laws to report such payment or other evidence of such payment reasonably satisfactory to Administrative Agent. (g) Status of Lenders; Tax Documentation. (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 Borrower and Administrative Agent, at the time or times reasonably requested by Borrower or Administrative Agent, such properly completed and executed documentation reasonably requested by Borrower or 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 Borrower or Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by Borrower or Administrative Agent as will enable Borrower or 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 Section 3.01(g)(ii)(A), 3.01(g)(ii)(B) and 3.01(g)(ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. (ii) Without limiting the generality of the foregoing, in the event that Borrower is a U.S. Person: (A) any Lender that is a U.S. Person shall deliver to Borrower and 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 Borrower or Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax; (B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Borrower and Administrative Agent (in such number of copies as
4925-8322-8116 v.5 42 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 Borrower or Administrative Agent), whichever of the following is applicable: (1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN-E (or W-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W- 8BEN-E (or W-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty; (2) executed copies of IRS Form W-8ECI, (3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit E-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 Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN-E (or W-8BEN, as applicable); or (4) to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN-E (or W-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit E-2 or Exhibit E-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 E-4 on behalf of each such direct and indirect partner; (C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Borrower and 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 Borrower or Administrative Agent), executed copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit Borrower or Administrative Agent to determine the withholding or deduction required to be made; and
4925-8322-8116 v.5 43 (D) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to Borrower and Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by Borrower or Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by Borrower or Administrative Agent as may be necessary for Borrower and 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. (iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify Borrower and Administrative Agent in writing of its legal inability to do so. (h) FATCA. For purposes of determining withholding Taxes imposed under FATCA from and after the date hereof, Borrower and Administrative Agent will treat (and the Lenders hereby authorize Administrative Agent to treat) the Obligations under this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i). (i) Treatment of Certain Refunds. Unless required by applicable Laws, at no time shall Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender, or have any obligation to pay to any Lender, any refund of Taxes withheld or deducted from funds paid for the account of such Lender. If any Recipient 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 by any Loan Party or with respect to which any Loan Party has paid additional amounts pursuant to this Section 3.01, it shall pay to the Loan Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by a Loan Party under this Section 3.01 with respect to the Taxes giving rise to such refund), net of all out- of-pocket expenses (including Taxes) incurred by such Recipient, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that the Loan Party, upon the request of the Recipient, agrees to repay the amount paid over to the Loan Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Recipient in the event the Recipient is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (h), in no event will the applicable Recipient be required to pay any amount to the Loan Party pursuant to this clause (h) the payment of which would place the Recipient in a less favorable net after-Tax position than such Recipient would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This subsection shall not be construed to require any Recipient to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Loan Party or any other Person.
4925-8322-8116 v.5 44 (j) Survival. Each party’s obligations under this Section 3.01 shall survive the resignation or replacement of 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 other Obligations. 3.02 Illegality. If any Lender determines that any 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 SOFR, Term SOFR, or Daily Simple SOFR, or to determine or charge interest rates based upon SOFR, Term SOFR or Daily Simple SOFR, or any Governmental Authority has imposed material restrictions on the authority of such Lender to engage in reverse repurchase of U.S. Treasury securities transactions of the type included in the determination of SOFR, then, on notice thereof by such Lender to Borrower through Administrative Agent, (a) any obligation of such Lender to make or continue either Term SOFR Rate Loans or Daily SOFR Rate Loans shall be suspended and (b) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Term SOFR component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by Administrative Agent without reference to the Term SOFR component of the Base Rate, in each case until such Lender notifies Administrative Agent and Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (i) Borrower shall, upon demand from such Lender (with a copy to Administrative Agent), prepay or, if applicable, convert all Term SOFR Rate Loans of such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by Administrative Agent without reference to the Term SOFR component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Term SOFR Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Term SOFR Rate Loans, (ii) Borrower shall, upon demand from such Lender (with a copy to Administrative Agent), immediately prepay or, if applicable, convert all Daily SOFR Rate Loans of such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by Administrative Agent without reference to the Term SOFR component of the Base Rate), and (iii) if such notice asserts the illegality of such Lender determining or charging interest rates based upon SOFR, Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to Term SOFR component thereof 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 SOFR. Upon any such prepayment or conversion, Borrower shall also pay accrued interest on the amount so prepaid or converted, together with any additional amounts required pursuant to Section 3.05. 3.03 Inability to Determine Rates. (a) If in connection with any request for a Term SOFR Rate Loan, or Daily SOFR Rate Loan, or a conversion of Daily SOFR Rate Loans to Term SOFR Rate Loans or a continuation of any of such advances, as applicable, (a) Administrative Agent determines (which determination shall be conclusive absent manifest error) that (i) no Successor Rate has been determined in accordance with Section 3.03(a), and the circumstances under Section 3.03(b) or the Scheduled Unavailability Date has occurred, or (ii) adequate and reasonable means do not otherwise exist for determining Term SOFR for any requested Interest Period with respect to a proposed Term SOFR Rate Loan or in connection with an existing or proposed Base Rate Loan, or (iii) adequate and reasonable means do not otherwise exist for determining Daily Simple SOFR in connection with an existing or proposed Daily SOFR Rate Loan, or (b) Administrative Agent or Required Lenders determine that for any reason that Term SOFR for any requested Interest Period or Daily Simple SOFR with respect to a proposed advance does not adequately and fairly
4925-8322-8116 v.5 45 reflect the cost to such Lenders of funding such advance, Administrative Agent will promptly so notify Borrower and each Lender. Thereafter, (x) the obligation of Lenders to make or maintain Term SOFR Rate Loans, Daily SOFR Rate Loans, or to convert Daily SOFR Rate Loans to Term SOFR Rate Loans, shall be suspended (to the extent of the affected Term SOFR Rate Loans, Daily SOFR Rate Loans, or Interest Periods), and (y) in the event of a determination described in the preceding sentence with respect to the Term SOFR component of the Base Rate, the utilization of the Term SOFR component in determining the Base Rate shall be suspended, in each case until Administrative Agent (or, in the case of a determination by Required Lenders described in Section 3.03(a), until Administrative Agent upon instruction of Required Lenders) revokes such notice. Upon receipt of such notice, (1) Borrower may revoke any pending request for a borrowing of, or conversion to, or continuation of Term SOFR Rate Loans or Daily SOFR Rate Loans (to the extent of the affected Term SOFR Rate Loans, Daily SOFR Rate Loans, or Interest Periods) or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified therein, (2) any outstanding Term SOFR Rate Loans shall be deemed to have been converted to Base Rate Loans immediately at the end of their respective applicable Interest Period, and (3) any outstanding Daily SOFR Rate Loans shall immediately be deemed to have been converted to Base Rate Loans. (b) Notwithstanding anything to the contrary in this Agreement or any other Loan Documents, if Administrative Agent determines (which determination shall be conclusive absent manifest error), or Borrower or Required Lenders notify Administrative Agent (with, in the case of Required Lenders, a copy to Borrower) that Borrower or Required Lenders (as applicable) have determined, that: (i) if adequate and reasonable means do not exist for ascertaining one (1) month or three (3) month interest periods of Term SOFR, including because the Term SOFR Screen Rate is not available or published on a current basis and such circumstances are unlikely to be temporary; or (ii) CME or any successor administrator of the Term SOFR Screen Rate or a Governmental Authority having jurisdiction over Administrative Agent or such administrator with respect to its publication of Term SOFR, in each case acting in such capacity, has made a public statement identifying a specific date after which one (1) month and three (3) month interest periods of Term SOFR or the Term SOFR Screen Rate shall or will no longer be made available, or permitted to be used for determining the interest rate of Dollar denominated syndicated loans, or shall or will otherwise cease, provided that, at the time of such statement, there is no successor administrator that is satisfactory to Administrative Agent, that will continue to provide such interest periods of Term SOFR after such specific date (the latest date on which one (1) month and three (3) month interest periods of Term SOFR or the Term SOFR Screen Rate are no longer available permanently or indefinitely, the “Scheduled Unavailability Date”); then, on a date and time determined by Administrative Agent (any such date, the “Term SOFR Replacement Date”), which date shall be at the end of an Interest Period or on the relevant interest payment date, as applicable, for interest calculated and, solely with respect to clause (a) above, no later than the Scheduled Unavailability Date, Term SOFR will be replaced hereunder and under any Loan Document with Daily Simple SOFR for any payment period for interest calculated that can be determined by Administrative Agent, in each case, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document (the “Successor Rate”).
4925-8322-8116 v.5 46 If the Successor Rate is Daily Simple SOFR, all interest payments will be payable on a monthly basis. Notwithstanding anything to the contrary herein, (i) if Administrative Agent determines that Daily Simple SOFR is not available on or prior to the Term SOFR Replacement Date, or (ii) if the events or circumstances of the type described in clauses (a) or (b) above have occurred with respect to Daily Simple SOFR or the Successor Rate then in effect, then in each case, Administrative Agent and Borrower may amend this Agreement solely for the purpose of replacing Term SOFR, Daily Simple SOFR, and/or any then current Successor Rate in accordance with this Section at the end of any Interest Period, relevant interest payment date or payment period for interest calculated, as applicable, with an alternative benchmark rate giving due consideration to any evolving or then existing convention for similar Dollar denominated credit facilities syndicated and agented in the United States for such alternative benchmark. and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for similar Dollar denominated credit facilities syndicated and agented in the United States for such benchmark, which adjustment or method for calculating such adjustment shall be published on an information service as selected by Administrative Agent from time to time in its reasonable discretion and may be periodically updated. For the avoidance of doubt, any such proposed rate and adjustments, shall constitute a “Successor Rate”. Any such amendment shall become effective at 5:00 p.m. on the fifth (5th) Business Day after Administrative Agent shall have posted such proposed amendment to all Lenders and Borrower unless, prior to such time, Lenders comprising the Required Lenders have delivered to Administrative Agent written notice that such Required Lenders object to such amendment. Administrative Agent will promptly (in one (1) or more notices) notify Borrower and each Lender of the implementation of any Successor Rate. Any Successor Rate shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for Administrative Agent, such Successor Rate shall be applied in a manner as otherwise reasonably determined by Administrative Agent. Notwithstanding anything else herein, if at any time any Successor Rate as so determined would otherwise be less than zero (0) the Successor Rate will be deemed to be zero (0) for the purposes of this Agreement and the other Loan Documents. In connection with the implementation of a Successor Rate, Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement; provided that, with respect to any such amendment effected, Administrative Agent shall post each such amendment implementing such Conforming Changes to Borrower and the Lenders reasonably promptly after such amendment becomes effective. 3.04 Increased Costs. (a) Increased Costs Generally. If any Change in Law shall: (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender;
4925-8322-8116 v.5 47 (ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or (iii) impose on any Lender any other condition, cost or expense (other than Taxes) affecting this Agreement or Term SOFR Rate Loans or Daily SOFR Rate Loans made by such Lender; and the result of any of the foregoing shall be to increase the cost to such Lender of making, converting to, continuing or maintaining any Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender, or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or any other amount) then, upon request of such Lender, Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender for such additional costs actually incurred or reduction actually suffered. (b) Capital Requirements. If any Lender determines that any Change in Law affecting such Lender or any Lending Office of such Lender or such Lender’s holding company, if any, regarding capital or liquidity ratios or requirements has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by such Lender to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy), then from time to time Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered. (c) Certificates for Reimbursement. A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in subsection (a) or (b) of this Section and delivered to Borrower shall be conclusive absent manifest error. Borrower shall pay such Lender the amount shown as due on any such certificate within thirty (30) days after receipt thereof. (d) Delay in Requests. Failure or delay on the part of any Lender to demand compensation pursuant to the foregoing provisions of this Section 3.04 shall not constitute a waiver of such Lender’s right to demand such compensation, provided that Borrower shall not be required to compensate a Lender pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than nine (9) months prior to the date that such Lender notifies Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine- month period referred to above shall be extended to include the period of retroactive effect thereof). 3.05 Compensation for Losses. Upon demand of any Lender (with a copy to Administrative Agent) from time to time, Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense actually incurred by it as a result of:
4925-8322-8116 v.5 48 (a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise); (b) any failure by Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the amount notified by Borrower; or (c) any assignment of a Term SOFR Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by Borrower pursuant to Section 11.13; including any loss of anticipated profits and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained. Borrower shall also pay any customary administrative fees charged by such Lender in connection with the foregoing. The amounts payable by Borrower under this Section 3.05, shall never be less than zero (0) or greater than is permitted by applicable Law. For the avoidance of doubt, no amounts will be owing under this Section 3.05 in connection with the prepayment of any Daily SOFR Rate Loan or Base Rate Loan (if any). 3.06 Mitigation Obligations; Replacement of Lenders. (a) Designation of a Different Lending Office. If any Lender requests compensation under Section 3.04, or requires Borrower to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then at the request of Borrower such Lender shall use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and (ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. Borrower hereby agrees to pay all reasonable out-of-pocket costs and expenses incurred by any Lender in connection with any such designation or assignment. (b) Replacement of Lenders. If any Lender requests compensation under Section 3.04, or if Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01 and, in each case, such Lender has declined or is unable to designate a different lending office in accordance with Section 3.06(a), Borrower may replace such Lender in accordance with Section 11.13. 3.07 Survival. All of Borrower’s obligations under this Article III shall survive termination of the Commitments, repayment of all other Obligations hereunder, and resignation of Administrative Agent.
4925-8322-8116 v.5 49 Article IV. Parent Guaranty 4.01 The Guaranty. Parent hereby guarantees to Administrative Agent and each of the holders of the Obligations, as hereinafter provided, as primary obligor and not as surety, the prompt payment of the Obligations (the “Guaranteed Obligations”) in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration or otherwise) strictly in accordance with the terms thereof. Parent hereby further agrees that if any of the Guaranteed Obligations are not paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration or otherwise), Parent will promptly pay the same, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, as a mandatory prepayment, by acceleration, or otherwise) in accordance with the terms of such extension or renewal. 4.02 Obligations Unconditional. The obligations of Parent under Section 4.01 are absolute and unconditional, irrespective of the value, genuineness, validity, regularity or enforceability of any of the Loan Documents or other documents relating to the Obligations, or any substitution, compromise, release, impairment or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, to the fullest extent permitted by applicable Laws, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being the intent of this Section 4.02 that the obligations of Parent hereunder shall be absolute and unconditional under any and all circumstances. Parent agrees that Parent shall have no right of subrogation, indemnity, reimbursement or contribution against Borrower or any other Guarantor for amounts paid under this Article IV until such time as the Obligations have been irrevocably paid in full and the commitments relating thereto have expired or been terminated. Without limiting the generality of the foregoing, it is agreed that, to the fullest extent permitted by applicable Laws, the occurrence of any one or more of the following shall not alter or impair the liability of Parent hereunder, which shall remain absolute and unconditional as described above: (a) at any time or from time to time, without notice to Parent, the time for any performance of or compliance with any of the Guaranteed Obligations shall be extended, or such performance or compliance shall be waived; (b) any of the acts mentioned in any of the provisions of any of the Loan Documents, or other documents relating to the Guaranteed Obligations or any other agreement or instrument referred to therein shall be done or omitted; (c) the maturity of any of the Guaranteed Obligations shall be accelerated, or any of the Obligations shall be modified, supplemented or amended in any respect, or any right under any of the Loan Documents or other documents relating to the Guaranteed Obligations, or any other agreement or instrument referred to therein shall be waived or any other guarantee of any of the Guaranteed Obligations or any security therefor shall be released, impaired or exchanged in whole or in part or otherwise dealt with; (d) any Lien granted to, or in favor of, Administrative Agent or any of the holders of the Guaranteed Obligations as security for any of the Guaranteed Obligations shall fail to attach or be perfected; or (e) any of the Guaranteed Obligations shall be determined to be void or voidable (including, without limitation, for the benefit of any creditor of Parent) or shall be subordinated to the claims of any Person (including, without limitation, any creditor of Parent).
4925-8322-8116 v.5 50 With respect to its obligations hereunder, Parent hereby expressly waives diligence, presentment, demand of payment, protest notice of acceptance of the guaranty given hereby and of Borrowings that may constitute obligations guaranteed hereby, notices of amendments, waivers and supplements to the Loan Documents and other documents relating to the Guaranteed Obligations, or the compromise, release or exchange of collateral or security, and all notices whatsoever, and any requirement that Administrative Agent or any holder of the Guaranteed Obligations exhaust any right, power or remedy or proceed against any Person under any of the Loan Documents or any other documents relating to the Guaranteed Obligations or any other agreement or instrument referred to herein. 4.03 Reinstatement. Neither Parent’s obligations hereunder nor any remedy for the enforcement thereof shall be impaired, modified, changed or released in any manner whatsoever by an impairment, modification, change, release or limitation of the liability of Borrower, by reason of Borrower’s bankruptcy or insolvency or by reason of the invalidity or unenforceability of all or any portion of the Guaranteed Obligations. The obligations of Parent under this Article IV shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of any Person in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Obligations, whether as a result of any proceedings pursuant to any Debtor Relief Law or otherwise, and Parent agrees that it will indemnify Administrative Agent and each holder of Guaranteed Obligations on demand for all reasonable out-of-pocket costs and expenses (including all reasonable fees, expenses and disbursements of any law firm or other outside counsel incurred by Administrative Agent) incurred by Administrative Agent or such holder of Guaranteed Obligations in connection with such rescission or restoration, including any such costs and expenses incurred in defending against any claim alleging that such payment constituted a preference, fraudulent transfer or similar payment under any Debtor Relief Law. 4.04 Certain Waivers. Parent acknowledges and agrees that (a) the guaranty given hereby may be enforced without the necessity of resorting to or otherwise exhausting remedies in respect of any other security or collateral interests, and without the necessity at any time of having to take recourse against Borrower hereunder or against any collateral securing the Guaranteed Obligations or otherwise, (b) it will not assert any right to require the action first be taken against Borrower or any other Person (including any co guarantor) or pursuit of any other remedy or enforcement any other right and (c) nothing contained herein shall prevent or limit action being taken against Borrower hereunder, under the other Loan Documents or the other documents and agreements relating to the Guaranteed Obligations or from foreclosing on any security or collateral interests relating hereto or thereto, or from exercising any other rights or remedies available in respect thereof, if neither Borrower nor Guarantors shall timely perform their obligations, and the exercise of any such rights and completion of any such foreclosure proceedings shall not constitute a discharge of Parent’s obligations hereunder unless as a result thereof, the Guaranteed Obligations shall have been paid in full and the commitments relating thereto shall have expired or been terminated, it being the purpose and intent that Parent’s obligations hereunder be absolute, irrevocable, independent and unconditional under all circumstances. 4.05 Remedies. Parent agrees that, to the fullest extent permitted by applicable Laws, as between Guarantors, on the one hand, and Administrative Agent and the holders of the Guaranteed Obligations, on the other hand, the Guaranteed Obligations may be declared to be forthwith due and payable as provided in Section 9.02 (and shall be deemed to have become automatically due and payable in the circumstances provided in Section 9.02) for purposes of Section 4.01, notwithstanding any stay, injunction or other prohibition preventing such declaration (or preventing the Guaranteed Obligations from becoming automatically due and payable) as against any other Person and that, in the event of such declaration (or the Guaranteed Obligations being deemed to have become automatically due and payable), the Guaranteed Obligations (whether or not due and payable by any other Person) shall forthwith become due and payable by Parent for purposes of Section 4.01.
4925-8322-8116 v.5 51 4.06 Rights of Contribution. Parent hereby agrees that, in connection with payments made hereunder, Parent shall have a right of contribution from each other Guarantor in accordance with applicable Laws. Such contribution rights shall be subordinate and subject in right of payment to the Guaranteed Obligations until such time as the Guaranteed Obligations have been irrevocably paid in full and the commitments relating thereto shall have expired or been terminated, and Parent shall not exercise any such contribution rights until the Guaranteed Obligations have been irrevocably paid in full and the commitments relating thereto shall have expired or been terminated. 4.07 Guaranty of Payment; Continuing Guaranty. The guarantee in this Article IV is a guaranty of payment and performance, and not merely of collection, and is a continuing guarantee, and shall apply to all Guaranteed Obligations whenever arising. Article V. Conditions Precedent 5.01 Conditions to Funding. The obligation of each Lender to advance Loans on the Closing Date is subject to satisfaction of the following conditions precedent: (a) Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) or electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Administrative Agent and each of the Lenders: (i) executed counterparts of this Agreement and the Subsidiary Guaranty, in each case sufficient in number for distribution to Administrative Agent, each Lender, Parent, and Borrower; (ii) a Note executed by Borrower in favor of each Lender requesting a Note; (iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party; (iv) such documents and certifications as Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; (v) a favorable opinion of Morrison & Foerster LLP, counsel to the Loan Parties, addressed to Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as Required Lenders may reasonably request; (vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such
4925-8322-8116 v.5 52 Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required; (vii) a certificate signed by a Responsible Officer of Parent, for itself and on behalf of Borrower, certifying (A) that the conditions specified in Sections 5.01(e) and (f) have been satisfied; (B) that there has been no event or circumstance since June 30, 2026, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or governmental authority related to the transactions contemplated by this Agreement or that could reasonably be expected to have a Material Adverse Effect; (viii) a duly completed Compliance Certificate certifying compliance with all financial covenants set forth in Section 8.14, in each case prepared as of June 30, 2026, on a pro forma basis to reflect the amount of any Borrowings on the Closing Date, and signed by a Responsible Officer of Borrower and Parent; (ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect; (x) evidence that the Existing MTTC Term Loan Agreement has been or concurrently with the Closing Date is being terminated; and (xi) such other assurances, certificates, documents, consents or opinions as Administrative Agent or Required Lenders may reasonably require. (b) (i) Upon the reasonable request of any Lender made at least seven (7) days prior to the Closing Date, Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, 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 three (3) Business Days prior to the Closing Date and (ii) at least three (3) Business Days prior to the Closing Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party. (c) Any fees required to be paid on or before the Closing Date shall have been paid. (d) Unless waived by Administrative Agent, Borrower shall have paid all fees, charges and disbursements of counsel to Administrative Agent (directly to such counsel if requested by Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower and Administrative Agent). (e) The representations and warranties of Borrower and each other Loan Party contained in Article VI or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (without duplication of any materiality qualifiers therein) on and as of the date
4925-8322-8116 v.5 53 of such Borrowing, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes of this Section 5.01, the representations and warranties contained in subsections (a) and (b) of Section 6.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01. (f) No Default shall exist, or would result from such Borrowing or from the application of the proceeds thereof. (g) Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof. (h) Administrative Agent shall have received confirmation that the indebtedness in connection with the Existing TD Term Loan Agreement has been repaid or shall be repaid simultaneously with the Borrowing of Loans on the Closing Date. The Committed Loan Notice submitted by Borrower shall be deemed to be a representation and warranty that the conditions specified in this Sections 5.01 have been satisfied on and as of the date of such Borrowing. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 5.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. Article VI. Representations and Warranties Each of Parent and Borrower represents and warrants to Administrative Agent and the Lenders that: 6.01 Existence, Qualification and Power; Compliance with Laws. Each member of the Consolidated Group (a) is duly organized or formed, validly existing and, as applicable, in good standing under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and carry on its business and (ii) in the case of the Loan Parties, execute, deliver and perform its obligations under the Loan Documents to which it is a party, and (c) is duly qualified and is licensed and, as applicable, in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license; except in each case referred to in clause (b)(i) or (c) to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect. 6.02 Authorization; No Contravention. The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is party, have been duly authorized by all necessary corporate or other organizational action, and do not and will not (a) contravene the terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (i) any Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its
4925-8322-8116 v.5 54 Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (c) violate any Law. 6.03 Governmental Authorization; Other Consents. No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document. 6.04 Binding Effect. This Agreement has been, and each other Loan Document, when delivered hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto. This Agreement constitutes, and each other Loan Document when so delivered will constitute, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in accordance with its terms. 6.05 Financial Statements; No Material Adverse Effect. (a) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii) fairly present the financial condition of the Consolidated Group as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; and (iii) show all material indebtedness and other liabilities, direct or contingent, of the Consolidated Group as of the date thereof, including liabilities for taxes, material commitments and Indebtedness. (b) The unaudited consolidated and consolidating balance sheet of the Consolidated Group dated June 30, 2026 and the related consolidated and consolidating statements of income or operations, shareholders’ equity and cash flows for the fiscal quarter ended on that date (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and (ii) fairly present the financial condition of the Consolidated Group as of the date thereof and their results of operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments. (c) There has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect since June 30, 2026. 6.06 Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of Borrower, threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against any member of the Consolidated Group or against any of their properties or revenues that (a) purport to affect or pertain to this Agreement or any other Loan Document, or any of the transactions contemplated hereby, or (b) except as specifically disclosed in Schedule 6.06, either individually or in the aggregate, if determined adversely, could reasonably be expected to have a Material Adverse Effect, and there has been no adverse change in the status, or financial effect on any member of the Consolidated Group, of the matters described on Schedule 6.06. 6.07 No Default. No member of the Consolidated Group is in default under or with respect to any Contractual Obligation that could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. No Default has occurred and is continuing or would result from the consummation of the transactions contemplated by this Agreement or any other Loan Document.
4925-8322-8116 v.5 55 6.08 Ownership of Property; Liens. Each member of the Consolidated Group has good record and marketable title in fee simple to, or valid leasehold interests in, all Properties necessary or used in the ordinary conduct of its business, except for such defects in title as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Each applicable Loan Party has good record and marketable fee simple title (or, in the case of Acceptable Ground Leases, a valid leasehold) to the Unencumbered Property owned by such Loan Party, subject only to Liens permitted by Section 8.01. 6.09 Environmental Compliance. The members of the Consolidated Group have conducted in the ordinary course of business a review of the effect of existing Environmental Laws and claims alleging potential liability or responsibility for violation of any Environmental Law on their respective businesses, operations and properties, and to Parent’s and Borrower’s knowledge, the Properties are in compliance with all Environmental Laws, except as specifically disclosed on Schedule 6.09 and except such non-compliance that could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. 6.10 Insurance. The properties of the Consolidated Group are insured with financially sound and reputable insurance companies not Affiliates of any member of the Consolidated Group, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the members of the Consolidated Group operate. 6.11 Taxes. The members of the Consolidated Group have filed all Federal, state and other material tax returns and reports required to be filed, and have paid all Federal, state and other material taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP. There is no proposed tax assessment against any member of the Consolidated Group that would, if made, have a Material Adverse Effect. No member of the Consolidated Group is party to any tax sharing agreement. 6.12 ERISA Compliance. (a) Each Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code and other Federal or state laws. Each Plan that is intended to be a qualified plan under Section 401(a) of the Code has received a favorable determination letter from the IRS to the effect that the form of such Plan is qualified under Section 401(a) of the Code and the trust related thereto has been determined by the IRS to be exempt from federal income tax under Section 501(a) of the Code, or an application for such a letter is currently being processed by the IRS. To the best knowledge of Parent and Borrower, nothing has occurred that would prevent or cause the loss of such tax-qualified status. (b) There are no pending or, to the best knowledge of each Loan Party, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect. (c) (i) No ERISA Event has occurred, and no Loan Party nor any ERISA Affiliate is aware of any fact, event or circumstance that could reasonably be expected to constitute or result in an ERISA Event with respect to any Pension Plan; (ii) each Loan Party and each ERISA
4925-8322-8116 v.5 56 Affiliate has met all applicable requirements under the Pension Funding Rules in respect of each Pension Plan, and no waiver of the minimum funding standards under the Pension Funding Rules has been applied for or obtained; (iii) as of the most recent valuation date for any Pension Plan, the funding target attainment percentage (as defined in Section 430(d)(2) of the Code) is sixty percent (60%) or higher and no Loan Party nor any ERISA Affiliate knows of any facts or circumstances that could reasonably be expected to cause the funding target attainment percentage for any such plan to drop below sixty (60%) as of the most recent valuation date; (iv) no Loan Party nor any ERISA Affiliate has incurred any liability to the PBGC other than for the payment of premiums, and there are no premium payments which have become due that are unpaid; (v) no Loan Party nor any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or Section 4212(c) of ERISA; and (vi) no Pension Plan has been terminated by the plan administrator thereof nor by the PBGC, and no event or circumstance has occurred or exists that could reasonably be expected to cause the PBGC to institute proceedings under Title IV of ERISA to terminate any Pension Plan. (d) The underlying assets of each member of the Consolidated Group do not constitute Plan Assets and no member of the Consolidated Group will be using Plan Assets in connection with the Loans or the Commitments; 6.13 Subsidiaries; Equity Interests. Parent has no Subsidiaries other than those specifically disclosed in Part (a) of Schedule 6.13, and all of the outstanding Equity Interests in such Subsidiaries have been validly issued, are fully paid and nonassessable and are owned by the applicable member of the Consolidated Group in the amounts specified on Part (a) of Schedule 6.13 free and clear of all Liens. Parent has no direct or indirect equity investments in any other corporation or entity other than those specifically disclosed in Part (b) of Schedule 6.13. 6.14 Margin Regulations; Investment Company Act. (a) Neither Parent nor Borrower is engaged and will not engage, principally or as one of their important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock. (b) None of Parent, Borrower, any Person Controlling Borrower, or any other member of the Consolidated Group is or is required to be registered as an “investment company” under the Investment Company Act of 1940. 6.15 Disclosure. (a) Parent and Borrower have disclosed to Administrative Agent and the Lenders all agreements, instruments and corporate or other restrictions to which any member of the Consolidated Group is subject, and all other matters known to them, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. No report, financial statement, certificate or other information furnished (whether in writing or orally) by or on behalf of any member of the Consolidated Group to Administrative Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other Loan Document (in each case, 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 light of the circumstances under which they were made, not misleading; provided that, with respect to
4925-8322-8116 v.5 57 projected financial information, Borrower represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time. (b) As of the Closing Date, the information included in the Beneficial Ownership Certification, if applicable, is true and correct in all respects 6.16 Compliance with Laws. Each member of the Consolidated Group is in compliance in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. 6.17 Taxpayer Identification Number. Each Loan Party’s true and correct U.S. taxpayer identification number is set forth on Schedule 11.02. 6.18 Unencumbered Properties. Each Property identified by Borrower as an Unencumbered Property in the most-recent Compliance Certificate delivered to Administrative Agent hereunder is an Eligible Unencumbered Property as of the date of such Compliance Certificate. 6.19 Solvency. Each Loan Party is, individually and together with its Subsidiaries on a consolidated basis, Solvent. 6.20 REIT Status. Parent is qualified and taxed as a REIT. 6.21 OFAC. Neither Borrower, nor any of its Subsidiaries, nor, to the knowledge of Borrower and its Subsidiaries, any director, officer, employee, agent, affiliate or representative thereof, is an individual or entity that is, or is owned or controlled by one or more individuals or entities that are (a) currently the subject or target of any Sanctions, (b) included on OFAC’s List of Specially Designated Nationals or HMT’s Consolidated List of Financial Sanctions Targets, or any similar list enforced by any other relevant sanctions authority or (c) located, organized or resident in a Designated Jurisdiction. Borrower and its Subsidiaries have conducted their businesses in compliance in all material respects with all applicable Sanctions and have instituted and maintained policies and procedures designed to promote and achieve compliance with such Sanctions. 6.22 Anti-Corruption Laws. Borrower and its Subsidiaries have conducted their businesses in compliance in all material respects with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and other applicable anti-corruption legislation in other jurisdictions and have instituted and maintained policies and procedures designed to promote and achieve compliance with such laws. 6.23 Affected Financial Institution. No Loan Party is an Affected Financial Institution. 6.24 Covered Entities. No Loan Party is a Covered Entity. 6.25 Beneficial Ownership Certification. As of the Closing Date, the information included in the Beneficial Ownership Certification, if applicable, is true and correct in all respects. 6.26 Outbound Investment Rules. Neither Parent nor any of its Subsidiaries is a ‘covered foreign person’ as that term is used in the Outbound Investment Rules. Neither Parent nor any of its Subsidiaries currently engages, or has any present intention to engage in the future, directly or indirectly,
4925-8322-8116 v.5 58 in (a) a “covered activity” or a “covered transaction”, as each such term is defined in the Outbound Investment Rules, (b) any activity or transaction that would constitute a “covered activity” or a “covered transaction”, as each such term is defined in the Outbound Investment Rules, if Parent or any of its Subsidiaries was a U.S. Person or (c) any other activity that would cause Administrative Agent and/or Lenders to be in violation of the Outbound Investment Rules or cause Administrative Agent and/or Lenders to be legally prohibited by the Outbound Investment Rules from performing under this Agreement. Article VII. Affirmative Covenants So long as any Lender shall have any Commitment hereunder or any Loan or other Obligation hereunder shall remain unpaid or unsatisfied: 7.01 Financial Statements. Each of Parent and Borrower shall deliver to Administrative Agent and each Lender, in form and detail reasonably satisfactory to Administrative Agent and Required Lenders: (a) as soon as available, but in any event within ninety (90) days after the end of each fiscal year of Parent (or, if earlier, fifteen (15) days after the date required to be filed with the SEC (without giving effect to any extension permitted by the SEC)) (commencing with the fiscal year ended December 31, 2026), a consolidated and consolidating balance sheet of Parent as at the end of such fiscal year (including consolidating financial information with respect to Borrower), and the related consolidated and consolidating statements of income or operations, changes in shareholders’ equity, and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, such consolidated statements to be audited and accompanied by a report and opinion of an independent certified public accountant of nationally recognized standing reasonably acceptable to Required Lenders, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit, and such consolidating statements to be certified by the chief executive officer, chief financial officer, treasurer or controller of Parent to the effect that such statements are fairly stated in all material respects when considered in relation to the consolidated financial statements of Parent; and (b) as soon as available, but in any event within fifty (50) days after the end of each of the first three (3) fiscal quarters of each fiscal year of Parent (or, if earlier, five (5) days after the date required to be filed with the SEC (without giving effect to any extension permitted by the SEC)) (commencing with the fiscal quarter ended September 30, 2026), a consolidated and consolidating balance sheet of Parent as at the end of such fiscal quarter (including consolidating financial information with respect to Borrower), the related consolidated and consolidating statements of income or operations for such fiscal quarter and for the portion of Parent’s fiscal year then ended, and the related consolidated and consolidating statements of changes in shareholders’ equity, and cash flows for the portion of Parent’s fiscal year then ended, in each case setting forth in comparative form, as applicable, the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail, such consolidated statements to be certified by the chief executive officer, chief financial officer, treasurer or controller of Parent as fairly presenting the financial condition, results of operations, shareholders’ equity and cash flows of the Consolidated Group in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of
4925-8322-8116 v.5 59 footnotes and such consolidating statements to be certified by the chief executive officer, chief financial officer, treasurer or controller of Parent to the effect that such statements are fairly stated in all material respects when considered in relation to the consolidated financial statements of Parent. 7.02 Certificates; Other Information. Each of Parent and Borrower shall deliver to Administrative Agent and each Lender, in form and detail reasonably satisfactory to Administrative Agent and Required Lenders: (a) concurrently with the delivery of the financial statements referred to in Sections 7.01(a) and (b), a duly completed Compliance Certificate signed by the chief executive officer, chief financial officer, treasurer or controller of Parent (which delivery may, unless Administrative Agent, or a Lender requests executed originals, be by electronic communication including fax or email and shall be deemed to be an original authentic counterpart thereof for all purposes); (b) promptly following any request therefor, provide information and documentation reasonably requested by Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act and the Beneficial Ownership Regulation; (c) promptly after any reasonable request by Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of Parent by independent accountants in connection with the accounts or books of any member of the Consolidated Group, or any audit of any of them; (d) promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Parent, and copies of all annual, regular, periodic and special reports and registration statements which Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to Administrative Agent pursuant hereto; (e) promptly upon reasonable request by Administrative Agent at each time a Property is to be added as an Unencumbered Property and at any other time, but no more often than once per annum when such request is not in connection with the addition of an Unencumbered Property, rent rolls, operating statements and similar information concerning the Unencumbered Properties; (f) promptly, notice of any change in any Debt Rating; and (g) promptly, such additional information regarding the business, financial or corporate affairs of the Consolidated Group, or compliance with the terms of the Loan Documents, as Administrative Agent or any Lender may from time to time reasonably request. Documents required to be delivered pursuant to Section 7.01(a) and (b) or Section 7.02(d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which Parent posts such documents, or provides a link thereto on Parent’s website on the Internet at the website address listed on Schedule 11.02; or (ii) on which such documents are posted on Parent’s behalf on an Internet or
4925-8322-8116 v.5 60 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); provided that: (i) Parent or Borrower shall deliver paper copies of such documents to Administrative Agent or any Lender upon its request to Parent or Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by Administrative Agent or such Lender and (ii) Borrower shall notify Administrative Agent and each Lender (by facsimile or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. 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. Borrower hereby acknowledges that (a) Administrative Agent and/or Arrangers may, but shall not be obligated to, make available to the Lenders materials and/or information provided by or on behalf of Borrower hereunder (collectively, “Borrower Materials”) by posting Borrower Materials on Debt Domain, IntraLinks, Syndtrak 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 Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Borrower hereby agrees 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,” Borrower shall be deemed to have authorized Administrative Agent, Arrangers and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 11.07); (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 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.” 7.03 Notices. Each of Parent and Borrower shall promptly notify Administrative Agent and each Lender: (a) of the occurrence of any Default; (b) of any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect, including (i) breach or non-performance of, or any default under, a Contractual Obligation of any member of the Consolidated Group; (ii) any dispute, litigation, investigation, proceeding or suspension between any member of the Consolidated Group and any Governmental Authority; or (iii) the commencement of, or any material development in, any litigation or proceeding affecting any member of the Consolidated Group, including pursuant to any applicable Environmental Laws; (c) of the occurrence of any ERISA Event; (d) any material litigation, arbitration or governmental investigation or proceeding instituted or threatened against an Unencumbered Property, and any material development therein in each case to the extent the same has resulted or could reasonably be expected to result in a Material Adverse Effect or a Material Property Event;
4925-8322-8116 v.5 61 (e) any actual or threatened material Condemnation of any portion of an Unencumbered Property, any material negotiations with respect to any such taking, or any Casualty or other loss of or substantial damage to any Unencumbered Property; (f) of any material change in accounting policies or financial reporting practices by Parent; (g) of any Environmental Liability or the discovery of any Hazardous Material on any Unencumbered Property that has resulted or could reasonably be expected to result in a Material Adverse Effect including a full description of the nature and extent of the Environmental Liability and/or Hazardous Material; (h) of any event or circumstance that results in a Property previously qualifying as an Unencumbered Property ceasing to qualify as such together with a Compliance Certificate duly completed and delivered by a Responsible Officer calculating all relevant financial covenants as of the most-recent fiscal quarter calculated on a pro forma basis assuming that such Property is no longer an Unencumbered Property; and (i) any labor controversy pending or threatened against any member of the Consolidated Group or any contractor performing work on an Unencumbered Property, and any material development in any labor controversy. Each notice pursuant to this Section 7.03 shall be accompanied by a statement of a Responsible Officer of Borrower setting forth details of the occurrence referred to therein and stating what action Borrower has taken and proposes to take with respect thereto. Each notice pursuant to Section 7.03(a) shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached. 7.04 Payment of Obligations. Each of Parent and Borrower shall, and shall cause each other member of the Consolidated Group to, pay and discharge as the same shall become due and payable, all its obligations and liabilities, which if not paid or performed would result or could reasonably be expected to result in a Material Adverse Effect, including (a) all tax liabilities, assessments and governmental charges or levies upon a member of the Consolidated Group or its properties or assets; and (b) all lawful claims which, if unpaid, would by law become a Lien upon its property, unless, in all instances, the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by such member of the Consolidated Group. 7.05 Preservation of Existence, Etc. Each of Parent and Borrower shall, and shall cause each other member of the Consolidated Group to: (a) preserve, renew and maintain in full force and effect its legal existence and good standing under the Laws of the jurisdiction of its organization except in a transaction permitted by Section 8.03 or 8.04; (b) take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c) preserve or renew all of its registered patents, trademarks, trade names and service marks, the non-preservation of which could reasonably be expected to have a Material Adverse Effect. 7.06 Maintenance of Properties. Each of Parent and Borrower shall, and shall cause each other Loan Party to, keep the Unencumbered Properties in good order, repair, operating condition, and appearance, causing all necessary repairs, renewals, replacements, additions, and improvements to be promptly made, and not allow any of the Unencumbered Properties to be misused, abused or wasted or to deteriorate (ordinary wear and tear excepted).
4925-8322-8116 v.5 62 7.07 Maintenance of Insurance. Each of Parent and Borrower shall, and shall cause each other member of the Consolidated Group to, maintain with financially sound and reputable insurance companies not Affiliates of any member of the Consolidated Group, insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts as are customarily carried under similar circumstances by such other Persons. 7.08 Compliance with Laws. Each of Parent and Borrower shall, and shall cause each other member of the Consolidated Group to, comply in all material respects with the requirements of all Laws (including Environmental Laws) and all orders, writs, injunctions and decrees applicable to it or to its business or property, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted; or (b) the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect. 7.09 Books and Records. Each of Parent and Borrower shall, and shall cause each other member of the Consolidated Group to, maintain: (a) proper books of record and account, in which full, true and correct entries in conformity with GAAP consistently applied shall be made of all financial transactions and matters involving the assets and business of Borrower or such member of the Consolidated Group, as the case may be; and (b) such books of record and account in material conformity with all applicable requirements of any Governmental Authority having regulatory jurisdiction over Borrower or such Subsidiary, as the case may be. 7.10 Inspection Rights. Each of Parent and Borrower shall, and shall cause each other Loan Party to, permit representatives and independent contractors engaged by Administrative Agent and each Lender to visit and inspect and photograph any Unencumbered Property, to examine its corporate, financial and operating records, and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants, all at the reasonable expense of Borrower and at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to Parent, Borrower or such other Loan Party, as applicable; provided, however, that as long as no Event of Default has occurred, such inspections shall be at Borrower’s expense only once per annum; provided, further, that when an Event of Default exists Administrative Agent or any Lender (or any of their respective representatives or independent contractors) may do any of the foregoing at the reasonable expense of Borrower at any time during normal business hours and without advance notice and, provided further, that any visit to or inspection of any Unencumbered Property shall be subject to the rights of tenants under Leases at such Unencumbered Property. 7.11 Use of Proceeds. Borrower shall use the proceeds of the Loans to pay off the loans in connection with the Existing TD Term Loan Agreement and for general corporate and working capital purposes not in contravention of any Law or of any Loan Document. 7.12 Loan Documents. Each of Parent and Borrower shall, and shall cause each other Loan Party to comply with all covenants and requirements set forth in the Loan Documents. 7.13 Acceptable Ground Leases. Each of Parent and Borrower shall, and shall cause each other member of the Consolidated Group to: (a) pay or cause to be paid all rents, additional rents, and other sums required to be paid by the applicable member of the Consolidated Group, as tenant under and pursuant to the provisions of each Acceptable Ground Lease;
4925-8322-8116 v.5 63 (b) diligently perform and observe all of the material terms, covenants, and conditions of each Acceptable Ground Lease as tenant under such Acceptable Ground Lease; and (c) promptly notify Administrative Agent of (i) the giving to any member of the Consolidated Group of any notice of any default by such member of the Consolidated Group under any Acceptable Ground Lease and deliver to Administrative Agent a true copy of each such notice, and (ii) any bankruptcy, reorganization, or insolvency of the landlord under any Acceptable Ground Lease or of any notice thereof, and deliver to Administrative Agent a true copy of such notice. 7.14 Guaranties. Each of Parent and Borrower shall cause each Subsidiary that (a) Guarantees any Unsecured Indebtedness, (b) owns (or leases pursuant to an Acceptable Ground Lease) an Unencumbered Property or (c) directly or indirectly owns Equity Interests in a Subsidiary of Borrower that owns (or leases pursuant to an Acceptable Ground Lease) an Unencumbered Property, in each case, (i) on or before the delivery of a Compliance Certificate pursuant Section 7.02(a) for the first fiscal quarter following the date on which such Subsidiary meets the qualifications set forth in clauses (a), (b) or (c) above to (A) become a Subsidiary Guarantor by executing and delivering to Administrative Agent, a Guaranty (or an addendum thereto in the form attached to a Guaranty), and (B) deliver to Administrative Agent documents of the types referred to in Sections 5.01(a)(iii), 5.01(a)(iv) and 5.01(a)(vi), together with a favorable opinion of counsel of such Person, all such documentation and opinion to be in form, content and scope reasonably satisfactory to Administrative Agent. A Subsidiary that meets the qualifications set forth in clauses (b) or (c) above shall not be required to become a Subsidiary Guarantor if the Subsidiary Guarantors have been released from their obligations under the Subsidiary Guaranty pursuant to Section 10.10. 7.15 REIT Status. Parent shall take all action necessary to ensure that Parent is organized and operated in a manner so as to qualify to be taxed as a REIT under the Code. 7.16 Further Assurances. Each of Parent, Borrower and each Loan Party shall, promptly upon request by Administrative Agent, or any Lender through Administrative Agent, (a) correct any material defect or error that may be discovered in any Loan Document or in the execution, acknowledgment, filing or recordation thereof, and (b) do, execute, acknowledge, deliver, record, re- record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as Administrative Agent, or any Lender through Administrative Agent, may reasonably require from time to time in order to (i) carry out more effectively the purposes of the Loan Documents, and (ii) assure, convey, grant, assign, transfer, preserve, protect and confirm more effectively unto Administrative Agent or any Lender the rights granted or now or hereafter intended to be granted to Administrative Agent or any Lender under any Loan Document or under any other instrument executed in connection with any Loan Document to which any Loan Party or any of its Subsidiaries is or is to be a party, and cause each of its Subsidiaries to do so. 7.17 Material Contracts. Each of Parent and Borrower shall, and shall cause each other member of the Consolidated Group to, perform and observe all the terms and provisions of each Material Contract to be performed or observed by it, maintain each such Material Contract in full force and effect, enforce each such Material Contract in accordance with its terms, take all such action to such end as may be from time to time reasonably requested by Administrative Agent and, upon the reasonable request of Administrative Agent, make to each other party to each such Material Contract such demands and requests for information and reports or for action as any Loan Party or any of its Subsidiaries is entitled to make under such Material Contract, and cause each of its Subsidiaries to do so.
4925-8322-8116 v.5 64 7.18 Anti-Corruption Laws; Sanctions. Each of Parent and Borrower shall, and shall cause each other Loan Party to, conduct its businesses in compliance in all material respects with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and other applicable anti- corruption legislation in other jurisdictions and with all applicable Sanctions, and maintain policies and procedures designed to promote and achieve compliance with such laws and Sanctions. 7.19 Keepwell. Each of Parent and Borrower at the time the Subsidiary Guaranty by any Specified Loan Party becomes effective with respect to any Swap Obligation, hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds or other support to each Specified Loan Party with respect to such Swap Obligation as may be needed by such Specified Loan Party from time to time to honor all of its obligations under the Subsidiary Guaranty and the other Loan Documents in respect of such Swap Obligation (but, in each case, only up to the maximum amount of such liability that can be hereby incurred without rendering Borrower’s or Parent’s obligations and undertakings under this Section 7.19 voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations and undertakings of each of Borrower and Parent under this Section 7.19 shall remain in full force and effect until the Obligations have been indefeasibly paid and performed in full. Each of Borrower and Parent intends this Section 7.19 to constitute, and this Section 7.19 shall be deemed to constitute, a Guarantee of the obligations of, and a “keepwell, support, or other agreement” for the benefit of, each Specified Loan Party for all purposes of the Commodity Exchange Act. Article VIII. Negative Covenants So long as any Lender shall have any Commitment hereunder or any Loan or other Obligation hereunder shall remain unpaid or unsatisfied: 8.01 Liens. Each of Parent and Borrower shall not, and shall not permit any other member of the Consolidated Group to, directly or indirectly create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, other than the following: (a) Liens existing on the date hereof and listed on Schedule 8.01 and any renewals, modifications or extensions thereof, provided that (i) the property covered thereby is not changed, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 8.02(b), (iii) the direct or any contingent obligor with respect thereto is not changed, and (iv) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 8.02(b); (b) Liens for taxes not yet delinquent or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP; (c) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business which are not overdue for a period of more than sixty (60) days or (i) which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person, or (ii) for which the applicable member of the Consolidated Group is insured against such Liens by title insurance, bonds, or other similar arrangements reasonably satisfactory to Administrative Agent;
4925-8322-8116 v.5 65 (d) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA; (e) deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business; (f) easements, rights-of-way, restrictions, restrictive covenants, encroachments, protrusions, and other similar encumbrances affecting any Property which do not in any case materially detract from the value of such Property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person; (g) Liens of any member of the Consolidated Group (other than a Subsidiary Guarantor) that is engaged in construction projects for the purpose of securing surety bonds, performance bonds, or similar instruments (other than Indebtedness); (h) Liens securing judgments for the payment of money not constituting an Event of Default under Section 9.01(h); (i) Liens on Properties (other than Unencumbered Properties) securing Indebtedness permitted under Sections 8.02(e) and 8.02(f); provided that (i) such Liens do not at any time encumber any Property or assets other than the Property financed by such Indebtedness and (ii) the Indebtedness secured thereby does not exceed the cost or fair market value, whichever is lower, of the Property being acquired on the date of acquisition; and (j) Liens on Properties (other than Unencumbered Properties) securing Indebtedness that has been paid or otherwise satisfied, but which Liens have not been released of record; provided that Borrower is exercising commercially reasonable efforts to obtain the release thereof. 8.02 Indebtedness. Each of Parent and Borrower shall not, and shall not permit any other member of the Consolidated Group to, create, incur, assume, or suffer to exist any Indebtedness, except: (a) Indebtedness under the Loan Documents; (b) Indebtedness outstanding on the date hereof and listed on Schedule 8.02 and any refinancings, refundings, modifications, renewals or extensions thereof; provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, refunding, modifications renewal or extension except (x) by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder or (y) to the extent such increase in Indebtedness is otherwise permitted under this Section 8.02; and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, refunding, modification, renewing or extending of Indebtedness, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the Consolidated Group or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, refunded, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate;
4925-8322-8116 v.5 66 (c) Guarantees by Borrower or any Subsidiary in respect of (i) Indebtedness of any member of the Consolidated Group otherwise permitted hereunder (including “bad boy” and completion Guarantees), and (ii) Secured Indebtedness of any Person (other than a member of the Consolidated Group) not to exceed $100,000,000 in the aggregate at any time outstanding; (d) obligations (contingent or otherwise) of any member of the Consolidated Group existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party; (e) Non-Recourse Debt so long as Parent and Borrower are in compliance with Section 8.14(d); (f) Secured Recourse Debt so long as Parent and Borrower are in compliance with Sections 8.14(d) and 8.14(e); and (g) Unsecured Indebtedness so long as Parent and Borrower are in compliance with Sections 8.14(d) and 8.14(f); provided that if Parent attains an Investment Grade Rating and Borrower requests the Subsidiary Guarantors be released from the Subsidiary Guaranty, then the released Subsidiary Guarantors shall not guarantee any other Unsecured Indebtedness. 8.03 Fundamental Changes. Each of Parent and Borrower shall not, and shall not permit any other member of the Consolidated Group to, merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (including, in each case, pursuant to a Division), except that, so long as no Default exists or would result therefrom: (a) any Subsidiary may merge with (i) Borrower, provided that Borrower shall be the continuing or surviving Person, or (ii) any one or more other Subsidiaries, provided that when any Subsidiary Guarantor is merging with another Subsidiary, the Subsidiary Guarantor shall be the continuing or surviving Person; (b) any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to Borrower or to another Subsidiary; provided that if the transferor in such a transaction is a Subsidiary Guarantor, then the transferee must either be Borrower or a Subsidiary Guarantor; and (c) each of Parent, Borrower or any Subsidiary may merge or consolidate with any other Person that is neither Parent, Borrower nor any Subsidiary so long as: (i) if such merger or consolidation is with either Parent or Borrower, then Parent or Borrower, as applicable, shall be the continuing or surviving Person; (ii) if such merger or consolidation is with a Subsidiary Guarantor, then the continuing or surviving Person shall be or become a Subsidiary Guarantor (if such surviving entity is required to be a Subsidiary Guarantor hereunder); and (iii) after giving effect to such merger or consolidation, no Change of Control has occurred.
4925-8322-8116 v.5 67 8.04 Dispositions. Each of Parent and Borrower shall not, and shall not permit any other member of the Consolidated Group to, make any Disposition or enter into any agreement to make any Disposition, except: (a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business; (b) Dispositions of inventory in the ordinary course of business; (c) Dispositions of equipment to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property; (d) Dispositions of property by any Subsidiary to Borrower or to a Wholly-Owned Subsidiary; provided that if the transferor of such property is a Subsidiary Guarantor, the transferee thereof must either be Borrower or a Subsidiary Guarantor; (e) Dispositions of Properties or Subsidiaries that own Properties so long as no Default exists or would result therefrom; and (f) Dispositions permitted by Section 8.03. 8.05 Restricted Payments. Each of Parent and Borrower shall not, and shall not permit any other member of the Consolidated Group to, declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, if a Default has occurred and is continuing or would result therefrom; provided that to the extent a Default is then-existing or would result from the making of such Restricted Payment (other than a Default specified in Sections 9.01(f) or 9.01(g) or a Default that has resulted in Administrative Agent exercising its remedies under Section 9.02(b), in which case no Restricted Payments otherwise permitted under this Section 8.05 may be made), the Consolidated Group may make Restricted Payments in the minimum amount required in order for Parent to (i) maintain its REIT status and (ii) avoid federal or state income excise taxes. 8.06 Change in Nature of Business. Each of Parent and Borrower shall not, and shall not permit any other member of the Consolidated Group to, engage in any material line of business substantially different from those lines of business conducted by the Consolidated Group on the date hereof or any business substantially related or incidental thereto. 8.07 Transactions with Affiliates. Each of Parent and Borrower shall not, and shall not permit any other member of the Consolidated Group to, enter into any transaction of any kind with any Affiliate of a member of the Consolidated Group, whether or not in the ordinary course of business, other than on fair and reasonable terms substantially as favorable to such member of the Consolidated Group as would be obtainable by such member of the Consolidated Group at the time in a comparable arm’s length transaction with a Person other than an Affiliate. 8.08 Burdensome Agreements. Each of Parent and Borrower shall not, and shall not permit any other member of the Consolidated Group to, enter into or permit to exist any Contractual Obligation (other than the Loan Documents) that (a) constitutes a Negative Pledge with respect to any Unencumbered Property or the Equity Interests in any member of the Consolidated Group (other than Borrower) that owns or leases an Unencumbered Property, other than a Negative Pledge contained in an agreement relating to the sale of any such Unencumbered Property or Equity Interests pending such sale, provided that, in any such case, the Negative Pledge applies only to the Unencumbered Property or Equity
4925-8322-8116 v.5 68 Interests that are the subject of such sale, or (b) limits the ability of any member of the Consolidated Group to transfer ownership of any Unencumbered Property or the Equity Interests in any member of the Consolidated Group (other than Borrower) that owns or leases an Unencumbered Property. 8.09 Use of Proceeds. Each of Parent and Borrower shall not use the proceeds of the Loans, whether directly or indirectly, and whether immediately, incidentally or ultimately, to (a) finance or refinance any (i) commercial paper issued by any Loan Party or (ii) any other Indebtedness, except (A) for Indebtedness that such Loan Party incurred for development activities or other general corporate or working capital purposes, or (B) to refinance Indebtedness on Properties that will become Unencumbered Properties, (b) purchase or carry margin stock (within the meaning of Regulation U of the FRB) or (c) extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose. 8.10 Acceptable Ground Leases. Each of Parent and Borrower shall not, and shall not permit any other member of the Consolidated Group to: (a) without the prior written consent of Administrative Agent, surrender the leasehold estate created by any Acceptable Ground Lease or terminate or cancel any Acceptable Ground Lease or materially modify, change, supplement, alter, or amend any Acceptable Ground Lease, either orally or in writing; or (b) without the prior written consent of Administrative Agent, sublet (other than space leases in the ordinary course of business) any portion of any Unencumbered Property held pursuant to an Acceptable Ground Lease. 8.11 Amendments of Organization Documents. Each of Parent and Borrower shall not, and shall not permit any other member of the Consolidated Group to, amend any of its Organization Documents in any manner that would adversely affect any Loan Party’s ability to pay its Obligations hereunder or materially and adversely impairs any rights or remedies of Administrative Agent or any Lender under the Loan Documents or applicable Laws. 8.12 Accounting Changes. Each of Parent and Borrower shall not, and shall not permit any other member of the Consolidated Group to, make any change in (a) accounting policies or reporting practices, except as required by or otherwise in accordance with GAAP, or (b) fiscal year. 8.13 Sanctions. Each of Parent and Borrower shall not, and shall not permit any other member of the Consolidated Group to, directly or indirectly, use the proceeds of any Loan or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other individual or entity, to fund any activities of or business with any individual or entity, or in any Designated Jurisdiction, that, at the time of such funding, is the subject of Sanctions, or in any other manner that will result in a violation by any individual or entity (including any individual or entity participating in the transaction, whether as Lender, Arranger, Administrative Agent or otherwise) of Sanctions. 8.14 Financial Covenants. Each of Parent and Borrower shall not: (a) Maximum Leverage Ratio. Permit the Total Leverage Ratio, as of the last day of any fiscal quarter of Parent to exceed sixty percent (60%); provided that as of the last day of the fiscal quarter in which any Significant Acquisition occurs and the last day of the two (2) immediately following quarters thereafter (but only for up to two (2) times during the term of this
4925-8322-8116 v.5 69 Agreement), the Total Leverage Ratio may exceed sixty percent (60%) so long as it does not exceed sixty-five percent (65%). (b) Minimum Fixed Charge Coverage Ratio. Permit the ratio of (i) Adjusted EBITDA to (ii) Fixed Charges, as of the last day of any fiscal quarter of Parent, to be less than 1.50 to 1.0. (c) Minimum Tangible Net Worth. Permit Tangible Net Worth, at any time, to be less than the sum of (i) an amount equal to $823,879,000, and (ii) an amount equal to seventy-five percent (75%) of the net equity proceeds received by the Consolidated Group after June 30, 2026. (d) Maximum Secured Indebtedness. Permit the Secured Indebtedness of the Consolidated Group (excluding the Facility if it becomes Secured Indebtedness) to be greater than forty percent (40%) of Total Asset Value. Notwithstanding the foregoing, each of Parent and Borrower shall not, and shall not permit any other member of the Consolidated Group to, secure any Indebtedness outstanding under or pursuant to any Pari Passu Facility unless and until the Obligations (including the Guaranties) shall concurrently be secured equally and ratably with such Indebtedness pursuant to documentation reasonably acceptable to Administrative Agent in substance and in form including an intercreditor agreement and opinions of counsel to Parent, Borrower and/or any other members of the Consolidated Group, as the case may be, from counsel and in a form that is reasonably acceptable to Administrative Agent. (e) Maximum Secured Recourse Debt. Permit the Secured Recourse Debt of the Consolidated Group (excluding the Facility if it becomes Secured Indebtedness) to be greater than twenty percent (20%) of Total Asset Value. (f) Maximum Unsecured Leverage Ratio. Permit the Total Unsecured Leverage Ratio, as of the last day of any fiscal quarter of Parent to exceed sixty percent (60%); provided that as of the last day of the fiscal quarter in which any Significant Acquisition occurs and the last day of the two (2) immediately following quarters thereafter (but only for up to two (2) times during the term of this Agreement), the Total Unsecured Leverage Ratio may exceed sixty percent (60%) so long as it does not exceed sixty-five percent (65%). (g) Minimum Unencumbered Interest Coverage Ratio. Permit the Unencumbered Interest Coverage Ratio, as of the last day of any fiscal quarter of Parent, to be less than 1.75 to 1.0. 8.15 Unencumbered Property Covenants. Each of Parent and Borrower shall not: (a) Unencumbered Asset Value. Permit the Unencumbered Asset Value for all Unencumbered Properties to be less than $500,000,000; (b) Minimum Unencumbered Properties. Permit there to be less than fifteen (15) Unencumbered Properties at any time; (c) Occupancy Rate. Permit the Occupancy Rate to be less than eighty percent (80%) for all Unencumbered Properties in the aggregate; and (d) Tenant Concentration. Permit aggregate rental revenues of any one tenant with respect to Leases of Unencumbered Properties to constitute more than twenty-five percent (25%) of rental revenues with respect to all Leases of Unencumbered Properties.
4925-8322-8116 v.5 70 8.16 ERISA Compliance. Each Loan Party shall not, and shall not permit any other member of the Consolidated Group to, take any action that would cause its underlying assets to constitute Plan Assets. 8.17 Environmental Matters. Each of Parent and Borrower shall not, and shall not permit any other member of the Consolidated Group to, (a) cause, commit, permit, or allow to continue any violation of any Environmental Law which could reasonably be expected to have a Material Adverse Effect, or (b) place, install, dispose of, or release, or cause, permit, or allow the placing, installation, disposal, spilling, leaking, dumping, or release of, any Hazardous Material on any Property (other than routine office, cleaning, janitorial and other materials and supplies necessary to operate, maintain, repair, improve and lease such Property, in each case in commercially reasonable quantities and used and stored in compliance with all Environmental Laws) or storage tank (or similar vessel) on any Property, in each case which could reasonably be expected to have a Material Adverse Effect. 8.18 Anti-Corruption Laws. Directly or indirectly use the proceeds of any Loan for any purpose which would breach the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, or other similar legislation in other jurisdictions. 8.19 Outbound Investment Rules. (a) Be or become a “covered foreign person”, as that term is defined in the Outbound Investment Rules, or (b) engage, directly or indirectly, in (i) a “covered activity” or a “covered transaction”, as each such term is defined in the Outbound Investment Rules, (ii) any activity or transaction that would constitute a “covered activity” or a “covered transaction”, as each such term is defined in the Outbound Investment Rules, if Borrower were a U.S. Person or (iii) any other activity that would cause Administrative Agent and/or Lenders to be in violation of the Outbound Investment Rules or cause Administrative Agent and/or Lenders to be legally prohibited by the Outbound Investment Rules from performing under this Agreement. Article IX. Events of Default and Remedies 9.01 Events of Default. Any of the following shall constitute an Event of Default (each, an “Event of Default”): (a) Non-Payment. Borrower or any other Loan Party fails to pay (i) when and as required to be paid herein, any amount of principal of any Loan, or (ii) within three (3) days after the same becomes due, any interest on any Loan, or any fee due hereunder, or (iii) within five (5) days after the same becomes due, any other amount payable hereunder or under any other Loan Document; or (b) Specific Covenants. Any member of the Consolidated Group fails to perform or observe any term, covenant or agreement contained in (i) any of Section 7.01 or 7.02, and such failure continues for five (5) Business Days, or (ii) any of Section 7.03, 7.05, 7.10, 7.11, 7.14, 7.19 or Article VIII, or any Guarantor fails to perform or observe any term, covenant, or agreement contained in the Guaranties; or (c) Other Defaults. Any Loan Party fails to perform or observe any other covenant or agreement (not specified in subsection (a) or (b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for thirty (30) days, or if such failure is capable of cure but not within thirty (30) days, such longer period (but in no event to exceed an additional sixty (60) days) as may be reasonably necessary to cure such failure so long
4925-8322-8116 v.5 71 as such Loan Party commences such cure within the initial thirty (30) days and diligently pursues achieving such cure; or (d) Representations and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of Borrower or any other Loan Party herein, in any other Loan Document, or in any document delivered in connection herewith or therewith shall be incorrect or misleading in any material respect (without duplication of any materiality qualifiers therein) when made or deemed made; or (e) Cross-Default. (i) an Event of Default shall occur under the Existing Revolving Credit Agreement, (ii) any member of the Consolidated Group (A) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness under Swap Contracts) having an aggregate principal amount (including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of (x) exceeding the Threshold Amount, either individually or in the aggregate, with respect to Recourse Debt or (y) $65,000,000 or more, either individually or in the aggregate, with respect to Non-Recourse Debt, or (B) fails to observe or perform any other agreement or condition relating to any such Indebtedness or Guarantee or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event is to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable or cash collateral in respect thereof to be demanded; or (iii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from (A) any event of default under such Swap Contract as to which any member of the Consolidated Group is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as defined in such Swap Contract) under such Swap Contract as to which any member of the Consolidated Group is an Affected Party (as defined in such Swap Contract) and, in either event, the Swap Termination Value owed by such member of the Consolidated Group as a result thereof is greater than the Threshold Amount; or (f) Insolvency Proceedings, Etc. Any member of the Consolidated Group (other than a Non-Recourse Subsidiary) institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for sixty (60) calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for sixty (60) calendar days, or an order for relief is entered in any such proceeding; or (g) Inability to Pay Debts; Attachment. (i) Any member of the Consolidated Group (other than a Non-Recourse Subsidiary) becomes unable or admits in writing its inability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of any such Person and is not released, vacated or fully bonded within thirty (30) days after its issue or levy; or
4925-8322-8116 v.5 72 (h) Judgments. There is entered against any member of the Consolidated Group (other than a Non-Recourse Subsidiary) (i) one or more final judgments or orders for the payment of money in an aggregate amount (as to all such judgments or orders) exceeding the Threshold Amount (to the extent not covered by independent third-party insurance as to which the insurer does not dispute coverage), or (ii) any one or more non-monetary final judgments that have, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) there is a period of thirty (30) consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or (i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or could reasonably be expected to result in liability of the Consolidated Group or any member of the Consolidated Group under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold Amount, or (ii) any Loan Party or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; or (j) Invalidity of Loan Documents. Any provision of any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect; or any Loan Party or any other Person contests in any manner the validity or enforceability of any provision of any Loan Document; or any Loan Party denies that it has any or further liability or obligation under any Loan Document, or purports to revoke, terminate or rescind any provision of any Loan Document; or (k) Change of Control. There occurs any Change of Control. (l) REIT Status. Parent ceases to be treated as a REIT in any taxable year. (m) Stock Exchange Listing. Parent’s common Equity Interests shall cease to be traded on the New York Stock Exchange. 9.02 Remedies Upon Event of Default. If any Event of Default occurs and is continuing, Administrative Agent shall, at the request of, or may, with the consent of, Required Lenders, take any or all of the following actions: (a) declare the commitment of each Lender to make Loans to be terminated, whereupon such commitments and obligation shall be terminated; (b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by Borrower; and (c) exercise on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents; provided, however, that upon the occurrence of an actual or deemed entry of an order for relief with respect to Borrower under the Bankruptcy Code of the United States, the obligation of each
4925-8322-8116 v.5 73 Lender to make Loans shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable without further act of Administrative Agent or any Lender. 9.03 Application of Funds. After the exercise of remedies provided for in Section 9.02 (or after the Loans have automatically become immediately due and payable), any amounts received on account of the Obligations shall, subject to the provisions of Section 2.13, be applied by Administrative Agent in the following order: First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to Administrative Agent and amounts payable under Article III) payable to Administrative Agent in its capacity as such; Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts payable to the Lenders (including fees, charges and disbursements of counsel to the respective Lenders and amounts payable under Article III), ratably among them in proportion to the respective amounts described in this clause Second payable to them; Third, to payment of that portion of the Obligations constituting accrued and unpaid interest on the Loans and other Obligations, ratably among the Lenders in proportion to the respective amounts described in this clause Third payable to them; Fourth, to payment of that portion of the Obligations constituting (i) unpaid principal of the Loans and (ii) breakage, termination or other payments due under any Swap Contract (that relates solely to the Obligations) between any Loan Party and Administrative Agent, any Lender or any Affiliate of Administrative Agent or a Lender, ratably among the Lenders, the applicable Affiliates (with respect to clause (ii)) in proportion to the respective amounts described in this clause Fourth held by them; and Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to Borrower or as otherwise required by Law; provided that Excluded Swap Obligations (as defined in the Subsidiary Guaranty) with respect to any Subsidiary Guarantor shall not be paid with amounts received from such Subsidiary Guarantor or its assets, but appropriate adjustments shall be made with respect to payments from other Loan Parties to preserve the allocation to Obligations otherwise set forth in this Section 9.03. Article X. Administrative Agent 10.01 Appointment and Authority. Each of the Lenders hereby irrevocably appoints Toronto Dominion (Texas) LLC to act on its behalf as Administrative Agent hereunder and under the other Loan Documents and authorizes Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of Administrative Agent and the Lenders, and neither Borrower nor any other Loan Party shall have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.
