8-K
Janus Living, Inc. (JAN)
UNITED STATESSECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) ofthe Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):March 19, 2026
Janus Living, Inc.
(Exact name of registrant as specified in itscharter)
| Maryland | 001-43206 | 41-2996951 |
|---|---|---|
| (State or other jurisdiction of incorporation) | (Commission File Number) | (IRS Employer Identification No.) |
c/o Healthpeak Properties, Inc.
4600South Syracuse Street, Suite 500
Denver, CO 80237
(Address of principal executive offices) (ZipCode)
(720)428-5050
(Registrant’s telephone number, includingarea code)
N/A
(Former name or former address, if changed sincelast report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ¨ | Written communications pursuant to Rule 425 under<br> the Securities Act (17 CFR 230.425) |
|---|---|
| ¨ | Soliciting material pursuant to Rule 14a-12 under<br> the Exchange Act (17 CFR 240.14a-12) |
| --- | --- |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under<br> the Exchange Act (17 CFR 240.14d-2(b)) |
| --- | --- |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under<br> the Exchange Act (17 CFR 240.13e-4(c)) |
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Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on<br> which registered |
|---|---|---|
| Class A-1 Common Stock,<br> $0.01 par value | JAN | New York Stock Exchange |
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 x
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 Agreement
On March 23, 2026, Janus Living, Inc. (the “Company” and, unless the context otherwise requires, together with its consolidated subsidiaries, “we,” “us,” or “our”) closed its registered underwritten public offering (the “Offering”) of 48,300,000 shares of Class A-1 common stock, $0.01 par value per share (the “Class A-1 Common Stock”), which includes the exercise in full by the underwriters of their option to purchase 6,300,000 additional shares of Class A-1 Common Stock, pursuant to the Company’s registration statement on Form S-11 (File No. 333-293835) and the registration statement on Form S-11 (File No. 333-294444) filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the “Securities Act”) (together, the “Registration Statement”).
Underwriting Agreement
In connection with the Offering, the Company entered into the Underwriting Agreement, dated March 19, 2026, by and among the Company, Janus Living OP, LLC (the “Operating Company”), Healthpeak Investment Management, LLC, as external manager to the Company (the “Manager”), and BofA Securities, Inc. and J.P. Morgan Securities LLC, as representatives of the several underwriters named therein (the “Underwriting Agreement”). The Underwriting Agreement contains customary representations, warranties, covenants and agreements by the Company, the Operating Company and the Manager, customary conditions to closing, indemnification obligations of the Company, the Operating Company and the underwriters, including for liabilities under the Securities Act, certain other obligations of the parties and termination provisions.
The summary above is qualified in its entirety by the text of the Underwriting Agreement, which is filed as Exhibit 1.1 to this Current Report on Form 8-K and incorporated herein by reference.
Amended and Restated Operating Agreement of Janus Living OP,LLC
On March 19, 2026, the Company, as managing member of the Operating Company, entered into an amended and restated operating agreement (the “Operating Agreement”). As described in the Registration Statement, pursuant to the Operating Agreement, the Operating Company may issue common units of limited partnership interest (“common units”) and LTIP Units (as defined in the Operating Agreement). In addition, the Operating Company may authorize and issue additional classes of units of membership interest in the future.
Pursuant to the Operating Agreement, members of the Operating Company will have rights beginning 14 months after the issuance of the common units (other than common units held by Healthpeak Properties, Inc. or its affiliates, which have such redemption rights at any time and are not subject to such 14-month waiting period) to require the Operating Company to redeem all or part of their common units for cash equal to the then-current market value of an equal number of shares of the Class A-1 Common Stock (determined in accordance with and subject to adjustment under the Operating Agreement) or, at the Company’s election, to exchange their common units for shares of Class A-1 Common Stock on a one-for-one basis subject to certain adjustments and the restrictions on ownership and transfer of the Company’s stock set forth in the Company’s charter.
The Company is the managing member of, and currently owns a 71.1% interest in, the Operating Company. Except as otherwise expressly provided in the Operating Agreement, the Company, as managing member, has the exclusive power to manage and conduct the business of the Operating Company.
The foregoing description of the Operating Agreement is only a summary and is qualified in its entirety by reference to the full text of the Operating Agreement, a copy of which is filed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.
Management Agreement
On March 19, 2026, the Company and the Operating Company entered into a management agreement (the “Management Agreement”) with the Manager, pursuant to which the Manager will manage the day-to-day operations of the Company. Under the terms of the Management Agreement, the Company will pay the Manager an annual management fee of $10.0 million, plus or minus the cumulative effect of an annual amount equal to 0.5% of (i) the gross book value of any investment that is the subject of an acquisition or disposition or (ii) the increase in the gross book value of any investment that was the subject of a capital deployment (as defined in the Management Agreement), in each case, since January 1, 2026 (a “management fee adjustment amount”); provided, that (A) if our investments have a gross book value in excess of $10.0 billion but less than $20.0 billion as of the determination of a management fee adjustment amount pursuant to the terms of the Management Agreement, such 0.5% will be decreased by 0.1% for each dollar of gross book value of any investment that was the subject of an acquisition or disposition, or increase in the gross book value of any investment that was the subject of a capital deployment in excess of $10.0 billion but less than $20.0 billion, and (B) if our investments have a gross book value in excess of $20.0 billion as of the determination of a management fee adjustment amount pursuant to the terms of the Management Agreement, such 0.5% will be decreased by 0.15% for each dollar of gross book value of any investment that was the subject of an acquisition or disposition, or increase in the gross book value of any investment that was the subject of a capital deployment, that is in excess of $20.0 billion. The management fee shall be reduced by the stock-based compensation expense recognized by the Company in connection with the accounting for annual equity-based awards granted by the Company to employees and consultants of the Manager and its affiliates under the 2026 Janus Living, Inc. Equity Plan during the applicable periods. The Management Agreement has an initial term of three years with annual renewals unless terminated by the Company or the Manager pursuant to the terms of the Management Agreement. The Management Agreement provides that, for a period not to exceed 12 months following the termination of the Management Agreement, the Manager will use commercially reasonable efforts to cooperate with us in executing an orderly transition of our management and the management of our subsidiaries’ business and operations. During any transition period, the Manager will be entitled to continue receiving any compensation owed pursuant to the terms of the Management Agreement. The Company will also reimburse the Manager for documented third-party costs and expenses incurred by the Manager in providing services under the Management Agreement, including expenses related to legal, accounting, due diligence and other services. Expenses will be reimbursed in cash on a quarterly or monthly basis, at the Manager’s election.
The foregoing description of the Management Agreement is only a summary and is qualified in its entirety by reference to the full text of the Management Agreement, a copy of which is filed as Exhibit 10.2 to this Current Report on Form 8-K and incorporated herein by reference.
Exclusivity Agreement
On March 19, 2026, the Company and the Operating Company entered into an exclusivity agreement (the “Exclusivity Agreement”) with Healthpeak OP, LLC and Healthpeak Properties, Inc. (together with its consolidated subsidiaries (including Healthpeak OP, LLC), “Healthpeak”), pursuant to which we and Healthpeak agreed that during the term of the Management Agreement, neither we nor Healthpeak, nor any of our respective affiliates, will engage in, sponsor, own, operate, manage, or otherwise participate in a competing business. A “competing business” as it relates to us means the ownership, acquisition, development, redevelopment, leasing, management, operation, financing, and disposition of real estate properties primarily used for senior housing, including independent living, assisted living, memory care, active adult, life plan communities or other residential dwellings that support the aging population. A “competing business” as it relates to Healthpeak means the ownership, acquisition, development, redevelopment, leasing, management, operation, financing, and disposition of real estate properties (i) primarily used as outpatient medical facilities, including medical office buildings, ambulatory surgery centers, specialty clinics, diagnostic facilities, or other facilities providing non-acute healthcare services outside of a hospital inpatient setting, or (ii) primarily used for laboratory, life science, research and development purposes, including properties reasonably capable of conversion to such uses or used for ancillary office purposes.
The foregoing description of the Exclusivity Agreement is only a summary and is qualified in its entirety by reference to the full text of the Exclusivity Agreement, a copy of which is filed as Exhibit 10.3 to this Current Report on Form 8-K and incorporated herein by reference.
Stockholders Agreement
On March 19, 2026, the Company entered into a stockholders agreement (the “Stockholders Agreement”) with Healthpeak and certain of its subsidiaries, pursuant to which, among other rights, Healthpeak shall have the right to designate a number of individuals such that, following the election of any directors the number of Healthpeak designees serving as directors of our company would be equal (if elected) to: (i) 40% of the total number of directors on our board of directors (or the lowest whole number equal to or greater than that percentage) if Healthpeak beneficially owns at least 30% of the outstanding shares of our common stock; and (ii) one nominee to our board of directors if Healthpeak beneficially owns at least 5% (but less than 30%) of the total outstanding common stock.
In the case of a vacancy on our board of directors created by the removal or resignation of a director designated by Healthpeak, the Stockholders Agreement requires us to nominate for election an individual designated by Healthpeak to fill the vacancy. In addition, the Stockholders Agreement requires that for so long as the Stockholders Agreement remains in effect, any action to increase or decrease the size of our board of directors will require the prior written consent of Healthpeak.
The Stockholders Agreement will terminate at the earlier to occur of (i) the time Healthpeak is no longer entitled to nominate a director pursuant to the Stockholders Agreement or (ii) the date on which Healthpeak requests that the Stockholders Agreement terminate.
The foregoing description of the Stockholders Agreement is only a summary and is qualified in its entirety by reference to the full text of the Stockholders Agreement, a copy of which is filed as Exhibit 10.4 to this Current Report on Form 8-K and incorporated herein by reference.
Registration Rights Agreement
On March 19, 2026, the Company entered into a registration rights agreement (the “Registration Rights Agreement”) with certain subsidiaries of Healthpeak, pursuant to which the Company granted such entities and their affiliates with certain “demand” registration rights and “piggyback” registration rights, including rights to demand that we undertake a public offering of shares of our Class A-1 Common Stock for our own account and use the net proceeds from such offering to purchase or redeem shares of Class A-1 Common Stock or common units held by Healthpeak, with respect to 214,734,026 shares of Class A-1 Common Stock, including 75,917,780 shares of Class A-1 Common Stock issuable upon redemption of 75,917,780 common units. The Registration Rights Agreement also provides that the Company will pay certain expenses relating to such registrations and indemnify the registration rights holders against certain liabilities that may arise under the Securities Act.
The foregoing description of the Registration Rights Agreement is only a summary and is qualified in its entirety by reference to the full text of the Registration Rights Agreement, a copy of which is filed as Exhibit 10.5 to this Current Report on Form 8-K and incorporated herein by reference.
Indemnification Agreements
The Company entered into an indemnification agreement with each of the Company’s directors and executive officers effective as of March 19, 2026 (collectively, the “Indemnification Agreements”). The Indemnification Agreements provide, in general, that the Company will indemnify these individuals to the maximum extent permitted under Maryland law. The foregoing description of the Indemnification Agreements is only a summary and is qualified in its entirety by reference to the form of Indemnification Agreement, which is filed as Exhibit 10.6 to this Current Report on Form 8-K and incorporated herein by reference.
Credit Facilities
On March 23, 2026 (the “Closing Date”), concurrently with the completion of the Offering, the Company and the Operating Company entered into the Credit Agreement (the “Credit Agreement”), dated as of March 23, 2026, by and among the Company, the Operating Company, certain subsidiaries of the Company, the lenders party thereto and Bank of America, N.A., as administrative agent. The Credit Agreement provides for a $500 million revolving credit facility (the “Revolving Credit Facility”) and $100 million delayed-draw term loan facility (the “DDTL Facility” and, together with the Revolving Credit Facility, the “New Credit Facilities”). The Company has the option to increase the Revolving Credit Facility, increase the DDTL Facility and/or obtain incremental term loans so long as the aggregate principal amount of the Revolving Credit Facility, the DDTL Facility and such incremental term loans does not exceed $1.5 billion, subject to customary requirements, including obtaining additional lender commitments.
Initially, borrowings under the New Credit Facilities bear interest at (i) in the case of the Revolving Credit Facility, the secured overnight financing rate as administered by the Federal Reserve Bank of New York (“SOFR”) plus a margin of between 105 and 155 basis points and (ii) in the case of the DDTL Facility, the SOFR plus a margin of between 110 and 180 basis points, in each case based on a leverage-based pricing grid. At our election and subject to our non-credit enhanced, senior unsecured long-term debt obtaining an investment grade rating from either S&P Global Ratings or Moody’s Investors Service, Inc., borrowings under the New Credit Facilities will bear interest at (i) in the case of the Revolving Credit Facility, the SOFR plus a margin of between 65 and 135 basis points and (ii) in the case of the DDTL Facility, the SOFR plus a margin of between 70 and 155 basis points, in each case based on a debt rating-based pricing grid. In each case, the New Credit Facilities allow for customary alternate base rate interest elections. Principal payments are due at maturity with optional prepayments at our discretion, and the Revolving Credit Facility is subject to customary mandatory prepayment provisions.
The Revolving Credit Facility matures on March 22, 2030 with two six-month extension periods available, subject to certain conditions. The Revolving Credit Facility also imposes a facility fee of (i) initially, 15 to 35 basis points on the aggregate amount of commitments under the Revolving Credit Facility, based on a leverage-based pricing grid and (ii) at our election and subject to our non-credit enhanced, senior unsecured long-term debt obtaining an investment grade rating from either S&P Global Ratings or Moody’s Investors Service, Inc., 10 to 30 basis points on the aggregate amount of commitments under the Revolving Credit Facility , based on a debt rating-based pricing grid.
Subject to certain conditions, term loans may be borrowed under the DDTL Facility on or after the Closing Date to but excluding the date that is 270 days after the Closing Date in no more than five borrowings. Term loans borrowed under the DDTL Facility mature on March 21, 2031. Additionally, the DDTL Facility imposes a ticking fee equal to 15 basis points per annum on the daily amount of the undrawn commitments of the DDTL Facility, solely during the period beginning on the date that is 120 days from the Closing Date and ending on the date that is 270 days from the Closing Date.
The New Credit Facilities contain customary non-financial and affirmative covenants and financial covenants. The non-financial negative covenants include customary limitations relating to, among other topics, (i) incurring liens, (ii) incurring indebtedness, (iii) making any fundamental changes, (iv) making dispositions, (v) making restricted payments, (vi) making changes in the nature of business, (vii) entering into transactions with affiliates, (viii) entering into burdensome agreements, and (ix) complying with sanctions. In each case, the negative covenants are subject to customary “basket” exceptions, limitations, exclusions and materiality and dollar-based thresholds.
The financial covenants require:
| (i) | our maximum leverage ratio, based upon the ratio of total indebtedness to total gross asset value, to be less than or equal to 0.60<br>to 1.00 as of the end of any fiscal quarter, subject to limited increases in the permitted maximum leverage ratio in connection with material<br>acquisitions, |
|---|---|
| (ii) | our maximum secured debt ratio, based upon the ratio of total secured indebtedness to total gross asset value, to be less than or<br>equal to 0.40 to 1.00 as of the end of any fiscal quarter, |
| --- | --- |
| (iii) | our minimum fixed charge coverage ratio, based upon the ratio of total EBITDA (as defined in the New Credit Facilities) to total fixed<br>charges, to be equal to or greater than 1.50 to 1.00 as of the end of any fiscal quarter, |
| --- | --- |
| (iv) | our maximum unsecured leverage ratio, based upon the ratio of total unsecured indebtedness to total unencumbered asset value, to be<br>less than or equal to 0.60 to 1.00 as of the end of any fiscal quarter, subject to limited increases in the permitted maximum unsecured<br>leverage ratio in connection with material acquisitions, |
| --- | --- |
| (v) | our minimum consolidated tangible net worth to be equal to or greater than an amount equal to the sum of (x) 75% of the consolidated<br>tangible net worth as of the last fiscal quarter ending immediately prior to the Closing Date (after giving effect to the Offering) plus<br>(y) an amount equal to 75% of the net proceeds received by us from any offering of equity interests accruing after the Closing Date,<br>as of the end of any fiscal quarter, and |
| --- | --- |
| (vi) | our minimum unsecured interest coverage ratio, based upon the ratio of unencumbered net operating income to unsecured interest expense,<br>to be equal to or greater than 1.75 to 1.00 as of the end of any fiscal quarter. |
| --- | --- |
The foregoing descriptions of the Credit Agreement and New Credit Facilities do not purport to be complete and are qualified in their entirety by reference to the full text of the Credit Agreement, a copy of which is filed herewith as Exhibit 10.7 to this Current Report on Form 8-K and incorporated herein by reference.
Item 2.03. Creation of a Direct Financial Obligation or an Obligationunder an Off-Balance Sheet Arrangement of a Registrant.
The information set forth in Item 1.01 of this Current Report on Form 8-K under “Credit Facilities” is incorporated by reference into this Item 2.03.
Item 5.02. Departure of Directors or Certain Officers; Electionof Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Indemnification Agreements
The information set forth in Item 1.01 of this Current Report on Form 8-K under the heading “Indemnification Agreements” is incorporated by reference into this Item 5.02.
Board of Directors
Effective March 19, 2026, John V. Arabia, Charles J. Herman, Jr., Denise Olsen and Katherine M. Sandstrom were elected to the board of directors of the Company. Ms. Olsen and Messrs. Herman and Arabia will serve on the Company’s Audit Committee. Scott M. Brinker and Katherine M. Sandstrom were nominated to the board of directors of the Company by Healthpeak pursuant to the Stockholders Agreement and were elected to the board of directors of the Company.
Biographical information regarding the directors, equity awards made to the directors, a description of the material terms of the directors’ annual compensation and relationships required to be disclosed pursuant to Item 404(a) of Regulation S-K have previously been reported by the Company in the Registration Statement.
Item 5.03. Amendments to Article of Incorporation or Bylaws;Change in Fiscal Year.
Articles of Amendment and Restatement
On March 17, 2026, the Company filed with the State Department of Assessments and Taxation of Maryland its Articles of Amendment and Restatement. A copy of the Company’s Articles of Amendment and Restatement, is attached hereto as Exhibit 3.1 and is incorporated herein by reference.
Amended and Restated Bylaws
The Company also adopted its Amended and Restated Bylaws effective March 19, 2026. A copy of the Company’s Amended and Restated Bylaws dated March 19, 2026 is attached hereto as Exhibit 3.2 and is incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits. The following exhibits are being filed herewith:
* Certain schedules and exhibits have been omitted from this filing pursuant to Item 601(a)(5) of Regulation S-K. The Company agrees to furnish supplementally 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, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| JANUS LIVING, INC. | ||
|---|---|---|
| Date: March 23, 2026 | By: | /s/ Kelvin O. Moses |
| Name: | Kelvin O. Moses | |
| Title: | Chief Financial Officer |
Exhibit1.1
42,000,000 Shares
Janus Living, Inc. (a Maryland corporation)
Class A-1 Common Stock
(Par Value $0.01 Per Share)
UNDERWRITING AGREEMENT
42,000,000 Shares
Janus Living, Inc. (a Maryland corporation)
Class A-1 Common Stock (Par Value $0.01 Per Share)
UNDERWRITING AGREEMENT
March 19, 2026
BofA Securities, Inc. One Bryant Park New York, New York 10036
J.P. Morgan Securities LLC
270 Park Avenue
New York, New York 10017
As Representatives of the several Underwriters
Ladies and Gentlemen:
Janus Living, Inc., a Maryland corporation (the “Company,” which includes (i) the combination of entities owned by Healthpeak Properties, Inc. (“Healthpeak”) and such entities’ real estate assets and related operations prior to the Formation Transactions (as defined below) (collectively, “Janus Predecessor”) and (ii) prior to its conversion into a corporation, Janus Parent, LLC, a Maryland limited liability company (“Janus Parent”)), and Janus Living OP, LLC, a Maryland limited liability company (the “Operating Company,” and together with the Company, the “Transaction Entities”), and Healthpeak Investment Management, LLC, a Delaware limited liability company and the Company’s external manager (the “Manager”), confirm their respective agreements with BofA Securities, Inc. (“BofA”) and J.P. Morgan Securities LLC (“J.P. Morgan”) and each of the other Underwriters named in Schedule A hereto (collectively, the “Underwriters,” which term shall also include any underwriter substituted as hereinafter provided in Section 11 hereof), for whom BofA and J.P. Morgan are acting as representatives (in such capacity, collectively, the “Representatives”), with respect to (i) the sale by the Company and the purchase by the Underwriters, acting severally and not jointly, of the respective numbers of shares of Class A-1 common stock, par value $0.01 per share, of the Company (“Class A-1 Common Stock”) set forth in Schedule A hereto and (ii) the grant by the Company to the Underwriters, acting severally and not jointly, of the option described in Section 2(b) hereof to purchase all or any part of 6,300,000 additional shares of Class A-1 Common Stock. The aforesaid 42,000,000 shares of Class A-1 Common Stock (the “InitialSecurities”) to be purchased by the Underwriters and all or any part of the 6,300,000 shares of Class A-1 Common Stock subject to the option described in Section 2(b) hereof (the “Option Securities”) are herein called, collectively, the “Securities.”
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Concurrently with or prior to the Closing Time (as defined below), the Transaction Entities will enter into the Master Restructure Agreement (the “Master Restructure Agreement”) pursuant to which Healthpeak shall, among other things, (i) transfer, directly or indirectly, the real estate assets that comprise the Company’s initial portfolio to the Company in exchange for shares of Class A-1 Common Stock and LLC Interests (as defined below) designated as common units (“common units”) and (ii) purchase a number of shares of Class A-2 Common Stock (as defined below) equivalent to the number of common units that Healthpeak will hold as of the Closing Time (collectively, the “Formation Transactions”).
The Company and the Underwriters agree that up to 2,100,000 shares of the Initial Securities to be purchased by the Underwriters (the “ReservedSecurities”) shall be reserved for sale by Merrill Lynch, Pierce, Fenner & Smith Incorporated (an affiliate of BofA, hereinafter referred to as “Merrill Lynch”) to certain persons designated by the Company (the “Invitees”), as part of the distribution of the Securities by the Underwriters, subject to the terms of this Agreement, the applicable rules, regulations and interpretations of the Financial Industry Regulatory Authority, Inc. (“FINRA”) and all other applicable laws, rules and regulations. The Company has solely determined, without any direct or indirect participation by the Underwriters or Merrill Lynch, the Invitees who will purchase Reserved Securities (including the amount to be purchased by such persons) sold by Merrill Lynch. To the extent that such Reserved Securities are not orally confirmed for purchase by Invitees by 11:59 P.M. (New York City time) on the date of this Agreement, such Reserved Securities may be offered to the public as part of the public offering contemplated hereby.
The Company has filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-11 (No. 333-293835), including the related preliminary prospectus or prospectuses, covering the registration of the offer and sale of the Securities under the Securities Act of 1933, as amended (the “1933 Act”). Promptly after execution and delivery of this Agreement, the Company will prepare and file a prospectus in accordance with the provisions of Rule 430A (“Rule 430A”) of the rules and regulations of the Commission under the 1933 Act (the “1933 Act Regulations”) and Rule 424(b) (“Rule 424(b)”) of the 1933 Act Regulations. The information included in such prospectus that was omitted from such registration statement at the time it became effective but that is deemed to be part of such registration statement at the time it became effective pursuant to Rule 430A(b) is herein called the “Rule 430A Information.” Such registration statement, including the amendments thereto, the exhibits thereto and any schedules thereto, at the time it became effective, and including the Rule 430A Information, is herein called the “Registration Statement.” Any registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein called the “Rule 462(b) Registration Statement” and, after such filing, the term “Registration Statement” shall include the Rule 462(b) Registration Statement. Each prospectus used prior to the effectiveness of the Registration Statement, and each prospectus that omitted the Rule 430A Information that was used after such effectiveness and prior to the execution and delivery of this Agreement, is herein called a “preliminary prospectus.” The final prospectus, in the form first furnished to the Underwriters for use in connection with the offering of the Securities, is herein called the “Prospectus.” For purposes of this Agreement, all references to the Registration Statement, any preliminary prospectus, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system or any successor system (“EDGAR”).
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As used in this Agreement:
“ApplicableTime” means 4:35 P.M., New York City time, on March 19, 2026 or such other time as agreed by the Company and the Representatives.
“GeneralDisclosure Package” means any Issuer General Use Free Writing Prospectuses issued at or prior to the Applicable Time, the most recent preliminary prospectus included in the Registration Statement that is distributed to prospective investors prior to the Applicable Time and the information included on Schedule B-1 hereto, all considered together.
“IssuerFree Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the 1933 Act Regulations (“Rule 433”), including without limitation any “free writing prospectus” (as defined in Rule 405 of the 1933 Act Regulations (“Rule 405”)) relating to the Securities that is (i) required to be filed with the Commission by the Company, (ii) a “road show that is a written communication” within the meaning of Rule 433(d)(8)(i) of the 1933 Act Regulations (“Rule 433(d)(8)(i)”), whether or not required to be filed with the Commission, or (iii) exempt from filing with the Commission pursuant to Rule 433(d)(5)(i) of the 1933 Act Regulations because it contains a description of the Securities or of the offering of the Securities that does not reflect the final terms, in each case in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g) of the 1933 Act Regulations.
“IssuerGeneral Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution to prospective investors (other than a “bona fide electronic road show,” as defined in Rule 433 (the “BonaFide Electronic Road Show”)), as evidenced by its being specified in Schedule B-2 hereto.
“IssuerLimited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General Use Free Writing Prospectus.
“Testing-the-WatersCommunication” means any oral or written communication with potential investors undertaken in reliance on either Section 5(d) of, or Rule 163B under, the 1933 Act.
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“WrittenTesting-the-Waters Communication” means any Testing-the-Waters Communication that is a written communication within the meaning of Rule 405 under the 1933 Act.
The Transaction Entities understand that the Underwriters propose to make a public offering of the Securities as soon as the Representatives deem advisable after this Agreement has been executed and delivered.
Section 1. Representations and Warranties.
(a) Representationsand Warranties by the Transaction Entities. Each of the Transaction Entities, jointly and severally, represents and warrants to each Underwriter as of the date hereof, the Applicable Time, the Closing Time and each Date of Delivery (as defined below), if any, and agrees with each Underwriter, as follows:
(i) Registration Statement and Prospectuses. Each of the Registration Statement and any post-effective amendment thereto has become effective under the 1933 Act. No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceedings for any of those purposes have been instituted or are pending or, to the Transaction Entities’ knowledge, contemplated. The Company has complied with each request (if any) from the Commission for additional information.
Each of the Registration Statement and any post-effective amendment thereto, at the time it became effective, the Applicable Time, the Closing Time and any Date of Delivery, complied and will comply in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. Each preliminary prospectus, the Prospectus and any amendment or supplement thereto, at the time each was filed with the Commission, and, in each case, at the Applicable Time, the Closing Time and any Date of Delivery, complied and will comply in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. Each preliminary prospectus, the Prospectus and any amendment or supplement thereto delivered to the Underwriters for use in connection with the offering of the Securities was or will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(ii) Accurate Disclosure. Neither the Registration Statement nor any post-effective amendment thereto, at its effective time, on the date hereof, at the Closing Time or at any Date of Delivery, contained, contains or will contain an untrue statement of a material fact or omitted, omits or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. At the Applicable Time, the Closing Time and any Date of Delivery, none of (A) the General Disclosure Package, (B) any individual Issuer Limited Use Free Writing Prospectus, when considered together with the General Disclosure Package, and (C) any individual Written Testing-the-Waters Communication, when considered together with the General Disclosure Package, included, includes or will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Neither the Prospectus nor any amendment or supplement thereto, as of its issue date, at the time of any filing with the Commission pursuant to Rule 424(b), at the Closing Time or at any Date of Delivery, included, includes or will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
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The representations and warranties in this subsection (ii) shall not apply to statements in or omissions from the Registration Statement (or any amendment thereto), the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) made in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives expressly for use therein. For purposes of this Agreement, the only information so furnished shall be the information in the first paragraph under the heading “Underwriting—Commissions and Discounts,” the information in the second and third paragraphs under the heading “Underwriting—Price Stabilization, Short Positions and Penalty Bids” and the information under the heading “Underwriting—Electronic Distribution,” in each case contained in the Registration Statement, the General Disclosure Package and the Prospectus (collectively, the “Underwriter Information”).
(iii) Issuer Free Writing Prospectuses. No Issuer Free Writing Prospectus that has not been superseded or modified conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, or any preliminary or other prospectus deemed to be a part thereof that has not been superseded or modified. The Company has made available a Bona Fide Electronic Road Show in compliance with Rule 433(d)(8)(ii) of the 1933 Act Regulations such that no filing of any “road show” (as defined in Rule 433(h)) of the 1933 Act Regulations is required in connection with the offering of the Securities.
(iv) Testing-the-Waters Materials. None of the Transaction Entities or Healthpeak (A) has engaged in any Testing-the-Waters Communication other than Testing-the-Waters Communications with the consent of the Representatives with entities that are or are reasonably believed to be qualified institutional buyers within the meaning of Rule 144A under the 1933 Act or institutions that are accredited investors within the meaning of Rule 501 under the 1933 Act, (B) has authorized anyone other than the Representatives to engage in Testing-the-Waters Communications or (C) distributed any Written Testing-the-Waters Communications other than those listed on Schedule B-3 hereto. The Company reconfirms that the Representatives have been authorized to act on its behalf in undertaking Testing-the-Waters Communications.
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(v) Emerging Growth Company Status. From the time of the initial confidential submission of the Registration Statement to the Commission (or, if earlier, the first date on which the Transaction Entities, Healthpeak or the Manager engaged directly or through any person authorized to act on their behalf in any Testing-the-Waters Communication) through the date hereof, the Company has been and is an “emerging growth company,” as defined in Section 2(a) of the 1933 Act (an “Emerging Growth Company”).
(vi) Company Not Ineligible Issuer. At the time of filing the Registration Statement and any post-effective amendment thereto, at the earliest time thereafter that the Transaction Entities, Healthpeak, the Manager or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the 1933 Act Regulations) of the Securities and at the date hereof, the Company was not and is not an “ineligible issuer,” as defined in Rule 405, without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an ineligible issuer.
(vii) Independent Accountants. The accountants who audited the financial statements and supporting schedules included in the Registration Statement, the General Disclosure Package and the Prospectus are a registered public accounting firm independent of the Company and Janus Predecessor, as required by the 1933 Act, the 1933 Act Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(viii) Financial Statements. The financial statements and any supporting schedules of Janus Predecessor and its consolidated subsidiaries included in the Registration Statement, the General Disclosure Package and the Prospectus present fairly in all material respects the consolidated financial position of Janus Predecessor and its consolidated subsidiaries as of the dates indicated and the results of their respective operations, stockholders’ equity and cash flows for the periods specified. The balance sheet of Janus Parent and its consolidated subsidiaries included in the Registration Statement, the General Disclosure Package and the Prospectus present fairly the consolidated financial condition of Janus Parent and its consolidated subsidiaries as of the dates indicated. Except as otherwise stated in the Registration Statement, the General Disclosure Package and the Prospectus, said financial statements have been prepared in conformity with U.S. generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved. The supporting schedules of Janus Predecessor and its consolidated subsidiaries included in the Registration Statement, the General Disclosure Package and the Prospectus present fairly in all material respects, in accordance with GAAP, the information required to be stated therein. The summary selected financial data, if any, included in the Registration Statement, the General Disclosure Package and the Prospectus present fairly in all material respects the information shown therein as of the dates or for the periods indicated and have been compiled on a basis consistent with that of the audited financial statements included in the Registration Statement, the General Disclosure Package and the Prospectus. The pro forma financial statements and the related notes thereto included in the Registration Statement, the General Disclosure Package and the Prospectus present fairly in all material respects the information shown therein, have been prepared in accordance with the Commission’s rules and guidelines with respect to pro forma financial statements and have been properly compiled on the bases described therein, and the assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein. Except as included therein, no historical or pro forma financial statements or supporting schedules are required to be included in the Registration Statement, the General Disclosure Package or the Prospectus under the 1933 Act or the 1933 Act Regulations. All disclosures contained in the Registration Statement, the General Disclosure Package or the Prospectus regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission) comply in all material respects with Regulation G of the Securities Exchange Act of 1934, as amended (the “1934 Act”), and Item 10 of Regulation S-K of the 1933 Act, to the extent applicable.
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(ix) No Material Adverse Change. Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein or contemplated thereby, (A) there has been no material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Transaction Entities and their subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business (a “MaterialAdverse Effect”), (B) there have been no transactions entered into by the Transaction Entities or any of their subsidiaries, other than those in the ordinary course of business, which are material with respect to the Transaction Entities and their subsidiaries considered as one enterprise and (C) there has been no dividend or distribution of any kind declared, paid or made by the Transaction Entities on any class of its capital stock or LLC Interests, as applicable.
(x) Good Standing of the Company. The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland with corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement, the Management Agreement (as defined below) and the Master Restructure Agreement. The Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify and be in good standing would not have a Material Adverse Effect. The Company is in substantial compliance with all laws, ordinances and regulations of each state in which it owns properties that are material to the properties and business of the Company and its subsidiaries considered as one enterprise in such state.
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(xi) Good Standing of the Operating Company. The Operating Company has been duly formed and is validly existing as a limited liability company in good standing under the laws of the State of Maryland with power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement, the Management Agreement and the Master Restructure Agreement. The Operating Company is duly qualified as a foreign limited liability company to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify and be in good standing would not have a Material Adverse Effect. The Operating Company is in substantial compliance with all laws, ordinances and regulations of each state in which it owns properties that are material to the properties and business of the Operating Company and its subsidiaries considered as one enterprise in such state.
(xii) LLC Agreement of the Operating Company. The operating agreement of the Operating Company, dated on or about the date hereof (the “LLCAgreement”), is in full force and effect and all of the outstanding membership interests in the Operating Company (the “LLCInterests”) are duly and validly authorized and issued in accordance with the LLC Agreement. The LLC Interests to be issued in the Formation Transactions and in connection with the Company’s contribution to the Operating Company of the net proceeds from the sale of the Securities as contemplated in the Registration Statement, the General Disclosure Package and the Prospectus have been duly authorized for issuance by the Operating Company, and, when issued and delivered pursuant to the LLC Agreement, will be validly issued, and such issuances by the Operating Company of the LLC Interests are exempt from the registration requirements of the 1933 Act and applicable state securities, real estate syndication and blue sky laws, and are not in violation of the preemptive or other similar rights of any securityholder of the Operating Company. At the Closing Time, the aggregate pro forma percentage interests of the Company in the Operating Company will be as set forth in the Registration Statement, the General Disclosure Package and the Prospectus. The Company is, and at the Closing Time will be, the sole managing member of the Operating Company. Except as otherwise set forth in the Registration Statement, the General Disclosure Package and the Prospectus, all outstanding LLC Interests are owned by the Company directly or indirectly, free and clear of any security interest, mortgage, pledge, lien, encumbrance, restriction on voting or transfer, claim or equity. As of the date of this Agreement, the Company does, and, as of the Closing Time, the Company will, own at least a majority of the LLC Interests of the Operating Company. No LLC Interests are reserved for any purpose and there are no outstanding options, warrants, or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange for, any LLC Interests or other securities of or in the Operating Company, except as otherwise set forth in the Registration Statement, the General Disclosure Package and the Prospectus or as may be issued pursuant to employee benefit plans disclosed in the Registration Statement, the General Disclosure Package and the Prospectus or pursuant to the exercise of convertible or exchangeable securities or options disclosed in the Registration Statement, the General Disclosure Package and the Prospectus. None of the LLC Interests in the Operating Company have been or will be issued in violation of the preemptive or other similar rights of any securityholder of the Operating Company. The terms of the LLC Interests conform in all material respects to statements and descriptions related thereto contained in each of the Registration Statement, the General Disclosure Package and the Prospectus and such description conforms to the rights set forth in the instruments defining the same.
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(xiii) Good Standing of Subsidiaries. Each subsidiary of the Company (other than the Operating Company) which is a significant subsidiary (each, a “Significant Subsidiary”) as defined in Rule 405 of Regulation C of the 1933 Act Regulations has been duly organized and is validly existing as a corporation, limited liability company or partnership, as the case may be, in good standing under the laws of the jurisdiction of its organization, has power and authority as a corporation, limited liability company or partnership, as the case may be, to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under the Master Restructure Agreement, to the extent a party thereto, and is duly qualified as a foreign corporation, limited liability company or partnership, as the case may be, to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify and be in good standing would not have a Material Adverse Effect. All of the issued and outstanding capital stock of each such corporate Significant Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, except for directors’ qualifying shares, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, restriction on voting or transfer, claim or equity; and all of the issued and outstanding partnership or limited liability company interests of each such Significant Subsidiary which is a partnership or limited liability company, as applicable, have been duly authorized (if applicable) and validly issued and are fully paid and non-assessable and, except for other partnership or limited liability company interests described in the Registration Statement, the General Disclosure Package and the Prospectus, are owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, restriction on voting or transfer, claim or equity. None of the outstanding shares of capital stock or other equity interests of any Significant Subsidiary were issued in violation of the preemptive or other similar rights of any securityholder of such Significant Subsidiary. The only subsidiaries of the Company are the subsidiaries listed on Exhibit 21 to the Registration Statement and certain other subsidiaries which, considered in the aggregate as a single subsidiary, do not constitute a “significant subsidiary” within the meaning of Rule 1-02 of Regulation S-X promulgated under the 1934 Act.
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(xiv) REIT Status. Commencing with its taxable year ending December 31, 2026, the Company will be organized and operated in conformity with the requirements for qualification and taxation as a “real estate investment trust” (a “REIT”) under the Internal Revenue Code of 1986, as amended (the “Code”), and its proposed method of operation will enable it to continue to meet the requirements for qualification and taxation as a REIT under the Code. All statements regarding the Company’s qualification and taxation as a REIT and descriptions of the Company’s organization and proposed method of operation (inasmuch as they relate to the Company’s qualification and taxation as a REIT) set forth in the Registration Statement, the General Disclosure Package and the Prospectus are true, complete and correct summaries of the legal or tax matters described therein in all materials respects.
(xv) Capitalization. The authorized, issued and outstanding equity interests of Janus Predecessor as of December 31, 2025 are as set forth in the Registration Statement, the General Disclosure Package and the Prospectus in the column entitled “Historical Predecessor” under the caption “Capitalization.” The authorized, issued and outstanding shares of capital stock of the Company are as set forth in the Registration Statement, the General Disclosure Package and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) the Master Restructure Agreement, (iii) reservations, agreements or employee benefit plans referred to in the Registration Statement, the General Disclosure Package and the Prospectus or (iv) the exercise of convertible or exchangeable securities or options referred to in the Registration Statement, the General Disclosure Package and the Prospectus). The outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable. The shares of Common Stock (as defined below) to be issued in the Formation Transactions as contemplated in the Registration Statement, the General Disclosure Package and the Prospectus have been duly authorized for issuance by the Company, and, when issued and delivered by the Company, will be validly issued and fully paid and non-assessable and such issuances are not in violation of the preemptive or other similar rights of any securityholder of the Company. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, no shares of capital stock of the Company are reserved for any purpose and there are no outstanding options, warrants, or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange for, any shares of capital stock of or in the Company. None of the outstanding shares of capital stock of the Company were issued in violation of the preemptive or other similar rights of any securityholder of the Company.
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(xvi) Absence of Violations, Defaults and Conflicts. Neither the Transaction Entities nor any of their subsidiaries is (i) in violation of its charter, bylaws, partnership agreement, limited liability company agreement or other organizational documents, as the case may be, or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument to which the Transaction Entities or any of their subsidiaries is a party or by which they or any of them or their properties or assets may be bound or to which any of the properties or assets of the Transaction Entities or any of their subsidiaries is subject (collectively, “Agreements and Instruments”) and in which the violation or default might result, singly or in the aggregate, in a Material Adverse Effect. In the case of the Transaction Entities, the execution, delivery and performance of this Agreement and the Master Restructure Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement, the General Disclosure Package and the Prospectus and compliance by the Transaction Entities with their respective obligations hereunder and thereunder have been duly authorized by all necessary corporate or other action and will not conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Transaction Entities or any of their subsidiaries pursuant to the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not, singly or in the aggregate, result in a Material Adverse Effect), nor will such action result in any violation of (i) the provisions of the charter, bylaws, partnership agreement, limited liability company agreement or other organizational documents of the Transaction Entities or any of their subsidiaries or (ii) except to the extent it would not have a Material Adverse Effect, any law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign having jurisdiction over the Transaction Entities or any of their subsidiaries or any of their respective properties, assets or operations (each, a “Governmental Entity”). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.
(xvii) Dividend Restrictions. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, no subsidiary of the Company (including the Operating Company) is currently prohibited, directly or indirectly, under any agreement or other instrument to which it is a party or is subject, from paying any dividends or making any other distribution on such subsidiary’s capital stock or other equity interests to owners thereof, from repaying any loans or advances to such subsidiary from the Company or any other subsidiary of the Company or from transferring any of such subsidiary’s properties or assets to the Company or any other subsidiary of the Company.