4925-8322-8116 v.5 74 10.02 Rights as a Lender. The Person serving as Administrative Agent hereunder, and any of Administrative Agent’s Affiliates, if applicable, 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 Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as Administrative Agent, or any of Administrative Agent’s Affiliates, if applicable, hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with Borrower or any Subsidiary thereof or other Affiliate thereof as if such Person were not Administrative Agent hereunder and without any duty to account therefor to the Lenders. 10.03 Exculpatory Provisions. Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, Administrative Agent: (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; (b) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that Administrative Agent is required to exercise as directed in writing by Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), provided that Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 11.01 and 9.02) or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and nonappealable judgment. Administrative Agent shall not be deemed to have knowledge of any Default, except with respect to those Defaults specified in Section 9.01(a), unless and until notice describing such Default is given in writing to Administrative Agent by Borrower or a Lender. 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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set
4925-8322-8116 v.5 75 forth in Article V or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to Administrative Agent. 10.04 Reliance by Administrative Agent. 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, that by its terms must be fulfilled to the satisfaction of a Lender, Administrative Agent may presume that such condition is satisfactory to such Lender unless Administrative Agent shall have received notice to the contrary from such Lender prior to the making of such Loan. Administrative Agent may consult with legal counsel (who may be counsel for Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. 10.05 Delegation of Duties. Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by Administrative Agent. Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of 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. Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. 10.06 Resignation of Administrative Agent. (a) Administrative Agent may at any time give notice of its resignation to the Lenders and Borrower. Upon receipt of any such notice of resignation, Required Lenders shall have the right, in consultation with Borrower, to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by Required Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent may (but shall not be obligated to) on behalf of the Lenders, appoint a successor Administrative Agent meeting the qualifications set forth above. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date. (b) If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, Required Lenders may, to the extent permitted by applicable Law, by notice in writing to Borrower and such Person remove such Person as Administrative Agent and, in consultation with Borrower, appoint a successor. If no such successor shall have been so appointed by Required Lenders and shall have accepted such appointment within thirty (30) days (or such earlier day as shall be agreed by Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date.
4925-8322-8116 v.5 76 (c) With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (i) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (ii) except for any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through Administrative Agent shall instead be made by or to each Lender directly, until such time, if any, as Required Lenders appoint a successor Administrative Agent as provided for above. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or removed) Administrative Agent (other than as provided in Section 3.01(j) and other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section 10.06) . The fees payable by Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between Borrower and such successor. After the retiring or removed Administrative Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Article X and Section 11.04 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring or removed Administrative Agent was acting as Administrative Agent. 10.07 Non-Reliance on Administrative Agent and Other Lenders. Each Lender acknowledges that it has, independently and without reliance upon Administrative Agent or any other Lender or any of their Related Parties 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 Administrative Agent or any other Lender or any of their Related Parties 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 other Loan Document or any related agreement or any document furnished hereunder or thereunder. 10.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the Bookrunner or Arrangers listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as Administrative Agent or a Lender hereunder, except in its capacity, as applicable, as Administrative Agent or a Lender hereunder. 10.09 Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether Administrative Agent shall have made any demand on Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise: (a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and Administrative Agent and their respective agents
4925-8322-8116 v.5 77 and counsel and all other amounts due the Lenders and Administrative Agent under Section 2.07 and 11.04) allowed in such judicial proceeding; and (b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to Administrative Agent and, in the event that Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of Administrative Agent and its agents and counsel, and any other amounts due Administrative Agent under Sections 2.07 and 11.04. Nothing contained herein shall be deemed to authorize Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender to authorize Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. 10.10 Guaranty Matters. The Lenders irrevocably authorize Administrative Agent, at the written request of Borrower, to release any Subsidiary Guarantor from its obligations under any Subsidiary Guaranty if (a)(i) such Subsidiary Guarantor no longer owns or leases an Unencumbered Property (or owns any of the Equity Interest in any Subsidiary of Borrower that owns or leases an Unencumbered Property) or (ii) Borrower or Parent attains an Investment Grade Rating, in which case the released Subsidiary Guarantors shall not guarantee any other Unsecured Indebtedness; (b) no Default exists before and after giving effect thereto; (c) all representations and warranties of Borrower and each other Loan Party contained in Article VI or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (without duplication of any materiality qualifiers therein) on and as of the date of such requested release after giving effect thereto, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date; and (d) the Loan Parties, immediately following such removal, are in covenant compliance with all relevant financial covenants as of the most-recent fiscal quarter calculated on a pro forma basis assuming that such Property is no longer an Unencumbered Property, as evidenced by a Compliance Certificate duly completed and delivered by a Responsible Officer. Upon Borrower’s request and satisfaction of the conditions set forth above, Administrative Agent agrees to execute and deliver to Borrower, within ten (10) Business Days of Administrative Agent’s receipt of Borrower’s request, a release of the applicable Subsidiary Guarantor from the Subsidiary Guaranty. Upon request by Administrative Agent at any time, Required Lenders will confirm in writing Administrative Agent’s authority to release any Subsidiary Guarantor from its obligations under the Subsidiary Guaranty executed by such Subsidiary Guarantor pursuant to this Section 10.10. 10.11 Lender ERISA Representations. (a) Each Lender represents and warrants, as of the date such Person became a Lender party hereto, to, and 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, Administrative Agent, Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of 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 in connection with the Loans or the Commitments,
4925-8322-8116 v.5 78 (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 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 and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans 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 and this Agreement, or (iv) such other representation, warranty and covenant as may be agreed in writing between Administrative Agent, in its sole discretion, and such Lender. (b) In addition, unless Section 10.11(a)(i) is true with respect to a Lender or such Lender has not provided another representation, warranty and covenant as Section 10.11(a)(iv), 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, Administrative Agent, Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of Borrower or any other Loan Party, that: (i) none of Administrative Agent, any Arranger or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender (including in connection with the reservation or exercise of any rights by Administrative Agent under this Agreement, any Loan Document or any documents related to hereto or thereto), (ii) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21) and is a bank, an insurance carrier, an investment adviser, a broker-dealer or other person that holds, or has under management or control, total assets of at least $50 million, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E), (iii) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans and this Agreement is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies (including in respect of the Obligations),
4925-8322-8116 v.5 79 (iv) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans and this Agreement is a fiduciary under ERISA or the Code, or both, with respect to the Loans and this Agreement and is responsible for exercising independent judgment in evaluating the transactions hereunder, and (v) no fee or other compensation is being paid directly to Administrative Agent, any Arranger or any their respective Affiliates for investment advice (as opposed to other services) in connection with the Loans or this Agreement. (c) Administrative Agent and each Arranger hereby informs the Lenders that each such Person is not undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans and this Agreement, (ii) may recognize a gain if it extended the Loans for an amount less than the amount being paid for an interest in the Loans by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing. 10.12 Recovery of Erroneous Payments. Without limitation of any other provision in this Agreement, if at any time Administrative Agent makes a payment hereunder in error to any Lender, whether or not in respect of an Obligation due and owing by Borrower at such time, where such payment is a Rescindable Amount, then in any such event, each Lender receiving a Rescindable Amount severally agrees to repay to Administrative Agent forthwith on demand the Rescindable Amount received by such Lender in immediately available funds in the currency so received, with interest thereon, for each day from and including the date such Rescindable Amount is received by it to but excluding the date of payment to Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by Administrative Agent in accordance with banking industry rules on interbank compensation. Each Lender irrevocably waives any and all defenses, including any “discharge for value” (under which a creditor might otherwise claim a right to retain funds mistakenly paid by a third party in respect of a debt owed by another) or similar defense to its obligation to return any Rescindable Amount. Administrative Agent shall inform each Lender promptly upon determining that any payment made to such Lender comprised, in whole or in part, a Rescindable Amount. Article XI. Miscellaneous 11.01 Amendments, Etc. (a) Amendments Generally. Subject to Section 3.03(b), no amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by Borrower or any other Loan Party therefrom, shall be effective unless in writing signed by Required Lenders and Borrower or the applicable Loan Party, as the case may be, and acknowledged by Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such amendment, waiver or consent shall:
4925-8322-8116 v.5 80 (i) waive any condition set forth in Section 5.01 (other than Section 5.01(d)) without the written consent of each Lender; (ii) without limiting the generality of clause (a) above, waive any condition set forth in Section 5.01 without the written consent of the Required Lenders; (iii) extend or increase the Commitment or Loan of any Lender (or reinstate any Commitment terminated pursuant to Section 9.02) without the written consent of such Lender; (iv) postpone any date fixed by this Agreement or any other Loan Document for any payment or mandatory prepayment of principal, interest, fees or other amounts due to the Lenders (or any of them) hereunder or under any other Loan Document without the written consent of each Lender directly affected thereby; (v) reduce the principal of, or the rate of interest specified herein on, any Loan, or any fees or other amounts payable hereunder or under any other Loan Document, without the written consent of each Lender directly affected thereby; provided, however, that only the consent of Required Lenders shall be necessary to (i) amend the definition of “Default Rate” or to waive any obligation of Borrower to pay interest at the Default Rate or (ii) amend any financial covenant in the Loan Documents including Section 8.14 (or any defined term used therein) even if the effect of such amendment would be to reduce the rate of interest on any Loan or to reduce any fee payable under the Loan Documents); (vi) change Section 9.03 or 2.11 in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender directly affected thereby; (vii) subordinate, or have the effect of subordinating, the Obligations hereunder to any other Indebtedness of Borrower without the written consent of each Lender directly affected thereby; (viii) change any provision of this Section 11.01 or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder (other than the definitions specified in clause (ii) of this Section 11.01(a)(vii)), without the written consent of each Lender; (ix) release all or substantially all of the value of the Guaranties without the written consent of each Lender, except to the extent the release of any Subsidiary Guarantor is permitted pursuant to Sections 10.10 (in which case such release may be made by Administrative Agent acting alone); or (x) impose any greater restriction on the ability of any Lender to assign any of its rights or obligations hereunder without the written consent of the Required Lenders; and, provided further, that (i) no amendment, waiver or consent shall, unless in writing and signed by Administrative Agent in addition to the Lenders required above, affect the rights or duties of Administrative Agent under this Agreement or any other Loan Document; and (ii) the Fee Letter may be amended, or rights or privileges thereunder
4925-8322-8116 v.5 81 waived, in a writing executed only by the parties thereto. 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 disproportionately adversely relative to other affected Lenders shall require the consent of such Defaulting Lender. Notwithstanding any provision herein to the contrary, this Agreement may be amended with the written consent of Administrative Agent, Parent and Borrower (i) to add one or more additional term loan facilities to this Agreement subject to the limitations in Section 2.12 and to permit the extensions of credit and all related obligations and liabilities arising in connection therewith from time to time outstanding to share ratably (or on a basis subordinated to the existing Facility hereunder) in the benefits of this Agreement and the other Loan Documents with the obligations and liabilities from time to time outstanding in respect of the existing Facility hereunder, and (ii) in connection with the foregoing, to permit, as deemed appropriate by Administrative Agent, the Lenders providing such additional credit facilities to participate in any required vote or action required to be approved by the Required Lenders or by any other number, percentage or class of Lenders hereunder. 11.02 Notices; Effectiveness; Electronic Communication. (a) Notices Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in subsection (b) below), 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 facsimile as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows: (i) if to Borrower or Administrative Agent, to the address, electronic mail address or telephone number specified for such Person on Schedule 11.02; and (ii) if to any other Lender, to the address, electronic mail address or telephone number specified in its Administrative Questionnaire (including, as appropriate, notices delivered solely to the Person designated by a Lender on its Administrative Questionnaire then in effect for the delivery of notices that may contain material non-public information relating to Borrower). Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices and other communications delivered through electronic communications to the extent provided in subsection (b) below, shall be effective as provided in such subsection (b). (b) Electronic Communications. Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communication (including debtdomain, e-mail, FpML messaging and Internet or intranet websites) pursuant to procedures approved by
4925-8322-8116 v.5 82 Administrative Agent, provided that the foregoing shall not apply to notices to any Lender pursuant to Article II if such Lender has notified Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. Administrative Agent or Borrower may each, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications. Unless Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefore; provided that, for both clauses (i) and (ii), if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice, email or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient. (c) The Platform. 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, 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 or notices through the Platform, any other electronic platform or electronic messaging service, or 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 any Loan Party, any Lender, or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).. (d) Change of Address, Etc. Each of Borrower and Administrative Agent may change its address or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address or telephone number for notices and other communications hereunder by notice to Borrower and Administrative Agent. In addition, each Lender agrees to notify Administrative Agent from time to time to ensure that Administrative Agent has on record (i) an effective address, contact name, telephone number, facsimile number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender agrees to cause at least one 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 applicable Law, including
4925-8322-8116 v.5 83 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 securities for purposes of United States Federal or state securities laws. (e) Reliance by Administrative Agent and Lenders. Administrative Agent and the Lenders shall be entitled to rely and act upon any notices (including telephonic and electronic Committed Loan Notices) even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. Borrower shall indemnify Administrative Agent, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of Borrower. All telephonic notices to and other telephonic communications with Administrative Agent may be recorded by Administrative Agent, and each of the parties hereto hereby consents to such recording. 11.03 No Waiver; Cumulative Remedies; Enforcement. No failure by any Lender or Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided, and provided under each other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law. Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, Administrative Agent in accordance with Section 9.02 for the benefit of all the Lenders; provided, however, that the foregoing shall not prohibit (a) Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) any Lender from exercising setoff rights in accordance with Section 11.08 (subject to the terms of Section 2.11), or (c) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and provided, further, that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) Required Lenders shall have the rights otherwise ascribed to Administrative Agent pursuant to Section 9.02 and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to Section 2.11, any Lender may, with the consent of Required Lenders, enforce any rights and remedies available to it and as authorized by Required Lenders. 11.04 Expenses; Indemnity; Damage Waiver. (a) Costs and Expenses. Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by Administrative Agent and its Affiliates (including the reasonable fees, charges and disbursements of counsel for Administrative Agent), in connection with the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated) and (ii) all out-of-pocket expenses incurred by Administrative Agent or any Lender (including the fees, charges and
4925-8322-8116 v.5 84 disbursements of any counsel for Administrative Agent or any Lender), in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section, or (B) in connection with the Loans made hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans. (b) Indemnification by Borrower. Borrower shall indemnify Administrative Agent (and any sub-agent thereof), 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 any Indemnitee or asserted against any Indemnitee by any Person (including Borrower or any other Loan Party) other than such Indemnitee and its Related Parties arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder, the consummation of the transactions contemplated hereby or thereby, or, in the case of Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents (including in respect of any matters addressed in Section 3.01), (ii) any Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by Borrower or any of its Subsidiaries, or any Environmental Claim or Environmental Liability related in any way to any member of the Consolidated Group, 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, whether brought by a third party or by any member of the Consolidated Group, and regardless of whether any Indemnitee is a party thereto, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by Borrower or any other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if Borrower or such other Loan Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction. Without limiting the provisions of Section 3.01(d), this Section 11.04(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim. (c) Reimbursement by Lenders. To the extent that Borrower for any reason fails to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it to Administrative Agent (or any sub-agent thereof) or any Related Party of any of the foregoing, each Lender severally agrees to pay to Administrative Agent (or any such sub-agent) or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s share of the Loans at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender), such payment to be made severally among them based on such Lenders’ Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought), provided further that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against Administrative Agent (or any such sub-agent), or against any Related Party of
4925-8322-8116 v.5 85 any of the foregoing acting for Administrative Agent (or any such sub-agent), in connection with such capacity. The obligations of the Lenders under this subsection (c) are subject to the provisions of Section 2.10(d). (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable Law, Borrower shall not assert, and hereby waives, and acknowledges that no other Person shall have, 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, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof. No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual damages resulting from the gross negligence or willful misconduct of such Indemnitee as determined by a final and nonappealable judgment of a court of competent jurisdiction. (e) Payments. All amounts due under this Section shall be payable not later than ten (10) Business Days after demand therefor. (f) Survival. The agreements in this Section 11.04 and the indemnity provisions of Section 11.02(e) shall survive the resignation of Administrative Agent, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations. 11.05 Payments Set Aside. To the extent that any payment by or on behalf of Borrower is made to Administrative Agent or any Lender, or Administrative Agent or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by Administrative Agent or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender severally agrees to pay to Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement. 11.06 Successors and Assigns. (a) Successors and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that neither Borrower nor any other Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of
4925-8322-8116 v.5 86 subsection (d) of this Section, or (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (e) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement. (b) Assignments by Lenders. Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it); provided that any such assignment shall be subject to the following conditions: (i) Minimum Amounts. (A) in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to it or contemporaneous assignments to related Approved Funds that equal at least the amount specified in Section 11.06(b)(i)(B) in the aggregate or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and (B) in any case not described in Section 11.06(b)(i)(A), the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000 unless each of Administrative Agent and, so long as no Event of Default has occurred and is continuing, Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed). (ii) Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned; (iii) Required Consents. No consent shall be required for any assignment except to the extent required by subsection (b)(i)(B) of this Section 11.06 and, in addition: (A) the consent of Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of Default has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; provided that Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to Administrative Agent within five (5) Business Days after having received notice thereof; and
4925-8322-8116 v.5 87 (B) the consent of Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments if such assignment is to a Person that is not a Lender or an Approved Fund with respect to such Lender. (iv) Assignment and Assumption. The parties to each assignment shall execute and deliver to Administrative Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500; provided, however, that no such processing and recordation fee shall be payable in connection with an assignment to an Affiliate of a Lender and Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any other assignment. The assignee, if it is not a Lender, shall deliver to Administrative Agent an Administrative Questionnaire. (v) No Assignment to Certain Persons. No such assignment shall be made (A) to Borrower or any member of the Consolidated Group, or (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B), or (C) to a natural person. (vi) Certain Additional Payments. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of Borrower and Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs. Subject to acceptance and recording thereof by Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05, and 11.04 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Upon request, Borrower (at its expense) shall execute and
4925-8322-8116 v.5 88 deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with subsection (d) of this Section. (c) Register. Administrative Agent, acting solely for this purpose as an agent of Borrower (and such agency being solely for tax purposes), shall maintain at Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it (or the equivalent in electronic form) and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and Borrower, Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice. (d) Participations. Any Lender may at any time, without the consent of, or notice to, Borrower or Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting Lender or Borrower or any of Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) Borrower, Administrative Agent and the Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 11.04(c) without regard to the existence of any participation. 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, waiver or other modification described in the first proviso to Section 11.01 that affects such Participant. Subject to subsection (b) of this Section, Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section (it being understood that the documentation required under Section 3.01(g) shall be delivered to the Lender who sells the participation) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Sections 3.06 and 11.13 as if it were an assignee under paragraph (b) of this Section and (B) shall not be entitled to receive any greater payment under Sections 3.01 or 3.04, with respect to any participation, than the Lender from whom it acquired the applicable participation would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at Borrower’s request and expense, to use reasonable efforts to cooperate with Borrower to effectuate the provisions of Section 3.06 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.08 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.11 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as an agent of Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts
4925-8322-8116 v.5 89 (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (e) Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. 11.07 Treatment of Certain Information; Confidentiality. Each of Administrative Agent and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its and its Related Parties (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent required or requested by any regulatory authority purporting to have jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable Laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or any Eligible Assignee invited to be a Lender pursuant to Section 2.12(c) or (ii) any actual or prospective party (or its Related Parties) to any swap, derivative or other transaction under which payments are to be made by reference to Borrower and its obligations, this Agreement or payments hereunder, (g) on a confidential basis to (i) any rating agency in connection with rating Borrower or its Subsidiaries or the credit facilities provided hereunder or (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers or other market identifiers with respect to the credit facilities provided hereunder, (h) with the consent of Borrower or (i) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to Administrative Agent, any Lender, or any of their respective Affiliates on a nonconfidential basis from a source other than Borrower. For purposes of this Section, “Information” means all information received from Borrower or any Subsidiary relating to Borrower or any Subsidiary or any of their respective businesses, other than any such information that is available to Administrative Agent or any Lender on a nonconfidential basis prior to disclosure by Borrower or any Subsidiary, provided that, in the case of information received from Borrower or any Subsidiary 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.
4925-8322-8116 v.5 90 Each of Administrative Agent and the Lenders acknowledges that (a) the Information may include material non-public information concerning Borrower or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in accordance with applicable Law, including United States Federal and state securities Laws. 11.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender or any such Affiliate to or for the credit or the account of Borrower or any other Loan Party against any and all of the obligations of Borrower or such Loan Party now or hereafter existing under this Agreement or any other Loan Document to such Lender or their respective Affiliates, irrespective of whether or not such Lender or Affiliate shall have made any demand under this Agreement or any other Loan Document and although such obligations of Borrower or such Loan Party may be contingent or unmatured or are owed to a branch, office or Affiliate of such Lender different from the branch, office or Affiliate holding such deposit or obligated on such indebtedness; provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to Administrative Agent for further application in accordance with the provisions of Section 2.13 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, or their respective Affiliates may have. Each Lender agrees to notify Borrower and Administrative Agent promptly after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application. 11.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to Borrower. In determining whether the interest contracted for, charged, or received by Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder. 11.10 Integration; Effectiveness. This Agreement, together with the other Loan Documents, comprises the complete and integrated agreement of the parties on the subject matter hereof and thereof and supersedes all prior agreements, written or oral, on such subject matter. In the event of any conflict between the provisions of this Agreement and those of any other Loan Document, the provisions of this Agreement shall control; provided that the inclusion of supplemental rights or remedies in favor of Administrative Agent or the Lenders in any other Loan Document shall not be deemed a conflict with this Agreement. Each Loan Document was drafted with the joint participation of the respective parties thereto and shall be construed neither against nor in favor of any party, but rather in accordance with the fair meaning thereof. Except as provided in Section 5.01, this Agreement shall become effective when it shall have been executed by Administrative Agent and when Administrative Agent shall have received
4925-8322-8116 v.5 91 counterparts hereof that, 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. 11.11 Survival of Representations and Warranties. All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by Administrative Agent and each Lender, regardless of any investigation made by Administrative Agent or any Lender or on their behalf and notwithstanding that Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any Loan, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied. 11.12 Severability. If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions of this Section 11.12, if and to the extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by Administrative Agent, then such provisions shall be deemed to be in effect only to the extent not so limited. 11.13 Replacement of Lenders. If Borrower is entitled to replace a Lender pursuant to the provisions of Section 3.06, or if any Lender is a Defaulting Lender or a Non-Consenting Lender, then Borrower may, at its sole expense and effort, upon notice to such Lender and Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 11.06), all of its interests, rights (other than its exiting rights to payments pursuant to Sections 3.01 and 3.04) and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that: (a) Borrower shall have paid to Administrative Agent the assignment fee specified in Section 11.06(b); (b) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.05) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or Borrower (in the case of all other amounts); (c) in the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made pursuant to Section 3.01, such assignment will result in a reduction in such compensation or payments thereafter; (d) such assignment does not conflict with applicable Laws; and
4925-8322-8116 v.5 92 (e) in the case of an assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the applicable amendment, waiver or consent. A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling Borrower to require such assignment and delegation cease to apply. 11.14 Governing Law; Jurisdiction; Etc. (a) GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. (b) SUBMISSION TO JURISDICTION. BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST ADMINISTRATIVE AGENT, ANY LENDER, OR ANY RELATED PARTY OF THE FOREGOING IN ANY WAY RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT ADMINISTRATIVE AGENT OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION. (c) WAIVER OF VENUE. BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY 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.
4925-8322-8116 v.5 93 EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT. (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW. 11.15 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY 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 OR 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 PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON 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 AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. 11.16 No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), Borrower and each other Loan Party acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i)(A) the arranging and other services regarding this Agreement provided by Administrative Agent and Arrangers, and the Lenders are arm’s- length commercial transactions between Borrower , each other Loan Party and their respective Affiliates, on the one hand, and Administrative Agent and Arrangers, and the Lenders, on the other hand, (B) each of Borrower and the other Loan Parties has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) Borrower and each other Loan Party is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii)(A) Administrative Agent, each Arranger and each Lender is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for Borrower, any other Loan Party or any of their respective Affiliates, or any other Person and (B) neither Administrative Agent, any Arranger nor any Lender has any obligation to Borrower, any other Loan Party or any of their respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) Administrative Agent, Arrangers and the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of Borrower, the other Loan Parties and their respective Affiliates, and neither Administrative Agent, any Arranger nor any Lender has any obligation to disclose any of such interests to Borrower, any other Loan Party or any of their respective Affiliates. To the fullest extent permitted by law, each of Borrower and the other Loan Parties hereby waives and releases any claims that it may have against Administrative Agent and Arrangers or any Lender with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.
4925-8322-8116 v.5 94 11.17 Electronic Execution. This Agreement, any Loan Document, any Committed Loan Notice and any other document, amendment, approval, consent, information, notice, certificate, request, statement, disclosure or authorization related to this Agreement (each a “Communication”), including Communications required to be in writing, may be in the form of an Electronic Record and may be executed using Electronic Signatures. Each of the Loan Parties and each of Administrative Agent and the Lender Parties agrees that any Electronic Signature on or associated with any Communication shall be valid and binding on such Person to the same extent as a manual, original signature, and that any Communication entered into by Electronic Signature, will constitute the legal, valid and binding obligation of such Person enforceable against such Person in accordance with the terms thereof to the same extent as if a manually executed original signature was delivered. Any Communication may be executed in as many counterparts as necessary or convenient, including both paper and electronic counterparts, but all such counterparts are one and the same Communication. For the avoidance of doubt, the authorization under this paragraph may include, without limitation, use or acceptance of a manually signed paper Communication which has been converted into electronic form (such as scanned into PDF format), or an electronically signed Communication converted into another format, for transmission, delivery and/or retention. Administrative Agent and each of the Lender Parties may, at its option, create one or more copies of any Communication in the form of an imaged Electronic Record (“Electronic Copy”), which shall be deemed created in the ordinary course of such Person’s business, and destroy the original paper document. All Communications in the form of an Electronic Record, including an Electronic Copy, shall be considered an original for all purposes, and shall have the same legal effect, validity and enforceability as a paper record. Notwithstanding anything contained herein to the contrary, Administrative Agent is under no obligation to accept an Electronic Signature in any form or in any format unless expressly agreed to by such Person pursuant to procedures approved by it; provided, further, without limiting the foregoing, (a) to the extent Administrative Agent has agreed to accept such Electronic Signature, Administrative Agent and each of the Lender Parties shall be entitled to rely on any such Electronic Signature purportedly given by or on behalf of any Loan Party and/or any Credit Party without further verification and (b) upon the request of Administrative Agent or any Credit Party, any Electronic Signature shall be promptly followed by such manually executed counterpart. For purposes hereof, “Electronic Record” and “Electronic Signature” shall have the meanings assigned to them, respectively, by 15 USC §7006, as it may be amended from time to time. Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into the sufficiency, validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document (including, for the avoidance of doubt, in connection with Administrative Agent’s reliance on any Electronic Signature transmitted by telecopy, emailed .pdf or any other electronic means). Administrative Agent shall be entitled to rely on, and shall incur no liability under or in respect of this Agreement or any other Loan Document by acting upon, any Communication (which writing may be a fax, any electronic message, Internet or intranet website posting or other distribution or signed using an Electronic Signature) or any statement made to it orally or by telephone and believed by it to be genuine and signed or sent or otherwise authenticated (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the maker thereof). Each of the Loan Parties and each Credit Party hereby waives (i) any argument, defense or right to contest the legal effect, validity or enforceability of this Agreement, any other Loan Document based solely on the lack of paper original copies of this Agreement, such other Loan Document, and (ii) waives any claim against Administrative Agent, each Credit Party and each Related Party for any liabilities arising solely from Administrative Agent’s and/or any Credit Party’s reliance on or use of Electronic Signatures, including any liabilities arising as a result of the failure of the Loan Parties to use any available security measures in connection with the execution, delivery or transmission of any Electronic Signature.
4925-8322-8116 v.5 95 11.18 USA PATRIOT Act. Each Lender that is subject to the 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 “Act”), it is required to obtain, verify and record information that identifies the Loan Parties, which information includes the name and address of the Loan Parties and other information that will allow such Lender or Administrative Agent, as applicable, to identify the Loan Parties in accordance with the Act. Borrower shall, and shall cause all other Loan Parties to, 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 Act. 11.19 Time of the Essence. Time is of the essence of the Loan Documents. 11.20 Acknowledgement and Consent to Bail-In of Affected Financial Institution. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Lender that is an Affected 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 the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by: (a) the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any Lender that is an EEA Financial Institution; and (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 Affected 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 the applicable Resolution Authority. 11.21 Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any Swap Contract or any other agreement or instrument that is a QFC (such support, “QFC Credit Support”, and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States): (a) In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation
4925-8322-8116 v.5 96 in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support. (b) As used in this Section 11.21 the following terms have the following meanings: “BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party. “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §382.2(b). “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§252.81, 47.2 or 382.1, as applicable. “QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D). 11.22 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES. [Remainder of page intentionally blank. Signature pages follow.]
BORROWER: Virginia limitedLP, a By: By: PARENT: AH REALTY TRUST, INC., a Maryland corporation By: IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written. Signature Page to Term Loan Agreement AH REALTY TRUST, partnership AH Realty Trust, Inc., a Maryland corporation, its general partner Nrfme: Matthew Barnes-Smith Title: Chief Financial Officer ' Nalfie: Matthew Barnes-Smith Title: Chief Financial Officer
ADMINISTRATIVE AGENT: By: Signature Page to Term Loan Agreement TORONTO DOMINION (TEXAS) LLC, as Administrative Agent Name: Ronald Davis Title: Authorized Signatory
LENDERS: TD BANK, N.A., as a Lender By: Signature Page to Term Loan Agreement Name: Michael Duganich Title: Vice President
4905-8826-3637 v.4 Schedule 2.01 SCHEDULE 2.01 COMMITMENTS AND APPLICABLE PERCENTAGES Lender Term Commitment Applicable Term Loan Percentage Total TD Bank, N.A. $50,000,000.00 50.000000000% $50,000,000.00 PNC Bank, National Association $50,000,000.00 50.000000000% $50,000,000.00 Total $100,000,000.00 100.000000000% $100,000,000.00
4905-8826-3637 v.4 Schedule 6.06 SCHEDULE 6.06 LITIGATION None.
4905-8826-3637 v.4 Schedule 6.09 SCHEDULE 6.09 ENVIRONMENTAL MATTERS No environmental concerns; however, various properties are eligible for Brownsfields tax credits: 1. Wills Wharf Baltimore LLC 2. Harding Place Residential Partners, LLC 3. Wendover Village Greensboro, LLC 4. Wendover Village Greensboro II, LLC 5. Wendover Village III, LLC
4905-8826-3637 v.4 Schedule 6.13 SCHEDULE 6.13 SUBSIDIARIES; OTHER EQUITY INVESTMENTS; EQUITY INTERESTS IN BORROWER Part (a) [See attached.]
Entity Equity Percentage Owned by Parent 1023 Roswell, LLC 100% 1300 Thames Street Office, LLC 100% 660 Delray Beach, LLC 100% 660 Delray Beach MC, LLC 100% A/H Harrisonburg Regal LLC 100% AH Columbus II, LLC 100% AH Greentree, LLC 100% AH Sandbridge, LLC 100% AHP Holding, Inc. 100% Armada Hoffler Tower 4, LLC 100% Armada/Hoffler Block 8 Associates, LLC 100% Armada Hoffler Manager, LLC 100% Armada Hoffler JV Manager, LLC 100% Baltimore Parcel 2E Holding, LLC 100% Baltimore Parcel 2E, LLC 100% Baltimore Parcel 3 Holding, LLC 100% Baltimore Parcel 3, LLC 100% Broad Creek PH. I, LLC 100% Broad Creek PH. III, LLC 100% Broadmoor Plaza Indiana, LLC 100% Brooks Crossing II, LLC 100% BSE/AH Blacksburg Apartments, LLC 100% Columbus Tower, LLC 100% Columbus Town Center II, LLC 100% Columbus Town Center, LLC 100% Dimmock Square Marketplace, LLC 100% Ferrell Parkway Associates, LLC 100% Gainesville Development II, LLC 100% Gainesville Development, LLC 100% Greenbrier Square Chesapeake, LLC 100% Greenbrier Technology Center II Associates, LLC 100% Hanbury Village II, LLC 100% Harding Place Residential Partners, LLC 100% Hilltop Laskin, LLC 100% HT Tyre Neck, LLC 100% Interlock Atlanta, LLC 100% Kennesaw Holding, LLC 100% Lexington at Hope Ferry, LLC 100% North Hampton Market South Carolina, LLC 100% North Pointe-CGL, LLC 100% North Pointe Development Associates, LLC 100% Schedule 6.13
North Pointe Development Associates, LP 100% North Pointe Outparcels, L.L.C. 100% North Pointe Ph. I Limited Partnership 100% North Pointe VW4, LLC 100% OCC Commercial, LLC 100% Overlook Village Asheville, LLC 100% Parkway Centre Moultrie, LLC 100% Paterson Place Durham, LLC 100% Perry Hall Maryland LLC 100% Providence Plaza Charlotte, LLC 100% Red Mill Central, LLC 100% Red Mill North, LLC 100% Red Mill Outparcels, LLC 100% Red Mill South, LLC 100% Red Mill West, LLC 100% South Square Durham, LLC 100% Southern Post, LLC 100% Southgate Square Virginia, LLC 100% Southshore Pointe, LLC 100% TCA 10 GP, LLC 100% TCA Block 4 Retail, LLC 100% TCA Block 6, LLC 100% TCA Block 11 Office, LLC 100% Town Center Associates 12, LLC 100% Town Center Associates 7, LLC 100% Town Center Associates 9, LLC 100% Town Center Associates, LLC 100% Town Center Block 9 Owners, LLC 100% Town Center Pembroke TIC, LLC 100% Town Center Pembroke, LLC 100% Wendover Village Greensboro II, LLC 100% Wendover Village Greensboro, LLC 100% Wendover Village III, LLC 100% Wills Wharf Baltimore LLC 100% Southeast Commerce Associates II, LLC 65% Lightfoot Marketplace Shopping Center, LLC 60% Harbor Point Parcel 2 Holdings, LLC 90% Kennesaw Pad D Apartments, LLC 95% Harbor Point Parcel 3 Development, LLC 50%
4905-8826-3637 v.4 Schedule 6.13 Part (b) None.
4905-8826-3637 v.4 Schedule 8.01 SCHEDULE 8.01 EXISTING LIENS None.
4905-8826-3637 v.4 Schedule 8.03 SCHEDULE 8.02 EXISTING INDEBTEDNESS [See attached.]
SCHEDULE 8.02 Entity Name Description of Debt Lender Original Loan Amount Transaction Date Maturity Town Center Associates 9, LLC Premier Apartments and Retail PNC Bank (Originator), Federal Home Loan Mortgage Corporation $ 29,415,000 11/27/2024 12/1/2029 1300 Thames Street Office, LLC Thames Street Wharf Bank of America $ 71,000,000 9/30/2021 9/30/2031 Harbor Point Parcel 2 Holdings, LLC Constellation Building PNC Bank, TD Bank, Atlantic Union Bank* $ 121,800,000 10/28/2026 10/28/2029 Greenbrier Square Chesapeake, LLC Greenbrier Square New York Life Insurance Company $ 20,000,000 9/10/2021 10/10/2027 Lexington at Hope Ferry, LLC Lexington Square Transamerica Premier Life Insurance Company $ 15,000,000 8/28/2018 9/1/2028 Red Mill North, LLC Red Mill North Genworth Life Insurance Company $ 4,900,000 5/23/2019 12/31/2028 Harding Place Residential Partners, LLC Greenside Apartments Northwestern Mutual Life Insurance Company $ 34,000,000 12/12/2019 12/15/2029 BSE/AH Blacksburg Apartments, LLC Smith's Landing Berkadia $ 21,573,000 5/27/2018 6/1/2035 Gainesville Development, LLC** The Everly PNC Bank $ 30,000,000 12/20/2022 3/17/2027 EXISTING INDEBTEDNESS * Reflects refinancing of loan on October 28, 2026. Previous lenders were Bank of America, Huntington National Bank, and PNC Bank ** This loan is expected to be paid off on October 29, 2026 in conjunction with the sale of the collateral.
4905-8826-3637 v.4 Schedule 11.02 – Page 1 SCHEDULE 11.02 ADMINISTRATIVE AGENT’S OFFICE; CERTAIN ADDRESSES FOR NOTICE LOAN PARTIES: c/o AH Realty Trust, Inc. 222 Central Park Avenue, Suite 2100 Virginia Beach, VA 23462 Attn: Matthew T. Barnes-Smith Telephone Number: 757.567.0053 Email Address: mbarnessmith@armadahoffler.com Loan Party Taxpayer Identification Number 1. AH Realty Trust, Inc. 46 1214914 2. AH Realty Trust, LP 36 4745113 3. 1023 Roswell, LLC 36 4745113 4. 1300 Thames Street Office, LLC 36 4745113 5. 660 Delray Beach, LLC 36 4745113 6. 660 Delray Beach MC, LLC 36 4745113 7. A/H Harrisonburg Regal LLC 36 4745113 8. AH Columbus II, L.L.C. 36 4745113 9. AH Greentree, LLC 36 4745113 10. AH Sandbridge, LLC 36 4745113 11. AHP Holding, Inc. 36 4745113 12. Armada Hoffler Tower 4, L.L.C. 36 4745113 13. Armada/Hoffler Block 8 Associates, LLC 36 4745113 14. Armada Hoffler Manager, LLC 36 4745113 15. Armada Hoffler JV Manager, LLC 36 4745113 16. Baltimore Parcel 2E Holding, LLC 36 4745113 17. Baltimore Parcel 2E, LLC 36 4745113 18. Baltimore Parcel 3 Holding, LLC 36 4745113 19. Baltimore Parcel 3, LLC 36 4745113 20. Broad Creek PH. I, L.L.C. 36 4745113 21. Broad Creek Ph. III, L.L.C. 36 4745113 22. Broadmoor Plaza Indiana, LLC 36 4745113 23. Brooks Crossing II, LLC 36 4745113 24. BSE/AH Blacksburg Apartments, LLC 36 4745113 25. Columbus Tower, L.L.C. 36 4745113 26. Columbus Town Center, LLC 36 4745113 27. Columbus Town Center II, LLC 36 4745113 28. Dimmock Square Marketplace, LLC 36 4745113 29. Ferrell Parkway Associates, L.L.C. 36 4745113
4905-8826-3637 v.4 Schedule 11.02 – Page 2 30. Greenbrier Technology Center II Associates, LLC 36 4745113 31. Hanbury Village II, L.L.C. 36 4745113 32. Harding Place Residential Partners, LLC 36 4745113 33. Hilltop Laskin, LLC 36 4745113 34. HT Tyre Neck, LLC 36 4745113 35. Interlock Atlanta, LLC 36 4745113 36. Kennesaw Holding, LLC 36 4745113 37. Lexington at Hope Ferry, LLC 36 4745113 38. North Hampton Market South Carolina, LLC 36 4745113 39. North Pointe-CGL, LLC 36 4745113 40. North Pointe Development Associates, LLC 36 4745113 41. North Pointe Development Associates, LP 36 4745113 42. North Pointe Outparcels, L.L.C. 36 4745113 43. North Pointe Ph. I Limited Partnership 36 4745113 44. North Pointe VW4, L.L.C. 36 4745113 45. OCC Commercial, LLC 36 4745113 46. Overlook Village Asheville, LLC 36 4745113 47. Parkway Centre Moultrie, LLC 36 4745113 48. Paterson Place Durham, LLC 36 4745113 49. Perry Hall Maryland LLC 36 4745113 50. Providence Plaza Charlotte, LLC 36 4745113 51. Red Mill Central, LLC 36 4745113 52. Red Mill North, LLC 36 4745113 53. Red Mill Outparcels, LLC 36 4745113 54. Red Mill South, LLC 36 4745113 55. Red Mill West, LLC 36 4745113 56. South Square Durham, LLC 36 4745113 57. Southern Post, LLC 36 4745113 58. Southgate Square Virginia, LLC 36 4745113 59. Southshore Pointe, LLC 36 4745113 60. TCA 10 GP, LLC 36 4745113 61. TCA Block 11 Office, LLC 36 4745113 62. TCA Block 4 Retail, L.L.C. 36 4745113 63. TCA Block 6, LLC 36 4745113 64. Town Center Associates 12, LLC 36 4745113 65. Town Center Associates 7, L.L.C. 36 4745113 66. Town Center Associates 9, L.L.C. 36 4745113 67. Town Center Associates, LLC 36 4745113 68. Town Center Block 9 Owners, LLC 36 4745113 69. Town Center Pembroke TIC, LLC 36 4745113
4905-8826-3637 v.4 Schedule 11.02 – Page 3 70. Town Center Pembroke, LLC 36 4745113 71. Wendover Village III, LLC 36 4745113 72. Wendover Village Greensboro II, LLC 36 4745113 73. Wendover Village Greensboro, LLC 36 4745113 74. Wills Wharf Baltimore LLC 36 4745113 ADMINISTRATIVE AGENT: Administrative Agent’s Office (for payments and Committed Loan Notices): Toronto Dominion (Texas), LLC TD North Tower, 26th Floor 77 King Street West Toronto, Ontario M5K 1A2 Canada Attention: Agency Administration Facsimile: 416-982-5535 Electronic Mail: TDSAgencyAdmin@tdsecurities.com Ref: AH Realty Other Notices as Administrative Agent: Toronto Dominion (Texas), LLC TD North Tower, 26th Floor 77 King Street West Toronto, Ontario M5K 1A2 Canada Attention: Agency Administration Facsimile: 416-982-5535 Electronic Mail: TDSAgencyAdmin@tdsecurities.com Ref: AH Realty
4905-8826-3637 v.4 Exhibit A – Page 1 EXHIBIT A FORM OF COMMITTED LOAN NOTICE Date: ___________, _____ To: Toronto Dominion (Texas) LLC, as Administrative Agent Ladies and Gentlemen: Reference is made to that certain Term Loan Agreement, dated as of October 28, 2026 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as therein defined), among AH Realty Trust, LP, a Virginia limited partnership (“Borrower”), AH Realty Trust, Inc., a Maryland corporation, the Lenders from time to time party thereto, and Toronto Dominion (Texas) LLC, as Administrative Agent. The undersigned hereby requests (select one): A Borrowing of Loans A conversion of Loans from one Type to the other A continuation of Term SOFR Rate Loans 1. On (a Business Day). 2. In the amount of $ . 3. Comprised of [Daily SOFR Rate] [Term SOFR Rate] [Base Rate] Loans. 4. For Term SOFR Rate Loans: with an Interest Period of [1] [3] month(s). The Borrowing of any loan proceeds should be credited to [__] Account ending in [__]. [SIGNATURE PAGE FOLLOWS]
4905-8826-3637 v.4 Exhibit A – Page 2 BORROWER: AH REALTY TRUST, LP By: AH REALTY TRUST, INC., its general partner By: Name: Title:
4905-8826-3637 v.4 Exhibit B – Page 1 EXHIBIT B [FORM OF TERM] NOTE FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to _____________________ or registered assigns (the “Lender”), in accordance with the provisions of the Agreement (as hereinafter defined), the principal amount of each Loan made by the Lender to the Borrower under that certain Term Loan Agreement, dated as of October 28, 2026 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as therein defined), among Borrower, AH REALTY TRUST, INC., a Maryland corporation, the Lenders from time to time party thereto, and TORONTO DOMINION (TEXAS) LLC, as Administrative Agent. Borrower promises to pay interest on the unpaid principal amount of each Loan from the date of such Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Agreement. All payments of principal and interest shall be made to Administrative Agent for the account of Lender in Dollars in immediately available funds at Administrative Agent’s Office. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Agreement. This Note is one of the Notes referred to in the Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. This Note is also entitled to the benefits of the Guarantees of the Guarantors. Upon the occurrence and continuation of one or more of the Events of Default specified in the Agreement, all amounts then remaining unpaid on this Note shall become, or may be declared to be, immediately due and payable all as provided in the Agreement. Each Loan made by Lender shall be evidenced by one or more loan accounts or records maintained by Lender in the ordinary course of business. Lender may also attach schedules to this Note and endorse thereon the date, amount and maturity of its Loans and payments with respect thereto. Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Note. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. [SIGNATURE PAGE FOLLOWS]
4905-8826-3637 v.4 Exhibit B – Page 2 BORROWER: AH REALTY TRUST, LP By: AH REALTY TRUST, INC., its general partner By: Name: Title:
4905-8826-3637 v.4 Exhibit B – Page 3 LOANS AND PAYMENTS WITH RESPECT THERETO Date Type of Loan Made Amount of Loan Made End of Interest Period Amount of Principal or Interest Paid This Date Outstanding Principal Balance This Date Notation Made By
4905-8826-3637 v.4 Exhibit C – Page 1 EXHIBIT C FORM OF COMPLIANCE CERTIFICATE [Financial Statement] Date: , To: Toronto Dominion (Texas) LLC, as Administrative Agent Ladies and Gentlemen: Reference is made to that certain Term Loan Agreement, dated as of October 28, 2026 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as therein defined), among AH REALTY TRUST, LP, a Virginia limited partnership (“Borrower”), AH REALTY TRUST, INC., a Maryland corporation (“Parent”), the Lenders from time to time party thereto, and TORONTO DOMINION (TEXAS) LLC, as Administrative Agent. The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the [________________] of Parent, and that, as such, he/she is authorized to execute and deliver this Certificate to Administrative Agent on the behalf of Parent, for itself and as general partner of Borrower, and that: [Use following paragraph 1 for fiscal year-end financial statements] 1. Parent has delivered the year-end audited financial statements required by Section 7.01(a) of the Agreement for the fiscal year of Parent, ended as of the above date, together with the reports and opinions of an independent certified public accountant required by such section. [Use following paragraph 1 for fiscal quarter-end financial statements] 1. Parent has delivered the unaudited financial statements required by Section 7.01(b) of the Agreement for the fiscal quarter of Parent ended as of the above date. Such financial statements fairly present in all material respects the financial condition, results of operations and cash flows of the Consolidated Group in accordance with GAAP as of such date and for such period, subject only to normal year-end audit adjustments and the absence of footnotes. 2. The undersigned has reviewed and is familiar with the terms of the Agreement and has made, or has caused to be made under his/her supervision, a detailed review of the transactions and condition (financial or otherwise) of the Consolidated Group during the accounting period covered by such financial statements. 3. A review of the activities of the Consolidated Group during such fiscal period has been made under the supervision of the undersigned with a view to determining whether during such fiscal period Borrower, Parent and each other Loan Party performed and observed all of their respective Obligations under the Loan Documents, and [select one:] [to the best knowledge of the undersigned, during such fiscal period Borrower, Parent and each other Loan Party performed and observed each covenant and condition of the Loan Documents applicable to it, and no Default has occurred and is continuing.]
4905-8826-3637 v.4 Exhibit C – Page 2 --or-- [to the best knowledge of the undersigned, during such fiscal period the following covenants or conditions have not been performed or observed and the following is a list of each such Default and its nature and status:] 4. The representations and warranties of Parent and Borrower contained in Article VI of the Agreement, and any representations and warranties of any Loan Party that are contained in any document furnished at any time under or in connection with the Loan Documents, are true and correct on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and except that for purposes of this Compliance Certificate, the representations and warranties contained in clauses (a) and (b) of Section 6.05 of the Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01 of the Agreement, including the statements in connection with which this Compliance Certificate is delivered. 5. The financial covenant analyses and information set forth on Schedule 1 attached hereto are true and accurate on and as of the date of this Certificate. 6. The amounts and information set forth on Schedule 2 accurately reflect the current Unencumbered Properties. Any Unencumbered Properties that have been added or removed since delivery of the prior Compliance Certificate are noted on Schedule 2. IN WITNESS WHEREOF, the undersigned has executed this Certificate as of , . [SIGNATURE PAGE FOLLOWS]
4905-8826-3637 v.4 Exhibit C – Page 3 PARENT: AH REALTY TRUST, INC. By: Name: Title: BORROWER: AH REALTY TRUST, LP By: AH REALTY TRUST, INC., its general partner By: Name: Title:
4905-8826-3637 v.4 Exhibit C – Page 4 For the Quarter/Year ended ___________________(“Statement Date”) SCHEDULE 1 to the Compliance Certificate ($ in 000’s) I. Total Asset Value. A. Net Operating Income from all Properties owned or leased: $ ______ B. Net Operating Income attributable to all Properties that were sold or otherwise disposed of during the relevant period: $ ______ C. Annual Capital Expenditure Adjustment with respect to Properties included in calculations of Lines I.A. and I.B: $ ______ D. Capitalization Rate: ___________% E. Aggregate acquisition costs from all Properties owned or leased for less than four (4) fiscal quarters: $___________ F. Aggregate book value of all unimproved land holdings (not to exceed 5% of Total Asset Value): $___________ G. Aggregate book value of all Construction-in-Progress Properties (not to exceed 20% of Total Asset Value): $___________ H. Aggregate book value of mortgage or mezzanine loans, notes receivable (not to exceed 15% of Total Asset Value): $___________ I. Amounts described in Lines I.A through I.H (without duplication of any such amounts) with respect to each Unconsolidated Affiliate of the Consolidated Group multiplied by the respective Unconsolidated Affiliate Interest of each member of the Consolidated Group in such Unconsolidated Affiliate (not to exceed 10% of Total Asset Value): $___________ J. Investments in items described in Line I.F plus Line I.G plus Line I.H plus Line I.I (not to exceed 30% of Total Asset Value): $ ______ K. Unrestricted Cash: $ ______ L. Total Asset Value as of the Statement Date (((Line I.A minus Line I.B minus Line I.C) divided by Line I.D, such amount if greater than $0) plus Line I.E plus Line I.F plus Line I.G plus Line I.H plus Line I.I plus Line I.K): $ ______ II. Section 8.15(a) – Maximum Leverage Ratio. A. Total Indebtedness as of the Statement Date: $ B. Total Asset Value as of the Statement Date (Line I.L): $ C. Total Leverage Ratio (Line II.A divided by Line II.B): __________ %
4905-8826-3637 v.4 Exhibit C – Page 5 Maximum permitted: [60][65]1% III. Section 8.15(b) – Minimum Fixed Charge Coverage Ratio. A. Adjusted EBITDA for the four (4) fiscal quarters ending on the Statement Date (the “Calculation Period”): $ B. Fixed Charges for the Calculation Period: $ C. Fixed Charge Coverage Ratio (Line III.A divided by Line III.B): _______ to 1.0 Minimum required: 1.50 to 1.0 IV. Section 8.15(c) – Minimum Tangible Net Worth. A. Base Tangible Net Worth: $[____] B. Net equity proceeds received by the Consolidated Group after June 30, 2026, multiplied by 75%: $ C. Minimum Tangible Net Worth (Line IV.A plus Line IV.B): $ D. Tangible Net Worth as of the Statement Date: $ E. [Excess][Deficiency] for covenant compliance (Line IV.D minus Line IV.C): $ V. Section 8.15(d) – Maximum Secured Indebtedness. A. Secured Indebtedness (excluding the Facility if it becomes Secured Indebtedness) as of the Statement Date: $ B. Total Asset Value as of the Statement Date (Line I.L): $ C. Maximum permitted Secured Indebtedness (Line V.B multiplied by 40%) $ D. Ratio of Secured Investments (excluding the Facility if it becomes Secured Indebtedness) to Total Asset Value as of the Statement Date (Line V.A divided by Line V.B) __________ % VI. Section 8.15(e) – Maximum Secured Recourse Debt. A. Secured Recourse Debt (excluding the Facility if it becomes Secured Indebtedness) as of the Statement Date: $ B. Total Asset Value as of the Statement Date (Line I.L): $ C. Maximum permitted Secured Recourse Debt (Line VI.B multiplied by 20%) $ D. Ratio of Secured Recourse Debt (excluding the Facility if it becomes Secured Indebtedness) to Total Asset Value as of the Statement Date (Line VI.A divided by Line VI.B) __________ % 1 As of the last day of the fiscal quarter in which any Significant Acquisition occurs and the last day of the two (2) consecutive quarters thereafter (but only for up to two (2) times during the term of the Term Loan Agreement, the Total Leverage Ratio may exceed sixty (60%) so long as it does not exceed sixty-five percent (65%).
4905-8826-3637 v.4 Exhibit C – Page 6 VII. Section 8.15(f) – Maximum Unsecured Leverage Ratio. A. Total Unsecured Indebtedness as of the Statement Date: $ B. Unencumbered Asset Value as of the Statement Date: $ C. Total Unsecured Leverage Ratio (Line VII.A divided by Line VII.B): __________ % Maximum permitted: [60][65]2% VIII. Section 8.15(g) – Minimum Unencumbered Interest Coverage Ratio. A. Unencumbered NOI: $ B. Unencumbered Interest Expense: $ C. Unencumbered Interest Coverage Ratio (Line VIII.A divided by Line VIII.B): _______ to 1.0 Minimum required: 1.75 to 1.0 IX. Section 8.16(a) – Unencumbered Asset Value. A. Unencumbered Asset Value for all Unencumbered Properties (as set forth on Schedule 2): $ Minimum required: $500,000,000 X. Section 8.16(b) – Minimum Unencumbered Properties. A. Total Number of Unencumbered Properties (as set forth on Schedule 2): Minimum required: 15 XI. Section 8.16(c) – Occupancy Rate. A. Occupancy Rate for all Unencumbered Properties: % Minimum required: 80% XII. Section 8.16(d) – Tenant Concentration. A. Total rental revenues by tenant for the three highest concentrated tenants: i. [TENANT 1] $ ii. [TENANT 2] $ iii. [TENANT 3] $ B. Total rental revenues with respect to all Leases of Unencumbered Properties: $ C. Tenant Concentrations (applicable Line XII.A. divided by Line XII.B.): i. [TENANT 1] % ii. [TENANT 2] % 2 As of the last day of the fiscal quarter in which any Significant Acquisition occurs and the last day of the two (2) consecutive quarters thereafter (but only for up to two (2) times during the term of the Term Loan Agreement, the Total Unsecured Leverage Ratio may exceed sixty (60%) so long as it does not exceed sixty-five percent (65%).
4905-8826-3637 v.4 Exhibit C – Page 7 iii. [TENANT 3] % Maximum permitted: 25%
4905-8826-3637 v.4 Exhibit C – Page 8 For the Quarter/Year ended ___________________(“Statement Date”) SCHEDULE 2 to the Compliance Certificate ($ in 000’s) Unencumbered Properties Unencumbered Property Unencumbered Asset Value 1. $ 2. $ 3. $ 4. $ 5. $ 6. $ 7. $ 8. $ 9. $ 10 $ 11 $ 12 $ 13 $ 14 $ 15 $ 16 $ 17 $ 18 $ 19 $ Aggregate Unencumbered Asset Value of all Unencumbered Properties: $
4905-8826-3637 v.4 Exhibit C – Page 9 New Unencumbered Properties Since Most-Recent Compliance Certificate Name of Unencumbered Property Name of Subsidiary Guarantor Unencumbered Asset Value Property Type (e.g. Retail, etc.) Address Effective date of addition as Unencumbered Property
4905-8826-3637 v.4 Exhibit C – Page 10 Removed Unencumbered Properties Since Most-Recent Compliance Certificate Name of Unencumbered Property Name of Subsidiary Guarantor Unencumbered Asset Value Property Type (e.g. Retail, etc.) Address Effective date of removal as Unencumbered Property
4905-8826-3637 v.4 Exhibit D-1 – Page 1 EXHIBIT D-1 FORM OF ASSIGNMENT AND ASSUMPTION This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between [the][each]3 Assignor identified in item 1 below ([the][each, an] “Assignor”) and [the][each]4 Assignee identified in item 2 below ([the][each, an] “Assignee”). [It is understood and agreed that the rights and obligations of [the Assignors][the Assignees]5 hereunder are several and not joint.]6 Capitalized terms used but not defined herein shall have the meanings given to them in the Term Loan Agreement identified below (the “Term Loan Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full. For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and assumes from [the Assignor][the respective Assignors], subject to and in accordance with the Standard Terms and Conditions and the Term Loan Agreement, as of the Effective Date inserted by Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’] rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under the Term Loan Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of [the Assignor][the respective Assignors] under the Facility and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of [the Assignor (in its capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)] against any Person, whether known or unknown, arising under or in connection with the Term Loan Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as [the][an] “Assigned Interest”). Each such sale and assignment is without recourse to [the][any] Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by [the][any] Assignor. 1. Assignor[s]: 3 For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose the second bracketed language. 4 For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language. 5 Select as appropriate. 6 Include bracketed language if there are either multiple Assignors or multiple Assignees.
4905-8826-3637 v.4 Exhibit D-1 – Page 2 2. Assignee[s]: [for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]] 3. Borrower: AH REALTY TRUST, LP, a Virginia limited partnership 4. Administrative Agent: TORONTO DOMINION (TEXAS) LLC, as administrative agent under the Term Loan Agreement 5. Term Loan Agreement: Term Loan Agreement, dated as of October 28, 2026, among AH REALTY TRUST, LP, a Virginia limited partnership, AH REALTY TRUST, INC., a Maryland corporation, the Lenders from time to time party thereto, and TORONTO DOMINION (TEXAS) LLC, as Administrative Agent 6. Assigned Interest[s]: Assignor[s]7 Assignee[s]8 Aggregate Amount of Commitment for all Lenders9 Amount of Commitment Assigned Percentage Assigned of Commitment 10 CUSIP Number $____________ $__________ _________% $____________ $__________ _________% $____________ $__________ _________% [7. Trade Date: __________________]11 Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.] 7 List each Assignor, as appropriate. 8 List each Assignee, as appropriate. 9 Amounts in this column and in the column immediately to the right to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date. 10 Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder. 11 To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date.
4905-8826-3637 v.4 Exhibit D-1 – Page 3 The terms set forth in this Assignment and Assumption are hereby agreed to: ASSIGNOR [NAME OF ASSIGNOR] By: Title: ASSIGNEE [NAME OF ASSIGNEE] By: Title: [Consented to and]12 Accepted: TORONTO DOMINION (TEXAS) LLC, as Administrative Agent By: Title: [Consented to:]13 BORROWER: AH REALTY TRUST, LP By: AH REALTY TRUST, INC., its general partner By: Name: Title: PARENT: AH REALTY TRUST, INC. By: Name: Title: 12 To be added only if the consent of Administrative Agent is required by the terms of the Term Loan Agreement. 13 To be added only if the consent of Borrower and/or other parties is required by the terms of the Term Loan Agreement.
4905-8826-3637 v.4 Exhibit D-1 – Page 4 ANNEX 1 TO ASSIGNMENT AND ASSUMPTION STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT AND ASSUMPTION 1. Representations and Warranties. 1.1. Assignor. [The][Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the][the relevant] Assigned Interest, (ii) [the][such] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and (iv) it is [not] a Defaulting Lender; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Term Loan Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document. 1.2. Assignee. [The][Each] Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Term Loan Agreement, (ii) it meets all the requirements to be an assignee under Section 11.06(b)(iii), (v) and (vi) of the Term Loan Agreement (subject to such consents, if any, as may be required under Section 11.06(b)(iii) of the Term Loan Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Term Loan Agreement as a Lender thereunder and, to the extent of [the][the relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by [the][such] Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire [the][such] Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Term Loan Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 7.01(a) or Section 7.01(b) thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi) it has, independently and without reliance upon 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 Assignment and Assumption and to purchase [the][such] Assigned Interest, and (vii) if it is a Foreign Lender, attached hereto is any documentation required to be delivered by it pursuant to the terms of the Term Loan Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees that (i) it will, independently and without reliance upon Administrative Agent, [the][any] Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender. 2. Payments. From and after the Effective Date, Administrative Agent shall make all payments in respect of [the][each] Assigned Interest (including payments of principal, interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to but excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued from and after the Effective Date.
4905-8826-3637 v.4 Exhibit D-1 – Page 5 3. General Provisions. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of New York.
4905-8826-3637 v.4 Exhibit D-2 EXHIBIT D-2 FORM OF ADMINISTRATIVE QUESTIONNAIRE [To be attached]
ADMINISTRATIVE QUESTIONNAIRE Borrower: AH Realty Trust, LP Agent Address: Toronto Dominion (Texas) LLC Return form to: Ronald Davis 1 Vanderbilt Avenue Telephone: (212) 827-2752 New York, NY 10017 Email: ronald.davis@tdsecurities.com It is very important that all of the requested information be completed accurately and that this questionnaire be returned promptly. Lender's Full Legal Name: Lender's Operating Address: Lender's Legal Address: Lender's Contacts Credit Contacts: Primary Contact Secondary Contact Name: Title: Telephone: Facsimile: E-mail Address: Loan Contacts: Primary Contact Secondary Contact Name: Title: Telephone: Facsimile: E-mail Address:
Lender's Tax Form W- Form is attached. Taxpayer Identification Number (TIN) is ________________________________ Lender's Settlement Account Wire Instructions US Currency Bank Name: Bank Address: ABA/Routing No: Account Name: Address: Account No.: Agent’s US Currency Wire Instructions Bank of America, NT & SA 100 33rd Street W. New York, NY 10001, United States ABA #: 026009593 Credit: Toronto Dominion (TEXAS) LLC. Account #: 6550-6-53000 Ref: AH Realty Trust, LP
4905-8826-3637 v.4 Exhibit E-1 EXHIBIT E-1 FORM OF U.S. TAX COMPLIANCE CERTIFICATES (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes) Reference is hereby made to the Term Loan Agreement, dated as of October 28, 2026 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Term Loan Agreement;” the terms defined therein being used herein as therein defined), among AH REALTY TRUST, LP, a Virginia limited partnership (“Borrower”), AH REALTY TRUST, INC., a Maryland corporation, the Lenders from time to time party thereto, and TORONTO DOMINION (TEXAS) LLC, as Administrative Agent. Pursuant to the provisions of Section 3.01(g) of the Term Loan Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to Borrower as described in Section 881(c)(3)(C) of the Code. The undersigned has furnished Administrative Agent and Borrower with a certificate of its non- U.S. Person status on IRS Form W-8BEN, or IRS Form W-8BEN-E, as applicable. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform Borrower and Administrative Agent, and (2) the undersigned shall have at all times furnished Borrower and Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments. Unless otherwise defined herein, terms defined in the Term Loan Agreement and used herein shall have the meanings given to them in the Term Loan Agreement. [NAME OF LENDER] By: _______________________ Name: _______________________ Title: ________________________ Date: ________ __, 20____
4905-8826-3637 v.4 Exhibit E-2 EXHIBIT E-2 FORM OF U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes) Reference is hereby made to the Term Loan Agreement, dated as of October 28, 2026 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Term Loan Agreement;” the terms defined therein being used herein as therein defined), among AH REALTY TRUST, LP, a Virginia limited partnership (“Borrower”), AH REALTY TRUST, INC., a Maryland corporation, the Lenders from time to time party thereto, and TORONTO DOMINION (TEXAS) LLC, as Administrative Agent. Pursuant to the provisions of Section 3.01(g) of the Term Loan Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of Borrower within the meaning of Section 871(h)(3)(B) of the Code, and (iv) it is not a controlled foreign corporation related to Borrower as described in Section 881(c)(3)(C) of the Code. The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN, or IRS Form W-8BEN-E, as applicable. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments. Unless otherwise defined herein, terms defined in the Term Loan Agreement and used herein shall have the meanings given to them in the Term Loan Agreement. [NAME OF PARTICIPANT] By: _______________________ Name: _______________________ Title: ________________________ Date: ________ __, 20____
4905-8826-3637 v.4 Exhibit E-3 EXHIBIT E-3 FORM OF U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes) Reference is hereby made to the Term Loan Agreement, dated as of October 28, 2026 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Term Loan Agreement;” the terms defined therein being used herein as therein defined), among AH REALTY TRUST, LP, a Virginia limited partnership (“Borrower”), AH REALTY TRUST, INC., a Maryland corporation, the Lenders from time to time party thereto, and TORONTO DOMINION (TEXAS) LLC, as Administrative Agent. Pursuant to the provisions of Section 3.01(g) of the Term Loan Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect to such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to Borrower as described in Section 881(c)(3)(C) of the Code. The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN, or IRS Form W-8BEN-E, as applicable or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN, or IRS Form W-8BEN-E, as applicable, from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments. Unless otherwise defined herein, terms defined in the Term Loan Agreement and used herein shall have the meanings given to them in the Term Loan Agreement. [NAME OF PARTICIPANT] By: _______________________ Name: _______________________ Title: ________________________ Date: ________ __, 20____
4905-8826-3637 v.4 Exhibit E-4 EXHIBIT E-4 FORM OF U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes) Reference is hereby made to the Term Loan Agreement, dated as of October 28, 2026 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Term Loan Agreement;” the terms defined therein being used herein as therein defined), among AH REALTY TRUST, LP, a Virginia limited partnership (“Borrower”), AH REALTY TRUST, INC., a Maryland corporation, the Lenders from time to time party thereto, and TORONTO DOMINION (TEXAS) LLC, as Administrative Agent. Pursuant to the provisions of Section 3.01(g) of the Term Loan Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Term Loan Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to Borrower as described in Section 881(c)(3)(C) of the Code. The undersigned has furnished Administrative Agent and Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN, or IRS Form W-8BEN-E, as applicable or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN, or IRS Form W-8BEN-E, as applicable, from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform Borrower and Administrative Agent, and (2) the undersigned shall have at all times furnished Borrower and Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments. Unless otherwise defined herein, terms defined in the Term Loan Agreement and used herein shall have the meanings given to them in the Term Loan Agreement. [NAME OF LENDER] By: _______________________ Name: ________________________ Title: ________________________ Date: ________ __, 20___
AMENDED AND RESTATED TERM LOAN AGREEMENT by and among HARBOR POINT PARCEL 2 – OFFICE, LLC, HARBOR POINT PARCEL 2 – RETAIL, LLC, and HARBOR POINT PARCEL 2 – TRANSFER STATION, LLC, each a Delaware limited liability company, as Borrower and PNC BANK, NATIONAL ASSOCIATION, a national banking association, as Administrative Agent and The Other Financial Institutions Party Hereto Dated as of October 28, 2026 PNC CAPITAL MARKETS, LLC, as Sole Lead Arranger and PNC CAPITAL MARKETS, LLC, as Sole Bookrunner Constellation Energy Generation Building 1310 Point Street Baltimore, Maryland 21231 Exhibit 10.3
PAGE ii TABLE OF CONTENTS Page ARTICLE 1 — THE LOAN 1.1 General Information and Exhibits.................................................................................................... 2 1.2 Purpose............................................................................................................................................. 3 1.3 Commitment to Lend ....................................................................................................................... 3 1.4 Interest Rate ..................................................................................................................................... 3 1.5 Prepayment ...................................................................................................................................... 4 1.6 Payment Schedule and Maturity Date.............................................................................................. 5 1.7 Payments Generally; Administrative Agent’s Clawback................................................................. 5 1.8 Evidence of Debt.............................................................................................................................. 6 ARTICLE 2 — TAXES, YIELD PROTECTION, UNAVAILABILITY AND ILLEGALITY 2.1 Taxes.............................................................................................................................................. 11 ARTICLE 3 — INTENTIONALLY OMITTED ARTICLE 4 — AFFIRMATIVE COVENANTS 4.1 Existence; Qualifications ............................................................................................................... 18 4.2 Maintenance, Repair and Restoration ............................................................................................ 18 4.3 Operation of Property .................................................................................................................... 20 4.4 Property Management.................................................................................................................... 20 4.5 Inspection....................................................................................................................................... 21 4.6 Real Property Taxes....................................................................................................................... 21 4.7 Insurance........................................................................................................................................ 22 4.8 Damage or Destruction .................................................................................................................. 25 4.9 Condemnation Affecting the Property ........................................................................................... 28 4.10 Application of Proceeds of Casualty or Condemnation to Loan; Loan Repayment ...................... 29 4.11 Compliance with Law and Requirements ...................................................................................... 29 4.12 Leasing Requirements.................................................................................................................... 30 4.13 Financial Matters ........................................................................................................................... 30 4.14 Statement Concerning Note or Mortgage ...................................................................................... 30 4.15 Notice to Lenders........................................................................................................................... 30 4.16 Financial Statements ...................................................................................................................... 31 4.17 Reports and Testing ....................................................................................................................... 31 4.18 Appraisal ........................................................................................................................................ 31 4.19 ERISA............................................................................................................................................ 32 4.20 Financial Covenants....................................................................................................................... 32 4.21 Organizational Restrictions............................................................................................................ 32 4.22 Title and Permitted Encumbrances ................................................................................................ 33 4.23 Swap Transaction........................................................................................................................... 33 4.24 Borrower Taxes; Effect on Loan Documents ................................................................................ 33 4.25 Controlled Substances.................................................................................................................... 34 4.26 Commercial Purpose. ................................................................................................................... 34 4.27 Anti-Corruption Laws. ................................................................................................................. 34
PAGE iii ARTICLE 5 — NEGATIVE COVENANTS 5.1 Additional Indebtedness................................................................................................................. 35 5.2 Limitation on Distributions, etc. .................................................................................................... 35 5.3 Contracts ........................................................................................................................................ 35 5.4 Transfers; Encumbrances............................................................................................................... 35 5.5 Ownership; Merger; Consolidation; Purchase or Sale of Assets ................................................... 35 5.6 Sanctions. ..................................................................................................................................... 38 5.7 Anti-Corruption Laws. ................................................................................................................. 38 ARTICLE 6 — REPRESENTATIONS AND WARRANTIES 6.1 Organization; Authorization; Enforceability ................................................................................. 38 6.2 Applicable Laws; Governmental Approvals Regarding the Property............................................ 39 6.3 No Broker ...................................................................................................................................... 40 6.4 Encroachments............................................................................................................................... 40 6.5 Agreements .................................................................................................................................... 40 6.6 Financial Condition........................................................................................................................ 41 6.7 Utility Services .............................................................................................................................. 41 6.8 Liens............................................................................................................................................... 42 6.9 Management Agreements .............................................................................................................. 42 6.10 Flood Zone..................................................................................................................................... 42 6.11 Litigation........................................................................................................................................ 42 6.12 No Conflicts................................................................................................................................... 42 6.13 Public Access................................................................................................................................. 42 6.14 Leases............................................................................................................................................. 42 6.15 Insurance........................................................................................................................................ 43 6.16 Condemnation................................................................................................................................ 43 6.17 Physical Condition......................................................................................................................... 43 6.18 Title................................................................................................................................................ 43 6.19 OFAC............................................................................................................................................. 44 6.21 Affected Financial Institution ........................................................................................................ 44 6.22 Usury; Offsets ................................................................................................................................ 44 ARTICLE 7 — DEFAULT AND REMEDIES 7.1 Events of Default ........................................................................................................................... 44 7.2 Remedies........................................................................................................................................ 46 ARTICLE 8 — ADMINISTRATIVE AGENT 8.1 Appointment and Authorization of Administrative Agent............................................................. 47 8.2 Delegation of Duties; Advice......................................................................................................... 49 8.3 Liability of Administrative Agent.................................................................................................. 49 8.4 Reliance by Administrative Agent................................................................................................. 50 8.5 Notice of Default............................................................................................................................ 51 8.6 Credit Decision; Disclosure of Information by Administrative Agent .......................................... 51 8.7 Indemnification of Administrative Agent ...................................................................................... 52 8.8 Administrative Agent in Individual Capacity ................................................................................ 52 8.9 Successor Administrative Agent.................................................................................................... 52 8.10 Releases; Acquisition and Transfers of Collateral......................................................................... 53
PAGE iv 8.11 Application of Payments................................................................................................................ 54 8.12 Administrative Agent Advances .................................................................................................... 55 8.13 Defaulting Lender .......................................................................................................................... 55 8.15 Benefit............................................................................................................................................ 57 8.16 Co-Agents; Lead Managers ........................................................................................................... 57 8.17 Lender Participation in Swap Transactions ................................................................................... 57 8.18 Swap Contracts .............................................................................................................................. 57 ARTICLE 9 — GENERAL TERMS AND CONDITIONS 9.1 Consents; Indemnification by Borrower........................................................................................ 58 9.2 Miscellaneous ................................................................................................................................ 59 9.3 Payments Set Aside........................................................................................................................ 63 9.4 Successors and Assigns.................................................................................................................. 64 9.5 Treatment of Certain Information; Confidentiality ......................................................................... 67 9.6 Set-off ............................................................................................................................................ 68 9.7 Sharing of Payments ...................................................................................................................... 68 9.8 Amendments; Survival ................................................................................................................... 68 9.9 Several Obligations; No Liability; No Release.............................................................................. 70 9.10 Costs and Expenses........................................................................................................................ 71 9.11 Replacement of Lenders ................................................................................................................ 71 9.12 Further Assurances......................................................................................................................... 72 9.13 Inducement to Lenders................................................................................................................... 72 9.14 Forum............................................................................................................................................. 72 9.15 Interpretation.................................................................................................................................. 73 9.16 No Advisory or Fiduciary Responsibility. ..................................................................................... 73 9.17 Usury.............................................................................................................................................. 74 9.18 WAIVER OF JURY TRIAL.......................................................................................................... 74 9.19 Service of Process .......................................................................................................................... 75 9.20 No Delays; Defaults....................................................................................................................... 75 9.21 USA PATRIOT Act; Beneficial Ownership Regulation ............................................................... 75 9.22 Acknowledgement and Consent to Bail-In of Affected Financial Institutions .............................. 75 9.23 Acknowledgement Regarding Any Supported QFCs. ................................................................. 76 9.25 Entire Agreement ........................................................................................................................... 77 9.26 Waiver of Consequential Damages, Etc. ....................................................................................... 77 9.27 Third Parties; Benefit..................................................................................................................... 78 9.28 Other Transactions......................................................................................................................... 78 EXHIBITS EXHIBIT A - Legal Description of Land EXHIBIT B - Definitions and Financial Statements EXHIBIT C - Conditions Precedent to the Advance of the Loan EXHIBIT C-1 - Draw Request EXHIBIT D-1 - Compliance Certificate EXHIBIT D-2 - Borrower Certification EXHIBIT E - Leasing and Tenant Matters EXHIBIT F - Assignment and Assumption EXHIBIT G - Note EXHIBIT H - Schedule of Lenders
PAGE v EXHIBIT I - Swap Contracts EXHIBIT J - Financial Covenants EXHIBIT K-1 - U.S. Tax Compliance Certificate (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes) EXHIBIT K-2 - U.S. Tax Compliance Certificate (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes) EXHIBIT K-3 - U.S. Tax Compliance Certificate (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes) EXHIBIT K-4 - U.S. Tax Compliance Certificate (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes) EXHIBIT L - Permitted Encumbrances EXHIBIT M Condominium Provisions EXHIBIT N Organizational Chart EXHIBIT O Rent Roll EXHIBIT P Organizational Requirements EXHIBIT Q Transaction Administration Letter EXHIBIT R Intentionally Omitted EXHIBIT S Survey Requirements EXHIBIT T Form of Secured Party Designation Notice
PAGE 2 AMENDED AND RESTATED TERM LOAN AGREEMENT (Syndication) THIS AMENDED AND RESTATED TERM LOAN AGREEMENT (“Agreement”), dated as of October 28, 2026, is made by and among each lender from time to time a party hereto (individually, a “Lender” and collectively, the “Lenders”), and PNC BANK, NATIONAL ASSOCIATION, a national banking association as Administrative Agent, and HARBOR POINT PARCEL 2 – OFFICE, LLC, HARBOR POINT PARCEL 2 – RETAIL, LLC, and HARBOR POINT PARCEL 2 – TRANSFER STATION, LLC, each a Delaware limited liability company (separately and collectively, jointly and severally, “Borrower”), who agree as follows: ARTICLE 1 — THE LOAN 1.1 General Information and Exhibits. This Agreement includes the Exhibits listed below which are marked by an “X,” all of which Exhibits are attached hereto and made a part hereof for all purposes. Borrower and Lenders agree that if any Exhibit attached to this Agreement contains blanks, the same shall be completed correctly and in accordance with this Agreement prior to or at the time of the execution and delivery thereof. x Exhibit A - Legal Description of the Land x Exhibit B - Definitions and Financial Statements x Exhibit C - Conditions Precedent to the Advance of the Loan x Exhibit C-1 - Draw Request x Exhibit D-1 - Compliance Certificate x Exhibit D-2 - Borrower Certification x Exhibit E - Leasing and Tenant Matters x Exhibit F - Assignment and Assumption x Exhibit G - Note x Exhibit H - Schedule of Lenders x Exhibit I - Swap Contracts x Exhibit J - Financial Covenants x Exhibit K-1 - U.S. Tax Compliance Certificate (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes) x Exhibit K-2 - U.S. Tax Compliance Certificate (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes) x Exhibit K-3 - U.S. Tax Compliance Certificate (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes) x Exhibit K-4 - U.S. Tax Compliance Certificate (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes) x Exhibit L - Permitted Encumbrances x Exhibit M - Condominium Provisions x Exhibit N - Organizational Chart x Exhibit O - Rent Roll x Exhibit P - Organizational Requirements x Exhibit Q - Transaction Administration Letter x Exhibit R - Intentionally Omitted x Exhibit S - Survey Requirements x Exhibit T - Form of Secured Party Designation Notice The Exhibits contain other terms, provisions and conditions applicable to the Loan. Capitalized terms used in this Agreement shall have the meanings assigned to them in Exhibit B. This Agreement and
PAGE 3 the other Loan Documents, which must be in form, detail and substance satisfactory to Administrative Agent and Lenders, evidence the agreements of Borrower, Administrative Agent and Lenders with respect to the Loan. Borrower shall comply with all of the Loan Documents. 1.2 Purpose. 1.2.1 Amendment and Restatement. This Agreement modifies, restates and replaces in its entirety that certain Term Loan Agreement dated as of January 14, 2022, by and among Borrower, “Lenders” (as defined therein) and Administrative Agent (as successor to Bank of America, N.A. pursuant to an Assignment and Assumption Agreement dated as of even date herewith), as amended by a First Modification to Term Loan Agreement and Other Loan Documents dated as of April 3, 2023 (the “Original Loan Agreement”); provided, however, Borrower’s execution and delivery of this Agreement shall not constitute a novation of the indebtedness evidenced by the Original Loan Agreement. 1.2.2 Purpose. The proceeds of the Loan shall be used by Borrower to pay costs related to refinancing existing indebtedness with respect to the Property, paying fees, costs and expenses relating to the Loan, and not in contravention of any Law or any Loan Document. 1.3 Commitment to Lend. Prior to the Closing Date, Borrower has borrowed from Lenders, and Lenders have advanced monies under the Loan in the original principal amount of [ONE HUNDRED TWENTY-ONE MILLION EIGHT HUNDRED THOUSAND AND NO/100 DOLLARS ($121,800,000.00)] on the terms and subject to the conditions set forth in the Original Loan Agreement (including, but not limited to Exhibit C attached thereto), which principal is outstanding under the Original Loan Agreement and shall be deemed principal advanced and outstanding under this Agreement as of the Closing Date. Borrower agrees to borrow from Lenders, and Lenders severally agree to make, the Loan in the maximum principal amount of ONE HUNDRED TWENTY-ONE MILLION EIGHT HUNDRED THOUSAND AND NO/100 DOLLARS ($121,800,000.00) on the terms and subject to the conditions set forth in this Agreement (including, but not limited to Exhibit C). Each Lender shall fund its Pro Rata Share of each advance of Loan proceeds under this Agreement, provided, however, that no Lender will be required to make an advance in any amount which when aggregated with all prior advances made by such Lender would exceed such Lender’s then-current Commitment hereunder. Lenders’ Commitments to lend pursuant to this Agreement shall expire and terminate automatically (a) if the Loan is prepaid in full, and (b) upon the occurrence of an Event of Default, and (c) on the Maturity Date. The Loan is not revolving. Any amount repaid may not be reborrowed. 1.4 Interest Rate; Late Charges. (a) Interest Rate. Borrower will pay interest in respect of the outstanding unpaid principal amount of the Loan at a fluctuating rate per annum (computed on the basis of a year of 360 days and actual days elapsed) equal to Daily Simple SOFR plus one hundred eighty (180) basis points (1.80%), unless the Alternate Rate or the Default Rate otherwise applies pursuant to this Agreement, in which case Borrower will pay interest at the Alternate Rate or Default Rate, as applicable, as required by this Agreement. Administrative Agent’s determination of interest rates and any change therein will, in the absence of manifest error, be conclusive and binding upon all parties hereto. If at any time the designated rate applicable to any portion of the Loan made by any Lender exceeds such Lender's Maximum Legal Rate, the rate of interest on such Lender's Loan is limited to such Lender's Maximum Legal Rate. The applicable Daily Simple SOFR rate shall be determined by Administrative Agent, and such determination shall be conclusive absent manifest error.
PAGE 4 (b) Conforming Changes. With respect to Daily Simple SOFR, Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document; provided that, Administrative Agent shall provide notice to the Borrower and the Lenders of each such amendment implementing such Conforming Changes reasonably promptly after such amendment becomes effective. (c) Default Interest and Late Payment Charge. To the extent permitted by Law, during the existence of any Event of Default (including the expiration of any applicable cure periods), Borrower will pay interest on the entire principal amount then outstanding and all other sums due under the Loan at a rate per annum equal to the Default Rate. The Default Rate accrues before and after any judgment has been entered. In addition, Borrower will pay upon demand by Administrative Agent a late payment charge equal to four percent (4%) of the amount of any payment due under the Loan, prior to maturity or acceleration (but expressly excluding the principal payment due on the Maturity Date or upon any acceleration of the Loan), which is not received by Administrative Agent within fifteen (15) days after the date such payment is due. Borrower acknowledges that the increased interest rate and the late payment charge provided for herein reflect, among other things, the fact that the Loan has become a substantially greater credit risk given its default status and that Lenders are entitled to additional compensation for such risk and all such interest is payable by Borrower upon demand by Administrative Agent. Borrower also agrees and acknowledges that the Default Rate is a reasonable forecast of such additional compensation for anticipated and actual harm incurred by Administrative Agent and Lenders, and that such harm cannot be estimated with certainty or without difficulty. The Default Rate is imposed as liquidated damages for the purpose of defraying Lenders' expenses incident to the handling of delinquent payments, but is in addition to, and not in lieu of, the exercise by Administrative Agent, of any rights and remedies hereunder, under the other Loan Documents or under applicable Law, and any reasonable actual out-of-pocket fees and expenses of any attorneys or other professionals Administrative Agent may employ. 1.5 Prepayment. (a) Voluntary. (i) Borrower has the right at its option from time to time to prepay the Loan in whole or part on any Business Day without cost, premium or penalty, except as provided below or in Sections 2.1. (ii) Whenever Borrower desires to prepay the Loan, it must provide a prepayment notice to Agent by 1:00 p.m. (New York City time) setting forth (i) the Business Day on which the proposed prepayment is to be made, which must be no less than three (3) Business Days after the date of such prepayment notice, and (ii) the total principal amount of such prepayment, which may not be less than $100,000. The principal amount of the portion of the Loan for which a prepayment notice is given, together with interest on such principal amount, is due and payable on the date specified in such prepayment notice as the date on which the proposed prepayment is to be made; provided, however, (i) the notice of prepayment delivered by Borrower shall be revocable, so long a the written notice of such revocation is received by Administrative Agent no later than one (1) Business Day prior to the date specified in Borrower’s prepayment notice and Borrower pays all of Administrative Agent’s and Lenders’ actual, out-of-pocket costs and expenses incurred in connection with such revocation, and (ii) Borrower may extend the date specified in Borrower’s prepayment notice for up to ten (10) Business Days, provided written notice of such extension is
PAGE 5 received by Administrative Agent no later than one (1) Business Day prior to the date specified in Borrower’s prepayment notice and Borrower pays all of Administrative Agent’s and Lenders’ actual, out-of-pocket costs and expenses incurred in connection with such revocation. Any prepayment hereunder is not subject to reborrowing. (b) Mandatory. If not sooner paid, all amounts due and owing under any Loan Document are due and payable in full on the Maturity Date. 1.6 Payment Schedule and Maturity Date. The entire principal balance of the Loan then unpaid, together with all accrued and unpaid interest and all other amounts payable hereunder and under the other Loan Documents, shall be due and payable in full on the Maturity Date. Prior to maturity, accrued and unpaid interest shall be calculated from and including the first (1st) Business Day of each month (or, in the case of the initial interest computation period, the date of the initial advance of the Loan) to, but excluding, the first (1st) Business Day of the succeeding calendar month, and shall be due and payable in arrears on the fifth (5th) calendar day of such succeeding calendar month. 1.7 Payments Generally; Administrative Agent’s Clawback. (a) All payments by Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by Borrower hereunder shall be made to Administrative Agent, for the account of the respective Lenders to which such payment is owed, at Administrative Agent’s Office in U.S. Dollars and in immediately available funds not later than 2:00 p.m. (Administrative Agent’s Time) on the date specified herein. Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments received by Administrative Agent after 2:00 p.m. (Administrative Agent’s Time) shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be. (b) For the avoidance of doubt, Administrative Agent will distribute payments to each Lender, (i) on the date of receipt, if Administrative Agent receives such funds on or before 2:00 p.m. (Administrative Agent’s Time), or (ii) on the Business Day following the date of receipt, if Administrative Agent receives such funds after 2:00 p.m. (Administrative Agent’s Time). If Administrative Agent fails to timely pay any amount to any Lender in accordance with Section, Administrative Agent shall pay to such Lender interest on such amount at the greater of the Federal Funds Rate and a rate determined by Administrative Agent in accordance with banking industry rules on interbank compensation, for each day from the day such amount was to be paid until it is paid to such Lender. Unless Administrative Agent shall have received notice from Borrower prior to the date on which any payment is due to Administrative Agent for the account of Lenders hereunder that Borrower will not make such payment, Administrative Agent may assume that Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to Lenders the amount due. With respect to any payment that Administrative Agent makes for the account of Lenders hereunder as to which Administrative Agent determines (which determination shall be conclusive absent manifest error) that any of the following applies (such payment referred to as the “Rescindable Amount”): (1) Borrower has not in fact made such payment; (2) Administrative Agent has made a payment in excess of the amount so paid by Borrower (whether or not then owed); or (3) Administrative Agent has for any reason otherwise erroneously made such payment; then each of the Lenders severally agrees to repay to Administrative Agent forthwith on demand the Rescindable Amount so
PAGE 6 distributed to such Lender immediately available funds 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 Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by Administrative Agent in accordance with banking industry rules on interbank compensation. (c) A notice of Administrative Agent to any Lender or to Borrower with respect to any amount owing under this Section shall be conclusive, absent manifest error. 1.8 Evidence of Debt. Amounts of the Loan funded by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by Administrative Agent in the ordinary course of business. The accounts or records maintained by Administrative Agent and each Lender shall be conclusive absent manifest error of the amounts of the Loan funded by Lenders to Borrower and the interest and payments thereon, and all other sums owing to Administrative Agent and each Lender from time to time under the Loan Documents. Any failure to so record such amounts, interest or payments or any error in doing so shall not, however, limit or otherwise affect the obligation of Borrower hereunder to pay any amount owing with respect to the Indebtedness. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of Administrative Agent in respect of such matters, the accounts and records of Administrative Agent shall control in the absence of manifest error. Each Lender may attach schedules to its Note and endorse thereon the date, amount and maturity of the applicable Note and payments with respect thereto. 1.9 Reserve Funds. 1.9.1 Replacements. (a) On or before the last Business Day of each month, Borrower shall deposit in the Replacement Reserve Account an amount equal to Eight Thousand Three Hundred Fifty-One and No/100 Dollars ($8,351.00) Dollars, being $0.20 per square foot of the Office Unit and the Retail Unit (the “Replacement Reserve Monthly Deposit”). Amounts deposited in the Replacement Reserve Account pursuant to this Section 1.9.1(a) shall hereinafter be referred to as “Replacement Reserve Funds.” So long as no monetary or material non-monetary Default or any Event of Default shall have occurred and be continuing, Administrative Agent shall, to the extent funds deposited pursuant to this Section 1.9.1(a) are available in the Replacement Reserve Account, permit Borrower to withdraw the amount paid or incurred by Borrower in performing the Replacements as required pursuant to the provisions of this Agreement, the Mortgage, and the other Loan Documents (including with respect to the maintenance, repair, and restoration of the Property), upon satisfaction of the applicable requirements set forth in Section 1.9.4. (b) Borrower shall commence all necessary Replacements, shall perform the work for the Replacements diligently and continuously, and shall complete all Replacements in a good and workmanlike manner, in material compliance with Applicable Laws and in a manner reasonably acceptable to Administrative Agent as soon as commercially reasonable after commencing to make each such Replacement. Borrower hereby grants to Administrative Agent an irrevocable power- of-attorney, coupled with an interest, to perform upon the occurrence and during the continuance of an Event of Default any of the Replacements as required above and to apply the amounts on deposit in the Replacement Reserve Account to the costs associated therewith, all as Administrative Agent may determine in its sole but reasonable discretion but without obligation to do so.
PAGE 7 1.9.2 Tenant Improvements, Leasing Costs and Leasing Commissions. (a) (i) On the Closing Date, Borrower shall deposit into the Leasing Reserve Account Nine Hundred Thousand and No/100 Dollars ($900,000.00), to be held for application to Tenant Improvements, Leasing Commissions and Leasing Costs as provided herein (or during the continuance of an Event of Default, as the Required Lenders may elect in their sole discretion). Borrower shall perform, or cause to be performed, all Tenant Improvements, Leasing Commission and Leasing Costs required in connection with Approved Leases in accordance with the applicable Leases, brokerage and other agreements and the terms and conditions of Exhibit E and the other terms and conditions of this Agreement and the other Loan Documents. Without limiting the foregoing, all Tenant Improvements shall be performed and completed in a good and workmanlike manner, in material compliance with Applicable Laws and in a manner reasonably acceptable to Administrative Agent. (ii) So long as no Event of Default shall have occurred and be continuing, Administrative Agent shall, to the extent funds are available for such purpose in the Leasing Reserve Account, permit Borrower to withdraw the amount paid or incurred by Borrower on account of Tenant Improvements, Leasing Commission and Leasing Costs for Approved Leases upon satisfaction of the applicable requirements set forth in Section 1.9.4. (b) (i) Borrower shall deposit into the Leasing Reserve Account an amount equal to any sum or termination fee payable to Borrower in connection with any tenant’s election to exercise any early termination option contained in its respective Lease at the Property or in connection with any other termination, amendment or modification of any Lease, reduction of Rents, shortening of the term or surrender of space thereunder (the “Lease Termination Fee Deposit”) on the date of Borrower’s receipt thereof. So long as no monetary or material non-monetary Default or any Event of Default shall have occurred and be continuing, if Borrower has re-leased the space for which a Lease Termination Fee was received subsequent to the Closing Date pursuant to an Approved Lease, and paid all Leasing Costs associated with such re-leasing, then Administrative Agent will release any unused portion of the Lease Termination Fee Deposit to Borrower. (ii) So long as no monetary or material non-monetary Default or any Event of Default shall have occurred and be continuing, Administrative Agent shall, to the extent funds are available in the Leasing Reserve Account and upon satisfaction of the applicable requirements set forth in Section 1.9.4, permit Borrower to withdraw the amount actually paid or incurred by Borrower in performing Tenant Improvements or on account of Leasing Commissions and Leasing Costs as the same are incurred pursuant to Approved Leases. (c) Borrower hereby grants to Administrative Agent an irrevocable power-of-attorney, coupled with an interest, to pay and perform upon the occurrence and during the continuance of an Event of Default any of the Tenant Improvements, Leasing Commissions and Leasing Costs as required above and to apply the amounts on deposit in the Leasing Reserve Account to the costs associated therewith, all as Administrative Agent may determine in its sole discretion but without obligation to do so. 1.9.3 Intentionally Omitted. 1.9.4 Disbursement of Reserve Funds. (a) Borrower shall deliver to Administrative Agent a Draw Request in the form attached hereto as Exhibit C-2 for each requested withdrawal or transfer from the Reserve Accounts in accordance with this Section 1.9.4. Borrower shall deliver all requests for all withdrawals or transfers from the Reserve
PAGE 8 Accounts concurrently and not more than once per month. Each such Draw Request shall (i) specify the Replacements, the Tenant Improvements, the Leasing Commissions, or the Leasing Costs for which such withdrawal or transfer is requested, (ii) include a certification from Borrower that the applicable matter that is the subject of such request has been performed in accordance with the terms of the Loan Documents, (iii) include a certification from Borrower that no Event of Default has occurred and is continuing (or if so, specifying the nature thereof) and (iv) include a certification from Borrower that the costs and expenses that are the subject of such request have been incurred in accordance with the terms of this Agreement and the other Loan Documents and are permitted to be reimbursed pursuant to the terms of Section 1.9.1 and/or 1.9.2, as applicable. Borrower shall promptly deliver to Administrative Agent copies of paid invoices (or unpaid invoices to which the requested withdrawal or transfer relates and is to be applied), lien waivers (with respect to any matter the non-payment of which could give rise to a lien against the Property and that costs more than $250,000), statements or estimates, contractor invoices, tenant certifications, each if applicable, and any licenses, permits and certifications and filings required by Law, if any, in each case as Administrative Agent may reasonably request. Provided that the foregoing conditions are satisfied, and all other conditions applicable to the requested withdrawal or transfer set forth in Section 1.9 and/or 1.9.2, as applicable, are satisfied, Administrative Agent shall disburse sums from the applicable Reserve Account to Borrower in accordance with its written instructions delivered to Administrative Agent. Notwithstanding the preceding sentence, in no event shall Administrative Agent be required to disburse funds from any of the Reserve Accounts if a monetary or material non-monetary Default or any Event of Default then exists and is continuing. (b) Administrative Agent’s permitting a withdrawal of any Reserve Funds or other acknowledgement of completion of any work in a manner reasonably satisfactory to Administrative Agent shall not be deemed a certification or warranty by Administrative Agent to any Person that any work or other matter that is the subject of the withdrawal has been completed in accordance with Applicable Laws or any agreement to which Borrower is a party or the Property is bound. (c) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower from its obligation to perform fully all covenants contained in each of the Loan Documents. 1.9.5 Reserve Funds Generally. (a) (i) Subject to Section 1.9.5(a)(ii), any interest and other income on any Reserve Funds shall be credited to and accrue to the benefit of Borrower, shall be added to and become a part of the Reserve Account for such Reserve Funds and shall be applied in the same manner as other monies deposited in such Reserve Account. Administrative Agent shall maintain such Reserve Accounts or any funds deposited therein in interest-bearing accounts to the extent available; provided, however, that upon the occurrence and during the continuance of any Event of Default, Administrative Agent may elect not to hold any or all of the Reserve Accounts in interest-bearing accounts. (ii) In no event shall Administrative Agent be required to select any particular account or credit funds therein at the highest business savings or comparable rate of interest, or use any account deposits in which would be insured by the Federal Deposit Insurance Corporation or other Governmental Authority. Administrative Agent may, at its election, retain any such interest and other income for its own account upon the occurrence and during the continuance of an Event of Default. Borrower agrees that it shall include all interest and other income to which it is entitled under the terms hereof on Reserve Funds as the income of Borrower (and, if Borrower is a partnership or other pass-through entity, the partners, members or beneficiaries of Borrower, as the case may be), and that it shall be the owner of the Reserve Funds for all purposes, including for federal and applicable state and local tax purposes, except to the extent that Administrative Agent
PAGE 9 retains any interest or other income on the Reserve Funds for its own account upon the occurrence and during the continuance of an Event of Default as provided herein. (b) Borrower hereby grants to Administrative Agent a first-priority perfected security interest in, and assigns and pledges to Administrative Agent, each of the Reserve Accounts and any and all Reserve Funds now or hereafter maintained in the Reserve Accounts and any and all “Investment Property” (as defined in the UCC of each applicable jurisdiction) contained therein as collateral security for payment of the Obligations. The provisions of this Section 1.9.5 and other provisions of this Agreement and the other Loan Documents are intended to give Administrative Agent or any subsequent holder of the Loan “control” of the Reserve Accounts within the meaning of the UCC of each applicable jurisdiction. (c) Borrower authorizes Administrative Agent to file any financing statement or statements required by Administrative Agent to establish or maintain the validity, perfection and priority of the security interest granted herein in connection with the Reserve Funds and the Reserve Accounts. Borrower agrees that at any time and from time to time, at the expense of Borrower, Borrower will promptly and duly execute and deliver all further instruments and documents, and take all further action that Administrative Agent may reasonably request, in order to perfect and protect any security interest granted or purported to be granted hereby or the priority thereof, to obtain or preserve the full benefits of this Agreement and the rights and powers herein granted, or to enable Administrative Agent to exercise and enforce its rights and remedies hereunder. (d) The Reserve Accounts and any and all Reserve Funds and other Investment Property now or hereafter maintained in the Reserve Accounts shall be subject to the exclusive dominion and control of Administrative Agent, which shall hold the Reserve Accounts and any or all Reserve Funds now or hereafter deposited in the Reserve Accounts subject to the terms and conditions of this Agreement. Neither Borrower, Manager or any other Person claiming on behalf of or through Borrower or Manager shall have any right of withdrawal from the Reserve Accounts or any other right or power with respect to the Reserve Accounts or any or all of the Reserve Funds and Investment Property now or hereafter deposited or contained in the Reserve Accounts, except as expressly provided in this Agreement. (e) So long as no monetary or material non-monetary Default or any Event of Default has occurred and is then continuing, subject to the other terms and conditions of this Agreement, Administrative Agent shall permit withdrawals or make transfers from the Reserve Accounts in accordance with this Agreement, including Section 1.9.4. All such withdrawals or transfers shall be deemed to have been expressly pre-authorized by Borrower, and shall not be deemed to constitute the exercise by Administrative Agent of any remedies against the Property unless an Event of Default shall have occurred and be continuing and Administrative Agent shall have expressly stated in writing its intent to proceed to exercise its remedies as a secured party, pledgee or lienholder with respect to the Reserve Accounts. Borrower shall use any Reserve Funds released to it solely for the applicable purposes of such Reserve Funds set forth herein. (f) Notwithstanding anything to the contrary set forth herein, Borrower shall have no right to receive funds from any Reserve Account upon the occurrence and during the continuance of any monetary or material non-monetary Default or any Event of Default. Upon the occurrence and during the continuance of any Event of Default, Administrative Agent may exercise any or all of its rights and remedies as a secured party, pledgee and lienholder with respect to the Reserve Accounts. Without limitation of the foregoing, upon and during the continuance of any Event of Default, Administrative Agent or the Required Lenders may use in its or their sole discretion, as applicable, and apply the Reserve Funds (or any portion thereof), including for any of the following purposes: (i) repayment of the Obligations, including principal prepayments and prepayment premiums, if any, applicable to such full or partial prepayment; (ii) reimbursement of Administrative Agent and Lenders for all losses, fees, costs and expenses (including
PAGE 10 reasonable legal fees) suffered or incurred by Administrative Agent or Lenders as a result of such Event of Default; (iii) payment of any amount expended in exercising any or all rights and remedies available to Administrative Agent and Lenders at law or in equity or under this Agreement or under any of the other Loan Documents; or (iv) payment of any item required or permitted under this Agreement; provided, however, that any application of funds shall not cure or be deemed to cure any Event of Default. Without limiting any other provisions hereof, each of the remedial actions described in the immediately preceding sentence shall be deemed to be a commercially reasonable exercise of Administrative Agent’s and Lenders’ rights and remedies as a secured party, as applicable, with respect to the Reserve Funds, any Investment Property and the Reserve Accounts and shall not in any event be deemed to constitute a setoff or a foreclosure of a statutory banker’s lien. Nothing in this Agreement shall obligate Administrative Agent or Lenders to apply all or any portion of the Reserve Funds or any Investment Property to effect a cure of any Event of Default, or to pay the Obligations, or in any specific order of priority. The exercise of any or all of Administrative Agent’s or Lenders’ rights and remedies under this Agreement or under any of the other Loan Documents shall not in any way prejudice or affect Administrative Agent’s or Lenders’ rights to initiate and complete a foreclosure under the Mortgage. (g) The Reserve Funds shall not constitute escrow or trust funds. The Reserve Accounts are solely for the protection of Administrative Agent and Lenders. With respect to the Reserve Accounts, Administrative Agent shall have no responsibility beyond the allowance of due credit for the sums actually received by Administrative Agent or beyond the reimbursement or payment of the costs and expenses for which such Reserve Accounts were established in accordance with their terms. The requirements of this Agreement concerning the Reserve Accounts in no way supersede, limit or waive any other rights or obligations of the parties under any of the Loan Documents or under Applicable Law. (h) Borrower shall not further pledge, assign or grant any security interest in the Reserve Accounts or the Reserve Funds deposited therein or any Investment Property or permit any lien to attach thereto, except for the security interest granted in this Section 1.9.5, or any levy to be made thereon, or any UCC financing statements, except those naming Administrative Agent as the secured party, to be filed with respect thereto. (i) Borrower will maintain the security interest created by this Section 1.9.5 as a first priority perfected security interest and will defend the right, title and interest of Administrative Agent in and to the Reserve Accounts and the Reserve Funds and Investment Property against the claims and demands of all Persons whomsoever (other than Lenders). (j) Administrative Agent shall be protected in acting upon any notice, resolution, request, consent, order, certificate, report, opinion, bond or other paper, document or signature believed by Administrative Agent to be genuine, and it may be assumed conclusively that any Person purporting to give any of the foregoing in connection with the Reserve Accounts has been duly authorized to do so. Administrative Agent may consult with counsel, and the opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered by them hereunder and in good faith in accordance therewith. Administrative Agent shall not be liable to Borrower for any act or omission done or omitted to be done by Administrative Agent in reliance upon any instruction, direction or certification received by Administrative Agent and without gross negligence or willful misconduct. (k) Beyond the exercise of reasonable care in the custody thereof, Administrative Agent shall not have any duty as to any Reserve Funds or Investment Property in its possession or control as agent therefor or bailee thereof or any income thereon or the preservation of rights against any Person or otherwise with respect thereto. In no event shall Administrative Agent or any Lender or any of their respective Affiliates, agents, employees or bailees, be liable or responsible for any loss or damage to any of the Reserve Funds or Investment Property, or for any diminution in value thereof, by reason of the act or omission of
PAGE 11 Administrative Agent, such Lender or any such Affiliate, agents, employees or bailees, except to the extent that such loss or damage is determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from such Person’s gross negligence or willful misconduct. ARTICLE 2 — TAXES, YIELD PROTECTION, UNAVAILABILITY AND ILLEGALITY 2.1 Taxes. (a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes. (i) Any and all payments by or on account of any obligation of Borrower or any Guarantor under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable Laws. If any applicable Laws (as determined in the good faith discretion of Administrative Agent) require the deduction or withholding of any Tax from any such payment by Administrative Agent or Borrower or any Guarantor, then Administrative Agent or Borrower or such Guarantor shall be entitled to make such deduction or withholding, upon the basis of the information and documentation to be delivered pursuant to Section 2.1(e). (ii) If Borrower or any Guarantor or Administrative Agent shall be required by the Code to withhold or deduct any Taxes, including both United States Federal backup withholding and withholding taxes, from any payment, then (A) Administrative Agent shall withhold or make such deductions as are determined by Administrative Agent to be required based upon the information and documentation it has received pursuant to Section 2.1(e), (B) Administrative Agent shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with the Code, and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes, the sum payable by Borrower or such Guarantor, as applicable, shall be increased as necessary so that after any required withholding or the making of all required deductions (including deductions applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such withholding or deduction been made. (iii) If Borrower or any Guarantor or Administrative Agent shall be required by any applicable Laws other than the Code to withhold or deduct any Taxes from any payment, then (A) Borrower or such Guarantor, as applicable, or Administrative Agent, as required by such Laws, shall withhold or make such deductions as are determined by it to be required based upon the information and documentation it has received pursuant to Section 2.1(e), (B) Borrower or such Guarantor, as applicable, or Administrative Agent, to the extent required by such Laws, shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with such Laws, and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes, the sum payable by Borrower or such Guarantor, as applicable, shall be increased as necessary so that after any required withholding or the making of all required deductions (including deductions applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such withholding or deduction been made. (b) Payment of Other Taxes by Borrower or Guarantor. Without limiting the provisions of Subsection (a) of this Section, Borrower shall timely pay, and shall cause any Guarantor to timely pay, to the relevant Governmental Authority in accordance with applicable Law, or at the option of Administrative Agent timely reimburse it for the payment of, Other Taxes.
PAGE 12 (c) Tax Indemnifications. (i) Borrower shall, and does hereby indemnify each Recipient, and shall make payment in respect thereof within ten (10 ) days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient, and any penalties, interest and 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 Borrower by a Lender (with a copy to Administrative Agent), or by Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. Borrower and Guarantor shall, and do hereby indemnify Administrative Agent, and shall make payment in respect thereof within ten (10) days after demand therefor, for any amount which a Lender for any reason fails to pay indefeasibly to Administrative Agent as required pursuant to Subsection (c)(ii) of this Section. (ii) Each Lender shall, and does hereby, severally indemnify, and shall make payment in respect thereof within ten (10) days after demand therefor, (A) Administrative Agent against any Indemnified Taxes attributable to such Lender (but only to the extent that Borrower and/or Guarantor have not already indemnified Administrative Agent for such Indemnified Taxes and without limiting the obligation of Borrower and Guarantor to do so), (B) Administrative Agent and Borrower and Guarantor, as applicable, against any Taxes attributable to such Lender’s failure to comply with the provisions of Section 9.4(d) relating to the maintenance of a Participant Register and (C) Administrative Agent and Borrower and Guarantor, as applicable, against any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by Administrative Agent or Borrower or Guarantor 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 Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes Administrative Agent to set off and apply any and all amounts at any time owing to such Lender as the case may be, under this Agreement or any other Loan Document against any amount due to Administrative Agent under this Subsection. (d) Evidence of Payments. As soon as practicable, after any payment of Taxes by Borrower to a Governmental Authority as provided in this Section, Borrower shall deliver to Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by Laws to report such payment or other evidence of such payment reasonably satisfactory to Administrative Agent. (e) Status of Lenders; Tax Documentation. (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 Borrower and Administrative Agent, at the time or times reasonably requested by Borrower or Administrative Agent, such properly completed and executed documentation reasonably requested by Borrower or 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 Borrower or Administrative Agent, shall deliver such other documentation prescribed by applicable Law or reasonably requested by Borrower or 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
PAGE 13 of such documentation (other than such documentation set forth in clauses (A), (B) and (D) of Section 2.1(e)(ii)) shall not be required if in Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. (ii) Without limiting the generality of the foregoing, in the event that Borrower is a U.S. Person, (A) any Lender that is a U.S. Person shall deliver to Borrower and 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 Borrower or Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding Tax; (B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Borrower and 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 Borrower or Administrative Agent), whichever of the following is applicable: (I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN-E (or W-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN-E (or W-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty; (II) executed copies of IRS Form W-8ECI; (III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit K-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 Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W- 8BEN-E (or W-8BEN, as applicable); or (IV) to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN-E (or W-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit K-2 or Exhibit K-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 K-4 on behalf of each such direct and indirect partner.
PAGE 14 (C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Borrower and 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 Borrower or Administrative Agent), executed copies of any other form prescribed by applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable Law to permit Borrower or Administrative Agent to determine the withholding or deduction required to be made; and (D) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to Borrower and Administrative Agent at the time or times prescribed by Law and at such time or times reasonably requested by Borrower or Administrative Agent such documentation prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by Borrower or Administrative Agent as may be necessary for Borrower and 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 Subsection, “FATCA” shall include any amendments made to FATCA after the date of this Agreement. (iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify Borrower and Administrative Agent of its legal inability to do so. (f) Treatment of Certain Refunds. Unless required by applicable Laws, at no time shall Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender or have any obligation to pay to any Lender, any refund of Taxes withheld or deducted from funds paid for the account of such Lender. If any Recipient 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 by Borrower or Guarantor or with respect to which Borrower or any Guarantor has paid additional amounts pursuant to this Section, it shall pay to Borrower or such Guarantor, as applicable, an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by Borrower or Guarantor under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) incurred by such Recipient, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that Borrower or Guarantor, upon the request of the Recipient, agrees to repay the amount paid over to Borrower or Guarantor (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Recipient in the event the Recipient is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Subsection, in no event will the applicable Recipient be required to pay any amount to Borrower or Guarantor pursuant to this Subsection the payment of which would place the Recipient in a less favorable net after-Tax position than such Recipient would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This Subsection shall not be construed to require any Recipient to make available its tax returns (or any other information relating to its taxes that it deems confidential) to Borrower, Guarantor or any other Person.
PAGE 15 (g) Survival. Each party’s obligations under this Section shall survive the resignation or replacement of Administrative Agent, or the assignment of rights by, or the replacement of, a Lender, the termination of the Commitments, and the repayment, satisfaction or discharge of all other Obligations. 2.2 Rate Unascertainable; Increased Costs; Illegality; Benchmark Replacement Setting. (a) If at any time: (i) Administrative Agent shall have determined (which determination shall be conclusive and binding absent manifest error) that Daily Simple SOFR cannot be determined pursuant to the definition thereof, or (ii) any Lender determines that for any reason, with respect to any portion of the Loan at Daily Simple SOFR, Daily Simple SOFR does not adequately and fairly reflect the cost to such Lenders of funding, establishing or maintaining such Loan, and any Lender has provided notice of such determination to Administrative Agent, then Administrative Agent shall have the rights specified in Section 2.2(c) below. (b) If at any time any Lender shall have determined, or any Official Body shall have asserted, that the making, maintenance or funding of any portion of the Loan at Daily Simple SOFR, or the determination or charging of interest rates based on Daily Simple SOFR, has been made impracticable or unlawful by compliance by such Lender in good faith with any Law or any interpretation or application thereof by any Official Body or with any request or directive of any such Official Body (whether or not having the force of Law), then Administrative Agent shall have the rights specified in Section 2.2(c) below. (c) In the case of any event specified in Section 2.2(a) above, Administrative Agent shall promptly notify Lenders and Borrower thereof, and in the case of an event specified in Section 2.2(b) above, such Lender shall promptly notify Administrative Agent and endorse a certificate to such notice as to the specific circumstances of such notice, and Administrative Agent shall promptly send copies of such notice and certificate to the other Lenders and Borrower. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given), the outstanding principal and future advances will bear interest at the Base Rate plus eighty (80) basis points (0.80%) (the “Alternate Rate”) until Administrative Agent shall have later notified Borrower, or such Lender shall have later notified Administrative Agent, of Administrative Agent’s or such Lender’s, as the case may be, determination that the circumstances giving rise to such previous determination no longer exist; provided, however, if the determination is made pursuant to Section 2.2(b), Borrower may, on the date specified in the notice from Administrative Agent, prepay such Loan in accordance with Section 1.5. Absent due notice from the Borrower of prepayment, the applicable portion of the Loan shall automatically bear interest at the Alternate Rate upon the date specified in the notice to Borrower from Administrative Agent. (d) Benchmark Replacement Setting. (i) Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document (and any agreement executed in connection with a Swap Contract shall be deemed not to be a “Loan Document” for purposes of this Section titled “Benchmark Replacement Setting”), if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to any setting of the then-current Benchmark, then such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the
PAGE 16 Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders. (ii) Benchmark Replacement Conforming Changes. In connection with the use, administration, adoption or implementation of a Benchmark Replacement, Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document; provided, however, Administrative Agent will not implement Conforming Changes in a arbitrary, capricious, or discriminatory manner as to Borrower. (iii) Notices; Standards for Decisions and Determinations. Administrative Agent will promptly notify the Borrower and the Lenders of (A) the implementation of any Benchmark Replacement and (B) the effectiveness of any Conforming Changes in connection with the use, administration, adoption or implementation of a Benchmark Replacement. Administrative Agent will notify the Borrower of the commencement of any Benchmark Unavailability Period. Any determination, decision or election that may be made by Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section, including any determination with respect to a rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section. (iv) Benchmark Unavailability Period. Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, amounts outstanding hereunder automatically will bear interest at the Alternate Rate. 2.3 Intentionally Omitted. 2.4 Intentionally Omitted. 2.5 Increased Costs. (a) Increased Costs Generally. If any Change in Law: (i) imposes, modifies or deems applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender; (ii) subjects any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or (iii) imposes on any Lender or the relevant market any other condition, cost or expense (other than Taxes) affecting this Agreement or any portion of the Loan made by such Lender or any participation therein;
PAGE 17 and the result of any of the foregoing is to increase the cost to such Lender or such other Recipient of making, continuing or maintaining any portion of the Loan or of maintaining its obligation to make any portion of the Loan, or to reduce the amount of any sum received or receivable by such Lender or other Recipient hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or other Recipient, Borrower will pay to such Lender or other Recipient such additional amount or amounts as will compensate such Lender or other Recipient, for such additional costs incurred or reduction suffered. (b) Capital Requirements. If any Lender determines that any Change in Law affecting such Lender or any Lending Office of such Lender or such Lender’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement, any Note, the Commitment of such Lender or the advances made by such Lender, to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy), then from time to time Borrower will pay to such Lender, such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered. (c) Certificates for Reimbursement. A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in Subsections (a) or (b) of this Section and delivered to Borrower shall be conclusive absent manifest error. Borrower shall pay such Lender, as the case may be, the amount shown as due on any such certificate within ten (10) days after receipt thereof. (d) Delay in Requests; Survival. Failure or delay on the part of any Lender to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of such Lender’s right to demand such compensation, provided that Borrower shall not be required to compensate a Lender pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than nine (9) months prior to the date that such Lender notifies Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine (9) month period referred to above shall be extended to include the period of retroactive effect thereof). Subject to the foregoing, all of Borrower’s obligations under this Section shall survive payment in full, satisfaction or discharge of the Indebtedness, the resignation or removal of Administrative Agent or replacement of any Lender, and any release, enforcement or termination of this Agreement, or of any other Loan Documents. 2.6 Intentionally Omitted. 2.7 Mitigation Obligations; Replacement of Lenders. (a) Designation of a Different Lending Office. Each Lender may make any advance to Borrower through any Lending Office, provided that the exercise of this option shall not affect the obligation of Borrower to repay the advance in accordance with the terms of this Agreement. If any Lender requests compensation under Section 2.5, or requires Borrower to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.1, or if any Lender gives a notice pursuant to Section 2.2, then at the request of such Lender shall, as applicable, use reasonable efforts to designate a different Lending Office for funding or booking its advances hereunder or to assign its rights and
PAGE 18 obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.1 or Section 2.5, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 2.2, as applicable, and (ii) in each case, would not subject such Lender, as the case may be, to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender, as the case may be. Borrower hereby agrees to pay all reasonable out-of-pocket costs and expenses incurred by any Lender in connection with any such designation or assignment within ten (10) days of written demand of such Lender. (b) Replacement of Lenders. If any Lender requests compensation under Section 2.5, or if Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.1 and, in each case, such Lender has declined or is unable to designate a different lending office in accordance with Section 2.7(a), Borrower may replace such Lender in accordance with Section 9.11. 2.8 Survival. All of Borrower’s obligations under this Article shall survive the resignation or replacement of Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments, the termination of this Agreement and the repayment, satisfaction or discharge of all other Obligations, and shall not be waived by any delay by Administrative Agent or Lenders in seeking payment and performance of such obligations of Borrower under this Article. ARTICLE 3 — INTENTIONALLY OMITTED ARTICLE 4 — AFFIRMATIVE COVENANTS 4.1 Existence; Qualifications. Borrower shall do or cause to be done all things necessary to preserve, renew and keep in full force and effect its existence, shall not cease to be validly existing and in good standing under the laws of the State of Delaware or cease to be authorized to do business in, and if required by Law, in good standing in, each state in which the Property is located. Borrower shall at all times maintain, preserve and protect all material franchises and trade names used in connection with the operation of the Property. If requested by Administrative Agent, Borrower shall provide a certification certifying that it is not a foreign corporation, foreign partnership, foreign trust, foreign estate or nonresident alien or a disregarded entity owned by any of them (as those terms are defined in the Code), together with such additional information as Administrative Agent may reasonably request. 4.2 Maintenance, Repair and Restoration. (a) Borrower shall keep the Property in such order, repair, operating condition and appearance as is consistent with good management and operating practices for comparable competitive properties, causing all necessary repairs, renewals, replacements, additions and improvements to be promptly made with good quality materials and in a good and workmanlike manner, and shall not allow the Property to be the subject of any waste or to be misused or abused or to deteriorate, subject, however, to the other provisions of this Agreement and the other Loan Documents requiring consent or approval of Administrative Agent. If any act or occurrence of any kind or nature (including any Condemnation or any Casualty for which insurance was not obtained or obtainable) shall result in damage to or loss or destruction of the Property, Borrower shall give prompt notice thereof to Administrative Agent and Borrower shall promptly, at Borrower’s sole cost and expense and regardless of whether insurance or condemnation proceeds (if any) shall be available or sufficient for the purpose pursuant to Section 4.8 or 4.9 or otherwise, secure the Property as necessary and commence and continue diligently to completion to restore, repair, replace and rebuild the Property as nearly as possible to its value, condition and character immediately prior to the damage, loss or destruction.
PAGE 19 (b) Notwithstanding the foregoing, Borrower shall not, without the prior written consent of Required Lenders, (i) remove from the Property any fixtures or personal property comprising Property except such as is replaced by Borrower by an article of equal suitability and value, owned by Borrower, free and clear of any lien or security interest (except that created by the Mortgage or any other Loan Document), or (ii) make any alteration to the Property; provided, however, that the consent of Required Lenders shall not be required in the case of (x) any alteration which individually does not cost more than $500,000.00, or the cost of which, when aggregated with the total cost of all alterations in the applicable calendar year, does not result in costs in excess of $2,000,000.00; (y) any alteration required pursuant to any Lease entered into in accordance with Exhibit E and any other provision of this Agreement and the other Loan Documents and (z) any alteration required for the maintenance and upkeep of the Property in accordance with the Loan Documents that could not reasonably be expected to have a Material Adverse Effect. (c) As a condition to the approval of Required Lenders, Required Lenders may, among other things, require that Borrower deliver to Administrative Agent as security for the payment of the costs of the applicable work cash or other collateral, as reasonably determined by Required Lenders. (d) Prior to commencing any alteration that requires the consent of Required Lenders: (i) Borrower shall have given Administrative Agent prior notice of same containing a description of such alteration and Borrower’s good faith estimate of the cost thereof; (ii) Borrower shall confirm in writing that such alteration shall not violate the terms of any Law, Lease or Permitted Encumbrance, and could not reasonably be expected to have a Material Adverse Effect; (iii) If Required Lenders or Administrative Agent requests, Borrower shall have delivered to Administrative Agent all plans, specifications and drawings and architect’s and other construction contracts, if any, for such alteration; and (iv) Borrower shall have delivered to Administrative Agent such other information and documentation as Required Lenders or Administrative Agent may reasonably request regarding such alteration. (e) Borrower shall, at Administrative Agent’s request, inform Administrative Agent as to the progress of such alteration. Administrative Agent may, but shall not be obligated, at Borrower’s expense, to inspect the work or cause an inspection of the work by consultants engaged by Administrative Agent at Borrower’s expense. All alterations shall be performed diligently and continuously to completion in a good and workmanlike manner, in compliance with all applicable Laws in all material respects, and in compliance with all applicable requirements of the Leases and Permitted Encumbrances. After completion of each alteration, Borrower shall provide Administrative Agent with a copy in print or electronic form of the as-built Plans and Specifications for same, if any. Borrower shall maintain and make available to, or, at Administrative Agent’s request, provide to Administrative Agent copies of (i) all plans, specifications and drawings, including drawings to reflect as-built conditions, substitutions and changes pertaining to the performance of each alteration, or such other adequate records to reflect as-built conditions, substitutions and changes, (ii) any contracts, bills of sale, statements, receipts or vouchers pertaining to each alteration, and (iii) all books, contracts and records of Borrower pertaining to each alteration, including all work done, labor performed or materials furnished in connection therewith. Borrower shall comply with Section 4.7 and shall provide flood insurance as required therein, before commencing construction of any portion of any structure or Improvements located, under the Flood Insurance Laws, in a Special Flood Hazard Area.
PAGE 20 4.3 Operation of Property. (a) Borrower will operate the Property in a manner and at a level consistent with good management and operating practices for comparable competitive properties and will pay all fees or charges of any kind in connection therewith. Borrower will keep the Property occupied so as not to impair the insurance carried thereon. Borrower will not use or occupy or conduct any activity on, or allow the use or occupancy of or the conduct of any activity on, the Property in any manner which constitutes a public or private nuisance or which makes void, voidable or cancelable, or increases the premium of, any insurance then in force with respect thereto. Borrower will not do or suffer to be done any act whereby the value of any part of the Property may be lessened. Borrower shall not commit, permit or suffer to exist any act or omission, including any use or occupancy of, or activity at or on, the Property, which affords or may afford any Governmental Authority the right of forfeiture as against the Property, or any part thereof or any monies paid in performance of Borrower’s obligations under any of the Loan Documents. (b) Borrower will preserve, protect, renew, extend and retain all requisite rights, powers, authority, privileges and franchises to carry on its business and to own and operate the Property in accordance with the Leases, the Permitted Encumbrances and otherwise in accordance with this Agreement, and all other material rights and privileges granted for or applicable to the Property. Borrower will not initiate or permit any zoning reclassification of the Property or seek any variance under existing zoning ordinances applicable to the Property. Borrower shall not use or permit the use of the Property in such a manner which would result in such use becoming a nonconforming use under applicable zoning ordinances or other Law. If under applicable zoning provisions the use of all or any portion of the Property is or shall become a nonconforming use, Borrower will not cause or permit the nonconforming use to be discontinued or the nonconforming Improvement to be abandoned without the prior written consent of Administrative Agent. (c) Without Administrative Agent’s prior written approval, and subject to the consent of Required Lenders, as to parties, terms and all other matters, Borrower shall not apply for or accept any PACE Financing. Borrower will not impose any easement, restrictive covenant or encumbrance upon the Property, execute or file any subdivision plat or condominium declaration affecting the Property or consent to the annexation of the Property to any municipality, without the prior written consent of Administrative Agent. Without the prior written consent of Administrative Agent, there shall be no drilling or exploration for or extraction, removal or production of any mineral, hydrocarbon, gas, natural element, compound or substance (including sand and gravel) from the surface or subsurface of the land underlying the Units regardless of the depth thereof or the method of mining or extraction thereof. (d) Borrower will cause all debts and liabilities of any character (including without all debts and liabilities for labor, material and equipment (including software embedded therein) and all debts and charges for utilities servicing the Property) incurred in the construction, maintenance, operation and development of the Property to be promptly paid. 4.4 Property Management. (a) Borrower shall (i) promptly perform and observe all of the material covenants required to be performed and observed by it under the Management Agreement and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (ii) promptly notify Administrative Agent of any material default under the Management Agreement; (iii) promptly deliver to Administrative Agent a copy of any notice of material default received by such Borrower under the Management Agreement; (iv) promptly give notice to Administrative Agent of any notice that such Borrower receives which indicates that the Manager is terminating the Management Agreement or that the Manager is otherwise discontinuing its management of the Property; and (v) promptly enforce the performance and observance of all of the
PAGE 21 material covenants required to be performed and observed by the Manager under the Management Agreement. (b) If at any time, (i) the Manager is the subject of any petition, case, proceeding or other action pursuant to any Debtor Relief Law; (ii) an Event of Default is then continuing; (iii) a default has occurred and is continuing under the Management Agreement; or (iv) the Manager has engaged in gross negligence, fraud, willful misconduct or misappropriation of funds, Borrower shall, at the written request of Administrative Agent, promptly terminate the Management Agreement upon no more than thirty (30) days prior written notice to the Manager and replace the Manager with a Manager approved by Administrative Agent on terms and conditions otherwise approved in writing by Administrative Agent (such approval not to be unreasonably withheld so long as no Event of Default is then continuing), it being understood and agreed that the management fee for such replacement manager shall not exceed then prevailing market rates for commercial properties in the state in which the Property is located. (c) Borrower shall not surrender, terminate or cancel the Management Agreement or otherwise replace Manager, or enter into any other management agreement with respect to the Property, (i) without the prior written consent of Administrative Agent and (ii) with respect to any replacement Manager or new management agreement, only if Borrower and Manager shall execute and deliver to Administrative Agent a manager subordination agreement in form and substance satisfactory to Administrative Agent. (d) Borrower shall not, without the prior written consent of Administrative Agent: (i) reduce or consent to the reduction of the term of the Management Agreement; (ii) increase or consent to the increase of the amount of any charges under the Management Agreement; (iii) modify, change, supplement, alter or amend, or waive or release any of its rights and remedies under, the Management Agreement, in each case, in any material respect; or (iv) otherwise amend or consent to the amendment of the terms of the Management Agreement in any material respect. (e) Notwithstanding the foregoing, Borrower shall be permitted to terminate the existing parking management agreement with SP Plus Corporation for the management of the Garage provided that, in connection therewith, Borrower enters into a replacement Management Agreement and Manager Subordination Agreement, each in form and substance reasonably acceptable to Administrative Agent, with respect to each such terminated agreement. 4.5 Inspection. Administrative Agent and its agents may enter upon the Property to inspect the Property during normal business hours, upon reasonable advance notice and subject to the rights of tenants and reasonable and customary safety rules and regulations, unless Administrative Agent reasonably deems such inspection is an emergency, in which event Administrative Agent will make commercially reasonable efforts to provide notice given the circumstances, and Borrower shall provide Administrative Agent and its agents with immediate access to the Property, subject to the rights of tenants. Borrower will furnish to Administrative Agent and its agents, for inspection and copying, all books and records, and other documents and information that Administrative Agent may reasonably request from time to time. 4.6 Real Property Taxes. (a) Borrower will pay, or cause to be paid, all Real Property Taxes prior to the date the same shall become delinquent. Notwithstanding the foregoing, Borrower shall have the right to challenge or appeal any Real Property Taxes so long as (a) Borrower shall prosecute such challenge or appeal in good faith, at its own expense and by appropriate legal proceedings, (b) Administrative Agent shall have received assurance reasonably satisfactory to Administrative Agent that (i) such contest will not result in the imposition of any civil or criminal liability or penalty, (ii) either Borrower shall have paid such Real Property Taxes in full or such contest shall suspend the payment and collection thereof by and from
PAGE 22 Borrower and the Property, and (iii) the Property would not be in any danger of being sold, forfeited or lost in any respect, nor would the value or use of the Property be impaired or curtailed, as a result of such contest or deferral of payment, (c) unless such Real Property Taxes shall have been paid in full, Borrower shall have furnished such security as may be required in the proceeding or as may be reasonably requested by Administrative Agent, to insure the cost of compliance, including all interest and penalties in connection therewith, which security shall not be less than one hundred and ten percent (110%) of the maximum liability of Borrower as reasonably determined by Administrative Agent, (d) promptly after such challenge or appeal, and in any event on or prior to the date that payment is required under applicable Law, Borrower shall pay any such Real Property Taxes, fees, penalties, interest and other sums determined to be payable and (e) such challenge or appeal is made and performed in accordance with applicable Laws. (b) Subject to Borrower’s right to contest set forth in Section 4.6(a), Borrower shall furnish to Administrative Agent upon written request, receipts for the payment of Real Property Taxes prior to the date the same shall become delinquent. If Borrower shall fail to pay any Real Property Taxes in accordance with this Section 4.6 (subject to Borrower’s right to contest set forth in Section 4.6(a)), in addition to all other rights and remedies of Administrative Agent and Lenders, Administrative Agent shall have the right, but shall not be obligated, to pay Real Property Taxes, and Borrower shall repay same to Administrative Agent upon demand, with interest thereon at the Default Rate accruing from the date such advance is due to be repaid by Borrower to the date of repayment, and such amount shall constitute a portion of the Obligations secured by the Mortgage. 4.7 Insurance. (a) Except to the extent that the Condominium Association pursuant to the Condominium Documents maintains the following with respect to the common elements under the Condominium Documents, and provided that all of the terms and conditions of this Subsection and of Subsections (b) and (c) of this Section are satisfied with respect thereto: Borrower shall obtain and maintain at Borrower’s sole expense: (i) property insurance with respect to all insurable Property and the common elements under the Condominium Documents, against loss or damage by fire, lightning, windstorm, explosion, hail, tornado and such additional hazards as are presently included in “Special Form” (also known as “all-risk”) coverage and against any and all acts of terrorism and such other insurable hazards as Administrative Agent may require, in an amount not less than 100% of the full replacement cost, including the cost of debris removal, without deduction for depreciation and sufficient to prevent Borrower and Administrative Agent from becoming a coinsurer, such insurance to be in “builder’s risk” completed value (non-reporting) form during and with respect to any construction on the Property; (ii) if and to the extent Subsection (b) of this Section applies, a flood insurance policy in accordance with Subsection (b) below; (iii) general liability insurance, on an “occurrence” basis, against claims for “personal injury” liability, including bodily injury, death or property damage liability, for the benefit of Borrower as named insured and Administrative Agent as additional insured; (iv) statutory workers’ compensation insurance with respect to any work on or about the Property (including employer’s liability insurance, if required by Administrative Agent), covering all employees of Borrower and any contractor; (v) if there is a general contractor, commercial general liability insurance, including products and completed operations coverage, and in other respects similar to that described in clause (iii) above, for the benefit of the general contractor as named insured and Borrower and Administrative Agent as additional insureds, in addition to statutory workers’ compensation insurance with respect to any work on or about the Property (including employer’s liability insurance, if required by Administrative Agent), covering all employees of the general contractor and any contractor; and (vi) such other insurance on the Property and endorsements as may from time to time be required by Administrative Agent (including soft cost coverage, automobile liability insurance, business interruption insurance or delayed rental insurance, boiler and machinery insurance, earthquake insurance, wind insurance, volcano insurance, sinkhole coverage, and/or permit to occupy endorsement) and against other insurable hazards or casualties which at the time are commonly insured against in the case of premises similarly situated, due
PAGE 23 regard being given to the height, type, construction, location, use and occupancy of buildings and improvements. All insurance policies shall be issued and maintained by insurers, in amounts, with deductibles, limits and retentions, and in forms satisfactory to Administrative Agent, and shall require not less than ten (10) days’ prior written notice to Administrative Agent of any cancellation for nonpayment of premiums, and not less than thirty (30) days’ prior written notice to Administrative Agent of any other cancellation or any change of coverage. All insurance companies must be qualified, authorized, or licensed to do business in the state in which the Property is located and must have an A.M. Best Company financial and performance ratings of A-:IX or better. All insurance policies maintained, or caused to be maintained, with respect to the Property and the common elements under the Condominium Documents, except for general liability insurance, shall provide that each such policy shall be primary without right of contribution from any other insurance that may be carried by Borrower or Administrative Agent and that all of the provisions thereof, except the limits of liability, shall operate in the same manner as if there were a separate policy covering each insured. If any insurer which has issued a policy of title, hazard, liability or other insurance required pursuant to this Agreement or any other Loan Document becomes insolvent or the subject of any petition, case, proceeding or other action pursuant to any Debtor Relief Law, or if in Administrative Agent’s reasonable opinion the financial responsibility of such insurer is or becomes inadequate, Borrower shall, in each instance promptly upon its discovery thereof or upon the written request of Administrative Agent therefor, and at Borrower’s expense, promptly obtain and deliver to Administrative Agent a like policy (or, if and to the extent permitted by Administrative Agent, acceptable evidence of insurance) issued by another insurer, which insurer and policy meet the requirements of this Agreement or such other Loan Document, as the case may be. Without limiting the discretion of Administrative Agent with respect to required endorsements to insurance policies, all such policies for loss of or damage to the Property and the common elements under the Condominium Documents shall contain a standard mortgagee “Loss Payee” clause (without contribution) naming Administrative Agent as “Loss Payee” with loss proceeds payable to Administrative Agent notwithstanding (A) any act, failure to act or negligence of or violation of any warranty, declaration or condition contained in any such policy by any named or additional insured; (B) the occupation or use of the Property or the common elements under the Condominium Documents for purposes more hazardous than permitted by the terms of any such policy; (C) any foreclosure or other action by Administrative Agent under the Loan Documents (or other lenders of the other units at the condominium under the Land Condominium Documents); or (D) any change in title to or ownership of the Property (or other lenders of the other units at the condominium under the Land Condominium Documents) or any portion thereof, such proceeds to be held for application as provided in the Loan Documents. Borrower shall pay all premiums on policies required hereunder as they become due and payable. If any loss occurs at any time when Borrower has failed to perform Borrower’s covenants and agreements in this paragraph with respect to any insurance payable because of loss sustained to any part of the Property or the common elements under the Condominium Documents whether or not such insurance is required by Administrative Agent, Administrative Agent shall nevertheless be entitled to the benefit of all insurance covering the loss and held by or for Borrower, to the same extent as if it had been made payable to Administrative Agent. In the event that TRIPRA should cease to be in effect at any time, and not replaced by similar legislation, Borrower’s obligations under this Section 4.7(a) to maintain insurance coverage for acts of terrorism shall be limited to an obligation to use commercially reasonable efforts to obtain such coverage, and, in such event, (i) the amount of the terrorism insurance coverage to be obtained shall be the lesser of (A) an amount equal to the full replacement costs of the Improvements (plus twelve (12) months of business interruption coverage and including a 365-day extended period of indemnity) and (B) the Aggregate Commitments, and (ii) Borrower shall not be required to spend on terrorism insurance coverage more than the premium generated by a rate of $0.15 per $100 of the total insurable value of the Property and Improvements, which shall mean the full replacement cost of the Property and Improvements plus twelve (12) months of Actual Operating Revenue. (b) This Subsection applies if and to the extent any portion of the Improvements or any other structure and/or the common elements under the Condominium Documents is, are or in the future may be,
PAGE 24 under the Flood Insurance Laws, in a Special Flood Hazard Area. Except to the extent that the Condominium Association pursuant to the Condominium Documents maintains the following with respect to the common elements under the Condominium Documents, and provided that all of the terms and conditions of this Subsection and of Subsections (a) and (c) of this Section are satisfied with respect thereto, Borrower shall obtain and maintain at Borrower’s sole expense, a flood insurance policy on the Improvements and any such other structure and/or the common elements under the Condominium Documents in an amount required by Administrative Agent, but in no event less than the amount sufficient to meet the requirements of applicable Law, as such requirements may from time to time be in effect. If applicable, the flood insurance policy shall be obtained as a condition to closing of the Loan. In addition to the foregoing, Borrower shall obtain and maintain at Borrower’s expense, a flood insurance policy on any building materials and supplies and any personal property contents owned by Borrower, as soon as a flood insurance policy on such building materials, supplies and contents can be obtained, to the extent Administrative Agent and Lenders take a security interest in such building materials, supplies, and/or personal property contents, in an amount required by Administrative Agent, but in no event less than the amount sufficient to meet the requirements of applicable Law, as such requirements may from time to time be in effect. (c) Borrower shall promptly deliver to Administrative Agent evidence satisfactory to Administrative Agent of the timely payment of all premiums on the policies required hereunder. The originals of each renewal or substitute policy (or to the extent permitted by Administrative Agent, a copy thereof and such evidence of insurance as may be acceptable to Administrative Agent) shall be delivered to Administrative Agent, with all premiums paid fully current, at least ten (10) days before the termination of the policy it renews or replaces. (d) Administrative Agent may retain, at Borrower’s sole expense, an independent insurance consultant to evaluate the sufficiency of the insurance to be carried by Borrower pursuant to this Section and to advise Administrative Agent with respect to such other insurance as may be necessary and prudent to protect the Lenders’ security for repayment of the Loan; provided, however, that, so long as no Event of Default shall have occurred and be continuing, Borrower shall only be obligated to pay for such independent evaluation one (1) time per calendar year. (e) Administrative Agent shall have the right (but not the obligation) to make proof of loss for, settle and adjust any claim under, and receive all Insurance Proceeds for loss of or damage to the Property, regardless of whether the applicable insurance policies are required by Administrative Agent. Administrative Agent shall not be, under any circumstances, liable or responsible for failure to collect or exercise diligence in the collection of any such proceeds or for the obtaining, maintaining or adequacy of any insurance or for failure to see to the proper application of any amount paid over to Borrower. Any Insurance Proceeds received by Borrower or Administrative Agent shall be applied as provided in Sections 4.8 and 4.10. Regardless of the application of any Insurance Proceeds, the unpaid portion of the Indebtedness and other Obligations shall remain in full force and effect and the payment thereof shall not be excused. Borrower shall at all times comply with the requirements of the insurance policies required hereunder and of the issuers of such policies and of any board of fire underwriters or similar body as applicable to or affecting the Property. (f) Upon any foreclosure of the Mortgage or transfer of title to the Property in extinguishment of the whole or any part of the Obligations, all of Borrower’s right, title and interest in and to the insurance policies referred to in this Section (including unearned premiums) and all Insurance Proceeds payable thereunder shall vest thereupon in the purchaser at foreclosure or such other transferee, to the extent permissible under such policies.