(xviii) Absence of Employees. Neither of the Transaction Entities nor any of their respective subsidiaries has any employees, and the Transaction Entities are not aware of any existing or imminent labor disturbance by the employees of any of their or any subsidiary’s principal operators, suppliers, manufacturers or contractors, which, in either case, would result, singly or in the aggregate, in a Material Adverse Effect.
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(xix) Absence of Proceedings. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit or proceeding before or by any Governmental Entity now pending, or, to the knowledge of either of the Transaction Entities, threatened, against or affecting the Transaction Entities or any of their subsidiaries, which is required to be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus, or would result, singly or in the aggregate, in any Material Adverse Effect, or would materially and adversely affect the properties or assets thereof, taken as a whole, or which would materially and adversely affect the consummation of this Agreement or the consummation of the Formation Transactions or any transaction contemplated hereby or thereby or the performance by the Transaction Entities of their obligations hereunder or thereunder, to the extent a party thereto. All pending legal or governmental proceedings to which either of the Transaction Entities or any of their subsidiaries is a party or of which any of their properties or assets is the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material to either of the Transaction Entities. There are no contracts or documents of either of the Transaction Entities or any of their subsidiaries which are required to be described in the Registration Statement, the General Disclosure Package or the Prospectus or to be filed as exhibits to the Registration Statement by the 1933 Act or by the 1933 Act Regulations which have not been so described and filed as required.
(xx) Absence of Further Requirements. No authorization, approval, consent, order or decree of any Governmental Entity is required for the consummation by the Transaction Entities of the transactions contemplated by this Agreement or the Master Restructure Agreement, or in connection with the offering or sale of the Securities hereunder, except (A) such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the rules of the New York Stock Exchange, state securities, real estate syndication and blue sky laws or the rules of FINRA and (B) such as have been obtained under the laws and regulations of jurisdictions outside the United States in which the Reserved Securities were offered.
(xxi) Authorization of Underwriting Agreement. This Agreement has been duly authorized, executed and delivered by each of the Transaction Entities.
(xxii) Authorization and Description of the Securities. The Securities have been duly authorized for issuance and sale by the Company pursuant to this Agreement and, when issued and delivered by the Company against payment of the consideration set forth herein, will be validly issued and fully paid and non-assessable. The issuance of the Securities is not subject to the preemptive or other similar rights of any securityholder holder of the Company. The Class A-1 Common Stock conforms in all material respects to all statements relating thereto contained in the Registration Statement, the General Disclosure Package and the Prospectus and such description conforms to the rights set forth in the instruments defining the same. No holder of Securities will be subject to personal liability by reason of being such a holder.
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(xxiii) Authorization and Description of the Class A-2 Common Stock. The outstanding shares of Class A-2 Common Stock, par value $0.01 per share, of the Company (“Class A-2 Common Stock” and together with the Class A-1 Common stock, “CommonStock”) have been duly authorized and validly issued and are fully paid and non-assessable. The Class A-2 Common Stock conforms in all material respects to all statements relating thereto contained in the Registration Statement, the General Disclosure Package and the Prospectus and such description conforms to the rights set forth in the instruments defining the same. No holder of Class A-2 Common Stock will be subject to personal liability by reason of being such a holder.
(xxiv) Registration Rights. There are no persons with registration rights or other similar rights to have any securities registered for sale pursuant to the Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to this Agreement.
(xxv) Management Agreement. The management agreement, dated on or about the date hereof, among the Company, the Operating Company and the Manager (the “Management Agreement”), has been duly authorized, executed and delivered by each of the Transaction Entities and is a valid and legally binding agreement of each of the Transaction Entities, enforceable against each of the Transaction Entities in accordance with its terms, except to the extent that such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws relating to or affecting creditors’ rights and general principles of equity. All statements relating to the Management Agreement are true, correct and complete summaries of the matters described therein in all material respects.
(xxvi) Authorization and Enforceability of Master Restructure Agreement. At or prior to the Closing Time, the Master Restructure Agreement will have been duly authorized, executed and delivered by each of the Transaction Entities and their subsidiaries, to the extent a party thereto, and will be a valid and legally binding agreement of each of the Transaction Entities and each of their subsidiaries, to the extent a party thereto, enforceable against each of the Transaction Entities and each of their subsidiaries, to the extent a party thereto, in accordance with its terms, except to the extent that such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws relating to or affecting creditors’ rights and general principles of equity.
(xxvii) Possession of Licenses and Permits. The Transaction Entities and their subsidiaries possess such permits, licenses, approvals, consents and other authorizations (collectively, “Governmental Licenses”) issued by the appropriate governmental agency or body, domestic or foreign, under applicable law necessary to conduct the business now operated by them, except where the failure so to possess would not, singly or in the aggregate, result in a Material Adverse Effect. The Transaction Entities and their subsidiaries are in compliance with the terms and conditions of all Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in a Material Adverse Effect. All of the Governmental Licenses are valid and in full force and effect, except when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in a Material Adverse Effect. Neither of the Transaction Entities nor any of their subsidiaries has received any notice of proceedings relating to the revocation or modification of any Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect.
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(xxviii) Title to Property. At the Closing Time, the Transaction Entities and their subsidiaries will have good and marketable title to, or leasehold interest under a lease in, all real property owned or leased by them (each, a “Property”, and collectively, the “Properties”), in each case, free and clear of all mortgages, pledges, liens, security interests, claims, restrictions or encumbrances of any kind except such as (A) are described in the Registration Statement, the General Disclosure Package and the Prospectus or (B) do not, singly or in the aggregate, materially affect the value of such Properties taken as a whole and do not interfere with the use made and proposed to be made of such Properties taken as a whole by the Transaction Entities or any of their subsidiaries. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, (A) the Transaction Entities have no knowledge that any Property fails to comply with all applicable codes, laws and regulations (including, without limitation, building and zoning codes, laws and regulations and laws relating to access to such Property), except for such failures to comply that would not, singly or in the aggregate, result in a Material Adverse Effect and (B) no mortgage or deed of trust encumbering any Property is convertible into ownership interests in a Transaction Entity or any of its subsidiaries.
(xxix) Possession of Intellectual Property. The Transaction Entities and their subsidiaries own or possess, or can acquire on reasonable terms, adequate patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks, trade names or other intellectual property (collectively, “Intellectual Property”) necessary to carry on the business now operated by them, and neither of the Transaction Entities nor any of their subsidiaries has received any notice or is otherwise aware of any infringement of or conflict with asserted rights of others with respect to any Intellectual Property or of any facts or circumstances which would render any Intellectual Property invalid or inadequate to protect the interests of the Transaction Entities or any of their subsidiaries therein, and which infringement or conflict (if the subject of any unfavorable decision, ruling or finding) or invalidity or inadequacy, singly or in the aggregate, would result in a Material Adverse Effect.
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(xxx) Environmental Laws. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus or would not, singly or in the aggregate, result in a Material Adverse Effect, (A) none of the Transaction Entities, any of their subsidiaries or any of their respective Properties is in violation of any federal, state, local or foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law or any judicial or administrative interpretation thereof, including any judicial or administrative order, consent, decree or judgment, relating to pollution or protection of human health, the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including, without limitation, laws and regulations relating to the release or threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products, asbestos-containing materials or mold (collectively, “Hazardous Materials”) or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, “Environmental Laws”), (B) the Transaction Entities, their subsidiaries and the Properties have all permits, authorizations and approvals required under any applicable Environmental Laws and are each in compliance with their requirements, (C) there are no pending or threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigations or proceedings relating to any Environmental Law against the Transaction Entities, any of their subsidiaries or any of the Properties and (D) there are no events or circumstances that would reasonably be expected to form the basis of an order for clean-up or remediation, or an action, suit or proceeding by any private party or Governmental Entity against or affecting the Transaction Entities, any of their subsidiaries or any of the Properties relating to Hazardous Materials or any Environmental Laws.
(xxxi) Investment Company Act. Neither of the Transaction Entities is required to be registered, nor, upon consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus (including the sale of the Securities and the use of proceeds therefrom), will be required to be registered as an “investment company”, under the Investment Company Act of 1940, as amended (the “1940 Act”).
(xxxii) Pending Proceedings and Examinations. The Registration Statement is not the subject of a pending proceeding or examination under Section 8(d) or 8(e) of the 1933 Act, and the Company is not the subject of a pending proceeding under Section 8A of the 1933 Act in connection with the offering of the Securities.
(xxxiii) Internal Control. The Company and each of its subsidiaries maintain effective internal control over financial reporting (as defined under Rule 13a-15(f) and 15d-15(f) under the rules and regulations of the Commission under the 1934 Act (the “1934Act Regulations”)) and a system of internal accounting controls sufficient to provide reasonable assurances that (A) transactions are executed in accordance with management’s general or specific authorization; (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (C) access to assets is permitted only in accordance with management’s general or specific authorization; and (D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Since the end of the Company’s most recent audited fiscal year, there has been (1) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (2) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
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(xxxiv) Compliance with the Sarbanes-Oxley Act. The Company has taken all necessary actions to ensure that, upon the effectiveness of the Registration Statement, it will be in compliance with all applicable provisions of the Sarbanes-Oxley Act of 2002 and all rules and regulations promulgated thereunder or implementing the provisions thereof (the “Sarbanes-Oxley Act”) that are then in effect and with which the Company is required to comply as of the effectiveness of the Registration Statement, and is actively taking steps to ensure that it will be in compliance with other provisions of the Sarbanes-Oxley Act not currently in effect, upon the effectiveness of such provisions, or which will become applicable to the Company at all times after the effectiveness of the Registration Statement.
(xxxv) Payment of Taxes. Except, in each case, as would not result, singly or in the aggregate, in a Material Adverse Effect, all U.S. federal, state, local and non-U.S. income tax returns of the Transaction Entities and their subsidiaries required by law to be filed have been filed and all taxes shown by such returns or otherwise assessed, which are due and payable, have been paid, except assessments against which appeals have been or will be promptly taken and as to which adequate reserves have been provided. The charges, accruals and reserves on the books of the Company in respect of any income and corporation tax liability for any years not finally determined are adequate to meet any assessments or re-assessments for additional income tax for any years not finally determined, except to the extent of any inadequacy that would not result, singly or in the aggregate, in a Material Adverse Effect.
(xxxvi) Business Insurance. The Transaction Entities and their subsidiaries carry or are entitled to the benefits of insurance, with financially sound and reputable insurers, in such amounts and covering such risks as is generally maintained by companies of established repute engaged in the same or similar business, and all such insurance is in full force and effect. Neither of the Transaction Entities has any reason to believe that it or any of their respective subsidiaries will not be able (A) to renew, if desired, its existing insurance coverage as and when such policies expire or (B) to obtain comparable coverage from similar institutions as may be necessary or appropriate to conduct its business as now conducted and at a cost that would not result in a Material Adverse Effect. Neither of the Transaction Entities nor any of their subsidiaries has been denied any insurance coverage which it has sought or for which it has applied.
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(xxxvii) Foreign Corrupt Practices Act. None of the Transaction Entities, any of their subsidiaries or, to the knowledge of either of the Transaction Entities, any director, officer, agent, employee, affiliate or other person acting on behalf of either of the Transaction Entities or any of their subsidiaries is aware of or has taken any action, directly or indirectly, that would result in (a) a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA or (b) an offense under the Bribery Act of 2010 of the United Kingdom (the “UK Bribery Act”), or any other applicable anti-bribery or anti-corruption laws. Each of the Transaction Entities and their subsidiaries and, to the knowledge of each of the Transaction Entities, their affiliates have conducted their businesses in compliance with the FCPA, the UK Bribery Act and other applicable anti-bribery or anti-corruption laws and have instituted and maintain and enforce policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(xxxviii) Money Laundering Laws. The operations of each of the Transaction Entities and their subsidiaries are in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Entity (collectively, the “Money Laundering Laws”). No action, suit or proceeding by or before any Governmental Entity involving the Transaction Entities or any of their subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of either of the Transaction Entities, threatened.
(xxxix) OFAC. None of the Transaction Entities, any of their subsidiaries or, to the knowledge of either of the Transaction Entities, any director, officer, agent, employee, affiliate or other person acting on behalf of either of the Transaction Entities or any of their subsidiaries is an individual or entity (“Person”) currently the subject of any sanctions administered or enforced by the United States Government, including, without limitation, the U.S. Department of the Treasury’s Office of Foreign Assets Control, the United Nations Security Council, the European Union, His Majesty’s Treasury or other relevant sanctions authority (collectively, “Sanctions”), nor are the Transaction Entities or any of their subsidiaries located, organized or resident in a country or territory that is the subject of Sanctions (each, a “Sanctioned Country”); and the Company will not directly or indirectly use the proceeds of the sale of the Securities, or lend, contribute or otherwise make available such proceeds to any subsidiaries, joint venture partners or other Person (i) to fund or facilitate any activities of or business with any Person, or in any country or territory, that, at the time of such funding or facilitation, is the subject of Sanctions, (ii) to fund or facilitate any activities of or business in any Sanctioned Country or (iii) in any other manner that will result in a violation by any Person (including any Person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions. Since April 24, 2019, the Transaction Entities and their subsidiaries have not knowingly engaged in and are not now knowingly engaged in any dealings or transactions with any Person that at the time of the dealing or transaction is or was the subject of Sanctions or with any Sanctioned Country.
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(xl) Absence of Manipulation. Neither of the Transaction Entities nor any subsidiary or other affiliate of either of the Transaction Entities has taken nor will the Transaction Entities nor any of their subsidiaries or other affiliates take, directly or indirectly, any action which is designed to cause or result in, or which has constituted or which would reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities or to result in a violation of Regulation M under the 1934 Act.
(xli) Sales of Reserved Securities. In connection with any offer and sale of Reserved Securities outside the United States, each preliminary prospectus, the Prospectus and any amendment or supplement thereto, at the time it was delivered to Invitees, complied and will comply in all material respects with any applicable laws or regulations of foreign jurisdictions in which the same is distributed. The Company has not offered, or caused the Representatives or Merrill Lynch to offer, Reserved Securities to any person with the specific intent to unlawfully influence (i) a customer or supplier of the Company or any of its affiliates to alter the customer’s or supplier’s level or type of business with any such entity or (ii) a trade journalist or publication to write or publish favorable information about the Company or any of its affiliates, or their respective businesses or products.
(xlii) Lending Relationship*.* Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, neither of the Transaction Entities nor any of their subsidiaries has any material lending or other relationship with any bank or lending affiliate of any Underwriter.
(xliii) Statistical and Market-Related Data. Any statistical and market-related data included in the Registration Statement, the General Disclosure Package or the Prospectus are based on or derived from sources that the Company believes, after reasonable inquiry, to be reliable and accurate in all material respects and, to the extent required, the Company has obtained the written consent to the use of such data from such sources.
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(xliv) No Covered Foreign Person. Neither of the Transaction Entities nor any of their subsidiaries is a “covered foreign person,” as that term is defined in 31 C.F.R. § 850.209. The consummation of the transactions contemplated by this Agreement and described in the Registration Statement, the General Disclosure Package and the Prospectus will not result in the establishment of a covered foreign person or the engagement by a “person of a country of concern,” as defined in 31 C.F.R. § 850.221, in a covered activity, as that term is defined in in 31 C.F.R. § 850.208. Neither of the Transaction Entities nor any of their subsidiaries currently engage, or have plans to engage, directly or indirectly, in a covered activity
(xlv) Listing. The Class A-1 Common Stock has been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
(xlvi) No Rating. Neither of the Transaction Entities nor any of their subsidiaries has any debt securities or preferred stock that are rated by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the 1934 Act).
(xlvii) Cybersecurity. There has been no security breach or incident, unauthorized access or disclosure, or other compromise of or relating to the Transaction Entities’ or their respective subsidiaries’ information technology and computer systems, networks, hardware, software, data and databases (including the data and information of their respective customers, employees, suppliers, vendors and any third party data maintained, processed or stored by the Transaction Entities and their respective subsidiaries, and any such data processed or stored by third parties on behalf of the Transaction Entities and their respective subsidiaries), equipment or technology (collectively, “ITSystems and Data”), except for any such security breach or incident, unauthorized access or disclosure, or other compromise of or relating to the Transaction Entities’ or their respective subsidiaries’ IT Systems and Data that would not result, singly or in the aggregate, in a Material Adverse Effect. Neither the Transaction Entities nor their subsidiaries have been notified of, and each of them have no knowledge of any event or condition that could result in, any material security breach or incident, unauthorized access or disclosure or other compromise to their IT Systems and Data. The Transaction Entities and their respective subsidiaries have implemented appropriate controls, policies, procedures, and technological safeguards to maintain and protect the integrity, continuous operation, redundancy and security of their IT Systems and Data reasonably consistent with industry standards and practices, or as required by applicable regulatory standards, except where the failure to do so would not result, singly or in the aggregate, in a Material Adverse Effect. The Transaction Entities and their respective subsidiaries are presently in material compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any Governmental Entity, internal policies and contractual obligations relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification.
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(b) Representationsand Warranties by the Manager. The Manager represents and warrants to each Underwriter as of the date hereof, the Applicable Time, the Closing Time and each Date of Delivery, if any, and agrees with each Underwriter, as follows:
(i) Certain Information. The information provided by the Manager set forth under the headings “Prospectus Summary—Our Manager,” “Prospectus Summary—Potential Conflicts of Interest,” “Risk Factors—Risks Related to Our Relationship with Our Manager and Healthpeak” and “Our Manager and the Management Agreement” in the Registration Statement, the General Disclosure Package and the Prospectus is true and correct in all material respects.
(ii) Testing-the-Waters Materials. The Manager (A) has not engaged in any Testing-the-Waters Communication other than Testing-the-Waters Communications with the consent of the Representatives with entities that are or are reasonably believed to be qualified institutional buyers within the meaning of Rule 144A under the 1933 Act or institutions that are accredited investors within the meaning of Rule 501 under the 1933 Act, (B) has not authorized anyone other than the Representatives to engage in Testing-the-Waters Communications or (C) has not distributed any Written Testing-the-Waters Communications other than those listed on Schedule B-3 hereto.
(iii) No Material Adverse Change. Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein or contemplated thereby there has been no material adverse change, (A) in the condition, financial or otherwise, or in the earnings, business affairs, management, business prospects or properties (taken as a whole) of the Manager and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business and (B) in the ability of the Manager to perform its obligations under the Management Agreement (collectively, a “ManagerMaterial Adverse Effect”).
(iv) Good Standing of the Manager. The Manager has been duly formed and is validly existing as a limited liability company in good standing under the laws of the State of Delaware with limited liability company power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement and the Management Agreement. The Manager is duly qualified as a foreign limited liability company to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify and be in good standing would not have a Manager Material Adverse Effect. The Manager is in substantial compliance with all laws, ordinances and regulations of each state in which it owns properties that are material to the properties and business of the Manager and its subsidiaries considered as one enterprise in such state.
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(v) Authorization of Underwriting Agreement. This Agreement has been duly authorized, executed and delivered by the Manager with respect to the Manager.
(vi) Management Agreement. The Management Agreement has been duly authorized, executed and delivered by the Manager and is a valid and legally binding agreement of the Manager, enforceable against the Manager in accordance with its terms, except to the extent that such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws relating to or affecting creditors’ rights and general principles of equity.
(vii) Absence of Violations, Defaults and Conflicts. The Manager is not (i) in violation of its operating agreement or other organizational document or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Manager is a party or by which the Manager may be bound or to which any of the properties or assets of the Manager is subject and in which the violation or default might result in a Manager Material Adverse Effect. The execution, delivery and performance of this Agreement, the Management Agreement by the Manager and the consummation of the transactions contemplated herein and therein and in the Registration Statement, the General Disclosure Package and the Prospectus and compliance by the Manager with its obligations hereunder and thereunder have been duly authorized by all necessary action and will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Manager pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Manager is a party or by which the Manager may be bound or to which any of the properties or assets of the Manager is subject, nor will such action result in any violation of the provisions of (i) the certificate of formation, limited liability company agreement or other comparable governing document of the Manager or (ii) any law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign having jurisdiction over the Manager (a “ManagerGovernmental Entity”).
(viii) Absence of Manipulation. The Manager has not taken and will not take, directly or indirectly, any action which is designed to cause or result in, or which has constituted or which would reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities or to result in a violation of Regulation M under the 1934 Act.
(ix) Absence of Further Requirements. No authorization, approval, consent, order or decree of any Manager Governmental Entity is required for the consummation by the Manager of the transactions contemplated by this Agreement or the Management Agreement.
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(x) Absence of Proceedings. Except as disclosed in the Registration Statement, the General Disclosure Package or the Prospectus, there is no action, suit or proceeding before or by any Manager Governmental Entity now pending, or, to the knowledge of the Manager, threatened against or affecting the Manager, which would result in any Manager Material Adverse Effect, or which would materially and adversely affect the Manager’s properties or assets, taken as a whole, or which would materially and adversely affect the consummation of this Agreement or the Management Agreement or the performance by the Manager of its obligations hereunder or thereunder. All pending legal or governmental proceedings to which the Manager is a party or of which any of its properties or assets is the subject which are not described in the Registration Statement, the General Disclosure Package or the Prospectus, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material to the Manager.
(xi) Employment; Noncompetition; Nondisclosure. The Manager has not been notified that any executive officer or key employee of Healthpeak or the Manager plans to terminate his, her or their employment with his, her or their current employer. Neither the Manager nor, to the knowledge of the Manager, any executive officer or key employee of Healthpeak or the Manager is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Transaction Entities or the Manager as described in the Registration Statement, the General Disclosure Package and the Prospectus, except for such violations that would not, singly or in the aggregate, result in a Material Adverse Effect.
(xii) Foreign Corrupt Practices Act. None of the Manager, any of its subsidiaries or, to the knowledge of the Manager, any director, officer, agent, employee, affiliate or other person acting on behalf of the Manager or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that would result in (a) a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA or (b) an offense under the UK Bribery Act or any other applicable anti-bribery or anti-corruption laws. The Manager and its subsidiaries and, to the knowledge of the Manager, its other affiliates have conducted their businesses in compliance with the FCPA, the UK Bribery Act and other applicable anti-bribery or anti-corruption laws and have instituted and maintain and enforce policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(xiii) Money-Laundering Laws. The operations of the Manager and its subsidiaries are in compliance with applicable financial recordkeeping and reporting requirements of the Money Laundering Laws. No action, suit or proceeding by or before any Manager Governmental Entity involving the Manager or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Manager, threatened.
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(xiv) OFAC. None of the Manager, any of its subsidiaries or, to the knowledge of the Manager, any director, officer, agent, employee, affiliate or other person acting on behalf of the Manager or any of its subsidiaries is currently the subject of any Sanctions, nor is the Manager or any of its subsidiaries located, organized or resident in a country or territory that is the subject of Sanctions. Since April 24, 2019, the Manager and its subsidiaries have not knowingly engaged in and are not now knowingly engaged in any dealings or transactions with any Person that at the time of the dealing or transaction is or was the subject of Sanctions or with any Sanctioned Country.
(xv) Possession of Licenses and Permits. The Manager possesses such Governmental Licenses issued by the appropriate governmental agencies or bodies, domestic or foreign, necessary for the Manager to perform its obligations under the Management Agreement. The Manager is in compliance with the terms and conditions of all Governmental Licenses under applicable law, except where the failure so to comply would not, singly or in the aggregate, affect its ability to perform its obligations under the Management Agreement. All of the Governmental Licenses are valid and in full force and effect, except when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, affect its ability to perform its obligations under the Management Agreement. The Manager has not received any notice of proceedings relating to the revocation or modification of any Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would affect its ability to perform its obligations under the Management Agreement.
(xvi) Internal Control. The Manager intends to operate a system of internal controls sufficient to provide reasonable assurance that (A) transactions that may be effectuated by it on behalf of the Transaction Entities pursuant to its obligations under the Management Agreement will be executed in accordance with management’s general or specific authorization and (B) access to the Transaction Entities’ assets is permitted only in accordance with management’s general or specific authorization.
(xvii) Cybersecurity. There has been no security breach or incident, unauthorized access or disclosure, or other compromise of or relating to the Manager’s or its subsidiaries’ IT Systems and Data, except for any such security breach or incident, unauthorized access or disclosure, or other compromise of or relating to the Manager’s or its subsidiaries’ IT Systems and Data that would not result, singly or in the aggregate, in a Manager Material Adverse Effect. Neither the Manager nor its subsidiaries have been notified of, and each of them have no knowledge of any event or condition that could result in, any material security breach or incident, unauthorized access or disclosure or other compromise to their IT Systems and Data. The Manager and its subsidiaries have implemented appropriate controls, policies, procedures, and technological safeguards to maintain and protect the integrity, continuous operation, redundancy and security of their IT Systems and Data reasonably consistent with industry standards and practices, or as required by applicable regulatory standards, except where the failure to do so would not result, singly or in the aggregate, in a Manager Material Adverse Effect. The Manager and its subsidiaries are presently in material compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any Manager Governmental Entity, internal policies and contractual obligations relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification.
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(c) Officer’sCertificates. Any certificate signed by any officer or other representative of either of the Transaction Entities delivered to the Representatives or to counsel for the Underwriters shall be deemed a representation and warranty by both Transaction Entities to each Underwriter as to the matters covered thereby; and any certificate signed by any officer or other representative of the Manager as such and delivered to the Representatives or to counsel for the Underwriters pursuant to the terms of this Agreement shall be deemed a representation and warranty by the Manager to each Underwriter as to the matters covered thereby.
Section 2. Sale and Delivery to Underwriters; Closing.
(a) InitialSecurities. On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase from the Company, at the price per share set forth in Schedule A hereto, that number of Initial Securities opposite such Underwriter’s name on Schedule A hereto, plus any additional number of Initial Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 11 hereof, subject, in each case, to such adjustments among the Underwriters as the Representatives in their sole discretion shall make to eliminate any sales or purchases of fractional shares.
(b) OptionSecurities. In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company hereby grants an option to the Underwriters, severally and not jointly, to purchase up to an additional 6,300,000 Option Securities, at the price per share set forth in Schedule A, less an amount per share equal to any dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. The option hereby granted may be exercised for 30 days after the date hereof and may be exercised in whole or in part at any time from time to time upon notice by the Representatives to the Company setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time and date of payment and delivery for such Option Securities. Any such time and date of delivery (a “Dateof Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days after the exercise of said option, nor in any event prior to the Closing Time. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Securities set forth in Schedule A opposite the name of such Underwriter bears to the total number of Initial Securities, subject, in each case, to such adjustments as the Representatives in their sole discretion shall make to eliminate any sales or purchases of fractional shares.
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(c) Payment. Payment of the purchase price for, and delivery of certificates for or book-entry credits representing, the Initial Securities shall be made at the offices of Sidley Austin LLP, 787 7th Ave, New York, New York 10019, or at such other place as shall be agreed upon by the Representatives and the Company, at 9:00 A.M. (New York City time) on the first (second, if the pricing occurs after 4:30 P.M. (New York City time) on any given day) business day after the date hereof (unless postponed in accordance with the provisions of Section 11), or such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called “Closing Time”).
In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for or book-entry credits representing, such Option Securities shall be made at the above-mentioned offices, or at such other place as shall be agreed upon by the Representatives and the Company, on each Date of Delivery as specified in the notice from the Representatives to the Company.
Payment shall be made to the Company by wire transfer of immediately available funds to a bank account designated by the Company against delivery to the Representatives for the respective accounts of the Underwriters of certificates for or book-entry credits representing the Securities to be purchased by them. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Initial Securities and the Option Securities, if any, which it has agreed to purchase. Each of BofA and J.P. Morgan, individually and not as a representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Initial Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but such payment shall not relieve such Underwriter from its obligations hereunder.
Section 3. Covenants of the Transaction Entities. Each of the Transaction Entities, jointly and severally, covenants with each Underwriter as follows:
(a) Compliancewith Securities Regulations and Commission Requests. The Company, subject to Section 3(e), will comply with the requirements of Rule 430A, and will notify the Representatives promptly, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement shall become effective or any amendment or supplement to the Prospectus shall have been filed, (ii) of the receipt of any comments or inquiries from the Commission relating to the Registration Statement, any preliminary prospectus or the Prospectus, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment or of any order preventing or suspending the use of any preliminary prospectus or the Prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(d) or 8(e) of the 1933 Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the Securities. The Company will effect all filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any stop order, prevention or suspension and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
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(b) IssuerFree Writing Prospectuses. Each of the Transaction Entities agrees that, unless it obtains the prior written consent of the Representatives, it will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus,” or a portion thereof, required to be filed by the Company with the Commission or retained by the Company under Rule 433; provided that the Representatives will be deemed to have consented to the Issuer Free Writing Prospectuses listed on Schedule B-2 hereto and any “road show that is a written communication” within the meaning of Rule 433(d)(8)(i) that has been reviewed and approved by the Representatives. Each of the Transaction Entities represents that it has treated or agrees that it will treat each such free writing prospectus consented to, or deemed consented to, by the Representatives as an “issuer free writing prospectus,” as defined in Rule 433, and that it has complied and will comply with the applicable requirements of Rule 433 with respect thereto, including timely filing with the Commission where required, legending and record keeping. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, any preliminary prospectus or the Prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Representatives and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(c) Deliveryof Registration Statements. The Company has furnished or will deliver to the Representatives and counsel for the Underwriters, without charge, an electronic copy of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith).
(d) Deliveryof Prospectuses. The Company has delivered to each Underwriter, without charge, as many copies of each preliminary prospectus as such Underwriter reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish to each Underwriter, without charge, during the period when a prospectus relating to the Securities is (or, but for the exception afforded by Rule 172 (as defined below), would be) required to be delivered under the 1933 Act, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
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(e) ContinuedCompliance with Securities Laws. The Company will comply with the 1933 Act and the 1933 Act Regulations so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Registration Statement, the General Disclosure Package and the Prospectus. If at any time when a prospectus relating to the Securities is (or, but for the exception afforded by Rule 172 of the 1933 Act Regulations (“Rule 172”), would be) required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or for the Company, to (i) amend the Registration Statement in order that the Registration Statement will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) amend or supplement the General Disclosure Package or the Prospectus in order that the General Disclosure Package or the Prospectus, as the case may be, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time it is delivered to a purchaser or (iii) amend the Registration Statement or amend or supplement the General Disclosure Package or the Prospectus, as the case may be, in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly (A) give the Representatives notice of such event, (B) prepare any amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement, the General Disclosure Package or the Prospectus comply with such requirements and, a reasonable amount of time prior to any proposed filing or use, furnish the Representatives with copies of any such amendment or supplement and (C) file with the Commission any such amendment or supplement; provided that the Company shall not file or use any such amendment or supplement to which the Representatives or counsel for the Underwriters shall reasonably object. The Company will furnish to the Underwriters such number of copies of such amendment or supplement as the Underwriters may reasonably request. The Company has given the Representatives notice of any filings made pursuant to the 1934 Act or 1934 Act Regulations within 48 hours prior to the Applicable Time; the Company will give the Representatives notice of its intention to make any such filing from the Applicable Time to the Closing Time and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing, as the case may be, and will not file or use any such document to which the Representatives or counsel for the Underwriters shall reasonably object.
(f) BlueSky Qualifications. The Company will endeavor, in cooperation with the Underwriters, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Representatives may reasonably designate and to maintain such qualifications in effect so long as required to complete the distribution of the Securities; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
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(g) Rule 158. The Company will timely file such reports pursuant to the 1934 Act as are necessary in order to make generally available to its securityholders an earnings statement for the purposes of, and to provide to the Underwriters the benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(h) Useof Proceeds. The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Registration Statement, the General Disclosure Package and the Prospectus under “Use of Proceeds.”
(i) Listing. The Company will use its best efforts to effect and maintain the listing of the Securities on the New York Stock Exchange.
(j) ReportingRequirements. The Company, during the period when a prospectus relating to the Securities is (or, but for the exception afforded by Rule 172, would be) required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission pursuant to the 1934 Act within the time periods required by the 1934 Act and 1934 Act Regulations.
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(k) Restrictionon Sale of Securities. During a period of 180 days from the date of this Agreement (the “Lock-Up Period”), neither of the Transaction Entities will, without the prior written consent of the Representatives, directly or indirectly (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of any shares of Class A-1 Common Stock or any securities convertible into or exercisable or exchangeable for Class A-1 Common Stock (including, without limitation, LLC Interests) or file or confidentially submit any registration statement under the 1933 Act relating to any shares of Class A-1 Common Stock or any securities convertible into or exercisable or exchangeable for Class A-1 Common Stock (including, without limitation, LLC Interests), or (ii) enter into any swap or other agreement or transaction that transfers, in whole or in part, directly or indirectly, the economic consequences of ownership of Class A-1 Common Stock, whether any such swap, agreement, or other transaction described in clause (i) or (ii) above is to be settled by delivery of Class A-1 Common Stock, other securities, in cash or otherwise, or publicly announce the intention to do any of the foregoing described in clause (i) or (ii), except for (A) the Securities to be sold hereunder, (B) shares of Class A-1 Common Stock, Class A-2 Common Stock or LLC Interests to be issued in the Formation Transactions described in the Registration Statement, the General Disclosure Package and the Prospectus, (C) shares of Common Stock or LLC Interests issued or options to purchase shares of Common Stock or LLC Interests granted pursuant to, or registration statements on Form S-8 filed to register shares of Class A-1 Common Stock that are issuable pursuant to, existing employee benefit plans of the Company referred to in the Registration Statement, the General Disclosure Package and the Prospectus, (D) non-managing member units exchangeable for any shares of Class A-1 Common Stock issued by subsidiaries of the Company in connection with the acquisition of properties or interests therein (provided that (x) such units referred to in this clause (D) are not exchangeable for Class A-1 Common Stock for at least one year from the date of issuance thereof and the Company does not cause or permit (by waiver or otherwise) the exchange of such units for Class A-1 Common Stock during such one year period, (y) issuances pursuant to this clause (D) shall not in the aggregate exceed 5% of the total number of shares of Class A-1 Common Stock issued and outstanding immediately following the completion of the transactions contemplated by this Agreement (assuming full conversion, exchange or exercise of all outstanding securities convertible into or exercisable or exchangeable for shares of Class A-1 Common Stock (including LLC Interests)) and (z) the recipient of any such units or securities convertible into or exercisable or exchangeable for shares of Class A-1 Common Stock shall be required to execute a Lock-up Agreement in substantially the form attached as Exhibit C hereto for the duration of the Lock-Up Period), (E) any shares of Common Stock issued by the Company upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof and referred to in the Registration Statement, the General Disclosure Package and the Prospectus, (F) shares of Class A-1 Common Stock issuable, and shares of Class A-2 Common Stock cancellable, upon the redemption or exchange of non-managing member units of subsidiaries of the Company, including the Operating Company, outstanding on the date of this Agreement and referred to in the Registration Statement, the General Disclosure Package and the Prospectus, (G) shares of Class A-1 Common Stock issued under a registration statement or pursuant to an exemption from registration in connection with future business combinations or acquisitions; provided that (x) such issuance does not exceed 5% of the total number of shares of Class A-1 Common Stock issued and outstanding immediately following the completion of the transactions contemplated by this Agreement (assuming full conversion, exchange or exercise of all outstanding securities convertible into or exercisable or exchangeable for shares of Class A-1 Common Stock (including LLC Interests)) and (y) the recipient of any such Class A-1 Common Stock or securities convertible into or exercisable or exchangeable for shares of Class A-1 Common Stock during the Lock-Up Period shall be required to execute a Lock-up Agreement in substantially the form attached as Exhibit C hereto for the duration of the Lock-Up Period, (H) shares of Common Stock issued as part of a distribution by the Company to its stockholders of record as of the record date of such distribution to maintain the qualification of the Company as a REIT or to avoid the payment of federal or state income or excise taxes or (I) LLC Interests issued to the Company.
(l) CertificationRegarding Beneficial Owners. The Company will deliver to the Representatives, on the date of execution of this Agreement, a properly completed and executed Certification Regarding Beneficial Owners of Legal Entity Customers, together with copies of identifying documentation, and the Company undertakes to provide such additional supporting documentation as the Representatives may reasonably request in connection with the verification of the foregoing certification.
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(m) Testing-the-WatersMaterials. If at any time following the distribution of any Written Testing-the-Waters Communication there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Representatives and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission.
(n) EmergingGrowth Company Status. The Company will promptly notify the Representatives if the Company ceases to be an Emerging Growth Company at any time prior to the later of (i) completion of the distribution of the Securities within the meaning of the 1933 Act and (ii) completion of the 180-day restricted period referred to in Section 3(k).
(o) Absenceof Manipulation. Neither of the Transaction Entities nor any subsidiary or other affiliate of the Transaction Entities will take, directly or indirectly, any action which is designed to cause or result in, or which has constituted or which would reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities or to result in a violation of Regulation M under the 1934 Act.
(p) REITStatus. The Company will use its reasonable best efforts to meet the requirements for qualification and taxation as a REIT under the Code for its taxable year ending December 31, 2026, and the Company will use its reasonable best efforts to continue to qualify for taxation as a REIT under the Code unless the Board of Directors of the Company determines that it is no longer in the best interests of the Company to qualify or to be so qualified.
Section 4. Covenants of the Manager.
(a) AccurateDisclosure. The Manager covenants with each Underwriter and with the Company that, if at any time during the period when a prospectus relating to the Securities is required (or, but for the exception afforded by Rule 172 under the 1933 Act, would be required) to be delivered under the 1933 Act, it shall notify the Representatives and the Company of the occurrence of any material events respecting the Manager’s activities, affairs, operations or condition, financial or otherwise, and the Manager will forthwith supply such information to the Company as shall be necessary in the opinion of counsel to the Transaction Entities and the Underwriters for the Company to prepare any necessary amendment or supplement to the Registration Statement, the General Disclosure Package and the Prospectus so that, as so amended or supplemented, the same will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made (in the case of the General Disclosure Package and the Prospectus), not misleading.
(b) Absenceof Manipulation. The Manager will not take, directly or indirectly, any action which is designed to cause or result in, or which has constituted or which would reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities or to result in a violation of Regulation M under the 1934 Act.
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Section 5. Payment of Expenses.
(a) Expenses. Each of the Transaction Entities, jointly and severally, will pay or cause to be paid all expenses incident to the performance of their obligations under this Agreement, including (i) the preparation, printing and filing of the Registration Statement (including financial statements and exhibits thereto) as originally filed and of each amendment thereto, (ii) the preparation, printing and delivery to the Underwriters of copies of each preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus and any amendments or supplements thereto and any costs associated with electronic delivery of any of the foregoing by the Underwriters to investors, (iii) the preparation, issuance and delivery of the certificates for the Securities to the Underwriters, including any stock or other transfer taxes and any stamp or other duties payable upon the sale, issuance or delivery of the Securities to the Underwriters, (iv) the fees and disbursements of the Transaction Entities’ counsel, accountants and other advisors, (v) the qualification of the Securities under securities laws in accordance with the provisions of Section 3(f) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection therewith and in connection with the preparation of the Blue Sky Survey and any supplement thereto (in an amount not to exceed $10,000), (vi) the fees and expenses of any transfer agent or registrar for the Securities, (vii) the costs and expenses of the Company relating to investor presentations on any “road show” undertaken in connection with the marketing of the Securities, including without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations, travel and lodging expenses of the officers and other representatives of the Transaction Entities and any such consultants, and 50% of the cost of any aircraft and other transportation chartered in connection with the road show (the remaining 50% of such cost to be paid by the Underwriters), (viii) the filing fees incident to, and the reasonable and documented fees and disbursements of counsel to the Underwriters in connection with, the review by FINRA of the terms of the sale of the Securities (in an amount not to exceed $40,000), (ix) the fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange, (x) the costs and expenses (including, without limitation, any damages or other amounts payable in connection with legal or contractual liability) associated with the reforming of any contracts for sale of the Securities made by the Underwriters caused by a breach of the representation contained in the second sentence of Section 1(a)(ii) and (xi) all costs and expenses of the Underwriters and Merrill Lynch, including the fees and disbursements of counsel (such counsel’s fees not to exceed $30,000) for the Underwriters and counsel for Merrill Lynch, in connection with matters related to the Reserved Securities which are designated by the Company for sale to Invitees.
(b) Terminationof Agreement. If this Agreement is terminated by the Representatives in accordance with the provisions of Section 6, Section 10(a)(i) or (iii) or Section 11 hereof, the Company shall reimburse the Underwriters for all of their out-of-pocket expenses, including the reasonable fees and disbursements of counsel for the Underwriters.
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Section 6. Conditions of the Underwriters’ Obligations. The obligations of the several Underwriters hereunder are subject to the accuracy of the representations and warranties of the Transaction Entities and the Manager contained herein or in certificates of any officer or other representative of the Transaction Entities or any of its subsidiaries or the Manager delivered pursuant to the provisions hereof, to the performance by the Transaction Entities and the Manager of their respective covenants and other obligations hereunder, and to the following further conditions:
(a) Effectivenessof Registration Statement; Rule 430A Information. The Registration Statement, including any Rule 462(b) Registration Statement, has become effective and, at the Closing Time, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceedings for any of those purposes have been instituted or are pending or, to the Company’s knowledge, contemplated; and the Company has complied with each request (if any) from the Commission for additional information. A prospectus containing the Rule 430A Information shall have been filed with the Commission in the manner and within the time frame required by Rule 424(b) without reliance on Rule 424(b)(8) or a post-effective amendment providing such information shall have been filed with, and declared effective by, the Commission in accordance with the requirements of Rule 430A.