PAGE 25 4.8 Damage or Destruction. (a) Promptly, and in any case within one (1) Business Day after the occurrence thereof, Borrower shall notify Administrative Agent of any fire or other Casualty with respect to any material portion (including all structural portions) of the Property or the common elements under the Condominium Documents. Such notice also shall generally describe the nature and extent of such Casualty and set forth Borrower’s best preliminary estimate of the cost of Restoration. (b) Administrative Agent shall be entitled to receive all Insurance Proceeds payable with respect to the Property on account of a Casualty. Borrower hereby irrevocably assigns, transfers and sets over to Administrative Agent all rights of Borrower to any such Insurance Proceeds. Borrower hereby irrevocably authorizes and empowers Administrative Agent, in the name of Borrower or otherwise, to file for and prosecute in its own name what would otherwise be Borrower’s claim for any such Insurance Proceeds. Notwithstanding the foregoing, so long as no Event of Default shall have occurred and shall then be continuing and provided Borrower promptly files all claims and diligently prosecutes same, Borrower shall have the right to file, adjust, settle and prosecute any claim for such Insurance Proceeds; provided, however, that Borrower shall not agree to any adjustment or settlement of any such claim payable with respect to a Casualty the Insurance Proceeds with respect to which are equal to or greater than $2,500,000.00 (the “Casualty Proceeds Deposit Threshold”) without Administrative Agent’s prior written consent. (c) In the case of any Casualty with respect to which the Insurance Proceeds payable are less than the Casualty Proceeds Deposit Threshold, provided no Event of Default shall have occurred and be continuing, the Net Casualty Proceeds shall be held by Borrower. In the case of any Casualty with respect to which the Insurance Proceeds are equal to or greater than the Casualty Proceeds Deposit Threshold, the Net Casualty Proceeds shall be deposited to the Borrower’s Deposit Account. Within seven (7) days after demand by Administrative Agent, Borrower shall establish the Borrower’s Deposit Account with Administrative Agent, unless Borrower has already done so, and shall fund such Net Casualty Proceeds into such account. Such account shall be governed by all of the terms and provisions applicable to a Borrower’s Deposit Account under this Agreement. All interest (if any) earned on sums on deposit in the Borrower’s Deposit Account shall be credited to such account. Administrative Agent may require all or part of any funds in the Borrower’s Deposit Account to be used before Lenders make any further advances of Loan proceeds. Borrower hereby assigns and pledges to Administrative Agent, for the ratable benefit of Lenders, and grants to Administrative Agent and Lenders, a first-priority security interest in and lien on the Borrower’s Deposit Account and all amounts from time to time held in or credited to the Borrower’s Deposit Account, and any proceeds thereof, as security for Borrower’s Obligations. Subject to the terms and conditions of this Section and the other provisions of the Loan Documents, the Borrower’s Deposit Account shall be subject to the sole dominion, control and discretion of Administrative Agent, but Administrative Agent shall have no fiduciary duty with respect to such account or any funds on deposit therein. Notwithstanding the foregoing, or anything else herein to the contrary, all proceeds of business interruption/rent loss insurance may be collected by and shall be paid to Administrative Agent and applied in accordance with Section 4.8(h). (d) Borrower shall be permitted to withdraw Net Casualty Proceeds from the Borrower’s Deposit Account upon satisfaction of the applicable Release Conditions set forth in Section 4.8(e)(i), or otherwise with Administrative Agent’s written consent, which may be by e-mail and be granted in Administrative Agent’s sole and absolute discretion. Under no circumstance may funds be withdrawn from the Borrower’s Deposit Account without the prior written consent of Administrative Agent and if funds are withdrawn from the Borrower’s Deposit Account in a larger amount than is approved by Administrative Agent, Borrower shall promptly return the excess to the Borrower’s Deposit Account upon request by Administrative Agent. Borrower shall, at its sole cost and expense, promptly commence and diligently and continuously perform to completion the Restoration in a good and workmanlike manner and in compliance
PAGE 26 with all Laws and Requirements, whether or not Borrower shall have satisfied the applicable Release Conditions in order to cause the Net Casualty Proceeds to be made available for such Restoration and whether or not such Insurance Proceeds on account of the Casualty shall be sufficient for such purpose. (e) (i) Administrative Agent shall grant consent to Borrower, which may be by e-mail, to withdraw Net Casualty Proceeds from the Borrower’s Deposit Account to pay costs of the Restoration if the following conditions are satisfied (each a “Release Condition” and collectively, the “Release Conditions”): (A) no monetary or material non-monetary Default or any Event of Default shall have occurred and be continuing; (B) Borrower shall have delivered to Administrative Agent within sixty (60) days after the occurrence of the Casualty, a notice of Borrower’s desire to undertake the Restoration; (C) Borrower shall have demonstrated to the satisfaction of Administrative Agent that the Restoration can be completed prior to the earlier of (1) the date that is six (6) months prior to the then-current Maturity Date or (2) the date of repair or restoration as may be required by applicable Law and Requirements; (D) Borrower shall have demonstrated to the satisfaction of Administrative Agent that sufficient funds are available to Borrower through rent and/or business interruption insurance maintained pursuant to Section 4.7, cash, and/or a letter of credit or other similar cash-equivalent security reasonably satisfactory to Administrative Agent as to form, content and issuer, and which shall be for the benefit of Administrative Agent, to pay all Obligations and all operating expenses with respect to the Property during the period reasonably estimated by Borrower as necessary for the completion of the Restoration; (E) Borrower shall have provided Administrative Agent with a guaranty of completion satisfactory to Administrative Agent in form and content and as to guarantor which, among other things, guarantees the timely and lien-free completion of the Restoration; (F) To the extent, in Administrative Agent’s reasonable judgment, the Net Casualty Proceeds are insufficient to pay the costs of the Restoration, Borrower shall have provided Administrative Agent with a letter of credit, cash deposit or similar equivalent security in the amount of such deficiency in form, content and issuer satisfactory to Administrative Agent; (G) If requested by Administrative Agent, Administrative Agent shall have been provided an appraisal in form and substance acceptable to Administrative Agent at Borrower’s sole cost and expense, certifying that upon completion of the Restoration the “as-is” value of the Property shall be not less than the Appraised Value; (H) Administrative Agent shall have received certificates of insurance, copies of insurance policies or other evidence reasonably satisfactory to Administrative Agent that the insurance coverage required hereunder, including insurance with respect to such
PAGE 27 Casualty, is in full force and effect in accordance with the terms hereof and shall remain in effect during the course of the Restoration (subject to normal annual renewals); (I) Administrative Agent shall have received a budget and Plans and Specifications for the Restoration approved by Administrative Agent; and (J) Prior to Administrative Agent’s release of any Net Casualty Proceeds to Borrower, the following information and documentation shall have been obtained by Borrower, at Borrower’s expense, and submitted to Administrative Agent, which information and documentation shall be in form and substance reasonably satisfactory to Administrative Agent: (I) A Draw Request, accompanied by billing statements, vouchers or invoices, which Draw Request shall be deemed to ratify and confirm and expressly warrant, that the work with respect to which the Net Casualty Proceeds are requested has been substantially performed in accordance with the approved Plans and Specifications for the Restoration; (II) Proof that all invoices for labor and materials previously submitted by Borrower and approved by Administrative Agent and reimbursed from Net Casualty Proceeds have been paid, except for those that are the subject of the current Draw Request; (III) Lien waivers for all payees under previous Draw Requests; (IV) A report from Borrower’s architect or, if Administrative Agent shall elect, Administrative Agent’s consultant, which shall specify the percentage of completion of the Restoration, shall provide detailed comments on specific work performed since the date of the last such report, and, if required by Administrative Agent, an estimate of the cost to complete the Restoration after taking into account the work then completed; (V) At the request of Administrative Agent, a Title Insurance Report; (VI) Copies of the agreements pursuant to which the Restoration shall be done, all of which shall be in form and substance reasonably satisfactory to Administrative Agent, and which also shall be reasonably satisfactory to Administrative Agent as to the party performing the construction obligations thereunder; (VII) Written consents by parties to any general construction contracts, architect/design contracts and other material contracts consenting to the assignment of such contracts pursuant to the Mortgage (which may be included in any such contract) and/or will-serve agreements in favor of Administrative Agent in form reasonably satisfactory to it from such contractors, architects or designers; and (VIII) Such other information and documentation as Administrative Agent may reasonably request regarding the Improvements and the Restoration and the cost thereof.
PAGE 28 (ii) Any Net Casualty Proceeds which Borrower is permitted to hold shall be used and applied in accordance with the conditions of this Section 4.8. (f) If an Event of Default shall have occurred and be continuing, the Release Condition set forth in Section 4.8(e)(i)(B) hereof is not satisfied within the period set forth therein, or one or more of the other Release Conditions set forth in Section 4.8(e)(i)(C) through (I) above are not satisfied within one hundred and twenty (120) days of the occurrence of any Casualty, then all Net Casualty Proceeds shall be applied in accordance with Section 4.10. If a monetary or material non-monetary Default shall have occurred and be continuing, Borrower shall not be permitted to withdraw the requested Net Casualty Proceeds until such time, if any, as such monetary or material non-monetary Default does not exist (and the other Release Conditions are satisfied). (g) All actual out-of-pocket expenses incurred by Administrative Agent in connection with a Casualty in seeking, adjusting or collecting any Insurance Proceeds, and in making any Net Casualty Proceeds available for the Restoration (including the fees of any insurance consultant or adjuster, the fees of Administrative Agent’s construction consultants and inspectors, and reasonable attorneys’ fees) shall be a part of the Indebtedness and shall be due and payable to Administrative Agent upon demand. Any Net Casualty Proceeds remaining after the Restoration and the payment in full of all costs incurred in connection with the Restoration, in Administrative Agent’s sole discretion, either will be released by Administrative Agent to Borrower or applied as a mandatory prepayment of the Loan. (h) Business interruption/rent loss insurance proceeds of Borrower shall be deposited into the Borrower’s Deposit Account and used for operating and other expenses of the Property with the written consent of Administrative Agent in each instance, which consent shall not be unreasonably withheld, conditioned or delayed and may be by e-mail, until such time as (a) the Restoration shall have been fully completed in accordance with this Agreement, and (b) no monetary or material non-monetary Default or any Event of Default shall exist. 4.9 Condemnation Affecting the Property. (a) Promptly, and in any case within one (1) Business Day after the occurrence thereof, Borrower shall notify Administrative Agent of any Condemnation or the commencement of any proceedings or negotiations which might result in a Condemnation. Such notice shall generally describe the nature and extent of such Condemnation or the nature of such proceedings or negotiations which might result therefrom. Administrative Agent shall be entitled hereunder to all Condemnation Awards. Borrower hereby irrevocably assigns, transfers and sets over to Administrative Agent all rights of Borrower to any and all Condemnation Awards and irrevocably authorizes and empowers Administrative Agent, in the name of Borrower or otherwise, to collect and receipt for any such Condemnation Award and delegates to Administrative Agent the right to file and prosecute any and all claims for such Condemnation Awards and to participate in any and all hearings, trials and appeals in connection with a Condemnation on behalf of Borrower. Administrative Agent may participate in such proceedings or negotiations and Borrower will deliver or cause to be delivered to Administrative Agent all instruments requested by Administrative Agent to permit such participation; provided, however, that Administrative Agent shall be under no obligation to question the amount of any Condemnation Award. Although it is hereby expressly agreed that the same shall not be necessary, and in any event, Borrower shall, upon demand of Administrative Agent, make, execute and deliver any and all assignments and other instruments sufficient for the purpose of assigning any Condemnation Award to Administrative Agent, free and clear of any encumbrances of any kind or nature whatsoever. Administrative Agent may be represented by counsel satisfactory to it at the expense of Borrower. All actual out-of-pocket expenses incurred by Administrative Agent in connection with any Condemnation and seeking and obtaining any Condemnation Award (including reasonable attorneys’ fees
PAGE 29 and reasonable fees of any appraiser or other consultant) shall be a part of the Indebtedness and shall be due and payable to Administrative Agent upon demand. (b) All Net Restoration Awards shall be held, at Administrative Agent’s election, in the Borrower’s Deposit Account. Borrower shall, at its sole cost and expense, promptly commence and diligently and continuously perform or if applicable, cause the Condominium Association to perform to completion the Restoration in a good and workmanlike manner and in compliance with all Laws and Requirements, whether or not Borrower shall have satisfied the Release Conditions in order to cause the Net Restoration Awards to be made available for such Restoration and whether or not such Net Restoration Awards shall be sufficient for such purpose. (c) All Net Restoration Awards which are required by Administrative Agent to be held in the Borrower’s Deposit Account shall be administered, applied and used as follows: (i) If the Release Conditions are satisfied, and the Condemnation is not a Material Condemnation, all Net Restoration Awards shall be applied to pay the cost of Restoration, such application to be effected in the same manner and subject to the conditions provided in Section 4.8(d) with respect to Net Casualty Proceeds. Any Net Restoration Awards remaining after the Restoration and the payment in full of all costs incurred in connection with the Restoration, in Administrative Agent’s sole discretion, either will be distributed by Administrative Agent to Borrower or applied as a mandatory prepayment of the Loan. (ii) If the Condemnation is a Material Condemnation, or one or more of the Release Conditions are not satisfied, all Net Restoration Awards shall be applied in accordance with Section 4.10. (iii) In the case of a Condemnation for temporary use, any Net Restoration Awards shall be deposited and applied in the same manner and subject to the conditions provided in Section 4.8(g) with respect to business interruption/rent loss Insurance Proceeds. 4.10 Application of Proceeds of Casualty or Condemnation to Loan; Loan Repayment. Upon a Casualty, if the disposition of the Net Casualty Proceeds is governed by Section 4.8(e) or upon a Condemnation, if the disposition of the Net Restoration Awards is governed by Section 4.9(c)(ii), at the option of Administrative Agent, the Loan shall be due and payable ninety (90) days after notice from Administrative Agent to Borrower. Regardless of whether Administrative Agent shall so elect to accelerate the maturity of the Loan as aforesaid, Administrative Agent shall have the option to (a) make available the Net Casualty Proceeds or the Net Restoration Awards, as the case may be, to Borrower for Restoration in the manner provided in Section 4.8(d) or (b) apply the Net Casualty Proceeds and/or the Net Restoration Awards to the Obligations, in such order and manner as Administrative Agent determines, as the case may be. 4.11 Compliance with Law and Requirements. Borrower shall take commercially reasonable steps to not, by act or omission, permit any building or other improvement not subject to the lien of the Mortgage to rely on the Property or any interest therein to fulfill any Law or Requirement, other than any Permitted Encumbrance. Borrower shall take commercially reasonable steps to preserve in force all requisite zoning, utility, building, health, environmental and operating permits from all Governmental Authorities having jurisdiction over the Property, and preserve and maintain all other rights, privileges and franchises necessary to own and operate the Property in accordance with applicable Law and Requirements in all material respects. Borrower shall comply in all material respects with all Laws and Requirements affecting Borrower or the Property, including the use, operation, occupancy, maintenance and other activity thereof or thereon. Borrower shall comply in all material respects with the Controlled Substances Act and
PAGE 30 all applicable anti-money laundering Laws. Borrower shall furnish Administrative Agent, on demand, proof of compliance with this Section reasonably satisfactory in all respects to Administrative Agent. Notwithstanding the foregoing, Borrower shall have the right to challenge or appeal any such Law or Requirement so long as (a) Borrower shall prosecute such challenge or appeal in good faith, at its own expense and by appropriate legal proceedings, (b) Administrative Agent shall have received assurance reasonably satisfactory to Administrative Agent that (i) such contest will not result in the imposition of any civil or criminal liability or penalty, and (ii) the Property would not be in any danger of being sold, forfeited or lost in any respect, nor would the value or use of the Property be impaired or curtailed, as a result of such contest or deferral of compliance, (c) Borrower shall have furnished such security as may be required in the proceeding or as may be reasonably requested by Administrative Agent, to insure the cost of compliance, including all interest and penalties in connection therewith, which security shall not be less than one hundred ten percent (110%) of the maximum liability of Borrower as reasonably determined by Administrative Agent, (d) the subject matter of the applicable Law or Requirement will be addressed to the reasonable satisfaction of Administrative Agent promptly after such contest but in any event prior to the time the security granted to Administrative Agent in the Property shall be subjected to any lien or otherwise jeopardized or Borrower or the Property otherwise becomes subject to any enforcement or penalties, in the sole and absolute opinion of Administrative Agent, and (e) such challenge or appeal is made and performed in accordance with applicable Laws and Requirements. If Borrower receives a written notice or claim from any Person that the Property or any use, operation, occupancy, maintenance or other activity thereof or thereon is not in compliance with any Law or Requirement, Borrower will promptly furnish a copy of such written notice or claim to Administrative Agent. 4.12 Leasing Requirements. Borrower shall comply with the terms and conditions of Exhibit E with respect to the matters described therein. 4.13 Financial Matters. All reports, statements, plans, budgets, applications, agreements and other data and information heretofore furnished or hereafter to be furnished by or on behalf of Borrower or Guarantor to Administrative Agent in connection with the Loan (including all financial statements and financial information) will be true, correct and complete in all material respects as of their respective dates and will not omit to state any fact or circumstance necessary to make the statements contained therein not misleading in any material respect. 4.14 Statement Concerning Note or Mortgage. Borrower shall at any time and from time to time furnish within seven (7) days of written request by Administrative Agent a written statement in such form as may be required by Administrative Agent stating that (a) the Note, this Agreement and the other Loan Documents are valid and binding obligations of Borrower, enforceable against Borrower in accordance with their terms; (b) the Principal Debt; (c) the date to which interest on the Note is paid; (d) the Note, this Agreement and the other Loan Documents have not been released, subordinated or modified; and (e) there are no offsets, counterclaims or defenses against the enforcement of the Note, this Agreement or any other Loan Document. If any of the foregoing statements are untrue, Borrower shall, alternatively, specify the reasons therefor. 4.15 Notice to Lenders. Borrower shall, within five (5) days after Borrower having obtained actual knowledge of the occurrence of any of the following events, notify Administrative Agent in writing thereof, specifying in each case the action Borrower has taken or will take with respect thereto: (a) any Default or Event of Default hereunder or under any of the other Loan Documents; (b) any violation of Law or Requirements, by Borrower or Guarantor, or any written claim or assertion received by Borrower or Guarantor from any Governmental Authority that the Property or Improvements fail to comply with any Law or Requirements; (c) written notice received by Borrower or Guarantor of any investigation by any
PAGE 31 Governmental Authority, or written notice received by Borrower or Guarantor of any litigation, arbitration or other proceeding instituted or threatened against Borrower or any Guarantor or the Property, including pursuant to the Controlled Substances Act, anti-money laundering Laws, or the Civil Asset Forfeiture Reform Act, and any material development therein; (d) any actual or threatened in writing judicial or nonjudicial forfeiture or seizure proceeding or other actual or threatened loss affecting the Property or any material portion thereof or interest therein; (e) any labor controversy pending or threatened in writing against Borrower; (f) any written notice received by Borrower with respect to the cancellation, alteration or non-renewal of any insurance coverage maintained with respect to the Property; (g) any lien filed against the Property or any stop notice served on Borrower; (h) any required permit, license, certificate or approval with respect to the Property lapses or ceases to be in full force and effect; (i) any Material Adverse Effect in the financial condition, results of operations, business or properties of Borrower or either Guarantor, or (j) Borrower’s delivery of, or Borrower’s receipt of, any notice of default or event of default under the Constellation Lease. 4.16 Financial Statements. (a) Borrower shall deliver to Administrative Agent and each Lender, in form and detail satisfactory to Administrative Agent and Required Lenders, using the Platform, the Online Banking Portal, or such other delivery method as may be approved by Administrative Agent, the Financial Statements and other statements and information at the times and for the periods described in (i) Exhibit B attached hereto and (ii) any other Loan Document. (b) Borrower will keep and maintain full and accurate books and records administered in accordance with sound accounting principles, consistently applied, showing in detail the earnings and expenses of the Property and the operation thereof. All Financial Statements and Property Schedules shall be in form and detail satisfactory to Administrative Agent and shall contain or be attached to the signed and dated written certification of the reporting party in form specified by Administrative Agent to certify that the Financial Statements are furnished to Administrative Agent in connection with the extension of credit by Lenders and constitute a true and correct statement of the reporting party’s financial position. All certifications and signatures on behalf of corporations, partnerships, limited liability companies or other entities shall be by a representative of the reporting party satisfactory to Administrative Agent. All fiscal year-end Financial Statements of Borrower shall be company prepared or compiled in a form otherwise acceptable to Administrative Agent. All quarterly Financial Statements may be prepared by the applicable reporting party and shall include a minimum of a balance sheet, income statement, and statement of cash flow. All Property Schedules may be prepared by the applicable reporting party. Borrower shall provide, upon Administrative Agent’s request, convenient facilities for the audit and verification of any such statement. Additionally, Borrower will provide Administrative Agent at Borrower’s expense with all evidence that Administrative Agent may from time to time reasonably request in writing as to compliance with all provisions of the Loan Documents. 4.17 Reports and Testing. Borrower shall (a) promptly deliver to Administrative Agent copies of all reports, studies, inspections and tests made on or of the Property; and (b) make such additional tests on or of the Property as Administrative Agent reasonably requires. Borrower shall immediately notify Administrative Agent of any report, study, inspection or test that indicates any adverse condition relating to the Property or any such materials. 4.18 Appraisal. Administrative Agent may obtain from time to time, an appraisal of all or any part of the Property prepared in accordance with written instructions from Administrative Agent by a third- party appraiser engaged directly by Administrative Agent. Each such appraiser and appraisal shall be satisfactory to Administrative Agent (including satisfaction of applicable regulatory requirements). The cost of any such appraisal, including any costs for internal review thereof, shall be borne by Borrower if
PAGE 32 such appraisal is the first appraisal in any calendar year and in all events if Administrative Agent obtains such appraisal after the occurrence of an Event of Default. Whenever Borrower is obligated to pay the cost of an appraisal hereunder, such cost is due and payable by Borrower on demand and shall be secured by the Loan Documents. Administrative Agent shall provide a copy of such appraisal to each Lender upon receipt. In the event Administrative Agent agrees to deliver any appraisal to Borrower, Administrative Agent and Lenders do not (a) represent that the presumptions or opinions in any appraisal are relevant or accurate; (b) represent that any appraisal has been or has not been approved by Administrative Agent or any Lender; or (c) represent that Administrative Agent or any Lender endorses or does not endorse the opinions set forth in any appraisal. Borrower agrees that any transmittal by Administrative Agent of any appraisal of the Property to Borrower is given without representation or warranty. Borrower will hold any appraisal delivered by Administrative Agent to Borrower in confidence and will not distribute it to any other person or entity, except Borrower’s employees, agents, attorneys, consultants, or unless compelled by Law or judicial proceedings, without Administrative Agent’s prior written consent. Borrower waives any and all present and future claims, actions, causes of action, defenses and/or counterclaims which it may now or hereafter assert against Administrative Agent and any Lender in connection with the content or accuracy of any such appraisal, Borrower’s use of any such appraisal, and subsequent use of any such appraisal by any third party to whom Borrower provides the appraisal. 4.19 ERISA. As of the date hereof and throughout the term of this Agreement, (a) neither Borrower nor any Guarantor is or will be (i) an “employee benefit plan,” as defined in Section 3(3) of ERISA or (ii) a “plan” within the meaning of Section 4975(e) of the Code; (b) no assets of Borrower or any Guarantor constitute or will constitute “plan assets” within the meaning of the United States Department of Labor Regulations set forth in 29 C.F.R. §2510.3-101, as modified by Section 3(42) of ERISA; (c) neither Borrower nor any Guarantor is or will be a “governmental plan” within the meaning of Section 3(32) of ERISA; and (d) no transactions by or with Borrower or any Guarantor are or will be subject to federal, state or local statutes applicable to Borrower or such Guarantor regulating investments of fiduciaries with respect to governmental plans. 4.20 Financial Covenants. Borrower shall comply with the terms and conditions of Exhibit J with respect to the matters described therein. Borrower shall cause Guarantor to comply with the financial covenants set forth in Section 8.15 of the Credit Agreement, as such covenants may be amended, modified, supplemented, restated and replaced from time to time 4.21 Organizational Restrictions. (a) Borrower shall comply with the terms and conditions of Exhibit P with respect to the matters described therein. (b) Borrower shall conduct business only in its own name (including its trade name or names) and shall not change its name, identity, or type of organization specified in the first paragraph of this Agreement unless Borrower shall have obtained the prior written consent of Administrative Agent. Borrower shall promptly notify Administrative Agent (i) of any change of its organization identification number, or (ii) if Borrower does not now have an organization identification number and later obtains one, of such organizational identification number. (c) Borrower shall not change the location of its chief executive office or principal place of business unless Borrower (i) shall have given Administrative Agent at least ten (10) Business Days’ prior written notice and (ii) shall have taken all actions necessary or reasonably requested by Administrative Agent to file or amend any UCC financing statement or continuation statement reasonably required to assure perfection and continuation of perfection of security interests under the Loan Documents.
PAGE 33 Borrower’s principal place of business and chief executive office, and the place where Borrower keeps its books and records, including recorded data of any kind or nature, regardless of the medium of recording including software, writings, plans, specifications and schematics concerning the Property, shall be the same. 4.22 Title and Permitted Encumbrances. Borrower shall maintain lawful, good and marketable title to the Property and the right to convey the same, free and clear of all liens, charges, claims, security interests, and encumbrances except for (a) the Permitted Encumbrances, (b) the liens and security interests evidenced by the Mortgage, (c) statutory liens for Real Property Taxes on the Property which are not yet delinquent, and (d) other liens and security interests (if any) in favor of Administrative Agent. Borrower shall not suffer and shall promptly cause to be paid and discharged all liens, charges, claims, security interests, and encumbrances against the Property except those expressly permitted pursuant to the foregoing sentence. Borrower, and Borrower’s successors and assigns, will warrant generally and forever defend title to the Property, subject as aforesaid, to Administrative Agent and its successors or substitutes and assigns, against the claims and demands of all Persons claiming or to claim the same or any part thereof. Borrower will punctually pay, perform, observe and keep all covenants, obligations and conditions in or pursuant to any Permitted Encumbrances and will not modify or permit modification of any Permitted Encumbrance without the prior written consent of Administrative Agent. Inclusion of any matter as a Permitted Encumbrance does not constitute approval or waiver by Administrative Agent of any existing or future violation or other breach thereof by Borrower, by the Property or otherwise. If any right or interest of Administrative Agent or Lenders in the Property shall be endangered or questioned or shall be attacked directly or indirectly, Administrative Agent (whether or not it or any Lender is named as a party to legal proceedings with respect thereto), is hereby authorized and empowered to take such steps as in its discretion may be proper for the defense of any such legal proceedings or the protection of such right or interest of Administrative Agent and Lenders, including the employment of independent counsel, the prosecution or defense of litigation, and the compromise or discharge of adverse claims. All actual out-of-pocket expenses so incurred by Administrative Agent shall be a part of the Indebtedness and shall be due and payable to Administrative Agent upon demand. Administrative Agent shall be subrogated to all rights of the Person receiving such payment. 4.23 Swap Transaction. Borrower shall comply with the terms and conditions of Exhibit I with respect to the matters described therein. 4.24 Borrower Taxes; Effect on Loan Documents. Borrower shall promptly pay all income, franchise and other taxes now or hereafter owed by Borrower under any Law. In the event (a) any Law directly or indirectly imposes upon Administrative Agent or any Lender the payment of any of such taxes, the payment of any of such taxes is required in order to create or preserve any of the liens granted to Administrative Agent or to enforce any of the rights and remedies of Administrative Agent and Lenders under the Mortgage, any other Loan Document at law or in equity, or any of such taxes otherwise affects the Mortgage, any other Loan Document, Administrative Agent or any Lender, including their interests in any of the Property, (b) any Law deducts from the value of the Property for the purpose of taxation any lien, charge or security interest thereon, or requires Administrative Agent or Lender to pay any such lien, charge or security interest or the value thereof, or any other assessment against Borrower or the Property, or (c) there is any change in law regarding the taxation of deeds of trust or mortgages or security agreements or debts secured by deeds of trust or mortgages or security agreements or the interest of the beneficiary, mortgagee or secured party in the property covered thereby, or the manner of collection of such taxes, so as to affect the Mortgage or any other Loan Document, then, and in any such event, Borrower, upon demand by Administrative Agent, shall pay such taxes, liens, charges and security interests or reimburse Administrative Agent or Lenders, as applicable, therefor.
PAGE 34 4.25 Controlled Substances. Without limiting the provisions of Section 6.2, Borrower shall use commercially reasonable efforts to not suffer or permit any tenant leasing space in the Improvements to violate any Laws affecting the Property, including the Controlled Substances Act, or which could otherwise result in the occurrence of an Event of Default under Section 7.1(o), including the commencement of any proceedings under the Civil Asset Forfeiture Reform Act. Upon obtaining actual knowledge of any conduct that violates the first sentence of this Section, Borrower shall promptly take all actions reasonably expected under the circumstances to terminate any such use of the Property, including: (a) to give timely notice to any appropriate law enforcement agency of information that led Borrower to know such conduct had occurred, and (b) in a timely fashion to revoke or make a good faith attempt to revoke permission for those engaging in such conduct to use the Property or to take reasonable actions in consultation with a law enforcement agency to discourage or prevent illegal use of the Property. 4.26 Commercial Purpose. Borrower represents and warrants that the Loan is being made solely to acquire or carry on a business or commercial enterprise, and/or Borrower is a business or commercial organization. Borrower shall use the proceeds of the Loan for commercial purposes and to pay other costs and expenses related to the development, ownership and operation of the Property and shall not use the proceeds of the Loan in contravention of any Law or Requirement. Borrower stipulates that the Loan shall be construed for all purposes as a commercial loan, and is made for other than personal, family, household or agricultural purposes. 4.27 Anti-Corruption Laws. Borrower, Guarantor and their respective subsidiaries shall each conduct its businesses in compliance with the United States Foreign Corrupt Practices Act of 1977, the U.K. Bribery Act 2010, and other similar anti-corruption legislation in other jurisdictions, and maintain policies and procedures designed to promote and achieve compliance with such laws. 4.28 Parking Easement. Borrower will pay and perform in all material respects, all of its indebtedness, duties and obligations under the Parking Easement and will use commercially reasonable efforts to enforce its rights and remedies under the Parking Easement. Borrower will deliver to Administrative Agent a copy of any material notice sent or received by Borrower in connection with the Parking Easement. 4.29 Condominium Documents. Borrower shall comply with the terms and conditions of Exhibit M with respect to the matters described therein, without limiting the foregoing, Borrower will (a) pay and perform in all material respects, all of its indebtedness, duties and obligations under the Condominium Documents and will use commercially reasonable efforts to enforce its rights and remedies under Condominium Documents, and (b) deliver to Administrative Agent a copy of any material notice sent or received by Borrower in connection with the Condominium Documents. 4.30 REA. Borrower will pay and perform in all material respects, all of its indebtedness, duties and obligations under the REA and will use commercially reasonable efforts to enforce its rights and remedies under the REA. Borrower will deliver to Administrative Agent a copy of any material notice sent or received by Borrower in connection with the REA. 4.31 Accounts. Borrower shall maintain all of its deposit accounts related to the Property at PNC Bank at all times during the term of the Loan, including, without limitation, its operating account, the Reserve Accounts, any Cash Collateral Account, and one or more tenant security deposit accounts; provided, however, Borrower shall be permitted to cause Managing Member to maintain the Property operating account, the Reserve Account, and other Property-related accounts required hereunder with the consent of Administrative Agent as long as Managing Member executes and delivers to Administrative Agent the Managing Member Joinder attached hereto.
PAGE 35 4.32 Post-Closing Requirements. Borrower shall use commercially reasonable and diligent efforts to, on or before the date that is ninety (90) days after the Closing Date, as such date may be extended by an additional ninety (90) days with the consent of Administrative Agent, (a) obtain the signatures of all parties to that certain Declaration of Assignment of Environmental Indemnity by and among Borrower, certain other owners within the Harbor Point development, Honeywell International, Inc. and Administrative Agent (the “Honeywell Agreement”), (b) at Borrower’s sole expense, to cause the Honeywell Agreement to be recorded among the land records of the City of Baltimore, Maryland, and (c) if required by Administrative Agent, obtain an endorsement to Administrative Agent’s Title Insurance to reflect the same. Borrower shall, upon Administrative Agent’s reasonable request from time to time, provide Administrative Agent with an update regarding the status of the foregoing post-closing requirements. ARTICLE 5 — NEGATIVE COVENANTS 5.1 Additional Indebtedness. Borrower shall not avail itself of or permit any additional extension of credit or debt of any kind (whether recourse or non-recourse, secured or unsecured) except for (a) Permitted Debt, and (b) the Obligations, in any case, without the prior written consent of the Required Lenders. 5.2 Limitation on Distributions, etc. During the continuance of a monetary or material non- monetary Default, any Event of Default, or a Trigger Period, Borrower shall not make any dividend, payment or distribution to any of its Constituent Members. 5.3 Contracts. (a) Affiliates. Without the prior written consent of Administrative Agent, Borrower shall not, nor shall Borrower’s Constituent Member, enter into any contract or otherwise engage in any transactions with an Affiliate of Borrower or such Constituent Member, except for contracts, amendments and transactions entered into in the ordinary course of business of Borrower and at prices and on terms that are commercially reasonable and are no less favorable to Borrower or such Constituent Member, as applicable, than would be obtained in a comparable arm’s-length transaction with an unrelated third party. (b) Third Parties. Without the prior written consent of Administrative Agent, Borrower shall not enter into any contract, amend any contract or otherwise engage in any transactions with any third party, except for contracts, amendments and transactions entered into in the ordinary course of business of Borrower, on an arm’s-length basis and on commercially reasonable terms. 5.4 Transfers; Encumbrances. Borrower shall not, voluntarily or involuntarily, directly or indirectly, sell, convey, transfer, lease or otherwise dispose of, grant easements or other rights with respect to, or mortgage, encumber or create a lien or security interest in, the Property or the income or any other revenues therefrom or permit or suffer any such action to be taken, except in each case as permitted by the Loan Documents. 5.5 Ownership; Merger; Consolidation; Purchase or Sale of Assets. (a) Without the prior written consent of Required Lenders, except as expressly permitted by this Agreement, Borrower shall not, directly or indirectly: (i) change, or permit to be changed, the structure or ownership of Borrower or of any Guarantor from that existing on the Closing Date; (ii) consolidate with, be acquired by, or merge into or with any Person; (iii) permit any sale, transfer, assignment, pledge,
PAGE 36 mortgage, encumbrance or other disposition (each a “Transfer”) of all or part of the Property; (iv) acquire any real property other than the Property; (v) permit any change in the members or managers of, or change of Control of, Borrower or any Guarantor from that existing on the Closing Date; or (vi) permit any Transfer of all or any part of any direct or indirect equity interest in Borrower. (b) Notwithstanding the terms of clause (a) above or anything to the contrary in this Agreement or in any of the other Loan Documents, the following shall be permitted from time to time without the need to obtain consent from Administrative Agent or any Lender, so long as it does not result in a Change of Control (defined below) and provided and so long as the transferee in each instance is not a Prohibited Person or a Disqualified Person: (i) shares of capital stock of REIT may be issued, offered or sold by REIT or sold, transferred, pledged, assigned or conveyed in any manner by stockholders of REIT from time to time and at any time in the open market or otherwise; or (ii) limited partnership interests in Operating Partnership may be (x) issued to (A) any number of existing or additional limited partners in Operating Partnership in consideration (in whole or in part) of the transfer to Operating Partnership (or subsidiaries thereof) of cash, assets or other consideration (including any transfers to the officers, directors or employees of REIT, Operating Partnership or any of their employees pursuant to REIT’s 2013 Restated Equity Incentive Plan), or (B) REIT (or the sole general partner of Operating Partnership, if not REIT) in exchange for any contribution of cash, assets or other consideration by REIT (or such sole general partner, if not REIT) to Operating Partnership (including any transfers to REIT in connection with any awards pursuant to REIT’s 2013 Restated Equity Incentive Plan) and (y) sold, transferred, pledged, assigned or conveyed in any manner by REIT and by limited partners of Operating Partnership from time to time and at any time. (c) As used in this Section 5.5, the term “Change of Control” means an event or series of events by which: (i) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of thirty-five percent (35%) or more of the equity securities of REIT entitled to vote for members of the board of directors or equivalent governing body of REIT on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right); or (ii) during any period of twelve (12) consecutive months, a majority of the members of the board of directors or other equivalent governing body of REIT cease to be composed of individuals (x) who were members of that board or equivalent governing body on the first day of such period, (y) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (x) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (z) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (x) and (y) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body (excluding, in the case of both clause (y) and
PAGE 37 clause (z), any individual whose initial nomination for, or assumption of office as, a member of that board or equivalent governing body occurs as a result of an actual or threatened solicitation of proxies or consents for the election or removal of one or more directors by any person or group other than a solicitation for the election of one or more directors by or on behalf of the board of directors); provided that if the threshold of a majority of the members of the board of directors or other equivalent governing body of REIT is not met as a result of retirements by directors in the ordinary course of business, then a Change of Control will not be deemed to have occurred; or (iii) the passage of thirty (30) days from the date upon which any Person or two (2) or more Persons acting in concert shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation thereof, will result in its or their acquisition of the power to exercise, directly or indirectly, a Controlling influence over the management or policies of REIT, or Control over the equity securities of REIT entitled to vote for members of the board of directors or equivalent governing body of REIT on a fully-diluted basis (and taking into account all such securities that such Person or group has the right to acquire pursuant to any option right) representing thirty-five percent (35%) or more of the combined voting power of such securities; or (iv) REIT shall cease to be the sole general partner of Operating Partnership; or (v) the general partner of Operating Partnership shall no longer Control Operating Partnership; or (vi) REIT shall cease to own, directly or indirectly, at least forty percent (40%) of the equity interests of Operating Partnership; or (vii) Operating Partnership shall cease to own, directly or indirectly, more than fifty percent (50%) of the equity interests of Borrower, in each case free and clear of any liens (other than liens in favor of Administrative Agent on behalf of Lenders). (d) As used in this Section 5.5, the term “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto. (e) As used in this Section 5.5, the term “Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, governmental authority or other entity. (f) Borrower shall, promptly after the occurrence of the Transfer of any direct or indirect equity interest of more than five percent (5%) in Borrower notify Administrative Agent of such Transfer, together with a description of such Transfer, the interest transferred and the identity of the transferor and transferee. (g) Notwithstanding anything to the contrary in this Agreement (including the other provisions of this Section 5.5), (x) if any proposed Transfer would result in the REIT failing to own fifty percent (50%) or more of the equity interests of Borrower or (y) if (1) at the time of any proposed Transfer the REIT owns less than fifty percent (50%) of the equity interests in Borrower and (2) as a result of the proposed Transfer any Person that does not own, directly or indirectly, twenty-five percent (25%) or more of the equity interests in Borrower immediately prior to the Transfer acquires, directly or indirectly, twenty-five percent (25%) or more of the equity interests in Borrower, then: (i) Borrower shall give Administrative Agent
PAGE 38 written notice of such proposed Transfer at least five (5) Business Days prior to such Transfer, and Administrative Agent shall promptly forward such notice to each Lender; (ii) in connection with such notice, Borrower shall deliver to Administrative Agent all documentation and other information that Administrative Agent or any Lender reasonably requests to ensure compliance with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the Beneficial Ownership Regulation; and (iii) such Transfer shall not be permitted without the prior written consent of each Lender, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, this clause (g) shall not apply to the Transfer of publicly-traded shares in the REIT, or to any Person that acquires twenty-five percent (25%) or more of the equity interests in Borrower through acquisition of publicly-traded shares in the REIT. 5.6 Sanctions. Borrower and Guarantor shall not, directly or indirectly, use any proceeds of the Loan, or lend, contribute or otherwise make available such proceeds to any of their respective subsidiaries or joint venture partners or other individual or entity, to fund any activities of or business with any individual or entity, or in any Designated Jurisdiction, that, at the time of such funding, is the subject of Sanctions, or in any other manner that will result in a violation by any individual or entity (including any individual or entity participating in the transaction, whether as Lender, Arranger, Administrative Agent, or otherwise) of Sanctions. 5.7 Anti-Corruption Laws. Neither Borrower nor Guarantor nor any of their respective subsidiaries shall directly or indirectly use the proceeds of the Loan for any purpose which would breach the United States Foreign Corrupt Practices Act of 1977, the U.K. Bribery Act 2010, or other similar anti- corruption legislation in other jurisdictions. 5.8 Parking Easement. Borrower will not replace or terminate, or amend in any material respect, the Parking Easement without the prior written consent of Administrative Agent, which consent shall not be unreasonably withheld, conditioned or delayed. 5.9 Condominium Documents. Borrower will not replace or terminate, or amend in any material respect, and will not consent to the replacement or termination of, or amendment in any material respect of, the Condominium Documents without the prior written consent of Administrative Agent, which consent shall not be unreasonably withheld, conditioned or delayed. 5.10 REA. Borrower will not replace or terminate, or amend in any material respect, the REA without the prior written consent of Administrative Agent, which consent shall not be unreasonably withheld, conditioned or delayed. ARTICLE 6 — REPRESENTATIONS AND WARRANTIES To induce Lenders to make the Loan, Borrower hereby represents and warrants to Administrative Agent and Lenders as follows: 6.1 Organization; Authorization; Enforceability.
PAGE 39 (a) Borrower is a limited liability company duly organized and validly existing under the laws of the State of Delaware. Borrower’s exact legal name is correctly set forth on the signature page of this Agreement. Borrower’s organizational number, if any, assigned by the state of incorporation or organization, and Borrower’s federal tax identification number, are correctly set forth on the signature page of this Agreement. Borrower is not a “foreign person” within the meaning of Section 1445 or 7701 of the Code. Without limiting the foregoing, Borrower is not a foreign corporation, foreign partnership, foreign trust, foreign estate or nonresident alien or a disregarded entity owned by any of them (as those terms are defined in the Code). As of the date of this Agreement, the information included in the Beneficial Ownership Certification, if applicable, is true and correct in all respects. (b) Borrower has heretofore delivered to Administrative Agent true and complete copies of the organizational documents of Borrower, Guarantor and such of their direct and indirect Owners as may be required by Administrative Agent. The organizational chart attached hereto as Exhibit N sets forth a true, correct and complete representation of Borrower’s organizational structure and the ownership of the Property, and without limiting the foregoing, Holdings is in Control of Borrower, and Matthew Barnes- Smith is the individual with significant responsibility to Control and direct the management and operations of Borrower. To the knowledge of Borrower, no individual owns either directly or indirectly twenty-five percent (25%) or more of the equity interests of Borrower. (c) Borrower is authorized to do business in, and if required by Law, in good standing in, each state in which the Property is located, and possessed of all requisite power and authority to carry on its business and to own and operate the Property. Borrower is authorized to execute, deliver and perform all of its obligations under the Loan Documents. No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by Borrower of this Agreement, the other Loan Documents and all other documents executed in connection herewith and therewith except such as have been obtained by Borrower and are in full force and effect. This Agreement, the other Loan Documents and all other documents executed in connection herewith and therewith are the legal, valid and binding obligations of Borrower, enforceable against Borrower in accordance with their terms, subject to applicable Debtor Relief Laws. 6.2 Applicable Laws; Governmental Approvals Regarding the Property. (a) Each of Borrower and Guarantor and, to Borrower’s knowledge, the Property is in compliance in all material respects with all Laws and Requirements applicable to it. Without limiting the foregoing, Borrower is in compliance with any and all Laws and Requirements concerning its organization, existence and the transaction of its business, and has the right and power to own the Property as contemplated in this Agreement and the other Loan Documents. No provision of the Loan Documents violates any Law, Requirement or order of any Governmental Authority or any contract or agreement binding on Borrower or either Guarantor. The Property (including the Parking Easement) and the use, operation and maintenance thereof and all activities thereon comply in all material respects with all applicable Laws and Requirements, without reliance on any adjoining or neighboring property, except to the extent provided by the Parking Easement. Neither Borrower nor Guarantor is in any material respect in default or violation with respect to any order, writ, injunction, decree or demand of any Governmental Authority. To Borrower’s knowledge, each of Borrower, Guarantor, and the Property is in compliance with the Controlled Substances Act and all anti-money laundering Laws. (b) Except for the Harbor Point Special Taxing District created by Ordinances 13-164 and 13-165 adopted by the City Council of the City of Baltimore, Maryland and the related Declaration of Covenants dated January 8, 2014 between the Maryland City Council of Baltimore and Harbor Point Land, LLC and recorded among the land records of the City of Baltimore, Maryland in Liber 16129, Page 94, and Permitted Encumbrances, Borrower is not a party to any tax sharing agreement; there is no proposed tax
PAGE 40 assessment against Borrower or Guarantor (except for the current annual tax assessment against the Property); to the extent required by applicable Law, Borrower and Guarantor have filed all necessary tax returns and reports and have paid all taxes and governmental charges thereby shown to be due or otherwise owing. Borrower has not entered into any PACE Financing and has no knowledge of any pending assessments or adjustments in connection therewith. (c) The Property is not part of a larger tract of land owned by Borrower or any of its affiliates or Guarantor (but is subject to a condominium regime pursuant to the Condominium Documents), is not otherwise included under any unity of title or similar covenant with other real property not encumbered by the Mortgage, and constitutes a separate tax lot or lots with a separate tax assessment or assessments, independent of those for any other lands or improvements. The Property is not, and shall not be, dependent on any property or premises or any interest therein other than the Property to fulfill any requirement of any Law. No land, building or other improvement not subject to the lien of the Mortgage relies on the Property or any interest therein to fulfill any requirement of any Law. (d) Except as set forth in the Property Condition Report, the Improvements comply in all material respects with all Laws regarding access and facilities for handicapped or disabled persons. (e) All Governmental Approvals, including certificates of completion or occupancy, necessary in connection with the ownership, use, management and operation the Property have been duly obtained, are in full force and effect, and are held in the name of Borrower, and Borrower is not in default thereunder. There is no proceeding pending or, to Borrower’s knowledge, threatened, that seeks, or may reasonably be expected, to rescind, terminate, modify or suspend any such Governmental Approval. (f) To Borrower’s knowledge, there is no action, suit or proceeding by or before any court or Governmental Authority or any arbitrator involving Borrower, any Guarantor or the Property with respect to the Controlled Substances Act, any anti-money laundering Laws, or the Civil Asset Forfeiture Reform Act that is pending or threatened in writing. (g) Except as may be set forth on the Property Condition Report, the current and any anticipated use of the Property complies with all applicable zoning, land use and similar laws, ordinances, regulations and restrictive covenants affecting the Property without the existence of any variance, non- complying use, nonconforming use or other special exception, all use restrictions of any Governmental Authority having jurisdiction have been satisfied, and, to Borrower’s knowledge, no violation of any Law or regulation exists with respect thereto, and no violation of any Law or regulation to which Borrower or, to Borrower’s knowledge, the Property or any tenant leasing space in the Improvements is subject, including the Controlled Substances Act, exists with respect thereto. 6.3 No Broker. No financial advisers, brokers, underwriters, placement agents, agents or finders have been dealt with by Borrower, Guarantor or any Affiliate thereof in connection with the Loan. 6.4 Encroachments. (a) To Borrower’s knowledge, other than as disclosed in the Title Insurance or the Survey, and except as permitted or required pursuant to the Condominium Documents, there are no encroachments on the Property and the Improvements do not encroach upon any adjoining land, condominium units or adjoining streets and lie wholly within the boundaries and building restriction lines of the Property. (b) To Borrower’s knowledge, other than as may be disclosed in the Title Insurance or the Survey, all of the common elements lie wholly within the boundaries and building restrictions of the land legally described in the Condominium Documents, and no improvements on adjoining properties encroach
PAGE 41 upon such land, so as to materially and adversely affect the business or operations of the Property, except those which are insured against by the Title Insurance. 6.5 Agreements. Borrower has not directly or indirectly conveyed, assigned or otherwise disposed of or transferred (or agreed to do so) any development rights, air rights or other similar rights, privileges or attributes with respect to the Property, including those arising under any zoning or land use ordinance or other Law or under the Condominium Documents. Borrower is not a party to any agreement or instrument or subject to any restriction which would materially and adversely affect Borrower or the Property, or Borrower’s business, properties or assets, operations or condition, financial or otherwise. To Borrower’s knowledge, Borrower is not in default in any material respect in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any agreement or instrument to which it is a party or by which Borrower or the Property is bound. Borrower does not have any material financial obligation under any agreement or instrument to which Borrower is a party or by which Borrower or the Property is otherwise bound, other than (a) obligations incurred in the ordinary course of the operation of the Property, (b) obligations under Permitted Encumbrances, and (c) obligations under the Loan Documents. Neither Borrower, nor Borrower’s Constituent Member, is a party to any contract, or is engaged in any transaction, which would constitute a breach of Section 5.3. 6.6 Financial Condition. (a) All reports, statements, plans, budgets, applications, agreements and other data and information heretofore furnished or hereafter to be furnished by or on behalf of Borrower to Administrative Agent in connection with the Loan (including all Financial Statements and financial information) are true, correct, and complete in all material respects and do not and will not omit to state any fact or circumstance necessary to make the statements contained therein not misleading. No Material Adverse Effect has occurred since the dates of such reports, statements and other data in the financial condition of Borrower or, to Borrower’s knowledge, of any tenant under any lease described therein. For the purposes of this Subsection, “Borrower” shall also include the Guarantors. (b) Neither Borrower nor Guarantor is the subject of any petition, case, proceeding or other action pursuant to any Debtor Relief Law or contemplating filing any such petition, case, proceeding or other action, and, to Borrower’s knowledge, no Person is contemplating the filing of any petition, case, proceeding or other action pursuant to any Debtor Relief Law against Borrower or Guarantor. (c) Borrower is not insolvent (as such term is defined in the Bankruptcy Code) and Borrower will not be rendered insolvent by the execution of the Loan Documents or otherwise. (d) Borrower has not entered into this transaction or executed any Note, this Agreement or any other Loan Documents with the actual intent to hinder, delay or defraud any creditor and Borrower has received reasonably equivalent value in exchange for its obligations under the Loan Documents and the liens on the Property granted or otherwise arising thereunder. 6.7 Utility Services. All utility services necessary for the operation and management of the Property are available at the boundaries of the land underlying the Units, including electric and natural gas facilities, telephone service, water supply, storm and sanitary sewer facilities, except, in each case, as otherwise could not reasonably be expected to have a Material Adverse Effect. All such utility services cross only dedicated public roads or property subject to properly recorded easements in favor of the utility company providing the service in question.