(b) Opinions. At the Closing Time, the Representatives shall have received:
(i) The favorable opinions and negative assurance letter, dated the Closing Time, of Latham & Watkins LLP, special corporate and tax counsel to the Transaction Entities and special corporate counsel to the Manager, in the form and substance reasonably satisfactory to the Representatives as set forth in Exhibit A hereto. In rendering such opinion, Latham & Watkins LLP may rely upon the opinion of Ballard Spahr LLP, rendered pursuant to Section 6(b)(ii), as to matters arising under the laws of the State of Maryland.
(ii) The favorable opinion, dated the Closing Time, of Ballard Spahr LLP, Maryland counsel for the Transaction Entities, in the form and substance reasonably satisfactory to the Representatives as set forth in Exhibit B hereto. In rendering its opinion, Ballard Spahr LLP shall state that each of Sidley Austin LLP, in rendering its opinion pursuant to Section 6(b)(iii) and Latham & Watkins LLP, in rendering its opinions pursuant to Section 6(b)(i), may rely upon such opinion as to matters arising under the laws of the State of Maryland.
(iii) The favorable opinion (including negative assurance statement), dated the Closing Time, of Sidley Austin LLP, counsel to the Underwriters, with respect to such matters as the Underwriters may reasonably request. In rendering such opinion, Sidley Austin LLP may rely upon the opinion of Ballard Spahr LLP, rendered pursuant to Section 6(b)(ii), as to matters arising under the laws of the State of Maryland.
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In giving their opinions, Latham & Watkins LLP, Ballard Spahr LLP and Sidley Austin LLP may rely, to the extent recited therein, (A) as to all matters of fact, upon certificates and written statements of officers of the Transaction Entities and the Manager, and (B) as to the qualification and good standing of the Company, the Operating Company and the Manager and each Significant Subsidiary to do business in any state or other jurisdiction, upon certificates of appropriate government officials.
(c) Officers’Certificate. At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Transaction Entities and their subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, and the Representatives shall have received a certificate of the President or a Vice President of the Company and of the Chief Financial Officer or Chief Accounting Officer of the Company, dated the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) the representations and warranties of the Transaction Entities in Section 1(a) hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (iii) the Transaction Entities have performed or complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time and (iv) no stop order suspending the effectiveness of the Registration Statement under the 1933 Act has been issued, no order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceedings for any of those purposes have been instituted or are pending or, to their knowledge, contemplated.
(d) Certificateof the Manager. At the Closing Time, the Representatives shall have received a certificate of an officer of the Manager, dated the Closing Time, to the effect that (i) the representations and warranties of the Manager in Section 1(b) hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time and (ii) the Manager has performed or complied with all agreements and satisfied all conditions on its part to be performed or satisfied under this Agreement at or prior to the Closing Time.
(e) Accountants’Comfort Letter. At the time of the execution of this Agreement, the Representatives shall have received from Deloitte & Touche LLP, in its capacity as auditor of the Company (which, for avoidance of doubt, includes Janus Predecessor and Janus Parent), dated such date, in form and substance satisfactory to the Representatives, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to financial statements and financial information included in the Registration Statement, the General Disclosure Package and the Prospectus.
(f) Bring-downComfort Letter. At the Closing Time, the Representatives shall have received from Deloitte & Touche LLP, in its capacity as auditor of the Company (which, for avoidance of doubt, includes Janus Predecessor and Janus Parent), dated the Closing Time, to the effect that they reaffirm the statements made in their letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to therein shall be a date not more than three business days prior to the Closing Time.
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(g) ChiefFinancial Officer’s Certificate. At the time of execution of this Agreement and at the Closing Time, the Representatives shall have received a certificate of the Chief Financial Officer of the Company, dated the date hereof and the Closing Time, in form and substance satisfactory to the Representatives, regarding certain financial and operating information contained in the Registration Statement, the General Disclosure Package and the Prospectus.
(h) Approvalof Listing. At the Closing Time, the Securities shall have been approved for listing on the New York Stock Exchange, subject only to official notice of issuance.
(i) NoObjection. FINRA has confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements relating to the offering of the Securities.
(j) Lock-upAgreements. At the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Exhibit C hereto signed by the persons listed on Schedule C hereto.
(k) AdditionalDocuments. At the Closing Time, and each Date of Delivery, counsel for the Underwriters shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained.
(l) Conditionsto Purchase of Option Securities. In the event that the Underwriters exercise their option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Transaction Entities and the Manager contained herein and the statements in any certificates furnished by the Transaction Entities or any of their respective subsidiaries or the Manager hereunder shall be true and correct as of each Date of Delivery, and, at the relevant Date of Delivery, the Representatives shall have received:
(i) The favorable opinions and negative assurance letter of Latham & Watkins LLP, special corporate and tax counsel to the Transaction Entities and special corporate counsel to the Manager, in form and substance satisfactory to counsel for the Underwriters, dated such Date of Delivery, relating to the Option Securities and otherwise to the same effect as the opinions and negative assurance letter required by Section 6(b)(i) hereof.
(ii) The favorable opinion of Ballard Spahr LLP, Maryland counsel to the Transaction Entities, in form and substance satisfactory to counsel for the Underwriters, dated such Date of Delivery, relating to the Option Securities and otherwise to the same effect as the opinion required by Section 6(b)(ii) hereof.
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(iii) The favorable opinion (including negative assurance statement) of Sidley Austin LLP, counsel to the Underwriters, dated such Date of Delivery, relating to the Option Securities and otherwise to the same effect as the opinion required by Section 6(b)(iii) hereof.
(iv) A certificate of the President or a Vice President of the Company and of the Chief Financial Officer or Chief Accounting Officer of the Company, dated such Date of Delivery, confirming that the certificate delivered at the Closing Time pursuant to Section 6(c) hereof remains true and correct as of such Date of Delivery.
(v) A certificate of an officer of the Manager, dated such Date of Delivery, confirming that the certificate delivered at the Closing Time pursuant to Section 6(d) hereof remains true and correct as of such Date of Delivery.
(vi) A letter from Deloitte & Touche LLP, in form and substance satisfactory to the Representatives, dated such Date of Delivery, substantially the same in scope and substance as the letter furnished to the Representatives, pursuant to Section 6(f) hereof except that the “specified date” in the letters furnished pursuant to this subsection shall be a date not more than three business days prior to such Date of Delivery.
(vii) A certificate of the Chief Financial Officer of the Company, dated such Date of Delivery, confirming that the certificate delivered at the Closing Time pursuant to Section 6(g) hereof remains true and correct as of such Date of Delivery.
If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement, or, in the case of any condition to the purchase of Option Securities on a Date of Delivery which is after the Closing Time, the obligations of the several Underwriters to purchase the relevant Option Securities, may be terminated by the Representatives by notifying the Company at any time at or prior to Closing Time or such Date of Delivery, as the case may be, and such termination shall be without liability of any party to any other party except as provided in Section 5 hereof. Notwithstanding any such termination, the provisions of Section 1, Section 7, Section 8, Section 9, Section 13, Section 14, Section 19 and Section 20 shall remain in full force and effect.
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Section 7. Indemnification.
(a) Indemnificationof the Underwriters. Each of the Transaction Entities, jointly and severally, agree to indemnify and hold harmless each Underwriter, its affiliates (as such term is defined in Rule 501(b) under the 1933 Act (each, an “Affiliate”)), its directors, officers and agents, and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including the Rule 430A Information, or any omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included (A) in any preliminary prospectus, any Issuer Free Writing Prospectus, any Written Testing-the-Waters Communication, the General Disclosure Package or the Prospectus (or any amendment or supplement thereto), or (B) in any materials or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Securities (“Marketing Materials”), including any roadshow or investor presentations made to investors by the Company (whether in person or electronically), or the omission or alleged omission in any preliminary prospectus, any Issuer Free Writing Prospectus, any Written Testing-the-Waters Communication, the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) or in any Marketing Materials of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, domestic or foreign, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 7(d) below) any such settlement is effected with the written consent of the Transaction Entities; and
(iii) against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by the Representatives), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, domestic or foreign, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in the Registration Statement (or any amendment thereto), including the Rule 430A Information, or the General Disclosure Package or the Prospectus (or any amendment or supplement thereto), in each case, in reliance upon and in conformity with the Underwriter Information.
(b) Indemnificationof the Transaction Entities and the Company’s Directors and Officers. Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless each Transaction Entity, the Company’s directors, each of the Company’s officers who signed the Registration Statement, and each person, if any, who controls either of the Transaction Entities within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), including the Rule 430A Information, or the General Disclosure Package or the Prospectus (or any amendment or supplement thereto), in each case in reliance upon and in conformity with the Underwriter Information.
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(c) ActionsAgainst Parties; Notification. Each indemnified party shall give written notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. In the case of parties indemnified pursuant to Section 7(a) above, counsel to the indemnified parties shall be selected by the Representatives, and, in the case of parties indemnified pursuant to Section 7(b) above, counsel to the indemnified parties shall be selected by the Transaction Entities. An indemnifying party may participate at its own expense in the defense of any such action; provided, however, that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, domestic or foreign, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 or Section 8 hereof (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) Settlementwithout Consent if Failure to Reimburse. If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 7(a)(ii) or settlement of any claim in connection with any violation referred to in Section 7(e) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
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(e) Indemnificationfor Reserved Securities. In connection with the offer and sale of the Reserved Securities, the Company agrees to indemnify and hold harmless the Underwriters, their Affiliates (including Merrill Lynch) and selling agents and each person, if any, who controls any Underwriter or Merrill Lynch within the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act, from and against any and all loss, liability, claim, damage and expense (including, without limitation, any legal or other expenses reasonably incurred in connection with defending, investigating or settling any such action or claim), as incurred, (i) arising out of the violation of any applicable laws or regulations of foreign jurisdictions where Reserved Securities have been offered, (ii) arising out of any untrue statement or alleged untrue statement of a material fact contained in any other material prepared by or with the consent of the Company for distribution to Invitees in connection with the offering of the Reserved Securities or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) caused by the failure of any Invitee to pay for and accept delivery of Reserved Securities which have been orally confirmed for purchase by any Invitee by 11:59 P.M. (New York City time) on the date of the Agreement or (iv) related to, or arising out of or in connection with, the offering of the Reserved Securities.
(f) EDGAR. For purposes of this Section 7, all references to the Registration Statement, any preliminary prospectus, Issuer Free Writing Prospectus or the Prospectus, or any amendment or supplement to any of the foregoing, shall be deemed to include, without limitation, any electronically transmitted copies thereof filed with the Commission pursuant to EDGAR.
Section 8. Contribution. If the indemnification provided for in Section 7 hereof is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Transaction Entities, on the one hand, and the Underwriters, on the other hand, from the offering of the Securities pursuant to this Agreement or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Transaction Entities, on the one hand, and of the Underwriters, on the other hand, in connection with the statements or omissions, or in connection with any violation of the nature referred to in Section 7(e) hereof, which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Transaction Entities, on the one hand, and the Underwriters, on the other hand, in connection with the offering of the Securities pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Securities pursuant to this Agreement (before deducting expenses) received by the Company, on the one hand, and the total underwriting discount received by the Underwriters, on the other hand, in each case as set forth on the cover of the Prospectus, bear to the aggregate initial public offering price of the Securities as set forth on the cover of the Prospectus.
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The relative fault of the Transaction Entities, on the one hand, and the Underwriters, on the other hand, shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Transaction Entities or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission or any violation of the nature referred to in Section 7(e) hereof.
The Transaction Entities and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 8 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 8. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 8 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, domestic or foreign, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 8, no Underwriter shall be required to contribute any amount in excess of the underwriting discount received by such Underwriter in connection with the Securities underwritten by it and distributed to the public.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each director, officer or agent of an Underwriter, and each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and each Underwriter’s Affiliates shall have the same rights to contribution as such Underwriter, and each director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls either of the Transaction Entities within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Transaction Entities. The Underwriters’ respective obligations to contribute pursuant to this Section 8 are several in proportion to the number of Initial Securities set forth opposite their respective names in Schedule A hereto and not joint.
Section 9. Representations, Warranties and Agreements to Survive. All representations, warranties and agreements contained in this Agreement, or contained in certificates of officers or other representatives of either of the Transaction Entities or any of their subsidiaries or the Manager submitted pursuant hereto, shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or its Affiliates, its directors, officers or agents or any controlling person, or by or on behalf of either of the Transaction Entities or the Manager and shall survive delivery and payment for the Securities to the Underwriters.
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Section 10. Termination of Agreement.
(a) Termination. The Representatives may terminate this Agreement, by notice to the Transaction Entities, at any time at or prior to Closing Time (and, if any Option Securities are to be purchased on a Date of Delivery which occurs after Closing Time, the Representatives may terminate the obligation to purchase such Option Securities, by notice to the Transaction Entities, at any time on or prior to such Date of Delivery), if (i) there has been since the time of execution of this Agreement or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Transaction Entities and their subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, (ii) there has occurred any material adverse change in the financial markets in the United States or the international financial markets, any outbreak of hostilities or the escalation thereof or other calamity or crisis or change or development involving a prospective change in national or international political, financial or economic conditions, in each case the effect of which is such as to make it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the completion of the offering of the Securities or to enforce contracts for the sale of the Securities, (iii) trading in any securities of the Company has been suspended or materially limited by the Commission or a national securities exchange, or if trading generally on either the New York Stock Exchange or in the Nasdaq Global Market has been suspended or materially limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required, by the New York Stock Exchange or by the Nasdaq Global Market or by order of the Commission, FINRA or any other governmental agency or body, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, or (iv) a banking moratorium has been declared by either federal, New York or Maryland authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section 10, such termination shall be without liability of any party to any other party except as provided in Section 5 hereof. Notwithstanding any such termination, the provisions of Section 1, Section 7, Section 8, Section 9, Section 13, Section 14, Section 19 and Section 20 shall remain in full force and effect.
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Section 11. Default by One or More of the Underwriters. If one or more of the Underwriters shall fail at the Closing Time or a Date of Delivery, as the case may be, to purchase the Securities which it or they are obligated to purchase under this Agreement (the “DefaultedSecurities”), the Representatives shall have the right, within 24 hours thereafter, to make arrangements for one or more of the non-defaulting Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth; if, however, the Representatives shall not have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the total number of Securities to be purchased on such date, each of the non-defaulting Underwriters shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective underwriting obligations hereunder bear to the underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the total number of Securities to be purchased on such date, this Agreement or, with respect to any Date of Delivery which occurs after the Closing Time, the obligation of the Underwriters to purchase, and the Company to sell, the Option Securities to be purchased and sold on such Date of Delivery shall terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 11 shall relieve any defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of this Agreement or, in the case of a Date of Delivery which is after the Closing Time, which does not result in a termination of the obligation of the Underwriters to purchase and the Company to sell the relevant Option Securities, as the case may be, either the (i) Representatives or (ii) the Company shall have the right to postpone Closing Time or the relevant Date of Delivery, as the case may be, for a period not exceeding seven days in order to effect any required changes in the Registration Statement, the General Disclosure Package or the Prospectus or in any other documents or arrangements. As used herein, the term “Underwriter” includes any person substituted for an Underwriter under this Section 11.
Section 12. Notices.
Unless otherwise provided herein, all notices required under the terms and provisions hereof shall be in writing, either delivered by hand, by mail or by fax, and any such notice shall be effective when received at the address specified below.
If to the Transaction Entities:
Janus Living, Inc. / Janus Living OP, LLC
c/o Healthpeak Properties, Inc.
4600 South Syracuse Street, Suite 500
Denver, Colorado 80237
Attention: Tracy Porter and Ankit Patadia
Email:
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With a copy (which shall not constitute notice) to:
Lewis K. Kneib, Esq. Devon L. MacLaughlin, Esq.
Latham & Watkins LLP 10250 Constellation Blvd., Suite 1100 Los Angeles, California 90067 Email:
If to the Manager:
Healthpeak Investment Management, LLC
c/o Healthpeak Properties, Inc.
4600 South Syracuse Street, Suite 500
Denver, Colorado 80237
Attention: Tracy Porter and Ankit Patadia
Email:
With a copy (which shall not constitute notice) to:
Lewis K. Kneib, Esq. Devon L. MacLaughlin, Esq.
Latham & Watkins LLP 10250 Constellation Blvd., Suite 1100 Los Angeles, California 90067 Email:
If to the Underwriters:
BofA Securities, Inc. One Bryant Park New York, New York 10036 Attention: Syndicate Department Email:
and a copy to
BofA Securities, Inc. One Bryant Park New York, New York 10036 Attention: ECM Legal Email:
J.P. Morgan Securities LLC
270 Park Avenue
New York, New York 10017
Fax: (212) 622-8358
Attention: Equity Syndicate Desk
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With a copy (which shall not constitute notice) to:
J. Gerard Cummins, Esq.
Adam M. Gross, Esq.
Sidley Austin LLP 787 Seventh Avenue
New York, New York 10019 Email:
or at such other address as such party may designate from time to time by notice duly given in accordance with the terms of this Section 12.
Section 13. Parties. This Agreement shall each inure to the benefit of and be binding upon the Underwriters, the Transaction Entities and the Manager and their respective successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the Underwriters, the Transaction Entities and the Manager and their respective successors and the controlling persons and the agents, officers and directors referred to in Section 7 and Section 8 hereof and their heirs and legal representatives any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the Underwriters, the Transaction Entities and the Manager and their respective successors, and said controlling persons and said agents, officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Securities from any Underwriter shall be deemed to be a successor merely by reason of such purchase.
Section 14. Governing Law.THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF, THE STATE OF NEW YORK WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS.
Section 15. TIME. TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
Section 16. Recognition of the U.S. Special Resolution Regimes.
(a) In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
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(b) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
(c) For purposes of this Section 16: (A) a “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k); (B) “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); (C) “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; and (D) “U.S.Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
Section 17. No Advisory or Fiduciary Relationship. Each of the Transaction Entities and the Manager acknowledges and agrees that (a) the purchase and sale of the Securities pursuant to this Agreement, including the determination of the initial public offering price of the Securities and any related discounts and commissions, is an arm’s-length commercial transaction between the Transaction Entities, Healthpeak and the Manager, on the one hand, and the several Underwriters, on the other hand, and does not constitute a recommendation, investment advice, or solicitation of any action by the Underwriters, (b) in connection with the offering of the Securities and the process leading thereto, each Underwriter is and has been acting solely as a principal and is not the agent or fiduciary of either of the Transaction Entities or the Manager, any of their subsidiaries or other affiliates, or their respective stockholders, creditors, employees or any other party, (c) no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the Transaction Entities or the Manager or any of their subsidiaries or other affiliates with respect to the offering of the Securities or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising either of the Transaction Entities or the Manager or any of their subsidiaries or other affiliates on other matters) and no Underwriter has any obligation to the Transaction Entities or the Manager or any of their subsidiaries or other affiliates with respect to the offering of the Securities except the obligations expressly set forth in this Agreement, (d) the Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of each of the Transaction Entities, the Manager and their subsidiaries or other affiliates, and (e) the Underwriters have not provided any legal, accounting, regulatory, investment or tax advice with respect to the offering of the Securities and each of the Transaction Entities, the Manager and their subsidiaries or other affiliates has consulted its own respective legal, accounting, financial, regulatory and tax advisors to the extent it deemed appropriate, and (f) none of the activities of the Underwriters in connection with the transactions contemplated herein constitutes a recommendation, investment advice or solicitation of any action by the Underwriters with respect to any entity or natural person.
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Section 18. Entire Agreement. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Transaction Entities, Healthpeak, the Manager and the Underwriters, or any of them, with respect to the subject matter hereof.
Section 19. Waiver of Jury Trial. Each of the Transaction Entities, the Manager and the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
Section 20. Consent to Jurisdiction. Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby shall be instituted in (i) the federal courts of the United States of America located in the City and County of New York, Borough of Manhattan or (ii) the courts of the State of New York located in the City and County of New York, Borough of Manhattan (collectively, the “Specified Courts”), and each party irrevocably submits to the exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a judgment of any such court, as to which such jurisdiction is non-exclusive) of such courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail to such party’s address set forth above shall be effective service of process for any suit, action or proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
Section 21. Counterparts and Electronic Signatures. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement. Electronic signatures complying with the New York Electronic Signatures and Records Act (N.Y. State Tech. §§ 301-309), as amended from time to time, or other applicable law will be deemed original signatures for purposes of this Agreement. Transmission by telecopy, electronic mail or other transmission method of an executed counterpart of this Agreement will constitute due and sufficient delivery of such counterpart.
Section 22. Severability. The invalidity or unenforceability of any Section, paragraph or provision of this Agreement shall not affect the validity or enforceability of any other Section, paragraph or provision hereof or thereof, as the case may be. If any Section, paragraph or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.
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Section 23. Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
[Signaturepage follows.]
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If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company, the Operating Company and the Manager a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters, the Company, the Operating Company and the Manager in accordance with its terms.
| Very truly yours, | |
|---|---|
| Janus Living, Inc. | |
| By: | /s/ Kelvin O. Moses |
| Name: | Kelvin O. Moses |
| Title: | Chief Financial Officer |
| Janus Living OP, LLC | |
| By: Janus Living, Inc., its managing member | |
| By: | /s/ Kelvin O. Moses |
| Name: | Kelvin O. Moses |
| Title: | Chief Financial Officer |
| Healthpeak Investment Management, LLC | |
| By: Management & Operations Members 1,<br> LLC, | |
| its Managing Member | |
| By: Healthpeak OP, LLC, | |
| its Managing Member | |
| By: Healthpeak Properties, Inc., | |
| its Managing Member | |
| By: | /s/ Adam G. Mabry |
| Name: | Adam G. Mabry |
| Title: | Chief Investment Officer |
[SignaturePages to Underwriting Agreement]
| CONFIRMED AND ACCEPTED, | |
|---|---|
| as of the date first<br> above written: | |
| BOFA SECURITIES, INC. | |
| By: | /s/ Gray Hampton |
| Name: | Gray Hampton |
| Title: | Vice Chairman |
| J.P. Morgan Securities<br> LLC | |
| By: | /s/ Grace Schlesinger |
| Name: | Grace Schlesinger |
| Title: | Vice President |
| For themselves and as Representatives of the other | |
| Underwriters named in Schedule A hereto. |
[SignaturePages to Underwriting Agreement]
SCHEDULEA
The initial public offering price per share for the Securities shall be $20.00.
The purchase price per share for the Securities to be paid by the several Underwriters shall be $18.70, being an amount equal to the initial public offering price set forth above less $1.30 per share, subject to adjustment in accordance with Section 2(b) for dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities.
| Name of Underwriter | Number of Initial Securities | |
|---|---|---|
| BofA Securities, Inc. | 13,440,000 | |
| J.P. Morgan Securities LLC | 5,712,000 | |
| Wells Fargo Securities, LLC | 3,108,000 | |
| Barclays Capital Inc. | 2,436,000 | |
| Goldman Sachs & Co. LLC | 2,436,000 | |
| RBC Capital Markets, LLC | 2,436,000 | |
| Morgan Stanley & Co. LLC | 1,974,000 | |
| BNP Paribas Securities Corp. | 1,134,000 | |
| Credit Agricole Securities (USA) Inc. | 1,134,000 | |
| KeyBanc Capital Markets Inc. | 1,134,000 | |
| PNC Capital Markets LLC | 1,134,000 | |
| Scotia Capital (USA) Inc. | 1,134,000 | |
| TD Securities (USA) LLC | 1,134,000 | |
| Truist Securities, Inc. | 1,134,000 | |
| BTIG, LLC | 315,000 | |
| Capital One Securities, Inc. | 315,000 | |
| Huntington Securities, Inc. | 315,000 | |
| M&T Securities, Inc. | 315,000 | |
| Raymond James & Associates, Inc. | 315,000 | |
| Regions Securities LLC | 315,000 | |
| Santander US Capital Markets LLC | 315,000 | |
| SMBC Nikko Securities America, Inc. | 315,000 | |
| Total | 42,000,000 |
Schedule A-1
SCHEDULEB-1
Pricing Terms
1. The Company is selling 42,000,000 shares of Class A-1 Common Stock.
2. The Company has granted an option to the Underwriters, severally and not jointly, to purchase up to an additional 6,300,000 shares of Class A-1 Common Stock.
3. The initial public offering price per share for the Securities shall be $20.00.
Schedule B-1-1
SCHEDULEB-2
Free Writing Prospectuses
None
Schedule B-2-1
SCHEDULEB-3
Testing-the-Waters Communications
1. Testing the Waters Presentation, January 2026.
2. Testing the Waters Presentation, February 2026.
3. Testing the Waters Presentation, March 2026.
Schedule B-3-1
SCHEDULEC
List of Persons and Entities Subject to Lock-up
| Persons and Entities Subject to 365-Day<br><br> Lock-Up | Persons and Entities Subject to 180-Day<br><br> Lock-Up |
|---|---|
| 1. Scott M. Brinker<br><br> <br>2. Kelvin O. Moses<br><br> <br>3. Adam G. Mabry<br><br> <br>4. Shawn G. Johnston<br><br> <br>5. Tracy A. Porter<br><br> <br>6. Ankit B. Patadia<br><br> <br>7. Carol B. Samaan<br><br> <br>8. Jeffrey H. Miller<br><br> <br>9. Katherine M. Sandstrom<br><br> <br>10. Brian G. Cartwright<br><br> <br>11. James B. Connor<br><br> <br>12. R. Kent Griffin, Jr.<br><br> <br>13. Pamela J. Kessler<br><br> <br>14. Sara G. Lewis<br><br> <br>15. Ava E. Lias-Booker<br><br> <br>16. Tommy G. Thompson<br><br> <br>17. Richard A. Weiss<br><br> <br>18. John T. Thomas<br><br> <br>19. Patrick Cheng<br><br> <br>20. Jonathan Hughes<br><br> <br>21. Omkar Joshi<br><br> <br>22. Michelle Wood<br><br> <br>23. Paul Jin<br><br> <br>24. Elton Ngo<br><br> <br>25. Kristina Anacker<br><br> <br>26. Frank Russo<br><br> <br>27. Andrew Johns<br><br> <br>28. Healthpeak Properties, Inc.<br><br> <br>29. Janus Member, LLC<br><br> <br>30. CCRC PropCo Ventures, LLC<br><br> <br>31. Healthpeak Investment Management, LLC | 1. John V. Arabia<br><br> <br>2. Charles J. Herman, Jr.<br><br> <br>3. Denise Olsen |
Schedule C-1
EXHIBIT A
Opinionsand Negative Assurance Letter of Latham & Watkins LLP
[INTENTIONALLYOMITTED]
Exhibit A-1
EXHIBIT B
Opinionof Ballard Spahr LLP
[INTENTIONALLYOMITTED]
Exhibit B-1
EXHIBIT C
Form ofLock-Up
[●], 2026
BofA Securities, Inc.
One Bryant Park
New York, New York 10036
J.P. Morgan Securities LLC
270 Park Avenue
New York, New York 10017
As Representatives of the Several Underwriters
Re: Proposed Initial Public Offering by Janus Living, Inc.
Dear Ladies and Gentlemen:
The undersigned, a stockholder and/or an officer and/or a director and/or the external manager of Janus Living, Inc., a Maryland corporation (the “Company”), understands that BofA Securities, Inc. (“BofA”) and J.P. Morgan Securities LLC, as representatives of the several underwriters (the “Representatives”), propose to enter into an underwriting agreement (the “Underwriting Agreement”) with the Company, Janus Living OP, LLC, a Maryland limited liability company (the “Operating Company”), Healthpeak Investment Management, LLC, a Delaware limited liability company and the Company’s external manager (the “Manager”), providing for the initial public offering (the “Offering”) of shares (the “Securities”) of the Company’s Class A-1 common stock, par value $0.01 per share (the “Class A-1Common Stock”). In recognition of the benefit that the Offering will confer upon the undersigned as a stockholder and/or an officer and/or a director and/or the Manager, as applicable, of the Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each underwriter to be named in the Underwriting Agreement that, during the period beginning on the date hereof and ending on the date that is [180]^1^[365]^2^ days from the date of the Underwriting Agreement (the “Lock-Up Period”), the undersigned will not, without the prior written consent of the Representatives, (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend or otherwise dispose of or transfer, directly or indirectly, any shares of the Company’s Class A-1 Common Stock or any securities convertible into or exchangeable or exercisable for Class A-1 Common Stock (including, without limitation, membership interests in the Operating Company), whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (including, without limitation, Class A-1 Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the U.S. Securities and Exchange Commission (the “Commission”) and securities which may be issued upon exercise of a stock option or warrant) (collectively, the “Lock-Up Securities”), or exercise any right with respect to the registration of any of the Lock-Up Securities, or file, cause to be filed or cause to be confidentially submitted any registration statement in connection therewith, under the Securities Act of 1933, as amended (the “Securities Act”) or (ii) enter into any hedging, swap, loan or any other agreement or any transaction (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward or any other derivative transaction or instrument, however described or defined) that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such hedging, swap, loan or transaction is to be settled by delivery of Class A-1 Common Stock or other securities, in cash or otherwise, or (iii) publicly disclose the intention to do any of the foregoing described in clauses (i) and (ii) above.
^1^ NTD: To be included in independent director lock-ups.
^2^ NTD: 365-day lock-up to apply to all lock-up parties other than independent directors.
Exhibit C-1
Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer the Lock-Up Securities without the prior written consent of the Representatives, as described below, provided that (1) in the case of clause (i), (ii), (v), (vi) (to the extent in relation to clause (i), (ii) or (v)), (vii) or (viii), the Representatives receive a signed lock-up agreement in the form of this lock-up agreement for the balance of the Lock-Up Period from each donee, devisee, trustee, distributee, or transferee, as the case may be, (2) in the case of clauses (i), (vii) or (viii)(B), any such transfer shall not involve a disposition for value, (3) such transfers are not required to be reported during the Lock-Up Period with the Commission on Form 4 or Form 5 in accordance with Section 16(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or, in the case of clause (i), (ii), (iii), (iv), (x) or (xi) below, any such required filing shall clearly indicate in the footnotes thereto that the filing relates to circumstances described in such a clause, and (4) the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers:
| (i) | as<br> a bona fide gift or gifts, including, without limitation, to a charitable organization<br> or educational institution, or for bona fide estate planning purposes; |
|---|---|
| (ii) | by<br> will, testamentary document or intestate succession to the legal representative, heir, beneficiary<br> or a member of the immediate family of the undersigned (for purposes of this lock-up agreement,<br> “immediate family” of the undersigned shall mean any relationship by blood, marriage,<br> domestic partnership or adoption, not more remote than first cousin of the undersigned); |
| --- | --- |
| (iii) | by<br> operation of law, such as pursuant to a qualified domestic order, divorce settlement, divorce<br> decree or separation agreement; |
| --- | --- |
| (iv) | pursuant<br> to an order of a court or regulatory agency having jurisdiction over the undersigned; |
| --- | --- |
| (v) | to<br> any corporation, partnership, limited liability company or other entity of which the undersigned<br> or the immediate family of the undersigned are the legal and beneficial owner of all of the<br> outstanding equity securities or similar interests; |
| --- | --- |
Exhibit C-2
| (vi) | to<br> a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible<br> under clauses (i) through (v) above; |
|---|---|
| (vii) | to<br> any immediate family member or any trust, partnership, limited liability company or other<br> entity for the direct or indirect benefit of the undersigned or one or more immediate family<br> members of the undersigned, or if the undersigned is a trust, to a trustor or beneficiary<br> of the trust or to the estate of a beneficiary of such trust; |
| --- | --- |
| (viii) | if<br> the undersigned is a corporation, partnership, limited liability company, trust or other<br> business entity, (A) to another corporation, partnership, limited liability company,<br> trust or other business entity that is an affiliate (as defined in Rule 405 promulgated<br> under the Securities Act) of the undersigned, or to any investment fund or other entity controlling,<br> controlled by, managing or managed by or under common control with the undersigned or affiliates<br> of the undersigned (including, for the avoidance of doubt, where the undersigned is a partnership,<br> to its general partner or a successor partnership or fund, or any other funds managed by<br> such partnership), or (B) as part of a distribution to limited partners, limited liability<br> company members or stockholders of the undersigned or holders of similar equity interests<br> in the undersigned; |
| --- | --- |
| (ix) | to<br> the Company upon the undersigned’s death, disability or termination of employment or<br> other service relationship with the Company; provided that such shares of Class A-1<br> Common Stock were issued to the undersigned pursuant to an agreement or equity award granted<br> pursuant to an employee benefit plan, option, warrant or other right disclosed in the prospectus<br> for the Offering; |
| --- | --- |
| (x) | to<br> the Company or the Operating Company pursuant to (A) the exercise on a net issuance<br> basis by the undersigned of any award granted pursuant to the Company’s employee benefit<br> plans as described in the prospectus for the Offering, or (B) share withholdings to<br> cover applicable taxes in connection with the vesting or settlement of any award granted<br> pursuant to the Company’s employee benefit plans as described in the prospectus for<br> the Offering; |
| --- | --- |
| (xi) | to<br> the Company or the Operating Company pursuant to any redemption, exchange or conversion right<br> relating to membership interests in the Operating Company or any equity interests in any<br> other subsidiary of the Company, including any cancellation of Class A-2 common stock<br> of the Company in connection with any such redemption, exchange or conversion; or |
| --- | --- |
| (xii) | to<br> a bona fide third party pursuant to a merger, consolidation, tender offer or other similar<br> transaction pursuant to an offer made to all holders of Class A-1 Common Stock and involving<br> a change of control of the Company (for purposes of this clause (xii), “change of control”<br> shall mean the transfer (whether by merger, consolidation, tender offer or other similar<br> transaction), in one transaction or a series of related transactions, to a person or group<br> of affiliated persons, of shares of capital stock if, after such transfer, such person or<br> group of affiliated persons would hold at least a majority of the outstanding voting securities<br> of the Company (or the surviving entity)) and approved by the Company’s board of directors;<br> provided that in the event that such merger, consolidation, tender offer or other similar<br> transaction is not completed, the undersigned’s Lock-Up Securities shall remain subject<br> to the provisions of this lock-up agreement. |
| --- | --- |
Exhibit C-3
Furthermore, the undersigned may sell shares of Class A-1 Common Stock of the Company purchased by the undersigned on the open market following the Offering if and only if (i) such sales are not required to be reported in any public report or filing with the Commission or otherwise and (ii) the undersigned does not otherwise voluntarily effect any public filing or report regarding such sales.
The undersigned acknowledges and agrees that the underwriters have neither provided any recommendation or investment advice nor solicited any action from the undersigned with respect to the Offering of the Class A-1 Common Stock and the undersigned has consulted their own legal, accounting, financial, regulatory and tax advisors to the extent deemed appropriate. The undersigned further acknowledges and agrees that, although the underwriters may be required or choose to provide certain Regulation Best Interest and Form CRS disclosures to you in connection with the Offering, the underwriters are not making a recommendation to you to enter into this lock-up agreement and nothing set forth in such disclosures is intended to suggest that any underwriter is making such a recommendation.
The undersigned hereby represents and warrants that the undersigned has full power, capacity and authority to enter into this lock-up agreement. The undersigned understands that the Company and the underwriters are relying upon the lock-up agreement in proceeding toward the consummation of the Offering. The undersigned further understands that this lock-up agreement is irrevocable and shall be binding upon the undersigned’s heirs, legal representatives, successors and assigns.
In the event that a Representative withdraws or is terminated from, or declines to participate in, the Offering, all references in this lock-up agreement to the Representatives shall refer to the remaining Representatives. If all Representatives withdraw, are terminated from or decline to participate in the Offering, all references in this lock-up agreement to the Representatives shall refer to the lead left book runner in the Offering (“Replacement Entity”), and in such event, any written consent, waiver or notice given or delivered in connection with this lock-up agreement by or to such Replacement Entity shall be deemed to be sufficient and effective for all purposes under this lock-up agreement.
Notwithstanding anything to the contrary contained herein, this lock-up agreement will automatically terminate and the undersigned will be released from all of their or its obligations hereunder upon the earliest to occur, if any, of the following: (i) prior to the execution of the Underwriting Agreement, the Company advises the Representatives in writing that it has determined not to proceed with the Offering, (ii) the Company files an application with the Commission to withdraw the registration statement relating to the Offering, (iii) the Underwriting Agreement is executed but is terminated (other than with respect to the provisions thereof which survive termination) prior to payment for and delivery of the Class A-1 Common Stock to be sold thereunder or (iv) July 31, 2026 in the event that the Offering shall not have occurred on or before such date (provided that the Company may, by written notice to the undersigned prior to such date, extend such date for a period of up to an additional three months).
Exhibit C-4
This lock-up agreement shall be governed by and construed in accordance with the laws of the State of New York.
This lock-up agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same lock-up agreement. Electronic signatures complying with the New York Electronic Signatures and Records Act (N.Y. State Tech. §§ 301-309), as amended from time to time, or other applicable law will be deemed original signatures for purposes of this lock-up agreement. Transmission by telecopy, electronic mail or other transmission method of an executed counterpart of this lock-up agreement will constitute due and sufficient delivery of such counterpart.
[SIGNATUREPAGE FOLLOWS]
Exhibit C-5
| Very truly yours, |
|---|
| [NAME OF STOCKHOLDER / OFFICER/ DIRECTOR / MANAGER] |
| By: |
| Name: |
| Title: |
| If not signing in an individual capacity: |
| Name of Authorized Signatory (Print) |
| Title of Authorized Signatory (Print) |
| (Indicate capacity of person signing if<br> signing as custodian, trustee, or on behalf of an entity.) |
[SignaturePage to Lock-Up Agreement]
Exhibit10.1
AMENDED AND RESTATED OPERATING AGREEMENTOFJANUS LIVING OP, LLCa Maryland limited liability company
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR
THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION, UNLESS IN THE OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THE PROPOSED SALE, TRANSFER OR OTHER DISPOSITION MAY BE
EFFECTED WITHOUT REGISTRATION UNDER THE SECURITIES ACT AND UNDER
APPLICABLE STATE SECURITIES OR “BLUE SKY” LAWS.
dated as of March 17, 2026
TABLE OF CONTENTS
| ARTICLE 1 DEFINED TERMS | 1 | |
|---|---|---|
| ARTICLE 2 ORGANIZATIONAL MATTERS | 16 | |
| Section 2.1 | Formation | 16 |
| Section 2.2 | Name | 16 |
| Section 2.3 | Principal Office and Resident Agent; Principal Executive<br> Office | 16 |
| Section 2.4 | Power of Attorney | 17 |
| Section 2.5 | Term | 17 |
| Section 2.6 | Membership Interests Are Securities | 18 |
| ARTICLE 3 PURPOSE | 18 | |
| Section 3.1 | Purpose and Business | 18 |
| Section 3.2 | Powers | 18 |
| Section 3.3 | Nature of Relationship of Members | 18 |
| Section 3.4 | Representations and Warranties by the Members | 18 |
| ARTICLE 4 CAPITAL CONTRIBUTIONS | 20 | |
| Section 4.1 | Capital Contributions of the Members | 20 |
| Section 4.2 | Issuances of Additional Membership Interests | 20 |
| Section 4.3 | Additional Funds and Capital Contributions | 21 |
| Section 4.4 | Equity Incentive Plans | 22 |
| Section 4.5 | Dividend Reinvestment Plan, Cash Option Purchase Plan,<br> Equity Incentive Plan or Other Plan | 22 |
| Section 4.6 | No Interest; No Return | 23 |
| Section 4.7 | Conversion or Redemption of Capital Shares | 23 |
| Section 4.8 | Other Contribution Provisions | 23 |
| ARTICLE 5 DISTRIBUTIONS | 23 | |
| Section 5.1 | Requirement and Characterization of Distributions | 23 |
| Section 5.2 | Distributions in Kind | 24 |
| Section 5.3 | Amounts Withheld | 24 |
| Section 5.4 | Distributions upon Liquidation | 24 |
| Section 5.5 | Distributions to Reflect Additional Membership Units | 24 |
| Section 5.6 | Restricted Distributions | 24 |
| ARTICLE 6 ALLOCATIONS | 24 | |
| Section 6.1 | Timing and Amount of Allocations of Net Income and<br> Net Loss | 24 |
| Section 6.2 | General Allocations | 25 |
| Section 6.3 | Additional Allocation Provisions | 26 |
| Section 6.4 | Regulatory Allocation Provisions | 26 |
| Section 6.5 | Tax Allocations | 28 |
| ARTICLE 7 MANAGEMENT AND OPERATIONS<br> OF BUSINESS | 29 | |
| Section 7.1 | Management | 29 |
| Section 7.2 | Articles of Organization | 32 |
| Section 7.3 | Restrictions on Managing Member’s Authority | 32 |
| Section 7.4 | Reimbursement of the Managing Member | 34 |
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| Section 7.5 | Outside Activities of the Managing<br> Member | 35 |
|---|---|---|
| Section 7.6 | Transactions with Affiliates | 35 |
| Section 7.7 | Indemnification | 36 |
| Section 7.8 | Duties and Liability of the Managing Member | 37 |
| Section 7.9 | Title to Company Assets | 39 |
| Section 7.10 | Reliance by Third Parties | 40 |
| ARTICLE 8 RIGHTS AND OBLIGATIONS<br> OF NON-MANAGING MEMBERS | 40 | |
| Section 8.1 | Duties; Limitation of Liability | 40 |
| Section 8.2 | Management of Business | 40 |
| Section 8.3 | Outside Activities of Members | 41 |
| Section 8.4 | Return of Capital | 41 |
| Section 8.5 | Rights of Members Relating to the Company | 41 |
| Section 8.6 | Company Right to Call Common Units | 42 |
| Section 8.7 | Rights as Objecting Member | 42 |
| ARTICLE 9 BOOKS, RECORDS, ACCOUNTING<br> AND REPORTS | 42 | |
| Section 9.1 | Records and Accounting | 42 |
| Section 9.2 | Fiscal Year | 42 |
| Section 9.3 | Reports | 42 |
| Section 9.4 | Waiver of Statutory Inspection Rights | 43 |
| ARTICLE 10 TAX MATTERS | 43 | |
| Section 10.1 | Preparation of Tax Returns | 43 |
| Section 10.2 | Tax Elections | 43 |
| Section 10.3 | Company Representative | 43 |
| Section 10.4 | Withholding | 44 |
| Section 10.5 | Organizational Expenses | 45 |
| Section 10.6 | Membership Provisions | 45 |
| Section 10.7 | Survival | 45 |
| ARTICLE 11 MEMBER TRANSFERS AND WITHDRAWALS | 45 | |
| Section 11.1 | Transfer | 45 |
| Section 11.2 | Transfer of Managing Member’s Membership Interest | 45 |
| Section 11.3 | Members’ Rights to Transfer | 47 |
| Section 11.4 | Admission of Substituted Members | 49 |
| Section 11.5 | Assignees | 50 |
| Section 11.6 | General Provisions | 50 |
| ARTICLE 12 ADMISSION OF MEMBERS | 51 | |
| Section 12.1 | Admission of Successor Managing Member | 51 |
| Section 12.2 | Admission of Additional Members | 51 |
| Section 12.3 | Amendment of Agreement and Articles of Organization | 52 |
| Section 12.4 | Limit on Number of Members | 52 |
| Section 12.5 | Admission | 52 |
| ARTICLE 13 DISSOLUTION, LIQUIDATION<br> AND TERMINATION | 52 | |
| Section 13.1 | Dissolution | 52 |
| Section 13.2 | Winding Up | 52 |
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| Section 13.3 | Rights of Holders | 53 |
|---|---|---|
| Section 13.4 | Notice of Dissolution | 54 |
| Section 13.5 | Articles of Cancellation | 54 |
| Section 13.6 | Reasonable Time for Winding-Up | 54 |
| ARTICLE 14 PROCEDURES FOR ACTIONS<br> AND CONSENTS OF MEMBERS; AMENDMENTS; MEETINGS | 54 | |
| Section 14.1 | Procedures for Actions and Consents of Members | 54 |
| Section 14.2 | Amendments | 54 |
| Section 14.3 | Actions and Consents of the Members | 54 |
| ARTICLE 15 GENERAL PROVISIONS | 55 | |
| Section 15.1 | Redemption Rights of Qualifying Parties | 55 |
| Section 15.2 | Addresses and Notice | 59 |
| Section 15.3 | Titles and Captions | 59 |
| Section 15.4 | Pronouns and Plurals | 59 |
| Section 15.5 | Further Action | 59 |
| Section 15.6 | Binding Effect | 59 |
| Section 15.7 | Waiver | 59 |
| Section 15.8 | Counterparts | 59 |
| Section 15.9 | Applicable Law; Consent to Jurisdiction; Waiver of<br> Jury Trial | 60 |
| Section 15.10 | Entire Agreement | 60 |
| Section 15.11 | Invalidity of Provisions | 60 |
| Section 15.12 | Limitation to Preserve REIT Status | 60 |
| Section 15.13 | No Partition | 61 |
| Section 15.14 | No Third-Party Rights Created Hereby | 61 |
| Section 15.15 | No Rights as Stockholders | 61 |
| ARTICLE 16 LTIP UNITS | 61 | |
| Section 16.1 | Designation | 61 |
| Section 16.2 | Vesting | 61 |
| Section 16.3 | Adjustments | 62 |
| Section 16.4 | Distributions | 63 |
| Section 16.5 | Allocations | 63 |
| Section 16.6 | Transfers | 63 |
| Section 16.7 | Redemption | 64 |
| Section 16.8 | Legend | 64 |
| Section 16.9 | Conversion to Common Units | 64 |
| Section 16.10 | Voting | 66 |
| Section 16.11 | Section 83 Safe Harbor | 66 |
Exhibits List
| Exhibit A | EXAMPLES REGARDING ADJUSTMENT FACTOR | A-1 |
|---|---|---|
| Exhibit B | NOTICE OF REDEMPTION | B-1 |
| Exhibit C | CONVERSION NOTICE | C-1 |
| Exhibit D | FORCED CONVERSION NOTICE | D-1 |
iii
AMENDED AND RESTATED OPERATING AGREEMENTOF JANUS LIVING OP, LLC
THIS AMENDED AND RESTATED OPERATING AGREEMENT OF JANUS LIVING OP, LLC (the “Company”), dated as of March 17, 2026, (the “EffectiveDate”), is made and entered into by and among JANUS LIVING, INC., a Maryland corporation (the “Managing Member”), as Managing Member, and the Persons from time to time party hereto, as members.
WHEREAS, the Company was formed as a limited liability company under the laws of Maryland pursuant to Articles of Organization filed on December 22, 2025 (the “Articles of Organization”) with the State Department of Assessments and Taxation of Maryland (the “SDAT”);
WHEREAS, the original operating agreement was entered into by Healthpeak OP, LLC (the “Original Member”) on December 22, 2025 and amended on January 22, 2026 to reflect a change in the name of the Company and on January 23, 2026 to reflect that the Original Member had transferred its ownership interest in the Company to the Managing Member (as so amended, the “Original Operating Agreement”);
WHEREAS, the Members (as hereinafter defined) of the Company desire to amend and restate the Original Operating Agreement as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1DEFINED TERMS
The following definitions shall be for all purposes, unless otherwise clearly indicated to the contrary, applied to the terms used in this Agreement:
“Act” means the Maryland Limited Liability Company Act (Title 4A of the Corporations and Associations Article of the Annotated Code of Maryland), as it may be amended from time to time and any successor to such statute.
“Actions” has the meaning set forth in Section 7.7 hereof.
“Additional Funds” has the meaning set forth in Section 4.3(a) hereof.
“Additional Member” means a Person who is admitted to the Company as a Member pursuant to the Act and Section 4.2 and Section 12.2 hereof and who is shown as such on the Member Registry.
“Adjusted CapitalAccount” means, with respect to any Member, the balance in such Member’s Capital Account as of the end of the relevant Fiscal Year or other applicable period, after giving effect to the following adjustments:
| (a) | increase such Capital Account by any amounts<br> that such Member is obligated to restore pursuant to this Agreement upon liquidation of such<br> Member’s Membership Interest or that such Person is deemed to be obligated to restore<br> pursuant to Regulations Section 1.704-1(b)(2)(ii)(c) or the penultimate sentence<br> of each of Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5); and |
|---|---|
| (b) | decrease such Capital Account by the items<br> described in Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6). |
| --- | --- |
The foregoing definition of “Adjusted Capital Account” is intended to comply with the provisions of Regulations Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.
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“Adjusted CapitalAccount Deficit” means, with respect to any Member, the deficit balance, if any, in such Member’s Adjusted Capital Account as of the end of the relevant Fiscal Year or other applicable period.
“Adjustment Event” has the meaning set forth in Section 16.3 hereof.
“Adjustment Factor” means 1.0; provided, however, that in the event that:
| (a) | the Managing Member (i) declares<br> or pays a dividend on its outstanding Class A-1 REIT Shares wholly or partly in Class A-1<br> REIT Shares or makes a distribution to all holders of its outstanding Class A-1 REIT<br> Shares wholly or partly in Class A-1 REIT Shares, (ii) splits or subdivides its<br> outstanding Class A-1 REIT Shares or (iii) effects a reverse stock split or otherwise<br> combines its outstanding Class A-1 REIT Shares into a smaller number of Class A-1<br> REIT Shares, the Adjustment Factor shall be adjusted by multiplying the Adjustment Factor<br> previously in effect by a fraction, (A) the numerator of which shall be the number<br> of Class A-1 REIT Shares issued and outstanding on the record date for such dividend,<br> distribution, split, subdivision, reverse split or combination (assuming for such purposes<br> that such dividend, distribution, split, subdivision, reverse split or combination has occurred<br> as of such time) and (B) the denominator of which shall be the actual number of Class A-1<br> REIT Shares (determined without the above assumption) issued and outstanding on the record<br> date for such dividend, distribution, split, subdivision, reverse split or combination; |
|---|---|
| (b) | the Managing Member distributes any rights,<br> options or warrants to all holders of its Class A-1 REIT Shares to subscribe for or<br> to purchase or to otherwise acquire Class A-1 REIT Shares (other than in connection<br> with a dividend reinvestment program adopted by the Managing Member), or other securities<br> or rights convertible into, exchangeable for or exercisable for Class A-1 REIT Shares,<br> at a price per share less than the Value of a Class A-1 REIT Share on the record date<br> for such distribution (each a “Distributed Right”), then, as of the distribution<br> date of such Distributed Rights or, if later, the time such Distributed Rights become exercisable,<br> the Adjustment Factor shall be adjusted by multiplying the Adjustment Factor previously in<br> effect by a fraction (i) the numerator of which shall be the number of Class A-1<br> REIT Shares issued and outstanding on the record date (or, if later, the date such Distributed<br> Rights become exercisable) plus the maximum number of Class A-1 REIT Shares purchasable<br> under such Distributed Rights and (ii) the denominator of which shall be the number<br> of Class A-1 REIT Shares issued and outstanding on the record date (or, if later, the<br> date such Distributed Rights become exercisable) plus a fraction (A) the numerator<br> of which is the maximum number of Class A-1 REIT Shares purchasable under such Distributed<br> Rights times the minimum purchase price per Class A-1 REIT Share under such Distributed<br> Rights and (B) the denominator of which is the Value of a Class A-1 REIT Share<br> as of the record date (or, if later, the date such Distributed Rights become exercisable);<br> provided, however, that, if any such Distributed Rights expire or become no<br> longer exercisable, then the Adjustment Factor shall be adjusted, effective retroactive to<br> the date of distribution of the Distributed Rights (or, if applicable, the later time that<br> the Distributed Rights became exercisable), to reflect a reduced maximum number of Class A-1<br> REIT Shares or any change in the minimum purchase price for the purposes of the above fraction;<br> and |
| --- | --- |
| (c) | the Managing Member shall, by dividend<br> or otherwise, distribute to all holders of its Class A-1 REIT Shares evidences of its<br> indebtedness or assets (including securities of the Managing Member or any other issuer,<br> but excluding any dividend or distribution referred to in subsection (a) or (b) above),<br> which evidences of indebtedness or assets relate to assets not received by the Managing Member<br> pursuant to a pro rata distribution by the Company, then the Adjustment Factor shall be adjusted<br> to equal the amount determined by multiplying the Adjustment Factor in effect immediately<br> prior to the close of business as of the applicable record date by a fraction (i) the<br> numerator of which shall be such Value of a Class A-1 REIT Share as of the record date<br> and (ii) the denominator of which shall be the Value of a Class A-1 REIT Share<br> as of the record date less the then fair market value (as determined by the Managing Member,<br> whose determination shall be conclusive) of the portion of the evidences of indebtedness<br> or assets so distributed applicable to one Class A-1 REIT Share. |
| --- | --- |
2
Notwithstanding the foregoing, no adjustments to the Adjustment Factor will be made for any class or series of Membership Interests to the extent that the Company makes or effects any correlative distribution or payment to all of the Members holding Membership Interests of such class or series, or effects any correlative split or reverse split in respect of Membership Interests of such class or series. Any adjustments to the Adjustment Factor shall become effective immediately after such event, retroactive to the record date, if any, for such event (or, if later, the date Distributed Rights become exercisable). For illustrative purposes, examples of adjustments to the Adjustment Factor are set forth on Exhibit A attached hereto.
“Affiliate” means, with respect to any Person, any Person directly or indirectly controlling or controlled by or under common control with such Person. For the purposes of this definition, “control” when used with respect to any Person means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Agreement” means this Amended and Restated Operating Agreement of Janus Living OP, LLC, as now or hereafter amended, restated, modified, supplemented or replaced (including any Membership Unit Designations).
“Applicable Percentage” has the meaning set forth in Section 15.1(b) hereof.
“Appraisal” means, with respect to any assets, the written opinion of an independent third party experienced in the valuation of similar assets, selected by the Managing Member. Such opinion may be in the form of an opinion by such independent third party that the value for such property or asset as set by the Managing Member is fair, from a financial point of view, to the Company.
“Articles of Organization” has the meaning set forth in the preamble.
“Assignee” means a Person to whom a Membership Interest has been Transferred in a manner permitted under this Agreement, but who has not become a Substituted Member, and who has the rights set forth in Section 11.5 hereof.
“Available Cash” means, with respect to any period for which such calculation is being made,
| (a) | the sum, without duplication, of: |
|---|---|
| (i) | the Company’s Net Income or Net Loss<br> (as the case may be) for such period, |
| --- | --- |
| (ii) | Depreciation and all other noncash charges<br> to the extent deducted in determining Net Income or Net Loss for such period, |
| --- | --- |
| (iii) | the amount of any reduction in reserves<br> of the Company referred to in clause (b)(vi) below (including, without limitation,<br> reductions resulting because the Managing Member determines such amounts are no longer necessary), |
| --- | --- |
| (iv) | the excess, if any, of the net cash proceeds<br> from the sale, exchange, disposition, financing or refinancing of Company property for such<br> period over the gain (or loss, as the case may be) recognized from such sale, exchange, disposition,<br> financing or refinancing during such period (excluding Terminating Capital Transactions),<br> and |
| --- | --- |
| (v) | all other cash received (including amounts<br> previously accrued as Net Income and amounts of deferred income) or any net amounts borrowed<br> by the Company for such period that was not included in determining Net Income or Net Loss<br> for such period; |
| --- | --- |
| (b) | less the sum, without duplication, of: |
| --- | --- |
| (i) | all principal debt payments made during<br> such period by the Company, |
| --- | --- |
3
| (ii) | capital expenditures made by the Company<br> during such period, |
|---|---|
| (iii) | investments in any entity (including loans<br> made thereto) to the extent that such investments are not otherwise described in clause (b)(i) or<br> clause (b)(ii) above, |
| --- | --- |
| (iv) | all other expenditures and payments not<br> deducted in determining Net Income or Net Loss for such period (including amounts paid in<br> respect of expenses previously accrued), |
| --- | --- |
| (v) | any amount included in determining Net Income<br> or Net Loss for such period that was not received by the Company during such period, |
| --- | --- |
| (vi) | the amount of any increase in reserves<br> (including, without limitation, working capital reserves) established during such period<br> that the Managing Member determines are necessary or appropriate in its sole and absolute<br> discretion, |
| --- | --- |
| (vii) | any amount distributed or paid in redemption<br> of any Member Interest or Membership Units, including, without limitation, any Cash Amount<br> paid, and |
| --- | --- |
| (viii) | the amount of any working capital accounts<br> and other cash or similar balances that the Managing Member determines to be necessary or<br> appropriate in its sole and absolute discretion. |
| --- | --- |
Notwithstanding the foregoing, Available Cash shall not include (a) any cash received or reductions in reserves, or take into account any disbursements made, or reserves established, after dissolution and the commencement of the liquidation and winding up of the Company or (b) any Capital Contributions, whenever received or any payments, expenditures or investments made with such Capital Contributions.
“Board of Directors” means the Board of Directors of the Managing Member.
“Business Day” means any day except a Saturday, Sunday or other day on which commercial banks in the City of New York, New York are authorized by law to close.
“Capital Account” means, with respect to any Member, the capital account maintained by the Managing Member for such Member on the Member Registry maintained by the Company in accordance with the following provisions:
| (a) | To each Member’s Capital Account,<br> there shall be added such Member’s Capital Contributions, such Member’s distributive<br> share of Net Income and any items in the nature of income or gain that are specially allocated<br> pursuant to Section 6.3 or 6.4 hereof, and the amount of any Company liabilities assumed<br> by such Member or that are secured by any property distributed to such Member. |
|---|---|
| (b) | From each Member’s Capital Account,<br> there shall be subtracted the amount of cash and the Gross Asset Value of any Company property<br> distributed to such Member pursuant to any provision of this Agreement, such Member’s<br> distributive share of Net Losses and any items in the nature of expenses or losses that are<br> specially allocated pursuant to Section 6.3 or 6.4 hereof, and the amount of any liabilities<br> of such Member assumed by the Company or that are secured by any property contributed by<br> such Member to the Company (except to the extent already reflected in the amount of such<br> Member’s Capital Contribution). |
| --- | --- |
| (c) | In the event any interest in the Company<br> is Transferred in accordance with the terms of this Agreement (which Transfer does not result<br> in the termination of the Company for U.S. federal income tax purposes), the transferee shall<br> succeed to the Capital Account of the transferor to the extent that it relates to the Transferred<br> interest. |
| --- | --- |
4
| (d) | In determining the amount of any liability<br> for purposes of subsections (a) and (b) hereof, there shall be taken into account<br> Code Section 752(c) and any other applicable provisions of the Code and Regulations. |
|---|---|
| (e) | The provisions of this Agreement relating<br> to the maintenance of Capital Accounts are intended to comply with Regulations promulgated<br> under Section 704 of the Code, and shall be interpreted and applied in a manner consistent<br> with such Regulations. If the Managing Member shall determine that it is necessary or appropriate<br> to modify the manner in which the Capital Accounts are maintained in order to comply with<br> such Regulations, the Managing Member may make such modification, provided that such<br> modification is not likely to have any material effect on the amounts distributable to any<br> Member pursuant to Article 13 hereof upon the dissolution of the Company. The Managing<br> Member may, in its sole discretion, (i) make any adjustments that are necessary or<br> appropriate to maintain equality between the Capital Accounts of the Members and the amount<br> of Company capital reflected on the Company’s balance sheet, as computed for book purposes,<br> in accordance with Regulations Section 1.704-1(b)(2)(iv)(q) and (ii) make<br> any modifications that are necessary or appropriate in the event that unanticipated events<br> might otherwise cause this Agreement not to comply with Regulations Section 1.704-1(b) or<br> Section 1.704-2. |
| --- | --- |
“Capital AccountLimitation” means, with respect to a Holder of LTIP Units, (x) the Economic Capital Account Balance of such Holder, to the extent attributable to such Holder’s ownership of LTIP Units, divided by (y) the Common Unit Economic Balance, in each case as determined as of the effective date of conversion.
“Capital Contribution” means, with respect to any Member, the amount of money and the initial Gross Asset Value of any Contributed Property that such Member contributes or is deemed to contribute pursuant to Article 4 hereof.
“Capital Share” means a share of any class or series of stock of the Managing Member now or hereafter authorized other than a Class A-1 REIT Share or a Class A-2 REIT Share.
“Cash Amount” means an amount of cash equal to the product of (a) the Value of a Class A-1 REIT Share and (b) the REIT Shares Amount determined as of the applicable Valuation Date.
“Charity” means an entity described in Section 501(c)(3) of the Code or any trust all the beneficiaries of which are such entities.
“Charter” means the charter of the Managing Member, within the meaning of Section 1-101 of the MGCL.
“Class A-1REIT Share” means a share of Class A-1 common stock of the Managing Member, $0.01 par value per share; provided, however that if (i) the shares of Class A-1 common stock of the Managing Member are at any time not Publicly Traded, and (ii) the shares of common stock (or other comparable equity securities) of an entity that owns, directly or indirectly, all of the common stock of the Managing Member are Publicly Traded, the term “Class A-1 REIT Share” shall refer to the common stock (or other comparable equity securities) of such entity that is Publicly Traded.
“Class A-2REIT Share” means a share of Class A-2 common stock of the Managing Member, $0.01 par value per share.
“Closing Price” has the meaning set forth in the definition of “Value.”
“Code” means the Internal Revenue Code of 1986, as amended and in effect from time to time or any successor statute thereto, as interpreted by the applicable Regulations thereunder. Any reference herein to a specific section or sections of the Code shall be deemed to include a reference to any corresponding provision of future law.
5
“Common Unit” means a fractional, undivided share of the Membership Interests of all Members issued pursuant to Sections 4.1 and 4.2 hereof, but does not include any Preferred Unit, LTIP Unit or any other Membership Unit specified in a Membership Unit Designation as being other than a Common Unit.
“Common Unit EconomicBalance” means (i) the Capital Account balance of the Managing Member, plus the amount of the Managing Member’s share of any Member Minimum Gain or Company Minimum Gain, in either case to the extent attributable to the Managing Member’s ownership of Common Units and computed on a hypothetical basis after taking into account all allocations through the date on which any allocation is made under Section 6.2(d) hereof, divided by (ii) the number of the Managing Member’s Common Units.
“Company” has the meaning set forth in the preamble.
“Company MinimumGain” has the meaning set forth in Regulations Section 1.704-2(b)(2) for the term “partnership minimum gain,” and the amount of Company Minimum Gain, as well as any net increase or decrease in Company Minimum Gain, for a Fiscal Year shall be determined in accordance with the rules of Regulations Section 1.704-2(d).
“Company RecordDate” means the record date established by the Managing Member for the purpose of determining the Members entitled to notice of or to vote at any meeting of Members or to consent to any matter, or to receive any distribution or the allotment of any other rights, or in order to make a determination of Members for any other proper purpose, which, in the case of a distribution of Available Cash pursuant to Section 5.1 hereof, shall, absent a contrary determination by the Managing Member, be the same as the record date established by the Managing Member for a distribution to its stockholders of some or all of its portion of such distribution.
“Company Representative” has the meaning set forth in Section 10.3(a) hereof.
“Consent” means the consent to, approval of, or vote in favor of a proposed action by a Member given in accordance with Article 14 hereof. The terms “Consented” and “Consenting” have correlative meanings.
“Consent of theManaging Member” means the Consent of the Managing Member, which Consent, except as otherwise specifically required by this Agreement, may be obtained prior to or after the taking of any action for which it is required by this Agreement and may be given or withheld by the Managing Member in its sole and absolute discretion.
“Consent of theNon-Managing Members” means the Consent of a Majority in Interest of the Non-Managing Members, which Consent shall be obtained prior to the taking of any action for which it is required by this Agreement and, except as otherwise provided in this Agreement, may be given or withheld by each Non-Managing Member in its sole and absolute discretion.
“Consent of theMembers” means the Consent of the Managing Member and the Consent of a Majority in Interest of the Members, which Consent shall be obtained prior to the taking of any action for which it is required by this Agreement and, except as otherwise provided in this Agreement, may be given or withheld by the Managing Member or the Members in their sole and absolute discretion; provided, however, that, if any such action affects only certain classes or series of Membership Interests, “Consent of the Members” means the Consent of the Managing Member and the Consent of a Majority in Interest of the Members of the affected classes or series of Membership Interests.
“Constituent Person” has the meaning set forth in Section 16.9(g) hereof.
“Contributed Property” means each Property or other asset, in such form as may be permitted by the Act, but excluding cash, contributed or deemed contributed to the Company.
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“Controlled Entity” means, as to any Member, (a) any corporation more than fifty percent (50%) of the outstanding voting stock of which is owned by such Member or such Member’s Family Members or Affiliates, (b) any trust, whether or not revocable, of which such Member or such Member’s Family Members or Affiliates are the sole beneficiaries, (c) any partnership of which such Member or its Affiliates are the managing partners and in which such Member, such Member’s Family Members or Affiliates hold partnership interests representing at least twenty-five percent (25%) of such partnership’s capital and profits and (d) any limited liability company of which such Member or its Affiliates are the managers and in which such Member, such Member’s Family Members or Affiliates hold membership interests representing at least twenty-five percent (25%) of such limited liability company’s capital and profits.
“Conversion Date” has the meaning set forth in Section 16.9(b) hereof.
“Conversion Notice” has the meaning set forth in Section 16.9(b) hereof.
“Conversion Right” has the meaning set forth in Section 16.9(a) hereof.
“Cut-Off Date” means the thirtieth (30th) Business Day after the Managing Member’s receipt of a Notice of Redemption.
“Debt” means, as to any Person, as of any date of determination: (a) all indebtedness of such Person for borrowed money or for the deferred purchase price of property or services; (b) all amounts owed by such Person to banks or other Persons in respect of reimbursement obligations under letters of credit, surety bonds and other similar instruments guaranteeing payment or other performance of obligations by such Person; (c) all indebtedness for borrowed money or for the deferred purchase price of property or services secured by any lien on any property owned by such Person, to the extent attributable to such Person’s interest in such property, even though such Person has not assumed or become liable for the payment thereof; and (d) lease obligations of such Person that, in accordance with generally accepted accounting principles, should be capitalized.
“Depreciation” means, for each Fiscal Year or other applicable period, an amount equal to the federal income tax depreciation, amortization or other cost recovery deduction allowable with respect to an asset for such year or other period, except that if the Gross Asset Value of an asset differs from its adjusted basis for federal income tax purposes at the beginning of such year or other period, Depreciation shall be an amount that bears the same ratio to such beginning Gross Asset Value as the federal income tax depreciation, amortization or other cost recovery deduction for such year or other period bears to such beginning adjusted tax basis; provided, however, that if the federal income tax depreciation, amortization or other cost recovery deduction for such year or other period is zero, Depreciation shall be determined with reference to such beginning Gross Asset Value using any reasonable method selected by the Managing Member.
“Designated Individual” has the meaning set forth in Section 10.3(a) hereof.
“Disregarded Entity” means, with respect to any Person, (i) any “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) of such Person, (ii) any entity treated as a disregarded entity for federal income tax purposes with respect to such Person, or (iii) any grantor trust if the sole owner of the assets of such trust for federal income tax purposes is such Person.
“Distributed Right” has the meaning set forth in the definition of “Adjustment Factor.”
“Economic CapitalAccount Balance” means, with respect to a Holder of LTIP Units, its Capital Account balance, plus the amount of its share of any Member Minimum Gain or Company Minimum Gain, in either case to the extent attributable to its ownership of LTIP Units.
“Effective Date” has the meaning set forth in the preamble.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
“Equity Plan” means any stock, unit or equity purchase plan, restricted stock, unit or equity plan or other similar equity-based compensation plan as of the date hereof or hereafter adopted by the Company or the Managing Member, including the Plan.
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“Exchange Act” means the Securities Exchange Act of 1934, as amended, and any successor statute thereto, and the rules and regulations of the SEC promulgated thereunder.
“Family Members” means, as to a Person that is an individual, such Person’s spouse, ancestors, descendants (whether by blood or by adoption or step-descendants by marriage), brothers and sisters, nieces and nephews and inter vivos or testamentary trusts (whether revocable or irrevocable) of which only such Person and his or her spouse, ancestors, descendants (whether by blood or by adoption or step-descendants by marriage), brothers and sisters and nieces and nephews are beneficiaries.
“Final Adjustment” has the meaning set forth in Section 10.3(b)(ii) hereof.
“Fiscal Year” means the fiscal year of the Company, which shall be the tax year of the Company. The tax year shall be the calendar year unless otherwise required by the Code.
“Forced Conversion” has the meaning set forth in Section 16.9(d) hereof.
“Forced ConversionNotice” has the meaning set forth in Section 16.9(d) hereof.
“Funding Debt” means any Debt incurred by or on behalf of the Managing Member for the purpose of providing funds to the Company.
“Gross Asset Value” means, with respect to any asset, the asset’s adjusted basis for federal income tax purposes, except as follows:
| (a) | The initial Gross Asset Value of any asset<br> contributed by a Member to the Company shall be the gross fair market value of such asset<br> on the date of contribution (subject to any adjustments required with respect to the conversion<br> feature of any securities issued by the Company that are exercisable or convertible into<br> Common Units, as determined by the Managing Member in its sole discretion), as determined<br> by the Managing Member and agreed to by the contributing Person. |
|---|---|
| (b) | The Gross Asset Values of all Company<br> assets immediately prior to the occurrence of any event described in clauses (i) through<br> (v) below shall be adjusted to equal their respective gross fair market values, as<br> determined by the Managing Member using such reasonable method of valuation as it may adopt,<br> as of the following times: |
| --- | --- |
| (i) | the acquisition of an additional interest<br> in the Company (including, without limitation, acquisitions pursuant to Section 4.2<br> hereof or contributions or deemed contributions by the Managing Member pursuant to Section 4.2<br> hereof) by a new or existing Member in exchange for more than a de minimis Capital<br> Contribution; |
| --- | --- |
| (ii) | the distribution by the Company to a Member<br> of more than a de minimis amount of Company property as consideration for an interest<br> in the Company; |
| --- | --- |
| (iii) | the liquidation of the Company within<br> the meaning of Regulations Section 1.704-1(b)(2)(ii)(g); |
| --- | --- |
| (iv) | the grant of an interest in the Company<br> (other than a de minimis interest) as consideration for the provision of services<br> to or for the benefit of the Company by an existing Member acting in a member capacity, or<br> by a new Member acting in a member capacity or in anticipation of becoming a Member of the<br> Company (including the grant of an LTIP Unit); and |
| --- | --- |
| (v) | at such other times as the Managing Member<br> shall reasonably determine necessary or advisable in order to comply with Regulations Sections<br> 1.704-1(b) and 1.704-2. |
| --- | --- |
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| (c) | The Gross Asset Value of any Company asset<br> distributed to a Member shall be the gross fair market value of such asset on the date of<br> distribution, as determined by the distributee and the Managing Member; provided,<br> however, that if the distributee is the Managing Member or if the distributee and<br> the Managing Member cannot agree on such a determination, such gross fair market value shall<br> be determined by Appraisal. |
|---|---|
| (d) | The Gross Asset Values of Company assets<br> shall be increased (or decreased) to reflect any adjustments to the adjusted basis of such<br> assets pursuant to Code Section 734(b) or Code Section 743(b), but only<br> to the extent that such adjustments are taken into account in determining Capital Accounts<br> pursuant to Regulations Section 1.704-1(b)(2)(iv)(m); provided, however,<br> that Gross Asset Values shall not be adjusted pursuant to this subsection (d) to the<br> extent that the Managing Member reasonably determines that an adjustment pursuant to subsection<br> (b) above is necessary or appropriate in connection with a transaction that would otherwise<br> result in an adjustment pursuant to this subsection (d). |
| --- | --- |
| (e) | If the Gross Asset Value of a Company<br> asset has been determined or adjusted pursuant to subsection (a), subsection (b) or<br> subsection (d) above, such Gross Asset Value shall thereafter be adjusted by the Depreciation<br> taken into account with respect to such asset for purposes of computing Net Income and Net<br> Losses. |
| --- | --- |
| (f) | If any unvested LTIP Units are forfeited,<br> as described in Section 16.2(b), upon such forfeiture, the Gross Asset Value of the<br> Company’s assets shall be reduced by the amount of any reduction of such Member’s<br> Capital Account attributable to the forfeiture of such LTIP Units. |
| --- | --- |
“Hart-Scott-RodinoAct” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.
“Healthpeak Entity” means Healthpeak Properties, Inc. and its Affiliates.
“Holder” means either (a) a Member or (b) an Assignee owning a Membership Interest.
“Incapacity” or “Incapacitated” means: (a) as to any Member who is an individual, death, total physical disability or entry by a court of competent jurisdiction adjudicating such Member incompetent to manage his or her person or his or her estate; (b) as to any Member that is a corporation, the filing of a certificate of dissolution, or its equivalent, for the corporation or the revocation of its charter; (c) as to any Member that is a partnership or limited liability company, the dissolution and commencement of winding up of the partnership or limited liability company; (d) as to any Member that is an estate, the distribution by the fiduciary of the estate’s entire interest in the Company; (e) as to any trustee of a trust that is a Member, the termination of the trust (but not the substitution of a new trustee); or (f) as to any Member, the bankruptcy of such Member. For purposes of this definition, bankruptcy of a Member shall be deemed to have occurred when (i) the Member commences a voluntary proceeding seeking liquidation, reorganization or other relief of or against such Member under any bankruptcy, insolvency or other similar law now or hereafter in effect, (ii) the Member is adjudged as bankrupt or insolvent, or a final and non-appealable order for relief under any bankruptcy, insolvency or similar law now or hereafter in effect has been entered against the Member, (iii) the Member executes and delivers a general assignment for the benefit of the Member’s creditors, (iv) the Member files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against the Member in any proceeding of the nature described in clause (ii) above, (v) the Member seeks, consents to or acquiesces in the appointment of a trustee, receiver or Liquidator for the Member or for all or any substantial part of the Member’s properties, (vi) any proceeding seeking liquidation, reorganization or other relief under any bankruptcy, insolvency or other similar law now or hereafter in effect has not been dismissed within one hundred twenty (120) days after the commencement thereof, (vii) the appointment without the Member’s consent or acquiescence of a trustee, receiver or liquidator has not been vacated or stayed within ninety (90) days of such appointment, or (viii) an appointment referred to in clause (vii) above is not vacated within ninety (90) days after the expiration of any such stay.
“Indemnitee” means (a) (i) the Managing Member, the Company Representative or the Designated Individual or (ii) each present or former director of the Managing Member or officer of the Company or the Managing Member and (b) such other Persons (including Affiliates or employees of the Managing Member, the Company or the Manager) as the Company may designate from time to time (whether before or after the event giving rise to potential liability), in its sole and absolute discretion.
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“Initial HoldingPeriod” means, respect to any Common Units held by a Qualifying Party or any of their successors-in-interest, a period ending on the day before the first fourteen-month anniversary of such date that the Qualifying Party first became a Holder of such Common Units; provided, however, that the Managing Member may, in its sole and absolute discretion, by written agreement with a Qualifying Party or any such successor-in-interest, shorten or lengthen the Initial Holding Period applicable to any Common Units, held by a Qualifying Party and/or its successors-in-interest to a period of shorter or longer than fourteen (14) months; provided, further, that with respect to any Common Units held by a Healthpeak Entity, the Initial Holding Period shall end on the date that such Healthpeak Entity acquired such Common Units. For sake of clarity, as applied to a Common Unit that is issued upon conversion of an LTIP Unit pursuant to Section 16.9 (and subject to the proviso in the immediately preceding sentence, if applicable), the Initial Holding Period of such Common Unit shall end on the day before the first fourteen-month anniversary of the date that the underlying LTIP Unit was first issued.
“IRS” means the United States Internal Revenue Service.
“Liquidating Event” has the meaning set forth in Section 13.1 hereof.
“Liquidating Gains” means any net gain realized in connection with the actual or hypothetical sale of all or substantially all of the assets of the Company (including upon the occurrence of any Liquidating Event or Terminating Capital Transaction), including but not limited to net gain realized in connection with an adjustment to the Gross Asset Value of Company assets under the definition of Gross Asset Value in Section 1 of this Agreement.
“Liquidator” has the meaning set forth in Section 13.2(a) hereof.
“LTIP Unit Agreement” means any written agreement(s) between the Company and any recipient of LTIP Units evidencing the terms and conditions of any LTIP Units, including any vesting, forfeiture and other terms and conditions as may apply to such LTIP Units, consistent with the terms hereof and of the Plan (or other applicable Equity Plan governing such LTIP Units).
“LTIP Unit DistributionPayment Date” has the meaning set forth in Section 16.4(c) hereof.
“LTIP Units” means the Membership Units designated as such having the rights, powers, privileges, restrictions, qualifications and limitations set forth herein and in the Plan (or other applicable Equity Plan governing such LTIP Units). LTIP Units can be issued in one or more classes, or one or more series of any such classes bearing such relationship to one another as to allocations, distributions, and other rights as the Managing Member shall determine in its sole and absolute discretion subject to Maryland law and this Agreement.
“Majority in Interestof the Non-Managing Members” means the Non-Managing Members holding in the aggregate Percentage Interests that are greater than fifty percent (50%) of the aggregate Percentage Interests of all Non-Managing Members entitled to Consent to or withhold Consent from a proposed action.
“Majority in Interestof the Members” means Members holding in the aggregate Percentage Interests that are greater than fifty percent (50%) of the aggregate Percentage Interests of all Members entitled to Consent to or withhold Consent from a proposed action.
“Management Agreement” means the Management Agreement among the Managing Member, the Company and the Manager, as the same may be amended , restated, modified, supplemented or replaced from time to time, providing for the Manager to manage the day to day operations of the Managing Member and its Subsidiaries, including the Company.
“Manager” means Healthpeak Investment Management, LLC, the external manager of the Managing Member, or any successor external manager to the Managing Member selected by the Board of Directors.
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“Managing Member” means Janus Living, Inc., a Maryland corporation, and its successors and assigns as a Managing Member of the Company, in each case, that is admitted from time to time to the Company as a Managing Member, and has not ceased to be a Managing Member, pursuant to the Act and this Agreement, in such Person’s capacity as a Managing Member of the Company.
“Managing MemberInterest” means the entire Membership Interest held by a Managing Member hereof, which Membership Interest may be expressed as a number of Common Units, Preferred Units or any other Membership Units.
“Market Price” has the meaning set forth in the definition of “Value.”
“Maryland Courts” has the meaning set forth in Section 15.9(b) hereof.
“Member” means any Person that is admitted from time to time to the Company as a Member, and has not ceased to be a Member pursuant to the Act and this Agreement, of the Company, including any Substituted Member or Additional Member or the Managing Member, in such Person’s capacity as a Member of the Company.
“Member Interest” means a Membership Interest of a Member, other than the Managing Member, in the Company representing a fractional part of the Membership Interests of all Members, other than the Managing Member, and includes any and all benefits to which the holder of such a Membership Interest may be entitled as provided in this Agreement, together with all obligations of such Person to comply with the terms and provisions of this Agreement. A Member Interest may be expressed as a number of Common Units, Preferred Units or other Membership Units.
“Member MinimumGain” means an amount, with respect to each Member Nonrecourse Debt, equal to the Company Minimum Gain that would result if such Member Nonrecourse Debt were treated as a Nonrecourse Liability, determined in accordance with Regulations Section 1.704-2(i)(3).
“Member NonrecourseDebt” has the meaning set forth in Regulations Section 1.704-2(b)(4) applicable to the term “partner nonrecourse debt.”
“Member NonrecourseDeductions” has the meaning set forth in Regulations Section 1.704-2(i)(1) for the term “partner nonrecourse deductions,” and the amount of Member Nonrecourse Deductions with respect to a Member Nonrecourse Debt for a Fiscal Year shall be determined in accordance with the rules of Regulations Section 1.704-2(i)(2) applicable to the term “partner nonrecourse deductions”.
“Member Registry” means the registry maintained by the Managing Member in the books and records of the Company.
“Membership EquivalentUnits” has the meaning set forth in Section 4.7(a) hereof.
“Membership Interest” means an ownership interest in the Company held by either a Member or a Managing Member and includes any and all benefits to which the holder of such a Membership Interest may be entitled as provided in this Agreement, together with all obligations of such Person to comply with the terms and provisions of this Agreement. There may be one or more classes or series of Membership Interests. A Membership Interest may be expressed as a number of Common Units, Preferred Units or other Membership Units; however, notwithstanding that the Managing Member and any Member may have different rights and privileges as specified in this Agreement (including differences in rights and privileges with respect to their Membership Interests), the Membership Interest held by the Managing Member or any other Member and designated as being of a particular class or series shall not be deemed to be a separate class or series of Membership Interest from a Membership Interest having the same designation as to class and series that is held by any other Member solely because such Membership Interest is held by the Managing Member or other Member having different rights and privileges as specified under this Agreement.
“Membership Unit” means a Common Unit, a Preferred Unit, a LTIP Unit or any other unit of the fractional, undivided share of the Membership Interests that the Managing Member has authorized pursuant to Section 4.2 hereof.
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“Membership UnitDesignation” shall have the meaning set forth in Section 4.2(a) hereof.
“MGCL” means the Maryland General Corporation Law.