PAGE 42 6.8 Liens. Except as otherwise provided for in the Loan Documents, Borrower has not made any contract or arrangement of any kind the performance of which by the other party thereto would give rise to a lien on the Property other than Permitted Encumbrances. 6.9 Management Agreements. Each Management Agreement is in full force and effect and there is no default thereunder by any party thereto known to Borrower, and no event known to Borrower has occurred that, with the passage of time and/or the giving of notice would constitute an event of default thereunder. No management fees under any Management Agreement are accrued and unpaid. Borrower has delivered to Administrative Agent a true and complete copy of each Management Agreement. 6.10 Flood Zone. None of the Improvements or the common elements under the Condominium Documents are located, under the Flood Insurance Laws, in a Special Flood Hazard Area, or, if any portion of the Improvements or the common elements under the Condominium Documents is located within such area, Borrower or the Condominium Association is in compliance with Section 4.7(b) and has obtained the flood insurance prescribed therein. 6.11 Litigation. To Borrower’s knowledge, there is no judicial or administrative action, suit or proceeding pending or threatened in writing against Borrower or either Guarantor, except such actions, suits or proceedings that if adversely determined as would not have a Material Adverse Effect (including actions, suits or proceedings relating to the spontaneous fracturing of insulated glass units on the curtain wall of the building(s) located on the Property). To Borrower’s knowledge, there is no suit, action, claim, investigation, inquiry, proceeding or demand pending or threatened in writing against Borrower or either Guarantor or which affects the Property (including any which challenges or otherwise pertains to Borrower’s title to the Property) which would be expected to have a Material Adverse Effect if adversely determined, or which affects the validity, enforceability or priority of any of the Loan Documents. To Borrower’s knowledge, there are no actions, suits or proceedings pending or threatened in writing against or affecting Borrower and/or the Property which, in each case, if adversely determined, would materially affect the ability of Borrower to perform its respective obligations under any of the Loan Documents, at law or in equity before any Governmental Authority. To Borrower’s knowledge, there are no actions or proceedings pending before any Governmental Authority, quasi-judicial body or administrative agency relating to compliance of the Property with any Laws or Requirements. 6.12 No Conflicts. The execution, delivery and performance of, and the consummation of the transactions contemplated by, this Agreement and the other Loan Documents do not and will not violate, breach or constitute a default under the Law, any Requirements, or any other mortgage, deed of trust, lease, loan or credit agreement, articles of organization, operating agreement, corporate charter, bylaws, partnership agreement or other agreement or instrument to which Borrower or Guarantor is a party, or by which Borrower or Guarantor is bound or affected. Such execution, delivery, performance and consummation do not and will not create any encumbrance, except those in favor of Administrative Agent, against any assets or properties of Borrower or Guarantor. 6.13 Public Access. All easements and rights of way necessary for the utilization of the Improvements for their current uses have been acquired. 6.14 Leases. (a) The rent roll (the “Rent Roll”), attached hereto as Exhibit O, contains a true, correct and complete list of all existing Leases for the Property and all information set forth on such Rent Roll is true and correct in all material respects; (b) all Leases are valid and enforceable, and in full force and effect, and are unmodified except as stated therein; (c) except as set forth on Exhibit O, to Borrower’s knowledge, neither Borrower nor any tenant in the Property is in default under its Lease (and no event has occurred which with the passage of time or notice or both would result in a default under its Lease), other than with respect to rents owed by any tenants that are less than thirty (30) days overdue, (d) no tenant is
PAGE 43 the subject of any bankruptcy, insolvency or similar proceeding; (e) the copies of the Leases and any related guaranties delivered to Administrative Agent are true and complete in all material respects; (f) Borrower has no knowledge of any notice of termination or default with respect to any Lease; (g) Borrower has not assigned or pledged any of the Leases, the Rents or any interests therein except to Administrative Agent (on behalf of the Lenders); (h) no tenant or other party has an unexpired option, right of first refusal or other preferential right to purchase all or any portion of the Property, except as set forth on Exhibit O; (i) no tenant has the unilateral right to terminate its Lease prior to expiration of the stated term of such Lease absent the occurrence of any casualty, condemnation or default by the applicable Borrower thereunder, except as set forth on Exhibit O; and (j) no tenant has prepaid more than one (1) month’s rent in advance (except for security deposits and other charges collected in accordance with the terms of the applicable Lease). 6.15 Insurance. Borrower has obtained and delivered to Administrative Agent certificates of insurance for the Property reflecting the insurance coverages, amounts and other insurance requirements set forth in the Loan Documents. No Person, including Borrower, has done, by act or omission, anything which would materially and adversely impair the coverage of any such policy. 6.16 Condemnation. Borrower has not received any written notice of, and to Borrower’s knowledge, no Person has threatened, any actual or proposed Condemnation. 6.17 Physical Condition. Except as set forth in the Property Condition Report, to Borrower’s knowledge, the Property and the common elements under the Condominium Documents, including all buildings, improvements, parking facilities, sidewalks, storm drainage systems, roofs, plumbing systems, HVAC systems, fire protection systems, electrical systems, equipment, elevators, exterior sidings and doors, landscaping, irrigation systems and all structural components, are in good condition, order and repair in all material respects. Except as set forth in the Property Condition Report, to Borrower’s knowledge, there exists no structural or other material defects or damages in the Property or the common elements under the Condominium Documents, as a result of a Casualty or otherwise. Borrower has not received any written notice from any insurance company or bonding company of any material defects or inadequacies in the Property or the common elements under the Condominium Documents which would adversely affect the insurability of the same or cause the imposition of extraordinary premiums or charges thereon or of any termination or threatened termination of any policy of insurance or bond. Administrative Agent and Lenders acknowledge disclosure by Borrower of incidents of the spontaneous fracturing of insulated glass units on the curtain wall of the buildings(s) located on the Property, and in connection therewith, as described in the Constellation Lease, Office Borrower has entered into the Settlement Agreement and Release with Constellation for the Canopy Project (as such terms are defined in the Constellation Lease). 6.18 Title. Borrower has lawful, good, marketable and insurable fee simple title to the real property comprising part of the Property and lawful and good title to the balance of the Property, free and clear of all liens, charges, claims, security interests, and encumbrances whatsoever except the Permitted Encumbrances and such other liens as are permitted pursuant to the express provisions of the Loan Documents. None of the Permitted Encumbrances, individually or in the aggregate, materially interferes with the benefits of the security intended to be provided by the Loan Documents, materially and adversely impairs the use or operation of the Property or materially impairs Borrower’s ability to pay its obligations in a timely manner. The Mortgage, when properly recorded in the appropriate records, together with any UCC financing statements required to be filed in connection therewith, will create (a) a valid, perfected first priority lien on the Property, subject only to Permitted Encumbrances and (b) perfected security interests in and to, and perfected collateral assignments of, all personalty (including the Leases), all in accordance with the terms hereof, in each case subject only to Permitted Encumbrances, such other liens as are permitted pursuant to the Loan Documents and the liens created by the Loan Documents. There are no claims for payment for work, labor or materials affecting the Property which are a lien prior to, or of equal
PAGE 44 priority with, the liens created by the Loan Documents other than Permitted Encumbrances and those for which the Property have received affirmative insurance in the applicable title insurance policy. 6.19 OFAC. Neither Borrower nor Guarantor, nor any of their respective subsidiaries, nor, to the knowledge of Borrower and Guarantor, any director, officer, employee, agent, Affiliate or representative of Borrower, Guarantor or any of their subsidiaries, is a Prohibited Person. 6.20 Anti-Corruption Laws. Borrower, Guarantor and their respective subsidiaries have conducted their businesses in compliance with the United States Foreign Corrupt Practices Act of 1977, the U.K. Bribery Act 2010, and other similar anti-corruption legislation in other jurisdictions, and have instituted and maintained policies and procedures designed to promote and achieve compliance with such laws. 6.21 Affected Financial Institution. Neither Borrower nor any Guarantor is an Affected Financial Institution. 6.22 Usury; Offsets. The terms of this Agreement are not usurious. Borrower has no offsets, counterclaims or defenses with respect to its Obligations. 6.23 Parking Easement. The Parking Easement is in full force and effect and neither Borrower nor, to Borrower’s knowledge, any other party is in default under any of the Parking Easement. 6.24 Condominium Documents. The Condominium Documents are in full force and effect and neither Borrower nor, to Borrower’s knowledge, any other party is in default under any of the Condominium Documents. 6.25 REA. The REA is in full force and effect and neither Borrower nor, to Borrower’s knowledge, any other party is in default under the REA. ARTICLE 7 — DEFAULT AND REMEDIES 7.1 Events of Default. The occurrence of any one of the following shall be a default under this Agreement (“Event of Default”): (a) any of the Indebtedness is not paid within five (5) days after the date when due, whether on the scheduled due date or upon acceleration, maturity or otherwise; (b) any covenant, agreement, condition, representation or warranty in this Agreement or in any other Loan Document (other than covenants to pay the Indebtedness and other than Defaults expressly listed elsewhere in this Section 7.1) is not fully and timely performed, observed or kept and such failure shall continue unremedied for more than thirty (30) days after written notice to Borrower by Administrative Agent; provided, however, that if such failure is of a nature such that it cannot be cured by the payment of money and if such failure requires work to be performed, acts to be done or conditions to be removed which cannot reasonably, with due diligence, be performed, done or removed, as the case may be, within such thirty (30) day period and Borrower shall have commenced to cure such failure within such thirty (30) day period, such period shall be deemed extended for so long as shall be required by Borrower in the exercise of due diligence to cure such failure, but in no event shall such thirty (30) day period be so extended to be a period in excess of ninety (90) days;
PAGE 45 (c) any statement, representation or warranty in any of the Loan Documents, or in any Financial Statement or any other writing heretofore or hereafter delivered to Administrative Agent or any Lender in connection with the Indebtedness, is false, misleading or erroneous in any material respect on the Closing Date or on the date as of which such statement, representation or warranty is made; (d) a default or breach occurs by Borrower or Guarantor of any obligation under any other Loan Document (taking into account any applicable notice and cure period set forth in such Loan Document), including any “Termination Event” under any Swap Contract; (e) Borrower shall fail in the due performance and observance of any of its covenants contained in Section 4.1, 4.3(b), 4.4(b), (c) or (d), 4.6(a), 4.7, 4.8(g), 4.9(c)(iii), 4.12, 4.15, 4.19, 4.20, 4.21, 4.22, 4.23, 4.24, 4.25, 4.26, 4.27, or Article 5; (f) Borrower shall fail in the due performance and observance of any of its covenants contained in Section 1.9, 4.3(c), 4.5, 4.16, 4.17, 4.31 or 9.21 and such failure shall continue for thirty (30) days after notice thereof shall have been given to Borrower by Administrative Agent; (g) a default or event of default (in each case, after the expiration of any applicable grace, notice or cure period) occurs under any lien, security interest or assignment covering the Property (whether or not Administrative Agent has consented, and without hereby implying Administrative Agent’s consent, to any such lien, security interest or assignment not created hereunder), or the holder of any such lien, security interest or assignment declares a default or institutes foreclosure or other proceedings for the enforcement of its remedies thereunder; (h) the entry of a judgment against Borrower in excess of $250,000 or any Guarantor in excess of $1,000,000 or the issuance of any attachment, sequestration, or similar writ in excess of $250,000 for Borrower or $1,000,000 for Guarantor levied upon any of Borrower’s or Guarantor’s property, as the case may be, which is not discharged or bonded off within a period of twenty (20) days; (i) Administrative Agent reasonably determines that a Material Adverse Effect has occurred in the financial condition of Borrower or any Guarantor or in the condition of the Property; (j) Borrower, Guarantor or any Person obligated to pay any part of the Indebtedness (i) is liquidated, terminated, dissolved, or merged or consolidated into another entity (including, in each case, pursuant to a Delaware LLC Division), (ii) divides into two or more Persons, including becoming a Delaware Divided LLC (whether or not the original Person survives such division), (iii) creates, or reorganizes into, one or more series pursuant to a Delaware LLC Division or otherwise, or (iv) fails or ceases to be in good standing in the state where the Property is located and/or the state of its incorporation or organization, if different; (k) for any reason, without Administrative Agent’s specific written consent, any Loan Document ceases to be in full force and effect, or is declared null and void or unenforceable, in whole or in part, or the validity or enforceability thereof, in whole or in part, is challenged or denied by any party thereto other than Administrative Agent; or the liens, mortgages or security interests of Administrative Agent for the benefit of Lenders in any of the Property become unenforceable, in whole or in part, or cease to be of the priority herein required, or the validity or enforceability thereof, in whole or in part, is challenged or denied by Borrower, Guarantor or any Person obligated to pay any part of the Indebtedness; (l) A judicial or nonjudicial forfeiture or seizure proceeding is commenced by a Governmental Authority and remains pending with respect to the Property or any part thereof, on the grounds that the Property or any part thereof had been used to commit or facilitate the commission of a criminal offense by
PAGE 46 any Person, including any tenant, pursuant to any Law, including the Controlled Substances Act or the Civil Asset Forfeiture Reform Act, regardless of whether or not the Property or the Mortgage shall become subject to forfeiture or seizure in connection therewith; provided, however, that no Event of Default shall occur under this Section 7.1(l) unless Borrower fails to have the enforcement action stayed (so long as such stay is not lifted) or resolved within ninety (90) days after the commencement of such proceedings; and (m) Borrower or any Guarantor: (i) (A) Executes an assignment for the benefit of creditors, or takes any action in furtherance thereof; or (B) admits in writing its inability to pay, or fails to pay, its debts generally as they become due (it being acknowledged that in the event Borrower admits same only to Administrative Agent or any Lender or enters into a pre-negotiation letter or other similar correspondence with Administrative Agent, such correspondence shall not in and of itself constitute an admission in writing as contemplated herein); or (C) as a debtor, files a petition, case, proceeding or other action pursuant to, or voluntarily seeks the benefit or benefits of, any Debtor Relief Law, or takes any action in furtherance thereof; or (D) seeks the appointment of a receiver, trustee, custodian or liquidator of the Property or any part thereof or of any significant portion of its other property; or (ii) Suffers the filing of a petition, case, proceeding or other action against it as a debtor under any Debtor Relief Law or seeking appointment of a receiver, trustee, custodian or liquidator of the Property or any part thereof or of any significant portion of its other property, and (A) admits, acquiesces in or fails to contest diligently the material allegations thereof, or (B) the petition, case, proceeding or other action results in entry of any order for relief or order granting relief sought against it, or (C) in a proceeding under Debtor Relief Laws, the case is converted from one chapter to another, or (D) fails to have the petition, case, proceeding or other action permanently dismissed or discharged on or before the earlier of trial thereon or the ninetieth (90th) day following the date of its filing; (iii) Conceals, removes, or permits to be concealed or removed, any part of its property, with intent to hinder, delay or defraud its creditors or any of them, or makes or suffers a transfer of any of its property which may be fraudulent under any fraudulent conveyance law or Debtor Relief Law; or makes any transfer of its property to or for the benefit of a creditor at a time when other creditors similarly situated have not been paid; or suffers or permits, while insolvent, any creditor to obtain a lien upon any of its property through legal proceedings which are not vacated and such lien is not discharged prior to enforcement thereof or in any event within sixty (60) days from the date thereof.; or (iv) Effects a Change of Control without Lenders’ consent. (n) The expiration, termination, or replacement of one or more of the Parking Easement, Condominium Documents, or REA without the prior written consent of Administrative Agent. (o) The occurrence of any Constellation Lease Cross Default. 7.2 Remedies. Upon the occurrence and during the continuance of an Event of Default, Administrative Agent at its election may (but shall not be obligated to) without the consent of and shall at the direction of the Required Lenders, without notice, exercise any and all rights and remedies afforded by this Agreement, the other Loan Documents, Law, equity or otherwise, including (a) declaring any and all Indebtedness immediately due and payable (provided that, without limitation of the foregoing, upon the occurrence of an actual or deemed entry of an order for relief with respect to Borrower under any Debtor
PAGE 47 Relief Law, any obligation of Lenders to make advances shall automatically terminate, and the unpaid principal amount of the Loan outstanding and all interest and other amounts as aforesaid shall automatically become due and payable, in each case without further act of Administrative Agent or Lenders); (b) reducing any claim to judgment; (c) obtaining appointment of a receiver (to which Borrower hereby consents) and/or judicial or nonjudicial foreclosure under the Mortgage; (d) terminating Lenders’ Commitments; (e) in its own name on behalf of the Lenders or in the name of Borrower, entering into possession of the Property, leasing and operating the Property, performing all work and constructing Improvements; and (f) setting-off and applying, to the extent thereof and to the maximum extent permitted by Law, any funds in the Cash Collateral Account, any and all deposits, funds, or assets at any time held and any and all other indebtedness at any time owing by Administrative Agent or any Lender to or for the credit or account of Borrower against any Indebtedness. Borrower hereby appoints Administrative Agent as Borrower’s attorney-in-fact, which power of attorney is irrevocable and coupled with an interest, with full power of substitution if Administrative Agent so elects, to do any of the following in Borrower’s name upon the occurrence and during the continuance of an Event of Default: (i) endorse the name of Borrower on any checks or drafts representing proceeds of any insurance policies, or other checks or instruments payable to Borrower with respect to the Property; (ii) prosecute or defend any action or proceeding incident to the Property; (iii) pay, settle, or compromise all bills and claims regarding the Property; (iv) perform the obligations and exercise the rights of Borrower under all Leases, guaranties and other agreements to which it is a party or by which the Property is bound, enter into Leases, guaranties and other agreements regarding the Property and pay all leasing, operating and capital expenses of the Property; (v) take over and use all or any part of the labor, materials, supplies and equipment contracted for, owned by, or under the control of Borrower, whether or not previously incorporated into the Improvements; and (vi) to pay and perform upon the occurrence and during the continuance of an Event of Default any of the Tenant Improvements, Leasing Commissions and Leasing Costs as required above and to apply the amounts on deposit with Administrative Agent to the costs associated therewith, all as Administrative Agent may determine in its sole discretion but without obligation to do so. Neither Administrative Agent nor any Lender shall have any liability to Borrower for the sufficiency or adequacy of any such actions taken by Administrative Agent. ARTICLE 8 — ADMINISTRATIVE AGENT 8.1 Appointment and Authorization of Administrative Agent. (a) Each Lender hereby irrevocably (subject to Section 8.9) appoints, designates and authorizes Administrative Agent to take such action on its behalf under the provisions of this Agreement and each other Loan Document and to exercise such powers and perform such duties as are expressly delegated to it by the terms of this Agreement or any other Loan Document, together with such powers as are reasonably incidental thereto. The term “agent” herein and in the other Loan Documents with reference to Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. (b) Notwithstanding any provision to the contrary contained elsewhere herein or in any other Loan Document, Administrative Agent shall not have any duties or responsibilities except those expressly set forth herein, and its duties and responsibilities shall be administrative in nature. Without limiting the generality of the foregoing, Administrative Agent and its Related Parties: (i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing, and no implied covenants, functions,
PAGE 48 responsibilities, obligations or liabilities shall be read into this Agreement or any other Loan Document or shall otherwise exist against Administrative Agent or its Related Parties; (ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), provided that Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and (iii) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty or responsibility to disclose, and shall not be liable for the failure to disclose, any information relating to Borrower, Guarantor or any of their Related Parties that is communicated to or obtained by the Person serving as Administrative Agent or any of its Related Parties in any capacity. (c) No individual Lender or group of Lenders shall have any right to amend or waive, or consent to the departure of any party from any provision of any Loan Document, or secure or enforce the obligations of Borrower or any other party pursuant to the Loan Documents, or otherwise. All such rights, on behalf of Administrative Agent or any Lender or Lenders, shall be held and exercised solely by and at the option of Administrative Agent for the pro rata benefit of the Lenders. Such rights, however, are subject to the rights of a Lender or Lenders, as expressly set forth in this Agreement, to approve matters or direct Administrative Agent to take or refrain from taking action as set forth in this Agreement. Except as expressly otherwise provided in this Agreement or the other Loan Documents, Administrative Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights, or taking or refraining from taking any actions which Administrative Agent is expressly entitled to exercise or take under this Agreement and the other Loan Documents, including (i) the determination if and to what extent matters or items subject to Administrative Agent’s satisfaction are acceptable or otherwise within its discretion, (ii) the making of Administrative Agent Advances, and (iii) the exercise of remedies pursuant to, but subject to, Article 7 or pursuant to any other Loan Document and any action so taken or not taken shall be deemed consented to by Lenders. (d) In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to Borrower, Guarantor or any other Person liable for any part of the Indebtedness, no individual Lender or group of Lenders shall have the right, and Administrative Agent (irrespective of whether the principal of the Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether Administrative Agent shall have made any demand on Borrower or any other Person) shall be exclusively entitled and empowered on behalf of itself and the Lenders, by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loan and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of Lenders and Administrative Agent (including any claim for the reasonable compensation, actual out-of-pocket expenses, disbursements and advances of Lenders and Administrative Agent and their respective agents and counsel and all other amounts due Lenders and Administrative Agent under Section 9.10 allowed in such judicial proceeding); and
PAGE 49 (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to Administrative Agent and, in the event that Administrative Agent shall consent to the making of such payments directly to Lenders, to pay to Administrative Agent any amount due for the reasonable compensation, actual out-of- pocket expenses, disbursements and advances of Administrative Agent and its agents and counsel, and any other amounts due Administrative Agent under Section 9.10. Nothing contained herein shall be deemed to authorize Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of Lenders except as approved by the Required Lenders or to authorize Administrative Agent to vote in respect of the claims of Lenders except as approved by the Required Lenders in any such proceeding. 8.2 Delegation of Duties; Advice. (a) Administrative Agent may execute any of its duties under this Agreement or any other Loan Document by or through one or more sub-agents appointed by Administrative Agent. Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article 8 shall apply to any such sub-agent and to the Related Parties of Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the Loan as well as activities as Administrative Agent. Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non- appealable judgment that Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. (b) Administrative Agent shall be entitled to advice of counsel and other consultant experts concerning all matters pertaining to such duties. Administrative Agent shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel or other consultant experts. 8.3 Liability of Administrative Agent. Neither Administrative Agent nor any Related Party of Administrative Agent shall (a) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or any other Loan Document or the transactions contemplated hereby or thereby (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary), or as Administrative Agent shall believe in good faith shall be necessary or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and non-appealable judgment, or (b) be responsible in any manner to any Lender for any recital, statement, representation or warranty made by Borrower, Guarantor, any subsidiary or Affiliate of Borrower or Guarantor, or any other Person, or any officer thereof, contained herein, or in any other Loan Document, or in any certificate, report, statement or other document referred to or provided for in, or received by Administrative Agent under or in connection with, this Agreement or any other Loan Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document, or for any failure of Borrower or any other party to any Loan Document to perform its obligations hereunder or thereunder. Neither Administrative Agent nor any Related Party of Administrative Agent shall be under any obligation to any Lender or participant or any other Person to inspect the properties, books or records of Borrower, Guarantor, any of their Related Parties or any other Person, or to ascertain or inquire into (u) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (v) the contents of any certificate, report or other
PAGE 50 document delivered hereunder or thereunder or in connection herewith or therewith, (w) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Event of Default, (x) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or the creation, perfection or priority of any lien purported to be created by the Loan Documents, (y) the value or the sufficiency of any Property, or (z) the satisfaction of any condition set forth herein or therein, other than to confirm receipt of items expressly required to be delivered to Administrative Agent. 8.4 Reliance by Administrative Agent. Administrative Agent is authorized to rely upon the continuing authority of the Authorized Persons, Authorized Signers, and designated Authorized Portal Users to bind Borrower with respect to all matters pertaining to the Loan and the Loan Documents, including the submission of Draw Requests and the selection of interest rates. Such authorization may be changed only upon written notice addressed to Administrative Agent accompanied by evidence, reasonably satisfactory to Administrative Agent, of the authority of the Person giving such notice. Such notice shall be effective not sooner than five (5) Business Days following receipt thereof by Administrative Agent. Without limitation of the foregoing, Administrative Agent shall be entitled to rely, and shall be fully protected, and shall be indemnified by Lenders pursuant to Section 8.7, in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, telex, telephone message, email or other electronic (including any Internet or intranet website posting or other distribution) communication, statement or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and upon advice and statements of legal counsel (including counsel to any party to the Loan Documents), independent accountants and other experts selected by Administrative Agent. In determining compliance with any condition hereunder to the making of the Loan that by its terms must be fulfilled to the satisfaction of a Lender, Administrative Agent may presume that such condition is satisfactory to such Lender unless Administrative Agent shall have received notice to the contrary from such Lender prior to the making of the Loan. For purposes of determining compliance with the conditions specified in Exhibit C, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objections. Administrative Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Loan Document unless it shall first receive such advice or concurrence of the Required Lenders or all Lenders if required hereunder as it deems appropriate and, if it so requests, it shall first be indemnified to its satisfaction by Lenders against any and all liability and actual out-of-pocket expense which may be incurred by it by reason of taking or continuing to take any such action; provided, however, that the foregoing shall not release Administrative Agent from liability for gross negligence or willful misconduct, as determined by a court of competent jurisdiction by final and non-appealable judgment. Administrative Agent shall in all cases be fully protected, and shall be indemnified by Lenders pursuant to Section 8.7, in acting, or in refraining from acting, under this Agreement or any other Loan Document in accordance with a request or consent of the Required Lenders or such greater number of Lenders as may be expressly required hereby in any instance, and such request and any action taken or failure to act pursuant thereto shall be binding upon all Lenders. In the absence of written instructions from the Required Lenders or such greater number of Lenders, as expressly required hereunder, Administrative Agent may take or not take any action, at its discretion, unless this Agreement specifically requires the consent of the Required Lenders or such greater number of Lenders. Notwithstanding anything to the contrary herein, in no event shall Administrative Agent be required to take any action that it determines may expose Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and Administrative Agent shall be reimbursed by Lenders pursuant to Section 8.7 with respect to such determination.
PAGE 51 8.5 Notice of Default. Administrative Agent shall not be deemed to have knowledge or notice of any Default or Event of Default unless Administrative Agent shall have received written notice from a Lender or Borrower referring to this Agreement and describing such Default or Event of Default, and Administrative Agent determines that such Default (if it were to become an Event of Default) or Event of Default will have a Material Adverse Effect. Administrative Agent will notify Lenders of its receipt of any such notice. Administrative Agent shall take such action with respect to any such Event of Default as may be requested by the Required Lenders in accordance with Article 7; provided, however, that unless and until Administrative Agent has received any such request, Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Event of Default as it shall deem advisable or in the best interest of Lenders. 8.6 Credit Decision; Disclosure of Information by Administrative Agent. (a) Each Lender acknowledges that neither Administrative Agent nor any Related Party of Administrative Agent has made any representation or warranty to it, and that no act by Administrative Agent hereafter taken, including any consent to and acceptance of any assignment or review of the affairs of Borrower and Guarantor, shall be deemed to constitute any representation or warranty by Administrative Agent or any Related Party of Administrative Agent to any Lenders as to any matter, including whether Administrative Agent or any Related Party of Administrative Agent have disclosed material information in their possession. Each Lender represents to Administrative Agent that it has, independently and without reliance upon Administrative Agent or any Related Party of Administrative Agent and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, prospects, operations, property, financial and other condition and creditworthiness of Borrower and Guarantor, and all applicable bank or other regulatory Laws relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to Borrower and Guarantor hereunder. Each Lender also represents that it will, independently and without reliance upon Administrative Agent or any Related Party of Administrative Agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of Borrower and Guarantor. (b) Administrative Agent promptly after its receipt shall provide each Lender such notices, reports and other documents expressly required to be furnished to Lenders by Administrative Agent herein. To the extent not already available to a Lender, Administrative Agent shall also provide each Lender and/or make available for such Lender’s inspection during reasonable business hours and at such Lender’s expense, promptly after such Lender’s written request therefor: (i) copies of the Loan Documents; (ii) such information as is then in Administrative Agent’s possession in respect of the current status of principal and interest payments and accruals in respect of the Loan; (iii) copies of all current financial statements in respect of Borrower, Guarantor or other Person liable for payment or performance by Borrower of any obligations under the Loan Documents, then in Administrative Agent’s possession with respect to the Loan; and (iv) other current factual information then in Administrative Agent’s possession with respect to the Loan and bearing on the continuing creditworthiness of Borrower or Guarantor, or any of their respective Affiliates; provided that nothing contained in this Section shall impose any liability upon Administrative Agent for its failure to provide a Lender any of such Loan Documents, information, or financial statements, unless such failure constitutes willful misconduct or gross negligence on Administrative Agent’s part; and provided, further, that Administrative Agent shall not be obligated to provide any Lender with any information in violation of Law or any contractual restrictions on the disclosure thereof (provided such contractual restrictions shall not apply to distributing to a Lender factual and financial information expressly required to be provided herein). Except as set forth above, Administrative Agent shall not have any duty or responsibility to provide any Lenders with any credit or other information concerning the business,
PAGE 52 prospects, operations, property, financial and other condition or creditworthiness of Borrower or Guarantor or any of their respective Affiliates which may come into the possession of Administrative Agent or any Related Party of Administrative Agent. 8.7 Indemnification of Administrative Agent. Whether or not the transactions contemplated hereby are consummated, Lenders hereby indemnify Administrative Agent and each Related Party of Administrative Agent (to the extent not reimbursed by or on behalf of Borrower and without limiting the obligation of Borrower to do so), pro rata, and hold harmless Administrative Agent and each Related Party of Administrative Agent from and against any and all Indemnified Liabilities incurred by it, including before, during and after any foreclosure of the Mortgage, other exercise of rights and remedies or sale of the Property; provided, however, that no Lender shall be liable for the payment to Administrative Agent or any Related Party of Administrative Agent of any portion of such Indemnified Liabilities to the extent determined in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Person’s own gross negligence or willful misconduct; provided, further, that no action taken in accordance with the directions of the Required Lenders shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section. All payments on account of the foregoing shall be due and payable ten (10) days after demand by Administrative Agent therefor. Without limitation of the foregoing, to the extent that Administrative Agent is not reimbursed by or on behalf of Borrower, each Lender shall reimburse Administrative Agent within ten (10) days after demand for its ratable share of any actual costs or out-of-pocket expenses (including attorneys’ fees) incurred by Administrative Agent as described in Section 9.10. The undertaking in this Section shall survive the resignation or replacement of Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments, the termination of this Agreement and the repayment, satisfaction or discharge of all Obligations. 8.8 Administrative Agent in Individual Capacity. Administrative Agent, in its individual capacity, and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of banking, trust, financial, advisory, underwriting or other business with any party to the Loan Documents and their respective subsidiaries and other Affiliates as though Administrative Agent was not Administrative Agent hereunder, without notice to or consent of Lenders and without any duty to account therefor to Lenders. Lenders acknowledge that Borrower and PNC Bank or its Affiliate have entered or may enter into Swap Transactions. Lenders shall have no right to share in any portion of any payments made by Borrower under the terms of such Swap Transactions (except and to the extent Lenders shall have participated with PNC Bank or such Affiliate in such Swap Transactions). Lenders acknowledge that, pursuant to such activities, PNC Bank or its Affiliates may receive information regarding any party to the Loan Documents, or their respective Affiliates (including information that may be subject to confidentiality obligations in favor of such parties or such parties’ Affiliates) and acknowledge that Administrative Agent shall be under no obligation to provide such information to them. With respect to its Pro Rata Share of the Loan, PNC Bank shall have the same rights and powers under this Agreement as any other Lenders and may exercise such rights and powers as though it were not Administrative Agent or party to Swap Transactions, and the terms “Lender” and “Lenders” include PNC Bank in its individual capacity. 8.9 Successor Administrative Agent. Administrative Agent may resign as Administrative Agent upon thirty (30) days’ notice to Lenders. Additionally, if the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by applicable law, by notice in writing to Borrower and such Person, remove such Person as Administrative Agent. If Administrative Agent resigns or is so removed by the Required Lenders under this Agreement, the Required Lenders shall appoint from among Lenders a successor administrative agent for Lenders, which successor administrative agent shall be consented to by Borrower at all times other than during the existence of an Event of Default (which consent of Borrower shall not be unreasonably withheld
PAGE 53 or delayed). Upon the acceptance by the successor administrative agent of its appointment as successor administrative agent hereunder, the retiring Administrative Agent’s resignation or removal, as applicable, shall be effective, such successor administrative agent shall succeed to all the rights, powers and duties of the retiring Administrative Agent and the term “Administrative Agent” shall mean such successor administrative agent, and the retiring Administrative Agent’s appointment, powers and duties as Administrative Agent shall be terminated. If no successor administrative agent has accepted appointment as Administrative Agent by the date which is thirty (30) days following a retiring Administrative Agent’s notice of resignation, or on or before the removal day specified by Required Lenders in their removal notice to Administrative Agent and Borrower, whichever applies, then the retiring Administrative Agent may appoint, after consulting with Lenders and Borrower, a successor administrative agent from among Lenders; provided, however, that the retiring Administrative Agent’s resignation or removal, as applicable, shall nevertheless become effective upon such thirtieth (30th) day, or upon the removal day set forth in Required Lenders’ removal notice, whichever applies, and on such day Lenders shall perform all of the duties of Administrative Agent hereunder until such time, if any, as the Required Lenders appoint a successor agent as provided for above. After the effective date any retiring Administrative Agent’s resignation or removal hereunder as Administrative Agent, the provisions of this Article VIII and other applicable Sections of this Agreement shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement. 8.10 Releases; Acquisition and Transfers of Collateral. (a) Lenders hereby irrevocably authorize Administrative Agent to transfer or release any lien on, or after foreclosure or other acquisition of title by Administrative Agent on behalf of Lenders to transfer or sell, any Loan collateral (i) upon the termination of the Commitments, the termination of all obligations of each Swap Counterparty to advance any funds under any Swap Contract, and payment and satisfaction in full of all Indebtedness; (ii) constituting a release, transfer or sale of a lien or Loan collateral if Borrower will certify to Administrative Agent that the release, transfer or sale is permitted under this Agreement or the other Loan Documents (and Administrative Agent may rely conclusively on any such certificate, without further inquiry); or (iii) after foreclosure or other acquisition of title (1) in the discretion of Administrative Agent if a purchase price of at least ninety percent (90%) of the value indicated in the most recent appraisal of the collateral obtained by Administrative Agent and made in accordance with regulations governing Administrative Agent, less any reduction indicated in the Appraised Value estimated by any experts in the applicable areas engaged by Administrative Agent; or (2) if approved by the Required Lenders. (b) If all or any portion of the Loan collateral is acquired by foreclosure or by deed (or assignment) in lieu of foreclosure, Administrative Agent shall take title to the collateral in its name or by an Affiliate of Administrative Agent, but for the benefit of all Lenders in their Pro Rata Shares on the date of the foreclosure sale or recordation of the deed (or assignment) in lieu of foreclosure (the “Acquisition Date”). Administrative Agent and all Lenders hereby expressly waive and relinquish any right of partition with respect to any collateral so acquired. After any collateral is acquired, Administrative Agent shall appoint and retain one or more Persons (individually and collectively, the “OREO Property Manager”) experienced in the management, leasing, sale and/or disposition of similar properties. As of the Acquisition Date, the insurance policies referred to in Section 4.7 (including unearned premiums) and all proceeds payable thereunder shall vest in Administrative Agent for the benefit of all Lenders in their Pro Rata Shares, to the extent permissible under such policies. (c) After consulting with the OREO Property Manager, Administrative Agent shall prepare a written plan for operation, management, improvement, maintenance, repair, sale and disposition of the Loan collateral and a budget for the aforesaid, which may include a reasonable management fee payable to Administrative Agent (the “Business Plan”). Administrative Agent will deliver the Business Plan not later than the sixtieth (60th) day after the Acquisition Date to each Lender with a written request for approval of
PAGE 54 the Business Plan. If the Business Plan is approved by the Required Lenders, Administrative Agent and the OREO Property Manager shall adhere to the Business Plan until a different Business Plan is approved by the Required Lenders. Administrative Agent may propose an amendment to the Business Plan as it deems appropriate, which shall also be subject to Required Lender approval. If the Business Plan (as may be amended) proposed by Administrative Agent is not approved by the Required Lenders, or if sixty (60) days have elapsed following the Acquisition Date without a Business Plan being proposed by Administrative Agent, any Lender may propose an alternative Business Plan, which Administrative Agent shall submit to all Lenders for their approval. If an alternative Business Plan is approved by the Required Lenders, Administrative Agent may appoint one of the approving Lenders to implement the alternative Business Plan. Notwithstanding any other provision of this Agreement, unless in violation of an approved Business Plan or otherwise in an emergency situation, Administrative Agent shall, subject to Section 8.10(a), have the right but not the obligation to take any action in connection with the Loan collateral (including those with respect to all Real Property Taxes, Insurance Premiums, operation, management, improvement, maintenance, repair, sale and disposition), or any portion thereof. (d) Upon request by Administrative Agent or Borrower at any time, Lenders will confirm in writing Administrative Agent’s authority to sell, transfer or release any such liens of particular types or items of Loan collateral pursuant to this Section 8.10; provided, however, that (i) Administrative Agent shall not be required to execute any document necessary to evidence such release, transfer or sale on terms that, in Administrative Agent’s opinion, would expose Administrative Agent to liability or create any obligation or entail any consequence other than the transfer, release or sale without recourse, representation or warranty, and (ii) such transfer, release or sale shall not in any manner discharge, affect or impair the obligations of Borrower other than those expressly being released. (e) If only two (2) Lenders exist at the time Administrative Agent receives a purchase offer for Loan collateral, the consent of the Required Lenders is required pursuant to Section 8.10(a), and one of the Lenders does not consent within ten (10) Business Days after notification from Administrative Agent, the consenting Lender may, in writing to the other Lender, offer (“Purchase Offer”) to purchase all of the non-consenting Lender’s right, title and interest in such collateral for a purchase price equal to the non- consenting Lender’s Pro Rata Share of the net proceeds anticipated from such sale of such collateral (as reasonably determined by Administrative Agent, including the undiscounted face principal amount of any purchase money obligation not payable at closing) (“Net Disposition Proceeds”). Within ten (10) Business Days thereafter the non-consenting Lender shall be deemed to have accepted such Purchase Offer unless the non-consenting Lender notifies Administrative Agent that it elects to purchase all of the consenting Lender’s right, title and interest in such collateral for a purchase price payable by the non-consenting Lender in an amount equal to the consenting Lender’s Pro Rata Share of the Net Disposition Proceeds. Any amount payable hereunder by a Lender shall be due on the earlier to occur of the closing of the sale of such collateral or ninety (90) days after receipt by the non-consenting Lender of the Purchase Offer, regardless of whether such collateral is sold. 8.11 Application of Payments. Except as otherwise provided below with respect to Defaulting Lenders, aggregate principal and interest payments, payments for Indemnified Liabilities and/or foreclosure or sale of the collateral, and net operating income from the collateral during any period it is owned by Administrative Agent on behalf of Lenders (“Payments”) shall be apportioned pro rata among Lenders and payments of any fees (other than fees designated for Administrative Agent’s separate account) shall, as applicable, be apportioned pro rata among Lenders. All pro rata Payments shall be remitted to Administrative Agent and, except as otherwise provided below with respect to Excluded Swap Obligations, all such payments not constituting payment of specific fees, and all proceeds of the Property received by Administrative Agent, shall be applied first, to pay any fees, indemnities, actual costs, out-of-pocket expenses (including those in Section 8.7) and reimbursements then due to Administrative Agent from Borrower (including any of the foregoing constituting Administrative Agent Advances, together with
PAGE 55 interest thereon); second, to pay any fees, actual costs, out-of-pocket expenses and reimbursements then due to Lenders from Borrower (including any of the foregoing constituting Administrative Agent Advances, together with interest thereon, reimbursed by Lenders); third, to pay (on a pari passu basis) pro rata interest and late charges due in respect of the Indebtedness and regularly occurring payments under any Swap Contract; fourth, to pay (on a pari passu basis) or prepay pro rata principal of the Indebtedness and “Settlement Amounts” or “Close-Out Amounts”, and similar payments, as applicable, payable by Borrower under Swap Transactions; and last, to Borrower, if required by Law, or Lenders in Pro Rata Share percentages equal to their percentages at the termination of the Aggregate Commitments. Notwithstanding anything to the contrary in this Agreement, obligations arising under Swap Contracts shall be excluded from the application described above in this Section 8.11 if Administrative Agent has not received a Secured Party Designation Notice, together with such supporting documentation as Administrative Agent may request, from the applicable Hedge Bank (other than Administrative Agent or an Affiliate of Administrative Agent). Each Hedge Bank not a party to this Agreement that has given the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of Administrative Agent pursuant to the terms of this Article VIII for itself and its Affiliates as if a “Lender” party hereto. 8.12 Administrative Agent Advances. (a) Administrative Agent is authorized, from time to time, in Administrative Agent’s sole discretion to make, authorize or determine advances, or otherwise expend funds, on behalf of Lenders (“Administrative Agent Advances”), (i) to pay any actual costs, fees and out-of-pocket expenses as described in Section 9.10, (ii) when the applicable conditions precedent set forth in Exhibit C have been satisfied to the extent required by Administrative Agent, and (iii) when Administrative Agent deems necessary or desirable to preserve or protect the Property or any portion thereof (including those with respect to Real Property Taxes, Common Charges, Insurance Premiums, operation, management, improvements, maintenance, repair, sale and disposition) (A) subject to Section 8.5, after the occurrence of an Event of Default, and (B) subject to Section 8.10, after acquisition of all or a portion of the Property by foreclosure or otherwise. (b) Administrative Agent Advances shall constitute obligatory advances of Lenders under this Agreement, shall be repayable on demand and secured by the Property, and if unpaid by Lenders as set forth below, shall bear interest at the rate applicable to such amount under the Loan or if no longer applicable, at the Base Rate. Administrative Agent shall notify each Lender in writing of each Administrative Agent Advance. Upon receipt of notice from Administrative Agent of its making of an Administrative Agent Advance, each Lender shall make the amount of such Lender’s Pro Rata Share of the outstanding principal amount of the Administrative Agent Advance available to Administrative Agent, in same day funds, to such account of Administrative Agent as Administrative Agent may designate, (i) on or before 3:00 p.m. (Administrative Agent’s Time) on the day Administrative Agent provides Lenders with notice of the making of such Administrative Agent Advance if Administrative Agent provides such notice on or before 12:00 p.m. (Administrative Agent’s Time), or (ii) on or before 12:00 p.m. (Administrative Agent’s Time) on the Business Day immediately following the day Administrative Agent provides Lenders with notice of the making of such Administrative Agent Advance if Administrative Agent provides notice after 12:00 p.m. (Administrative Agent’s Time). 8.13 Defaulting Lender. 8.13.1 Adjustments. Notwithstanding anything to the contrary contained in this 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:
PAGE 56 (a) Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of “Required Lenders” and Section 9.8. (b) Any payment of principal, interest, fees or other amounts received by Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 7 or otherwise) or received by Administrative Agent from a Defaulting Lender pursuant to Section 9.6 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 such Defaulting Lender to Administrative Agent hereunder; second, as Borrower may request (so long as no monetary or material non-monetary Default or any Event of Default exists), to the funding of any advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by Administrative Agent; third, if so determined by Administrative Agent and Borrower, to be held in a deposit account and released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations with respect to advances under this Agreement; fourth, to the payment of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifth, so long as no Event of Default exists, to the payment of any amounts owing to Borrower as a result of any judgment of a court of competent jurisdiction obtained by Borrower against such Defaulting Lender as a result of such Defaulting Lender's breach of its obligations under this Agreement; and sixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any advances in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such advances were made at a time when the conditions for same, if any, were satisfied or waived, such payment shall be applied solely to pay the advances of all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any advances of such Defaulting Lender until such time as all advances are held by the Lenders pro rata in accordance with the Commitments hereunder. 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 shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto. 8.13.2 Defaulting Lender Cure. If Borrower and Administrative Agent agree in writing that a Lender is no longer 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, that Lender will, to the extent applicable, purchase at par that portion of outstanding advances of the other Lenders or take such other actions as Administrative Agent may determine to be necessary to cause the Commitments (and outstanding principal balance of all advances) to be held on a pro rata basis by the Lenders in accordance with their Pro Rata Shares, whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. 8.14 Lender ERISA Representation and Warranty. Each Lender represents and warrants as of the date hereof to Administrative Agent and Arranger and their respective Affiliates, and not, for the avoidance of doubt, for the benefit of Borrower or any Guarantor, that (a) such Lender is not and will not be (i) an “employee benefit plan,” as defined in Section 3(3) of ERISA or (ii) a “plan” within the meaning of Section 4975(e) of the Code; (b) the assets of such Lender do not and will not constitute “plan assets” within the meaning of the United States Department of Labor Regulations set forth in 29 C.F.R. §2510.3- 101, as modified by Section 3(42) of ERISA; (c) such Lender is not and will not be a “governmental plan” within the meaning of Section 3(32) of ERISA; and (d) transactions by or with such Lender are not and will
PAGE 57 not be subject to federal, state or local statutes applicable to such Lender regulating investments of fiduciaries with respect to governmental plans. 8.15 Benefit. The terms and conditions of this Article are inserted for the sole benefit of Administrative Agent and Lenders; the same may be waived in whole or in part, with or without terms or conditions, without prejudicing Administrative Agent’s or Lenders’ rights to later assert them in whole or in part. 8.16 Co-Agents; Lead Managers. None of the Lenders or other Persons identified on the facing page or signature pages of this Agreement as a “syndication agent,” “documentation agent,” “co-agent,” “bookrunner,” or “lead manager,” “arranger,” “lead arranger” or “co-arranger” shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than, in the case of such lenders, those applicable to all Lenders as such. Without limiting the foregoing, none of the Lenders or other Persons so identified as a “syndication agent,” “documentation agent,” “co-agent” or “lead manager” shall have or be deemed to have any fiduciary relationship with any Lenders. Each Lender acknowledges that it has not relied, and will not rely, on any of Lenders or other Persons so identified in deciding to enter into this Agreement or in taking or not taking action hereunder. 8.17 Lender Participation in Swap Transactions. If Borrower enters into any Swap Transaction and Swap Contract with one or more Lenders, such Lender(s) shall notify each other then-existing Lender of the terms of each such Swap Transaction and each then-existing Lender (other than a Defaulting Lender) shall have the right in its sole discretion to participate in each such Swap Transaction pro rata according to such Lender’s Pro Rata Share of the amount of the applicable Swap Transaction. All such participation interests shall be governed pursuant to separate documentation. 8.18 Swap Contracts. Except as otherwise expressly set forth herein, no Hedge Bank that obtains the benefit of the provisions of Section 8.11 or any Property by virtue of the provisions hereof or any Loan Document shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the Property (including the release or impairment of any Property) (or to notice of or to consent to any amendment, waiver or modification of the provisions hereof or any Loan Document) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding any other provision of this Article VIII to the contrary, Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations arising under Swap Contracts except to the extent expressly provided herein and unless Administrative Agent has received a Secured Party Designation Notice with respect to the related Swap Obligations, together with such supporting documentation as Administrative Agent may request, from the applicable Hedge Bank. Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations arising under Swap Contracts. 8.19 Recovery of Erroneous Payments. Without limitation of any other provision in this Agreement, if at any time Administrative Agent makes a payment hereunder in error to any Lender (the “Credit Party”), whether or not in respect of an Obligation due and owing by Borrower at such time, where such payment is a Rescindable Amount, then in any such event, each Credit Party receiving a Rescindable Amount severally agrees to repay to Administrative Agent forthwith on demand the Rescindable Amount received by such Credit Party in immediately available funds in the currency so received, with interest thereon, for each day from and including the date such Rescindable Amount is received by it to but excluding the date of payment to Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by Administrative Agent in accordance with banking industry rules on interbank compensation. Each Credit Party irrevocably waives any and all defenses, including any “discharge for value” (under which a creditor might otherwise claim a right to retain funds mistakenly paid by a third party in respect of
PAGE 58 a debt owed by another) or similar defense to its obligation to return any Rescindable Amount. Administrative Agent shall inform each Credit Party promptly upon determining that any payment made to such Credit Party comprised, in whole or in part, a Rescindable Amount. ARTICLE 9 — GENERAL TERMS AND CONDITIONS 9.1 Consents; Indemnification by Borrower. 9.1.1 Consents. Except where otherwise expressly provided in the Loan Documents, in any instance where the approval, consent or the exercise of Administrative Agent’s or Lenders’ judgment is required under any Loan Document, the granting or denial of such approval or consent and the exercise of such judgment shall be (a) within the sole discretion of Administrative Agent or Lenders, (b) deemed to have been given only by a specific writing intended for the purpose given and executed by Administrative Agent or Lenders, and (c) free from any limitation or requirement of reasonableness. Notwithstanding any approvals or consents by Administrative Agent or Lenders, neither Administrative Agent nor any Lender has any obligation or responsibility whatsoever for the adequacy, form or content of any appraisal, environmental, engineering, property condition or other inspection, audit, report or assessment, any contract, any change order, any lease, or any other matter incident to the Property. Any appraisal, inspection, audit, report or assessment of the Property or the books and records of Borrower or Guarantor, or the procuring of documents and financial and other information, by or on behalf of Administrative Agent shall be for Administrative Agent’s and Lenders’ protection only, and shall not constitute an assumption of responsibility to Borrower or anyone else with regard to the condition, value, construction, maintenance or operation of the Property, or relieve Borrower or Guarantor of any of its obligations. 9.1.2 Indemnification by Borrower. Borrower shall indemnify Administrative Agent (and any sub-agent thereof), 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 (a) any claim, action, loss or cost (including reasonable attorneys’ fees and costs) arising from or relating to (i) the Leases, the Property, the Improvements and the other Property, including any defect therein, (ii) the Cash Collateral Account and all other accounts of Borrower or the Property, (iii) the performance or default of Borrower, Borrower’s surveyors, architects, engineers, contractors, the construction inspector, or any other Person, (iv) any failure to construct, complete, protect or insure any Improvements, including Tenant Improvements, (v) the payment of costs of labor, materials, or services supplied for the construction of any Improvements, including Tenant Improvements, (vi) the protection, preservation, operation, management, improvement, maintenance, repair, sale and disposition of the Property and other Property (including those with respect to Real Property Taxes, Insurance Premiums, and leasing costs and broker fees) or (vii) the performance of any obligation of Borrower whatsoever; (b) any and all losses, claims, damages, liabilities and related actual out-of-pocket expenses (including the fees, charges and disbursements of any counsel for any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any Person (including Borrower or Guarantor) arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder, the consummation of the transactions contemplated hereby or thereby, or, in the case of Administrative Agent (and any sub agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents (including in respect of any matters addressed in Section 2.1), (ii) any Commitment or advance of the Loan, (iii) the content or accuracy of any appraisal provided by Administrative Agent to Borrower, Borrower’s use of any such appraisal, and/or subsequent use of any such appraisal by any third party to whom Borrower provides such appraisal, 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 (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding, whether it is defeated, successful, or withdrawn), whether brought
PAGE 59 by a third party or by Borrower or Guarantor, and regardless of whether any Indemnitee is a party thereto, including all actual costs and out-of-pocket expenses incurred by any Indemnitee in connection with any subpoena, deposition or otherwise acting as a witness (all of the foregoing, collectively, the “Indemnified Liabilities”); provided that such indemnity shall not, as to any Indemnitee, be available (i) to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and non-appealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee; (ii) to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements result from a claim not involving an act or omission of Borrower and that is brought by an Indemnitee against another Indemnitee (other than against the arranger or Administrative Agent in their capacities as such) or (iii) with respect to any Indemnified Liabilities first occurring or arising after the Release Date (as defined in the Mortgage); provided, that if any payment, performance, release, foreclosure, conveyance or receivership is challenged, in bankruptcy proceedings or otherwise, the Release Date shall be deemed not to have occurred until such challenge is rejected, dismissed or withdrawn with prejudice; and provided, further, that the indemnities in this Section, to the extent applicable to the period prior to the Release Date, shall not terminate upon the Release Date or upon the release, foreclosure or other termination of the Mortgage but will survive the Release Date, foreclosure of the Mortgage or conveyance in lieu of foreclosure, the repayment of the Obligations, the termination of any and all Swap Contracts, the discharge and release of this Mortgage and the other Loan Documents, any bankruptcy or other debtor relief proceeding, and any other event whatsoever. Without limiting the provisions of Section 2.1(b), this Section shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim. Inspection shall not constitute an acknowledgement or representation by Administrative Agent, any Lender or any construction inspector that there has been or will be compliance with the Plans and Specifications, the Loan Documents, or Applicable Laws, governmental requirements or restrictive covenants, or that the construction is free from defective materials or workmanship. Inspection shall not constitute an acknowledgement or representation by Administrative Agent, any Lender or any construction inspector that there has been or will be compliance with the Plans and Specifications, the Loan Documents, or Applicable Laws, governmental requirements or restrictive covenants, or that the construction is free from defective materials or workmanship. Inspection, whether or not followed by notice of Default, shall not constitute a waiver of any Default or Event of Default then existing, or a waiver of Administrative Agent’s and Lenders’ right thereafter to insist that the Improvements be constructed in accordance with the Plans and Specifications, the Loan Documents, and all Applicable Laws, governmental requirements and restrictive covenants. Administrative Agent’s failure to inspect shall not constitute a waiver of any of Administrative Agent’s or Lenders’ rights under the Loan Documents or at Law or in equity. All payments on account of the Indemnified Liabilities shall be due and payable ten (10) days after demand by Administrative Agent therefor. The indemnities in this Subsection shall not terminate upon the release, foreclosure or other termination of the Mortgage but will survive the release, foreclosure of the Mortgage or conveyance in lieu of foreclosure, the repayment of the Indebtedness, the discharge and release of the Mortgage and the other Loan Documents, any proceeding under any Debtor Relief Law, and any other event whatsoever. 9.2 Miscellaneous. 9.2.1 Integration; Effectiveness. This Agreement, the other Loan Documents, and any separate letter agreements with respect to fees payable to 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. Except as provided in Exhibit C, this Agreement shall become effective when it shall have been executed by Administrative Agent and when Administrative Agent shall have received counterparts hereof that, 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.
PAGE 60 9.2.2 Electronic Signatures. This Agreement and any document, amendment, approval, consent, information, notice, certificate, request, statement, disclosure or authorization related to this Agreement (each a “Communication”), including Communications required to be in writing, may, if agreed by Administrative Agent, be in the form of an Electronic Record and may be executed using Electronic Signatures, including, without limitation, .pdf. Borrower agrees that any Electronic Signature (including, without limitation, .pdf) on or associated with any Communication shall be valid and binding on Borrower to the same extent as a manual, original signature, and that any Communication entered into by Electronic Signature, will constitute the legal, valid and binding obligation of Borrower enforceable against Borrower in accordance with the terms thereof to the same extent as if a manually executed original signature was delivered. Any Communication may be executed in as many counterparts as necessary or convenient, including both paper and electronic counterparts, but all such counterparts are one and the same Communication. For the avoidance of doubt, the authorization under this Section may include use or acceptance by Administrative Agent and each of the Lenders of a manually signed paper Communication which has been converted into electronic form (such as scanned into PDF format), or an electronically signed Communication converted into another format, for transmission, delivery and/or retention. Administrative Agent and each of the Lenders may, at its option, create one or more copies of any Communication in the form of an imaged Electronic Record (“Electronic Copy”), which shall be deemed created in the ordinary course of such Person’s business, and destroy the original paper document. All Communications in the form of an Electronic Record, including an Electronic Copy, shall be considered an original for all purposes, and shall have the same legal effect, validity and enforceability as a paper record. Notwithstanding anything contained herein to the contrary, Administrative Agent is under no obligation to accept an Electronic Signature in any form or in any format unless expressly agreed to by Administrative Agent pursuant to procedures approved by it; provided, further, without limiting the foregoing, (a) to the extent Administrative Agent has agreed to accept such Electronic Signature, Administrative Agent and each of the Lenders shall be entitled to rely on any such Electronic Signature purportedly given by or on behalf of Borrower or any Guarantor without further verification and regardless of the appearance or form of such Electronic Signature and (b) upon the request of Administrative Agent or any Lender, any Communication executed using an Electronic Signature shall be promptly followed by a manually executed, original counterpart. For purposes hereof, “Electronic Record” and “Electronic Signature” shall have the meanings assigned to them, respectively, by 15 USC §7006, as it may be amended from time to time. 9.2.3 Severability. A determination that any provision of this Agreement or any other Loan Document is unenforceable or invalid shall not affect the enforceability or validity of any other provision and the determination that the application of any provision of this Agreement to any Person or circumstance is illegal or unenforceable shall not affect the enforceability or validity of such provision as it may apply to other Persons or circumstances. The parties shall endeavor in good faith negotiations to replace the unenforceable or invalid provisions with valid provisions the economic effect of which comes as close as possible to that of the unenforceable or invalid provisions. The unenforceability or invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions of this Section, if and to the extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by Administrative Agent, then such provisions shall be deemed to be in effect only to the extent not so limited. 9.2.4 Time of the Essence. Time shall be of the essence with respect to Borrower’s obligations under the Loan Documents.
PAGE 61 9.2.5 Governing Law. This Agreement and each other Loan Document (except to the extent expressly set forth therein), and their respective validity, enforcement and interpretation, shall be governed by the Laws of the Commonwealth of Virginia (without regard to any conflict of Laws principles) and applicable United States federal Law. 9.2.6 Electronic Delivery. (a) Documents required to be delivered pursuant to Sections 4.16 and 4.20 and Exhibit B and Exhibit J (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically (including by use of the Platform, the Online Banking Portal, or such other delivery method as may be approved by Administrative Agent) and if so delivered, shall be deemed to have been delivered on the date (i) on which Borrower posts such documents, uploads such documents on the Platform, the Online Banking Portal, or such other delivery method as may be approved by Administrative Agent; or (ii) 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); provided that: (A) Borrower shall deliver paper copies of such documents to Administrative Agent or any Lender upon its request to Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by Administrative Agent or such Lender and (B) Borrower shall notify Administrative Agent and each Lender (by electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. 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. (b) Borrower hereby acknowledges that (i) Administrative Agent and/or Arranger may, but shall not be obligated to, make available to the Lenders materials and/or information provided by or on behalf of Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on Debt Domain, IntraLinks, SyndTrak or another similar electronic system (the “Platform”) and (ii) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non- public information with respect to Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Person’s securities. Borrower hereby agrees that so long as Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (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; (A) by marking Borrower Materials “PUBLIC,” Borrower shall be deemed to have authorized Administrative Agent, Arranger and Lenders to treat such Borrower Materials as not containing any material non-public information with respect to Borrower or its securities for purposes of United States Federal and state securities Laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.5); (B) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information,” and (C) Administrative Agent and Arranger 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.” Notwithstanding the foregoing, Borrower shall be under no obligation to mark any Borrower Materials “PUBLIC.” 9.2.7 Notices; Electronic Communication. (a) Notices Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in clause (b) below), all notices and other
PAGE 62 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 electronic mail as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows: (i) to the address, electronic mail address or telephone number specified for notices as follows (unless changed by similar notice in writing given by the particular party whose address is to be changed): (1) if to Borrower at the addresses set forth on the signature page of this Agreement, (2) if to any Guarantor at the addresses set forth on the signature page of the Guaranty, (3) or if to Administrative Agent to the addresses set forth on the Schedule of Lenders; (ii) if to any other Lender, to the address, electronic mail address or telephone number specified in its Administrative Questionnaire (including, as appropriate, notices delivered solely to the Person designated by a Lender on its Administrative Questionnaire then in effect for the delivery of notices that may contain material non-public information relating to Borrower); Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; provided, however, that service of a notice required by any applicable statute shall be considered complete when the requirements of that statute are met. Notices and other communications delivered through electronic communications to the extent provided in sub clause (b) below, shall be effective as provided in such clause (b). (b) Electronic Communications. Notices and other communications to Lenders hereunder may be delivered or furnished by electronic communication (including e-mail, and Internet or intranet websites) pursuant to procedures approved by Administrative Agent. Administrative Agent or Borrower may each, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications. Unless Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (i) and (ii), if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice, email or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient. (c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM,
PAGE 63 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, 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, any Guarantor’s or Administrative Agent’s transmission of Borrower Materials or notices through the Platform, any other electronic platform or electronic messaging service, or through the Internet. (d) Change of Address, Etc. Each of Borrower or Administrative Agent may change its address or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address or telephone number for notices and other communications hereunder by notice to Borrower and Administrative Agent. In addition, each Lender agrees to notify Administrative Agent from time to time to ensure that Administrative Agent has on record (i) an effective address, contact name, telephone number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender agrees to cause at least one 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 Applicable Law, 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 securities for purposes of United States Federal or state securities laws. (e) Reliance by Administrative Agent and Lenders. Administrative Agent and Lenders shall be entitled to rely and act upon any notices (including telephonic notices, any notices received by Administrative Agent given through the Online Banking Portal, and Draw Requests) purportedly given by or on behalf of Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. Borrower and Guarantor shall indemnify Administrative Agent, each Lender and the Related Parties of each of them from all losses, actual costs, out-of-pocket expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of Borrower. All telephonic notices to and other telephonic communications with Administrative Agent may be recorded by Administrative Agent, and each of the parties hereto hereby consents to such recording. If a Lender does not notify or inform Administrative Agent of whether or not it consents to, or approves of, or agrees to any matter of any nature whatsoever with respect to which its consent, approval or agreement is required under the express provisions of this Agreement or with respect to which its consent, approval or agreement is otherwise requested by Administrative Agent, in connection with the Loan or any matter pertaining to the Loan, within ten (10) Business Days (or such longer period as may be specified by Administrative Agent) after such consent, approval or agreement is requested by Administrative Agent, Lender shall be deemed to have given its consent, approval or agreement, as the case may be, with respect to the matter in question. 9.3 Payments Set Aside. To the extent that any payment by or on behalf of Borrower is made to Administrative Agent or any Lender, or Administrative Agent or any Lender exercises any right of set- off, and such payment or the proceeds of such set-off or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by Administrative Agent or such Lender in its discretion) to be repaid to a trustee, receiver or any other
PAGE 64 party, in connection with any proceeding under any Debtor Relief Law, to a depository (including Administrative Agent, any Lender or its or their Affiliates) for returned items or insufficient collected funds, or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such set-off had not occurred, and (b) each Lender severally agrees to pay to Administrative Agent upon demand its applicable share of any amount so recovered from or repaid by Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect. 9.4 Successors and Assigns. (a) Successors and Assigns Generally. Subject to Section 8.13, the provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that neither Borrower nor any Guarantor may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of Administrative Agent and each Lender, and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of Section 9.4(b), (ii) by way of participation in accordance with the provisions of Section 9.4(d), or (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 9.4(e) (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent permitted in Section 9.4(d) and, to the extent expressly contemplated hereby, the Related Parties of each of Administrative Agent and Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement. (b) Assignments by Lenders. Any Lender may assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and Pro Rata Share of the Loan at the time owing to it); provided that any such assignment shall be subject to the following conditions: (i) Minimum Amounts. (A) in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and Pro Rata Share of the Loan at the time owing to it or contemporaneous assignments to related Approved Funds that equal at least the amount specified in Section 9.4(b)(i)(B) in the aggregate or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and (B) in any case not described in Section 9.4(b)(i)(A), the aggregate amount of the Commitment (which for this purpose includes the Pro Rata Share of the Loan outstanding) or, if the Commitment is not then in effect, the principal outstanding Pro Rata Share of the Loan that is subject to each such assignment, determined as of the “Effective Date” specified in the Assignment and Assumption, shall not be less than $5,000,000 unless each of Administrative Agent and, so long as no Event of Default has occurred and is continuing, Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed). (ii) Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to its Pro Rata Share of the Loan and the Commitment assigned.
PAGE 65 (iii) Required Consents. No consent shall be required for any assignment except to the extent required by Section 9.4(b)(i)(B) and, in addition: (A) the consent of Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of Default has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; provided that Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to Administrative Agent within five (5) Business Days after having received notice thereof; and (B) the consent of Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required if such assignment is to a Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender. (iv) Assignment and Assumption. The parties to each assignment shall execute and deliver to Administrative Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500.00; provided, however, that Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to Administrative Agent an Administrative Questionnaire. (v) No Assignment to Certain Persons. No such assignment shall be made (A) to Borrower, Guarantor or any other Person liable for any part of the Obligations or any Affiliate or subsidiary of the foregoing, (B) to any Defaulting Lender or any of its subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B), or (C) to a natural Person. (vi) Certain Additional Payments. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of Borrower and Administrative Agent, the applicable Pro Rata Share of the Loan previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full Pro Rata Share of the Loan. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable Law without compliance with the provisions of this Section 9.4(b), then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs. Subject to acceptance and recording thereof by Administrative Agent pursuant to Section 9.4(c), from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of this Agreement with respect to Borrower’s
PAGE 66 obligations surviving termination of this Agreement); provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Upon request by Administrative Agent, Borrower (at its expense) shall execute and deliver substitute Note(s) to Administrative Agent for the assignee, and, for partial assignments, the assignor in replacement of the assignor’s then-existing Note (each, a “Replacement Note”). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 9.4(b) shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 9.4(d). (c) Register. Administrative Agent, acting solely for this purpose as an agent of Borrower (and such agency being solely for tax purposes), shall maintain at Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it (or the equivalent thereof in electronic form) and a register for the recordation of the names and addresses of Lenders, and the Commitments of, and the principal amount (and stated interest) of each Lender’s Pro Rata Share of the Loan 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 Borrower, Administrative Agent and Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior written notice. (d) Participations. Any Lender may at any time, without the consent of, or notice to, Borrower or Administrative Agent, sell participations to any Person (other than a natural Person, a Defaulting Lender, Borrower, Guarantor or any Affiliate or subsidiary of Borrower or Guarantor) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or its Pro Rata Share of the Loan 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, (iii) Borrower, Administrative Agent and Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the reimbursement obligations under Section 8.7 without regard to the existence of any participation. 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, waiver or other modification described in the second proviso of Section 9.8 that affects such Participant. Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.1 and 2.5 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 9.4(b) (it being understood that the documentation required under Section 2.1(e) shall be delivered to the Lender who sells the participation) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 9.4(b); provided that such Participant (A) agrees to be subject to the provisions of Sections 2.7 and 9.11 as if it were an assignee under Section 9.4(b) and (B) shall not be entitled to receive any greater payment under Section 2.1 or 2.5, with respect to any participation, than the Lender from whom it acquired the applicable participation would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at Borrower’s written request and expense, to use reasonable efforts to cooperate with Borrower to effectuate the provisions of Section 2.7 with respect to any Participant. To the extent permitted by Law, each Participant also shall be entitled to the benefits of Section 9.6 as though it were a Lender; provided that such Participant agrees to be subject to Section 9.7 as though it were a Lender. Each Lender that sells a participation shall, acting
PAGE 67 solely for this purpose as an agent of Borrower, maintain a register on which it enters the name and address of each Participant and the principal amount (and stated interest) of each Participant’s interest in the Loan or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (e) Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. 9.5 Treatment of Certain Information; Confidentiality. Administrative Agent and each Lender agrees to maintain the confidentiality of the Information (defined below), except that Information may be disclosed (a) to its Affiliates, its auditors and its Related Parties (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent required or requested by any regulatory authority purporting to have jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable Laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any suit, action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights and obligations under this Agreement or (ii) any actual or prospective party (or its Related Parties) to any Swap Transaction under which payments are to be made by reference to Borrower or any Guarantor and their respective obligations, this Agreement or payments hereunder, (g) on a confidential basis to (i) any rating agency in connection with rating Borrower or any Guarantor or the Loan provided hereunder or (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers or other market identifiers with respect to the Loan provided hereunder, (h) with the consent of Borrower or (i) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to Administrative Agent or any Lender or any of their respective Affiliates on a nonconfidential basis from a source other than Borrower. In addition, Administrative Agent and the Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry and service providers to Administrative Agent and the Lenders in connection with the administration of this Agreement, the other Loan Documents, and the Commitments. For purposes of this Section, “Information” means all information received from Borrower or any Guarantor relating to Borrower or any Guarantor or any of their respective businesses, other than any such information that is available to Administrative Agent or any Lender on a nonconfidential basis prior to disclosure by Borrower or any Guarantor, provided that, in the case of information received from Borrower or any Guarantor 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
PAGE 68 shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such information as such Person would accord to its own confidential information. Each of Administrative Agent and the Lenders acknowledges that (a) the Information may include material non-public information concerning Borrower or a Guarantor, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in accordance with applicable Law, including United States Federal and state securities Laws. 9.6 Set-off. In addition to any rights and remedies of Administrative Agent and Lenders provided by Law, upon the occurrence and during the continuance of any Event of Default, Administrative Agent and, with the prior written consent of Administrative Agent, each Lender, is authorized at any time and from time to time, without prior notice to Borrower or any other party to the Loan Documents, any such notice being waived by Borrower (on its own behalf and on behalf of each party to the Loan Documents to the fullest extent permitted by Law), to set-off and apply any and all deposits, general or special, time or demand, provisional or final, any time owing by Administrative Agent or Lenders hereunder or under any other Loan Document to or for the credit or the account of such parties to the Loan Documents against any and all Indebtedness, irrespective of whether or not Administrative Agent or Lenders shall have made demand under this Agreement or any other Loan Document and although such Indebtedness may be contingent or unmatured or denominated in a currency different from that of the applicable depositor indebtedness. Each Lender agrees promptly to notify Borrower and Administrative Agent after any such set-off and application made by such Lender; provided, however, that the failure to give such notice shall not affect the validity of such set-off and application. 9.7 Sharing of Payments. If, other than as expressly provided elsewhere herein, any Lender shall obtain on account of the portions of the Loan advanced by it, any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) in excess of its ratable share (or other share contemplated hereunder) thereof, such Lender shall immediately (a) notify Administrative Agent of such fact, and (b) purchase from the other Lenders such participations in the portions of the Loan made by them as shall be necessary to cause such purchasing Lender to share the excess payment in respect of such portions of the Loan or such participations, as the case may be, pro rata with each of them; provided, however, that if all or any portion of such excess payment is thereafter recovered from the purchasing Lender, such purchase shall to that extent be rescinded and each other Lender shall repay to the purchasing Lender the purchase price paid therefor, together with an amount equal to such paying Lender’s ratable share (according to the proportion of (i) the amount of such paying Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered without further interest thereon. Borrower agrees that any Lender so purchasing a participation from another Lender may, to the fullest extent permitted by Law, exercise all of its rights of payment (including the right of set-off), but subject to Section 9.6 with respect to such participation as fully as if such Lender were the direct creditor of Borrower in the amount of such participation. Administrative Agent will keep records (which shall be conclusive and binding in the absence of manifest error) of participations purchased under this Section and will in each case notify Lenders following any such purchases or repayments. Each Lender that purchases a participation pursuant to this Section shall from and after such purchase have the right to give all notices, requests, demands, directions and other communications under this Agreement with respect to the portion of the Obligations purchased to the same extent as though the purchasing Lender were the original owner of the Obligations purchased. 9.8 Amendments; Survival. Administrative Agent and Lenders shall be entitled to amend (whether pursuant to a separate intercreditor agreement or otherwise) any of the terms, conditions or
PAGE 69 agreements set forth in Article 8 or as to any other matter in the Loan Documents respecting payments to Administrative Agent or Lenders or the required number of Lenders to approve or disapprove any matter or to take or refrain from taking any action, without the consent of Borrower or any other Person or the execution by Borrower or any other Person of any such amendment or intercreditor agreement. Subject to the foregoing, Administrative Agent may amend or waive any provision of this Agreement or any other Loan Document, or consent to any departure by any party to the Loan Documents therefrom which amendment, waiver or consent is intended to be within Administrative Agent’s discretion or determination, or otherwise in Administrative Agent’s reasonable determination shall not have a Material Adverse Effect; provided, however, that otherwise no such amendment, waiver or consent shall be effective unless in writing, signed by the Required Lenders and Borrower or the applicable party to the Loan Documents, as the case may be, and acknowledged by Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; and provided, further, that no such amendment, waiver or consent shall: (a) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 7.2), without the written consent of such Lender (it being understood that a waiver of an Event of Default shall not constitute an extension or increase in any Lender’s Commitment); (b) postpone any date fixed by this Agreement or any other Loan Document for any payment of principal, interest, fees or other amounts due to Lenders (or any of them) hereunder or under any other Loan Document, without the written consent of each Lender directly affected thereby; (c) reduce the principal of, or the rate of interest specified herein on, any portion of the Loan, or any fees or other amounts payable hereunder or under any other Loan Document, without the written consent of each Lender directly affected thereby; provided, however, that Administrative Agent may waive any obligation of Borrower to pay interest at the Default Rate and/or late charges for periods of up to thirty (30) days, and only the consent of the Required Lenders shall be necessary to waive any obligation of Borrower to pay interest at the Default Rate or late charges thereafter, or to amend the definition of “Default Rate” or “late charges”; (d) change the percentage of the combined Commitments or of the aggregate unpaid principal amount of the Loan which is required for the Lenders or any of them to take any action hereunder, without the written consent of each Lender; (e) change the definition of “Pro Rata Share” or “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender; (f) amend this Section 9.8, or Section 9.7, without the written consent of each Lender; (g) release the liability of Borrower or any existing Guarantor without the written consent of each Lender; (h) permit the sale, transfer, pledge, mortgage or assignment of any Loan collateral or any direct or indirect interest in Borrower, except as expressly permitted under the Loan Documents, without the written consent of each Lender; (i) transfer or release any lien on, or after foreclosure or other acquisition of title by Administrative Agent on behalf of the Lenders transfer or sell, any Loan collateral except as permitted in Section 8.10, without the prior written consent of each Lender;
PAGE 70 (j) change the definition of “Constellation Lease Cross Default”, or the waiver of any “Constellation Lease Cross Default”, in each case without the written consent of each Lender; or (k) permit Borrower to decrease the rent, or modify the term, the demised premises or the common area maintenance charges under the Constellation Lease, add or modify any option or right of first refusal to purchase all or any portion of the Property or any present or future interest therein, make any other material modification to the Constellation Lease, or replace, surrender, cancel or terminate the Constellation Lease, without the prior written consent of each Lender; provided, however, that only the consent of Administrative Agent shall be required for any sublease of any portion of the demised premises under the Constellation Lease so long as Constellation remains liable thereunder, and provided, further, that no amendment, waiver or consent shall, unless in writing and signed by Administrative Agent in addition to the Lenders required above, affect the rights or duties of Administrative Agent under this Agreement or any other Loan Document. 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 disproportionately adversely relative to other affected Lenders shall require the consent of such Defaulting Lender. This Agreement shall continue in full force and effect until the Indebtedness is paid in full and all of Administrative Agent’s and Lenders’ obligations under this Agreement are terminated; and all representations and warranties and all provisions herein for indemnity of the Indemnitees, Administrative Agent and Lenders (and any other provisions herein specified to survive) shall survive the resignation or removal of Administrative Agent, any assignment of rights by, or the replacement of, any Lender, the termination of the Commitments, the termination of this Agreement and the repayment, satisfaction or discharge of all other Obligations. 9.9 Several Obligations; No Liability; No Release. Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document, (a) the obligations of Lenders hereunder to make Loan advances and to make payments pursuant to Sections 8.7 and 8.12 are several and not joint and (b) such obligations are and shall remain the several, and not joint, obligations of Lenders despite that certain of the Loan Documents now or hereafter may have been or will be executed only by or in favor of Administrative Agent in its capacity as such, and not by or in favor of Lenders. The failure of any Lender to make any Loan advance or to make any payment under Section 8.7 or 8.12 on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan advance or to make its payment under Section 8.7 or 8.12. Except as may be specifically provided in this Agreement, no Lender shall have any liability for the acts of any other Lender. No Lender shall be responsible to Borrower or any other Person to take any action on behalf of another Lender hereunder or in connection with the financing contemplated herein. In furtherance of the foregoing, Lenders shall comply with their obligations under the Loan Documents, including the obligations to make payments pursuant to Sections 8.7 and 8.12 regardless of (i) the occurrence of any Event of Default hereunder or under any Loan Document; (ii) any failure of consideration, absence of consideration, misrepresentation, fraud, or any other event, failure, deficiency, breach or irregularity of any nature whatsoever in the Loan Documents; or (iii) any bankruptcy, insolvency or other like event with regard to Borrower or Guarantor. Such obligations of Lenders are in all regards independent of any claims between Administrative Agent and any Lender.
PAGE 71 9.10 Costs and Expenses. Without limiting any Loan Document and to the extent not prohibited by applicable Laws, Borrower shall pay when due, shall reimburse to Administrative Agent for the benefit of itself and Lenders on demand and shall indemnify Administrative Agent and Lenders from, all commercially reasonable out-of-pocket fees, actual costs, and expenses paid or incurred by Administrative Agent in connection with the negotiation, preparation and execution of this Agreement and the other Loan Documents (and any amendments, approvals, consents, waivers and releases requested, required, proposed or done from time to time), or in connection with the disbursement, administration or collection of the Loan or the enforcement of the obligations of Borrower or the exercise of any right or remedy of Administrative Agent, including (a) all reasonable fees and expenses of Administrative Agent’s counsel; (b) fees and charges of inspector and engineer engaged by Administrative Agent; (c) appraisal, re-appraisal and survey costs; (d) title insurance charges and premiums; (e) title search or examination costs, including abstracts, abstractors’ certificates and UCC searches; (f) judgment and tax lien searches for Borrower and each Guarantor; (g) escrow fees; (h) fees and costs of environmental investigations, site assessments and remediations; (i) recordation taxes, documentary taxes, transfer taxes and mortgage taxes; (j) filing and recording fees; and (k) loan brokerage fees. Borrower shall pay all costs and expenses incurred by Administrative Agent and Lenders, including reasonable attorneys’ fees, if the obligations or any part thereof are sought to be collected by or through an attorney at law, whether or not involving probate, appellate or administrative proceedings or proceedings under any Debtor Relief Law. Borrower shall pay all of its own costs and expenses of complying with the Loan Documents. Borrower’s obligations under this Section shall survive the delivery of the Loan Documents, the making of advances, the repayment, satisfaction or discharge of all other Obligations, the termination of the Commitments, the resignation or replacement of Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of this Agreement, the release or reconveyance of any of the Loan Documents, the foreclosure of the Mortgage or conveyance in lieu of foreclosure, any proceeding under any Debtor Relief Law, and any other event whatsoever. Borrower acknowledges that Administrative Agent may receive a benefit, including a discount, credit or other accommodation, from Administrative Agent’s counsel based on the fees such counsel may receive on account of such counsel’s relationship with Administrative Agent, including fees paid in connection with this Agreement and in no event shall Borrower be required to reimburse Administrative Agent for any sum greater than the amount actually paid (or due and owing) by Administrative Agent to such counsel. 9.11 Replacement of Lenders. If Borrower is entitled to replace a Lender pursuant to the provisions of Section 2.7, or if any Lender is a Defaulting Lender or a Non-Consenting Lender, then Borrower may, at its sole expense and effort, upon notice to such Lender and Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 9.4), all of its interests, rights (other than its existing rights to payments pursuant to Sections 2.1 and 2.5) and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that: (a) Borrower shall have paid to Administrative Agent the assignment fee (if any) specified in Section 9.4(b); (b) such Lender shall have received payment of any amount equal to the outstanding principal of its Loan advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents from the assignee (to the extent of such outstanding principal and accrued interest and fees) or Borrower (in the case of all other amounts); (c) in the case of any such assignment resulting from a claim for compensation under Section 2.5 or payments required to be made pursuant to Section 2.1, such assignment will result in a reduction in such compensation or payments thereafter;
PAGE 72 (d) such assignment does not conflict with applicable Laws; and (e) any assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the applicable amendment, waiver or consent. A Lender shall not be required to make any such assignment or delegation if, prior thereto, the circumstances entitling Borrower to require such assignment and delegation cease to apply. 9.12 Further Assurances. Borrower will, upon Administrative Agent’s request: (a) promptly correct any defect, error or omission in any Loan Document; (b) execute, acknowledge, deliver, procure, record or file such further instruments and do such further acts as Administrative Agent deems necessary, desirable or proper to carry out the purposes of the Loan Documents and to identify and subject to the liens and security interest of the Loan Documents any property intended to be covered thereby, including any renewals, additions, substitutions, replacements, or appurtenances to the Property; (c) execute, acknowledge, deliver, procure, file or record any document or instrument Administrative Agent deems necessary, desirable, or proper to protect the liens or the security interest under the Loan Documents against the rights or interests of third persons; and (d) provide such certificates, documents, reports, information, affidavits and other instruments and do such further acts deemed necessary, desirable or proper by Administrative Agent or any Lender to comply with the requirements of any Governmental Authority having jurisdiction over Administrative Agent or such Lender. In addition, at any time, and from time to time, upon request by Administrative Agent or any Lender, Borrower will, at Borrower’s expense, provide any and all further instruments, certificates and other documents as may, in the opinion of Administrative Agent or such Lender, be necessary or desirable in order to verify Borrower’s identity and background in a manner satisfactory to Administrative Agent or such Lender. As a material inducement to Administrative Agent and Lenders to enter into this Agreement, Borrower acknowledges and agrees that each of its Indemnification Agreements (as that term is defined below) (a) is a continuing, separate agreement that shall survive the termination of this Agreement, the payment and performance in full of the Indebtedness, the release or reconveyance of any of the Loan Documents, the foreclosure of the Mortgage or conveyance in lieu of foreclosure, any proceeding under any Debtor Relief Law, and any other event whatsoever, (b) shall not be merged with any judgment or judgments with respect to the Indebtedness, and (c) is subject to the limitations set forth in Section 9.1. The term “Indemnification Agreements” means the collective reference to each provision of this Agreement or any of the Loan Documents for indemnification of Administrative Agent and/or the Lenders, their respective parents, Affiliates and/or respective officers, directors, shareholders, employees, attorneys, other professionals, and agents and to each of the agreements of Borrower to pay or reimburse Administrative Agent and/or the Lenders for actual costs and out-of-pocket expenses (including, attorneys’ fees) of collection or otherwise. 9.13 Inducement to Lenders. The representations, warranties, covenants, and agreements contained in this Agreement and the other Loan Documents (a) are made to induce Lenders to make the Loan and extend any other credit to or for the account of Borrower pursuant hereto, and Administrative Agent and Lenders are relying thereon, and will continue to rely thereon, and (b) shall survive any foreclosure, any conveyance (or assignment) in lieu of foreclosure, or any proceedings under any Debtor Relief Law involving Borrower, Guarantor or the Property. 9.14 Forum. Borrower hereby irrevocably submits generally and unconditionally for itself and in respect of its property to the non-exclusive jurisdiction of any state court, or any United States federal court, sitting in the State specified in Section 9.2.5 of this Agreement and to the non-exclusive jurisdiction of any state court or any United States federal court, sitting in the state in which any of the Property is located, over any suit, action or proceeding arising out of or relating to this Agreement, the other Loan
PAGE 73 Documents or the Obligations. Borrower hereby irrevocably waives, to the fullest extent permitted by Law, any objection that they may now or hereafter have to the laying of venue in any such court and any claim that any such court is an inconvenient forum. Borrower hereby agrees and consents that, in addition to any methods of service of process provided for under applicable Law, all service of process in any such suit, action or proceeding in any state court, or any United States federal court, sitting in the State specified in Section 9.2.5 may be made by certified or registered mail, return receipt requested, directed to such party at its address for notice stated in the Loan Documents, or at a subsequent address of which Administrative Agent received actual notice from Borrower in accordance with the Loan Documents, and service so made shall be complete five (5) days after the same shall have been so mailed. Nothing herein shall affect the right of Administrative Agent to serve process in any manner permitted by Law or limit the right of Administrative Agent to bring proceedings against any party in any other court or jurisdiction. 9.15 Interpretation. References to Articles, Sections, and Exhibits are, unless specified otherwise, references to articles, sections and exhibits of this Agreement. Captions and headings in the Loan Documents are for convenience only and shall not affect the construction of the Loan Documents. All references (a) to the Loan Documents are to the same as extended, amended, restated, supplemented or otherwise modified from time to time unless expressly indicated otherwise, and (b) to the Land, the Units, the Improvements or the Property shall mean all or any portion of each of the foregoing, respectively. References to “Dollars,” “$,” “money,” “payments” or other similar financial or monetary terms are references to lawful money of the United States of America. Words of any gender shall include each other gender. Words in the singular shall include the plural and words in the plural shall include the singular. References to Borrower or Guarantor shall mean, each Person comprising same, jointly and severally. The words “herein,” “hereof,” “hereunder” and other similar compounds of the word “here” shall refer to this entire Agreement (including the attached exhibits) and not to any particular Article, Section, paragraph or provision. The terms “agree” and “agreements” mean and include “covenant” and “covenants”. The words “include” and “including” shall be interpreted as if followed by the words “without limitation”. 9.16 No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), Borrower and each Guarantor acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i) (A) the arranging and other services regarding this Agreement provided by Administrative Agent, Arranger, and the Lenders are arm’s-length commercial transactions between Borrower, each Guarantor and their respective Affiliates, on the one hand, and Administrative Agent, Arranger, and the Lenders, on the other hand, (B) each of Borrower and Guarantor has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) Borrower and each Guarantor is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) Administrative Agent, Arranger and each Lender is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for Borrower, any Guarantor or any of their respective Affiliates, or any other Person and (B) neither Administrative Agent, Arranger nor any Lender has any obligation to Borrower, any Guarantor or any of their respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) Administrative Agent, Arranger and the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of Borrower, the Guarantor and their respective Affiliates, and neither Administrative Agent, Arranger, nor any Lender has any obligation to disclose any of such interests to Borrower, any Guarantor or any of their respective Affiliates. To the fullest extent permitted by law, Borrower and each Guarantor hereby waive and release any claims that they may have against Administrative Agent, Arranger or any Lender with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby. Nothing contained in the Loan Documents, and no action taken or omitted pursuant to the Loan Documents, is intended or
PAGE 74 shall be construed to create any partnership, joint venture, association or special relationship between Borrower and Administrative Agent or any Lender or in any way make Administrative Agent or any Lender a co-principal with Borrower with reference to the Property or otherwise. In no event shall Administrative Agent’s or Lenders’ rights and interests under the Loan Documents be construed to give Administrative Agent or any Lender the right to control, or be deemed to indicate that Administrative Agent or any Lender is in control of, the business, properties, management or operations of Borrower. 9.17 Usury. It is expressly stipulated and agreed to be the intent of Borrower, Administrative Agent and Lenders at all times to comply with applicable state Law or applicable United States federal Law (to the extent that it permits a Lender to contract for, charge, take, reserve, or receive a greater amount of interest than under state Law) and that this Section shall control every other covenant and agreement in this Agreement, the Note and the other Loan Documents. If applicable state or federal Law should at any time be judicially interpreted so as to render usurious any amount called for under any of the Loan Documents, or contracted for, charged, taken, reserved, or received with respect to the Loan, or if Administrative Agent’s exercise of the option to accelerate the Maturity Date, or if any prepayment by Borrower results in Borrower having paid any interest in excess of that permitted by applicable Law, then it is Administrative Agent’s and each Lender’s express intent that all excess amounts theretofore collected by Administrative Agent or any Lender shall be credited on the Principal Debt and all other Indebtedness and the provisions of the Loan Documents shall immediately be deemed reformed and the amounts thereafter collectible hereunder and thereunder reduced, without the necessity of the execution of any new documents, so as to comply with the applicable Law, but so as to permit the recovery of the fullest amount otherwise called for hereunder or thereunder. All sums paid or agreed to be paid to Lenders for the use, forbearance, or detention of the Loan shall, to the extent permitted by applicable Law, be amortized, prorated, allocated, and spread throughout the full stated term of the Loan until payment in full so that the rate or amount of interest on account of the Loan does not exceed the maximum lawful rate from time to time in effect and applicable to the Loan for so long as the Loan is outstanding. 9.18 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING OR ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTE, THE MORTGAGE, OR ANY OTHER DOCUMENT EXECUTED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO HEREBY: (a) CERTIFIES THAT NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER; (b) ACKNOWLEDGES THAT THIS WAIVER AND THE PROVISIONS OF THIS SECTION WERE A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO THE LOAN DOCUMENTS; (c) CERTIFIES THAT THIS WAIVER IS KNOWINGLY, WILLINGLY, AND VOLUNTARILY MADE; (d) AGREES AND UNDERSTANDS THAT THIS WAIVER CONSTITUTES A WAIVER OF TRIAL BY JURY OF ALL CLAIMS AGAINST ALL PARTIES TO SUCH PROCEEDING OR ACTION, INCLUDING CLAIMS AGAINST PARTIES WHO ARE NOT PARTIES TO THIS OR ANY OTHER AGREEMENT, AND FURTHER AGREES THAT SUCH PARTY SHALL NOT SEEK TO CONSOLIDATE ANY SUCH PROCEEDING OR ACTION WITH ANY OTHER PROCEEDING OR ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED; (e) AGREES THAT BORROWER, ADMINISTRATIVE AGENT AND LENDER ARE EACH HEREBY AUTHORIZED TO FILE A COPY OF THIS SECTION IN ANY PROCEEDING OR ACTION AS CONCLUSIVE EVIDENCE OF THIS WAIVER OF JURY TRIAL; AND (f) REPRESENTS AND WARRANTS THAT SUCH PARTY HAS BEEN REPRESENTED IN THE SIGNING OF THIS AGREEMENT AND IN THE
PAGE 75 MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED BY INDEPENDENT LEGAL COUNSEL SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL. 9.19 Service of Process. Borrower hereby consents to process being served in any suit, action, or proceeding instituted in connection with any Loan by serving a copy thereof upon the agent designated and appointed by Borrower as Borrower’s agent for service of process in the Commonwealth of Virginia. Borrower irrevocably agrees that such service shall be deemed to be service of process upon Borrower in any such suit, action, or proceeding. Nothing in any Note shall affect the right of Administrative Agent to serve process in any manner otherwise permitted by Law and nothing in any Note will limit the right of Administrative Agent on behalf of the Lenders otherwise to bring proceedings against Borrower in the courts of any jurisdiction or jurisdictions. 9.20 No Delays; Defaults. No delay or omission of Administrative Agent or Lenders to exercise any right, power or remedy accruing upon the happening of an Event of Default shall impair any such right, power or remedy or shall be construed to be a waiver of any such Event of Default or any acquiescence therein. No delay or omission on the part of Administrative Agent or Lenders to exercise any option for acceleration of the maturity of the Indebtedness, or for foreclosure of the Mortgage following any Event of Default as aforesaid, or any other option granted to Administrative Agent and Lenders hereunder in any one or more instances, or the acceptances by Administrative Agent or Lenders of any partial payment on account of the Obligations, shall constitute a waiver of any such Event of Default, and each such option shall remain continuously in full force and effect. No remedy herein conferred upon or reserved to Administrative Agent and/or Lenders is intended to be exclusive of any other remedies provided for in any Note or any of the other Loan Documents, and each and every such remedy shall be cumulative, and shall be in addition to every other remedy given hereunder, or under any Note or any of the other Loan Documents, or now or hereafter existing at Law or in equity or by statute. Every right, power and remedy given to Administrative Agent and Lenders by this Agreement, any Note or any of the other Loan Documents shall be concurrent, and may be pursued separately, successively or together against Borrower, Guarantor, any other Person liable for any part of the Obligations, the Property, or any other Property, and every right, power and remedy given by this Agreement, any Note or any of the other Loan Documents may be exercised from time to time as often as may be deemed expedient by the Required Lenders. No application of payments will cure any Event of Default, or prevent acceleration, or continued acceleration, of amounts payable under the Loan Documents, or prevent the exercise, or continued exercise, of rights or remedies of Administrative Agent and Lenders hereunder or thereunder or at Law or in equity. 9.21 USA PATRIOT Act; Beneficial Ownership Regulation. 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 notify 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”) and 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), they are required to obtain, verify and record information that identifies Borrower, which information includes the name and address of Borrower, a Beneficial Ownership Certification, and other information that will allow such Lender or Administrative Agent, as applicable, to identify Borrower in accordance with the PATRIOT Act and the Beneficial Ownership Regulation. 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 and the Beneficial Ownership Regulation. 9.22 Acknowledgement and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement
PAGE 76 or understanding among any such parties, each party hereto acknowledges that any liability of any Lender that is an Affected 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 the applicable 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 the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any Lender that is an Affected 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 Affected 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 the applicable Resolution Authority. 9.23 Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guaranty, mortgage, or otherwise, for any Swap Contract or any other agreement or instrument that is a QFC (such support, “QFC Credit Support”, and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the Commonwealth of Virginia and/or of the United States or any other state of the United States): In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
PAGE 77 9.24 Online Banking Portal. Borrower hereby represents and warrants to Administrative Agent and each Lender that each individual identified as an Authorized Signer in the Transaction Administration Letter has the power and authority to delegate, to one or more Authorized Portal Users, the power and authority to utilize and perform any and all Online Facility Transactions available to Borrower from time to time under any Online Banking Portal based on the terms of this Agreement and the Online Portal Agreements, and to bind Borrower with respect to any and all Online Facility Transactions performed on behalf of Borrower on such Online Banking Portal by such Authorized Portal Users. Administrative Agent may rely, without further investigation, upon the foregoing representation and warranty by Borrower, and Administrative Agent shall not be responsible for any Online Facility Transactions or other actions taken by any Authorized Portal Users in connection with the Online Banking Portal. Additionally, Administrative Agent shall not be responsible to Borrower, any Lender or any other Person for any loss, claim, liability, damage, cost or expense resulting from, related to, arising from or caused by any Online Facility Transactions or other actions by any Authorized Portal Users on the Online Banking Portal. Any Online Portal Agreements delivered to Administrative Agent that are signed by an Authorized Signer shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of Borrower, and each Authorized Portal User shall be conclusively presumed to have acted on behalf of such Borrower. In the event of any conflict between the Online Portal Agreements and this Agreement, the terms of this Agreement shall control. 9.25 Entire Agreement. The Loan Documents constitute the entire understanding and agreement between and among Borrower, Administrative Agent and Lenders with respect to the transactions arising in connection with the Loan, and supersede all prior written or oral understandings and agreements between and among Borrower, Administrative Agent and Lenders with respect to the matters addressed in the Loan Documents. In particular, and without limitation, the terms of any commitment letter, letter of intent or quote letter by Administrative Agent or any Lender to make the Loan are merged into the Loan Documents, as applicable. Neither Administrative Agent nor any Lender has made any commitments to extend the term of the Loan past its stated maturity date or to provide Borrower with financing except as set forth in the Loan Documents. Except as incorporated in writing into the Loan Documents, there are not, and were not, and no Persons are or were authorized by Administrative Agent or any Lender to make, any representations, understandings, stipulations, agreements or promises, oral or written, with respect to the matters addressed in the Loan Documents. BORROWER FURTHER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING BROUGHT BY OR ON BEHALF OF ADMINISTRATIVE AGENT OR LENDERS WITH RESPECT TO THIS AGREEMENT, THE NOTE OR OTHERWISE IN RESPECT OF THE LOAN, ANY AND EVERY RIGHT BORROWER MAY HAVE TO (X) INJUNCTIVE RELIEF, (Y) INTERPOSE ANY COUNTERCLAIM THEREIN, OTHER THAN A COMPULSORY COUNTERCLAIM, AND (Z) HAVE THE SAME CONSOLIDATED WITH ANY OTHER OR SEPARATE SUIT, ACTION OR PROCEEDING. NOTHING CONTAINED IN THE IMMEDIATELY PRECEDING SENTENCE SHALL PREVENT OR PROHIBIT BORROWER FROM INSTITUTING OR MAINTAINING A SEPARATE ACTION AGAINST LENDER WITH RESPECT TO ANY ASSERTED CLAIM. 9.26 Waiver of Consequential Damages, Etc. To the fullest extent permitted by Applicable Law, each of Administrative Agent, Lenders and Borrower agree that it shall not assert, and each hereby waives, and acknowledges that it shall not have, any claim against the others, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any advance of the Loan or the use of the proceeds thereof. Neither Borrower, Administrative Agent, nor Lenders shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed
PAGE 78 to such unintended recipients by such party through telecommunications, electronic or other information transmission systems in connection with this Agreement, the other Loan Documents or the transactions contemplated hereby or thereby. 9.27 Third Parties; Benefit. All conditions to the obligation of Lenders or Administrative Agent to make advances hereunder are imposed solely and exclusively for the benefit of Lenders, Administrative Agent and their assigns and no other Persons shall have standing to require satisfaction of such conditions in accordance with their terms or be entitled to assume that Lenders or Administrative Agent will refuse to make advances in the absence of strict compliance with any or all thereof and no other Person shall, under any circumstances, be deemed to be the beneficiary of such conditions, any or all of which may be freely waived in whole or in part by Lenders or Administrative Agent at any time in the sole and absolute exercise of their discretion. Subject to Section 8.16, the provisions of this Agreement and, except to the extent expressly set forth therein, each other Loan Document, are for the sole benefit of Administrative Agent, Lenders and Borrower, and no other Person shall have any right or cause of action on account thereof or interest therein. 9.28 Other Transactions. In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), Borrower acknowledges and agrees, and acknowledges Guarantor’s and Borrower’s other Affiliates’ understanding, that: (a) (i) the arranging and other services regarding this Agreement provided by Administrative Agent, the Arranger, and the Lenders are arm’s-length commercial transactions between Borrower, Guarantor and their respective Affiliates, on the one hand, and Administrative Agent, the Arranger, and the Lenders, on the other hand, (ii) each of Borrower and Guarantor has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (iii) each of Borrower and Guarantor is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (b) (i) Administrative Agent, the Arranger and each Lender is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for Borrower, Guarantor or any of their respective Affiliates, or any other Person and (ii) neither Administrative Agent, the Arranger, nor any Lender has any obligation to Borrower, Guarantor or any of their respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (c) Administrative Agent, the Arranger, the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of Borrower, Guarantor and their respective Affiliates, and neither Administrative Agent, the Arranger, nor any Lender has any obligation to disclose any of such interests to Borrower, Guarantor or any of their respective Affiliates. To the fullest extent permitted by law, each of Borrower and Guarantor hereby waives and releases any claims that it may have against Administrative Agent, the Arranger or any Lender with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby. 9.29 Co-Borrowers. (a) Each Borrower agrees that it is jointly and severally liable to Administrative Agent and Lenders for the payment or performance of all Obligations, and that such liability is independent of the obligations of the other Borrowers; provided, however, the obligations of each Borrower hereunder at any time shall not include any Excluded Swap Obligations with respect to such Borrower and shall be limited to an aggregate amount equal to the largest amount that would not render its obligations hereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 of the Bankruptcy Code or any comparable provisions of any similar federal or state law. Administrative Agent and Lenders may bring an action against any Borrower, whether an action is brought against the other Borrowers.
PAGE 79 (b) Each Borrower agrees that any release which may be given by Administrative Agent or any Lender to any other Borrower will not release such Borrower from its obligations under this Agreement or any of the other Loan Documents. (c) Each Borrower waives any right to assert against Administrative Agent or any Lender any defense, setoff, counterclaim or claim that such Borrower may have against any other Borrower or any other party liable to Administrative Agent or any Lender for the obligations of Borrowers under this Agreement or any of the other Loan Documents. (d) Each Borrower agrees that it is solely responsible for keeping itself informed as to the financial condition of the other Borrowers and of all circumstances which bear upon the risk of nonpayment. Each Borrower waives any right it may have to require Administrative Agent or any Lender to disclose to such Borrower any information that Administrative Agent or any Lender may now or hereafter acquire concerning the financial condition of the other Borrowers. (e) Each Borrower waives all rights to notices of default or nonperformance by any other Borrower under this Agreement and the other Loan Documents. Each Borrower further waives all rights to notices of the existence or the creation of new indebtedness by any other Borrower. (f) Until all obligations of Borrowers under this Agreement and the other Loan Documents have been paid or otherwise performed in full, each Borrower waives any right of subrogation, reimbursement, indemnification and contribution (contractual, statutory or otherwise), including any claim or right of subrogation under the Bankruptcy Code or any successor statute, that such Borrower may now or hereafter have against any other Borrower with respect to the Obligations. Each Borrower waives any right to enforce any remedy which Administrative Agent or any Lender now has or may hereafter have against any other Borrower, and waives any benefit of, and any right to participate in, any security now or hereafter held by Administrative Agent or Lenders. (g) Each Borrower hereby waives any election of remedies by Administrative Agent or any Lender that impairs any subrogation or other right of such Borrower to proceed against any other Borrower or other person, including any loss of rights resulting from any applicable anti deficiency laws relating to nonjudicial foreclosures of real property or other laws limiting, qualifying or discharging obligations or remedies. [The balance of this page is intentionally left blank.]
PAGE A-1 EXHIBIT A LEGAL DESCRIPTION OF LAND All that property, together with improvements thereon, situated, lying and being in the City of Baltimore, State of Maryland and more particularly described as follows: BEING KNOWN AND DESIGNATED as the Office Unit, Retail Unit and Transfer Station Unit, together with an undivided interest in the General Common Elements, as established pursuant to a Declaration of Condominium for Harbor Point Parcel 2 Commercial Condominium (the “Declaration of Condominium”) made by Harbor Point Parcel 2 Holdings, LLC dated October 21, 2019 and recorded on October 29, 2019, among the Land Records of Baltimore City, Maryland in Book MB No. 21538, page 280; and as shown on a plat entitled “Harbor Point Parcel 2 Commercial Condominium 1000 Wills Street, Baltimore, MD 21231”, dated November 9, 2018 and recorded among the Plat Records of Baltimore City, Maryland in Condominium Plat Book MB No. 857 consisting of seventeen (17) pages together with all of the benefits, rights and privileges granted by the Declaration of Condominium. TOGETHER WITH the improvements on the Property, if any, all of the benefits, rights and privileges granted by the Declaration of Condominium and all the rights, ways, alleys, privileges and appurtenances thereto belonging or in anywise appertaining. TOGETHER WITH the easements and an undivided interest in the general common elements granted and subject to the terms and conditions set forth in a Declaration of Condominium for Harbor Point Master Land Condominium made by Harbor Point Land, LLC dated March 21, 2014 and recorded on March 25, 2014 among the Land Records of Baltimore City, Maryland in Book FMC 16101, page 424, as amended by that certain First Amendment to Declaration for Harbor Point Master Land Condominium dated as of January 13, 2016 and recorded among the Land Records of Baltimore City, Maryland at Book LGA 17841, Page 362, as further amended by that certain Second Amendment to Declaration for Harbor Point Master Land Condominium dated as of February 20, 2017 and recorded among the Land Records of Baltimore City, Maryland at Book MB 18922, Page 105, as further amended by that certain Third Amendment to Declaration for Harbor Point Master Land Condominium dated April 25, 2010 (2019) and recorded among the Land Records of Baltimore City, Maryland in Book MB 21072, page 16; and as further amended by Fourth Amendment to Declaration for Harbor Point Master Land Condominium dated January 25, 2022, and recorded among the Land Records of Baltimore City, Maryland in Book MB No. 24730, page 88, as shown on that certain “Plat of Condominium of HARBOR POINT MASTER LAND CONDOMINIUM Land Units 1, 2, 3, and 4, Garage Unit & Open Space Unit”, and recorded among the Plat Records of Baltimore City, Maryland in Condominium Plat Book MB No. 850. TOGETHER WITH the easements granted and subject to the terms and conditions set forth in an Easement and Cost Sharing Agreement dated March 21, 2014 by and among Harbor Point Parcel 1 Holdings, LLC, Harbor Point Parcel 2 Holdings, LLC, Harbor Point Parcel 3 Holdings, LLC, Harbor Point Parcel 4 Holdings, LLC, Harbor Point Garage, LLC, Harbor Point Open Space Corp., Block Street Apartments, LLC and Wills Street Pier, LLC as recorded in Book FMC 16123, page 482, as amended by that certain First Amendment to Easement and Cost Sharing Agreement dated January 3, 2018 and recorded among the Land Records of Baltimore City, Maryland at Book MB 19817, page 475. TOGETHER WITH the easements granted and subject to the terms and conditions set forth in an Amended and Restated Parking Easement Agreement dated October 21, 2019, and recorded among the Land Records of Baltimore City, Maryland in Book MB No. 21538, page 479, by and among Harbor Point Parcel 2-Office, LLC, a Delaware limited liability company, Harbor Point Parcel 2-Retail, LLC, a Delaware limited liability company, Harbor Point Parcel 2-Residential, LLC, a Delaware limited liability
PAGE A-2 company, Harbor Point Parcel 2-Transfer Station, LLC, a Delaware limited liability company, Harbor Point Garage, LLC, a Maryland limited liability company, Harbor Point Parcel 1 Holdings, LLC, a Maryland limited liability company, Harbor Point Parcel 3 Holdings, LLC, a Maryland limited liability company and Harbor Point Open Space Corp., a Maryland corporation, as amended and restated by that Second Amended and Restated Parking Easement Agreement (Harbor Point), dated January 14, 2022 and recorded among the aforesaid Land Records in Book MB No. 24275, Page 005, by and among Harbor Point Parcel 2-Office, LLC, Harbor Point Parcel 2-Retail, LLC, Harbor Point Parcel 2-Residential, LLC, Harbor Point Parcel 2- Transfer Station, LLC, Harbor Point Garage, LLC, Harbor Point Parcel 1 Holdings, LLC, Harbor Point Parcel 3 Development, LLC, Harbor Point Parcel 4 Development, LLC and Harbor Point Open Space Corp. TOGETHER WITH the easements granted, and subject to the terms and conditions as set forth in the Declaration of Easements, Covenants, Restrictions and Agreements (Harbor Point Parcel 2 Commercial Condominium) dated October 21, 2019 and recorded among the Land Records of Baltimore City, Maryland in Book MB No. 21538, page 336, by and among Harbor Point Parcel 2-Office, LLC, a Delaware limited liability company, Harbor Point Parcel 2-Residential, LLC, a Delaware limited liability company, Harbor Point Parcel 2-Retail, LLC, a Delaware limited liability company and Harbor Point Parcel 2-Transfer Station, LLC, a Delaware limited liability company. For Informational Purposes Only: The premises on the above described parcels known as No. 1000 Wills Street, Land Unit #2. Tax ID No. 03-07-1815-002B - (Retail Unit) Tax ID No. 03-07-1815-002C - (Office Unit) Tax ID No. 03-07-1815-002D - (Transfer Station Unit) (End of Property Description)
PAGE B-1 EXHIBIT B DEFINITIONS AND FINANCIAL STATEMENTS 1. DEFINITIONS: As used in this Agreement and the attached exhibits, the following terms shall have the following meanings: “Acceptable LLC” means a member-managed or manager-managed limited liability company that complies with Exhibit P and has only one member. “Acquisition Date” has the meaning set forth in Section 8.10(b). “Actual Operating Revenue” means, with respect to the Calculation Period, the sum of (a) (i) the base rent payable from tenants in occupancy and paying rent as of the Determination Date, annualized, and (ii) the initial month base rent from tenants in occupancy and that will commence payment of base rent within ninety (90) days of the Determination Date, annualized, and (b) other income and reimbursements for the trailing twelve (12) month period as of the determination date from tenants not excluded below from clause (a)(i) above, computed in accordance with sound real estate accounting principles, collected from the ownership and operation of the Property from whatever source, including utility charges, escalations, service fees or charges, license fees, parking fees, and other required pass-throughs, but excluding (1) sales, use and occupancy and other Taxes on receipts required to be accounted for by Borrower to any Governmental Authority, (2) refunds from tenants, (3) uncollectible accounts, (4) sales of furniture, fixtures and equipment, (5) interest income, (6) Condemnation Awards, (7) Insurance Proceeds (other than business interruption or other loss of income insurance), (8) unforfeited security deposits, utility and other similar deposits, (9) Rent deferred by agreement of the Borrower and tenant from Rent payment periods prior to the Calculation Period, (10) income from tenants in bankruptcy, (11) income from tenants who are no longer in occupancy (regardless of Lease obligations to pay) (i.e. “dark tenants”), (12) income from tenants under Leases in default beyond any applicable grace, notice or cure period, (13) income from tenants not paying contractual Rent or common area maintenance fees, but no default has been called, (14) income under any Lease from tenants not in occupancy (except as provided in clause (a)(ii) above, (15) income from tenants whose Leases expire within ninety (90) days and who have not executed a renewal; (16) Lease termination fees, and (17) non-recurring or extraordinary income. Actual Operating Revenue shall be net of rent concessions and credits. Actual Operating Revenue shall be subject to appropriate seasonal and other adjustments in Administrative Agent’s commercially reasonable discretion. “Administrative Agent” means PNC Bank in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent. “Administrative Agent Advances” has the meaning set forth in Section 8.12(a). “Administrative Agent’s Office” means Administrative Agent’s address and, as appropriate, account as set forth on the Schedule of Lenders, or such other address or account as Administrative Agent hereafter may from time to time notify Borrower and Lenders. “Administrative Agent’s Time” means the time of day observed in the city where Administrative Agent’s Office is located. “Administrative Questionnaire” means an Administrative Questionnaire in a form approved by Administrative Agent.
PAGE B-2 “Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution. “Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. “Agent Parties” has the meaning set forth in Section 9.2.7(c). “Aggregate Commitments” means the Commitments of all Lenders. “Agreement” has the meaning set forth in the introductory paragraph of this Agreement, and includes all exhibits attached hereto and referenced in Section 1.1. “Alternate Rate” has the meaning set forth in Section 2.2(c). “Applicable Law” means, as to any Person, all applicable Laws binding upon such Person or to which such a Person is subject. “Appraised Value” means $203,000,000.00. “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender. “Approved Lease” means, as applicable, an Approved Office Lease, an Approved Retail Lease, and the Transfer Station Lease. “Approved Office Lease” means a Lease of space in the Office Unit that is (a) approved by Administrative Agent, or (b) “deemed” approved by Administrative Agent because it satisfies each of the following requirements: (i) is on the standard form Lease approved by Administrative Agent with no material deviations except as approved by Administrative Agent; (ii) is entered into in the ordinary course of business with a bona fide unrelated third party tenant that is not, to Borrower’s knowledge, involved in any illegal activities and does not, to Borrower’s knowledge, conduct any illegal business in violation of any Laws, including the Controlled Substances Act, and Borrower, acting in good faith and exercising due diligence, has determined that the tenant is financially capable of performing its obligations under the Lease in compliance with all Laws; (iii) is received by Administrative Agent (together with each guaranty thereof (if any) and financial information regarding the tenant and each guarantor (if any) received by Borrower) within fifteen (15) days after execution; (iv) reflects an arm’s length transaction; (v) contains no right to purchase the Property, or any present or future interest therein; (vi) is for a term of not less than five (5) years; (vii) has a rental rate that is not less than Twenty-Seven and No/100 Dollars ($27.00) per square foot on a “triple-net” basis; (viii) does not cover in excess of 25,000 square feet of the aggregate net rentable area of the Improvements, and (ix) is expressly subordinate to the Mortgage. “Approved Retail Lease” means a Lease of space in the Retail Unit that is (a) approved by Administrative Agent, or (b) “deemed” approved by Administrative Agent because it satisfies each of the following requirements: (i) is on the standard form Lease approved by Administrative Agent with no material deviations except as approved by Administrative Agent; (ii) is entered into in the ordinary course of business with a bona fide unrelated third party tenant that is not, to Borrower’s knowledge, involved in any illegal activities and does not, to Borrower’s knowledge, conduct any illegal business in violation of any Laws, including the Controlled Substances Act, and Borrower, acting in good faith and exercising due diligence, has determined that the tenant is financially capable of performing its obligations under the Lease
PAGE B-3 in compliance with all Laws; (iii) is received by Administrative Agent (together with each guaranty thereof (if any) and financial information regarding the tenant and each guarantor (if any) received by Borrower) within fifteen (15) days after execution; (iv) reflects an arm’s length transaction; (v) contains no right to purchase the Property, or any present or future interest therein; (vi) is for a term of not less than five (5) years; (vi) has a rental rate that is not less than the applicable Minimum Retail Lease Rate per square foot on a “triple-net” basis, and (vii) is expressly subordinate to the Mortgage. “Arranger” means PNC Capital Markets, LLC, in its capacity as sole arranger and sole bookrunner. “Assignment and Assumption” means an Assignment and Assumption substantially in the form of Exhibit F. “Assumed Interest Rate” means the greatest of (a) the interest rate applicable to outstanding principal of the Loan hereunder, (b) the annual yield payable on the last day of the applicable Calculation Period on ten (10) year United States Treasury obligations in amounts approximating the Principal Debt at the inception of the Calculation Period plus two and one-half percent (2.50%) per annum, and (c) eight and one-quarter percent (8.25%) per annum (such percentage determined using a mortgage constant of 9.02% and a 30-year amortization). “Authorized Person” means any representative of Borrower duly designated by Borrower in the Transaction Administration Letter, authorized in accordance with the governing documents of Borrower and all Laws applicable to Borrower, to bind Borrower in providing Draw Requests and requesting disbursements of Loan proceeds. An Authorized Person may also have the authority to perform Online Facility Transactions that may be granted to an Authorized Portal User under any Online Banking Portal if designated as such by an Authorized Signer in the Online Portal Agreements. Authorized Person also includes any individual who is an Authorized Person of a Controlling Entity of Borrower. “Authorized Portal User” means any and all individuals to whom access to an Online Banking Portal is granted, whether (a) by such individual being designated as an authorized user (or other applicable designation) of such Online Banking Portal as set forth in the Online Portal Agreements, or (b) by such individual utilizing log-in credentials of an authorized user (or other applicable designation) of such Online Banking Portal, or (c) in any other manner pursuant to the terms of the Online Portal Agreements. “Authorized Signer” means any representative of Borrower duly designated by Borrower as such in the Transaction Administration Letter, authorized in accordance with the governing documents of Borrower and all applicable Laws to: (a) bind Borrower and to act for Borrower for all purposes in connection with the Loan, including but not limited to, requesting disbursements of Loan proceeds, requesting interest rate changes, obtaining information pertaining to the Loan, requesting any action under the Loan Documents, providing any certificates, and appointing and changing any Authorized Persons; and (b) delegate his/her authority to any Authorized Portal User solely to allow such Authorized Portal Users to perform Online Facility Transactions on any Online Banking Portal in accordance with the terms of this Agreement and the Online Portal Agreements. Authorized Signer includes, as to any Borrower, any individual who is an Authorized Signer of a Controlling Entity of such Borrower. “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution. “Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, rule, regulation or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, Part I of the
PAGE B-4 United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings). “Bankruptcy Code” means Title 11 of the United States Code, as in effect from time to time. “Base Rate” means, for any day, a fluctuating per annum rate of interest equal to the higher of (i) the Overnight Bank Funding Rate, plus 0.50%, and (ii) the interest rate per annum announced from time to time by Administrative Agent at its Principal Office as its then prime rate, which rate may not be the lowest or most favorable rate then being charged to commercial borrowers or others by Administrative Agent and may not be tied to any external rate of interest or index; provided, however, if the Base Rate as determined above would be less than zero, then such rate shall be deemed to be zero. Any change in the Base Rate (or any component thereof) shall take effect at the opening of business on the day such change occurs. “Benchmark” means, initially, SOFR and Daily Simple SOFR; provided that if a Benchmark Transition Event has occurred with respect to the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.2(d) of this Agreement. “Benchmark Replacement” means, with respect to any Benchmark Transition Event, the sum of: (1) the alternate benchmark rate that has been selected by Administrative Agent and the Borrower giving due consideration to (a) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for U.S. dollar- denominated syndicated credit facilities at such time and (2) the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by Administrative Agent and the Borrower, giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable unadjusted alternate benchmark rate by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable unadjusted alternate benchmark rate for U.S. dollar-denominated syndicated credit facilities at such time; provided that, if the Benchmark Replacement would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents; provided further that, any such Benchmark Replacement shall be administratively feasible as determined by Administrative Agent in its sole discretion. “Benchmark Replacement Date” means a date and time determined by Administrative Agent, which date shall be no later than the earliest to occur of the following events with respect to the then-current Benchmark: (1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide the Benchmark (or such component thereof); or (2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the date determined by Administrative Agent, which date shall promptly follow the date of the public statement or publication of information referenced therein.
PAGE B-5 “Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark: (1) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide the Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Benchmark (or such component thereof); (2) a public statement or publication of information by an Official Body having jurisdiction over Administrative Agent, the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide the Benchmark (or such component thereof) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Benchmark (or such component thereof); or (3) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) or an Official Body having jurisdiction over Administrative Agent announcing that the Benchmark (or such component thereof) is not, or as of a specified future date will not be, representative. “Benchmark Unavailability Period” means, the period (if any) (x) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with this Section titled “Benchmark Replacement Setting” and (y) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with this Section titled “Benchmark Replacement Setting.” “Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation. “Beneficial Ownership Regulation” has the meaning set forth in Section 9.21. “Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (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”. “BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party. “Bloomberg” means Bloomberg Index Services Limited. “Borrower” has the meaning set forth in the introductory paragraph of this Agreement.
PAGE B-6 “Borrower’s Deposit Account” shall be a deposit account established at Administrative Agent in the name of Borrower and shall be assigned the federal tax identification number of Borrower. “Borrower Materials” has the meaning set forth in Section 9.2.6(b). “Business Day” means any day other than a Saturday or Sunday or a legal holiday on which commercial banks are authorized or required to be closed, or are in fact closed, for business in Pittsburgh, Pennsylvania (or, if otherwise, the lending office of Administrative Agent); provided that, when used in connection with an amount that bears interest at a rate based on SOFR or any direct or indirect calculation or determination of SOFR, the term “Business Day” means any such day that is also a U.S. Government Securities Business Day. “Business Plan” has the meaning set forth in Section 8.10(c). “Calculation Period” means the three (3) month period ending on any Determination Date. “Cash Management Account” means an interest bearing Eligible Account at Administrative Agent, together with all sub-accounts thereof. “Cash Sweep Termination Date” means the first calendar month following a Sweep Date when the following has occurred, as applicable: (1) with respect to a Trigger Period that resulted from a Trigger Event under clause (a) of the definition thereof, (a) it is determined by Administrative Agent to Administrative Agent’s reasonable satisfaction (based on the financial information provided by Borrower pursuant to the terms of this Agreement), that the Debt Service Coverage Ratio has been, for the most-recently ended two (2) Determination Dates, at least 1.20 to 1.00; and (b) no Event of Default is then-continuing, (2) with respect to a Trigger Period that resulted from a Trigger Event under clause (b) of the definition thereof, (a) the investment grade credit rating of Constellation from S&P and Moody’s is raised to investment grade; and (b) no Event of Default is then-continuing, and (3) with respect to a Trigger Period that resulted from a Trigger Event under clause (c) of the definition thereof, (a) all of the space leased to Constellation under the Constellation Lease is re-leased pursuant to one or more Approved Office Leases (or subleased pursuant to a sublease permitted hereunder); and (b) no Event of Default is then-continuing. “Casualty” means any act or occurrence of any kind or nature that results in damage, loss or destruction to the Property or the common elements under the Condominium Documents. “Casualty Proceeds Deposit Threshold” has the meaning set forth in Section 4.8(b). “Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any Law, (b) any change in any Law or in the administration, interpretation, implementation or application thereof by any Official Body, or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of Law) by any Official Body; provided that, regardless of the date enacted, any of the foregoing issued in connection with Dodd-Frank or Basel III will in each case be deemed to be a “Change in Law”. “Change of Control” has the meaning set forth in Section 5.5(c) of this Agreement. “Civil Asset Forfeiture Reform Act” means the Civil Asset Forfeiture Reform Act of 2000 (18 U.S.C. Sections 983 et seq.), as amended from time to time, and any successor statute. “Closing Checklist” means that certain Closing Requirements and Checklist setting forth the conditions for closing the Loan and recording the Mortgage.
PAGE B-7 “Closing Date” means the date of this Agreement. “CME” means CME Group Benchmark Administration Limited. “Code” means the Internal Revenue Code of 1986, as amended from time to time. “Commercial Condominium Documents” means the Declaration of Condominium for Harbor Point Parcel 2 Commercial Condominium dated October 21, 2019, made by Borrower and recorded in the land records of Baltimore City, Maryland in Book MB No. 21538, page 280, the By-laws, the plats and plans and all exhibits, schedules or certification accompanying any of the foregoing and all requisite approvals from Governmental Authorities required to create and operate the condominium in accordance with applicable Laws, each as approved by Administrative Agent pursuant to this Agreement. “Commercial Lease” means a Lease of space within the Office Unit, the Retail Unit, or the Transfer Station Unit. “Commitment” means, as to each Lender, its obligation to advance its Pro Rata Share of the Loan in an aggregate principal amount not exceeding the amount set forth opposite such Lender’s name on the Schedule of Lenders at any one time outstanding, as such amount may be reduced or adjusted from time to time in accordance with this Agreement. “Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute. “Common Charges” means all common charges, assessments, fees and other charges now or hereafter levied or assessed or imposed against the Property or any part thereof under the Condominium Documents or otherwise by the Condominium Association. “Communication” has the meaning set forth in Section 9.2.2. “Condemnation” means any taking of title to, use of, or any other interest in the Property or the common elements under the Condominium Documents under the exercise of the power of condemnation or eminent domain, whether temporarily or permanently, by any Governmental Authority or by any other Person acting under or for the benefit of a Governmental Authority. “Condemnation Awards” means any and all judgments, awards of damages (including severance and consequential damages), payments, proceeds, settlements, amounts paid for a taking in lieu of Condemnation, or other compensation heretofore or hereafter made, including interest thereon, and the right to receive the same, as a result of, or in connection with, any Condemnation or threatened Condemnation. “Condominium Act” means Title 11 of the Real Property Article of the Annotated Code of Maryland and all modifications, supplements and replacements thereof and all regulations with respect thereto, now or hereafter enacted or promulgated. “Condominium Association” means, separately and collectively, each condominium association formed under the Commercial Condominium Documents and the Land Condominium Documents. “Condominium Board” means the governing body of the Condominium Association established pursuant to the Condominium Documents.
PAGE B-8 “Condominium Documents” means separately and collectively, the Commercial Condominium Documents and the Land Condominium Documents. “Condominium Requirements” means the requirements applicable to the matter in question under the Condominium Documents or the Condominium Act or any rules or regulations promulgated in connection therewith. “Conforming Changes” means with respect to Daily Simple SOFR or any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate”, the definition of “Business Day”, the definition of “U.S. Government Securities Business Day”, timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment notices, the applicability and length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that Administrative Agent decides may be appropriate to reflect the adoption and implementation of Daily Simple SOFR or such Benchmark Replacement and to permit the administration thereof by Administrative Agent in a manner substantially consistent with market practice (or, if Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if Administrative Agent determines that no market practice for the administration of Daily Simple SOFR or the Benchmark Replacement exists, in such other manner of administration as Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents). “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. “Constellation” means Constellation Energy Generation, LLC, a Pennsylvania limited liability company (f/k/a Exelon Generation Company, LLC). “Constellation Lease” means that certain Lease Agreement dated as of March 21, 2013 executed by and between Constellation and Office Borrower, (a) as amended by that certain First Amendment to Lease dated as of September 13, 2013 and that certain Second Amendment to Lease dated December 23, 2013, (b) as modified by certain letter agreements dated June 10, 2013, September 5, 2013, October 14, 2013, November 20, 2013, December 12, 2013, December 19, 2013 and December 20, 2013 (collectively, the “Extension Letters”), (c) as assigned by Office Borrower to Holdings by that certain Assignment and Assumption Agreement dated January 21, 2014, (d) as further amended by that certain Third Amendment to Lease dated March 21, 2014, that certain Fourth Amendment to Lease dated March 31, 2014, that certain Fifth Amendment to Lease dated December 23, 2014 and that certain Sixth Amendment to Lease dated March 22, 2016, (e) as further amended and assigned by Holdings back to Office Borrower by that certain Seventh Amendment and Assignment of Lease dated October 21, 2019, (f) as affected by that certain Multi- Party Agreement dated as of October 21, 2019, by and among Office Borrower, Constellation, the Council of Unit Owners of the Harbor Point Master Land Condominium and the Council of Unit Owners of the Harbor Point Parcel 2 Commercial Condominium, (g) as further amended by that certain Eighth Amendment of Lease dated June 25, 2021, and (h) as the same may be further amended and/or restated pursuant to the terms and conditions of this Agreement. “Constellation Lease Cross Default” means the occurrence of any one or more of the following: (a) A monetary default by Constellation in the payment of one or more months’ base rent under the Constellation Lease, that continues for a period of sixty (60) or more days; (b) Termination of the Constellation Lease for any reason (including a casualty or condemnation and the proceeds of which are insufficient to repay the Obligations in full); or
PAGE B-9 (c) A material default by Office Borrower under the Constellation Lease that continues beyond any applicable grace, notice and cure period if (i) Constellation has the right to terminate the Constellation Lease by reason of such default or (ii) in the case of any other remedy such as a right of off-set or self-help, which remedy, if exercised, would result in a Debt Service Coverage Ratio below 1.00 to 1.00. “Constituent Member” means the constituent members or other direct equity owners of a Person. “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto. “Controlled Substances Act” means the Controlled Substances Act (21 U.S.C. Sections 801 et seq.), as amended from time to time, and any successor statute. “Controlling Entity” means any entity having the power and authority to control the business and activities and otherwise bind Borrower, pursuant to the governing documents of Borrower and applicable Law, such as a general partner of a partnership or a manager or managing member of a limited liability company. “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). “Covered Party” has the meaning set forth in Section 9.23. “Credit Agreement” means that certain Fourth Amended and Restated Credit Agreement dated on or about the date hereof, among AH Realty Trust, LP (f/k/a Armada Hoffler, L.P.), as Borrower, AH Realty Trust, Inc. (f/k/a Armada Hoffler Properties, Inc.), as Parent, Bank of America, N.A., as Administrative Agent and L/C Issuer, and the other lender parties thereto that include M&T Bank and PNC Bank, National Association as Documentation Agents, BofA Securities, Inc., M&T Bank, PNC Capital Markets LLC, and TD Securities (USA) LLC, as Joint Lead Arrangers, and BofA Securities, Inc. as Sole Bookrunner, as amended, modified, supplemented, restated and replaced from time to time. “Credit Party” has the meaning set forth in Section 8.19. “Daily Simple SOFR” means, for any day (a “SOFR Rate Day”), the interest rate per annum determined by Administrative Agent (rounded upwards, at Administrative Agent’s discretion, to the nearest 1/100th of 1%) equal to SOFR for the day (the “SOFR Determination Date”) that is 2 Business Days prior to (i) such SOFR Rate Day if such SOFR Rate Day is a Business Day or (ii) the Business Day immediately preceding such SOFR Rate Day if such SOFR Rate Day is not a Business Day, in each case, as such SOFR is published by the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate) on the website of the Federal Reserve Bank of New York, currently at http://www.newyorkfed.org, or any successor source identified by the Federal Reserve Bank of New York or its successor administrator for the secured overnight financing rate from time to time. If Daily Simple SOFR as determined above would be less than the SOFR Floor, then Daily Simple SOFR shall be deemed to be the SOFR Floor. If SOFR for any SOFR Determination Date has not been published or replaced with a Benchmark Replacement by 5:00 p.m. (Pittsburgh, Pennsylvania time) on the second Business Day immediately following such SOFR Determination Date, then SOFR for such SOFR Determination Date will be SOFR for the first Business Day preceding such SOFR Determination Date for which SOFR was published
PAGE B-10 in accordance with the definition of “SOFR”; provided that SOFR determined pursuant to this sentence shall be used for purposes of calculating Daily Simple SOFR for no more than 3 consecutive SOFR Rate Days. If and when Daily Simple SOFR as determined above changes, any applicable rate of interest based on Daily Simple SOFR will change automatically without notice to the Borrower, effective on the date of any such change. “Debtor Relief Law(s)” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect. “Debt Service” means the annual payments of principal and interest that would have been payable under a hypothetical loan, assuming (i) the outstanding principal balance of the Loan as of the Determination Date, (ii) an interest rate equal to the Assumed Interest Rate, and (iii) amortization of the aggregate principal indebtedness over a thirty (30) year amortization period. “Debt Service Coverage Ratio” means the annualized Net Operating Income divided by projected annual Debt Service. Borrower shall submit to Administrative Agent its calculation of the Debt Service Coverage Ratio, together with all information which Administrative Agent may require to enable Administrative Agent to verify such calculation, at the time of any action to be taken under this Agreement or any other Loan Document based upon achieving a certain Debt Service Coverage Ratio. Such calculation shall be subject to Administrative Agent’s review and approval in all respects. “Default” means any condition or event which with the giving of notice or lapse of time or both would, unless cured or waived, become an Event of Default. “Default Rate” means the lesser of (a) the interest at a rate per annum that is three percent (3%) in excess of the rate or rates otherwise in effect under this Agreement or (b) the Maximum Legal Rate. “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. “Defaulting Lender” means, subject to Section 8.13.2, any Lender that (a) has failed to (i) fund all or any portion of its advances within two (2) Business Days of the date such advances were required to be funded hereunder unless such Lender notifies Administrative Agent and Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to advances (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to Administrative Agent or any Lender any other amount required to be paid by it hereunder within two (2) Business Days of the date when due, (b) has notified Borrower or Administrative Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund an advance hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by Administrative Agent or Borrower to confirm in writing to Administrative Agent and Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by Administrative Agent and Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the
PAGE B-11 Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow, or disaffirm any contracts or agreements made with such Lender. Any determination by Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 8.13.2) as of the date established therefor by Administrative Agent in a written notice of such determination, which shall be delivered by Administrative Agent to Borrower and each Lender promptly following such determination. “Delaware LLC” means any limited liability company organized or formed under the laws of the State of Delaware. “Delaware Divided LLC” means any Delaware LLC which has been formed upon the consummation of a Delaware LLC Division. “Delaware LLC Division” means the statutory division of any Delaware LLC into two or more Delaware LLCs pursuant to Section 18-217 of the Delaware Limited Liability Company Act, as amended from time to time. “Designated Jurisdiction” means any country or territory to the extent that such country or territory itself is the subject of any Sanction. “Determination Date” has the meaning set forth in Exhibit J. “Disqualified Person” means, as of the time this Agreement requires the determination of whether a Person is a Disqualified Person, any Person or any Related Name (as defined below) which: (i) is then or has been in monetary or material non-monetary default under any extension of credit by the Reference Lender (as defined below) or any of its Affiliates with respect to which a formal “event of default” has been declared; (ii) has committed any Bad Act (as defined below); (iii) has commenced, or been a participant in any legal or other adversarial proceeding (including pursuant to a counterclaim or cross-claim), against the Reference Lender; or (iv) has been convicted of or is under indictment for a felony. Notwithstanding anything herein to the contrary, the Reference Lender shall be permitted to waive any fact or circumstance that would cause any Person to be a Disqualified Person, and upon such waiver in writing, such Person shall not constitute a Disqualified Person hereunder. For purposes of this definition: “Bad Act” means, in relation to any Person, (a) the filing by such Person or any Related Name of a petition for relief under any Debtor Relief Law, (b) the filing against such Person or any Related Name of an involuntary proceeding under any Debtor Relief Law if such Person or any Related
PAGE B-12 Name shall have consented to, or colluded with any other Person to cause, the commencement of such proceeding, (c) the making by such Person or any Related Name of a general assignment for the benefit of creditors, other than with respect to a deed-in-lieu or assignment-in-lieu of foreclosure, (d) the application by such Person or any Related Name for appointment of a receiver, trustee, custodian or liquidator of such Person or any Related Name or its property (other than at the request of any credit provider or any of its Affiliates), (e) in connection with any extension of credit made to such Person or any Related Name, by the Reference Lender or any of its Affiliates, (i) any fraud or willful misconduct on the part of such Person or any Related Name, (ii) any material misrepresentation on the part of such Person or any Related Name, (iii) any intentional physical waste of any material portion of the collateral security for any extension of credit made to such Person or any Related Name or, (f) in connection with any extension of credit made to such Person or any Related Name by the Reference Lender or any of its Affiliates that is (or was) secured by real property, (i) the material misappropriation of (y) any insurance or condemnation proceeds or awards or rents received by it in accordance with the terms of the applicable credit documents or (z) any funds from any account pledged to or for the benefit of the credit provider; (ii) a voluntary transfer of the collateral for such extension of credit or a change in control of such Person or any Related Name that was in violation of the applicable credit documents; or (iii) the commission of any acts by such Person or any Related Name in bad faith to hinder, contest or interfere with the exercise of rights or remedies by the credit provider unless no event of default under such credit then existed. “Reference Lender” means PNC Bank or such other Lender as may be appointed from time to time as the successor Administrative Agent. “Related Individual” means, (a) in relation to any Person that is an entity, any member of the entity’s board of directors, board of managers or similar governing body, any senior officer of such entity, and any holder of twenty-five percent (25%) or more of the ownership, beneficial, capital or profits interests in such entity and (b) in relation to any Person described in the foregoing clause (a) who is a natural person, members of such Person’s Family. For these purposes, the “Family” of an individual includes (i) the individual, (ii) the individual’s spouse, and (iii) any other natural person who is related to the individual within the second degree. “Related Name” means, in relation to any Person, any Related Individual of such Person, or any Affiliate of such Person or Related Individual, or any Related Individual of such Affiliate (which, for purposes of this definition, shall also include a Person that owns, directly or indirectly, twenty- five percent (25%) or more of the equity interests of the affiliated Person). “Draw Request” means a properly completed and executed application by Borrower to Administrative Agent in the form of Exhibit C-1 (used for disbursement of insurance proceeds or condemnation awards) or Exhibit C-2 (used for disbursement of Reserve Funds), or another format approved by Administrative Agent (including, but not limited to, on an electronic transmission system, or by submission through the Online Banking Portal) setting forth the amount of Loan proceeds desired. “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.
PAGE B-13 “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 Federal Funds Rate” means for any day the rate per annum (based on a year of 360 days and actual days elapsed) and rounded upward to the nearest 1/100 of 1% announced by the Federal Reserve Bank of New York (or any successor) on such day as being the weighted average of the rates on overnight federal funds transactions arranged by federal funds brokers on the previous trading day, as computed and announced by such Federal Reserve Bank (or any successor) in substantially the same manner as such Federal Reserve Bank computes and announces the weighted average it refers to as the “Effective Federal Funds Rate” as of the date of this Agreement; provided that if such Federal Reserve Bank (or its successor) does not announce such rate on any day, the “Effective Federal Funds Rate” for such day shall be the Effective Federal Funds Rate for the last day on which such rate was announced. Notwithstanding the foregoing, if the Effective Federal Funds Rate as determined under any method above would be less than zero percent (0.00%), such rate shall be deemed to be zero percent (0.00%) for purposes of this Agreement. “Electronic Copy” has the meaning set forth in Section 9.2.2. “Electronic Record” has the meaning set forth in Section 9.2.2. “Electronic Signature” has the meaning set forth in Section 9.2.2. “Eligible Account” means a separate and identifiable account from all other funds held by the holding institution that is either (a) an account or accounts maintained with PNC Bank or any other federal or state chartered depository institution or trust company which complies with the definition of Eligible Institution or (b) a segregated trust account or accounts maintained with the corporate trust department of a federal or state chartered depository institution or trust company acting in its fiduciary capacity which, in the case of a federally chartered depository institution or trust company acting in its fiduciary capacity is subject to the regulations regarding adversary funds on deposit therein under 12 C.F.R. §9.10(b), and in the case of a state chartered depository institution or trust company, is subject to regulations substantially similar to 12 C.F.R. §9.10(b), having in either case a combined capital surplus of at least $50,000,000 and subject to supervision or examination by federal and state authority. An Eligible Account shall not be evidenced by a certificate of deposit, passbook or other instrument. “Eligible Assignee” means any Person that meets the requirements to be an assignee under Sections 9.4(b)(iii) and (v) (subject to such consents, if any, as may be required under Section 9.4(b)(iii)). “Eligible Institution” means a depository institution or trust company insured by the Federal Deposit Insurance Corporation, the short term unsecured debt obligations or commercial paper of which are rated at least “A 1+” by S&P, “P 1” by Moody’s and “F 1+” by Fitch in the case of accounts in which funds are held for thirty (30) days or less (or, in the case of accounts in which funds are held for more than thirty (30) days, the long term unsecured debt obligations of which are rated at least “A+” by Fitch and S&P and “Aa3” by Moody’s), or such other depository institution or trust company reasonably approved by Administrative Agent from time to time. Notwithstanding the foregoing, PNC Bank shall be an Eligible Institution. “Environmental Agreement” means the Amended and Restated Environmental Indemnification and Release Agreement, dated as of the Closing Date, by and among Borrower, Guarantor and
PAGE B-14 Administrative Agent for the benefit of Lenders and certain other parties, as amended, modified, replaced, restated, extended or renewed from time to time. “Environmental Assessment” means a written report (including all drafts thereof) of an environmental assessment of the Property of such scope as may be requested by Administrative Agent, including the taking of soil borings and air and groundwater samples and other above- and below-ground testing, by an engineering firm acceptable to Administrative Agent and made in accordance with Administrative Agent’s established guidelines. “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, as amended, and the rules and regulations promulgated thereunder. “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time. “Event of Default” has the meaning set forth in Section 7.1. “Excess Cash Flow” means, for any calendar month, an amount equal to: (a) actual gross revenues of Borrower for such calendar month attributable to the Property (including, without limitation, all rentals, room charges, service and other fees or charges, license fees, parking fees and other revenues and cash payments of any kind received by the Borrower), less (b) an amount equal to (i) actual operating expenses paid by Borrower during such calendar month and attributable to the Property, as reasonably approved by Administrative Agent (including interest and principal (if any) due with respect to the Loan and provided, that such calculation shall (A) include management fees paid or payable and allocable to such month, but in an amount not to exceed 3.00% of the amount calculated pursuant to clause (a) above for any such month; (B) include any reserves funded pursuant to the terms of the Loan Documents or which are otherwise deemed necessary by Borrower for the operation, maintenance or improvement of the Property and approved by Administrative Agent in its reasonable discretion; (C) include leasing commissions paid by Borrower during such month other than those payable to affiliates of the Borrower; and (D) exclude depreciation, amortization, other non-cash items and any amounts payable to affiliates of the Borrower (other than management fees referenced in clause (b)(i)(A) above)), plus (ii) the pro-rated portion of income taxes (if any) allocable to such calendar month, together with principal and interest paid with respect to the Loan for such calendar month. “Excluded Swap Obligation” means, with respect to any Borrower, any Swap Obligation of another Borrower as to which such Borrower is jointly and severally or otherwise liable pursuant to the terms of this Agreement or any other Loan Document if, and to the extent that, the incurrence of Obligations by such Borrower in respect of such Swap Obligation, or the grant under a Loan Document by such Borrower of a security interest to secure such Swap Obligation (or any guaranty thereof), is or becomes illegal under the Commodity Exchange Act (or the application or official interpretation thereof) by virtue of such Borrower’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to Section 9.32(h) and any other “keepwell, support or other agreement” for the benefit of such Borrower and any and all guarantees of, or other credit support for, Swap Obligations provided by other Borrowers) at the time such Borrower becomes jointly and severally or otherwise liable with respect to such Swap Obligation or grants a security interest to secure same. If a Swap Obligation arises under a Master Agreement governing more than one Swap Contract, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to Swap Contracts for which such Obligations or security interest becomes illegal.
PAGE B-15 “Excluded Taxes” means any of the following Taxes imposed on or with respect to any 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 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 an advance of the Loan or a Commitment pursuant to a Law in effect on the date on which (i) such Lender acquires such interest in such advance of the Loan or Commitment (other than pursuant to an assignment request by Borrower under Section 2.7) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 2.1(a)(ii), (a)(iii) or (c), 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 2.1(e) and (d) any U.S. federal withholding Taxes imposed pursuant to FATCA. “Exelon” means Exelon Business Services Company, a Delaware limited liability company. “Exelon Sublease” means that certain Sublease dated as of January 26, 2022, by and between Constellation, as sublessor, and Exelon, as sublessee, as the same may be amended from time to time in accordance with the terms and conditions of this Agreement. “FATCA” means Sections 1471 through 1474 of the Code, as in effect on the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code. “Federal Funds Rate” means, for any day, the rate per annum calculated by the Federal Reserve Bank of New York based on such day’s federal funds transactions by depository institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the federal funds effective rate; provided that if the Federal Funds Rate as so determined would be less than zero, such rate shall be deemed to be zero for purposes of this Agreement. “FEMA” means the Federal Emergency Management Agency or any successor agency. “Financial Statements” means (i) for each reporting party other than an individual, a balance sheet, income statement, statements of cash flow and amounts and sources of contingent liabilities, a reconciliation of changes in equity and liquidity verification, cash flow projections, real estate schedules providing details on each individual real property in the reporting party’s portfolio, including, but not limited to raw land, land under development, construction in process and stabilized properties and unless Administrative Agent otherwise consents, consolidated and consolidating statements if the reporting party is a holding company or a parent of a subsidiary entity; and (ii) for each reporting party who is an individual, a balance sheet, statements of amount and sources of contingent liabilities, statements of amounts and sources of recourse debt, sources and uses of cash and liquidity verification and, with respect to other projects (retail, office, land, etc.) in which a reporting party owns a direct or indirect legal or beneficial interest, a schedule setting forth, with respect to each such project, its ownership, value, debt, equity, net operating income, rent roll, debt service, net cash flow, debt recourse and other pertinent financial information, plus such additional information as Administrative Agent may request from time to time, including, but not limited to, Financial Statements for each entity which owns such a project. Notwithstanding the foregoing, the reporting party shall not be required to provide such additional information with respect to one or more other projects in which such reporting party acquires a direct or
PAGE B-16 indirect legal or beneficial interest on or after the date of this Agreement to the extent that the assets, liabilities and contingent liabilities, respectively, associated with such project or projects are equal to or less than five percent (5%) of the reporting party’s total assets, liabilities, and contingent liabilities, respectively, at the time of the request. For purposes of this definition and any covenant requiring the delivery of Financial Statements, each party for whom Financial Statements are required is a “reporting party” and a specified period to which the required Financial Statements relate is a “reporting period”. “Flood Insurance Laws” means, collectively, (a) the National Flood Insurance Act of 1968, (b) the Flood Disaster Protection Act of 1973, and (c) the National Flood Insurance Reform Act of 1994, and any regulation promulgated thereto, and any regulation promulgated thereto, each as amended and together with any successor Law of such type. “Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to Daily Simple SOFR or, if no floor is specified, zero. “Foreign Lender” means (a) if Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if 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 Borrower is resident for tax purposes. For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction. “Fund” means any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities. “Garage” means the 747-space parking garage located on floors 1 through 7 of the Improvements, and used by tenants of the Office Unit and the Retail Unit. “Governmental Authority” or “Governmental Authorities” means the government of the United States or any other nation, or of 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 (including any supra-national bodies such as the European Union or the European Central Bank). “Guarantor” means AH Realty Trust, LP, a Virginia limited partnership (the “Operating Partnership”) and AH Realty Trust, Inc., a Maryland corporation (the “REIT”), individually or collectively, as the context requires. “Guaranty” means that certain Amended and Restated Guaranty Agreement of even date herewith made by Guarantor in favor of Administrative Agent with regard to the Loan, as further amended, modified, supplemented, restated and replaced from time to time in accordance herewith. “Hedge Bank” means any Person in its capacity as a Swap Counterparty. “Holdings” means Harbor Point Parcel 2 Holdings, LLC, a Delaware limited liability company. “Improvements” means all buildings, structures and replacements thereof and other improvements now or hereafter existing, erected or placed on the Land, including all plant, equipment, apparatus, machinery and fixtures of every kind and nature whatsoever forming part of said structures and/or buildings together with any on-site improvements and off-site improvements in any way used or to be used in connection with the use, enjoyment, occupancy or operation of the Land.
PAGE B-17 “Indebtedness” means any and all obligations, indebtedness and liabilities of Borrower that constitute Obligations. “Indemnified Liabilities” has the meaning set forth in Section 9.1.2. “Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of Borrower or any Guarantor under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes. “Insurance Premiums” means those premiums due in connection with any insurance policies required to be maintained by Borrower pursuant to any Loan Document. “Insurance Proceeds” means the insurance claims under and the proceeds of any and all policies of insurance covering the Property or any part thereof, whether or not such insurance policies are required by Administrative Agent, including interest thereon and all in each case whether now or hereafter existing or arising. “Land” means the real property described in Exhibit A. “Land Condominium Documents” means the Declaration of Condominium for Harbor Point Master Land Condominium dated March 21, 2014 and recorded among the Land Records of Baltimore City, Maryland in Liber FMC No. 16101, Page 424 by Harbor Point Land, LLC and all amendments thereto, the By-laws, the plats and plans and all exhibits, schedules or certification accompanying any of the foregoing and all requisite approvals from Governmental Authorities required to create and operate the condominium in accordance with applicable Laws, each as approved by Administrative Agent pursuant to this Agreement. “Law” or “Laws” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law. With respect to Borrower and the Property, “Law” or “Laws” includes all Laws pertaining to the construction, sale, leasing or use of the Improvements and to access and facilities for handicapped or disabled persons, including and to the extent applicable, any building codes, the Controlled Substances Act, the Flood Insurance Laws, the Federal Architectural Barriers Act (42 U.S.C. § 4151 et seq.), the Fair Housing Amendments Act of 1988 (42 U.S.C. § 3601 et seq.), the Americans With Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.), the Rehabilitation Act of 1973 (29 U.S.C. § 794), each as amended to date and further amended from time to time. “Lease(s)” means all leases, subleases, license agreements and other occupancy or use agreements (whether oral or written), now or hereafter existing, which cover or relate to the Property or any part thereof, together with all options therefor, amendments thereto and renewals, modifications and guaranties thereof, including any cash, letter of credit or other security for payments and performance of the tenants’ obligations under the Leases, whether such security is to be held until the expiration of the terms of the Leases or applied to one or more of the installments of Rent coming due thereunder. Notwithstanding the foregoing, (a) any sublease, license or other occupancy agreement entered into by the tenant under an Approved Lease in accordance with the terms of such Approved Lease (and that does not require landlord consent under the terms of the Approved Lease), shall not require the consent of Administrative Agent or any Lender, and (b) Borrower makes no representation, warranty, or covenant hereunder or under the other Loan Documents regarding any sublease to the extent it is not party to any sublease.