“Net Income” or “Net Loss” means, for each Fiscal Year or other applicable period, an amount equal to the Company’s taxable income or loss for such year or other applicable period, determined in accordance with Code Section 703(a) (for this purpose, all items of income, gain, loss or deduction required to be stated separately pursuant to Code Section 703(a)(1) shall be included in taxable income or loss), with the following adjustments:
| (a) | Any income of the Company that is exempt<br> from federal income tax and not otherwise taken into account in computing Net Income (or<br> Net Loss) pursuant to this definition of “Net Income” or “Net Loss”<br> shall be added to (or subtracted from, as the case may be) such taxable income (or loss); |
|---|---|
| (b) | Any expenditure of the Company described<br> in Code Section 705(a)(2)(B) or treated as a Code Section 705(a)(2)(B) expenditure<br> pursuant to Regulations Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into<br> account in computing Net Income (or Net Loss) pursuant to this definition of “Net Income”<br> or “Net Loss,” shall be subtracted from (or added to, as the case may be) such<br> taxable income (or loss); |
| --- | --- |
| (c) | In the event the Gross Asset Value of<br> any Company asset is adjusted pursuant to subsection (b) or subsection (c) of<br> the definition of “Gross Asset Value,” the amount of such adjustment shall be<br> taken into account as gain or loss from the disposition of such asset for purposes of computing<br> Net Income or Net Loss; |
| --- | --- |
| (d) | Gain or loss resulting from any disposition<br> of property with respect to which gain or loss is recognized for federal income tax purposes<br> shall be computed by reference to the Gross Asset Value of the property disposed of, notwithstanding<br> that the adjusted tax basis of such property differs from its Gross Asset Value; |
| --- | --- |
| (e) | In lieu of the depreciation, amortization<br> and other cost recovery deductions that would otherwise be taken into account in computing<br> such taxable income or loss, there shall be taken into account Depreciation for such Fiscal<br> Year or other applicable period; |
| --- | --- |
| (f) | To the extent that an adjustment to the<br> adjusted tax basis of any Company asset pursuant to Code Section 734(b) or Code<br> Section 743(b) is required pursuant to Regulations Section 1.704-1(b)(2)(iv)(m)(4) to<br> be taken into account in determining Capital Accounts as a result of a distribution other<br> than in liquidation of a Member’s interest in the Company, the amount of such adjustment<br> shall be treated as an item of gain (if the adjustment increases the basis of the asset)<br> or loss (if the adjustment decreases the basis of the asset) from the disposition of the<br> asset and shall be taken into account for purposes of computing Net Income or Net Loss; and |
| --- | --- |
| (g) | Notwithstanding any other provision of<br> this definition of “Net Income” or “Net Loss,” any item that is specially<br> allocated pursuant to Article 6 hereof shall not be taken into account in computing<br> Net Income or Net Loss. The amounts of the items of Company income, gain, loss or deduction<br> available to be specially allocated pursuant to Section 6.3 or 6.4 hereof shall be<br> determined by applying rules analogous to those set forth in this definition of “Net<br> Income” or “Net Loss.” |
| --- | --- |
“New Securities” means (a) any rights, options, warrants or convertible or exchangeable securities having the right to subscribe for or purchase Class A-1 REIT Shares or Preferred Shares, excluding grants under any Equity Plan, or (b) any Debt issued by the Managing Member or any subsidiary of the Managing Member that provides any of the rights described in clause (a).
“Nonrecourse Deductions” has the meaning set forth in Regulations Section 1.704-2(b)(1), and the amount of Nonrecourse Deductions for a Fiscal Year shall be determined in accordance with the rules of Regulations Section 1.704-2(c).
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“Nonrecourse Liability” has the meaning set forth in Regulations Sections 1.704-2(b)(3) and 1.752-1(a)(2).
“Non-Managing Members” means Members other than (i) the Managing Member or (ii) any Member fifty percent (50%) or more of whose equity is owned, directly or indirectly, by the Managing Member.
“Notice of Redemption” means the Notice of Redemption substantially in the form of Exhibit B attached to this Agreement.
“Optionee” means a Person to whom a stock option is granted under any Equity Plan.
“Original Member” has the meaning set forth in the preamble.
“Original OperatingAgreement” has the meaning set forth in the preamble.
“Ownership Limit” means the restriction or restrictions on the ownership and transfer of stock of the Managing Member imposed under the Charter.
“Percentage Interest” means, with respect to each Member, the fraction, expressed as a percentage, the numerator of which is the aggregate number of Membership Units of all classes and series held by such Member and the denominator of which is the total number of Membership Units of all classes and series held by all Members; provided, however, that, to the extent applicable in context, the term “Percentage Interest” means, with respect to a Member, the fraction, expressed as a percentage, the numerator of which is the aggregate number of Membership Units of a specified class or series (or specified group of classes and/or series) held by such Member and the denominator of which is the total number of Membership Units of such specified class or series (or specified group of classes and/or series) held by all Members.
“Performance LTIPUnits” shall mean LTIP Units that vest in whole or in part based on the attainment of performance-vesting conditions; provided, however, that Performance LTIP Units shall not include any LTIP Units designated or characterized as so-called “retentive LTIP Units” in an applicable LTIP Unit Agreement or otherwise so designated or characterized by the Company.
“Performance UnitSharing Percentage” shall mean 10%.
“Permitted Transfer” has the meaning set forth in Section 11.3(a) hereof.
“Person” means an individual or a corporation, partnership, trust, unincorporated organization, association, limited liability company or other entity.
“Plan” means the Janus Living, Inc. 2026 Equity Plan, as amended and/or restated from time to time.
“Pledge” has the meaning set forth in Section 11.3(a) hereof.
“Preferred DistributionShortfall” means, with respect to any Membership Interests that are entitled to any preference in distributions of Available Cash pursuant to this Agreement, the aggregate amount of the required distributions for such outstanding Membership Interests for all prior distribution periods minus the aggregate amount of the distributions made with respect to such outstanding Membership Interests pursuant to this Agreement.
“Preferred Share” means a share of stock of the Managing Member of any class or series now or hereafter authorized or reclassified that has dividend rights, or rights upon liquidation, winding up and dissolution, that are superior or prior to the Class A-1 REIT Shares.
“Preferred Unit” means a fractional, undivided share of the Membership Interests of a particular class or series that the Managing Member has authorized pursuant to Section 4.2 hereof that has distribution rights, or rights upon liquidation, winding up and dissolution, that are superior or prior to the Common Units.
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“Properties” means any assets and property of the Company such as, but not limited to, interests in real property and personal property, including, without limitation, fee interests, interests in ground leases, easements and rights of way, interests in limited liability companies, joint ventures or partnerships, interests in mortgages, and Debt instruments as the Company may hold from time to time and “Property” means any one such asset or property.
“Proposed Section 83Safe Harbor Regulation” has the meaning set forth in Section 16.11 hereof.
“Publicly Traded” means listed or admitted to trading on the New York Stock Exchange, the NASDAQ Stock Market, or any nationally or internationally recognized stock exchange or any successor to any of the foregoing.
“Qualified Transferee” means an “accredited investor” as defined in Rule 501 promulgated under the Securities Act.
“Qualifying Party” means (a) a Member, (b) an Assignee or (c) a Person, including a lending institution as the pledgee of a Pledge, who is the transferee of a Member Interest in a Permitted Transfer; provided, however, that a Qualifying Party shall not include the Managing Member.
“Redemption” has the meaning set forth in Section 15.1(a) hereof.
“Regulations” means the income tax regulations under the Code, whether such regulations are in proposed, temporary or final form, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).
“Regulatory Allocations” has the meaning set forth in Section 6.4(a)(viii) hereof.
“REIT” means a real estate investment trust qualifying under Code Section 856.
“REIT Common Stock” means, collectively, the Class A-1 REIT Shares and the Class A-2 REIT Shares.
“REIT Member” means (a) the Managing Member or any Affiliate of the Managing Member to the extent such person has in place an election to qualify as a REIT and (b) any Disregarded Entity with respect to any such Person.
“REIT Payment” has the meaning set forth in Section 15.12 hereof.
“REIT Requirements” has the meaning set forth in Section 5.1 hereof.
“REIT Shares Amount” means a number of Class A-1 REIT Shares equal to the product of (a) the number of Tendered Units and (b) the Adjustment Factor; provided, however, that, in the event that the Managing Member issues to all holders of Class A-1 REIT Shares as of a certain record date rights, options, warrants or convertible or exchangeable securities entitling the Managing Member’s stockholders to subscribe for or purchase Class A-1 REIT Shares, or any other securities or property (collectively, the “Rights”), with the record date for such Rights issuance falling within the period starting on the date of the Notice of Redemption and ending on the day immediately preceding the Specified Redemption Date, which Rights will not be distributed before the relevant Specified Redemption Date, then the Class A-1 REIT Shares Amount shall also include such Rights that a holder of that number of Class A-1 REIT Shares would be entitled to receive, expressed, where relevant hereunder, in a number of Class A-1 REIT Shares determined by the Managing Member.
“Related Party” means, with respect to any Person, any other Person to whom ownership of shares of the Managing Member’s stock by the first such Person would be attributed under Code Section 544 (as modified by Code Section 856(h)(1)(B)) or Code Section 318(a) (as modified by Code Section 856(d)(5)).
“Rights” has the meaning set forth in the definition of “REIT Shares Amount.”
“Safe Harbors” has the meaning set forth in Section 11.3(c) hereof.
14
“SDAT” has the meaning set forth in the preamble.
“SEC” means the Securities and Exchange Commission.
“Section 83Safe Harbor” has the meaning set forth in Section 16.11 hereof.
“Securities Act” means the Securities Act of 1933, as amended, and any successor statute thereto, and the rules and regulations of the SEC promulgated thereunder.
“Special Redemption” has the meaning set forth in Section 15.1(a) hereof.
“Specified RedemptionDate” means the thirtieth (30th) Business Day after the receipt by the Managing Member of a Notice of Redemption; provided, however, that no Specified Redemption Date shall occur during the Initial Holding Period with respect to any Common Units (except pursuant to a Special Redemption).
“Subsidiary” means, with respect to any Person, any corporation or other entity of which a majority of (a) the voting power of the voting equity securities or (b) the outstanding equity interests is owned, directly or indirectly, by such Person; provided, however, that, with respect to the Company, “Subsidiary” means solely a partnership or limited liability company (taxed, for federal income tax purposes, as a partnership or as a Disregarded Entity and not as an association or publicly traded partnership taxable as a corporation) of which the Company is a partner or member or any “taxable REIT subsidiary” of the Managing Member in which the Company owns shares of stock, unless the ownership of shares of stock of a corporation or other entity (other than a “taxableREIT subsidiary”) will not jeopardize the Managing Member’s status as a REIT or any Managing Member Affiliate’s status as a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)), in which event the term “Subsidiary” shall include such corporation or other entity.
“Substituted Member” means a Person who is admitted as a Member to the Company pursuant to the Act and (a) Section 11.4 hereof or (b) pursuant to any Membership Unit Designation.
“Surviving Company” has the meaning set forth in Section 11.2(b)(ii) hereof.
“Tax Items” has the meaning set forth in Section 6.5(a) hereof.
“Tendered Units” has the meaning set forth in Section 15.1(a) hereof.
“Tendering Party” has the meaning set forth in Section 15.1(a) hereof.
“Terminating CapitalTransaction” means any sale or other disposition of all or substantially all of the assets of the Company or a related series of transactions that, taken together, result in the sale or other disposition of all or substantially all of the assets of the Company, in any case, not in the ordinary course of the Company’s business.
“Termination Transaction” has the meaning set forth in Section 11.2(b) hereof.
“Transfer” means any sale, assignment, bequest, conveyance, devise, gift (outright or in trust), Pledge, encumbrance, hypothecation, mortgage, exchange, transfer or other disposition or act of alienation, whether voluntary, involuntary or by operation of law; provided, however, that when the term is used in Article 11 hereof, except as otherwise expressly provided, “Transfer” does not include (a) any Redemption of Common Units by the Company, or acquisition of Tendered Units by the Managing Member, pursuant to Section 15.1, (b) any conversion of LTIP Units into Common Units pursuant to Section 16.9 hereof or (c) any conversion, redemption, exchange or acquisition by the Managing Member of Membership Equivalent Units pursuant to Section 4.7 or any Membership Unit Designation. The terms “Transferred” and “Transferring” have correlative meanings.
“Valuation Date” means the date of receipt by the Managing Member of a Notice of Redemption pursuant to Section 15.1 herein, or such other date as specified herein, or, if such date is not a Business Day, the immediately preceding Business Day.
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“Value” means, on any Valuation Date with respect to a Class A-1 REIT Share, the average of the daily Market Prices for ten (10) consecutive trading days immediately preceding the Valuation Date (except that, with respect to any Class A-1 REIT Share underlying any stock option, Value shall mean the term “Fair Market Value” or term of similar import set forth in the Equity Plan under which such stock option was granted). The term “Market Price” on any date means, with respect to any class or series of outstanding Class A-1 REIT Shares, the Closing Price for such Class A-1 REIT Shares on such date. The “Closing Price” on any date means the last sale price for such Class A-1 REIT Shares, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, for such Class A-1 REIT Shares, in either case as reported on the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which such Class A-1 REIT Shares are listed or admitted to trading or, if such Class A-1 REIT Shares are not listed or admitted to trading on any national securities exchange, the last quoted price, or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter market, as reported by the National Association of Securities Dealers, Inc. Automated Quotation System or, if such system is no longer in use, the principal other automated quotation system that may then be in use or, if such Class A-1 REIT Shares are not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in such Class A-1 REIT Shares selected by the Board of Directors or, in the event that no trading price is available for such Class A-1 REIT Shares, the fair market value of the Class A-1 REIT Shares, as determined by the Board of Directors.
In the event that the REIT Shares Amount includes Rights that a holder of Class A-1 REIT Shares would be entitled to receive, then the Value of such Rights shall be determined by the Managing Member on the basis of such quotations and other information as it considers appropriate.
“Vested LTIP Units” has the meaning set forth in Section 16.2(a) hereof.
“Vesting Agreement” has the meaning set forth in Section 16.2(a) hereof.
ARTICLE 2ORGANIZATIONAL MATTERS
Section 2.1 Formation. The Company is a limited liability company organized pursuant to the provisions of the Act and upon the terms and subject to the conditions set forth in this Agreement. Except as expressly provided herein to the contrary, the rights and obligations of the Members and the administration and termination of the Company shall be governed by the Act. The Membership Interest of each Member shall be personal property for all purposes.
Section 2.2 Name. The name of the Company is “Janus Living OP, LLC”. The Company’s business may be conducted under any other name or names deemed advisable by the Managing Member, including the name of the Managing Member or any Affiliate thereof. The Managing Member in its sole and absolute discretion may change the name of the Company at any time and from time to time.
Section 2.3 PrincipalOffice and Resident Agent; Principal Executive Office. The address of the principal office of the Company in the State of Maryland as of the date hereof is c/o The Corporation Trust Incorporated, 2405 York Road, Suite 201, Lutherville Timonium, Maryland 21093-2264, and the name and address of the resident agent for service of process on the Company in the State of Maryland as of the date hereof is The Corporation Trust Incorporated. The Managing Member may, from time to time, designate a new resident agent and/or principal office in the State of Maryland for the Company and, notwithstanding any provision in this Agreement, may amend this Agreement and the Articles of Organization to reflect such designation without the Consent of the Members or any other Person. The principal executive office of the Company shall be c/o Healthpeak Properties, Inc., 4600 South Syracuse Street, Suite 500, Denver, CO 80237, or such other place as the Managing Member may from time to time designate by notice to the Members. The Company may maintain offices at such other place or places within or outside the State of Maryland as the Managing Member may from time to time designate.
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Section 2.4 Powerof Attorney.
(a) Each Member and Assignee hereby irrevocably constitutes and appoints the Managing Member, any Liquidator, and authorized officers and attorneys-in-fact of each, and each of those acting singly, in each case with full power of substitution, as its true and lawful agent and attorney-in-fact, with full power and authority in its name, place and stead to:
(i) execute, swear to, seal, acknowledge, deliver, file and record in the appropriate public offices: (A) all certificates, documents and other instruments (including, without limitation, this Agreement and the Articles of Organization and all amendments, supplements or restatements thereof) that the Managing Member or the Liquidator deems appropriate or necessary to form, qualify or continue the existence or qualification of the Company as a limited liability company in the State of Maryland and in all other jurisdictions in which the Company may conduct business or own property; (B) all instruments that the Managing Member or any Liquidator deems appropriate or necessary to reflect any amendment, change, modification or restatement of this Agreement in accordance with its terms; (C) all conveyances and other instruments or documents that the Managing Member or the Liquidator deems appropriate or necessary to reflect the dissolution and liquidation of the Company pursuant to the terms of this Agreement, including, without limitation, a certificate of cancellation; (D) all conveyances and other instruments or documents that the Managing Member or the Liquidator deems appropriate or necessary to reflect the distribution or exchange of assets of the Company pursuant to the terms of this Agreement; (E) all instruments relating to the admission, acceptance, withdrawal, removal or substitution of any Member pursuant to the terms of this Agreement or the Capital Contribution of any Member; and (F) all certificates, documents and other instruments relating to the determination of the rights, preferences and privileges relating to Membership Interests; and
(ii) execute, swear to, acknowledge and file all ballots, consents, approvals, waivers, certificates and other instruments appropriate or necessary, in the sole and absolute discretion of the Managing Member or any Liquidator, to make, evidence, give, confirm or ratify any vote, consent, approval, agreement or other action that is made or given by the Members hereunder or is consistent with the terms of this Agreement.
Nothing contained herein shall be construed as authorizing the Managing Member or any Liquidator to amend this Agreement except in accordance with Section 14.2 hereof or as may be otherwise expressly provided for in this Agreement.
(b) The foregoing power of attorney is hereby declared to be irrevocable and a special power coupled with an interest, in recognition of the fact that each of the Members and Assignees will be relying upon the power of the Managing Member or the Liquidator to act as contemplated by this Agreement in any filing or other action by it on behalf of the Company, and it shall survive and not be affected by the subsequent Incapacity of any Member or Assignee and the Transfer of all or any portion of such Person’s Membership Interest and shall extend to such Person’s heirs, successors, assigns and personal representatives. Each such Member and Assignee hereby agrees to be bound by any representation made by the Managing Member or the Liquidator, acting in good faith pursuant to such power of attorney; and, to the fullest extent permitted by law, each such Member and Assignee hereby waives any and all defenses that may be available to contest, negate or disaffirm the action of the Managing Member or the Liquidator, taken in good faith under such power of attorney. Each Member and Assignee shall execute and deliver to the Managing Member or the Liquidator, within fifteen (15) days after receipt of the Managing Member’s or the Liquidator’s request therefor, such further designation, powers of attorney and other instruments as the Managing Member or the Liquidator (as the case may be) deems necessary to effectuate this Agreement and the purposes of the Company. Notwithstanding anything else set forth in this Section 2.4(b), no Member shall incur any personal liability for any action of the Managing Member or the Liquidator taken under such power of attorney.
Section 2.5 Term. The term of the Company commenced on December 22, 2025, and shall continue indefinitely unless the Company is dissolved sooner pursuant to the provisions of Article 13 hereof or as otherwise provided by law.
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Section 2.6 MembershipInterests Are Securities. All Membership Interests shall be securities within the meaning of, and governed by, (i) Article 8 of the Maryland Uniform Commercial Code and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction.
ARTICLE 3PURPOSE
Section 3.1 Purposeand Business. The purpose and nature of the Company is to conduct any business, enterprise or activity permitted by or under the Act, whether directly or through one or more partnerships, joint ventures, Subsidiaries, business trusts, limited liability companies or similar arrangements.
Section 3.2 Powers. The Company shall be empowered to do any and all acts and things necessary, appropriate, proper, advisable, incidental to or convenient for the furtherance and accomplishment of the purposes and business described herein and for the protection and benefit of the Company including, without limitation, full power and authority, directly or through its ownership interest in other entities, to enter into, perform and carry out contracts of any kind, to borrow and lend money and to issue evidence of indebtedness, whether or not secured by mortgage, deed of trust, pledge or other lien, to acquire, own, manage, improve and develop real property and lease, sell, transfer and dispose of real property.
Section 3.3 Natureof Relationship of Members. The Company shall be a limited liability company formed pursuant to the Act, and this Agreement shall not be deemed to create a venture or partnership between or among the Members or any other Persons with respect to any activities whatsoever. Except as otherwise provided in this Agreement, no Member shall have any authority to act for, bind, commit or assume any obligation or responsibility on behalf of the Company, its properties or any other Member. No Member, in its capacity as a Member under this Agreement, shall be responsible or liable for any indebtedness or obligation of another Member, nor shall the Company be responsible or liable for any indebtedness or obligation of any Member, incurred either before or after the execution and delivery of this Agreement by such Member, except as to those responsibilities, liabilities, indebtedness or obligations incurred pursuant to, and as limited by, the terms of this Agreement and the Act.
Section 3.4 Representationsand Warranties by the Members.
(a) Each Member that is an individual (including, without limitation, each Additional Member or Substituted Member as a condition to becoming an Additional Member or a Substituted Member) represents and warrants to, and covenants with, each other Member that (i) the consummation of the transactions contemplated by this Agreement to be performed by such Member will not result in a breach or violation of, or a default under, any material agreement by which such Member or any of such Member’s property is bound, or any statute, regulation, order or other law to which such Member is subject, (ii) if five percent (5%) or more (by value) of the Company’s interests are or will be owned by such Member within the meaning of Code Section 7704(d)(3), such Member does not, and for so long as it is a Member will not, own, directly or indirectly, (A) stock of any corporation that is a tenant of (I) the Managing Member or any Disregarded Entity with respect to the Managing Member, (II) the Company or (III) any partnership, venture, trust, limited liability company or other entity of which the Managing Member, any Disregarded Entity with respect to the Managing Member, or the Company is a direct or indirect partner, beneficial owner or member or (B) an interest in the assets or net profits of any non-corporate tenant of (I) the Managing Member or any Disregarded Entity with respect to the Managing Member, (II) the Company or (III) any partnership, venture, trust, limited liability company or other entity of which the Managing Member, any Disregarded Entity with respect to the Managing Member, or the Company is a direct or indirect partner, beneficial owner or member, (iii) such Member has the legal capacity to enter into this Agreement and perform such Member’s obligations hereunder, and (iv) this Agreement is binding upon, and enforceable against, such Member in accordance with its terms. Notwithstanding the foregoing, a Member that is an individual shall not be subject to the ownership restrictions set forth in clause (ii) of the immediately preceding sentence to the extent such Member obtains the written Consent of the Managing Member prior to violating any such restrictions, which consent the Managing Member may give or withhold in its sole and absolute discretion. Each Member that is an individual shall also represent and warrant to the Company that such Member is neither a “foreign person” within the meaning of Code Section 1445(f) nor a foreign partner within the meaning of Code Section 1446(e).
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(b) Each Member that is not an individual (including, without limitation, each Additional Member or Substituted Member as a condition to becoming an Additional Member or a Substituted Member) represents and warrants to, and covenants with, each other Member that (i) all transactions contemplated by this Agreement to be performed by it have been duly authorized by all necessary action, including, without limitation, that of its general partner(s), managing member(s), member(s), committee(s), trustee(s), beneficiaries, directors and/or stockholder(s) (as the case may be) as required, (ii) the consummation of such transactions shall not result in a breach or violation of, or a default under, its partnership or operating agreement, trust agreement, charter or bylaws (as the case may be) any material agreement by which such Member or any of such Member’s properties or any of its partners, members, beneficiaries, trustees or stockholders (as the case may be) is or are bound, or any statute, regulation, order or other law to which such Member or any of its partners, members, trustees, beneficiaries or stockholders (as the case may be) is or are subject, (iii) if five percent (5%) or more (by value) of the Company’s interests are or will be owned by such Member within the meaning of Code Section 7704(d)(3), such Member does not, and for so long as it is a Member will not, own, directly or indirectly, (A) stock of any corporation that is a tenant of (I) the Managing Member or any Disregarded Entity with respect to the Managing Member, (II) the Company or (III) any partnership, venture, trust, limited liability company or other entity of which the Managing Member, any Managing Member, any Disregarded Entity with respect to the Managing Member, or the Company is a direct or indirect partner, beneficial owner or member or (B) an interest in the assets or net profits of any non-corporate tenant of (I) the Managing Member, or any Disregarded Entity with respect to the Managing Member, (II) the Company or (III) any partnership, venture, trust, limited liability company or other entity for which the Managing Member, any Managing Member, any Disregarded Entity with respect to the Managing Member, or the Company is a direct or indirect partner, beneficial owner or member, and (iv) this Agreement is binding upon, and enforceable against, such Member in accordance with its terms. Notwithstanding the foregoing, a Member that is not an individual shall not be subject to the ownership restrictions set forth in clause (iii) of the immediately preceding sentence to the extent such Member obtains the written Consent of the Managing Member prior to violating any such restrictions, which consent the Managing Member may give or withhold in its sole and absolute discretion. Each Member that is not an individual shall also represent and warrant to the Company that such Member is neither a “foreign person” within the meaning of Code Section 1445(f) nor a foreign partner within the meaning of Code Section 1446(e).
(c) Each Member (including, without limitation, each Additional Member or Substituted Member as a condition to becoming an Additional Member or Substituted Member) represents, warrants and agrees that (i) it has acquired and continues to hold its interest in the Company for its own account for investment purposes only and not for the purpose of, or with a view toward, the resale or distribution of all or any part thereof in violation of applicable laws, and not with a view toward selling or otherwise distributing such interest or any part thereof at any particular time or under any predetermined circumstances in violation of applicable laws and (ii) it is a sophisticated investor, able and accustomed to handling sophisticated financial matters for itself, particularly real estate investments, and that it has a sufficiently high net worth that it does not anticipate a need for the funds that it has invested in the Company in what it understands to be a highly speculative and illiquid investment.
(d) The representations and warranties contained in Sections 3.4(a), 3.4(b) and 3.4(c) hereof shall survive the execution and delivery of this Agreement by each Member (and, in the case of an Additional Member or a Substituted Member, the admission of such Additional Member or Substituted Member as a Member in the Company) and the dissolution, liquidation and termination of the Company.
(e) Each Member (including, without limitation, each Additional Member or Substituted Member as a condition to becoming an Additional Member or Substituted Member) hereby acknowledges that no representations as to potential profit, cash flows, funds from operations or yield, if any, in respect of the Company or the Managing Member have been made by any Member or any employee or representative or Affiliate of any Member, and that projections and any other information, including, without limitation, financial and descriptive information and documentation, that may have been in any manner submitted to such Member shall not constitute any representation or warranty of any kind or nature, express or implied.
(f) Notwithstanding the foregoing, the Managing Member may, in its sole and absolute discretion, permit the modification of any of the representations and warranties contained in Sections 3.4(a), 3.4(b) and 3.4(c) above as applicable to any Member (including, without limitation any Additional Member or Substituted Member or any transferee of either), provided that such representations and warranties, as modified, shall be set forth in either (i) a Membership Unit Designation applicable to the Membership Units held by such Member or (ii) a separate writing addressed to the Company and the Managing Member.
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ARTICLE 4CAPITAL CONTRIBUTIONS
Section 4.1 CapitalContributions of the Members. The Members have heretofore made or are deemed to have made Capital Contributions to the Company. Except as provided by law or in Section 4.2, 4.3, or 10.4 hereof, the Members shall have no obligation or, except with the prior Consent of the Managing Member, right to make any additional Capital Contributions or loans to the Company. The Managing Member shall cause to be maintained in the principal business office of the Company, or such other place as may be determined by the Managing Member, the Member Registry of the Company, which shall include, among other things, the name, address, and number, class and series of Membership Units of each Member, and such other information as the Managing Member may deem necessary or desirable. The Member Registry shall not be part of this Agreement. The Managing Member shall from time to time update the Member Registry as necessary to accurately reflect the information therein, including as a result of any sales, exchanges or other Transfers, or any redemptions, issuances or similar events involving Membership Units. Any reference in this Agreement to the Member Registry shall be deemed a reference to the Member Registry as in effect from time to time. Subject to the terms of this Agreement, the Managing Member may take any action authorized hereunder in respect of the Member Registry without any need to obtain the consent or approval of any other Member. No action of any Member shall be required to amend or update the Member Registry. Except as required by law, no Member shall be entitled to receive a copy of the information set forth in the Member Registry relating to any Member other than itself.
Section 4.2 Issuancesof Additional Membership Interests. Subject to the rights of any Holder of any Membership Interest set forth in a Membership Unit Designation:
(a) General. Subject to the terms of this Agreement, including Section 4.2(c), below, the Managing Member is hereby authorized to cause the Company to issue additional Membership Interests, in the form of Membership Units, for any Company purpose, at any time or from time to time, to the Members (including the Managing Member) or to other Persons, and to admit such Persons as Additional Members, for such consideration and on such terms and conditions as shall be established by the Managing Member in its sole and absolute discretion, all without the approval of any Member or any other Person. Without limiting the foregoing, the Managing Member is expressly authorized to cause the Company to issue Membership Units (i) upon the conversion, redemption or exchange of any Debt, Membership Units, or other securities issued by the Company, (ii) for less than fair market value, (iii) for no consideration, (iv) in connection with any merger of any other Person into the Company or any other Subsidiary of the Managing Member or (v) upon the contribution of property or assets to the Company. Any additional Membership Interests may be issued in one or more classes or series, or one or more series of any of such classes, with such designations, preferences, conversion or other rights, voting powers or rights, restrictions, limitations as to distributions, qualifications or terms or conditions of redemption (including, without limitation, terms that may be senior or otherwise entitled to preference over existing Membership Units) as shall be determined by the Managing Member, in its sole and absolute discretion without the approval of any Member or any other Person, and set forth in this Agreement or a written document thereafter attached to and made an exhibit to this Agreement, which exhibit shall be an amendment to this Agreement and shall be incorporated herein by this reference (each, a “Membership Unit Designation”), without the approval of any Member or any other Person. Without limiting the generality of the foregoing, the Managing Member shall have authority to specify: (A) the allocations of items of Company income, gain, loss, deduction and credit to each such class or series of Membership Interests; (B) the right of each such class or series of Membership Interests to share (on a pari passu, junior or preferred basis) in Company distributions; (C) the rights of each such class or series of Membership Interests upon dissolution and liquidation of the Company; (D) the voting rights, if any, of each such class or series of Membership Interests; and (E) the conversion, redemption or exchange rights applicable to each such class or series of Membership Interests. Except as expressly set forth in any Membership Unit Designation, a Membership Interest of any class or series other than a Common Unit shall not entitle the holder thereof to vote on, or consent to, any matter. Upon the issuance of any additional Membership Interest, the Managing Member shall update the Member Registry and the books and records of the Company as appropriate to reflect such issuance.
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(b) Issuancesof LTIP Units. Without limiting the generality of the foregoing, from time to time, the Managing Member is hereby authorized to issue LTIP Units to Persons providing services to or for the benefit of the Company for such consideration or for no consideration as the Managing Member may determine to be appropriate and on such terms and conditions as shall be established by the Managing Member, and admit such Persons as Members. Except to the extent a Capital Contribution is made with respect to an LTIP Unit or as otherwise determined by the Managing Member, each LTIP Unit is intended to qualify as a “profits interest” in the Company within the meaning of the Code, the Regulations, and any published guidance by the IRS with respect thereto. Except as may be provided from time to time by the Managing Member, LTIP Units shall have the terms set forth in Article 16.
(c) Issuancesto the Managing Member. No additional Membership Units shall be issued to the Managing Member unless (i) the additional Membership Units are issued to all Members holding Common Units in proportion to their respective Percentage Interests in Common Units, (ii) (A) the additional Membership Units are (I) Common Units issued in connection with an issuance of Class A-1 REIT Shares, or (II) Membership Equivalent Units (other than Common Units) issued in connection with an issuance of Preferred Shares, New Securities or other interests in the Managing Member (other than Class A-2 REIT Shares or other interests in the Managing Member not entitled to any economic rights with respect thereto), and (B) the Managing Member contributes to the Company the cash proceeds or other consideration received in connection with the issuance of such Class A-1 REIT Shares, Preferred Shares, New Securities or other interests in the Managing Member (other than Class A-2 REIT Shares or other interests in the Managing Member not entitled to any economic rights with respect thereto); (iii) the additional Membership Units are issued upon the conversion, redemption or exchange of Debt, Membership Units or other securities issued by the Company or (iv) the additional Membership Units are issued pursuant to Section 4.3(b), Section 4.3(e), Section 4.4 or Section 4.5.
(d) NoPreemptive Rights. Except as expressly provided in this Agreement or in any Membership Unit Designation, no Person, including, without limitation, any Member or Assignee, shall have any preemptive, preferential, participation or similar right or rights to subscribe for or acquire any Membership Interest.
Section 4.3 AdditionalFunds and Capital Contributions.
(a) General. The Managing Member may, at any time and from time to time, determine that the Company requires additional funds (“AdditionalFunds”) for the acquisition or development of additional Properties, for the redemption of Membership Units or for such other purposes as the Managing Member may determine, in its sole and absolute discretion. Additional Funds may be obtained by the Company, at the election of the Managing Member, in any manner provided in, and in accordance with, the terms of this Section 4.3 without the approval of any Member or any other Person.
(b) AdditionalCapital Contributions. The Managing Member, on behalf of the Company, may obtain any Additional Funds by accepting Capital Contributions from any Members or other Persons. In connection with any such Capital Contribution (of cash or property), the Managing Member is hereby authorized to cause the Company from time to time to issue additional Membership Units (as set forth in Section 4.2 above) in consideration therefor.
(c) Loansby Third Parties. The Managing Member, on behalf of the Company, may obtain any Additional Funds by causing the Company to incur Debt to any Person (other than to the Managing Member (but, for this purpose, disregarding any Debt that may be deemed incurred to the Managing Member by virtue of clause (c) of the definition of Debt)) upon such terms as the Managing Member determines appropriate, including making such Debt convertible, redeemable or exchangeable for Membership Units or Class A-1 REIT Shares; provided, however, that the Company shall not incur any such Debt if any Member would be personally liable for the repayment of such Debt (unless such Member otherwise agrees).
(d) ManagingMember Loans. The Managing Member, on behalf of the Company, may obtain any Additional Funds by causing the Company to incur Debt to the Managing Member if (i) such Debt is, to the extent permitted by law, on substantially the same terms and conditions as to interest rate and repayment schedule (but, for avoidance of doubt, such Debt may have differing conversion, redemption, repurchase and exchange rights) as Funding Debt incurred by the Managing Member, the net proceeds of which are loaned to the Company to provide such Additional Funds, or (ii) such Debt is on terms and conditions no less favorable to the Company than would be available to the Company from any third party; provided, however, that the Company shall not incur any such Debt if any Member would be personally liable for the repayment of such Debt (unless such Member otherwise agrees).
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(e) Issuanceof Securities by the Managing Member. The Managing Member shall not issue any additional Class A-1 REIT Shares, Capital Shares or New Securities unless the Managing Member contributes the cash proceeds or other consideration received from the issuance of such additional Class A-1 REIT Shares, Capital Shares or New Securities (as the case may be) and from the exercise of the rights contained in any such additional Capital Shares or New Securities to the Company in exchange for (x) in the case of an issuance of Class A-1 REIT Shares, Common Units, or (y) in the case of an issuance of Capital Shares or New Securities, Membership Equivalent Units; provided, however, that notwithstanding the foregoing, the Managing Member may issue Class A-1 REIT Shares, Capital Shares or New Securities (i) pursuant to Section 4.4 or Section 15.1(b) hereof, (ii) pursuant to a dividend or distribution (including any stock split) of Class A-1 REIT Shares, Capital Shares or New Securities to holders of Class A-1 REIT Shares, Capital Shares or New Securities (as the case may be), (iii) upon a conversion, redemption or exchange of Capital Shares, (iv) upon a conversion, redemption, exchange or exercise of New Securities, or (v) in connection with an acquisition by the Managing Member of outstanding Membership Units or of any property or other asset to be owned, directly or indirectly, by the Managing Member. In addition, in connection with an issuance of Common Units to a Healthpeak Entity, the Managing Member may issue (on a one-for-one basis) Class A-2 REIT Shares or other interests in the Managing Member not entitled to any economic rights with respect thereto to such Healthpeak Entity or its Affiliate. In the event of any issuance of additional Class A-1 REIT Shares, Capital Shares or New Securities by the Managing Member, and the contribution, if applicable, to the Company, by the Managing Member, of the cash proceeds or other consideration received from such issuance (or property acquired with such proceeds), if any, if the cash proceeds actually received by the Managing Member are less than the gross proceeds of such issuance as a result of any underwriter’s discount or other expenses paid or incurred in connection with such issuance, then the Managing Member shall be deemed to have made a Capital Contribution to the Company in the amount equal to the sum of the cash proceeds of such issuance plus the amount of such underwriter’s discount and other expenses paid by the Managing Member (which discount and expense shall be treated as an expense for the benefit of the Company for purposes of Section 7.4). In the event that the Managing Member issues any additional Class A-1 REIT Shares, Capital Shares or New Securities and contributes the cash proceeds or other consideration received from the issuance thereof to the Company, the Company is expressly authorized to issue a number of Common Units or Membership Equivalent Units to the Managing Member equal to the number of Class A-1 REIT Shares, Capital Shares or New Securities so issued, divided by the Adjustment Factor then in effect, in accordance with this Section 4.3(e) without any further act, approval or vote of any Member or any other Persons.
Section 4.4 EquityIncentive Plans. Nothing in this Agreement shall be construed or applied to preclude or restrain the Managing Member or the Company from adopting, modifying or terminating equity incentive plans for the benefit of employees, directors, consultants or other business associates or service providers of the Managing Member, the Company, the Manager or any of their Affiliates or from issuing Class A-1 REIT Shares, Capital Shares, LTIP Units or New Securities pursuant to any such plans. The Managing Member may implement such plans and any actions taken under such plans (such as the grant or exercise of options to acquire Class A-1 REIT Shares, or the issuance of restricted Class A-1 REIT Shares), whether taken with respect to or by an employee or other service provider of the Managing Member, the Company, the Company’s Subsidiaries, the Manager or the Manager’s Affiliates, in a manner determined by the Managing Member, which may be set forth in plan implementation guidelines that the Managing Member may establish or amend from time to time. The Members acknowledge and agree that, in the event that any such plan is adopted, modified or terminated by the Managing Member, amendments to this Agreement may become necessary or advisable and shall not require approval or Consent of any other Member. The Company is expressly authorized to issue Membership Units (a) in accordance with the terms of any such equity incentive plans or plan implementation guidelines or (b) in an amount equal to the number of Class A-1 REIT Shares, Capital Shares or New Securities issued pursuant to any such equity incentive plans, divided, if applicable, by the Adjustment Factor then in effect, without any further act, approval or vote of any Member or any other Persons.
Section 4.5 DividendReinvestment Plan, Cash Option Purchase Plan, Equity Incentive Plan or Other Plan. Except as may otherwise be provided in this Article 4, all amounts received or deemed received by the Managing Member in respect of any dividend reinvestment plan, cash option purchase plan, equity incentive or other equity or subscription plan or agreement, either (a) shall be utilized by the Managing Member to effect open market purchases of Class A-1 REIT Shares, or (b) if the Managing Member elects instead to issue new Class A-1 REIT Shares with respect to such amounts, shall be contributed by the Managing Member to the Company in exchange for additional Common Units. Upon such contribution, the Company will issue to the Managing Member a number of Common Units equal to the quotient of (i) the new Class A-1 REIT Shares so issued, divided by (ii) the Adjustment Factor then in effect.
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Section 4.6 NoInterest; No Return. No Member shall be entitled to interest on its Capital Contribution or on such Member’s Capital Account. Except as provided herein or by law, no Member shall have any right to demand or receive the return of its Capital Contribution from the Company.
Section 4.7 Conversionor Redemption of Capital Shares.
(a) Conversionof Capital Shares. If, at any time, any of the Capital Shares are converted into Class A-1 REIT Shares, in whole or in part, then a number of Membership Units with preferences, conversion and other rights, restrictions (other than restrictions on transfer), rights and limitations as to dividends and other distributions, qualifications and terms and conditions of redemption that are substantially the same as the preferences, conversion and other rights, restrictions (other than restrictions on transfer), rights and limitations as to distributions, qualifications and terms and conditions of redemption as those of such Capital Shares (“Membership EquivalentUnits”) or, in the case of conversion rights and terms and conditions of redemption, consistent with this Section 4.7 (for the avoidance of doubt, Membership Equivalent Units need not have voting rights, conversion rights, terms and conditions of redemption or restrictions on transfer that are substantially similar to the corresponding Capital Shares) equal to the number of Capital Shares so converted shall automatically be converted into a number of Common Units equal to the quotient of (i) the number of Class A-1 REIT Shares issued upon such conversion divided by (ii) the Adjustment Factor then in effect, and the Member Registry shall be adjusted to reflect such conversion.
(b) Redemptionor Repurchase of Capital Shares or Class A-1 REIT Shares. Except as otherwise provided in Section 4.7(c) or in Section 7.4(c), if, at any time, any Capital Shares are redeemed or otherwise repurchased (whether by exercise of a put or call, automatically or by means of another arrangement) by the Managing Member, the Company shall, immediately prior to such redemption or repurchase of such Capital Shares, redeem an equal number of Membership Equivalent Units held by the Managing Member upon the same terms and for the same price per Membership Equivalent Unit as such Capital Shares are redeemed or repurchased. Except as otherwise provided in Section 4.7(c) or Section 7.4(c), if, at any time, any Class A-1 REIT Shares are redeemed or otherwise repurchased by the Managing Member, the Company shall, immediately prior to such redemption or repurchase of Class A-1 REIT Shares, redeem or repurchase a number of Common Units held by the Managing Member equal to the quotient of (i) the Class A-1 REIT Shares so redeemed or repurchased, divided by (ii) the Adjustment Factor then in effect, such redemption or repurchase to be upon the same terms and for the same price per Common Unit (after giving effect to application of the Adjustment Factor) as such Class A-1 REIT Shares are redeemed or otherwise repurchased. Notwithstanding the foregoing, the provisions of this Section 4.7(b) shall not apply in the event that such repurchase of Class A-1 REIT Shares is paired with a stock split or stock dividend such that after giving effect to such repurchase and subsequent stock split or stock dividend there shall be outstanding an equal number of Class A-1 REIT Shares as were outstanding prior to such repurchase and subsequent stock split or stock dividend.
Section 4.8 OtherContribution Provisions. In the event that any Member is admitted to the Company and is given a Capital Account in exchange for services rendered to the Company, such transaction shall be treated by the Company and the affected Member as if the Company had compensated such partner in cash and such Member had contributed the cash that the Member would have received to the capital of the Company. In addition, with the Consent of the Managing Member, one or more Members may enter into contribution agreements with the Company which have the effect of providing a guarantee of certain obligations of the Company (and/or a wholly-owned Subsidiary of the Company).
ARTICLE 5DISTRIBUTIONS
Section 5.1 Requirementand Characterization of Distributions. Subject to the rights of any Holder of any Membership Interest set forth in any Membership Unit Designation, the Managing Member may cause the Company to distribute such amounts, at such times, as the Managing Member may, in its sole and absolute discretion, determine, to the Holders as of any Company Record Date: (a) first, with respect to any Membership Units that are entitled to any preference in distribution, in accordance with the rights of Holders of such class(es) of Membership Units (and, within each such class, among the Holders of each such class, pro rata in proportion to their respective Percentage Interests of such class on such Company Record Date); and (b) second, with respect to any Membership Units that are not entitled to any preference in distribution, in accordance with the rights of Holders of such class(es) of Membership Units, as applicable (and, within each such class, among the Holders of each such class, pro rata in proportion to their respective Percentage Interests of such class on such Company Record Date). Distributions payable with respect to any Membership Units, other than any Membership Units issued to the Managing Member in connection with the issuance of Class A-1 REIT Shares by the Managing Member, that were not outstanding during the entire quarterly period in respect of which any distribution is made, shall be prorated based on the portion of the period that such Membership Units were outstanding. The Managing Member shall make such reasonable efforts, as determined by it in its sole and absolute discretion and consistent with the Managing Member’s qualification as a REIT, to cause the Company to distribute sufficient amounts to enable the Managing Member, for so long as the Managing Member has determined to qualify as a REIT, to pay stockholder dividends that will (i) satisfy the requirements for qualifying as a REIT under the Code and Regulations (the “REIT Requirements”) and (ii) except to the extent otherwise determined by the Managing Member, eliminate any U.S. federal income or excise tax liability of the Managing Member. Notwithstanding anything in the foregoing to the contrary, a Holder of LTIP Units will only be entitled to distributions with respect to an LTIP Unit as set forth in Article 16 hereof and in making distributions pursuant to this Section 5.1, the Managing Member of the Company shall take into account the provisions of Section 16.4 hereof.
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Section 5.2 Distributionsin Kind. Except as expressly provided herein, no right is given to any Holder to demand and receive property other than cash as provided in this Agreement. The Managing Member may determine, in its sole and absolute discretion, to make a distribution in kind of Company assets to the Holders, and such assets shall be distributed in such a fashion as to ensure that the fair market value is distributed and allocated in accordance with Articles 5, 6 and 13 hereof; provided, however, that the Managing Member shall not make a distribution in kind to any Holder unless the Holder has been given 90 days prior written notice of such distribution.
Section 5.3 AmountsWithheld. All amounts withheld pursuant to the Code or any provisions of any state, local or non-United States tax law and Section 10.4 hereof with respect to any allocation, payment or distribution to any Holder shall be treated as amounts paid or distributed to such Holder pursuant to Section 5.1 hereof for all purposes under this Agreement.
Section 5.4 Distributionsupon Liquidation. Notwithstanding the other provisions of this Article 5, net proceeds from a Terminating Capital Transaction, and any other amounts distributed after the occurrence of a Liquidating Event, shall be distributed to the Holders in accordance with Section 13.2 hereof.
Section 5.5 Distributionsto Reflect Additional Membership Units. In the event that the Company issues additional Membership Units pursuant to the provisions of Article 4 hereof, subject to the rights of any Holder of any Membership Interest set forth in any Membership Unit Designation, the Managing Member is authorized to make such revisions to this Article 5 and to Articles 6, 11 and 12 hereof as it determines are necessary or desirable to reflect the issuance of such additional Membership Units, including, without limitation, making preferential distributions to Holders of certain classes of Membership Units.
Section 5.6 RestrictedDistributions. Notwithstanding any provision to the contrary contained in this Agreement, neither the Company nor the Managing Member, on behalf of the Company, shall make a distribution to any Holder if such distribution would violate the Act or other applicable law.
ARTICLE 6ALLOCATIONS
Section 6.1 Timingand Amount of Allocations of Net Income and Net Loss. Net Income and Net Loss of the Company shall be determined and allocated with respect to each Fiscal Year as of the end of each such year, provided that the Managing Member may in its discretion allocate Net Income and Net Loss for a shorter period as of the end of such period (and, for purposes of this Article 6, references to the term “Fiscal Year” may include such shorter periods). Except as otherwise provided in this Article 6, and subject to Section 11.6(c) hereof, an allocation to a Holder of a share of Net Income or Net Loss shall be treated as an allocation of the same share of each item of income, gain, loss or deduction that is taken into account in computing Net Income or Net Loss.
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Section 6.2 GeneralAllocations. Except as otherwise provided in this Article 6 and Section 11.6(c) hereof, Net Income and Net Loss for any Fiscal Year shall be allocated to each of the Holders as follows:
(a) Net Income.
(i) First, 100% to the Managing Member in an amount equal to the remainder, if any, of the cumulative Net Losses allocated to the Managing Member pursuant to clause (iv) in Section 6.2(b) for all prior Fiscal Years minus the cumulative Net Income allocated to the Managing Member pursuant to this clause (i) for all prior Fiscal Years;
(ii) Second, 100% to each Holder (other than the Managing Member) in an amount equal to the remainder, if any, of the cumulative Net Losses allocated to each such Holder pursuant to clause (iii) in Section 6.2(b) for all prior Fiscal Years minus the cumulative Net Income allocated to such Holder pursuant to this clause (ii) for all prior Fiscal Years;
(iii) Third, 100% to the Managing Member in an amount equal to the remainder, if any, of the cumulative Net Losses allocated to the Managing Member pursuant to clause (ii) in Section 6.2(b) for all prior Fiscal Years minus the cumulative Net Income allocated to the Managing Member pursuant to this clause (iii) for all prior Fiscal Years;
(iv) Fourth, 100% to each Holder in an amount equal to the remainder, if any, of the cumulative Net Losses allocated to each such Holder pursuant to clause (i) in Section 6.2(b) for all prior Fiscal Years minus the cumulative Net Income allocated to such Holder pursuant to this clause (v) for all prior Fiscal Year; and
(v) Fifth, 100% to the Holders of Common Units in accordance with their respective Percentage Interests in the Common Units.
To the extent the allocations of Net Income set forth above in any paragraph of this Section 6.2(a) are not sufficient to entirely satisfy the allocation set forth in such paragraph, such allocation shall be made in proportion to the total amount that would have been allocated pursuant to such paragraph without regard to such shortfall. In making allocations pursuant to this Section 6.2(a) and Section 6.2(b), the Managing Member of the Company shall take into account the provisions of Section 16.5 hereof.
(b) Net Losses.
(i) First, 100% to the Holders of Common Units in accordance with their respective Percentage Interests in the Common Units (to the extent consistent with this clause (i)) until the Adjusted Capital Account (ignoring for this purpose any amounts a Holder is obligated to contribute to the capital of the Company or is deemed obligated to restore pursuant to Regulations Section 1.704-1(b)(2)(ii)(c)(2)) of all such Holders is zero;
(ii) Second, 100% to the Managing Member (ignoring for this purpose any amounts the Managing Member is obligated to contribute to the capital of the Company or is deemed obligated to restore pursuant to Regulations Section 1.704-1(b)(2)(ii)(c)(2)), until the Adjusted Capital Account (as so modified) of the Managing Member is zero;
(iii) Third, 100% to the Holders (other than the Managing Member) to the extent of, and in proportion to, the positive balance (if any) in their Adjusted Capital Accounts; and
(iv) Fourth, 100% to the Managing Member.
(c) Allocationsto Reflect Issuance of Additional Membership Interests. In the event that the Company issues additional Membership Interests to the Managing Member or any Additional Member pursuant to Article 4 hereof, subject to the rights of any Holder of any Membership Interest set forth in any Membership Unit Designation, the Managing Member is authorized to make such revisions to this Article 6 or to Articles 12 and 13 hereof as it determines are necessary or desirable to reflect the terms of the issuance of such additional Membership Interests, including making preferential allocations to certain classes of Membership Interests.
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(d) SpecialAllocations with Respect to LTIP Units. In the event that Liquidating Gains are allocated under this Section 6.2(d), Net Income allocable under Section 6.2(a) and any Net Losses allocable under Section 6.2(b) shall be recomputed without regard to the Liquidating Gains so allocated. After giving effect to the special allocations set forth in Section 6.4(a) hereof, and notwithstanding the provisions of Sections 6.2(a) and 6.2(b) above, any Liquidating Gains shall first be allocated to the Holders of LTIP Units until the Economic Capital Account Balances of such Holders, to the extent attributable to their ownership of LTIP Units, are equal to (i) the Common Unit Economic Balance, multiplied by (ii) the number of their LTIP Units. Any such allocations shall be made among the Holders of LTIP Units in proportion to the amounts required to be allocated to each under this Section 6.2(d). The parties agree that the intent of this Section 6.2(d) is to make the Capital Account balances of the Holders of LTIP Units with respect to their LTIP Units economically equivalent to the Capital Account balance of the Managing Member with respect to its Common Units.
Section 6.3 AdditionalAllocation Provisions. Notwithstanding the foregoing provisions of this Article 6:
(a) SpecialAllocations Upon Liquidation. In the event that the Company disposes of all or substantially all of its assets in a transaction that will lead to a liquidation of the Company pursuant to Article 13 hereof, then: (i) any Liquidating Gains shall first be allocated to each Holder of LTIP Units in accordance with Section 6.2(d); and (ii) any Net Income or Net Loss realized in connection with such transaction and thereafter (recomputed without regard to the Liquidating Gains allocated pursuant to clause (i) above) shall be specially allocated for such Fiscal Year (and to the extent permitted by Section 761(c) of the Code, for the immediately preceding Fiscal Year) among the Holders as required so as to cause liquidating distributions pursuant to Section 13.2(a)(iv) hereof to be made in the same amounts and proportions as would have resulted had such distributions instead been made pursuant to Article 5 hereof. In addition, if there is an adjustment to the Gross Asset Value of the assets of the Company pursuant to paragraph (b) of the definition of Gross Asset Value, allocations of Net Income or Net Loss arising from such adjustment shall be allocated in the same manner as described in the prior sentence.
(b) OffsettingAllocations. Notwithstanding the provisions of Sections 6.1, 6.2(a) and 6.2(b), but subject to Sections 6.3 and 6.4, in the event Net Income or items thereof are being allocated to a Member to offset prior Net Loss or items thereof which have been allocated to such Member (including any allocations of Net Income or items thereof pursuant to Section 6.3(a)), the Managing Member shall attempt to allocate such offsetting Net Income or items thereof which are of the same or similar character (including without limitation Section 704(b) book items versus tax items) to the original allocations with respect to such Member.
Section 6.4 RegulatoryAllocation Provisions. Notwithstanding the foregoing provisions of this Article 6:
(a) Regulatory Allocations.
(i) MinimumGain Chargeback. Except as otherwise provided in Regulations Section 1.704-2(f), notwithstanding the provisions of Section 6.2 hereof, or any other provision of this Article 6, if there is a net decrease in Company Minimum Gain during any Fiscal Year, each Holder shall be specially allocated items of Company income and gain for such year (and, if necessary, subsequent years) in an amount equal to such Holder’s share of the net decrease in Company Minimum Gain, as determined under Regulations Section 1.704-2(g). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Holder pursuant thereto. The items to be allocated shall be determined in accordance with Regulations Sections 1.704-2(f)(6) and 1.704-2(j)(2). This Section 6.4(a)(i) is intended to qualify as a “minimum gain chargeback” within the meaning of Regulations Section 1.704-2(f) and shall be interpreted consistently therewith.
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(ii) MemberMinimum Gain Chargeback. Except as otherwise provided in Regulations Section 1.704-2(i)(4) or in Section 6.4(a)(i) hereof, if there is a net decrease in Member Minimum Gain attributable to a Member Nonrecourse Debt during any Fiscal Year, each Holder who has a share of the Member Minimum Gain attributable to such Member Nonrecourse Debt, determined in accordance with Regulations Section 1.704-2(i)(5), shall be specially allocated items of Company income and gain for such year (and, if necessary, subsequent years) in an amount equal to such Holder’s share of the net decrease in Member Minimum Gain attributable to such Member Nonrecourse Debt, determined in accordance with Regulations Section 1.704-2(i)(4). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Holder pursuant thereto. The items to be so allocated shall be determined in accordance with Regulations Sections 1.704-2(i)(4) and 1.704-2(j)(2). This Section 6.4(a)(ii) is intended to qualify as a “chargeback of partner nonrecourse debt minimum gain” within the meaning of Regulations Section 1.704-2(i) and shall be interpreted consistently therewith.
(iii) NonrecourseDeductions and Member Nonrecourse Deductions. Any Nonrecourse Deductions for any Fiscal Year shall be specially allocated to the Holders in accordance with their respective Percentage Interests with respect to Common Units. Any Member Nonrecourse Deductions for any Fiscal Year shall be specially allocated to the Holder(s) who bears the economic risk of loss with respect to the Member Nonrecourse Debt to which such Member Nonrecourse Deductions are attributable, in accordance with Regulations Section 1.704-2(i).
(iv) QualifiedIncome Offset. If any Holder unexpectedly receives an adjustment, allocation or distribution described in Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of Company income and gain shall be specially allocated, in accordance with Regulations Section 1.704-1(b)(2)(ii)(d), to such Holder in an amount and manner sufficient to eliminate, to the extent required by such Regulations, the Adjusted Capital Account Deficit of such Holder as quickly as possible, provided that an allocation pursuant to this Section 6.4(a)(iv) shall be made if and only to the extent that such Holder would have an Adjusted Capital Account Deficit after all other allocations provided in this Article 6 have been tentatively made as if this Section 6.4(a)(iv) were not in the Agreement. It is intended that this Section 6.4(a)(iv) qualify and be construed as a “qualified income offset” within the meaning of Regulations Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.
(v) GrossIncome Allocation. In the event that any Holder has a deficit Capital Account at the end of any Fiscal Year that is in excess of the sum of (1) the amount (if any) that such Holder is obligated to restore to the Company upon complete liquidation of such Holder’s Membership Interest (including, the Holder’s interest in outstanding Preferred Units and other Membership Units) and (2) the amount that such Holder is deemed to be obligated to restore pursuant to Regulations Section 1.704-1(b)(2)(ii)(c) or the penultimate sentences of Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5), each such Holder shall be specially allocated items of Company income and gain in the amount of such excess to eliminate such deficit as quickly as possible, provided that an allocation pursuant to this Section 6.4(a)(v) shall be made if and only to the extent that such Holder would have a deficit Capital Account in excess of such sum after all other allocations provided in this Article 6 have been tentatively made as if this Section 6.4(a)(v) and Section 6.4(a)(iv) hereof were not in the Agreement.
(vi) Limitationon Allocation of Net Loss. To the extent that any allocation of Net Loss would cause or increase an Adjusted Capital Account Deficit as to any Holder, such allocation of Net Loss shall be reallocated (x) first, among the other Holders of Common Units in accordance with their respective Percentage Interests with respect to Common Units and (y) thereafter, among the Holders of other classes of Membership Units as determined by the Managing Member, subject to the limitations of this Section 6.4(a)(vi).
(vii) Section 754Adjustment. To the extent that an adjustment to the adjusted tax basis of any Membership asset pursuant to Code Section 734(b) or Code Section 743(b) is required, pursuant to Regulations Section 1.704-1(b)(2)(iv)(m)(2) or Regulations Section 1.704-1(b)(2)(iv)(m)(4), to be taken into account in determining Capital Accounts as the result of a distribution to a Holder in complete liquidation of its interest in the Company, the amount of such adjustment to the Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis), and such gain or loss shall be specially allocated to the Holders in accordance with their respective Percentage Interests with respect to Common Units. in the event that Regulations Section 1.704-1(b)(2)(iv)(m)(2) applies, or to the Holder(s) to whom such distribution was made in the event that Regulations Section 1.704-1(b)(2)(iv)(m)(4) applies.
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(viii) Curative Allocations. The allocations set forth in Sections 6.4(a)(i), (ii), (iii), (iv), (v), (vi) and (vii) hereof (the “RegulatoryAllocations”) are intended to comply with certain regulatory requirements, including the requirements of Regulations Sections 1.704-1(b) and 1.704-2. Notwithstanding the provisions of Sections 6.1 and 6.2 hereof, the Regulatory Allocations shall be taken into account in allocating other items of income, gain, loss and deduction among the Holders so that to the extent possible without violating the requirements giving rise to the Regulatory Allocations, the net amount of such allocations of other items and the Regulatory Allocations to each Holder shall be equal to the net amount that would have been allocated to each such Holder if the Regulatory Allocations had not occurred.
(ix) ForfeitureAllocations. Upon a forfeiture of any Unvested LTIP Units by any Member, gross items of income, gain, loss or deduction shall be allocated to such Member if and to the extent required by final Regulations promulgated after the Effective Date to ensure that allocations made with respect to all unvested Membership Interests are recognized under Code Section 704(b).
(x) LTIPUnits. For purposes of the allocations set forth in this Section 6.4, each issued and outstanding LTIP Unit will be treated as one outstanding Common Unit; provided, however, that for purposes of determining Percentage Interests with respect to Common Units, each Performance LTIP Unit that has not satisfied the applicable performance vesting condition will be treated as a fraction of one outstanding Common Unit equal to one Common Unit multiplied by the Performance Unit Sharing Percentage.
(b) Allocation of Excess Nonrecourse Liabilities. For purposes of determining a Holder’s proportional share of the “excess nonrecourse liabilities” of the Company within the meaning of Regulations Section 1.752-3(a)(3), each Holder’s respective interest in Company profits shall be equal to such Holder’s Percentage Interest with respect to Common Units, except as otherwise determined by the Managing Member.
Section 6.5 TaxAllocations.
(a) In General. Except as otherwise provided in this Section 6.5, for income tax purposes under the Code and the Regulations, each Company item of income, gain, loss and deduction (collectively, “Tax Items”) shall be allocated among the Holders in the same manner as its correlative item of “book” income, gain, loss or deduction is allocated pursuant to Sections 6.2 and 6.3 hereof.
(b) Section 704(c) Allocations. Notwithstanding Section 6.5(a) hereof, Tax Items with respect to Property that is contributed to the Company with an initial Gross Asset Value that varies from its basis in the hands of the contributing Member immediately preceding the date of contribution shall be allocated among the Holders for income tax purposes pursuant to Regulations promulgated under Code Section 704(c) so as to take into account such variation. The Company shall account for such variation under any method approved under Code Section 704(c) and the applicable Regulations as chosen by the Managing Member. In the event that the Gross Asset Value of any Company asset is adjusted pursuant to subsection (b) of the definition of “Gross Asset Value” (provided in Article 1 hereof), subsequent allocations of Tax Items with respect to such asset shall take account of the variation, if any, between the adjusted basis of such asset and its Gross Asset Value in the same manner as under Code Section 704(c) and the applicable Regulations and using the method chosen by the Managing Member. Allocations pursuant to this Section 6.5(b) are solely for purposes of federal, state and local income taxes and shall not affect, or in any way be taken into account in computing, any Member’s Capital Account or share of Net Income, Net Loss, or any other items or distributions pursuant to any provision of this Agreement.
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ARTICLE 7MANAGEMENT AND OPERATIONS OF BUSINESS
Section 7.1 Management.
(a) Except as otherwise expressly provided in this Agreement, including in any Membership Unit Designation, all management powers over the business and affairs of the Company are and shall be exclusively vested in the Managing Member, and no Member shall have any right to participate in or exercise control or management power over the business and affairs of the Company. No Managing Member may be removed by the Members, with or without cause, except with the Consent of the Managing Member. In addition to the powers now or hereafter granted a managing member of a limited liability company under applicable law or that are granted to the Managing Member under any other provision of this Agreement, the Managing Member, subject to the other provisions hereof including, without limitation, Section 3.2 and Section 7.3, and the rights of any Holder of any Membership Interest set forth in any Membership Unit Designation, shall have full and exclusive power and authority, without the consent or approval of any Member, to do or authorize all things deemed necessary or desirable by it to conduct the business and affairs of the Company, to exercise or direct the exercise of all of the powers of the Company and a managing member under the Act, the Articles of Organization and this Agreement and to effectuate the purposes of the Company including, without limitation, taking the actions and decisions set forth below. Each of the Members acknowledges and agrees that on the date hereof, the Managing Member, the Company and the Manager have entered into the Management Agreement pursuant to which the Managing Member and the Company have retained the Manager to manage the day to day operations of the Managing Member and its Subsidiaries, including the Company. Each Member further acknowledges and agrees that the Managing Member is authorized to delegate to the Manager the power and authority to conduct the day to day operations of the Company subject to and in accordance with the terms and the Management Agreement, including without limitation, the power and authority of the Managing Member to take such of the following actions and decisions as the Managing Member determines in its sole discretion, to be reasonably necessary or desirable in order to permit the Manager to perform the services under the Management Agreement:
(i) the making of any expenditures, the lending or borrowing of money or selling of assets (including, without limitation, making prepayments on loans and borrowing money to permit the Company to make distributions to the Holders in such amounts as will permit the Managing Member to prevent the imposition of any federal income tax on the Managing Member (including, for this purpose, any excise tax pursuant to Code Section 4981), to make distributions to its stockholders and payments to any taxing authority sufficient to permit the Managing Member to maintain REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust, pledge or other lien or encumbrance on the Company’s assets) and the incurring of any obligations to conduct the activities of the Company;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Company;
(iii) the taking of any and all acts to ensure that the Company will not be classified as a “publicly traded partnership” under Code Section 7704;
(iv) subject to Section 11.2 hereof, the acquisition, sale, transfer, exchange or other disposition of any, all or substantially all of the assets (including the goodwill) of the Company (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Company) or the merger, division, consolidation, reorganization or other combination of the Company with or into another entity;
(v) the mortgage, pledge, encumbrance or hypothecation of any assets of the Company, the assignment of any assets of the Company in trust for creditors or on the promise of the assignee to pay the debts of the Company, the use of the assets of the Company (including, without limitation, cash on hand) for any purpose consistent with the terms of this Agreement and on any terms that the Managing Member sees fit, including, without limitation, the financing of the operations and activities of the Managing Member, the Company or any of the Company’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the Managing Member and/or the Company’s Subsidiaries) and the repayment of obligations of the Company, its Subsidiaries and any other Person in which the Company has an equity investment, and the making of capital contributions to and equity investments in the Company’s Subsidiaries;
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(vi) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any Property;
(vii) the negotiation, execution and performance of any contracts, including leases (including ground leases), easements, management agreements, rights of way and other property-related agreements, conveyances or other instruments to conduct the Company’s operations or implement the Managing Member’s powers under this Agreement, including contracting with contractors, developers, consultants, governmental authorities, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation, as applicable, out of the Company’s assets;
(viii) the distribution of Company cash or other Company assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Company, and the collection and receipt of revenues, rents and income of the Company;
(ix) the selection, appointment and dismissal of employees or officers of the Company (if any) (including, without limitation, employees or officers having titles or offices such as “president,” “vice president,” “secretary” and “treasurer”), and agents, outside attorneys, accountants, consultants and contractors of the Company and the determination of their compensation, powers, authorities and other terms of employment, appointment or hiring;
(x) the maintenance of such insurance (including, without limitation, directors’ and officers’ insurance) for the benefit of the Company and the Members (including, without limitation, the Managing Member);
(xi) the formation of, or acquisition of an interest in, and the contribution of property to, any further limited or general partnership, limited liability companies, joint ventures or other relationships that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, any Subsidiary and any other Person in which the Managing Member has an equity investment from time to time);
(xii) the control of any matters affecting the rights and obligations of the Company, including the settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Company, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the representation of the Company in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense, and the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xiii) the undertaking of any action in connection with the Company’s direct or indirect investment in any Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Company to such Persons);
(xiv) the determination of the fair market value of any Company property distributed in kind using such reasonable method of valuation as the Managing Member may adopt; provided, however, that such methods are otherwise consistent with the requirements of this Agreement;
(xv) the enforcement of any rights against any Member pursuant to representations, warranties, covenants and indemnities relating to such Member’s contribution of property or assets to the Company;
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(xvi) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Company;
(xvii) the exercise of any of the powers of the Managing Member enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Company or any other Person in which the Company has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xviii) an election to acquire Tendered Units in exchange for Class A-1 REIT Shares;
(xix) the exercise of any of the powers of the Managing Member enumerated in this Agreement on behalf of any Person in which the Company does not have an interest, pursuant to contractual or other arrangements with such Person;
(xx) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases, confessions of judgment or any other legal instruments or agreements in writing;
(xxi) the issuance of additional Membership Units in connection with Capital Contributions by Additional Members and additional Capital Contributions by Members pursuant to Article 4 hereof;
(xxii) an election to dissolve the Company pursuant to Section 13.1(b) hereof;
(xxiii) the distribution of cash to acquire Common Units held by a Member in connection with a Redemption under Section 15.1 hereof;
(xxiv) the maintenance of the Member Registry from time to time to reflect accurately at all times the Membership Units, Capital Contributions and Percentage Interests of the Members as the same are adjusted from time to time to reflect redemptions, Capital Contributions, the issuance or transfer of Membership Units, the admission of any Additional Member or any Substituted Member or otherwise, which shall not be deemed an amendment to this Agreement, as long as the matter or event being reflected in the Member Registry otherwise is authorized by this Agreement; and
(xxv) the registration of any class of securities of the Company under the Securities Act or the Exchange Act, and the listing of any debt securities of the Company on any exchange.
(b) Each of the Members agrees that, except as provided in Section 7.3 hereof and subject to the rights of any Holder of any Membership Interest set forth in any Membership Unit Designation, the Managing Member is authorized to execute and deliver any affidavit, agreement, certificate, consent, instrument, notice, power of attorney, waiver or other writing or document in the name and on behalf of the Company and to otherwise exercise any power of the Managing Member under this Agreement and the Act on behalf of the Company, and to delegate such authority to the Manager to the extent the Managing Member, in its sole discretion, deems necessary or desirable in order to permit the Manager to perform the services under the Management Agreement, without any further act, approval or vote of the Members or any other Persons, notwithstanding any other provision of the Act or any applicable law, rule or regulation and, in the absence of any specific corporate action on the part of the Managing Member to the contrary, the taking of any action or the execution of any such document or writing by an officer of the Managing Member or the Manager, in the name and on behalf of the Managing Member, in its capacity as the Managing Member of the Company, shall conclusively evidence (i) the approval thereof by the Managing Member, in its capacity as the Managing Member of the Company, (ii) the Managing Member’s determination that such action, document or writing is necessary, advisable, appropriate, desirable or prudent to conduct the business and affairs of the Company, exercise the powers of the Company under this Agreement and the Act or effectuate the purposes of the Company, or any other determination by the Managing Member required by this Agreement in connection with the taking of such action or execution of such document or writing, and (iii) the authority of such officer with respect thereto.
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(c) At all times from and after the date hereof, the Managing Member may cause (and may authorize the Manager pursuant to the Management Agreement to cause) the Company to obtain and maintain (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder.
(d) At all times from and after the date hereof, the Managing Member may cause (and may authorize the Manager pursuant to the Management Agreement to cause) the Company to establish and maintain working capital and other reserves in such amounts as the Managing Member, in its sole and absolute discretion, determines from time to time.
(e) The determination as to any of the following matters, made by or at the direction of the Managing Member consistent with this Agreement and the Act, shall be final and conclusive and shall be binding upon the Company and every Member: the amount of assets at any time available for distribution or the redemption of Common Units; the amount and timing of any distribution; any determination to redeem Tendered Units; the amount, purpose, time of creation, increase or decrease, alteration or cancellation of any reserves or charges and the propriety thereof (whether or not any obligation or liability for which such reserves or charges shall have been created shall have been paid or discharged); the amount of any Member’s Capital Account, Adjusted Capital Account or Adjusted Capital Account Deficit; the amount of Net Income, Net Loss or Depreciation for any period; any special allocations of Net Income or Net Loss pursuant to Sections 6.2(c), 6.2(d), 6.3, 6.4, 6.5 or 16.5; the Gross Asset Value of any Company asset; the Value of any Class A-1 REIT Share; the timing and amount of any adjustment to the Adjustment Factor; any adjustment to the number of outstanding LTIP Units pursuant to Section 16.3; the timing, number and redemption or repurchase price of the redemption or repurchase of any Membership Units pursuant to Section 4.7(b); any interpretation of the rights, powers and duties of any class or series of Membership Interest; the fair value, or any sale, bid or asked price to be applied in determining the fair value, of any asset owned or held by the Company or of any Membership Interest; the number of authorized or outstanding Membership Units of any class or series; any matter relating to the acquisition, holding and disposition of any assets by the Company; or any other matter relating to the business and affairs of the Company or required or permitted by applicable law, this Agreement or otherwise to be determined by the Managing Member.
Section 7.2 Articlesof Organization. The Managing Member, as the designated “authorized person” within the meaning of the Act, may file amendments to and restatements of the Articles of Organization and do all other things to maintain the Company as a limited liability company under the laws of the State of Maryland and each other state, the District of Columbia or any other jurisdiction, in which the Company may elect to do business or own property. Subject to the terms of Section 8.5(a) hereof, the Managing Member shall not be required, before or after filing, to deliver or mail a copy of the Articles of Organization or any amendment thereto to any Member. The Managing Member shall use all reasonable efforts to cause to be filed such other certificates or documents for the formation, continuation, qualification and operation of a limited liability company in the State of Maryland and any other state, or the District of Columbia or other jurisdiction, in which the Company may elect to do business or own property.
Section 7.3 Restrictionson Managing Member’s Authority.
(a) The Managing Member may not, in its capacity as the Managing Member, for or on behalf of the Company, and may not authorize the Manager pursuant to the Management Agreement to:
(i) take any action that would make it impossible to carry on the ordinary business of the Company, except as otherwise provided in this Agreement or with the Consent of the Non-Managing Members;
(ii) enter into any contract, mortgage, loan or other agreement that, in the absence of any default by the Managing Member of its obligations thereunder, expressly prohibits or restricts (A) the Managing Member or the Company from performing its specific obligations under Section 15.1 hereof in full or (B) a Member from exercising its rights under Section 15.1 hereof to effect a Redemption in full, except, in either case, (x) with the Consent of each Non-Managing Member affected by the prohibition or restriction or (y) in connection with or as a result of a Termination Transaction that, in accordance with Section 11.2(b)(i) and/or (ii), does not require the Consent of the Non-Managing Members.
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(b) Notwithstanding Section 14.2 hereof but subject to the rights of any Holder of any Membership Interest set forth in any Membership Unit Designation, the Managing Member shall have the power, without the Consent of the Members or the consent or approval of any Member or any other Person, to amend this Agreement as may be required to facilitate or implement any of the following purposes:
(i) to add to the obligations of the Managing Member or surrender any right or power granted to the Managing Member or any Affiliate of the Managing Member for the benefit of the Members;
(ii) to reflect the admission, substitution or withdrawal of Members, the Transfer of any Membership Interest, the termination of the Company in accordance with this Agreement, or the adjustment of outstanding LTIP Units as contemplated by Section 16.3, and to update the Member Registry in connection with such admission, substitution, withdrawal, Transfer or adjustment;
(iii) to reflect a change that is of an inconsequential nature or does not adversely affect the Members in any material respect, or to cure any ambiguity, correct or supplement any provision in this Agreement not inconsistent with law or with other provisions of this Agreement, or make other changes with respect to matters arising under this Agreement that will not be inconsistent with law or with the provisions of this Agreement;
(iv) to set forth or amend the rights, powers and duties of the Holders of any additional Membership Interests issued pursuant to Article 4 (including any changes contemplated by Section 5.5 above);
(v) to satisfy any requirements, conditions or guidelines contained in any order, directive, opinion, ruling or regulation of a federal or state court or agency or contained in federal or state law or the listing standards of any securities exchange upon which the Managing Member’s securities are then listed or admitted for trading;
(vi) (A) to reflect such changes as are reasonably necessary or appropriate for the Managing Member to maintain its status as a REIT or to satisfy the REIT Requirements or (B) to reflect the Transfer of all or any part of a Membership Interest among the Managing Member and any Disregarded Entity with respect to the Managing Member;
(vii) to modify either or both of the manner in which items of Net Income or Net Loss are allocated pursuant to Article VI or the manner in which Capital Accounts are adjusted, computed, or maintained (but in each case only to the extent otherwise provided in this Agreement and as may be permitted under applicable law);
(viii) to reflect the issuance of additional Membership Interests in accordance with Section 4.2;
(ix) as contemplated by the last sentence of Section 4.4;
(x) to reflect any other modification to this Agreement as is reasonably necessary for the business or operations of the Company or the Managing Member and which does not violate Section 7.3(d); and
(xi) to effect or facilitate a Termination Transaction that, in accordance with Section 11.2(b)(i) and/or (ii), does not require the Consent of the Non-Managing Members and, if the Company is the Surviving Company in any Termination Transaction, to modify Section 15.1 or any related definitions to provide that the holders of interests in such Surviving Company have rights that are consistent with Section 11.2B(ii).
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(c) Notwithstanding Sections 7.3(b) (other than as set forth below in this Section 7.3(c)) and 14.2 hereof, this Agreement shall not be amended, and no action may be taken by the Managing Member (and the Managing Member shall not authorize the Manager pursuant to the Management Agreement to take any action), without the Consent of each Member adversely affected thereby, if such amendment or action would (i) adversely modify in any material respect the limited liability of a Member, (ii) alter the rights of any Member to receive the distributions to which such Member is entitled pursuant to Article 5 or Section 13.2(a)(iv) hereof, or alter the allocations specified in Article 6 hereof (except, in any case, as permitted pursuant to Sections 4.2, 5.5, 7.3(b) (including clause (xi) thereof) and Article 6 hereof), (iii) alter or modify the Redemption rights, Cash Amount or REIT Shares Amount as set forth in Section 15.1 hereof, or amend or modify any related definitions (except, in any case, as permitted pursuant to clause (xi) of Section 7.3(b) hereof), (iv) alter or modify Section 11.2 hereof (except as permitted pursuant to clause (xi) of Section 7.3(b) hereof), (v) subject to Section 7.8(i), remove the powers and restrictions related to REIT Requirements or permitting the Managing Member to avoid paying tax under Code Sections 857 or 4981 contained in Sections 7.1 and 7.3, or (vi) amend this Section 7.3(c) (except as permitted pursuant to clause (xi) of Section 7.3(b) hereof). Further, no amendment may alter the restrictions on the Managing Member’s authority set forth elsewhere in this Section 7.3 without the Consent specified therein. Any such amendment or action consented to by any Member shall be effective as to that Member, notwithstanding the absence of such consent by any other Member.
Section 7.4 Reimbursementof the Managing Member.
(a) The Managing Member shall not be compensated for its services as Managing Member of the Company except as provided in this Agreement (including the provisions of Articles 5 and 6 hereof regarding distributions, payments and allocations to which the Managing Member may be entitled in its capacity as the Managing Member). The Members acknowledge and agree that the Manager shall be compensated for its services pursuant to the Management Agreement.
(b) Subject to Sections 7.4(d) and 15.12 hereof, the Company shall be responsible for and shall pay all expenses relating to the Company’s and the Managing Member’s organization and the ownership of each of their assets and operations. The Managing Member is hereby authorized to pay compensation for accounting, administrative, legal, technical, management and other services rendered to the Company. The Company shall be liable for, and shall reimburse the Managing Member, on a monthly basis, or such other basis as the Managing Member may determine in its sole and absolute discretion, for all sums expended in connection with the Company’s business, including, without limitation, (i) expenses relating to the ownership of interests in and management and operation of, or for the benefit of, the Company, (ii) compensation of officers and employees, including, without limitation, payments under future compensation plans, of the Managing Member, or the Company that may provide for stock units, or phantom stock, pursuant to which employees of the Managing Member, the Company, the Manager or its Affiliates will receive payments based upon dividends on or the value of Class A-1 REIT Shares, (iii) director fees and expenses of the Managing Member or its Affiliates, (iv) any expenses (other than the purchase price) incurred by the Managing Member in connection with the redemption or other repurchase of its Capital Shares or the purchase by the Managing Member of any outstanding Membership Units, (v) all costs and expenses of the Managing Member in connection with the preparation of reports and other distributions to its stockholders and any regulatory or governmental authorities or agencies and, as applicable, all costs and expenses of the Managing Member as a reporting company (including, without limitation, costs of filings with the SEC), (vi) all costs and expenses of the Managing Member in connection with its operation as a REIT, and (vii) all costs and expenses of the Managing Member in connection with the offering, sale, syndication, private placement or public offering of stock, bonds, securities or other interests and financing or refinancing of any type related to the Company or its assets or activities; provided, however, that the amount of any reimbursement shall be reduced by any interest earned by the Managing Member with respect to bank accounts or other instruments or accounts held by it on behalf of the Company as permitted pursuant to Section 7.5 hereof. The Members acknowledge that all such expenses of the Managing Member are deemed to be for the benefit of the Company. Such reimbursements shall be in addition to any reimbursement of the Managing Member as a result of indemnification pursuant to Section 7.7 hereof.
(c) If the Managing Member shall elect to purchase from its stockholders Capital Shares for the purpose of delivering such Capital Shares to satisfy an obligation under any dividend reinvestment program adopted by the Managing Member, any employee stock purchase plan adopted by the Managing Member or any similar obligation or arrangement undertaken by the Managing Member in the future, in lieu of the treatment specified in Section 4.7(b), the purchase price paid by the Managing Member for such Capital Shares shall be considered expenses of the Company and shall be advanced to the Managing Member or reimbursed to the Managing Member, subject to the condition that: (i) if such Class A-1 REIT Shares subsequently are sold by the Managing Member, the Managing Member shall pay or cause to be paid to the Company any proceeds received by the Managing Member for such Class A-1 REIT Shares (which sales proceeds shall include the amount of dividends reinvested under any dividend reinvestment or similar program; provided, that a transfer of Class A-1 REIT Shares for Membership Units pursuant to Section 15.1 would not be considered a sale for such purposes); and (ii) if such Class A-1 REIT Shares are not retransferred by the Managing Member within 30 days after the purchase thereof, or the Managing Member otherwise determines not to retransfer such Class A-1 REIT Shares, the Managing Member shall cause the Company to redeem a number of Membership Units determined in accordance with Section 4.7(b), as adjusted, (x) pursuant to Section 7.5 (in the event the Managing Member acquires material assets, other than on behalf of the Company) and (y) for stock dividends and distributions, stock splits and subdivisions, reverse stock splits and combinations, distributions of rights, warrants or options, and distributions of evidences of indebtedness or assets relating to assets not received by the Managing Member pursuant to a pro rata distribution by the Company (in which case such advancement or reimbursement of expenses shall be treated as having been made as a distribution in redemption of such number of Membership Units held by the Managing Member).
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(d) To the extent practicable, Company expenses shall be billed directly to and paid by the Company and, subject to Section 15.12 hereof, if and to the extent any reimbursements to the Managing Member or any of its Affiliates by the Company pursuant to this Section 7.4 constitute gross income to such Person (as opposed to the repayment of advances made by such Person on behalf of the Company), such amounts shall be treated as “guaranteed payments” within the meaning of Code Section 707(c) and shall not be treated as distributions for purposes of computing the Members’ Capital Accounts.