PAGE B-18 “Lease Termination Fee Deposit” has the meaning set forth in Section 1.9.2(b). “Leasing Commissions” means leasing commissions and similar obligations incurred by Borrower in connection with the leasing of the Property. “Leasing Costs” means tenant improvement allowances, tenant relocation costs, turnkey work, demolition, landlord work, space planning and all hard and soft costs associated with preparing the applicable space for tenant occupancy which are not costs of Tenant Improvements or Leasing Commissions. “Leasing Reserve Account” means a sub-account of the Cash Management Account into which the deposits required pursuant to Section 1.9.2 of this Agreement are to be made, being Account # 8591228133. “Lender” or “Lenders” means, singly or collectively, each lender from time to time party to this Agreement. “Lending Office” means, as to any Lender, the office or offices of such Lender described as such on the Schedule of Lenders, or such other office or offices as such Lender may from time to time notify Borrower and Administrative Agent. “Loan” means the loan by Lenders to Borrower, in the amount of One Hundred Twenty-One Million Eight Hundred Thousand and No/100 Dollars ($121,800,000.00). “Loan Documents” means this Agreement, any Note, the Mortgage, the Environmental Agreement, the Guaranty, the Manager Subordination Agreement, any guaranty, any Swap Contract, and any and all other documents which Borrower, Guarantor or any other party or parties have executed and delivered, or may hereafter execute and deliver, to evidence, secure or guarantee the Obligations, or any part thereof, as the same may from time to time be extended, amended, restated, supplemented or otherwise modified. “Manager” means, as applicable, (a) with respect to the Office Unit and the Retail Unit, Beatty Management Group, LLC, a Maryland limited liability company, (b) [intentionally omitted], (c) with respect to the Garage, SP Plus Corporation, a Delaware corporation, and (d) any replacement manager for the Property engaged by Borrower in accordance with this Agreement. “Management Agreement” means, as applicable, (a) with respect to the Office Unit and the Retail Unit, that certain Management Services Agreement dated as of January 14, 2022, by and among Office Borrower, Retail Borrower, and Manager, (b) [intentionally omitted], (c) with respect to the Garage, a parking management agreement to be entered into subsequent to the Closing Date, by and between Borrower and Manager, and (d) any replacement management agreement for the Property entered into by one (1) or more Borrower and Manager in accordance with this Agreement. “Manager Subordination Agreement” means, as applicable, (a) with respect to the Office Unit and the Retail Unit, that certain Assignment of Management Agreement and Subordination of Management Agreement and Fees dated as of the Original Closing Date, by and among Administrative Agent (as successor to Bank of America, N.A.), Office Borrower, Retail Borrower and the Manager as of the Closing Date, (b) [intentionally omitted], (c) with respect to the Garage, that certain Assignment of Management Agreement and Subordination of Management Agreement and Fees dated as of the Closing Date, by and among Administrative Agent, Office Borrower, Retail Borrower and the Manager as of the Closing Date, and (d) any replacement manager subordination agreement entered into pursuant to Section 4.4(c) hereof or otherwise, in each case as amended, modified, replaced, restated, extended or renewed from time to time.
PAGE B-19 “Managing Member” means Harbor Point Parcel 2 Holdings LLC, a Delaware limited liability company. “Master Agreement” has the meaning set forth in the definition of “Swap Contract” set forth in this Exhibit. “Material Adverse Effect” means: (a) a material adverse change in, or a material adverse effect upon, the Property, or the operations, business, properties, liabilities (actual or contingent), condition (financial or otherwise, including credit rating) or prospects of Borrower, Guarantor or Borrower, Guarantor and their respective subsidiaries taken as a whole; (b) a material impairment of the ability of any party to the Loan Documents to perform its obligations under any Loan Document to which it is a party; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against any party to the Loan Documents of any Loan Document to which it is a party. “Material Condemnation” means a Condemnation (a) of any portion of the Property unless the portion so taken constitutes less than ten percent (10%) of the Land, such land is located along the perimeter or periphery of the Land and no portion of the Improvements is located on such land, or (b) of such portion of the Property, or any Unit, which when so taken would, in Administrative Agent’s reasonable determination, leave remaining a balance of the Property or such Unit which, due to the amount and/or nature of the area so taken and/or the location of the area taken in relation to the area not so taken, would not, under economic conditions, applicable zoning laws, building regulations and the requirements of this Agreement, the Leases and the Permitted Encumbrances permit the Restoration of the Property or such Unit. “Maturity Date” means October 28, 2029, as it may be earlier accelerated in accordance with the terms hereof. “Maximum Legal Rate” means the highest rate of interest that lenders may charge borrowers under applicable Law. “Minimum Retail Lease Rate” means the following rate per square foot on a “triple-net” basis, for the applicable retail space at the Property: Retail Space Minimum Retail Lease Rate Retail – Front Facing $36.00 Retail – Side Facing $27.00 Retail - Small $54.00 “Mortgage” means the Amended and Restated Deed of Trust, Assignment of Leases and Rents, Security Agreement, Fixture Filing and Financing Statement, dated as of even date herewith, and recorded or to be recorded in the Land Records of Baltimore City, Maryland (the “Land Records”), by Borrower and Holdings in favor of Administrative Agent for the benefit of the Lenders, securing repayment of the Indebtedness and Borrower’s performance of its other obligations to Administrative Agent and Lenders under the Loan Documents, as amended, modified, supplemented, restated, replaced, extended or renewed from time to time.
PAGE B-20 “Net Casualty Proceeds” means the amount of all Insurance Proceeds payable because of Casualty sustained to any part of the Property, after deduction for all out-of-pocket expenses incurred by Administrative Agent (including the fees of any insurance consultant or adjuster and reasonable attorneys’ fees) in connection with a Casualty and seeking and obtaining any Insurance Proceeds. “Net Disposition Proceeds” has the meaning set forth in Section 8.10(e). “Net Operating Income” means, with respect to any period of time, the amount obtained by subtracting actual Operating Expenses from Actual Operating Revenue. “Net Restoration Award” means the amount of any Condemnation Award, after deduction of the actual costs and out-of-pocket expenses (including reasonable attorneys’ fees and disbursements), if any, incurred in collecting the same. “Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all Lenders or all affected Lenders in accordance with the terms of Section 9.8 and (b) has been approved by the Required Lenders. “Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time. “Note” means, individually and collectively, one (1) or more certain Deed of Trust Notes each dated as of the Closing Date executed by Borrower and payable to the order of each Lender in the amount of each Lender’s Commitment and collectively in the maximum principal amount of the Loan, substantially in the form of Exhibit G, together with all replacements and substitutes thereof, in each case, as amended, modified, replaced, restated, extended or renewed from time to time. “Obligations” means all liabilities, obligations, covenants and duties of, Borrower arising under or otherwise with respect to any Loan Document or any Swap Contract, 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 Borrower or any other party to a Loan Document or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceedings. “OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury. “Office Borrower” means Harbor Point Parcel 2 – Office, LLC, a Delaware limited liability company. “Office Unit” means the “Office Unit” established pursuant to the Commercial Condominium Documents, together with all appurtenant interests thereto in common elements, all as more particularly described in the Commercial Condominium Documents. “Official Body” means the government of the United States of America or 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 (including any supra-national bodies such as the European Union or the European Central Bank) and any group or body charged with setting financial accounting or regulatory capital rules or standards (including the Financial Accounting Standards
PAGE B-21 Board, the Bank for International Settlements or Basel or any successor or similar authority to any of the foregoing). “Online Banking Portal” means any online banking portal and/or electronic transmission system as shall be made available by Administrative Agent for use by Borrower to conduct Online Facility Transactions in connection with the terms of this Agreement and the applicable Online Portal Agreements. “Online Portal Agreements” means all applicable treasury services agreements, terms and conditions (including any booklet with respect thereto), acceptance of services, cash management agreements and terms and conditions (including any booklet with respect thereto), supplements, addenda, amendments, setup and authorization forms, and/or any other documentation which Borrower is required to execute or agree to with respect to the use of, and conducting of any Online Facility Transactions on, the Online Banking Portal from time to time (including any of the foregoing agreed to or accepted by an Authorized Portal User in a “clickwrap” or “clickthrough” agreement on any such Online Banking Portal), and any and all amendments, restatements and modifications thereto. “Online Facility Transactions” means any transactions that Authorized Portal Users may execute on the Online Banking Portal, including but not limited to: (a) electronically view Borrower’s Loan information, (b) to upload documentation; and (c) to take any actions allowed under the Online Banking Portal based on the terms of the Online Portal Agreements, which may include, but not be limited to, making payments on the Loan, submitting Draw Requests, submitting rollover notices (if applicable), and any other actions which may be allowed under the Online Banking Portal at any time in the future, all in accordance with the terms of this Agreement and the Online Portal Agreements executed by Borrower. “Operating Expenses” means the greatest of (a) pro forma annualized operating expenses set forth in the Appraisal approved by Administrative Agent in connection with the Loan closing (i.e. for any Determination Date (i) prior to April 1, 2028, $11,060,468.00 per year, (ii) after April 1, 2028, but before April 1, 2029, $11,407,070.00 per year, and (iii) after April 1, 2029, $11,750,114.00 per year), (b) actual expenses paid or payable of whatever kind relating to the ownership, operation, maintenance or management of the Property during the Calculation Period, computed on an annualized basis in accordance with generally accepted accounting principles (including proration of real estate Taxes and Insurance Premiums), and (c) actual expenses paid or payable of whatever kind relating to the ownership, operation, maintenance or management of the Property during the twelve (12) month period immediately preceding the Determination Date. Operating Expenses will be adjusted to account for: (i) management fees equal to the greater of 3.00% of Actual Operating Revenue or the management fees actually paid under any management agreement, (ii) [intentionally omitted], (iii) Replacement Reserve required pursuant to Section 1.9 of this Agreement, and (iv) a vacancy factor equal to the greater of actual vacancy or five percent (5%) for the Office Unit and ten percent (10%) for the Retail Unit and parking. Operating Expenses specifically exclude depreciation and amortization, income Taxes, debt service on the Loan, and any item of expense that would otherwise be covered by the provisions hereof but which is paid by any tenant under such tenant’s Lease or other agreement provided such reimbursement by tenant is not included in the calculation of Actual Operating Revenue. Operating Expenses shall be subject to appropriate seasonal and other adjustments in Administrative Agent’s reasonable discretion. “OREO Property Manager” has the meaning specified in Section 8.10(b). “Original Closing Date” means January 14, 2022. “Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its
PAGE B-22 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 any interest in the Loan or any 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 a 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 9.11). “Overnight Bank Funding Rate” means, for any day, the rate per annum (based on a year of 360 days and actual days elapsed) comprised of both overnight federal funds and overnight Eurocurrency borrowings by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the Federal Reserve Bank of New York, as set forth on its public website from time to time, and as published on the next succeeding Business Day as the overnight bank funding rate by the Federal Reserve Bank of New York (or by such other recognized electronic source (such as Bloomberg) selected by Administrative Agent for the purpose of displaying such rate); provided, that if such day is not a Business Day, the Overnight Bank Funding Rate for such day shall be such rate on the immediately preceding Business Day; provided, further, that if such rate shall at any time, for any reason, no longer exist, a comparable replacement rate shall be determined by Administrative Agent at such time (which determination shall be conclusive absent manifest error). If the Overnight Bank Funding Rate determined as above would be less than zero, then such rate shall be deemed to be zero. The rate of interest charged shall be adjusted as of each Business Day based on changes in the Overnight Bank Funding Rate without notice to Borrower. “Owners” means a member, partner, shareholder or other equity owner of a Person, including a holder of preferred equity. “PACE Financing” means any property assessed clean energy financing or similar energy efficiency or renewable energy financing repaid through assessments against property (without regard to the name given to such financing). “Parking Easement” means the Amended and Restated Parking Easement Agreement dated October 2019, by and among Harbor Point Parcel 2 – Office, LLC, Harbor Point Parcel 2 – Retail, LLC, Harbor Point Parcel 2 – Residential, LLC, Harbor Point Parcel 2 – Transfer Station, LLC, Harbor Point Garage, LLC, Harbor Point Parcel 1 Holdings, LLC, Harbor Point Parcel 3 Holdings, LLC and Harbor Point Open Space Corp. and recorded among the land records of Baltimore City, Maryland in Book 21538, Page 479, as amended and restated by that certain Second Amendment and Restated Easement Agreement (Harbor Point) dated January 14, 2022, by and among Harbor Point Parcel 2 – Office, LLC, Harbor Point Parcel 2 – Retail, LLC, Harbor Point Parcel 2 – Residential, LLC, Harbor Point Parcel 2 – Transfer Station, LLC, Harbor Point Garage, LLC, Harbor Point Parcel 1 Holdings, LLC, Harbor Point Parcel 3 Development, LLC, Harbor Point Open Space Corp. and Harbor Point Parcel 4 Development, LLC, recorded among the land records of Baltimore City, Maryland in Book 24275, Page 5. “Participant” has the meaning specified in Section 9.4(d). “Participant Register” has the meaning specified in Section 9.4(d). “PATRIOT Act” has the meaning specified in Section 9.21. “Payments” has the meaning set forth in Section 8.11.
PAGE B-23 “Permitted Debt” means (a) sums owed by Borrower from time to time under any Swap Contract and (b) unsecured trade payables incurred by Borrower in the ordinary course of operating the Property which (i) do not exceed, at any time, $250,000.00, and (ii) are paid within thirty (30) days of the date incurred. “Permitted Encumbrances” means the encumbrances set forth in Exhibit L. “Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity. “Plans and Specifications” means any and all plans and specifications prepared in connection with the construction of any Improvements and approved in writing by Administrative Agent, as the same may from time to time be amended with the prior written approval of Administrative Agent. “Platform” has the meaning set forth in Section 9.2.6(b). “PNC Bank” means PNC Bank, National Association, a national banking association. “Principal Debt” means the aggregate unpaid principal balance of the Loan at the time in question. “Principal Office” means the main banking office of Administrative Agent in Pittsburgh, Pennsylvania, or such other office designated by Administrative Agent. “Prohibited Person” means any individual or entity that is (a) currently the subject or target of any Sanctions, (b) included on OFAC’s List of Specially Designated Nationals, HMT’s Consolidated List of Financial Sanctions Targets and the Investment Ban List, or any similar list enforced by any other relevant sanctions authority, (c) any individual or entity that is owned or Controlled by, acting on behalf of, or an Affiliate of, an individual or entity listed in the previous clause (a) or (b), or (d) located, organized or resident in a Designated Jurisdiction. “Property” means the Units, the Improvements and all other property constituting the “Property,” as described and defined in the Mortgage, or subject to a right, lien or security interest to secure the Indebtedness and Obligations pursuant to any other Loan Document. “Property Condition Report” means that certain Property Condition Report – Mortgage Financing, Constellation Tower, 1310 Point Street, Baltimore, MD 21231, dated September 30 2026, prepared by CBRE, Inc. (CBRE Project No. CB26US098197-1). “Property Schedules” means any one or combination of the following, as reasonably determined by Administrative Agent based on (x) the Property type and (y) whether the Improvements have been placed in operation: property operating statements, rent rolls, leasing status reports (including tenants’ names, occupied tenant space, Lease terms, Rents, vacant space and proposed Rents), sales reports, inventory reports, capital and operating budgets. “Pro Rata Share” means, with respect to each Lender at any time, a fraction expressed as a percentage, the numerator of which is the amount of the Commitment of such Lender at such time and the denominator of which is the amount of the Aggregate Commitments at such time or, if the Aggregate Commitments have been terminated, a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the total outstanding amount of all Indebtedness held by such Lender at such time and the denominator of which is the total outstanding amount of all Indebtedness at such time.
PAGE B-24 The initial Pro Rata Share of each Lender named on the signature pages hereto is set forth opposite the name of that Lender on the Schedule of Lenders. “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 9.2.6(b). “Purchase Offer” has the meaning set forth in Section 8.10(e). “QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D). “QFC Credit Support” has the meaning set forth in Section 9.23. “REA” means, separately and collectively, (a) that certain Easement and Cost Sharing Agreement dated March 21, 2014 by and among Harbor Point Parcel 1 Holdings, LLC, Borrower (as successor to Harbor Point Parcel 2 Holdings, LLC), Harbor Point Parcel 3 Holdings, LLC, Harbor Point Parcel 4 Holdings, LLC, Harbor Point Garage, LLC, Harbor Point Open Space Corp., Block Street Apartments, LLC and Wills Street Pier, LLC as recorded in Liber 16123, page 482, as amended by that certain First Amendment to Easement and Cost Sharing Agreement dated January 3, 2018 and recorded among the Land Records of Baltimore, Maryland at Book LGA 19817, page 475, and (b) that certain Declaration of Easements, Covenants, Restrictions and Agreements (Harbor Point Parcel 2 Commercial Condominium) dated October 21, 2019, and recorded on October 29, 2019 at 3:08 pm, among the Land Records of Baltimore City, Maryland in Book 21538, page 336, by Harbor Point Parcel 2-Office, LLC, a Delaware limited liability company, Harbor Point Parcel 2-Residential, LLC, a Delaware limited liability company, Harbor Point Parcel 2-Retail, LLC, a Delaware limited liability company and Harbor Point Parcel 2- Transfer Station, LLC, a Delaware limited liability company, as amended by First Amendment to Declaration of Easements, Covenants, Restrictions and Agreements dated May 20, 2026, and recorded among the Land Records of Baltimore City, Maryland in Book 29107, Page 497. “Real Property Taxes” mean taxes, assessments and other charges or levies imposed upon or against or with respect to the Property or the ownership, use, occupancy or enjoyment of any portion thereof, or any utility service thereto, as the same become due and payable, including all taxes assessed against the Property or any part thereof. “Recipient” means Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of Borrower or any Guarantor hereunder. “REIT” has the meaning set forth in the definition of “Guarantor”. “Register” has the meaning set forth in Section 9.4(c). “Related Party” or “Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and such Person’s Affiliates. “Release Condition” and “Release Conditions” have the meanings set forth in Section 4.8(e)(i). “Relevant Governmental Body” means the Board of Governors of the Federal Reserve System and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of
PAGE B-25 Governors of the Federal Reserve System and/or the Federal Reserve Bank of New York, or any successor thereto. “Rents” means all of the rents, royalties, issues, profits, revenues, earnings, income and other benefits of the Property or any part thereof, or arising from the use or enjoyment of the Property or any part thereof, including all such amounts paid under or arising from any of the Leases and all fees, charges, accounts or other payments for the use or occupancy of rooms or other public facilities within the Property or any part thereof. “Replacement Note” has the meaning specified in Section 9.4(b). “Replacement Reserve Account” means a sub-account of the Cash Management Account into which the deposits required pursuant to Section 1.9.1(a) are to be made, being Account # 8591228141. “Replacement Reserve Funds” means all funds from time to time on deposit in the Replacement Reserve Account. “Replacement Reserve Monthly Deposit” has the meaning set forth in Section 1.9.1(a). “Replacements” means the replacements and capital improvements required for the maintenance, repair, and restoration of the Property in the ordinary course of business. “Required Lenders” means as of any date of determination at least two (2) Lenders having at least 66-2/3% of the Aggregate Commitments or, if the Aggregate Commitments have been terminated, at least two Lenders holding in the aggregate at least 66-2/3% of the total outstanding amount of all Indebtedness; provided that the Commitment of, and the portion of the total outstanding amount of all Indebtedness held by, any Defaulting Lender shall be excluded for purposes of making a determination of the Required Lenders. At any time that there is only one (1) Lender, then “Required Lenders” shall mean such Lender. At any time that there are only two (2) Lenders, then, subject to the following sentence, “Required Lenders” shall mean each such Lender. At any time that all but one (1) of the Lenders are Defaulting Lenders, then “Required Lenders” shall mean the non-Defaulting Lender. “Requirements” means, collectively, all orders, restrictions and requirements of, and all agreements with and commitments to, any Governmental Authority, including any utility district or similar authority, having jurisdiction over the Property, including all laws, ordinances and resolutions relating to zoning, land use, building, health and environmental requirements, all subdivision and platting requirements, all recorded covenants and restrictions affecting the Property, sound building and engineering practices, and any similar order, ordinance, resolution or requirement, whether or not having the force of law. “Rescindable Amount” has the meaning set forth in Section 1.7(b). “Reserve Accounts” means, collectively, the Replacement Reserve Account and the Leasing Reserve Account. “Reserve Funds” means, collectively, Replacement Reserve Funds and the Leasing Reserve Funds. “Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority. “Restoration” means in case of a Casualty or a Condemnation, the restoration, replacement or rebuilding of the portion of the Property affected by the Casualty or Condemnation substantially in
PAGE B-26 accordance with plans and specifications approved by Administrative Agent such that when such restoration, replacement or rebuilding is completed, the Property shall have been restored, in the case of any Casualty, substantially to the same character and condition as prior to such Casualty, and in the case of any Condemnation, to an integral unit as substantially similar as possible, taking into account the extent of the Condemnation, to the character and condition of the Property prior to such Condemnation and otherwise in accordance with this Agreement, all Laws, the Leases and the Requirements, including the Condominium Documents. In any case, Restoration shall (a) provide substantially the same (but in no case less than what is required by Law, the Leases and the Requirements, including the Condominium Documents) amount and type of, and rights with respect to, utilities and parking spaces applicable to the Property as existed prior to such Casualty or Condemnation, (b) provide sufficient (in Administrative Agent’s reasonable determination) access across and over the Property to the public roads and highways, and (c) be such that the loan-to-value ratio of the Property, as determined by an appraisal at Borrower’s expense in form and substance acceptable to Administrative Agent performed by an appraiser acceptable to Administrative Agent, as of the date that the Restoration is complete, together with the amount of any net proceeds or Net Restoration Award received by Administrative Agent and applied in repayment of the Principal Debt, shall be equal to or less than the loan-to-value ratio immediately prior to such Casualty or Condemnation, as reasonably determined by Administrative Agent. “Retail Borrower” means Harbor Point Parcel 2 – Retail, LLC, a Delaware limited liability company. “Retail Unit” means the “Retail Unit” established pursuant to the Commercial Condominium Documents, together with all appurtenant interests thereto in common elements, all as more particularly described in the Commercial Condominium Documents. “Sanction(s)” means any sanction administered or enforced by the United States Government (including OFAC), the United Nations Security Council, the European Union, His Majesty’s Treasury (“HMT”) or other relevant sanctions authority. “Schedule of Lenders” means the schedule of Lenders party to this Agreement as set forth on Exhibit H, as it may be modified from time to time in accordance with this Agreement. “Secured Party Designation Notice” means a notice from any Lender or an Affiliate of a Lender substantially in the form of Exhibit T. “SOFR” means, for any day, a rate equal to the secured overnight financing rate as administered by the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate). “SOFR Floor” means a rate of interest per annum equal to zero basis points (0.00%). “Special Flood Hazard Area” means an area identified as such by the Administrator of FEMA using FEMA’s Flood Insurance Rate Map or FEMA’s Flood Hazard Boundary Map. “Supported QFC” has the meaning set forth in Section 9.23. “Survey” means a map or plat of survey of the Land which conforms with Administrative Agent’s survey requirements set forth on Exhibit S or as otherwise approved by Administrative Agent in its sole discretion.
PAGE B-27 “Swap Contract” means any agreement, whether or not in writing, relating to any Swap Transaction, including, unless the context otherwise clearly requires, any agreement or contract that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act and CFTC Regulation 1.3(xxx), any form of master agreement (the “Master Agreement”) published by the International Swaps and Derivatives Association, Inc., and any other master agreement, entered into on or prior to the Closing Date or any time after the Closing Date, between Swap Counterparty and Borrower (or its Affiliate), together with any related schedule and confirmation, as amended, supplemented, superseded or replaced from time to time. “Swap Counterparty” means any Person in its capacity as a party to a Swap Contract that, at the time it enters into a Swap Contract not prohibited under this Agreement, is a Lender or an Affiliate of a Lender, in its capacity as a party to such Swap Contract (even if such Person ceases to be a Lender or such Person’s Affiliate ceased to be a Lender); provided, in the case of a Swap Contract with a Person who is no longer a Lender (or Affiliate of a Lender), such Person shall be considered a Swap Counterparty only through the stated termination date (without extension or renewal) of such Swap Contract and provided, further, that for any of the foregoing to be included as a “Swap Contract” on any date of determination by Administrative Agent, the applicable Hedge Bank (other than Administrative Agent or an Affiliate of Administrative Agent) must have delivered a Secured Party Designation Notice to Administrative Agent prior to such date of determination. “Swap Obligation” means any obligation to pay or perform under any Swap Contract, or any other agreement, contract or transaction entered into in connection with a Swap Transaction. “Swap Transaction” means any transaction that is a rate swap transaction, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap or option, bond option, note or bill option, interest rate option, forward foreign exchange transaction, cap transaction, spot or floor transaction, collar transaction, floor transaction, currency swap transaction, cross-currency rate swap transaction, swap option, currency option, credit swap or default transaction, T-lock, or any other similar transaction (including any option to enter into the foregoing) or any combination of the foregoing, entered into prior to the Closing Date or any time after the Closing Date between Swap Counterparty and Borrower (or its Affiliate) so long as a writing, such as a Swap Contract, evidences the parties’ intent that such obligations shall be secured by the Mortgage in connection with the Loan. “Sweep Date” has the meaning set forth in Exhibit J. “Tax” or “Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto. “Tenant Improvements” means the construction and related work to be undertaken by Borrower pursuant to any Lease as tenant improvements. “Term SOFR Screen Rate” means the forward-looking SOFR term rate administered by CME (or any successor administrator satisfactory to Administrative Agent) and published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by Administrative Agent from time to time). “Title Company” means Stewart Title Guaranty Company. “Title Insurance” means the loan policy or policies of title insurance issued to Administrative Agent for the benefit of Lenders by the Title Company, in an amount equal to the maximum principal amount of
PAGE B-28 the Loan, insuring the validity and priority of the Mortgage encumbering the Land and Improvements for the benefit of Administrative Agent and Lenders, as further described in Exhibit C hereto. “Title Insurance Report” means an update of the Title Insurance in a form and substance satisfactory to Administrative Agent. “Transaction Administration Letter” means a certificate provided by or on behalf of Borrower in the form attached hereto as Exhibit Q, or such other form acceptable to Administrative Agent, designating certain Authorized Persons and Authorized Signers as set forth therein. “Transfer” has the meaning set forth in Section 5.5(a). “Transfer Station Borrower” means Harbor Point Parcel 2 – Transfer Station, LLC, a Delaware limited liability company. “Transfer Station Lease” means that certain Lease and Agreement Regarding Transfer Station (Lease II), dated as of February 10, 2017, but effective as of June 16, 2016, by and between Transfer Station Borrower (as successor in interest to Holdings), as landlord, and Honeywell International, Inc., a Delaware corporation, as tenant, with respect to the Transfer Station Unit. “Transfer Station Unit” means the “Transfer Station Unit” established pursuant to the Commercial Condominium Documents, together with all appurtenant interests thereto in common elements, all as more particularly described in the Commercial Condominium Documents. “Trigger Event” means the occurrence of one or more of the following: (a) the Debt Service Coverage Ratio is less than 1.20 to 1.00 as of any Determination Date, (b) Constellation loses its investment grade credit rating from S&P or Moody’s, or (c) Constellation is no longer occupying any portion of its leased premises and the entire leased premises goes dark. For the purpose of the foregoing, “dark” shall mean that neither Constellation nor any permitted assignee, subtenant or other occupant claiming by, through, or under Constellation in accordance with the terms of this Agreement is occupying any portion of the Office Unit for a period of more than thirty (30) consecutive days; provided that any cessation of operations (a) because of a fire or other casualty, or a taking by condemnation, (b) in connection with a change of occupant pursuant to an Approved Office Lease or sublease permitted by this Agreement, (c) in connection with a remodeling, or (d) because of a force majeure, shall not constitute going “dark”. “Trigger Period” means any period commencing upon the occurrence of a Trigger Event and ending on a Cash Sweep Termination Date. “UCC” means the Uniform Commercial Code as in effect in the State of Maryland; provided that, if perfection or the effect of perfection or non-perfection or the priority of any security interest in any Property is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of Maryland, “UCC” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority. “UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person subject to IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
PAGE B-29 “UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution. “Unit” means the Office Unit, the Retail Unit, and/or the Transfer Station Unit, as applicable. “U.S. Government Securities Business Day” means any day except for (a) a Saturday or Sunday or (b) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities. “U.S. Person” means any Person that is a “United States person” as defined in Section 7701(a)(30) of the Code. “U.S. Special Resolution Regimes” has the meaning set forth in Section 9.23. “U.S. Tax Compliance Certificate” has the meaning specified in Section 2.1(e)(ii)(B)(III). “Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail- In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers. 2. FINANCIAL STATEMENTS AND COMPLIANCE CERTIFICATE. Borrower shall provide or cause to be provided to Administrative Agent with a copy for each Lender all of the following: (a) For Borrower: (i) annual Financial Statements, including a balance sheet, income statement, statement of cash flow, schedule of contingent liabilities and associated footnotes, within one hundred twenty (120) days after each fiscal year end (commencing with the fiscal year ended December 31, 2026); (ii) quarterly rent rolls and operating statements for the Property, as applicable, effective as of the end of the applicable quarter, but provided within forty-five (45) days after each quarter ending on each March 31, June 30, September 30 and December 31 (commencing with the fiscal quarter ended September 30, 2026); (iii) commencing on December 31, 2026, semi-annually on June 30th and December 31st of each year (and on March 31st and September 30th during a Trigger Period under clause (a) of the definition thereof), a compliance certificate evidencing compliance with the financial covenants set forth on Exhibit J in the form attached hereto as Exhibit D-1, effective as of the end of the applicable period but provided within forty-five (45) days after the applicable June 30th and December 31st dates (and on March 31st and September 30th during a Trigger Period under clause (a) of the definition thereof); and
PAGE B-30 (iv) commencing on December 31, 2026, quarterly on March 31st, June 30th, September 30th and December 31st of each year, a certification of Borrower that no Constellation Lease Cross Default has occurred and is continuing, and that Constellation remains in occupancy of all or a portion of their space under the Constellation Lease, in the form attached hereto as Exhibit D-2, effective as of the end of the applicable quarter but provided within forty-five (45) days after the applicable March 31st, June 30th, September 30th and December 31st date(s). (b) For the Operating Partnership and REIT: (i) as soon as available, but in any event within ninety (90) days after the end of each fiscal year of REIT (or, if earlier, fifteen (15) days after the date required to be filed with the SEC (after giving effect to any extension permitted by the SEC, but in no event more than one hundred twenty (120) days after the end of each fiscal year of REIT)) (commencing with the fiscal year ended December 31, 2026), a consolidated and consolidating balance sheet of REIT as at the end of such fiscal year (including consolidating financial information with respect to Operating Partnership), and the related consolidated and consolidating statements of income or operations, changes in shareholders’ equity, and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, such consolidated statements to be audited and accompanied by a report and opinion of an independent certified public accountant of nationally recognized standing reasonably acceptable to Administrative Agent, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit, and such consolidating statements to be certified by the chief executive officer, chief financial officer, treasurer or controller of REIT to the effect that such statements are fairly stated in all material respects when considered in relation to the consolidated financial statements of REIT; (ii) as soon as available, but in any event within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of REIT (or, if earlier, five (5) days after the date required to be filed with the SEC (after giving effect to any extension permitted by the SEC, but in no event more than seventy-five (75) days after the end of each such fiscal quarter of REIT)) (commencing with the fiscal quarter ended September 30, 2026), a consolidated and consolidating balance sheet of REIT as at the end of such fiscal quarter (including consolidating financial information with respect to Operating Partnership), the related consolidated and consolidating statements of income or operations for such fiscal quarter and for the portion of REIT’s fiscal year then ended, and the related consolidated and consolidating statements of changes in shareholders’ equity, and cash flows for the portion of REIT’s fiscal year then ended, in each case setting forth in comparative form, as applicable, the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail, such consolidated statements to be certified by the chief executive officer, chief financial officer, treasurer or controller of REIT as fairly presenting the financial condition, results of operations, shareholders’ equity and cash flows of REIT and Borrower in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes and such consolidating statements to be certified by the chief executive officer, chief financial officer, treasurer or controller of REIT to the effect that such statements are fairly stated in all material respects when considered in relation to the consolidated financial statements of REIT; and
PAGE B-31 (iii) commencing on December 31, 2026, as soon as available, but in any event within forty-five (45) days after the end of each fiscal quarter of REIT, a duly completed compliance certificate signed by the chief executive officer, chief financial officer, treasurer or controller of REIT (which delivery may, unless Administrative Agent requests executed originals, be by electronic communication including email and shall be deemed to be an original authentic counterpart thereof for all purposes), in form and substance satisfactory to Administrative Agent, certifying Guarantor’s compliance with the Financial Covenants set forth in the Guaranty. Notwithstanding the foregoing, provided that the REIT is a public company (and the general partner of Operating Partnership), delivery of the Financial Statements required pursuant to Sections 2(b)(i) and (ii) above shall be deemed satisfied by the public disclosure of the financials of the Guarantors as and when required by the Securities Exchange Commission (“SEC”) in quarterly 10-Q and annual 10-K filings. In the event Guarantors no longer file 10-Q and 10-K filings with the SEC, then Guarantors shall comply with the reporting requirements set forth in Sections 2(b)(i) and (ii) above. (c) Intentionally Omitted. (d) From time to time promptly after Administrative Agent’s request, such additional information, reports and statements respecting Borrower, Guarantor, the Property and the Improvements, or the business operations and financial condition of each reporting party, as Administrative Agent may reasonably request, including, but not limited to copies of filed federal income tax returns and any extensions thereof for Borrower (to the extent it files separately), annual budgets and forecasts for the Borrower/Property and Guarantors (but same shall not be required to be delivered for any fiscal year sooner than forty-five (45) days after the end of the immediately prior fiscal year), and monthly income statements, monthly rent rolls, and monthly leasing status reports. All Financial Statements shall be in form and detail reasonably satisfactory to Administrative Agent and shall contain or be attached to the signed and dated written certification of the reporting party in form specified by Administrative Agent to certify that the Financial Statements are furnished to Administrative Agent in connection with the extension of credit by Lenders and constitute a true and correct statement of the reporting party’s financial position in all material respects. All certifications and signatures on behalf of corporations, partnerships or other entities shall be by a representative of the reporting party reasonably satisfactory to Administrative Agent. All Financial Statements for a reporting party who is an individual shall be on Administrative Agent’s then-current personal financial statement form or in another form reasonably satisfactory to Administrative Agent. All fiscal year-end Financial Statements of Borrower shall be company prepared or compiled in a form otherwise reasonably acceptable to Administrative Agent. Borrower will keep and maintain full and accurate books and records administered in accordance with sound accounting principles, consistently applied, showing in detail the earnings and expenses of the Property and the operation thereof. Borrower will keep and maintain its books and records, including recorded data of any kind and regardless of the medium of recording, at the address of Borrower set forth for notices under this Agreement. Borrower shall permit Administrative Agent, or any Person authorized by Administrative Agent, to inspect and examine such books and records (regardless of where maintained) and all supporting vouchers and data and to make copies and extracts therefrom at all reasonable times and as often as may be requested by Administrative Agent. Borrower shall provide, upon Administrative Agent’s request, convenient facilities for the audit and verification of any such statement.
PAGE E-1 EXHIBIT E LEASING AND TENANT MATTERS Borrower and Lenders agree as follows: 1. Approved Leases. Borrower shall not enter into any Lease in the Improvements other than an Approved Lease. Changes to Borrower’s standard form of Lease must be approved in writing by Administrative Agent. Borrower shall provide to Administrative Agent a correct and complete copy of each Lease, including any exhibits, and each guaranty thereof (if any), prior to execution unless the Lease in question meets the requirements for “deemed” approval by Administrative Agent set forth in the definitions of “Approved Office Lease” or “Approved Retail Lease”, as applicable. Borrower shall, throughout the term of this Agreement, pay all reasonable costs incurred by Administrative Agent in connection with Administrative Agent’s review and approval of Leases and each guaranty thereof (if any), and also in connection with Administrative Agent’s negotiation of subordination agreements and subordination, non-disturbance and attornment agreements with commercial tenants leasing in excess of 25,000 square feet, including reasonable attorneys’ fees and costs. 2. Effect of Lease Approval. No approval of any Lease by Administrative Agent shall be for any purpose other than to protect Lenders’ security and to preserve Lenders’ rights under the Loan Documents. No approval by Administrative Agent shall result in a waiver of any Event of Default. In no event shall any approval by Administrative Agent of a Lease be a representation of any kind, with regard to the Lease or its adequacy or enforceability, or the financial capacity of any tenant or guarantor. 3. Representations and Covenants Concerning Leases. (a) Borrower agrees that (i) Borrower will observe and perform in all material respects all of the obligations imposed upon the landlord in the Leases and will not do or permit to be done anything to impair the security thereof; (ii) Borrower will use its commercially reasonable efforts to enforce or secure, or cause to be enforced or secured, the performance of each and every material obligation and undertaking of the respective tenants under the Leases and will appear in and defend, at Borrower’s sole cost and expense, any action or proceeding arising under, or in any manner connected with, the Leases; (iii) [intentionally omitted]; (iv) except as stated in the Leases, Borrower has not received any funds or deposits from any tenant for which credit has not already been made on account of accrued Rents; (v) Borrower will not, with respect to any Commercial Lease, without the prior written consent of Administrative Agent (or all Lenders in accordance with Section 9.8(k)), waive, release, discount, set off, compromise, reduce or defer any Rent, receive or collect Rents more than one (1) month in advance, grant any rent-free period to any tenant, reduce any Lease term or waive, release or otherwise modify any other material obligation under any Lease, renew or extend any Lease except in accordance with a right of the tenant thereto in such Lease, approve or consent to an assignment of a Lease or a subletting of any part of the premises covered by a Lease (if landlord consent is required by such Lease), or settle or compromise any claim against a tenant under a Lease in bankruptcy or otherwise; (vi) Borrower will not, with respect to any Commercial Lease, without the prior written consent of Administrative Agent (or all Lenders in accordance with Section 9.8(k)), terminate or consent to the cancellation or surrender of any Lease having an unexpired term of one (1) year or more unless promptly after the cancellation or surrender a new Lease of such premises is made pursuant to an Approved Office Lease or Approved Retail Lease, as applicable (provided, however, Borrower shall not be entitled to replace the Constellation Lease without the prior written consent of all Lenders); (vii) Borrower will not execute any Lease except in accordance with the Loan Documents and for actual occupancy by the tenant thereunder; and (viii) Borrower shall give prompt notice to Administrative Agent, as soon as Borrower first obtains written notice of any claim, or the commencement of any action, by any tenant or subtenant under or with respect to a Lease regarding any claimed damage, default, diminution of or offset against Rent, cancellation of the Lease, or constructive eviction, and Borrower shall defend, at Borrower’s expense, any
PAGE E-2 proceeding pertaining to any Lease, including, if Administrative Agent so requests, any such proceeding to which Administrative Agent is a party. Borrower further covenants that Borrower will not itself or, to its knowledge, permit a tenant under any Lease of space in the Improvements to violate any Laws affecting the Property, including the Controlled Substances Act, or which could otherwise result in the occurrence of an Event of Default under Section 7.1(o), including the commencement of any proceedings under the Civil Asset Forfeiture Reform Act. (b) Borrower agrees that (i) there shall be no merger of the leasehold estates, created by the Leases, with the fee estate of the applicable Unit without the prior written consent and express written agreement of Administrative Agent; and (ii) Administrative Agent may at any time and from time to time by specific written instrument intended for the purpose, unilaterally subordinate the lien of the Mortgage to any Lease, without joinder or consent of, or notice to, Borrower, any tenant or any other Person. No such subordination shall constitute a subordination to any lien or other encumbrance, whenever arising, or improve the right of any junior lien mortgagee; and nothing herein shall be construed as subordinating the Mortgage to any Lease. 4. Estoppel Certificates. All new Leases shall require the tenant to execute and deliver to Administrative Agent an estoppel certificate in form and substance acceptable to Administrative Agent within ten (10) Business Days after written request from Administrative Agent. 5. Delivery of Leasing Information and Documents. From time to time upon Administrative Agent’s request, Borrower shall promptly deliver to Administrative Agent, (a) complete executed copies of each Lease, including any exhibits thereto and each guaranty thereof (if any), if not previously delivered to Administrative Agent, (b) a complete rent roll of the Property in such detail as Administrative Agent may reasonably require, together with such leasing schedules and reports as Administrative Agent may reasonably require, (c) any and all financial statements of the tenants, subtenants and Lease guarantors (if any) to the extent available to Borrower, (d) such other information regarding tenants and prospective tenants and other leasing information as Administrative Agent may reasonably request, and (e) such estoppel certificates and subordination agreements and/or subordination, non-disturbance and attornment agreements executed by such tenants under Commercial Leases of 25,000 square feet or more and the guarantors under such Commercial Leases, if any, in such forms as Administrative Agent may require. 6. Compliance and Default. Borrower shall promptly notify Administrative Agent in writing if it becomes aware of any failure by any Person to perform any material obligation under any Commercial Lease, any event or condition which would permit a tenant to terminate or cancel a Lease, or any written notice given by a tenant with respect to the foregoing, specifying in each case the action Borrower has taken or will take with respect thereto. 7. Constellation Lease. Without limiting Section 3 above, Borrower shall not enter into any modification of the Constellation Lease without the prior written consent of Required Lenders; provided, however, any partial termination or contraction of space under the Constellation Lease (including any sublease to the extent Constellation is released from any liability under the Constellation Lease) shall require the prior written consent of all Lenders. Borrower shall not consent to any sublease of the space leased to Constellation under the Constellation Lease (to the extent Borrower has such consent right under the Constellation Lease) without the prior consent of Administrative Agent (or all Lenders to the extent Constellation is released from any liability under the Constellation Lease). 8. Tenant Security Deposits. Borrower shall at all times during the term of the Loan deposit and maintain all security deposits delivered to Borrower from tenants under Leases in an account with PNC Bank.
PAGE F-1 EXHIBIT F ASSIGNMENT AND ASSUMPTION This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between _________________ (the “Assignor”) and ____________________ (the “Assignee”). Capitalized terms used but not defined herein shall have the meanings given to them in the Loan Agreement identified below (the “Loan Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full. For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Loan Agreement, as of the Effective Date inserted by Administrative Agent as contemplated below, (i) all of the Assignor’s rights and obligations as a Lender under the Loan Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the respective facilities identified below (including Guaranties), and (ii) to the extent permitted to be assigned under applicable Law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Loan Agreement, any other documents or instruments delivered pursuant thereto or in any way based on or related to any of the foregoing, including, but not limited to contract claims, tort claims, malpractice claims, statutory claims and all other claims at Law or in equity, related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as the “Assigned Interest”). Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor. 1. Assignor: ______________________________ [Assignor [is] [is not] a Defaulting Lender] 2. Assignee: ______________________________ [, an Affiliate/Approved Fund of _____________] 3. Borrower(s): ______________________________ 4. Administrative Agent: ______________________, as the administrative agent under the Loan Agreement 5. Loan Agreement: The Amended and Restated Term Loan Agreement, dated as of October ____, 2026, by and among Borrower(s), the Lenders parties thereto, [and] Administrative Agent[, and the other parties thereto] 6. Assigned Interest:
PAGE F-2 Aggregate Amount of Commitment/Loans for all Lenders Amount of Commitment/Loans Assigned Percentage Assigned of Commitment/Loans $________________ $________________ ______________% Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.] The terms set forth in this Assignment and Assumption are hereby agreed to: ASSIGNOR: ______________________________ By:__________________________________________ [Type name of signatory] [Type title of signatory] ASSIGNEE: ______________________________ By:__________________________________________ [Type name of signatory] [Type title of signatory] [Consented to and] Accepted: PNC BANK, NATIONAL ASSOCIATION, as Administrative Agent By: _________________________________ [Type name of signatory] [Type title of signatory] [Consented to:] __________________________________________ By: _________________________________ [Type name of signatory] [Type title of signatory]
PAGE F-3 ANNEX 1 TO ASSIGNMENT AND ASSUMPTION STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT AND ASSUMPTION 1. Representations and Warranties. 1.1. Assignor. The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby, and (iv) it is [not] a Defaulting Lender; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Loan Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents, or any collateral thereunder, (iii) the financial condition of Borrower, any of its subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by Borrower, any of its subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document. 1.2. Assignee. (a) The Assignee represents and warrants that: (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Loan Agreement; (ii) it meets all requirements of an Eligible Assignee under the Loan Agreement (subject to such consents, if any, as may be required under the Loan Agreement); (iii) from and after the Effective Date, it shall be bound by the provisions of the Loan Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder; (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring assets of such type; (v) it has received a copy of the Loan Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section __ thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest; (vi) it has, independently and without reliance upon 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 Assignment and Assumption and to purchase the Assigned Interest; and
PAGE F-4 (vii) if it is a Foreign Lender, attached hereto is any documentation required to be delivered by it pursuant to the terms of the Loan Agreement, duly completed and executed by the Assignee. (b) The Assignee agrees that: (i) it will, independently and without reliance upon Administrative Agent, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender. (c) The Assignee (x) represents and warrants, as of the Effective Date, to, and (y) covenants, from the Effective Date to the date such Person ceases being a Lender party to the Loan Agreement, for the benefit of, the Assignor, Administrative Agent and Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of Borrower or any Guarantor, that at least one of the following is and will be true: (i) the Assignee is not using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Loan or the Commitments; (ii) the transaction exemption set forth in one or more PTEs, such as PTE 84- 14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to the Assignee’s entrance into, participation in, administration of and performance of the Loan the Commitments and the Loan Agreement and acquisition and holding of the Assigned Interest; (iii) (A) the Assignee 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 the Assignee to enter into, participate in, administer and perform the Loan, the Commitments and the Loan Agreement and acquire and hold the Assigned Interest, (C) the entrance into, participation in, administration of and performance of the Loan, the Commitments and the Loan Agreement and the acquisition and holding of the Assigned Interest satisfies the requirements of subsections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of the Assignee, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to the Assignee’s entrance into, participation in, administration of and performance of the Loan, the Commitments and the Loan Agreement and acquisition and holding of the Assigned Interest; or (iv) such other representation, warranty and covenant as may be agreed in writing between the Assignor, in its sole discretion, Administrative Agent, in its sole discretion, and the Assignee. (d) In addition, unless either (1) sub-clause (i) in the immediately preceding clause (c) is true with respect to the Assignee or (2) the Assignee has provided another representation, warranty and
PAGE F-5 covenant in accordance with sub-clause (iv) in the immediately preceding clause (c), the Assignee further (x) represents and warrants, as of the Effective Date, to, and (y) covenants, from the Effective Date to the date such Person ceases being a Lender party to the Loan Agreement, for the benefit of, the Assignor, Administrative Agent and Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of Borrower or any Guarantor, that none of the Assignor, Administrative Agent or Arranger or any of their respective Affiliates is a fiduciary with respect to the assets of the Assignee involved in the Loan, the Commitments or the Loan Agreement (including in connection with the reservation or exercise of any rights by Administrative Agent under the Loan Agreement, any Loan Document or any documents related thereto). 1.3 Assignee’s Address for Notices, etc. Attached hereto as Schedule 1 is all contact information, address, account and other administrative information relating to the Assignee. 2. Payments. From and after the Effective Date, Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date. Notwithstanding the foregoing, Administrative Agent shall make all payments of interest, fees or other amounts paid or payable in kind from and after the Effective Date to the Assignee. 3. General Provisions. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by electronic mail shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with, the Law of the Commonwealth of Virginia.
PAGE F-6 SCHEDULE 1 TO ASSIGNMENT AND ASSUMPTION ADMINISTRATIVE DETAILS (Assignee to list names of credit contacts, addresses, phone numbers, electronic mail addresses and account and payment information) (a) SOFR Lending Office: Assignee name: Address: Attention: Telephone: ( ) Electronic Mail: (b) Domestic Lending Office: Assignee name: Address: Attention: Telephone: ( ) Electronic Mail: (c) Notice Address: Assignee name: Address: Attention: Telephone: ( ) Electronic Mail: (d) Payment Instructions: Account No. Attention: Reference:
PAGE G-1 EXHIBIT G DEED OF TRUST NOTE $______________________ ____________________ FOR VALUE RECEIVED, HARBOR POINT PARCEL 2 – OFFICE, LLC, HARBOR POINT PARCEL 2 – RETAIL, LLC, and HARBOR POINT PARCEL 2 – TRANSFER STATION, LLC, each a Delaware limited liability company (separately and collectively, jointly and severally, “Borrower”), hereby promises to pay to the order of _____________________ as a “Lender” under that certain Amended and Restated Term Loan Agreement (as the same may be amended or modified from time to time, the “Loan Agreement”), dated as of [October ____, 2026] [the date hereof] among Borrower, certain lenders, and PNC Bank, National Association, a national banking association, as Administrative Agent (together with any and all of its successors and assigns in such capacity, “Administrative Agent”), without offset, in immediately available funds in lawful money of the United States of America, at the Administrative Agent’s Office as defined in the Loan Agreement, the principal sum of _______________________________________ DOLLARS ($_______________________) (or the unpaid balance of all principal advanced against this Note, if that amount is less), together with interest on the unpaid principal balance of this Note from day to day outstanding as hereinafter provided. Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to such terms in the Loan Agreement. 1. Note; Interest; Payment Schedule. This Promissory Note (as may be amended, modified, supplemented, restated and replaced from time to time, this “Note”) is one of the Notes referred to in the Loan Agreement and is entitled to the benefits thereof and subject to prepayment in whole or in part as provided therein. The entire principal balance of this Note then unpaid shall be due and payable at the times as set forth in the Loan Agreement. Accrued unpaid interest shall be due and payable at the times and at the interest rate as set forth in the Loan Agreement until all principal and accrued interest owing on this Note shall have been fully paid and satisfied. Any amount not paid when due and payable hereunder shall, to the extent permitted by applicable Law, bear interest and if applicable a late charge as set forth in the Loan Agreement. 2. Security; Loan Documents. The security for this Note includes the Mortgage (as defined in the Loan Agreement), covering certain property in the City of Baltimore, Maryland and more particularly described therein (the “Property”). This Note, the Mortgage, the Loan Agreement and all other documents now or hereafter securing, guaranteeing or executed in connection with the loan evidenced by this Note (the “Loan”), are, as the same have been or may be amended, restated, modified or supplemented from time to time, herein sometimes called individually a “Loan Document” and together the “Loan Documents”. 3. Events of Defaults. (a) Upon the occurrence and during the continuance of an Event of Default, Administrative Agent on behalf of the Lender and the other Lenders shall have the rights to declare the unpaid principal balance and accrued but unpaid interest on this Note, and all other amounts due hereunder and under the other Loan Documents, at once due and payable (and upon such declaration, the same shall be at once due and payable), to foreclose any liens and security interests securing payment hereof and to exercise any of its other rights, powers and remedies under this Note, under any other Loan Document, or at Law or in equity. (b) All of the rights, remedies, powers and privileges (together, “Rights”) of Administrative Agent on behalf of the Lender and the other Lenders provided for in this Note and in any other Loan
PAGE G-2 Document are cumulative of each other and of any and all other Rights at Law or in equity. The resort to any Right shall not prevent the concurrent or subsequent employment of any other appropriate Right. No single or partial exercise of any Right shall exhaust it or preclude any other or further exercise thereof, and every Right may be exercised at any time and from time to time. No failure by Administrative Agent, Lender and the other Lenders to exercise, and no delay in exercising any Right, including, but not limited to, the right to accelerate the maturity of this Note, shall be construed as a waiver of any Event of Default or as a waiver of any Right. Without limiting the generality of the foregoing provisions, the acceptance by the holder hereof from time to time of any payment under this Note which is past due or which is less than the payment in full of all amounts due and payable at the time of such payment, shall not (i) constitute a waiver of or impair or extinguish the right of Administrative Agent, Lender and the other Lenders to accelerate the maturity of this Note or to exercise any other Right at the time or at any subsequent time, or nullify any prior exercise of any such Right, (ii) constitute a waiver of the requirement of punctual payment and performance or a novation in any respect, or (iii) in any way excuse the existence of an Event of Default. (c) If any holder of this Note retains an attorney in connection with any Event of Default or at maturity or to collect, enforce or defend this Note or any other Loan Document in any lawsuit or in any probate, reorganization, bankruptcy, arbitration or other proceeding, or if Borrower sues any holder in connection with this Note or any other Loan Document and does not prevail, then Borrower agrees to pay to such holder, in addition to principal, interest and any other sums owing to such holder hereunder and under the other Loan Documents, all actual costs and out-of-pocket expenses incurred by such holder in trying to collect this Note or in any such suit or proceeding, including reasonable attorneys’ fees and expenses, investigation costs and all court costs, whether or not suit is filed hereon, whether before or after the Maturity Date, or whether in connection with bankruptcy, insolvency or appeal, or whether collection is made against Borrower or any guarantor or endorser or any other Person primarily or secondarily liable hereunder. Any judgment on this Note shall bear interest at the lesser of the Default Rate or the highest rate allowed by Applicable Law. 4. Successors and Assigns. The terms of this Note and of the other Loan Documents shall bind and inure to the benefit of Borrower and Lender and their respective successors and assigns permitted by the Loan Agreement. The foregoing sentence shall not be construed to permit Borrower to assign the Loan except as otherwise permitted under the Loan Agreement. As further provided in the Loan Agreement, Lender may, at any time, sell, transfer, or assign [all or a portion of its interest in] this Note, the Mortgage and the other Loan Documents, as set forth in the Loan Agreement. 5. General Provisions. Time is of the essence with respect to Borrower’s obligations under this Note. If more than one Person executes this Note as Borrower, all of said parties shall be jointly and severally liable for payment of the indebtedness evidenced hereby. Borrower and all sureties, endorsers, guarantors and any other party now or hereafter liable for the payment of this Note in whole or in part, hereby severally (a) waive demand, presentment for payment, notice of dishonor and of nonpayment, protest, notice of protest, notice of intent to accelerate, notice of acceleration and all other notices (except any notices which are specifically required by this Note or any other Loan Document), filing of suit and diligence in collecting this Note or enforcing any of the security herefor; (b) agree to any substitution, subordination, exchange or release of any such security or the release of any party primarily or secondarily liable hereon; (c) agree that neither Administrative Agent, Lender nor any other Lender shall be required first to institute suit or exhaust its remedies hereon against Borrower or others liable or to become liable hereon or to perfect or enforce its rights against them or any security herefor; (d) consent to any extensions or postponements of time of payment of this Note for any period or periods of time and to any partial payments, before or after maturity, and to any other indulgences with respect hereto, without notice thereof to any of them; (e) submit (and waive all rights to object) to the non-exclusive personal jurisdiction of any Virginia state court or any federal court in the Commonwealth of Virginia, and venue in the city or county where the Property is located or where such state or federal court is located, for the enforcement of any and
PAGE G-3 all obligations under this Note and the other Loan Documents; (f) waive the benefit of all homestead and similar exemptions as to this Note; (g) agree that their liability under this Note shall not be affected or impaired by any determination that any security interest or lien given to secure this Note is invalid or unperfected; and (h) hereby subordinate any and all rights against Borrower and any of the security for the payment of this Note, whether by subrogation, agreement or otherwise, until this Note is paid in full. A determination that any provision of this Note is unenforceable or invalid shall not affect the enforceability or validity of any other provision and the determination that the application of any provision of this Note to any Person or circumstance is illegal or unenforceable shall not affect the enforceability or validity of such provision as it may apply to other Persons or circumstances. This Note may not be amended except in a writing specifically intended for such purpose and executed by the party against whom enforcement of the amendment is sought. Captions and headings in this Note are for convenience only and shall be disregarded in construing it. The words “include” and “including” shall be interpreted as if followed by the words “without limitation.” THIS NOTE, AND ITS VALIDITY, ENFORCEMENT AND INTERPRETATION, SHALL BE GOVERNED BY VIRGINIA LAW (WITHOUT REGARD TO ANY CONFLICT OF LAWS PRINCIPLES) AND APPLICABLE UNITED STATES FEDERAL LAW. 6. Notices. Any notice, request, or demand to or upon Borrower or the holder hereof shall be deemed to have been properly given or made when delivered in accordance with the Loan Agreement. THE LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO ORAL AGREEMENTS BETWEEN THE PARTIES. [Signatures appear on the following page]
PAGE G-4 IN WITNESS WHEREOF, Borrower has duly executed this Note as of the date first above written. BORROWER: HARBOR POINT PARCEL 2- OFFICE, LLC, HARBOR POINT PARCEL 2- RETAIL, LLC, and HARBOR POINT PARCEL 2 – TRANSFER STATION, LLC, each a Delaware limited liability company By: Harbor Point Parcel 2 Holdings, LLC, a Delaware limited liability company, its Managing Member By: Baltimore Parcel 2E, LLC, a Virginia limited liability company, its Managing Member By: Armada Hoffler JV Manager, LLC, a Virginia limited liability company, its Manager By: Armada Hoffler Manager, LLC, a Virginia limited liability company, its Manager By:_____________________________(SEAL) Name: Matthew Barnes-Smith Title: Manager
PAGE I-1 EXHIBIT I SWAP CONTRACTS 1. Swap Documentation. On or before the Closing Date, Borrower shall, or shall cause one (1) or more Guarantor to, deliver to Swap Counterparty the following documents and other items, executed and acknowledged as appropriate, all in form and substance satisfactory to Administrative Agent and Swap Counterparty: (a) Master Agreement in the form published by the International Swaps and Derivatives Association, Inc. and related schedule in the form agreed upon between Borrower (or its Affiliate) and Swap Counterparty; (b) a confirmation under the foregoing, if applicable; (c) an acknowledgement from Swap Counterparty agreeing, among other things, to pay to Administrative Agent all payments due from Swap Counterparty pursuant to the Swap Contract; (d) if Borrower (or its Affiliate) is anything other than a natural Person, evidence of due authorization to enter into transactions under the foregoing Swap Contract with Swap Counterparty, together with evidence of due authorization and execution of any Swap Contract; and (e) such other title endorsements, documents, instruments, opinions and agreements as Administrative Agent and Swap Counterparty may require to evidence satisfaction of the conditions set forth in this Section, including a swap endorsement to the Title Insurance in form and substance satisfactory to Administrative Agent. For the avoidance of doubt, Borrower shall maintain a Swap Contract for a notional amount of not less than ninety-five percent (95%) of the Principal Debt, having a maximum “all-in” rate of not greater than eight and one-quarter percent (8.25%), and otherwise that meets the requirements of this Exhibit I in full force and effect at all times throughout the term of the Loan. 2. Conveyance and Security Interest. To secure the Obligations, Borrower hereby transfers, assigns and transfers to Administrative Agent, and grants to Administrative Agent a security interest in, all of Borrower’s right, title and interest, but not its obligations, duties or liabilities for any breach, in, under and to the Swap Contract, any and all amounts received by Borrower in connection therewith or to which Borrower is entitled thereunder, and all proceeds of the foregoing. All amounts payable to Borrower under the Swap Contract shall be paid to Administrative Agent and shall be applied to such Obligations as Administrative Agent determines in its sole discretion (except upon the occurrence and during the continuance of an Event of Default, in which event Administrative Agent shall not be obligated to apply same to the Obligations). 3. Cross-Default. It shall be an Event of Default under this Agreement if any Event of Default occurs as defined under any Swap Contract as to which Borrower (or its Affiliate) is the Defaulting Party, or if any Termination Event occurs under any Swap Contract as to which Borrower (or its Affiliate) is an Affected Party. As used in this Section, the terms “Defaulting Party,” “Termination Event” and “Affected Party” have the meanings ascribed to them in the Swap Contract. 4. Remedies; Cure Rights. In addition to any and all other remedies to which Administrative Agent, Lenders and Swap Counterparty are entitled at law or in equity, Swap Counterparty shall have the right, to the extent so provided in any Swap Contract or any Master Agreement relating thereto, (a) to declare an event of default, termination event or other similar event thereunder and to designate an Early Termination Date as defined under the Master Agreement, and (b) to determine net termination amounts in accordance with the Swap Contract and to setoff amounts between Swap Contracts. Administrative Agent shall have the right at any time (but shall have no obligation) to take in its name or in the name of Borrower (or its Affiliate) such action as Administrative Agent may at any time determine to be necessary or advisable to cure any default under any Swap Contract or to protect the rights of Borrower (or its Affiliate) or Swap Counterparty thereunder; provided, however, that Administrative Agent shall give prior written notice to Borrower before taking any such action. For this purpose, Borrower hereby constitutes Administrative Agent its true and lawful attorney-in-fact with full power of substitution, which power of attorney is coupled with an interest and irrevocable, to exercise, at the election of Administrative Agent, any and all rights and
PAGE I-2 remedies of Borrower (or its Affiliate) under the Swap Contract, including making any payments thereunder and consummating any transactions contemplated thereby, and to take any action that Administrative Agent may deem proper in order to collect, assert or enforce any claim, right or title, in and to the Swap Contract hereby assigned and conveyed, and generally to take any and all such action in relation thereto as Administrative Agent shall deem advisable. Administrative Agent shall not incur any liability if any action so taken by Administrative Agent or on its behalf shall prove to be inadequate or invalid. Borrower expressly understands and agrees that Administrative Agent is not hereby assuming any duties or obligations of Borrower (or its Affiliate) to make payments to Swap Counterparty under any Swap Contract or under any other Loan Document. Such payment duties and obligations remain the responsibility of Borrower (or its Affiliate) notwithstanding any language in this Agreement. 5. Miscellaneous Covenants. (a) Borrower shall, upon entering into any Swap Contract, pay all sums required to be paid by Borrower thereunder. Borrower shall keep the Swap Contract in full force and effect, and shall not amend or permit the amendment of same without the prior consent of Administrative Agent. (b) In the event that Borrower breaches any of its obligations pursuant to Section 5a) of this Exhibit I, in addition to all other rights and remedies of Administrative Agent and Lenders, Administrative Agent may, but shall have no obligation to, at Borrower’s sole cost and expense and on Borrower’s behalf, enter into a Swap Contract required hereunder. Borrower hereby constitutes Administrative Agent its true and lawful attorney-in-fact with full power of substitution, which power of attorney is coupled with an interest and irrevocable, to enter into such Swap Contract. For this purpose, Borrower hereby constitutes Administrative Agent its true and lawful attorney-in-fact with full power of substitution, which power of attorney is coupled with an interest and irrevocable, to enter into, amend and terminate such Swap Contract, pay all sums due thereunder, and generally to take any and all such action in relation thereto as Administrative Agent shall deem advisable. Administrative Agent shall not incur any liability if any action so taken by Administrative Agent or on its behalf shall prove to be inadequate or invalid. Borrower expressly understands and agrees that Administrative Agent is not hereby assuming any duties or obligations of Borrower under any Swap Contract or under any other Loan Document. All payment duties to the Swap Counterparty, and other obligations under such Swap Contract entered into by Administrative Agent on behalf of Borrower, shall be the responsibility of Borrower notwithstanding any language in this Agreement. (c) No Swap Contract shall alter, impair, restrict, limit or modify in any respect the obligation of Borrower to pay interest or other sums due under the Loan Documents, as and when the same become due and payable.
PAGE J-1 EXHIBIT J FINANCIAL COVENANTS 1. Debt Service Coverage Ratio. Borrower shall maintain a Debt Service Coverage Ratio as of any Determination Date of at least 1.20 to 1.00. This ratio will be tested semi-annually on December 31st and June 30th of each calendar year, or quarterly as of each March 31st, June 30th, September 30th and December 31st during any Trigger Period (as applicable, each a “Determination Date”). Upon the occurrence of a Trigger Event, the provisions of clauses (a), (b), (c) and (d) below shall apply. Any failure of Borrower to comply with the requirements set forth in such clauses (a) or (b) following the failure to meet the Debt Service Coverage Ratio for any given Determination Date shall constitute an immediate Event of Default hereunder (not subject to any further grace or cure periods). (a) In the event that the required Debt Service Coverage Ratio measured as of any Determination Date is less than 1.20 to 1.00, the Borrower shall either: (i) with respect to a Trigger Event pursuant to clause (a) of the definition thereof only, within thirty (30) days of the Determination Date, make a prepayment of principal towards the Loan in accordance with the prepayment provisions of this Agreement in an amount sufficient to ensure that the Debt Service Coverage Ratio (as calculated on a pro forma basis taking into account such prepayment) then meets or exceeds 1.20 to 1.00; or (ii) with respect to a Trigger Event pursuant to clause (a) of the definition thereof only, to the extent Borrower does not satisfy the prepayment condition set forth in clause (a)(i) within such thirty (30) day period, and with respect to any Trigger Event pursuant to clauses (b) or (c) of the definition thereof, Borrower shall thereafter, for each calendar month commencing with the month after the applicable Trigger Event occurred until the occurrence of the Cash Sweep Termination Date, cause to be delivered to Administrative Agent 100% of the monthly Excess Cash Flow by depositing such funds directly into a cash collateral account designated by Administrative Agent and subject to the provisions set forth below (a “Cash Collateral Account”). Such monthly payments of Excess Cash Flow shall be deposited for each month on or before the 15th day of the succeeding month after the commencement of the cash sweep (the “Sweep Date”). For example, if the Determination Date occurred on June 30, and the cash sweep commenced in July as a result of Borrower’s failure to make a principal payment by July 31, then Excess Cash Flow for July shall be deposited on or before August 15th. During the period when the cash sweep is in effect, the Borrower shall deliver to Administrative Agent on or before each Sweep Date, a detailed calculation of the Excess Cash Flow for such month in a form satisfactory to Administrative Agent, together with an income statement, operating statement, rent roll, and such other supporting statements, information and documentation that Administrative Agent may request to verify the Borrower’s calculation of the Excess Cash Flow. For the avoidance of doubt, (x) upon the occurrence of a Trigger Event pursuant to clause (a) of the definition thereof, Borrower may elect to comply with either clause (a)(i) or clause (a)(ii) above, and (y) upon the occurrence of a Trigger Event pursuant to clause (b) or clause (c) of the definition thereof, Borrower shall comply with clause (a)(ii). (b) Within seven (7) days after any demand by Administrative Agent following a Trigger Event, Borrower shall establish the Cash Collateral Account with Administrative Agent, unless Borrower has previously done so, for the deposit of the monthly payments of Excess Cash
PAGE J-2 Flow. Borrower shall maintain a Cash Collateral Account at all times when this Agreement requires a Cash Collateral Account. All interest (if any) earned on sums on deposit in the Cash Collateral Account shall be credited to such account. Borrower agrees that it shall include all interest and earnings on any such deposit as its income (and, if Borrower is a partnership or other pass-through entity, the income of its partners, members or beneficiaries, as the case may be), and shall be the owner of all funds on deposit in the Cash Collateral Account for federal and applicable state and local tax purposes. Borrower shall only be permitted to withdraw funds from the Cash Collateral Account, (i) upon the occurrence of a Cash Sweep Termination Date, or (ii) otherwise with Administrative Agent’s written consent, which may be by e-mail and be granted by Administrative Agent in its sole and absolute discretion. Borrower hereby assigns, pledges, and grants to Administrative Agent, for the benefit of itself and Lenders, a first-priority security interest in and lien on the Cash Collateral Account and all amounts from time to time held in or credited to the Cash Collateral Account, and any proceeds thereof, as security for Borrower’s Obligations. Administrative Agent shall have all of the rights and remedies of a secured party under the Uniform Commercial Code of the Commonwealth of Virginia with respect to each Cash Collateral Account and the funds from time to time held therein. Subject to the terms and conditions of this Section and the other provisions of the Loan Documents, the Cash Collateral Account shall be subject to the sole dominion, control and discretion of Administrative Agent, but Administrative Agent shall have no fiduciary duty with respect to such account or any funds on deposit therein. All funds in the Cash Collateral Account shall be used in compliance with the terms, covenants, conditions and provisions of this Agreement. Under no circumstance may funds be withdrawn from the Cash Collateral Account without the prior written consent of Administrative Agent and if funds are withdrawn from the Cash Collateral Account in a larger amount than is approved by Administrative Agent, Borrower shall promptly return the excess to the Cash Collateral Account upon request by Administrative Agent. (c) Borrower shall have the right to withdraw funds from time to time held in a Cash Collateral Account as follows: So long as no monetary or material non-monetary Default or any Event of Default shall have occurred and be continuing, Administrative Agent shall, to the extent funds are available for such purpose in the Cash Collateral Account, permit Borrower to withdraw the amount paid or incurred by Borrower on account of Tenant Improvements, Leasing Commission and Leasing Costs and as the same are incurred pursuant to Leases entered into in accordance with the provisions of Exhibit E or otherwise approved by Administrative Agent upon satisfaction of the applicable requirements set forth in Section 2 of this Exhibit J. (d) Administrative Agent shall have the right to withdraw funds from time to time held in a Cash Collateral Account as follows: (i) to the extent any Event of Default has occurred and is then-continuing or upon the occurrence of the Maturity Date, Administrative Agent may, in its sole discretion, withdraw and apply any funds held in a Cash Collateral Account to any of the then-due and payable Obligations (whether as a result of acceleration or otherwise); (ii) in the event the Debt Service Coverage Ratio falls below 1.00 to 1.00, and apply any funds held in a Cash Collateral Account to any of the then-due and payable Obligations (whether as a result of acceleration or otherwise); or (iii) if requested by Borrower or to the extent necessary to preserve the value of the Property and not otherwise paid by Borrower in a timely manner (and regardless of whether an Event of Default is then-continuing), Administrative Agent may, in its sole discretion, withdraw funds from a Cash Collateral Account for the purpose of paying any costs and/or expenses related to the Property (such funds to be disbursed to Borrower or paid directly to the applicable party entitled thereto, as determined by Administrative Agent in its sole discretion). (e) The occurrence of a Cash Sweep Termination Date and the release of funds to the Borrower in connection therewith shall not, in any case, preclude the application of the cash sweep
PAGE J-3 provisions set forth herein with respect to any subsequent failure by Borrower to meet the required Debt Service Coverage Ratio. 2. Disbursement of Funds from Cash Collateral Account. (a) Borrower shall deliver to Administrative Agent a written request for each requested withdrawal or transfer from the Cash Collateral Account in accordance with this Section 2. Borrower shall deliver all requests for all withdrawals or transfers from the Cash Collateral Account concurrently and not more than once per month. Each such request shall (i) specify the Tenant Improvements, the Leasing Commissions, or the Leasing Costs for which such withdrawal or transfer is requested, (ii) include a certification from Borrower that the applicable matter that is the subject of such request has been performed in accordance with the terms of the Loan Documents, (iii) include a certification from Borrower that no Event of Default has occurred and is continuing (or if so, specifying the nature thereof) and (iv) include a certification from Borrower that the costs and expenses that are the subject of such request have been incurred in accordance with the terms of this Agreement and the other Loan Documents and are permitted to be reimbursed pursuant to the terms of Section 1(c) of Exhibit J. Borrower shall promptly deliver to Administrative Agent copies of paid invoices (or unpaid invoices to which the requested withdrawal or transfer relates and is to be applied), lien waivers (with respect to any matter the non- payment of which could give rise to a lien against the Property and that costs more than $250,000.00), contractor invoices, tenant certifications (if applicable) and any licenses, permits and certifications and filings required by Law, in each case as Administrative Agent may reasonably require. Provided that the foregoing conditions are satisfied, and all other conditions applicable to the requested withdrawal or transfer set forth in Section 1(c) of Exhibit J are satisfied, Administrative Agent shall disburse sums from the Cash Collateral Account to Borrower in accordance with its written instructions delivered to Administrative Agent. Notwithstanding the preceding sentence, in no event shall Administrative Agent be required to disburse funds from the Cash Collateral Account if a monetary or material non-monetary Default or any Event of Default then exists and is continuing. (b) Administrative Agent’s permitting a withdrawal of any funds from the Cash Collateral Account or other acknowledgement of completion of any work in a manner reasonably satisfactory to Administrative Agent shall not be deemed a certification or warranty by Administrative Agent to any Person that any work or other matter that is the subject of the withdrawal has been completed in accordance with applicable Laws or any agreement to which Borrower is a party or the Property is bound. (c) The insufficiency of any balance in any of the Cash Collateral Account shall not relieve Borrower from its obligation to perform fully all covenants contained in each of the Loan Documents.
PAGE M-1 EXHIBIT M CONDOMINIUM PROVISIONS (a) Borrower shall (i) pay, or cause to be paid, on or before the due date for same all Common Charges payable on account of the Property and other sums payable by Borrower to the Condominium Association; (ii) promptly perform and observe all other covenants required to be performed and observed by it under each Condominium Document, and all Condominium Requirements that apply to the Property or any portion thereof, and do all things necessary to preserve and to keep unimpaired its rights under the Condominium Documents; (iii) promptly within ten (10) days after the occurrence thereof, notify each Lender in writing of any violation of any such covenant or Condominium Requirement, specifying in each case the action Borrower has taken or will take with respect thereto; (iv) promptly notify Administrative Agent of any material default by the Condominium Association under any Condominium Document of which it becomes aware; (v) promptly deliver to Administrative Agent a copy of any notice of default, notice of special assessment or other material notice received by it under any Condominium Document or otherwise from or on behalf of the Condominium Association; and (vi) promptly enforce the performance and observance of all of the material covenants required to be performed and observed by the Condominium Board or Condominium Association under each Condominium Document. Without limiting the foregoing, if Borrower fails to pay any Common Charge when due under any Condominium Document, Administrative Agent shall have the right, but not the obligation, to pay (or cause to be paid) the same on behalf of Borrower (based solely on a notice or other certification from the Condominium Board or its managing agent) and such amounts shall be payable to Administrative Agent upon demand and shall accrue interest at the Default Rate until paid. (b) Borrower (i) shall not, and shall not vote to, without the prior consent of Administrative Agent, enter into, amend, modify, supplement, surrender, cancel or terminate any Condominium Document, or enter into any agreement in substitution of any Condominium Document; (ii) shall not waive or release any of Borrower’s rights under the Condominium Documents; (iii) shall not vote, give consent or waive any right of Borrower if, the result of such vote, consent or waiver would be to impair the rights of Administrative Agent or Lenders or the liens of the Mortgage; (iv) shall not approve any borrowing of money on behalf of the condominium which would result in the creation of any lien on any portion of the Units or any material addition to, or alteration or improvement of, the common elements of the condominium; (v) shall not vote to permit or cause the Condominium Association to fail to maintain or diminish the insurance policies required to be maintained pursuant to the Condominium Documents or give consent to the expenditure of insurance proceeds or condemnation awards other than for the repair or restoration of common elements in a manner consistent with this Agreement for repairs and restorations of the Property; and (vi) shall not approve or request any subdivision of any of the Units or any combination any of the Units with each other and/or other condominium units, or any increase or decrease the net rentable square footage of any Unit. (c) In the event that the Condominium Association receives any insurance proceeds or condemnation awards, to the extent that Borrower may, by vote or otherwise, select or vote for the selection of the holder of same, Borrower shall select Administrative Agent. (d) Administrative Agent shall have the right, to the fullest extent of Borrower’s rights under the Condominium Documents, to examine the books of account of the condominium and to attend meetings of owners of units or the Condominium Board, but the foregoing shall not require Administrative Agent to examine said books of account or attend any such meetings. (e) At any time, during the existence of an Event of Default, Administrative Agent may give notice to the Condominium Board or any other Person stating that circumstances exist which entitle
PAGE M-2 Administrative Agent to exercise in Borrower’s place any particular right, privilege or power, or to receive any credit, refund, profit or other sum of money which Borrower has the right to exercise or receive under the Condominium Documents; it being understood and agreed to that such notice from Administrative Agent shall be conclusive evidence that an Event of Default shall have occurred and be continuing and the Condominium Board may rely on such notice from Administrative Agent without any further inquiry or investigation. (f) Prior to appointing any member to the Condominium Board, Borrower shall deliver to Administrative Agent a conditional resignation signed by such member in form and content acceptable to Administrative Agent. Upon the occurrence and during the continuance of an Event of Default, Administrative Agent may, by notice to Borrower, tender any conditional resignation of any member of the Condominium Board now or hereafter delivered to Administrative Agent in connection with the Loan to the Condominium Board, whereupon the resignation of any such member shall become effective and successor members to the Condominium Board shall be designated by Administrative Agent. (g) Borrower shall on a timely basis comply with all Condominium Requirements and other Laws, including securities laws and the Interstate Land Sales Full Disclosure Act (15 U.S.C. 1701 et seq.), which may apply to the sale of Units or any of them and furnish such evidence of compliance therewith as Administrative Agent may reasonably request; provided, however, that nothing herein shall be deemed to permit Borrower to sell any Unit without the prior consent of Administrative Agent. (h) Borrower shall deliver or cause the condominium to deliver to Administrative Agent all financial statements and material reports delivered by or on behalf of the Condominium Association to Borrower, or if the Condominium Association is prohibited by law from doing so, shall deliver same to Administrative Agent promptly after receipt by Borrower or any of its Condominium Board members. (i) To induce Lenders to make the Loan, Borrower further hereby represents and warrants to Administrative Agent and Lenders as follows: (i) A true, correct and complete list of the Condominium Documents is set forth on Schedule 1 attached hereto, and each Condominium Document is in full force and effect. (ii) Borrower has delivered to Administrative Agent true, correct and complete copies of the Condominium Documents. (iii) No Condominium Document has been amended, modified, terminated, assigned or otherwise changed, or the provisions thereof waived, by or at the request of Borrower. (iv) To Borrower’s knowledge, no default by Borrower has occurred under any Condominium Document that remains outstanding, and no event which, with the giving of notice or passage of any cure period under any Condominium Document would constitute a default by Borrower under any Condominium Document, has occurred and is continuing. (v) No provision of the Loan Documents violates any covenant under any Condominium Document applicable to Borrower or any Condominium Requirement applicable to the Property. The Property and the use, operation and maintenance thereof and all activities thereon comply in all material respects with all Condominium Requirements. (vi) Borrower has not received any notice of termination or default with respect to any Condominium Document.
PAGE M-3 (vii) No Common Charge or other sum payable by Borrower under any Condominium Document is accrued and unpaid. (viii) There are no actions, suits or proceedings pending, or to Borrower’s knowledge, threatened, against or affecting the Condominium Association, the Condominium Board and/or the common elements under the Condominium Documents which, in each case, if adversely determined, shall materially affect the ability of Borrower to perform its respective obligations hereunder or under any of the Loan Documents, or the Property, and the Condominium Association and Condominium Board are not in any material respect in default or violation with respect to any order, writ, injunction, decree or demand of any court of Governmental Authority. There are no actions or proceedings pending before any court, quasi-judicial body or administrative agency relating to compliance of the common elements under the Condominium Documents with any applicable zoning, subdivision, building, environmental or land use law, ordinance or resolution.
GUARANTY AGREEMENT THIS GUARANTY AGREEMENT (this “Guaranty”), dated as of October 28, 2026, by AH REALTY TRUST, LP, a Virginia limited partnership (“Operating Partnership”), and AH REALTY TRUST, INC., a Maryland corporation (the “REIT” and together with Operating Partnership, individually and collectively, jointly and severally, the “Guarantors” and sometimes, individually a “Guarantor”), in favor of PNC BANK, NATIONAL ASSOCIATION, a national banking association, as Administrative Agent for itself and all other “Lenders” now or hereafter existing under the Loan Agreement (as hereinafter defined) (together with its successors and assigns, and any successor Administrative Agent under the Loan Agreement, “Administrative Agent”). This Guaranty amends, restates and replaces in its entirety that certain Guaranty Agreement dated as of January 14, 2022 (the “Original Guaranty”), from Operating Partnership (f/k/a Armada Hoffler, L.P.) and REIT (f/k/a Armada Hoffler Properties, Inc.) to and for the benefit of Administrative Agent (as successor to Bank of America, N.A.), on behalf of Lenders (as defined in the “Loan Agreement” defined in the Original Guaranty), provided, however, the execution and delivery of this Guaranty shall not constitute a novation of the indebtedness evidenced by the Original Guaranty. PRELIMINARY STATEMENTS Administrative Agent, certain financial institutions from time to time party thereto (“Lenders”) and HARBOR POINT PARCEL 2 – OFFICE, LLC, HARBOR POINT PARCEL 2 – RETAIL, LLC, and HARBOR POINT PARCEL 2 – TRANSFER STATION, LLC, each a Delaware limited liability company (separately and collectively, jointly and severally, “Borrower”), have entered into, are entering into concurrently herewith, or contemplate entering into, that certain Amended and Restated Term Loan Agreement by and among Borrower, Lenders and Administrative Agent (herein called, as it may hereafter be modified, supplemented, restated, extended, or renewed and in effect from time to time, the “Loan Agreement”), which Loan Agreement sets forth, among other things, the terms and conditions of a loan in the aggregate principal amount of $121,800,000.00 (the “Loan”) to refinance certain indebtedness of Borrower secured by certain land located in the City of Baltimore, Maryland, which is more particularly described in the Mortgage (as hereinafter defined) as the “Premises”. A condition precedent to Administrative Agent’s and Lenders’ obligation to make the Loan to Borrower is Guarantors’ execution and delivery to Administrative Agent and Lenders of this Guaranty. The Loan is, or will be, evidenced by one (1) or more certain Deed of Trust Notes dated as of even date herewith (or of such other date that any additional financial institution becomes a Lender under the Loan Agreement), executed by Borrower and payable to the order of each Lender evidencing the aggregate principal amount of the Loan (such notes, as they may hereafter be renewed, extended, supplemented, increased or modified and in effect from time to time, and all other notes given in substitution therefor, or in modification, renewal, or extension thereof, in whole or in part, are herein collectively called the “Note”) and is secured by that certain Deed of Trust, Assignment of Rents and Leases, Security Agreement and Financing Statement dated as of Exhibit 10.4
2 January 14, 2022, from Borrower to the trustee named therein for the benefit of Administrative Agent (as assignee from Bank of America, N.A.) on behalf of Lenders, and recorded in the Land Records of Baltimore City, Maryland (the “Land Records”) in Book 24275, page 44, as amended and restated by Amended and Restated Deed of Trust, Assignment of Rents and Leases, Security Agreement and Financing Statement of even date herewith and recorded or intended to be recorded among the Land Records, covering Borrower’s fee simple interest in the Premises and other collateral which is more particularly described therein (such deed of trust, as further renewed, extended, supplemented, increased or modified and in effect from time to time, and all other deeds of trust given in substitution therefor, or in modification, renewal or extension thereof, in whole or in part, is herein called the “Mortgage”). Borrower and any Swap Counterparty (as defined in the Mortgage) may from time to time enter into one or more Swap Contracts (as defined in the Loan Agreement). Any capitalized term used and not defined in this Guaranty shall have the meaning given to such term in the Loan Agreement. This Guaranty is one of the Loan Documents described in the Loan Agreement. STATEMENT OF AGREEMENTS For good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and as a material inducement to Administrative Agent and Lenders to extend credit to Borrower, Guarantors, jointly and severally, hereby unconditionally and irrevocably guarantee to Administrative Agent and Lenders the timely and full payment and performance of the indebtedness and obligations described below in this Guaranty (collectively called the “Guaranteed Obligations”) (provided, that the Guaranteed Obligations of any Guarantor under this Guaranty shall exclude any Excluded Swap Obligations (as hereinafter defined) with respect to such Guarantor), this Guaranty being upon the following terms and conditions: 1. Guaranty of Payment. Guarantors, jointly and severally, hereby unconditionally and irrevocably guarantee to Administrative Agent and Lenders the punctual payment when due, whether by lapse of time, by acceleration of maturity, or otherwise, of (excluding with respect to any Guarantor, any Excluded Swap Obligations with respect to such Guarantor): (a) all indebtedness, obligations or liabilities now or hereafter owed under any Swap Contract required to be maintained pursuant to the terms of the Loan Agreement, and all renewals, extensions, replacements, modifications, supplements or amendments of such Swap Contract. This Guaranty covers indebtedness, obligations or liabilities, whether presently outstanding or arising subsequent to the date hereof, including all amounts advanced by Lender in stages or installments. The guaranty of Guarantors as set forth in this Section 1 is a continuing guaranty of payment and not a guaranty of collection. The obligations and liability of Guarantors under this Guaranty shall not be limited by the existence (or terms of) any separate guaranty of payment from Guarantors for the benefit of Administrative Agent and Lenders. (b) any and all actual out-of-pocket losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees and costs) of any nature or description whatsoever (but excluding [1] consequential damages except to the extent the same are payable by
3 Administrative Agent or any Lender to any third parties and [2] unrealized or speculative losses on the value of the Property) which may at any time be imposed upon, incurred by or suffered by Administrative Agent and/or Lenders, whether or not arising out of causes of action, suits, claims, demands and judgments, as a result of or in connection with: (i) Borrower’s or Guarantors’ fraud, intentional misrepresentation or willful misconduct; (ii) Borrower’s failure to maintain insurance upon the Property, or the intentional waste of the Property, provided there is cash flow available from the Property to pay the same and provided Borrower has not already escrowed sums for payment of the same with Administrative Agent; (iii) any income, revenues, rents, royalties, issues and profits from the Property (A) received by Borrower, directly or indirectly, during the period of any Event of Default under the Loan Documents or after the maturity of the Note (whether by acceleration or otherwise) and (B) not applied to the payment of the sums due under the Loan or to the payment of the expenses of the Property (excluding any management fees or any payments to Borrower, Guarantors or to any Affiliate of Borrower or Guarantors); (iv) any rents from the Property collected more than one (1) month in advance which are not earned at the time of the occurrence of an Event of Default under the Loan Documents and which are not applied to the payment of the sums due under the Loan or to the payment of the expenses of the Property (excluding any management fees or payments to Borrower, Guarantors or to any affiliate of Borrower or Guarantors); (v) any insurance proceeds and condemnation awards with respect to the Property which are not applied in accordance with the provisions of the Loan Documents; (vi) any costs of foreclosure pursuant to the Mortgage or deed in lieu thereof, whether or not the same is consummated; (vii) any material misrepresentation, miscertification or breach of warranty by Borrower or Guarantors with respect to any representation, warranty or certification contained in the Loan Agreement, any of the other Loan Documents, or in any other written certification or agreement delivered by or on behalf of Borrower or Guarantors or any of their respective Affiliates in connection with the Loan; (viii) after the occurrence and during the continuance of an Event of Default or Sweep Date, distributions to the members, partners or shareholders of Borrower or Guarantor of any Rents, security deposits, or other income arising with respect to any property covered by the Mortgage or other Loan Documents which should have been applied against costs and expenses associated with the Property or paid to Administrative Agent pursuant to the Loan Documents; (ix) breach by Borrower of any covenant in the Loan Documents relating to Borrower’s status as a single-purpose entity that results in substantive consolidation of Borrower’s assets with those of another Person in a bankruptcy or insolvency proceeding;
4 (x) a judicial or nonjudicial forfeiture or seizure proceeding is commenced by a Governmental Authority and remains pending with respect to any substantial portion of the Property or any portion of the Property that is material to the operation or valuation of the Property, on the grounds that the Property or any part thereof had been used to commit or facilitate the commission of a criminal offense by any Person, including any tenant, pursuant to any Law, including under the Controlled Substances Act or the Civil Asset Forfeiture Reform Act, regardless of whether or not the Property or the Mortgage shall become subject to forfeiture or seizure in connection therewith; provided, however, that Guarantors shall not have obligations as a result of this Section 1(b)(ix) if (A) Guarantors did not know of the conduct giving rise to such forfeiture or seizure, or (B) upon Guarantors’ learning of such conduct, Guarantors did all that reasonably could be expected under the circumstances to terminate such conduct, as determined by a court of competent jurisdiction in a final, non-appealable judgment; (xi) with the exception of Leases covering all or any part of the Property, any transfer of or creation of a lien on (A) all or any part of the Property or other collateral for the Loan or (B) any direct or indirect ownership interest in Borrower, in any case in violation of the terms of the Loan Documents; and (xii) any default or event of default by Office Borrower under the Constellation Lease that results in (A) the obligation of Successor Landlord (as defined in the Constellation SNDA, hereinafter defined) to cure, or (B) Successor Landlord to be subject to any Offset Right (as defined in the Constellation SNDA) for, such default or event of default pursuant to the terms of that certain Subordination, Non-Disturbance and Attornment Agreement dated as of the Original Closing Date by and among Administrative Agent, Constellation, and Office Borrower (the “Constellation SNDA”), and the amount of such loss or damages to Administrative Agent and Lenders under this clause (xi) shall be deemed to be the amount required to be paid by Successor Landlord to cure such default or event of default and the amount of the offset made by Constellation against payments due and payable under the Constellation Lease subsequent to the Date of Attornment (as defined in the Constellation SNDA) as a result of such default or event of default pursuant to the terms of the Constellation Lease; and (c) (i) One hundred percent (100%) of the principal due under the Note (the “Loan Principal”), (ii) one hundred percent (100%) of all interest (including interest accruing after the commencement of any bankruptcy or insolvency proceeding by or against Borrower, whether or not allowed in such proceeding), fees, charges, (including breakage charges under any Swap Contract relating to the Loan) costs and late charges, if any, now or hereafter due and owing, or which Borrower is obligated to pay, pursuant to the terms of the Note, the Loan Agreement, the Mortgage, any application, agreement, note or other document executed and delivered in connection with any Swap Contract or any Loan Documents, the cost of all insurance required under the Loan Documents, the payment of real estate taxes, assessments, levies and other charges as described in Section 2.1(c) of the Mortgage, all operating expenses required in order to operate the Property in accordance with the Loan Documents, and any collection costs under the Loan Documents (collectively, “Interest and Carry Costs”), and (iii) any indemnification obligations contained in the Loan Documents now or hereafter existing (the “Indemnification Costs” and together with the Loan Principal and Interest and Carry Costs, the “Indebtedness”), in the event that: (A) Borrower fails to comply in all material respects with the provisions of the Loan Documents relating to the transfer of all or any part of the Property; (B) the Property or any part
5 thereof becomes an asset in a voluntary bankruptcy or voluntary insolvency proceeding that is not discharged within ninety (90) days after the commencement thereof; (C) Borrower or Guarantors commence a bankruptcy or other insolvency proceeding that is not discharged within ninety (90) days after the commencement thereof; (D) an involuntary bankruptcy or other insolvency proceeding is commenced against Borrower or Guarantors (by a party other than Administrative Agent or a Lender in its capacity as a Lender under the Loan) and not dismissed on or before the earlier of trial thereon or ninety (90) days; (E) if Borrower, Guarantors, or any Affiliate or agent of Borrower or Guarantors has acted in concert with, or colluded or conspired with any party (other than Administrative Agent or any Lender) to cause the filing of any involuntary bankruptcy or involuntary insolvency proceeding with respect to Borrower or either Guarantor; (F) Borrower or Guarantors files an answer consenting to, or otherwise acquiescing in, or joining in, any involuntary petition filed against it under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency Law, or solicits or causes to be solicited petitioning creditors for any involuntary petition (unless such consent or acquiescence is at Administrative Agent’s or any Lender’s request); (G) any Affiliate, officer, director or representative which directly or indirectly controls Borrower or Guarantors consent to, or acquiescence in, or join in, an application for the appointment of a custodian, receiver, trustee or examiner for Borrower or Guarantors for any portion of the Property (unless such consent or acquiescence is at Administrative Agent’s or any Lender’s request); (H) Borrower or Guarantors makes an assignment for the benefit of creditors or admits, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due (it being acknowledged that in the event Borrower admits same only to Administrative Agent or any Lender or enters into a pre-negotiation letter or other similar correspondence with Administrative Agent, such correspondence shall not in and of itself constitute an admission in writing as contemplated herein); (I) Borrower or Guarantors or any Principal (as defined below), or any other Affiliate, or any or all of them shall contest or in any way interfere, directly or indirectly, with any foreclosure of the Mortgage or with any other enforcement of Administrative Agent’s rights, powers or remedies under any of the Loan Documents (whether by making any motion, seeking any extension, asserting any defense, claim, counterclaim or right of offset, seeking any injunction or other restraint, commencing any action, seeking to consolidate any such foreclosure or other enforcement with any other action, or otherwise); (J) the termination of the Constellation Lease for any reason or the Constellation Lease otherwise ceases to be in full force and effect, in each case without Lenders’ prior written consent; or (K) the Property or any part thereof shall become subject to forfeiture to a Governmental Authority, or shall otherwise be seized by a Governmental Authority, pursuant to a court order, a court judgment, or an administrative or other non-judicial determination, on the grounds that the Property or any part thereof had been used to commit or facilitate the commission of a criminal offense by any Person, including any tenant, pursuant to any Law, including under the Controlled Substances Act or the Civil Asset Forfeiture Reform Act, regardless of whether or not the Mortgage shall become subject to forfeiture or seizure in connection therewith. For purposes hereof, “Principal” shall mean each managing member and any member with a majority interest in Borrower or Guarantor. 2. Intentionally Omitted. 3. Primary Liability of Guarantors. (a) This Guaranty is an absolute, irrevocable and unconditional guaranty of payment and performance of the Guaranteed Obligations. Guarantors shall be liable for the
6 payment and performance of the Guaranteed Obligations as a primary obligor. This Guaranty shall be effective as a waiver of, and Guarantors hereby expressly waive, any and all rights to which Guarantors may otherwise have been entitled under any suretyship Laws in effect from time to time, including any right or privilege, whether existing under statute, at Law or in equity, to require Administrative Agent or Lenders to take prior recourse or proceedings against any collateral, security or Person (hereinafter defined) whatsoever. (b) Guarantors hereby agree that in the event of (i) an Event of Default under the Loan Agreement, (ii) default by Borrower in payment or performance of the Guaranteed Obligations, or any part thereof, when such indebtedness or performance becomes due, either by its terms or as the result of the exercise of any power to accelerate (which default is not cured prior to the expiration of any applicable cure period); (iii) the failure of Guarantors to perform completely and satisfactorily the covenants, terms and conditions of any of the Guaranteed Obligations; (iv) dissolution or insolvency of Guarantors; (v) the inability of Guarantors to pay debts as they mature; (vi) an assignment by Guarantors for the benefit of creditors; (vii) the institution of any proceeding by or against Guarantors in bankruptcy or for a reorganization or an arrangement with creditors, or for the appointment of a receiver, trustee or custodian for any of them or for any of their respective properties which, if filed against Guarantors shall be consented to by Guarantors or remain undismissed for a period of ninety (90) days after filing; (viii) the failure of Guarantors to comply with the financial covenants set forth in Section 18(b); (ix) the determination by Administrative Agent in good faith that a material adverse change has occurred in the financial condition of Guarantors which could reasonably be expected, in the aggregate, to impair Guarantors’ ability to pay or perform Guarantors’ indebtedness, duties and obligations with respect to the Loan; (x) the entry of a judgment or judgments against Guarantors either separately or in the aggregate in excess of One Million Dollars ($1,000,000) which is or are not insured or indemnified against to Administrative Agent’s complete satisfaction and the same shall remain undischarged for a period of thirty (30) days during which time execution shall not be effectively stayed; (xi) a writ or order of attachment, levy or garnishment involving separately or in the aggregate in excess of One Million Dollars ($1,000,000) is issued against Guarantors and shall not be released within sixty (60) days of issuance; or (xii) the falsity in any material respect of, or any material omission in, any representation made to Administrative Agent or Lenders by Guarantors (individually and collectively an “Event of Default”); then upon the occurrence of such Event of Default, the Guaranteed Obligations, for purposes of this Guaranty, shall be deemed immediately due and payable at the election of Administrative Agent, and Guarantors shall, on demand and without presentment, protest, notice of protest, further notice of nonpayment or of dishonor, default or nonperformance, or notice of acceleration or of intent to accelerate, or any other notice whatsoever, without any notice having been given to Guarantors previous to such demand of the acceptance by Administrative Agent and Lenders of this Guaranty, and without any notice having been given to Guarantors previous to such demand of the creating or incurring of such indebtedness or of such obligation to perform, all such notices being hereby waived by Guarantors, pay the amount due to Administrative Agent and Lenders or perform or observe the agreement, covenant, term or condition, as the case may be, and pay all damages and all costs and expenses that may arise in consequence of such Event of Default (including, without limitation, all reasonable attorneys’ fees and expenses, investigation costs, court costs, and any and all other costs and expenses incurred by Administrative Agent and Lenders in connection with the collection and enforcement of the Note or any other Loan Document), whether or not suit is filed thereon, or whether at maturity or by acceleration, or whether before or after maturity, or whether in
7 connection with bankruptcy, insolvency or appeal. It shall not be necessary for Administrative Agent or Lenders, in order to enforce such payment or performance by Guarantors, first to institute suit or pursue or exhaust any rights or remedies against Borrower or others liable on such indebtedness or for such performance, or to institute suit or pursue or exhaust any rights or remedies against Borrower and all other Guarantors or other sureties of the Guaranteed Obligations or to enforce any rights against any security that shall ever have been given to secure such indebtedness or performance, or to join Borrower, or any others liable for the payment or performance of the Guaranteed Obligations or any part thereof in any action to enforce this Guaranty, or to resort to any other means of obtaining payment or performance of the Guaranteed Obligations; provided, however, that nothing herein contained shall prevent Administrative Agent or Lenders from suing on the Note or foreclosing the Mortgage or from exercising any other rights thereunder, and if such foreclosure or other remedy is availed of, only the net proceeds therefrom, after deduction of all charges and expenses of every kind and nature whatsoever, shall be applied in any order selected by Administrative Agent in its sole discretion in reduction of the amount due on the Note, any other Note, the Mortgage or any other Loan Document, and Administrative Agent and Lenders shall not be required to institute or prosecute proceedings to recover any deficiency as a condition of payment hereunder or enforcement hereof. At any sale of the Property or other collateral given for the Indebtedness or any part thereof, whether by foreclosure or otherwise, Administrative Agent or any Lender may at its discretion purchase all or any part of the Property or collateral so sold or offered for sale for its own account and may, in payment of the amount bid therefor, deduct such amount from the balance due it pursuant to the terms of the Note, any other Note, the Mortgage and the other Loan Documents. (c) Suit may be brought or demand may be made against Borrower or against all parties who have signed this Guaranty or any other guaranty covering all or any part of the Guaranteed Obligations or other obligations of Borrower under the Loan Documents, or against any one or more of them, separately or together, or against any other Person, without impairing the rights of Administrative Agent or Lenders against any party hereto. Any time that Administrative Agent is entitled to exercise its rights or remedies hereunder, it may in its discretion elect to demand payment and/or performance, as applicable, of the Guaranteed Obligations. If Administrative Agent elects to demand performance, it shall at all times thereafter have the right to demand payment until all of the Guaranteed Obligations have been paid and performed in full. If Administrative Agent elects to demand payment, it shall at all times thereafter have the right to demand performance until all of the Guaranteed Obligations have been paid and performed in full. 4. Certain Agreements and Waivers by Guarantors. (a) Guarantors hereby agree that neither Administrative Agent’s rights or remedies nor Guarantors’ obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, and the liability of Guarantors under this Guaranty shall be absolute, irrevocable and unconditional irrespective of: (i) any limitation of liability or recourse in any other Loan Document or arising under any Law;
8 (ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration; (iii) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations; (iv) any homestead exemption or any other exemption under applicable Law; (v) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantors’ recourse against any Person or collateral; (vi) whether express or by operation of Law, any partial release of the liability of Guarantors hereunder, or if one or more other guaranties are now or hereafter obtained by Administrative Agent or Lenders covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release of Borrower or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations or any other Person; (vii) the insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of Borrower or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations or any other Person; (viii) either with or without notice to or consent of Guarantors: any renewal, extension, modification, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance (including changes in the applicable Plans and other terms or aspects of construction of the Improvements) or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Administrative Agent or Lenders to Borrower, Guarantors, and/or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations or any other Person; (ix) any neglect, lack of diligence, delay, omission, failure, or refusal of Administrative Agent or Lenders to take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security therefor, or to take or prosecute (or in taking or prosecuting) any action in
9 connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral securing any or all of the Guaranteed Obligations; (x) any failure of Administrative Agent or Lenders to notify Guarantors of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of any other action taken or refrained from being taken by Administrative Agent or Lenders against Borrower or any other Person or any security or other recourse, or of any new agreement between Administrative Agent or Lenders and Borrower, it being understood that neither Administrative Agent nor Lenders shall be required to give Guarantors any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantors may have otherwise had being hereby waived by Guarantors, and Guarantors shall be responsible for obtaining for itself information regarding Borrower, including, but not limited to, any changes in the business or financial condition of Borrower, and Guarantors acknowledge and agree that neither Administrative Agent nor Lenders shall have any duty to notify Guarantors of any information which Administrative Agent or Lenders may have concerning Borrower; (xi) if for any reason Administrative Agent or any Lender is required to refund any payment by Borrower to any other party liable for the payment or performance of any or all of the Guaranteed Obligations or pay the amount thereof to someone else or any other Person; (xii) the making of advances by Administrative Agent or any Lender to protect its interest in the Property, preserve the value of the Property or for the purpose of performing any term or covenant contained in any of the Loan Documents; (xiii) the existence of any claim, counterclaim, setoff or other right that Guarantors may at any time have against Borrower, Administrative Agent, Lenders or any other Person, whether or not arising in connection with this Guaranty, the Note, the Loan Agreement, the Environmental Agreement or any other Loan Document; (xiv) the unenforceability of all or any part of the Guaranteed Obligations against Borrower, whether because the Guaranteed Obligations exceed the amount permitted by Law or violate any usury Law, or because the act of creating the Guaranteed Obligations, or any part thereof, is ultra vires, or because the officers or Persons creating the Guaranteed Obligations acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because Borrower has any valid defense, claim or offset with respect thereto, or because Borrower’s obligation ceases to exist by operation of Law, or because of any other reason or circumstance, it being agreed that Guarantors shall remain liable hereon regardless of whether Borrower or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); (xv) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to Borrower or any other Person,
10 including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Administrative Agent or Lenders; (xvi) any other condition, event, omission, action or inaction that would in the absence of this paragraph result in the release or discharge of Guarantors from the performance or observance of any obligation, covenant or agreement contained in this Guaranty, any other guaranty or any other agreement; (xvii) any early termination of any of the Guaranteed Obligations; (xviii) Administrative Agent’s enforcement or forbearance from enforcement of the Guaranteed Obligations on a net or gross basis; (xix) the benefits of the provisions of Sections 49-25 and 49-26 of the Code of Virginia; or (xx) any invalidity, irregularity or unenforceability in whole or in part (including with respect to any netting provision) of any Swap Contract relating to the Loan or any other Loan or any confirmation, instrument or agreement required thereunder or related thereto, or any transaction entered into thereunder, or any limitation on the liability of Borrower thereunder or any limitation on the method or terms of payment thereunder which may now or hereafter be caused or imposed in any manner whatsoever. (b) In the event any payment by Borrower or any other Person to Administrative Agent or any Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar Law, or if for any other reason Administrative Agent or any Lender is required to refund such payment or pay the amount thereof to any other party, such payment by Borrower or any other Person to Administrative Agent or such Lender shall not constitute a release of Guarantors from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Administrative Agent or Lenders of this Guaranty or of Guarantors), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Administrative Agent or such Lender or paid by Administrative Agent or such Lender to another Person (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Administrative Agent or such Lender and any attorneys’ fees, costs and expenses paid or incurred by Administrative Agent or such Lender in connection with any such event. It is the intent of Guarantors, Administrative Agent and Lenders that the obligations and liabilities of Guarantors hereunder are absolute, irrevocable and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid and performed, and not subject to refund or disgorgement, the obligations and liabilities of Guarantors hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. Administrative Agent on behalf of Lenders shall be entitled to continue to hold this Guaranty in its possession for a period of one year from the date the Guaranteed Obligations are paid and performed in full and for so long thereafter as may be necessary to enforce any obligation of Guarantors hereunder and/or to exercise any right or remedy of Administrative Agent or Lenders hereunder.
11 (c) If acceleration of the time for payment of any amount payable by Borrower under the Note or by Borrower under the Loan Agreement or any other Loan Document or any other Person is stayed or delayed by any Law or tribunal, all Guaranteed Obligations shall nonetheless be payable and performable by Guarantors on demand by Administrative Agent (excluding as to any Guarantor, any amounts that constitute Excluded Swap Obligations with respect to such Guarantor). (d) Guarantors’ obligations shall not be affected, impaired, lessened or released by loans, credits or other financial accommodations now existing or hereafter advanced by Administrative Agent to Borrower in excess of the Guaranteed Obligations. All payments, repayments and prepayments of the Loan, whether voluntary or involuntary, received by Administrative Agent from Borrower, any other Person or any other source (other than from Guarantors pursuant to a demand by Administrative Agent hereunder), and any amounts realized from any collateral for the Loan, shall be deemed to be applied first to any portion of the Loan which is not covered by this Guaranty, and last to the Guaranteed Obligations, and this Guaranty shall bind Guarantors to the extent of any Guaranteed Obligations that may remain owing to Administrative Agent. Administrative Agent shall have the right to apply any sums paid by Guarantors to any portion of the Loan in Administrative Agent’s sole and absolute discretion. 5. Subordination. If, for any reason whatsoever, Borrower is now or hereafter becomes indebted to Guarantors: (a) such indebtedness and all interest thereon and all liens, security interests and rights now or hereafter existing with respect to property of Borrower securing such indebtedness shall, at all times, be subordinate in all respects to the Guaranteed Obligations and to all liens, security interests and rights now or hereafter existing to secure the Guaranteed Obligations; (b) Guarantors shall not be entitled to enforce or receive payment, directly or indirectly, of any such indebtedness of Borrower to Guarantors until the Guaranteed Obligations have been fully and finally paid and performed; (c) Guarantors hereby assign and grant to Administrative Agent for the ratable benefit of Administrative Agent and Lenders a security interest in all such indebtedness and security therefor, if any, of Borrower to Guarantors now existing or hereafter arising, including any dividends and payments pursuant to debtor relief or insolvency proceedings referred to below. In the event of receivership, bankruptcy, reorganization, arrangement or other debtor relief or insolvency proceedings involving Borrower as debtor, Administrative Agent and Lenders shall have the right to prove their claim in any such proceeding so as to establish its rights hereunder and shall have the right to receive directly from the receiver, trustee or other custodian (whether or not an Event of Default shall have occurred or be continuing under any of the Loan Documents), dividends and payments that are payable upon any obligation of Borrower to Guarantors now existing or hereafter arising, and to have all benefits of any security therefor, until the Guaranteed Obligations have been fully and finally paid and performed. If, notwithstanding the foregoing provisions, Guarantors should receive any payment, claim or distribution that is prohibited as provided above in this Section 5, Guarantors shall pay the same to Administrative Agent for the ratable benefit of Administrative Agent and Lenders immediately, Guarantors hereby agreeing that
12 they shall receive the payment, claim or distribution in trust for Administrative Agent and Lenders and shall have absolutely no dominion over the same except to pay it immediately to Administrative Agent for the ratable benefit of Administrative Agent and Lenders; and (d) Guarantors shall promptly upon request of Administrative Agent from time to time execute such documents and perform such acts as Administrative Agent may require to evidence and perfect its interest and to permit or facilitate exercise of its rights under this Section 5, including, but not limited to, execution and delivery of financing statements, proofs of claim, further assignments and security agreements, and delivery to Administrative Agent of any promissory notes or other instruments evidencing indebtedness of Borrower to Guarantors. All promissory notes, accounts receivable ledgers or other evidences, now or hereafter held by Guarantors, of obligations of Borrower to Guarantors shall contain a specific written notice thereon that the indebtedness evidenced thereby is subordinated under and is subject to the terms of this Guaranty. 6. Other Liability of Guarantors or Borrower. If Guarantors are or become liable, by guaranty, endorsement or otherwise, for any indebtedness owing by Borrower to Administrative Agent or Lenders other than under this Guaranty, such liability shall not be in any manner impaired or affected hereby, and the rights of Administrative Agent and Lenders hereunder shall be cumulative of any and all other rights that Administrative Agent and Lenders may have against Guarantors. If Borrower is or becomes indebted to Administrative Agent or any Lender for any indebtedness other than or in excess of the Indebtedness for which Guarantors are liable under this Guaranty, any payment received or recovery realized upon such other indebtedness of Borrower to Administrative Agent or such Lender, as applicable, may, except to the extent paid by Guarantors on the Indebtedness or specifically required by Law or agreement of Administrative Agent or such Lender, as applicable, to be applied to the Indebtedness, in Administrative Agent’s or such Lender’s, as applicable, sole discretion, be applied upon indebtedness and obligations of Borrower to Administrative Agent or such Lender, as applicable, other than the Indebtedness. This Guaranty is independent of (and shall not be limited by) any other guaranty now existing or hereafter given. Further, Guarantors’ liability under this Guaranty is in addition to any and all other liability Guarantors may have to Administrative Agent or Lenders other than under this Guaranty in any other capacity. 7. Administrative Agent and Lenders Assigns. This Guaranty is for the benefit of Administrative Agent and Lenders, and Administrative Agent’s and Lenders’ successors and assigns, and in the event of an assignment of the Guaranteed Obligations, or any part thereof, the rights and benefits hereunder, to the extent applicable to the Guaranteed Obligations so assigned, may be transferred with such Guaranteed Obligations. Guarantors waives notice of any transfer or assignment of the Guaranteed Obligations, or any part thereof, and agrees that failure to give notice of any such transfer or assignment will not affect the liabilities of Guarantors hereunder. 8. Binding Effect. This Guaranty is binding not only on Guarantors, but also on Guarantors’ successors and assigns. If this Guaranty is signed by more than one Person, then all of the obligations of Guarantors arising hereunder shall be jointly and severally binding on each of the undersigned, and their respective successors and assigns, and the term “Guarantors” shall mean all of such Persons and each of them individually; provided that no Guarantor shall by virtue
13 of the joint and several nature of its obligations hereunder be liable under this Guaranty for any Excluded Swap Obligations with respect to such Guarantor. 9. Governing Law; Forum; Consent to Jurisdiction. This Guaranty is an agreement executed under seal. The validity, enforcement, and interpretation of this Guaranty, shall for all purposes be governed by and construed in accordance with the Laws of the Commonwealth of Virginia and applicable United States federal Law, and is intended to be performed in accordance with, and only to the extent permitted by, such Laws. All obligations of Guarantors hereunder are payable and performable at the place or places where the Guaranteed Obligations are payable and performable. Guarantors hereby irrevocably submit generally and unconditionally for Guarantors and in respect of Guarantors’ property to the nonexclusive jurisdiction of any Virginia state court, or any United States federal court sitting in the Commonwealth of Virginia, over any suit, action or proceeding arising out of or relating to this Guaranty or the Guaranteed Obligations. Guarantors hereby irrevocably waive, to the fullest extent permitted by Law, any objection that Guarantors may now or hereafter have to the laying of venue in any such court and any claim that any such court is an inconvenient forum. Final judgment in any such suit, action or proceeding brought in any such court shall be conclusive and binding upon Guarantors and may be enforced in any court in which Guarantors are subject to jurisdiction. Nothing herein shall affect the requirement of Administrative Agent or Lenders to serve process in any manner permitted by Law or limit the right of Administrative Agent or Lenders to bring proceedings against Guarantors in any other court or jurisdiction. Guarantors hereby release, to the extent permitted by applicable Law, all errors and all rights of exemption, appeal, stay of execution, inquisition, and other rights to which Guarantors may otherwise be entitled under the Laws of the United States of America or any State or possession of the United States of America now in force or which may hereinafter be enacted. The authority and power to appear for and enter judgment against Guarantors shall not be exhausted by one or more exercises thereof or by any imperfect exercise thereof and shall not be extinguished by any judgment entered pursuant thereto. Such authority may be exercised on one or more occasions or from time to time in the same or different jurisdiction as often as Administrative Agent or Lenders shall deem necessary and desirable. 10. Invalidity of Certain Provisions. If any provision of this Guaranty or the application thereof to any Person or circumstance shall, for any reason and to any extent, be declared to be invalid or unenforceable, neither the remaining provisions of this Guaranty nor the application of such provision to any other Person or circumstance shall be affected thereby, and the remaining provisions of this Guaranty, or the applicability of such provision to other Persons or circumstances, as applicable, shall remain in effect and be enforceable to the maximum extent permitted by applicable Law. 11. Attorneys’ Fees and Costs of Collection. Guarantors shall pay on demand all reasonable attorneys’ fees and all other actual out-of-pocket costs and expenses incurred by Administrative Agent and Lenders in the enforcement of or preservation of Administrative Agent’s and Lenders’ rights under this Guaranty including, without limitation, all reasonable attorneys’ fees and expenses, investigation costs, and all court costs, whether or not suit is filed hereon, or whether at maturity or by acceleration, or whether before or after maturity, or whether in connection with bankruptcy, insolvency or appeal, or whether in connection with the collection and enforcement of this Guaranty against any other Guarantors, if there be more than one. Guarantors agrees to pay interest on any expenses or other sums due to Administrative Agent and
14 Lenders under this Section 11 that are not paid when due, at a rate per annum equal to the interest rate provided for in the Note. Guarantors’ obligations and liabilities under this Section 11 shall survive any payment or discharge in full of the Guaranteed Obligations. 12. Payments. All sums payable under this Guaranty shall be paid in lawful money of the United States of America that at the time of payment is legal tender for the payment of public and private debts. 13. Controlling Agreement. It is not the intention of Administrative Agent, Lenders or Guarantors to obligate Guarantors to pay interest in excess of that lawfully permitted to be paid by Guarantors under applicable law. Should it be determined that any portion of the Guaranteed Obligations or any other amount payable by Guarantors under this Guaranty constitutes interest in excess of the maximum amount of interest that Guarantors, in Guarantors’ capacity as guarantor, may lawfully be required to pay under applicable law, the obligation of Guarantors to pay such interest shall automatically be limited to the payment thereof in the maximum amount so permitted under applicable law. The provisions of this Section 13 shall override and control all other provisions of this Guaranty and of any other agreement between Guarantors, Lenders and Administrative Agent. 14. Representations, Warranties, and Covenants of Guarantors. Until the Guaranteed Obligations are paid and performed in full and each and every term, covenant and condition of this Guaranty is fully performed, each Guarantor hereby represents, warrants, and covenants that (a) each Guarantor will derive a material and substantial benefit, directly or indirectly, from the making of the Loan to Borrower and from the making of this Guaranty by Guarantors; (b) this Guaranty is duly authorized and valid, and is binding upon and enforceable against Guarantors; (c) neither Guarantor is, and the execution, delivery and performance by Guarantors of this Guaranty will not cause any Guarantor to be, in violation of or in default with respect to any law or in default (or at risk of acceleration of indebtedness) under any agreement or restriction by which any Guarantor is bound or affected; (d) each Guarantor is duly organized, validly existing, and in good standing under the Laws of the state of its organization, is lawfully doing business in the State of Maryland, if applicable, and has full power and authority to enter into and perform this Guaranty; (e) Guarantors will indemnify Administrative Agent and Lenders from any actual out- of-pocket loss, cost or expense as a result of any representation or warranty of Guarantors being false, incorrect, incomplete or misleading in any material respect; (f) there is no litigation pending or, to the knowledge of Guarantors, threatened before or by any tribunal against or affecting Guarantors which if adversely determined would have a Material Adverse Effect; (g) all financial statements and information heretofore furnished to Administrative Agent and Lenders by Guarantors do, and all financial statements and information hereafter furnished to Administrative Agent and Lenders by Guarantors will, fully and accurately present the condition (financial or otherwise) of Guarantors as of their dates and the results of Guarantors’ operations for the periods therein specified, Guarantors are in compliance with the financial covenants set forth in Section 18 hereof, and, since the date of the most recent financial statements of Guarantors heretofore furnished to Administrative Agent and Lenders, no material adverse change has occurred in the financial condition of Guarantors, nor, except as heretofore disclosed in writing to Administrative Agent, has Guarantors incurred any material liability, direct or indirect, fixed or contingent; (h) after giving effect to this Guaranty, Guarantors are solvent, are not engaged or about to engage in business or a transaction for which the property of Guarantors is an unreasonably small capital,
15 and do not intend to incur or believe that they will incur debts that will be beyond their ability to pay as such debts mature; (i) Administrative Agent and Lenders have no duty at any time to investigate or inform Guarantors of the financial or business condition or affairs of Borrower or any other Person or any change therein, and Guarantors will keep fully apprised of Borrower’s financial and business condition; (j) Guarantors acknowledge and agree that Guarantors may be required to pay and perform the Guaranteed Obligations in full without assistance or support from Borrower or any other Person; (k) Guarantors have read and fully understands the provisions contained in the Note, the Loan Agreement, the Mortgage and the other Loan Documents; (l) each Guarantor has been represented in the signing of this Guaranty by independent legal counsel selected of its own free will and has the opportunity to discuss this Guaranty with such legal counsel; and (m) each Guarantor has reviewed the financial statements and tax returns of the Borrower. Guarantors’ representations, warranties and covenants are a material inducement to Administrative Agent and Lenders to enter into the other Loan Documents and shall survive the execution hereof and any bankruptcy, foreclosure, transfer of security or other event affecting Borrower, Guarantors, any other party, or any security for all or any part of the Guaranteed Obligations. In addition to the foregoing, Guarantors further represents, warrants and covenants that (x) Guarantors have received and examined copies of all agreements relating to any Swap Contract relating to the Loan or any other Loan or the proposed form thereof, the observance and performance of which by Borrower is hereby guaranteed by each Guarantor that is a Qualified ECP Guarantor (as hereinafter defined); (y) Guarantors will benefit from a Swap Counterparty entering into each such Swap Contract and any transaction thereunder with Borrower, and Guarantors have determined that the execution and delivery by Guarantors of this Guaranty is necessary and convenient to the conduct, promotion and attainment of the business of Guarantors; and (z) neither Administrative Agent nor any Lender has any duty to determine whether any such Swap Contract will be or has been entered into by Borrower and/ for purposes of hedging interest rate, currency exchange rate, or other risks arising in its businesses or affairs and not for purposes of speculation or is otherwise inappropriate for Borrower. Guarantors’ representations, warranties and covenants are a material inducement to Lender to enter into the other Loan Documents and any Swap Contract shall survive the execution hereof and any bankruptcy, foreclosure, transfer of security or other event affecting Borrower, Guarantors, any other party, or any security for all or any part of the Guaranteed Obligations. 15. Notices. All notices, requests, consents, demands and other communications required or which any party desires to give hereunder or under any other Loan Document shall be given in the manner and effective as provided in the Loan Agreement; provided that, service of a notice required by any applicable statute shall be considered complete when the requirements of that statute are met. This Section shall not be construed in any way to affect or impair any waiver of notice or demand provided in this Guaranty or in any Loan Document or to require giving of notice or demand to or upon any Person in any situation or for any reason. 16. Cumulative Rights. The exercise by Administrative Agent of any right or remedy hereunder or under any other Loan Document, or at law or in equity, shall not preclude the concurrent or subsequent exercise of any other right or remedy. Administrative Agent shall have all rights, remedies and recourses afforded to Administrative Agent by reason of this Guaranty or any other Loan Document or by law or equity or otherwise, and the same (a) shall be cumulative
16 and concurrent, (b) may be pursued separately, successively or concurrently against Guarantors or others obligated for the Guaranteed Obligations, or any part thereof, or against any one or more of them, or against any security or otherwise, at the sole and absolute discretion of Administrative Agent, (c) may be exercised as often as occasion therefor shall arise, it being agreed by Guarantors that the exercise of, discontinuance of the exercise of or failure to exercise any of such rights, remedies, or recourses shall in no event be construed as a waiver or release thereof or of any other right, remedy, or recourse, and (d) are intended to be, and shall be, nonexclusive. No waiver of any default on the part of Guarantors or of any breach of any of the provisions of this Guaranty or of any other document shall be considered a waiver of any other or subsequent default or breach, and no delay or omission in exercising or enforcing the rights and powers granted herein or in any other document shall be construed as a waiver of such rights and powers, and no exercise or enforcement of any rights or powers hereunder or under any other document shall be held to exhaust such rights and powers, and every such right and power may be exercised from time to time. The granting of any consent, approval or waiver by Administrative Agent shall be limited to the specific instance and purpose therefor and shall not constitute consent or approval in any other instance or for any other purpose. No notice to or demand on Guarantors in any case shall of itself entitle Guarantors to any other or further notice or demand in similar or other circumstances. No provision of this Guaranty or any right, remedy or recourse of Administrative Agent with respect hereto, or any default or breach, can be waived, nor can this Guaranty or Guarantors be released or discharged in any way or to any extent, except specifically in each case by a writing intended for that purpose (and which refers specifically to this Guaranty) executed, and delivered to Guarantors, by Administrative Agent on behalf of Lenders. 17. Term of Guaranty. This Guaranty shall continue in effect until all the Guaranteed Obligations are fully and finally paid, performed and discharged, except that, and notwithstanding any return of this Guaranty to Guarantors, this Guaranty shall continue in effect (i) with respect to any of the Guaranteed Obligations that survive the full and final payment of the indebtedness evidenced by the Note, (ii) with respect to all obligations and liabilities of Guarantors under Section 11, and (iii) as provided in Section 3(b). 18. Financial Statements; Financial Covenants. (a) Guarantors shall deliver to Administrative Agent financial statements and other information of the type and at the times provided in the Loan Agreement. All assets shown on the financial statements provided by Guarantors, unless clearly designated to the contrary, shall be conclusively deemed to be free and clear of any exemption or any claim of exemption of Guarantors at the date of the financial statements and at all times thereafter. Acceptance of any financial statement by Administrative Agent and Lenders, whether or not in the form prescribed herein, shall be relied upon by Administrative Agent and Lenders in the administration and enforcement of the Loan. (b) Until such time as the Loan is paid in full and Lenders have no obligation to extend additional credit to Borrower, Guarantors, on a combined basis, shall comply with the covenants set forth in Section 8.15 (the “Guarantor Financial Covenants”) of the Credit Agreement (as defined in the Loan Agreement), to be measured and confirmed in accordance with the Credit Agreement. Guarantor agrees that, to the extent the Credit Agreement expires, terminates or is otherwise no longer in effect, Guarantor shall continue to comply with the Guarantor Financial
17 Covenants in effect immediately prior to such expiration or termination; provided that if the Credit Agreement is replaced from time to time with another senior revolving credit facility to which Administrative Agent is a party, then Guarantor only will be obligated to comply with the financial covenants in effect from time to time under such replacement senior revolving credit facility. If the Credit Agreement is replaced from time to time with another senior revolving credit facility to which Administrative Agent is not a party, then Administrative Agent and Lenders will consider in good faith Guarantor’s request to conform the financial covenants hereunder to the financial covenants in effect from time to time under such replacement senior revolving credit facility, but acceptance of such replacement financial covenants shall be accepted or rejected in Required Lenders’ sole discretion. Upon Administrative Agent’s written request, Guarantor shall execute an amendment to this Guaranty to reflect such then currently existing financial covenants. (c) [Intentionally Omitted]. (d) [Intentionally Omitted]. (e) Guarantors also agree to provide to Administrative Agent such other and further financial information with respect to Guarantors as Lender shall from time to time request. 19. Disclosure of Information. Administrative Agent or Lenders may sell or offer to sell the Loan or interests in the Loan to one or more assignees or participants and may disclose to any such assignee or participant or prospective assignee or participant, to Administrative Agent’s or Lenders’ affiliates, including without limitation PNC Capital Markets, LLC, to any regulatory body having jurisdiction over Administrative Agent or Lenders and to any other parties as necessary or appropriate in Administrative Agent’s or Lenders’ reasonable judgment, any information Administrative Agent or Lenders now have or hereafter obtain pertaining to the Loan or any other Loan, this Guaranty, or Guarantors, including, without limitation, information regarding any security for the Loan or any other Loan or for this Guaranty, credit or other information on Guarantors, Borrower, and/or any other party liable, directly or indirectly, for any part of the Loan or any other Loan. 20. Right of Set Off. Upon the occurrence and during the continuance of any Event of Default, however defined, in the payment or performance when due of any of the Guaranteed Obligations, Administrative Agent and each Lender are hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, without notice to any Person (any such notice being expressly waived by Guarantors to the fullest extent permitted by applicable law), to set off and apply any and all deposits, funds, or assets at any time held and other indebtedness at any time owing by Administrative Agent or such Lender, as applicable, to or for the credit or the account of Guarantors against any and all of the obligations of Guarantors now or hereafter existing under this Guaranty, whether or not Administrative Agent shall have made any demand under this Guaranty or exercised any other right or remedy hereunder. Administrative Agent or such Lender, as applicable, will promptly notify Guarantors after any such set-off and application made by Administrative Agent or such Lender, as applicable, provided that the failure to give such notice shall not affect the validity of such set-off and application. The rights of Administrative Agent and each Lender under this Section 20 are in addition to the other rights and remedies (including other rights of set-off) that Administrative Agent and Lenders may have and every right of set-off and lien shall continue in full force and effect until such right of set-off or
18 lien is specifically waived or released by an instrument in writing executed by Administrative Agent or such Lender. 21. Subrogation. Notwithstanding anything to the contrary contained herein, Guarantors shall not have any right of subrogation in or under any of the Loan Documents or to participate in any way therein, or in any right, title or interest in and to any security or right of recourse for the Indebtedness or any right to reimbursement, exoneration, contribution, indemnification or any similar rights, until the Indebtedness has been fully and finally paid. This waiver is given to induce Lenders to make the Loan to Borrower. 22. Further Assurances. Guarantors at Guarantors’ expense will promptly execute and deliver to Administrative Agent upon Administrative Agent’s request all such other and further documents, agreements, and instruments in compliance with or accomplishment of the agreements of Guarantors under this Guaranty. 23. No Fiduciary Relationship. The relationship among Administrative Agent, Lenders and Guarantors is solely that of lender and guarantor. Administrative Agent and Lenders have no fiduciary or other special relationship with or duty to Guarantors and none is created hereby or may be inferred from any course of dealing or act or omission of Administrative Agent or Lenders. 24. Interpretation. If this Guaranty is signed by more than one Person as “Guarantors”, then the term “Guarantors” as used in this Guaranty shall refer to all such Persons, jointly and severally, and all promises, agreements, covenants, waivers, consents, representations, warranties and other provisions in this Guaranty are made by and shall be binding upon each and every such Person, jointly and severally and Administrative Agent may pursue any Guarantors hereunder without being required (i) to pursue any other Guarantors hereunder or (ii) pursue rights and remedies under the Mortgage and/or applicable law with respect to the Property or any other Loan Documents. The term “Lenders” shall be deemed to include any subsequent holder(s) of the Note. Whenever the context of any provisions hereof shall require it, words in the singular shall include the plural, words in the plural shall include the singular, and pronouns of any gender shall include the other gender. Captions and headings in the Loan Documents are for convenience only and shall not affect the construction of the Loan Documents. All references in this Guaranty to Schedules, Articles, Sections, Subsections, paragraphs and subparagraphs refer to the respective subdivisions of this Guaranty, unless such reference specifically identifies another document. The terms “herein”, “hereof”, “hereto”, “hereunder” and similar terms refer to this Guaranty and not to any particular Section or subsection of this Guaranty. The terms “include” and “including” shall be interpreted as if followed by the words “without limitation”. All references in this Guaranty to sums denominated in dollars or with the symbol “$” refer to the lawful currency of the United States of America, unless such reference specifically identifies another currency. For purposes of this Guaranty, “Person” or “Persons” shall include firms, associations, partnerships (including limited partnerships), joint ventures, trusts, corporations, limited liability companies, and other legal entities, including governmental bodies, agencies, or instrumentalities, as well as natural persons. 25. Time of Essence. Time shall be of the essence in this Guaranty with respect to all of Guarantors’ obligations hereunder.
19 26. Counterparts. This Guaranty may be executed in multiple counterparts, each of which, for all purposes, shall be deemed an original, and all of which taken together shall constitute but one and the same agreement. 27. Entire Agreement. This Guaranty embodies the entire agreement between Administrative Agent, Lenders and Guarantors with respect to the guaranty by Guarantors of the Guaranteed Obligations. This Guaranty supersedes all prior agreements and understandings, if any, with respect to the guaranty by Guarantors of the Guaranteed Obligations. No condition or conditions precedent to the effectiveness of this Guaranty exist. This Guaranty shall be effective upon execution by Guarantors and delivery to Administrative Agent. This Guaranty may not be modified, amended or superseded except in a writing signed by Administrative Agent and Guarantors referencing this Guaranty by its date and specifically identifying the portions hereof that are to be modified, amended or superseded. 28. WAIVER OF JURY TRIAL. GUARANTORS HEREBY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH GUARANTORS, ADMINISTRATIVE AGENT AND/OR LENDERS MAY BE PARTIES ARISING OUT OF, IN CONNECTION WITH, OR IN ANY WAY PERTAINING TO, THIS GUARANTY, THE NOTE, THE MORTGAGE, THE LOAN AGREEMENT AND ANY OTHER LOAN DOCUMENT. IT IS AGREED AND UNDERSTOOD THAT THIS WAIVER CONSTITUTES A WAIVER OF TRIAL BY JURY OF ALL CLAIMS AGAINST ALL PARTIES TO SUCH ACTIONS OR PROCEEDINGS, INCLUDING CLAIMS AGAINST PARTIES WHO ARE NOT PARTIES TO THIS GUARANTY. THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY GUARANTORS, AND GUARANTORS HEREBY REPRESENT THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY INDIVIDUAL TO INDUCE THIS WAIVER OF TRIAL BY JURY OR TO IN ANY WAY MODIFY OR NULLIFY ITS EFFECT. GUARANTORS FURTHER REPRESENT AND WARRANT THAT THEY HAVE BEEN REPRESENTED IN THE SIGNING OF THIS GUARANTY AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED BY INDEPENDENT LEGAL COUNSEL SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL. 29. ERISA. As of the date hereof and throughout the term of this Guaranty, (a) Guarantor is not and will not be (i) an “employee benefit plan,” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”); or (ii) a “plan” within the meaning of Section 4975(e) of the Code; (b) the assets of Guarantor do not and will not constitute “plan assets” within the meaning of the United States Department of Labor Regulations set forth in 29 C.F.R. §2510.3-101, as modified by Section 3(42) of ERISA; and (c) Guarantor is not and will not be a “governmental plan” within the meaning of Section 3(32) of ERISA and transactions by or with Guarantor are not and will not be subject to federal, state or local statutes applicable to Guarantor regulating investments of fiduciaries with respect to governmental plans. 30. Credit Verification. Each legal entity and individual obligated on this Guaranty, whether as one of the Guarantors, a general partner of one of the Guarantors or in any other capacity, hereby authorizes Lenders to check any credit references, verify his/her employment and obtain credit reports from credit reporting agencies of Administrative Agent’s or Lenders’ choice
20 in connection with any monitoring, collection or future transaction concerning the Loan, including any modification, extension or renewal of the Loan. Also in connection with any such monitoring, collection or future transaction, Administrative Agent and each of Administrative Agent and Lenders are hereby authorized to check credit references, verify employment and obtain a third party credit report for the spouse of any married person obligated on this Guaranty, if such person lives in a community property state. 31. Swap Obligations. Each Person obligated on this Guaranty, whether as one of the Guarantors, a general partner of one of the Guarantors or in any other capacity, will be deemed to represent to Administrative Agent on each date on which a Swap Transaction is entered into pursuant to any Swap Contract that such Person is an “eligible contract participant” and that each guarantor, if any, of its Swap Obligations (as defined below) that are included as part of the Guaranteed Obligations is an “eligible contract participant,” as such term is defined in the U.S. Commodity Exchange Act (as defined below). For purposes of this provision, the following terms shall have the meanings set forth below: “Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute. “Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the guarantee of such Swap Obligation by such Guarantor pursuant to this Guaranty (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to Section 32 hereof and any and all guarantees of such Guarantor’s Swap Obligations by other Persons) at the time such Guarantor’s obligations to guarantee such Swap Obligation pursuant to this Guaranty are otherwise effective. “Qualified ECP Guarantor” means, in respect of any Swap Obligation, each Guarantor that has total assets exceeding $10,000,000 at the time such Guarantor’s guarantee of such Swap Obligation pursuant to this Guaranty becomes effective, or otherwise constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder, and can cause another Person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act. “Swap Obligations” means with respect to any Person any obligation incurred with respect to a transaction that is a “swap” as defined in the Section 1a(47) of the Commodity Exchange Act and CFTC Regulation 1.3(xxx). 32. Acknowledgement Regarding Any Supported QFCs. Section 9.23 of the Loan Agreement is incorporated herein by reference as if fully set forth herein and Guarantor acknowledges and agrees to be bound by the terms of said section for any QFC Credit Support and/or Supported QFC, as such terms may be defined in the Loan Agreement.
21 THE LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. [Signatures Appear On the Following Page]