Section 7.5 OutsideActivities of the Managing Member. Without the Consent of the Members, not to be unreasonably withheld, conditioned or delayed, the Managing Member shall not directly or indirectly enter into or conduct any business, other than in connection with, (a) the ownership, acquisition and disposition of Membership Interests, (b) the management of the business and affairs of the Company (including the retention of the Manager), (c) the operation of the Managing Member as a reporting company with a class (or classes) of securities registered under the Exchange Act, (d) its operations as a REIT, (e) the offering, sale, syndication, private placement or public offering of stock, bonds, securities or other interests, (f) financing or refinancing of any type related to the Company or its assets or activities, and (g) such activities as are incidental thereto; provided, however, that, except as otherwise provided herein, any funds raised by the Managing Member pursuant to the preceding clauses (e) and (f) shall be made available to the Company, whether as Capital Contributions, loans or otherwise, as appropriate, and, provided, further, that the Managing Member may, in its sole and absolute discretion, from time to time hold or acquire assets in its own name or otherwise other than through the Company so long as the Managing Member takes commercially reasonable measures to ensure that the economic benefits and burdens of such Property are otherwise vested in the Company, through assignment, mortgage loan or otherwise or, if it is not commercially reasonable to vest such economic interests in the Company, the Members shall negotiate in good faith to amend this Agreement, including, without limitation, the definition of “Adjustment Factor,” to reflect such activities and the direct ownership of assets by the Managing Member. Nothing contained herein shall be deemed to prohibit the Managing Member from executing guarantees of Company debt. The Managing Member and all Disregarded Entities with respect to the Managing Member, taken as a group, shall not own any assets or take title to assets (other than temporarily in connection with an acquisition prior to contributing such assets to the Company) other than (i) interests in Disregarded Entities with respect to the Managing Member, (ii) Membership Interests as the Managing Member, (iii) a minority interest in any Subsidiary of the Company that the Managing Member holds to maintain such Subsidiary’s status as a partnership for federal income tax purposes or otherwise, and (iv) such cash and cash equivalents, bank accounts or similar instruments or accounts as such group deems reasonably necessary, taking into account Section 7.1(d) hereof and the requirements necessary for the Managing Member to qualify as a REIT and for the Managing Member to carry out its responsibilities contemplated under this Agreement and the Charter. Any Membership Interests acquired by the Managing Member, whether pursuant to the exercise by a Member of its right to Redemption, or otherwise, shall be automatically converted into a Managing Member Interest comprised of an identical number of Membership Units with the same terms as the class or series so acquired. Any Affiliates of the Managing Member may acquire Member Interests and shall, except as expressly provided in this Agreement, be entitled to exercise all rights of a Member relating to such Member Interests.
Section 7.6 Transactionswith Affiliates.
(a) The Company may lend or contribute funds to, and borrow funds from, Persons in which the Company has an equity investment, and such Persons may borrow funds from, and lend or contribute funds to, the Company, on terms and conditions established in the sole and absolute discretion of the Managing Member. The foregoing authority shall not create any right or benefit in favor of any Person.
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(b) Except as provided in Section 7.5 hereof, the Company may transfer assets to joint ventures, limited liability companies, partnerships, corporations, business trusts or other business entities in which it is or thereby becomes a participant upon such terms and subject to such conditions consistent with this Agreement and applicable law.
(c) The Managing Member and its Affiliates may sell, transfer or convey any property to, or purchase any property from, the Company, directly or indirectly, on terms and conditions established by the Managing Member in its sole and absolute discretion.
(d) The Managing Member, in its sole and absolute discretion and without the approval of the Members or any of them or any other Persons, may propose and adopt (on behalf of the Company or its Subsidiaries) employee benefit plans (including without limitation plans that contemplate the issuance of LTIP Units) funded by the Company or its Subsidiaries for the benefit of employees of the Managing Member, the Company, Subsidiaries of the Company, the Manager or any Affiliate of any of them in respect of services performed, directly or indirectly, for the benefit of the Managing Member, the Company or any of the Company’s Subsidiaries.
Section 7.7 Indemnification.
(a) To the fullest extent that a Maryland corporation may indemnify and advance expenses to directors and officers of a Maryland corporation under the laws of the State of Maryland, the Company shall indemnify, and shall pay or reimburse reasonable expenses in advance of final disposition of a proceeding to, any Indemnitee who is made or threatened to be made a party to, or witness in, a proceeding by reason of his or her service as an Indemnitee. The rights to indemnification and advance of expenses provided by this Section 7.7 shall vest immediately upon any Indemnitee becoming an Indemnitee.
Without limitation, the foregoing indemnity shall extend to any liability of any Indemnitee, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including, without limitation, any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the Managing Member is hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this Section 7.7 in favor of any Indemnitee having or potentially having liability for any such indebtedness. It is the intention of this Section 7.7(a) that the Company indemnify each Indemnitee to the fullest extent permitted by law and this Agreement. The termination of any proceeding by judgment, order or settlement does not create a presumption that the Indemnitee did not meet the requisite standard of conduct set forth in this Section 7.7(a). The termination of any proceeding by conviction of an Indemnitee or upon a plea of nolo contendere or its equivalent by an Indemnitee, or an entry of an order of probation against an Indemnitee prior to judgment, does not create a presumption that such Indemnitee acted in a manner contrary to that specified in this Section 7.7(a) with respect to the subject matter of such proceeding. Any indemnification pursuant to this Section 7.7 shall be made only out of the assets of the Company, and neither the Managing Member nor any other Holder shall have any obligation to contribute to the capital of the Company or otherwise provide funds to enable the Company to fund its obligations under this Section 7.7.
(b) The Company’s obligation to indemnify or advance expenses hereunder to any Indemnitee shall be reduced by any amount Indemnitee has actually received as indemnification or advancement of expenses from any other Person, including the Managing Member or from any insurance policy or policies.
(c) The indemnification provided by this Section 7.7 shall be in addition to any other rights to which an Indemnitee or any other Person may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee unless otherwise provided in a written agreement with such Indemnitee or in the writing pursuant to which such Indemnitee is indemnified.
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(d) The Company may, but shall not be obligated to, purchase and maintain insurance, on behalf of any of the Indemnitees and such other Persons as the Managing Member shall determine, against any liability that may be asserted against or expenses that may be incurred by such Person in connection with the Company’s activities, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) Any liabilities which an Indemnitee incurs as a result of acting on behalf of the Company or the Managing Member (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the IRS, penalties assessed by the U.S. Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities or judgments or fines under this Section 7.7, unless such liabilities arise as a result of (i) an act or omission of such Indemnitee that was material to the matter giving rise to the Action and either was committed in bad faith or was the result of active and deliberate dishonesty; (ii) in the case of any criminal proceeding, an act or omission that such Indemnitee had reasonable cause to believe was unlawful, or (iii) any transaction in which such Indemnitee actually received an improper personal benefit in violation or breach of any provision of this Agreement.
(f) In no event may an Indemnitee subject any of the Holders to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 7.7 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 7.7 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons. Any amendment, modification or repeal of this Section 7.7 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the Company’s liability to any Indemnitee under this Section 7.7 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(i) It is the intent of the parties that any amounts paid by the Company to the Managing Member pursuant to this Section 7.7 shall be treated as “guaranteed payments” within the meaning of Code Section 707(c) and shall not be treated as distributions for purposes of computing the Members’ Capital Accounts.
Section 7.8 Dutiesand Liability of the Managing Member.
(a) To the maximum extent permitted under the Act, the only duties that the Managing Member owes to the Company, any Member or any other Person (including any creditor of any Member or assignee of any Membership Interest), fiduciary or otherwise, are to perform its contractual obligations as expressly set forth in this Agreement consistently with the implied contractual covenant of good faith and fair dealing. To the fullest extent permitted by law, the Managing Member, in its capacity as such, shall have no other duty, fiduciary or otherwise, to the Company, any Member or any other Person (including any creditor of any Member or any assignee of Membership Interest). The provisions of this Agreement other than this Section 7.8 shall create contractual obligations of the Managing Member only, and no such provision shall be interpreted to expand the fiduciary duties of the Managing Member under the Act as modified by this Agreement. To the fullest extent permitted by law, the provisions of this Section 7.8, to the extent they restrict or modify the duties and liabilities of the Managing Member or any other Person under the Act or otherwise existing at law or in equity, are agreed by the Members to replace such other duties and liabilities. The Managing Member is entitled to a presumption that any act or failure to act on the part of the Managing Member, and any decision or determination made by the Managing Member, is presumed to satisfy the duties of the Managing Member, whether under this Agreement or otherwise existing at law or in equity, and no act or failure to act by the Managing Member, or decision or determination made by the Managing Member (whether with respect to a change of control of the Company or otherwise) shall be subject to any duty, standard of conduct, burden of proof or scrutiny, whether at law or in equity, other than as set forth in this Section 7.8.
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(b) The Members agree that (i) the Managing Member is acting for the benefit of the Company, the Members and the Managing Member’s stockholders collectively and (ii) notwithstanding any duty otherwise existing at law or equity, in the event of a conflict between the interests of the Company or any Member, on the one hand, and the separate interests of the Managing Member or its stockholders, on the other hand, the Managing Member may give priority to the separate interests of the Managing Member or the stockholders of the Managing Member (including, without limitation, with respect to tax consequences to Members, Assignees or the Managing Member’s stockholders), and, in the event of such a conflict, any action or failure to act on the part of the Managing Member (or the Managing Member’s directors, officers or agents) that gives priority to the separate interests of the Managing Member or its stockholders that does not result in a violation of the contract rights of the Members under this Agreement does not violate any other duty owed by the Managing Member to the Company and/or the Members.
(c) Subject to its obligations and duties as Managing Member set forth in this Agreement and applicable law, the Managing Member may exercise any of the powers granted to it by this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through its employees or agents, including the Manager pursuant to the Management Agreement. The Managing Member shall not be responsible to the Company or any Member for any misconduct or negligence on the part of any such employee or agent appointed by it in good faith.
(d) Any obligation or liability whatsoever of the Managing Member which may arise at any time under this Agreement or any other instrument, transaction, or undertaking contemplated hereby shall be satisfied, if at all, out of the assets of the Managing Member or the Company only. No such obligation or liability shall be personally binding upon, nor shall resort for the enforcement thereof be had to, any of the Managing Member’s directors, stockholders, officers, employees, or agents, regardless of whether such obligation or liability is in the nature of contract, tort or otherwise. Notwithstanding anything to the contrary set forth in this Agreement, and to the fullyest extent permitted by law, none of the directors or officers of the Managing Member shall be directly liable or accountable in damages or otherwise to the Company, any Members, or any Assignees for losses sustained, liabilities incurred or benefits not derived as a result of errors in judgment or mistakes of fact or law or of any act or omission or by reason of their service as such. This Agreement is executed by the officers of the Managing Member solely as officers of the same and not in their own individual capacities.
(e) Notwithstanding anything herein to the contrary and to the fullest extent permitted by law, except for liability for fraud, willful misconduct or gross negligence on the part of the Managing Member, or pursuant to any express indemnities given to the Company by the Managing Member pursuant to any other written instrument, the Managing Member shall not have any personal liability whatsoever, to the Company or to the other Members, for any action or omission taken in its capacity as the Managing Member or for the debts or liabilities of the Company or the Company’s obligations hereunder, except pursuant to Section 15.1 or as expressly required by the Act. Without limitation of the foregoing, and except for liability for fraud, willful misconduct or gross negligence, or pursuant to Section 15.1 or any such express indemnity, no property or assets of the Managing Member, other than its interest in the Company, shall be subject to levy, execution or other enforcement procedures for the satisfaction of any judgment (or other judicial process) in favor of any other Member(s) and arising out of, or in connection with, this Agreement.
(f) To the extent that, under applicable law, the Managing Member has duties (including fiduciary duties) and liabilities relating thereto to the Company or the Members, to the fullest extent permitted by law, the Managing Member shall not be liable to the Company or to any other Member for its good faith reliance on the provisions of this Agreement. In accordance with and subject to Section 4A-102 of the Act, the provisions of this Agreement, to the extent that they restrict or modify the duties and liabilities of the Managing Member under the Act or otherwise existing under applicable law, are agreed by the Members to operate as an express limitation of any such duties and liabilities and to replace such other duties and liabilities of such Managing Member and further acknowledged and agreed that such provisions are fundamental elements to the agreement of the Members and the Managing Member to enter into this Agreement and without such provisions the Members and the Managing Member would not have entered into this Agreement.
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(g) Whenever in this Agreement the Managing Member is permitted or required to make a decision in its “sole and absolute discretion,” “sole discretion” or “discretion” or under a grant of similar authority or latitude, the Managing Member shall be entitled to consider only such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest or factors affecting the Company or the Members or any of them, and any such decision or determination made by the Managing Member that does not consider such interests or factors affecting the Company of the Members, or any of them, that does not result in a violation of the contract rights of the Members under this Agreement or any other duty owed by the Managing Member to the Company and/or the Members pursuant to express terms of this Agreement. If any question should arise with respect to the operation of the Company, which is not otherwise specifically provided for in this Agreement or the Act, or with respect to the interpretation of this Agreement, the Managing Member is hereby authorized to make a final determination with respect to any such question and to interpret this Agreement in such a manner as it shall deem, in its sole discretion, to be fair and equitable, and its determination and interpretations so made shall be final and binding on all parties. The Managing Member’s “sole and absolute discretion,” “sole discretion” and “discretion” under this Agreement shall be exercised consistently with good faith reliance on the provisions of this Agreement and the obligation of good faith and fair dealing under the Act (as modified by the Agreement).
(h) The Managing Member may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture or other paper or document believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties. In performing its duties under this Agreement, the Managing Member shall be entitled to rely on the provisions of this Agreement and on any information, opinion, report or statement, including any financial statement or other financial data or the records or books of account of the Company or any subsidiary of the Company, prepared or presented by any officer, employee or agent of the Managing Member, any agent of the Company or any such subsidiary, or by any lawyer, certified public accountant, appraiser or other person engaged by the Managing Member, the Company or any such subsidiary as to any matter within such person’s professional or expert competence, and any act taken or omitted to be taken in reliance upon any such information, opinion, report or statement as to matters that the Managing Member reasonably believes to be within such Person’s professional or expert competence shall be conclusively presumed to have been done or omitted in good faith and in accordance with such information, opinion, report or statement.
(i) No director, officer or agent of the Managing Member shall have any duties directly to the Company or any Member. No director, officer or agent of the Managing Member shall be directly liable to the Company or any Member for money damages by reason of their service as such.
(j) Notwithstanding any other provision of this Agreement or the Act, any action of the Managing Member on behalf of the Company or any decision of the Managing Member to refrain from acting on behalf of the Company, undertaken in the good faith belief that such action or omission is necessary or advisable in order (i) to protect the ability of the Managing Member to continue to qualify as a REIT, (ii) for the Managing Member otherwise to satisfy the REIT Requirements, (iii) for the Managing Member to avoid incurring any taxes under Code Section 857 or Code Section 4981, or (iv) for any Managing Member Affiliate to continue to qualify as a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) or “taxable REIT subsidiary” (within the meaning of Code Section 856(l)), is expressly authorized under this Agreement and is deemed approved by all of the Members.
(k) Any amendment, modification or repeal of this Section 7.8 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the Managing Member’s and its officers’ and directors’ liability to the Company and the Members under this Section 7.8 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
(l) In exercising its authority under this Agreement and subject to Section 7.8(b), the Managing Member may, but shall be under no obligation to, take into account the tax consequences to any Member of any action taken (or not taken) by it. The Managing Member and the Company shall not have liability to a Member under any circumstances as a result of any tax liability incurred by such Member as a result of an action (or inaction) by the Managing Member pursuant to its authority under this Agreement.
Section 7.9 Titleto Company Assets. Title to Company assets, whether real, personal or mixed and whether tangible or intangible, shall be deemed to be owned by the Company as an entity, and no Member, individually or collectively with other Members or Persons, shall have any ownership interest in such Company assets or any portion thereof. Title to any or all of the Company assets may be held in the name of the Company, the Managing Member or one or more nominees, as the Managing Member may determine, including Affiliates of the Managing Member. The Managing Member hereby declares and warrants that any Company assets for which legal title is held in the name of the Managing Member or any nominee or Affiliate of the Managing Member shall be held by the Managing Member or such nominee or Affiliate for the use and benefit of the Company in accordance with the provisions of this Agreement. All Membership assets shall be recorded as the property of the Company in its books and records, irrespective of the name in which legal title to such Company assets is held.
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Section 7.10 Relianceby Third Parties. Notwithstanding anything to the contrary in this Agreement, any Person dealing with the Company shall be entitled to assume that each of the Managing Member and the Manager has full power and authority, without the consent or approval of any other Member, or Person, to encumber, sell or otherwise use in any manner any and all assets of the Company and to enter into any contracts on behalf of the Company, and take any and all actions on behalf of the Company, and such Person shall be entitled to deal with the Managing Member or the Manager as if it were the Company’s sole party in interest, both legally and beneficially. To the fullest extent permitted by law, each Member hereby waives any and all defenses or other remedies that may be available against such Person to contest, negate or disaffirm any action of the Managing Member or the Manager in connection with any such dealing. In no event shall any Person dealing with the Managing Member, the Manager or their respective representatives be obligated to ascertain that the terms of this Agreement have been complied with or to inquire into the necessity or expediency of any act or action of the Managing Member, the Manager or their respective representatives. Each and every certificate, document or other instrument executed on behalf of the Company by the Managing Member, the Manager or their respective representatives shall be conclusive evidence in favor of any and every Person relying thereon or claiming thereunder that (a) at the time of the execution and delivery of such certificate, document or instrument, this Agreement was in full force and effect, (b) the Person executing and delivering such certificate, document or instrument was duly authorized and empowered to do so for and on behalf of the Company and (c) such certificate, document or instrument was duly executed and delivered in accordance with the terms and provisions of this Agreement and is binding upon the Company.
ARTICLE 8RIGHTS AND OBLIGATIONS OF NON-MANAGING MEMBERS
Section 8.1 Duties;Limitation of Liability. To the maximum extent permitted under the Act, except as set forth in Section 7.8 with respect to the Managing Member, the only duties that a Member owes to the Company, any Member or any other Person (including any creditor of any Member or assignee of any Membership Interest), fiduciary or otherwise, are to perform its contractual obligations as expressly set forth in this Agreement consistently with the implied contractual covenant of good faith and fair dealing. To the fullest extent permitted by law, no Member, other than the Managing Member, in its capacity as such, shall have any other duty, fiduciary or otherwise, to the Company, any Member or any other Person (including any creditor of any Member or any assignee of Membership Interest). The provisions of this Agreement other than this Section 8.1 shall create contractual obligations of the Members only, and no such provision shall be interpreted to expand, modify or impose fiduciary duties of the Members set forth in this Agreement. To the fullest extent permitted by law, the provisions of this Section 8.1, to the extent they restrict or modify the duties and liabilities of the Members or any other Person under the Act or otherwise existing at law or in equity, are agreed by the Members to replace such other duties and liabilities. No Non-Managing Member shall have any liability under this Agreement except for intentional harm or gross negligence on the part of such Non-Managing Member or as expressly provided in this Agreement (including, without limitation, Section 10.4 hereof) or under the Act.
Section 8.2 Managementof Business. Subject to the rights and powers of the Managing Member hereunder, no Member or Assignee (other than the Managing Member, any of its Affiliates or any officer, director, member, employee, partner, agent or trustee of the Managing Member, the Company or any of their Affiliates, in their capacity as such) shall take part in the operations, management or control of the Company’s business, transact any business in the Company’s name or have the power to sign documents for or otherwise bind the Company. The transaction of any such business by the Managing Member, any of its Affiliates or any officer, director, member, employee, partner, agent, representative, or trustee of the Managing Member, the Company or any of their Affiliates, in their capacity as such, shall not affect, impair or eliminate the limitations on the liability of the Members or Assignees under this Agreement.
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Section 8.3 OutsideActivities of Members. Subject to any agreements entered into pursuant to Section 7.6 hereof and any other agreements entered into by a Member (other than the Managing Member) or any of its Affiliates with the Managing Member, the Company or a Subsidiary (including, without limitation, any employment agreement), any Member (other than the Managing Member) and any Assignee, officer, director, employee, agent, trustee, Affiliate, member or stockholder of any Member (other than the Managing Member) shall be entitled to and may have business interests and engage in business activities in addition to those relating to the Company, including business interests and activities that are in direct or indirect competition with the Company or that are enhanced by the activities of the Company notwithstanding any duty otherwise existing at law or in equity. Neither the Company nor any Member (other than the Managing Member) shall have any rights by virtue of this Agreement in any business ventures of any Member (other than the Managing Member) or Assignee. Subject to such agreements, none of the Members (other than the Managing Member) nor any other Person shall have any rights by virtue of this Agreement or the Company relationship established hereby in any business ventures of any other Person (other than the Managing Member), and such Person shall have no obligation pursuant to this Agreement, subject to Section 7.6 hereof and any other agreements entered into by a Member (other than the Managing Member) or its Affiliates with the Managing Member, the Company or a Subsidiary, to offer any interest in any such business ventures to the Company, any Member (other than the Managing Member), or any such other Person, even if such opportunity is of a character that, if presented to the Company, any Member (other than the Managing Member) or such other Person, could be taken by such Person. In deciding whether to take any actions in such capacity, the Members (other than the Managing Member) and their respective Affiliates shall be under no obligation to consider the separate interests of the Company or its subsidiaries and to the maximum extent permitted by applicable law shall have no fiduciary duties or similar obligations to the Company or any other Members (other than the Managing Member), or to any subsidiary of the Company, and, to the fullest extent permitted by law, shall not be liable for monetary damages for losses sustained, liabilities incurred or benefits not derived by the other Members (other than the Managing Member) in connection with such acts except for liability for fraud, willful misconduct or gross negligence.
Section 8.4 Returnof Capital. Except pursuant to the rights of Redemption set forth in Section 15.1 hereof or any Membership Unit Designation, no Member shall be entitled to the withdrawal or return of its Capital Contribution, except to the extent of distributions made pursuant to this Agreement or upon dissolution of the Company as provided herein. Except to the extent provided in Article 5 and Article 6 hereof or otherwise expressly provided in this Agreement or in any Membership Unit Designation, no Member or Assignee shall have priority over any other Member or Assignee either as to the return of Capital Contributions or as to profits, losses or distributions.
Section 8.5 Rightsof Members Relating to the Company.
(a) In addition to other rights provided by this Agreement or by the Act, and except as limited by Section 8.5(c) hereof, the Managing Member shall deliver to each Member a copy of any information mailed or electronically delivered to all of the common stockholders of the Managing Member as soon as practicable after such mailing.
(b) The Company shall notify any Member that is a Qualifying Party, on request, of the then current Adjustment Factor and any change made to the Adjustment Factor shall be set forth in the quarterly report required by Section 9.3(b) hereof immediately following the date such change becomes effective.
(c) Notwithstanding any other provision of this Section 8.5, the Managing Member may keep confidential from the Members (or any of them), for such period of time as the Managing Member determines in its sole and absolute discretion to be reasonable, any information that (i) the Managing Member believes to be in the nature of trade secrets or other information the disclosure of which the Managing Member believes is not in the best interests of the Company or the Managing Member or (ii) the Company or the Managing Member is required by law or by agreement to keep confidential.
(d) Upon written request by any Member, the Managing Member shall cause the ownership of Membership Units by such Member to be evidenced by a certificate for units in such form as the Managing Member may determine with respect to any class of Membership Units issued from time to time under this Agreement. Any officer of the Managing Member may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the Company alleged to have been lost, destroyed, stolen or mutilated, upon the making of an affidavit of that fact by the person claiming the certificate to be lost, destroyed, stolen or mutilated. Unless otherwise determined by an officer of the Managing Member, the owner of such lost, destroyed, stolen or mutilated certificate or certificates, or such owner’s legal representative, shall be required, as a condition precedent to the issuance of a new certificate or certificates, to give the Company a bond in such sums as the Managing Member may direct as indemnity against any claim that may be made against the Company.
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Section 8.6 CompanyRight to Call Common Units. Notwithstanding any other provision of this Agreement: (i) on and after the date on which the aggregate Percentage Interests of the Common Units held by Holders (other than the Managing Member) are less than one percent (1%) of the outstanding Common Units, the Company shall have the right, but not the obligation, from time to time and at any time to redeem any and all outstanding Common Units and (ii) at any time a Holder holds less than fifty thousand (50,000) Common Units (as adjusted, if applicable, by the Adjustment Factor then in effect), the Company shall have the right in its sole discretion, but not the obligation to such Holders or Holder, from time to time and at any time to redeem all or any portion of the outstanding Common Units held by such Holders or Holder, in each case by treating any such Holder thereof as a Tendering Party who has delivered a Notice of Redemption pursuant to Section 15.1 hereof for the amount of Common Units to be specified by the Managing Member, by notice to such Holder that the Company has elected to exercise its rights under this Section 8.6(a). Such notice given by the Company to a Holder pursuant to this Section 8.6(a) shall be treated as if it were a Notice of Redemption delivered to the Managing Member by such Holder. For purposes of this Section 8.6(a), (i) the Managing Member may treat any Holder (whether or not otherwise a Qualifying Party) as a Qualifying Party that is a Tendering Party and (ii) the provisions of Sections 15.1(f)(ii) and 15.1(f)(iii) hereof shall not apply, but the remainder of Section 15.1 hereof shall apply, mutatis mutandis.
Section 8.7 Rightsas Objecting Member. No Member and no Holder of a Membership Interest shall be entitled to exercise any of the rights of an objecting stockholder provided for under Title 3, Subtitle 2 of the MGCL or any successor statute in connection with a merger or a conversion of the Company.
ARTICLE 9BOOKS, RECORDS, ACCOUNTING AND REPORTS
Section 9.1 Recordsand Accounting.
(a) The Managing Member shall keep or cause to be kept at the principal place of business of the Company those records and documents, if any, required to be maintained by the Act and any other books and records deemed by the Managing Member to be appropriate with respect to the Company’s business, including, without limitation, all books and records necessary to provide to the Members any information, lists and copies of documents required to be provided pursuant to Section 8.5(a), Section 9.3 or Article 13 hereof. Any records maintained by or on behalf of the Company in the regular course of its business may be kept on any information storage device, provided that the records so maintained are convertible into clearly legible written form within a reasonable period of time.
(b) The books of the Company shall be maintained, for financial and tax reporting purposes, on an accrual basis in accordance with generally accepted accounting principles, or on such other basis as the Managing Member determines to be necessary or appropriate. To the extent permitted by sound accounting practices and principles, the Company and the Managing Member may operate with integrated or consolidated accounting records, operations and principles.
Section 9.2 FiscalYear. For purposes of this Agreement, the fiscal year of the Company shall be the Fiscal Year.
Section 9.3 Reports.
(a) As soon as practicable, but in no event later than one hundred five (105) days after the close of each Fiscal Year, the Managing Member shall cause to be mailed to each Member of record as of the close of the Fiscal Year, financial statements of the Company, or of the Managing Member if such statements are prepared solely on a consolidated basis with the Managing Member, for such Fiscal Year, presented in accordance with generally accepted accounting principles, such statements to be audited by a nationally recognized firm of independent public accountants selected by the Managing Member.
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(b) As soon as practicable, but in no event later than sixty (60) days after the close of each calendar quarter (except the last calendar quarter of each year), the Managing Member shall cause to be mailed to each Member of record as of the last day of the calendar quarter, a report containing unaudited financial statements of the Company for such calendar quarter, or of the Managing Member if such statements are prepared solely on a consolidated basis with the Managing Member, and such other information as may be required by applicable law or regulation or as the Managing Member determines to be appropriate.
(c) The Managing Member shall have satisfied its obligations under Section 9.3(a) and Section 9.3(b) by either (i) to the Managing Member or the Company being subject to periodic reporting requirements under the Exchange Act, and filing the quarterly and annual reports required thereunder within the time periods provided for the filing of such reports, including any permitted extensions, or (ii) posting or making available the reports required by this Section 9.3 on the website maintained from time to time by the Company or the Managing Member.
Section 9.4 Waiverof Statutory Inspection Rights. To the fullest extent permitted by law, each Member hereby waives any current or future rights Members may have under Section 4A-406 of the Act (and similar rights under other applicable law) to inspect, or make copies and extracts from, the Company’s membership ledger, any list of its Members, or any other books and records of the Company or any of its affiliates or subsidiaries, in Member’s capacity as a holder of membership units, shares, units, options, or any other equity instrument.
ARTICLE 10TAX MATTERS
Section 10.1 Preparationof Tax Returns. The Managing Member shall arrange for the preparation and timely filing of all returns with respect to Company income, gains, deductions, losses and other items required of the Company for federal and state income tax purposes and shall use all reasonable efforts to furnish, within ninety (90) days of the close of each taxable year, the drafts of the tax information reasonably required by Members for federal and state income tax and any other tax reporting purposes. Final versions of such information (including Schedule K-1) share be provided within two hundred ten (210) days of the close of each taxable year. The Members shall promptly provide the Managing Member with such information relating to the Contributed Properties as is readily available to the Members, including tax basis and other relevant information, as may be reasonably requested by the Managing Member from time to time.
Section 10.2 TaxElections. Except as otherwise provided herein, the Managing Member shall, in its sole and absolute discretion, determine whether to cause the Company to make any available election pursuant to the Code, including, but not limited to, the election under Code Section 754. The Managing Member shall have the right to cause the Company to seek to revoke any such election (including, without limitation, any election under Code Section 754) upon the Managing Member’s determination in its sole and absolute discretion that such revocation is in the best interests of the Members.
Section 10.3 CompanyRepresentative.
(a) The Managing Member shall be the “partnership representative” of the Company under Code Section 6223 for federal income tax purposes (the “Company Representative”). The Company Representative shall receive no compensation for its services. All third-party costs and expenses incurred by the Company Representative in performing its duties as such (including legal and accounting fees and expenses) shall be borne by the Company in addition to any reimbursement pursuant to Section 7.4 hereof. Nothing herein shall be construed to restrict the Company from engaging an accounting firm to assist the Company Representative in discharging its duties hereunder. The Managing Member shall appoint an individual (the “Designated Individual”) through whom the Company Representative will act in accordance with Regulations Section 301.6223-1 and any other applicable IRS guidance. The Designated Individual is authorized to take any action the Company Representative is authorized to take under this Agreement. The Members shall promptly provide the Company Representative with such information as is reasonably available to the Members as may be reasonably requested by the Company Representative from time to time in connection with any tax audit or judicial proceeding.
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(b) The Company Representative is authorized, but not required:
(i) to enter into any settlement with the IRS with respect to any administrative or judicial proceedings for the adjustment of Company items required to be taken into account by a Member for income tax purposes (such administrative proceedings being referred to as a “tax audit” and such judicial proceedings being referred to as “judicial review”), and in the settlement agreement the Company Representative may expressly state that such agreement shall bind all Members;
(ii) in the event that a notice of a final administrative adjustment at the Company level of any item required to be taken into account by a Member for tax purposes (a “Final Adjustment”) is mailed to the Company Representative, to seek judicial review of such Final Adjustment, including the filing of a petition for readjustment with the United States Tax Court or the United States Claims Court, or the filing of a complaint for refund with the District Court of the United States for the district in which the Company’s principal place of business is located;
(iii) to intervene in any action brought by any other Member for judicial review of a final adjustment;
(iv) to file a request for an administrative adjustment with the IRS at any time and, if any part of such request is not allowed by the IRS, to file an appropriate pleading (petition or complaint) for judicial review with respect to such request;
(v) to enter into an agreement with the IRS to extend the period for assessing any tax that is attributable to any item required to be taken into account by a Member for tax purposes, or an item affected by such item;
(vi) to make an election under Code Section 6226; and
(vii) to take any other action on behalf of the Members or any of them in connection with any tax audit or judicial review proceeding to the extent permitted by applicable law or regulations.
The taking of any action and the incurring of any expense by the Company Representative in connection with any such proceeding, except to the extent required by law, is a matter in the sole and absolute discretion of the Company Representative and the provisions relating to indemnification of the Managing Member set forth in Section 7.7 hereof shall be fully applicable to the Company Representative and the Designated Individual in their capacities as such.
Section 10.4 Withholding. Each Member hereby authorizes the Company to withhold from or pay on behalf of or with respect to such Member any amount of federal, state, local or foreign taxes that the Managing Member determines the Company is required to withhold or pay with respect to any amount distributable or allocable to such Member pursuant to this Agreement, including, without limitation, any taxes required to be withheld or paid by the Company pursuant to Code Section 1441, Code Section 1442, Code Section 1445, Code Section 1446, Code Section 1471, Code Section 1472, Code Section 6225 or Code Section 6232. Any amount withheld with respect to a Member pursuant to this Section 10.4 shall be treated as paid or distributed, as applicable, to such Member for all purposes under this Agreement. Any amount paid on behalf of or with respect to a Member, in excess of any such withheld amount, shall constitute a loan by the Company to such Member, which loan shall be repaid by such Member within thirty (30) days after the affected Member receives written notice from the Managing Member that such payment must be made, provided that the Member shall not be required to repay such deemed loan if either (a) the Company withholds such payment from a distribution that would otherwise be made to the Member or (b) the Managing Member determines, in its sole and absolute discretion, that such payment may be satisfied out of the Available Cash of the Company that would, but for such payment, be distributed to the Member. Any amounts payable by a Member hereunder shall bear interest at the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate) from the date such amount is due (i.e., thirty (30) days after the Member receives written notice of such amount) until such amount is paid in full.
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Section 10.5 OrganizationalExpenses. The Managing Member may cause the Company to elect to deduct expenses, if any, incurred by it in organizing the Company ratably over a 180-month period as provided in Section 709 of the Code.
Section 10.6 MembershipProvisions. At any time no Person other than the Managing Member or a Disregarded Entity thereof owns an equity interest in the Company, the Company will be a Disregarded Entity of the Managing Member for U.S. federal income tax purposes and will remain disregarded until such time as a Person other than the Managing Member or a Disregarded Entity thereof acquires an equity interest in the Company, at which point the Company would become a partnership for U.S. federal income tax purposes. Accordingly, notwithstanding anything to the contrary in this Agreement, the provisions of this Agreement that (i) relate to the maintenance of Capital Accounts, (ii) reference or apply the provisions of Subchapter K of the Code, or (iii) otherwise are, in the Managing Member’s determination, not relevant to the Company for so long as it is a Disregarded Entity shall, in each case, apply only if and to the extent the Company is treated as a partnership for U.S. federal income tax purposes.
Section 10.7 Survival. Each Member’s obligations and the Company’s rights under this Article X shall survive the dissolution, liquidation, and winding up of the Company and, unless otherwise agreed by the Managing Member in its sole discretion, the Transfer of any Membership Interest.
ARTICLE 11MEMBER TRANSFERS AND WITHDRAWALS
Section 11.1 Transfer.
(a) No part of the interest of a Member shall be subject to the claims of any creditor, to any spouse for alimony or support, or to legal process, and may not be voluntarily or involuntarily alienated or encumbered except as may be specifically provided for in this Agreement.
(b) No Membership Interest shall be Transferred, in whole or in part, except in accordance with the terms and conditions set forth in this Article 11. To the fullest extent permitted by law, any Transfer or purported Transfer of a Membership Interest not made in accordance with this Article 11 shall be void.
(c) No Transfer of any Membership Interest may be made to a lender to the Company or any Person who is related (within the meaning of Section 1.752-4(b) of the Regulations) to any lender to the Company whose loan constitutes a Nonrecourse Liability, without the Consent of the Managing Member; provided, however, that, as a condition to such Consent, the lender may be required to enter into an arrangement with the Company and the Managing Member to redeem or exchange for the REIT Shares Amount any Membership Units in which a security interest is held by such lender simultaneously with the time at which such lender would be deemed to be a partner in the Company for purposes of allocating liabilities to such lender under Section 752 of the Code (provided that, for purpose of calculating the REIT Shares Amount in this Section 11.1(c), “Tendered Units” shall mean all such Membership Units in which a security interest is held by such lender).
Section 11.2 Transferof Managing Member’s Membership Interest.
(a) Except as provided in Section 11.2(b) or Section 11.2(c), and subject to the rights of any Holder of any Membership Interest set forth in any Membership Unit Designation, the Managing Member may not Transfer all or any portion of its Membership Interest (whether by sale, disposition, statutory merger or consolidation, liquidation or otherwise) without the Consent of the Non-Managing Members (excluding, for purposes of such consent, any outstanding LTIP Units). It is a condition to any Transfer of a Membership Interest of a Managing Member otherwise permitted hereunder (including any Transfer permitted pursuant to Section 11.2(b) or Section 11.2(c)) that: (i) coincident with such Transfer, the transferee is admitted as a Managing Member pursuant to Section 12.1 hereof; (ii) the transferee assumes, by operation of law or express agreement, all of the obligations of the transferor Managing Member under this Agreement with respect to such Transferred Membership Interest; and (iii) the transferee has executed such instruments as may be necessary to effectuate such admission and to confirm the agreement of such transferee to be bound by all the terms and provisions of this Agreement with respect to the Membership Interest so acquired and the admission of such transferee as a Managing Member.
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(b) CertainTransactions of the Managing Member. Subject to the rights of any Holder of any Membership Interest set forth in any Membership Unit Designation, the Managing Member may, without the Consent of the Non-Managing Members, Transfer all of its Membership Interest in connection with (x) a merger, consolidation or other combination of its or the Company’s assets with another entity, (y) a sale of all or substantially all of its or the Company’s assets not in the ordinary course of the Company’s business or (z) a reclassification, recapitalization or change of any outstanding shares of the Managing Member’s stock or other outstanding equity interests, other than in connection with a stock split, reverse stock split, stock dividend change in par value, increase in authorized shares, designation or issuance of new classes of equity securities or other event that does not require the approval of the Managing Member’s stockholders (each, a “Termination Transaction”) if:
(i) in connection with such Termination Transaction, all of the Members will receive, or will have the right to elect to receive (and shall be provided the opportunity to make such an election if the holders of the Class A-1 REIT Shares generally are also provided such an opportunity), for each Common Unit an amount of cash, securities or other property equal to the product of the applicable Adjustment Factor and the greatest amount of cash, securities or other property paid to a holder of one Class A-1 REIT Share in consideration of one Class A-1 REIT Share pursuant to the terms of such Termination Transaction; provided, that if, in connection with such Termination Transaction, a purchase, tender or exchange offer shall have been made to and accepted by the holders of the outstanding Class A-1 REIT Shares, each holder of Common Units shall receive, or shall have the right to elect to receive, the greatest amount of cash, securities or other property which such holder of Common Units would have received had it exercised its right to Redemption pursuant to Article 15 hereof and received Class A-1 REIT Shares in exchange for its Common Units immediately prior to the expiration of such purchase, tender or exchange offer and had thereupon accepted such purchase, tender or exchange offer and then such Termination Transaction shall have been consummated; or
(ii) all of the following conditions are met: (A) substantially all of the assets directly or indirectly owned by the surviving entity are owned directly or indirectly by the Company or another limited liability company or entity which is the survivor of a merger, consolidation or combination of assets with the Company (in each case, the “Surviving Company”); (B) Members that held Common Units immediately prior to the consummation of such Termination Transaction own a percentage interest of the Surviving Company based on the relative fair market value of the net assets of the Company and the other net assets of the Surviving Company immediately prior to the consummation of such transaction; (C) the rights, preferences and privileges in the Surviving Company of such Members are at least as favorable as those in effect with respect to the Common Units immediately prior to the consummation of such transaction and as those applicable to any other non-managing members or owners of the Surviving Company; and (D) the rights of such Members include at least one of the following: (I) the right to redeem their interests in the Surviving Company for the consideration available to such persons pursuant to Section 11.2(b)(i) or (II) the right to redeem their interests in the Surviving Company for cash on terms substantially equivalent to those in effect with respect to their Common Units immediately prior to the consummation of such transaction, or, if the ultimate controlling person of the Surviving Company has publicly traded common equity securities, such common equity securities, with an exchange ratio based on the determination of relative fair market value of such securities and the Class A-1 REIT Shares.
(c) Notwithstanding the other provisions of this Article 11 (other than Section 11.6(d) hereof), the Managing Member may Transfer any or all of its Membership Interests at any time to any Person that is, at the time of such Transfer an Affiliate of the Managing Member, including any “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)), without the Consent of any Non-Managing Members. The provisions of Section 11.2(b), 11.3, 11.4(a) and 11.5 hereof shall not apply to any Transfer permitted by this Section 11.2(c).
(d) Except in connection with Transfers permitted in this Article 11 and as otherwise provided in Section 12.1 in connection with the Transfer of the Managing Member’s entire Membership Interest, the Managing Member may not voluntarily withdraw as a Managing Member of the Company without the Consent of the Non-Managing Members.
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Section 11.3 Members’Rights to Transfer.
(a) General. Prior to the end of the Initial Holding Period, no Member (other than, subject to Section 11.2, the Managing Member) shall Transfer all or any portion of its Membership Interest to any transferee without the Consent of the Managing Member; provided, however, that any Member may, at any time, without the consent or approval of the Managing Member, (x) Transfer all or part of its Membership Interest to any Family Member (including a Transfer by a Family Member that is an inter vivos or testamentary trust (whether revocable or irrevocable) to a Family Member that is a beneficiary of such trust), any Charity, any Controlled Entity or any Affiliate, or (y) except as provided in Section 11.1(c) hereof, pledge (a “Pledge”) all or any portion of its Membership Interest to a lending institution as collateral or security for a bona fide loan or other extension of credit, and Transfer such pledged Membership Interest to such lending institution in connection with the exercise of remedies under such loan or extension of credit (any Transfer or Pledge permitted by this proviso is hereinafter referred to as a “Permitted Transfer”). After such Initial Holding Period, each Member (other than, subject to Section 11.2, the Managing Member), and each transferee of Membership Units or Assignee pursuant to a Permitted Transfer, shall have the right to Transfer all or any portion of its Membership Interest to any Person, without the Consent of the Managing Member but subject to the provisions of Section 11.1(c) and Section 11.4 hereof and to satisfaction of each of the following conditions:
(i) ManagingMember Right of First Refusal. The transferor Member (or the Member’s estate in the event of the Member’s death) shall give written notice of the proposed Transfer to the Managing Member, which notice shall state (A) the identity and address of the proposed transferee and (B) the amount and type of consideration proposed to be received for the Transferred Membership Units. The Managing Member shall have ten (10) Business Days upon which to give the transferor Member notice of its election to acquire the Membership Units on the terms set forth in such notice. If the Managing Member so elects, it shall purchase the Membership Units on such terms within ten (10) Business Days after giving notice of such election; provided, however, that, in the event that the proposed terms involve a purchase for cash, the Managing Member may at its election deliver in lieu of all or any portion of such cash a note from the Managing Member payable to the transferor Member at a date as soon as reasonably practicable, but in no event later than one hundred eighty (180) days after such purchase, and bearing interest at an annual rate equal to the total dividends declared with respect to one (1) Class A-1 REIT Share for the four (4) preceding fiscal quarters of the Managing Member, divided by the Value as of the closing of such purchase; and provided, further, that such closing may be deferred to the extent necessary to effect compliance with the Hart-Scott-Rodino Act, if applicable, and any other applicable requirements of law. If the Managing Member does not so elect, the transferor Member may Transfer such Membership Units to a third party, on terms no more favorable to the transferee than the proposed terms, subject to the other conditions of this Section 11.3.
(ii) QualifiedTransferee. Any Transfer of a Membership Interest shall be made only to a single Qualified Transferee; provided, however, that, for such purposes, all Qualified Transferees that are Affiliates, or that comprise investment accounts or funds managed by a single Qualified Transferee and its Affiliates, shall be considered together to be a single Qualified Transferee; and provided, further, that each Transfer meeting the minimum Transfer restriction of Section 11.3(a)(iv) hereof may be to a separate Qualified Transferee.
(iii) Opinionof Counsel. The transferor Member shall deliver or cause to be delivered to the Managing Member an opinion of counsel reasonably satisfactory to it to the effect that the proposed Transfer may be effected without registration under the Securities Act and will not otherwise violate the registration provisions of the Securities Act and the regulations promulgated thereunder or violate any state securities laws or regulations applicable to the Company or the Membership Interests Transferred; provided, however, that the Managing Member may, in its sole discretion, waive this condition upon the request of the transferor Member. If, in the opinion of such counsel, such Transfer would require the filing of a registration statement under the Securities Act or would otherwise violate any federal or state securities laws or regulations applicable to the Company or the Membership Units, the Managing Member may prohibit any Transfer otherwise permitted under this Section 11.3 by a Member of Membership Interests.
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(iv) MinimumTransfer Restriction. Any Transferring Member must Transfer not less than the lesser of (A) five hundred (500) Membership Units or (B) all of the remaining Membership Units owned by such Transferring Member, without, in each case, the Consent of the Managing Member; provided, however, that, for purposes of determining compliance with the foregoing restriction, all Membership Units owned by Affiliates of a Member shall be considered to be owned by such Member.
(v) Exceptionfor Permitted Transfers. The conditions of Sections 11.3(a)(i) through 11.3(a)(iv) hereof shall not apply in the case of a Permitted Transfer.
It is a condition to any Transfer otherwise permitted hereunder (whether or not such Transfer is effected during or after the Initial Holding Period) that the transferee assumes by operation of law or express agreement all of the obligations of the transferor Member under this Agreement with respect to such Transferred Membership Interest, and no such Transfer (other than pursuant to a statutory merger or consolidation wherein all obligations and liabilities of the transferor Member are assumed by a successor corporation by operation of law) shall relieve the transferor Member of its obligations under this Agreement without the Consent of the Managing Member. Notwithstanding the foregoing, any transferee of any Transferred Membership Interest shall be subject to any restrictions on ownership and transfer of stock of the Managing Member contained in the Charter that may limit or restrict such transferee’s ability to exercise its Redemption rights, including, without limitation, the Ownership Limit. Any transferee, whether or not admitted as a Substituted Member, shall take subject to the obligations of the transferor hereunder. Unless admitted as a Substituted Member, no transferee, whether by a voluntary Transfer, by operation of law or otherwise, shall have any rights hereunder, other than the rights of an Assignee as provided in Section 11.5 hereof.
(b) Incapacity. If a Member is subject to Incapacity, the executor, administrator, trustee, committee, guardian, conservator or receiver of such Member’s estate shall have all the rights of a Member, but not more rights than those enjoyed by other Members, for the purpose of settling or managing the estate, and such power as the Incapacitated Member possessed to Transfer all or any part of its interest in the Company. The Incapacity of a Member, in and of itself, shall not dissolve or terminate the Company.
(c) AdverseTax Consequences. Notwithstanding anything to the contrary in this Agreement, the Managing Member shall have the authority (but shall not be required) to take any steps it determines are necessary or appropriate in its sole and absolute discretion to prevent the Company from being taxable as a corporation for federal income tax purposes. Except with the Consent of the Managing Member, no Transfer by a Member of its Membership Interests (including any Redemption, any conversion of LTIP Units into Common Units, any other acquisition of Membership Units by the Managing Member or any acquisition of Membership Units by the Company) may be made to or by any Person if such Transfer could (i) result in the Company being treated as an association taxable as a corporation; (ii) result in a termination of the Company for state income tax purposes; (iii) be treated as effectuated through an “established securities market” or a “secondary market (or the substantial equivalent thereof)” within the meaning of Code Section 7704 and the Regulations promulgated thereunder, (iv) result in the Company (A) being unable to qualify for the “private placements” safe harbor from treatment as a “publicly traded partnership” under Regulations Section 1.7704-1(h), (B) being unable to qualify for the “lack of actual trading” safe harbor from treatment as a “publicly traded partnership” under Regulations Section 1.7704-1(j), or (C) otherwise being unable to qualify for at least one of the “safe harbors” set forth in Regulations Section 1.7704-1 (or such other guidance subsequently published by the IRS setting forth safe harbors under which interests will not be treated as “readily tradable on a secondary market (or the substantial equivalent thereof)” within the meaning of Section 7704 of the Code) (the “Safe Harbors”) as selected by the Managing Member in its sole discretion or (v) based on the advice of counsel to the Company or the Managing Member, adversely affect the ability of the Managing Member to continue to qualify as a REIT or subject the Managing Member to any additional taxes under Code Section 857 or Code Section 4981.
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(d) In addition to any other restrictions on Transfer herein contained, in no event may any Transfer of a Membership Interest by any Member, other than the Managing Member (including any Redemption, any conversion of LTIP Units into Common Units, any acquisition of Membership Units by the Managing Member or any other acquisition of Membership Units by the Company) be made, without the Consent of the Managing Member: (i) to any person or entity who lacks the legal right, power or capacity to own a Membership Interest; (ii) in violation of applicable law; (iii) of any component portion of a Membership Interest, such as the Capital Account, or rights to distributions, separate and apart from all other components of a Membership Interest; (iv) in the event that such Transfer could cause either the Managing Member or any Managing Member Affiliate to cease to comply with the REIT Requirements or to cease to qualify as a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)); (v) if such Transfer could, based on the advice of counsel to the Company or the Managing Member, cause a termination of the Company for state income tax purposes (except as a result of the Redemption (or acquisition by the Managing Member) of all Common Units held by all Members); (vi) if such Transfer could, based on the advice of legal counsel to the Company or the Managing Member, cause the Company to cease to be classified as a partnership for federal income tax purposes (except as a result of the Redemption (or acquisition by the Managing Member) of all Common Units held by all Members); (vii) if such Transfer would cause the Company to become, with respect to any employee benefit plan subject to Title I of ERISA, a “party-in-interest” (as defined in ERISA Section 3(14)) or a “disqualified person” (as defined in Code Section 4975(c)) or result in a “prohibited transaction” (within the meaning of ERISA or the Code); (viii) if such Transfer could, based on the advice of legal counsel to the Company or the Managing Member, cause any portion of the assets of the Company to constitute assets of any employee benefit plan pursuant to Department of Labor Regulations Section 2510.3-101, as modified by Section 3(42) of ERISA; (ix) if such Transfer requires the registration of such Membership Interest pursuant to any applicable federal or state securities laws; (x) if such Transfer could (A) be treated as effectuated through an “established securities market” or a “secondary market” (or the substantial equivalent thereof) within the meaning of Section 7704 of the Code and the Regulations promulgated thereunder, (B) cause the Company to become a “publicly traded partnership,” as such term is defined in Sections 469(k)(2) or 7704(b) of the Code, or (C) cause the Company to fail to qualify for at least one of the Safe Harbors; (xi) if such Transfer causes the Company (as opposed to the Managing Member) to become a reporting company under the Exchange Act; or (xii) if such Transfer subjects the Company to regulation under the Investment Company Act of 1940, the Investment Advisors Act of 1940 or ERISA, each as amended. The Managing Member shall, in its sole discretion, be permitted to take all action necessary to prevent the Company from being classified as a “publicly traded partnership” under Code Section 7704.
(e) Transfers of the Membership Interest of a Member, other than the Managing Member, pursuant to this Article 11 may only be made on the first day of a fiscal quarter of the Company, unless the Managing Member otherwise Consents.
(f) Notwithstanding anything to the contrary in this Article 11, if an Affiliate of a Member is a holder of Class A-2 REIT Shares, and such Member Transfers any Membership Interests to any transferee that is not an Affiliate of such Member, a corresponding number of Class A-2 REIT Shares held by such Member’s Affiliate (on a one-for-one basis) will be cancelled and retired in compliance with the Charter.
Section 11.4 Admissionof Substituted Members.
(a) No Member shall have the right to substitute a transferee (including any transferees pursuant to Transfers permitted by Section 11.3 hereof) as a Member in its place. A transferee of a Member Interest may be admitted as a Substituted Member only with the Consent of the Managing Member. The failure or refusal by the Managing Member to permit a transferee of any such interests to become a Substituted Member shall not give rise to any cause of action against the Company or the Managing Member. Subject to the foregoing, an Assignee shall not be admitted as a Substituted Member until and unless it furnishes to the Managing Member (i) evidence of acceptance, in form and substance satisfactory to the Managing Member, of all the terms, conditions and applicable obligations of this Agreement, (ii) a counterpart signature page to this Agreement executed by such Assignee and (iii) such other documents and instruments as the Managing Member may require in its sole discretion to effect such Assignee’s admission as a Substituted Member.
(b) Concurrently with, and as evidence of, the admission of a Substituted Member, the Managing Member shall update the Member Registry and the books and records of the Company to reflect the name, address and number and class and/or series of Membership Units of such Substituted Member and to eliminate or adjust, if necessary, the name, address and number of Membership Units of the predecessor of such Substituted Member.
(c) A transferee who has been admitted as a Substituted Member in accordance with this Article 11 shall have all the rights and powers and be subject to all the restrictions and liabilities of a Member under this Agreement.
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Section 11.5 Assignees. If the Managing Member does not Consent to the admission of any permitted transferee under Section 11.3 hereof as a Substituted Member, as described in Section 11.4 hereof, or in the event that any Membership Interest is deemed to have been Transferred notwithstanding the restrictions set forth in this Article 11, such transferee shall be considered an Assignee for purposes of this Agreement. An Assignee shall be entitled to all the rights of an assignee of a limited liability company interest under the Act, including the right to receive distributions from the Company and the share of Net Income, Net Losses and other items of income, gain, loss, deduction and credit of the Company attributable to the Membership Interest assigned to such transferee and the rights to Transfer the Membership Interest provided in this Article 11, but shall not be deemed to be a holder of a Membership Interest for any other purpose under this Agreement (other than as expressly provided in Section 15.1 hereof with respect to a Qualifying Party that becomes a Tendering Party), and shall not be entitled to effect a Consent or vote with respect to such Membership Interest on any matter presented to the Members for approval (such right to Consent or vote, to the extent provided in this Agreement or under the Act, fully remaining with the transferor Member). In the event that any such transferee desires to make a further Transfer of any such Membership Interest, such transferee shall be subject to all the provisions of this Article 11 to the same extent and in the same manner as any Member desiring to make a Transfer of a Member Interest.
Section 11.6 GeneralProvisions.
(a) No Member may withdraw from the Company other than as a result of: (i) a permitted Transfer of all of such Member’s Membership Interest in accordance with this Article 11 with respect to which the transferee becomes a Substituted Member; (ii) pursuant to a redemption (or acquisition by the Managing Member) of all of its Membership Interest pursuant to a Redemption under Section 15.1 hereof and/or pursuant to Section 4.7 of this Agreement or any Membership Unit Designation or (iii) the acquisition by the Managing Member of all of such Member’s Membership Interest, whether or not pursuant to Section 15.1(b) hereof.
(b) Any Member who shall Transfer all of its Membership Units in a Transfer (i) permitted pursuant to this Article 11 where such transferee was admitted as a Substituted Member, (ii) pursuant to the exercise of its rights to effect a redemption of all of its Membership Units pursuant to a Redemption under Section 15.1 hereof and/or pursuant to Section 4.7 of this Agreement or any Membership Unit Designation, or (iii) to the Managing Member, whether or not pursuant to Section 15.1(b) hereof, shall cease to be a Member.
(c) If any Membership Unit is Transferred in compliance with the provisions of this Article 11, or is redeemed by the Company, or acquired by the Managing Member pursuant to Section 15.1 hereof, on any day other than the first day of a Fiscal Year, then Net Income, Net Losses, each item thereof and all other items of income, gain, loss, deduction and credit attributable to such Membership Unit for such Fiscal Year shall be allocated to the transferor Member or the Tendering Party (as the case may be) and, in the case of a Transfer other than a Redemption, to the transferee Member, by taking into account their varying interests during the Fiscal Year in accordance with Code Section 706(d), using the “interim closing of the books” method or another permissible method selected by the Managing Member in its sole and absolute discretion. The Members hereby agree that any such selection by the Managing Member is made by “agreement of the partners” within the meaning of Regulations Section 1.706-4(f). Solely for purposes of making such allocations, unless the Managing Member decides in its sole and absolute discretion to use another method permitted under the Code, each of such items for the calendar month in which a Transfer occurs shall be allocated to the transferee Member and none of such items for the calendar month in which a Transfer or a Redemption occurs shall be allocated to the transferor Member, or the Tendering Party (as the case may be) if such Transfer occurs on or before the fifteenth (15th) day of the month, otherwise such items shall be allocated to the transferor. All distributions of Available Cash attributable to such Membership Unit with respect to which the Company Record Date is before the date of such Transfer, assignment or Redemption shall be made to the transferor Member or the Tendering Party (as the case may be) and, in the case of a Transfer other than a Redemption, all distributions of Available Cash thereafter attributable to such Membership Unit shall be made to the transferee Member.
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ARTICLE 12ADMISSION OF MEMBERS
Section 12.1 Admissionof Successor Managing Member. A successor to all of the Managing Member’s Managing Member Interest pursuant to a Transfer permitted by Section 11.2 hereof who is proposed to be admitted as a successor Managing Member shall be admitted to the Company as the Managing Member, effective immediately upon such Transfer. Upon any such Transfer and the admission of any such transferee as a successor Managing Member in accordance with this Section 12.1, the transferor Managing Member shall be relieved of its obligations without any further liability under this Agreement and shall cease to be a Managing Member of the Company without any separate Consent of the Non-Managing Members or the consent or approval of any other Members. Any such successor Managing Member shall carry on the business and affairs of the Company without dissolution. In each case, the admission shall be subject to the successor Managing Member executing and delivering to the Company an acceptance of all of the terms and conditions of this Agreement and such other documents or instruments as may be required to effect the admission of such Person as a Managing Member. Upon any such Transfer, the transferee shall become the successor Managing Member for all purposes herein, and shall be vested with the powers and rights of the transferor Managing Member, and shall be liable for all obligations and responsible for all duties of the Managing Member. Concurrently with, and as evidence of, the admission of a successor Managing Member, the Managing Member shall update the Member Registry and the books and records of the Company to reflect the name, address and number and classes and/or series of Membership Units of such successor Managing Member. In the event that the Managing Member withdraws from the Company, or transfers its entire Membership Interest, in violation of this Agreement, or otherwise dissolves or terminates or ceases to be the Managing Member of the Company, a Majority in Interest of the Members may elect to continue the Company by selecting a successor Managing Member in accordance with Section 13.1(a) hereof.
Section 12.2 Admissionof Additional Members.
(a) A Person (other than an existing Member) who makes a Capital Contribution to the Company in exchange for Membership Units and in accordance with this Agreement or is issued LTIP Units in exchange for no consideration in accordance with Section 4.2(b) hereof shall be admitted to the Company as an Additional Member only upon furnishing to the Managing Member (i) evidence of acceptance, in form and substance satisfactory to the Managing Member, of all of the terms and conditions of this Agreement, including, without limitation, the power of attorney granted in Section 2.4 hereof, (ii) a counterpart signature page to this Agreement executed by such Person and (iii) such other documents or instruments as the Managing Member may require in its sole and absolute discretion in order to effect such Person’s admission as an Additional Member. Concurrently with, and as evidence of, the admission of an Additional Member, the Managing Member shall update the Member Registry and the books and records of the Company to reflect the name, address and number and classes and/or series of Membership Units of such Additional Member.
(b) Notwithstanding anything to the contrary in this Section 12.2, no Person shall be admitted as an Additional Member without the Consent of the Managing Member. The admission of any Person as an Additional Member shall become effective on the date upon which the name of such Person is recorded on the books and records of the Company, following the Consent of the Managing Member to such admission and the satisfaction of all the conditions set forth in Section 12.2(a).
(c) If any Additional Member is admitted to the Company on any day other than the first day of a Fiscal Year, then Net Income, Net Losses, each item thereof and all other items of income, gain, loss, deduction and credit allocable among Holders for such Fiscal Year shall be allocated among such Additional Member and all other Holders by taking into account their varying interests during the Fiscal Year in accordance with Code Section 706(d), using the “interim closing of the books” method or another permissible method selected by the Managing Member. The Members hereby agree that any such selection by the Managing Member is made by “agreement of the partners” within the meaning of Regulations Section 1.706-4(f). Solely for purposes of making such allocations, each of such items for the calendar month in which an admission of any Additional Member occurs shall be allocated among all the Holders including such Additional Member, in accordance with the principles described in Section 11.6(c) hereof. All distributions of Available Cash with respect to which the Company Record Date is before the date of such admission shall be made solely to Members and Assignees other than the Additional Member, and all distributions of Available Cash thereafter shall be made to all the Members and Assignees including such Additional Member.
(d) Any Additional Member admitted to the Company that is an Affiliate of the Managing Member shall be deemed to be a “Managing Member Affiliate” hereunder and shall be reflected as such on the Member Registry and the books and records of the Company.
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Section 12.3 Amendmentof Agreement and Articles of Organization. For the admission to the Company of any Member, the Managing Member shall take all steps necessary and appropriate under the Act to update the Member Registry, amend the records of the Company and, if necessary, to prepare as soon as practical an amendment of this Agreement and, if required by law, shall prepare and file an amendment to the Articles of Organization and may for this purpose exercise the power of attorney granted pursuant to Section 2.4 hereof.
Section 12.4 Limiton Number of Members. Unless otherwise permitted by the Managing Member in its sole and absolute discretion, no Person shall be admitted to the Company as an Additional Member if the effect of such admission would be to cause the Company to have a number of Members that would cause the Company to become a reporting company under the Exchange Act.
Section 12.5 Admission. A Person shall be admitted to the Company as a Member of the Company or a Managing Member of the Company only upon strict compliance, and not upon substantial compliance, with the requirements set forth in this Agreement for admission to the Company as a Member or a Managing Member.
ARTICLE 13DISSOLUTION, LIQUIDATION AND TERMINATION
Section 13.1 Dissolution. The Company shall not be dissolved by the admission of Substituted Members or Additional Members or by the admission of a successor Managing Member in accordance with the terms of this Agreement. Upon the withdrawal of the Managing Member, any successor Managing Member shall continue the business and affairs of the Company without dissolution. However, the Company shall dissolve, and its affairs shall be wound up, upon the first to occur of any of the following (each a “Liquidating Event”):
(a) an event of withdrawal of the Managing Member (including, without limitation, bankruptcy, but excluding the admission of a successor Managing Member in accordance with this Agreement) unless, within ninety (90) days after the withdrawal, a Majority in Interest of the Members remaining agree in writing, in their sole and absolute discretion, to continue the Company and to the appointment, effective as of the date of such withdrawal, of a successor Managing Member;
(b) an election to dissolve the Company made by the Managing Member in its sole and absolute discretion, with or without the Consent of the Members;
(c) the termination of the legal existence of the last remaining member of the Company or the occurrence of any other event which terminates the continued membership of the last remaining member of the Company in the Company unless the Company is continued without dissolution in a manner permitted by this Agreement or the Act; or
(d) entry of a decree of judicial dissolution of the Company pursuant to the provisions of the Act;
Section 13.2 WindingUp.
(a) Upon the occurrence of a Liquidating Event, the Company shall continue solely for the purposes of winding up its affairs in an orderly manner, liquidating its assets and satisfying the claims of its creditors and the Holders. After the occurrence of a Liquidating Event, no Holder shall take any action that is inconsistent with, or not necessary to or appropriate for, the winding up of the Company’s business and affairs. The Managing Member (or, in the event that there is no remaining Managing Member or the Managing Member has dissolved, become bankrupt within the meaning of the Act or ceased to operate, any Person elected by a Majority in Interest of the Members (the Managing Member or such other Person being referred to herein as the “Liquidator”)) shall be responsible for overseeing the winding up and dissolution of the Company and shall take full account of the Company’s liabilities and property, and the Company property shall be liquidated as promptly as is consistent with obtaining the fair value thereof, and the proceeds therefrom (which may, to the extent determined by the Managing Member, include shares of stock in the Managing Member) shall be applied and distributed in the following order:
(i) First, to the satisfaction of all of the Company’s debts and liabilities to creditors other than the Holders (whether by payment or the making of reasonable provision for payment thereof);
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(ii) Second, to the satisfaction of all of the Company’s debts and liabilities to the Managing Member (whether by payment or the making of reasonable provision for payment thereof), including, but not limited to, amounts due as reimbursements under Section 7.4 hereof;
(iii) Third, to the satisfaction of all of the Company’s debts and liabilities to the other Holders (whether by payment or the making of reasonable provision for payment thereof); and
(iv) Fourth, to the Members in accordance with their positive Capital Account balances, determined after taking into account all Capital Account adjustments for all prior periods and the Company taxable year during which the liquidation occurs (other than those made as a result of the liquidating distribution set forth in this Section 13.2(a)(iv)).
The Managing Member shall not receive any additional compensation for any services performed pursuant to this Article 13 other than reimbursement of its expenses as set forth in Section 7.4.
(b) Notwithstanding the provisions of Section 13.2(a) hereof that require liquidation of the assets of the Company, but subject to the order of priorities set forth therein, if prior to or upon dissolution of the Company, the Liquidator determines that an immediate sale of part or all of the Company’s assets would be impractical or would cause undue loss to the Holders, the Liquidator may, in its sole and absolute discretion, defer for a reasonable time the liquidation of any assets except those necessary to satisfy liabilities of the Company (including to those Holders as creditors) and/or distribute to the Holders, in lieu of cash, as tenants in common and in accordance with the provisions of Section 13.2(a) hereof, undivided interests in such Membership assets as the Liquidator deems not suitable for liquidation. Any such distributions in kind shall be made only if, in the good faith judgment of the Liquidator, such distributions in kind are in the best interest of the Holders, and shall be subject to such conditions relating to the disposition and management of such properties as the Liquidator deems reasonable and equitable and to any agreements governing the operation of such properties at such time. The Liquidator shall determine the fair market value of any property distributed in kind using such reasonable method of valuation as it may adopt.
(c) If any Holder has a deficit balance in its Capital Account (after giving effect to all contributions, distributions and allocations for all taxable years, including the year during which such liquidation occurs), except as otherwise agreed to by such Holder, such Holder shall have no obligation to make any contribution to the capital of the Company with respect to such deficit, and such deficit shall not be considered a debt owed to the Company or to any other Person for any purpose whatsoever.
(d) In the sole and absolute discretion of the Managing Member or the Liquidator, a pro rata portion of the distributions that would otherwise be made to the Holders pursuant to this Article 13 may be:
(i) distributed to a trust established for the benefit of the Managing Member and the Holders for the purpose of liquidating Company assets, collecting amounts owed to the Company, and paying any contingent, conditional or unmantured liabilities or obligations of the Company or of the Managing Member arising out of or in connection with the Company and/or Company activities. The assets of any such trust shall be distributed to the Holders, from time to time, in the discretion of the Managing Member, in the same proportions and amounts as would otherwise have been distributed to the Holders pursuant to this Agreement; or
(ii) withheld or escrowed to provide a reasonable reserve for Company liabilities (contingent or otherwise) and to reflect the unrealized portion of any installment obligations owed to the Company, provided that such withheld or escrowed amounts shall be distributed to the Holders in the manner and order of priority set forth in Section 13.2(a) hereof as soon as practicable.
(e) The provisions of Section 7.8 hereof shall apply to any Liquidator appointed pursuant to this Article 13 as though the Liquidator were the Managing Member of the Company.
Section 13.3 Rightsof Holders. Except as otherwise provided in this Agreement and subject to the rights of any Holder of any Membership Interest set forth in any Membership Unit Designation , (a) each Holder shall look solely to the assets of the Company for the return of its Capital Contribution, (b) no Holder shall have the right or power to demand or receive property other than cash from the Company and (c) no Holder shall have priority over any other Holder as to the return of its Capital Contributions, distributions or allocations.
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Section 13.4 Noticeof Dissolution. In the event that a Liquidating Event occurs or an event occurs that would, but for an election or objection by one or more Members pursuant to Section 13.1 hereof, result in a dissolution of the Company, the Managing Member or Liquidator shall, within thirty (30) days thereafter, provide written notice thereof to each Holder and, in the Managing Member’s or Liquidator’s sole and absolute discretion or as required by the Act, to all other parties with whom the Company regularly conducts business (as determined in the sole and absolute discretion of the Managing Member or Liquidator), and the Managing Member or Liquidator may, or, if required by the Act, shall, publish notice thereof in a newspaper of general circulation in each place in which the Company regularly conducts business (as determined in the sole and absolute discretion of the Managing Member or Liquidator).
Section 13.5 Articlesof Cancellation. Upon the completion of the liquidation of the Company cash and property as provided in Section 13.2 hereof, the Company shall be terminated, articles of cancellation shall be filed with the SDAT and all qualifications of the Company as a foreign limited liability company or association in jurisdictions other than the State of Maryland shall be cancelled, and such other actions as may be necessary to terminate the Company shall be taken.
Section 13.6 ReasonableTime for Winding-Up. A reasonable time shall be allowed for the orderly winding-up of the business and affairs of the Company and the liquidation of its assets pursuant to Section 13.2 hereof, in order to minimize any losses otherwise attendant upon such winding-up, and the provisions of this Agreement shall remain in effect between and among the Members during the period of liquidation; provided, however, reasonable efforts shall be made to complete such winding-up within twenty-four (24) months after the adoption of a plan of liquidation of the Managing Member, as provided in Section 562(b)(1)(B) of the Code, if necessary, in the sole and absolute discretion of the Managing Member.
ARTICLE 14PROCEDURES FOR ACTIONS AND CONSENTS OF MEMBERS; AMENDMENTS; MEETINGS
Section 14.1 Proceduresfor Actions and Consents of Members. The actions requiring Consent of any Member or Members pursuant to this Agreement, including Section 7.3 hereof, or otherwise pursuant to applicable law, are subject to the procedures set forth in this Article 14.
Section 14.2 Amendments. Amendments to this Agreement may be proposed by the Managing Member or by Members holding twenty-five percent (25%) or more of the Membership Interests held by Members and, except as set forth in Section 7.3(b) and Section 7.3(c) and subject to Section 7.3(d), Section 16.10 and the rights of any Holder of any Membership Interest set forth in any Membership Unit Designation, shall be approved by the Consent of the Members. Following such proposal, the Managing Member shall submit to the Members entitled to vote thereon any proposed amendment that, pursuant to the terms of this Agreement, requires the consent, approval or vote of such Members. The Managing Member shall seek the consent, approval or vote of the Members entitled to vote thereon on any such proposed amendment in accordance with Section 14.3 hereof. Upon obtaining any such Consent, or any other Consent required by this Agreement, and without further action or execution by any other Person, including any Member, (a) any amendment to this Agreement may be implemented and reflected in a writing executed solely by the Managing Member, and (b) the Members shall be deemed a party to and bound by such amendment of this Agreement. For the avoidance of doubt, notwithstanding anything to the contrary in this Agreement, this Agreement may not be amended without the Consent of the Managing Member.
Section 14.3 Actionsand Consents of the Members.
(a) Meetings of the Members may be called only by the Managing Member to transact any business that the Managing Member determines. The call shall state the nature of the business to be transacted. Notice of any such meeting shall be given to all Members entitled to act at the meeting not less than seven (7) days nor more than sixty (60) days prior to the date of such meeting. Members may vote in person or by proxy at such meeting. Unless approval by a different number or proportion of the Members is required by this Agreement, the affirmative vote of a Majority in Interest of the Members entitled to act on any proposal shall be sufficient to approve such proposal at a meeting of the Members. Whenever the vote, consent or approval of Members is permitted or required under this Agreement, such vote, consent or approval may be given at a meeting of Members or in accordance with the procedure prescribed in Section 14.3(b) hereof.
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(b) Any action requiring the Consent of any Member or group of Members pursuant to this Agreement or that is required or permitted to be taken at a meeting of the Members may be taken without a meeting if a consent in writing or by electronic transmission setting forth the action so taken or consented to is given by Members whose affirmative vote would be sufficient to approve such action or provide such Consent at a meeting of the Members. Such consent may be in one instrument or in several instruments, and shall have the same force and effect as the affirmative vote of such Members at a meeting of the Members. Such consent shall be filed with the Managing Member. An action so taken shall be deemed to have been taken at a meeting held on the effective date so certified. For purposes of obtaining a Consent in writing or by electronic transmission, the Managing Member may require a response within a reasonable specified time, but not less than fifteen (15) days, and failure to respond in such time period shall constitute a Consent that is consistent with the Managing Member’s recommendation with respect to the proposal; provided, however, that an action shall become effective at such time as requisite Consents are received even if prior to such specified time.
(c) Each Member entitled to act at a meeting of the Members may authorize any Person or Persons to act for it by proxy on all matters in which a Member is entitled to participate, including waiving notice of any meeting, or voting or participating at a meeting. Each proxy must be signed by the Member or its attorney-in-fact. No proxy shall be valid after the expiration of eleven (11) months from the date thereof unless otherwise provided in the proxy (or there is receipt of a proxy authorizing a later date). Every proxy shall be revocable at the pleasure of the Member executing it, such revocation to be effective upon the Company’s receipt of written notice of such revocation from the Member executing such proxy, unless such proxy states that it is irrevocable and is coupled with an interest.
(d) The Managing Member may set a record date for the purpose of determining the Members (i) entitled to Consent to any action, (ii) entitled to receive notice of or vote at any meeting of the Members or (iii) in order to make a determination of Members for any other proper purpose. Such date, in any case, shall not be more than ninety (90) days and, in the case of a meeting of the Members, not less than five (5) days, before the date on which the meeting is to be held or Consent is to be given. If no record date is fixed, the record date for the determination of Members entitled to notice of or to vote at a meeting of the Members shall be at the close of business on the day on which the notice of the meeting is sent, and the record date for any other determination of Members shall be the effective date of such Member action, distribution or other event. When a determination of the Members entitled to vote at any meeting of the Members has been made as provided in this section, such determination shall apply to any adjournment thereof.
(e) Each meeting of Members shall be conducted by the Managing Member or such other Person as the Managing Member may appoint pursuant to such rules for the conduct of the meeting as the Managing Member or such other Person deems appropriate in its sole and absolute discretion. Without limitation, meetings of Members may be conducted in the same manner as meetings of the Managing Member’s stockholders and may be held at the same time as, and as part of, the meetings of the Managing Member’s stockholders.
ARTICLE 15GENERAL PROVISIONS
Section 15.1 RedemptionRights of Qualifying Parties.
(a) After the applicable Initial Holding Period, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Company to redeem all or a portion of Common Units held by such Tendering Party (Common Units that have in fact been tendered for redemption being hereafter referred to as “Tendered Units”) in exchange (a “Redemption”) for the Cash Amount payable on the Specified Redemption Date. The Company may, in the Managing Member’s sole and absolute discretion, redeem Tendered Units at the request of the Holder thereof prior to the end of the applicable Initial Holding Period (subject to the terms and conditions set forth herein) (a “Special Redemption”); provided, however, that the Managing Member first receives an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Company or the Managing Member to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of Class A-1 REIT Shares to the Tendering Party pursuant to Section 15.1(b) of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the Managing Member by the Qualifying Party when exercising the Redemption right (the “Tendering Party”). The Company’s obligation to effect a Redemption, however, shall not arise or be binding against the Company until the earlier of (i) the date the Managing Member notifies the Tendering Party that the Managing Member declines to acquire some or all of the Tendered Units under Section 15.1(b) hereof following receipt of a Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the Managing Member’s sole and absolute discretion, in immediately available funds, in each case, on or before the Specified Redemption Date; provided, however, that the Managing Member may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the Managing Member to cause additional Class A-1 REIT Shares to be issued to provide financing to be used to make such payment of the Cash Amount.
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(b) Notwithstanding the provisions of Section 15.1(a) hereof, on or before the close of business on the Cut-Off Date, the Managing Member may, in the Managing Member’s sole and absolute discretion but subject to the Ownership Limit, elect to acquire some or all (such percentage being referred to as the “Applicable Percentage”) of the Tendered Units from the Tendering Party in exchange for Class A-1 REIT Shares. If the Managing Member elects to acquire some or all of the Tendered Units pursuant to this Section 15.1(b), the Managing Member shall give written notice thereof to the Tendering Party on or before the close of business on the Cut-Off Date. If the Managing Member elects to acquire any of the Tendered Units for Class A-1 REIT Shares, the Managing Member shall issue and deliver such Class A-1 REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1(b), in which case (i) the Managing Member shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party’s exercise of its Redemption right with respect to such Tendered Units and (ii) such transaction shall be treated, for federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the Managing Member in exchange for the REIT Shares Amount. If the Managing Member so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the Managing Member in exchange for a number of Class A-1 REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage; provided, however, that the Managing Member may elect to cause the Specified Redemption Date to be delayed for up to an additional 60 Business Days to the extent required for the Managing Member to cause additional Class A-1 REIT Shares to be issued. The Tendering Party shall submit (A) such information, certification or affidavit as the Managing Member may reasonably require in connection with the application of the Ownership Limit to any such acquisition and (B) such written representations, investment letters, legal opinions or other instruments necessary, in the Managing Member’s view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the Managing Member pursuant to this Section 15.1(b), the Tendering Party shall no longer have the right to cause the Company to effect a Redemption of such Tendered Units and, upon notice to the Tendering Party by the Managing Member given on or before the close of business on the Cut-Off Date that the Managing Member has elected to acquire some or all of the Tendered Units pursuant to this Section 15.1(b), the obligation of the Company to effect a Redemption of the Tendered Units as to which the Managing Member’s notice relates shall not accrue or arise. A number of Class A-1 REIT Shares equal to the product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the Managing Member as duly authorized, validly issued, fully paid and non-assessable Class A-1 REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership Limit, the Securities Act and relevant state securities or “blue sky” laws. Neither any Tendering Party whose Tendered Units are acquired by the Managing Member pursuant to this Section 15.1(b), any Member, any Assignee nor any other interested Person shall have any right to require or cause the Managing Member to register, qualify or list any Class A-1 REIT Shares owned or held by such Person, whether or not such Class A-1 REIT Shares are issued pursuant to this Section 15.1(b), with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the Managing Member and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such Class A-1 REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. Class A-1 REIT Shares issued upon an acquisition of the Tendered Units by the Managing Member pursuant to this Section 15.1(b) may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the Managing Member determines to be necessary or advisable in order to ensure compliance with such laws.
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(c) Notwithstanding the provisions of Section 15.1(a) and 15.1(b) hereof:
(i) The Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited by the Charter and shall have no rights to require the Company to redeem Common Units if the acquisition of such Common Units by the Managing Member pursuant to Section 15.1(b) hereof would cause any Person to violate the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the Managing Member pursuant to Section 15.1(b) hereof would be in violation of this Section 15.1(c)(i), to the fullest extent permitted by law, it shall be void, and the Tendering Party shall not acquire any rights or economic interests in Class A-1 REIT Shares otherwise issuable by the Managing Member under Section 15.1(b) hereof or cash otherwise payable under Section 15.1(a) hereof.
(ii) No Tendering Party may exercise its Redemption right pursuant to this Agreement more than one (1) time during any fiscal quarter of the Company.
(iii) No Tendering Party may deliver a Notice of Redemption during the period from December 1 of any year through January 1 of the following year, nor shall any Specified Redemption Date occur during the period from December 21 of any year through January 22 of the following year.
(d) If the Managing Member does not elect to acquire the Tendered Units pursuant to Section 15.1(b) hereof:
(i) The Company may elect to raise funds for the payment of the Cash Amount either (A) by requiring that the Managing Member contribute to the Company funds from the proceeds of a registered public offering by the Managing Member of Class A-1 REIT Shares sufficient to purchase the Tendered Units or (B) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Company. Any proceeds from a public offering that are in excess of the Cash Amount shall be for the sole benefit of the Managing Member. The Managing Member shall make a Capital Contribution of any such amounts to the Company for an additional Managing Member Interest in accordance with Section 4.3(e).
(ii) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate).
(e) Notwithstanding the provisions of Section 15.1(b) hereof, the Managing Member shall not, under any circumstances, elect to acquire any Tendered Units in exchange for Class A-1 REIT Shares if such exchange would be prohibited under the Charter.
(f) Notwithstanding anything herein to the contrary (but subject to Section 15.1(c) hereof), with respect to any Redemption (or any tender of Common Units for Redemption if the Tendered Units are acquired by the Managing Member pursuant to Section 15.1(b) hereof) pursuant to this Section 15.1:
(i) All Common Units acquired by the Managing Member pursuant to Section 15.1(b) hereof shall automatically, and without further action required, be converted into and deemed to be a Managing Member Interest comprised of the same number of Common Units.
(ii) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Common Units or, if such Tendering Party holds (as a Member or, economically, as an Assignee) less than one thousand (1,000) Common Units, all of the Common Units held by such Tendering Party, without, in each case, the Consent of the Managing Member.
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(iii) If (A) a Tendering Party surrenders its Tendered Units during the period after the Company Record Date with respect to a distribution and before the record date established by the Managing Member for a distribution to its stockholders of some or all of its portion of such Company distribution, and (B) the Managing Member elects to acquire any of such Tendered Units in exchange for Class A-1 REIT Shares pursuant to Section 15.1(b), such Tendering Party shall pay to the Managing Member on the Specified Redemption Date an amount in cash equal to the portion of the Company distribution in respect of the Tendered Units exchanged for Class A-1 REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such Class A-1 REIT Shares.
(iv) The consummation of such Redemption (or an acquisition of Tendered Units by the Managing Member pursuant to Section 15.1(b) hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Hart-Scott-Rodino Act.
(v) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Common Units subject to any Redemption, and be treated as a Member or an Assignee, as applicable, with respect to such Common Units for all purposes of this Agreement, until such Common Units are either paid for by the Company pursuant to Section 15.1(a) hereof or transferred to the Managing Member and paid for, by the issuance of the Class A-1 REIT Shares, pursuant to Section 15.1(b) hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the Managing Member pursuant to Section 15.1(b) hereof, the Tendering Party shall have no rights as a stockholder of the Managing Member with respect to the Class A-1 REIT Shares issuable in connection with such acquisition.
(g) In connection with an exercise of Redemption rights pursuant to this Section 15.1, except as otherwise Consented to by the Managing Member, the Tendering Party shall submit the following to the Managing Member, in addition to the Notice of Redemption:
(i) A written affidavit, dated the same date as the Notice of Redemption, (A) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Common Stock of any series by (I) such Tendering Party and (II) to the best of their knowledge any Related Party and (B) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the Managing Member pursuant to Section 15.1(b) hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Common Stock in violation of the Ownership Limit;
(ii) A written representation that neither the Tendering Party nor to the best of their knowledge any Related Party has any intention to acquire any additional REIT Common Stock of any series prior to the closing of the Redemption or an acquisition of the Tendered Units by the Managing Member pursuant to Section 15.1(b) hereof on the Specified Redemption Date;
(iii) An undertaking to certify, at and as a condition of the closing of (A) the Redemption or (B) the acquisition of Tendered Units by the Managing Member pursuant to Section 15.1(b) hereof on the Specified Redemption Date, that either (I) the actual and constructive ownership of REIT Common Stock of any series by the Tendering Party and to the best of its knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1(g)(i) or (II) after giving effect to the Redemption or the acquisition of Tendered Units by the Managing Member pursuant to Section 15.1(b) hereof, neither the Tendering Party nor, to the best of its knowledge, any other Person shall own REIT Common Stock in violation of the Ownership Limit; and
(iv) In connection with any Special Redemption, the Managing Member shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Company or the Managing Member to violate any federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of Class A-1 REIT Shares to the Tendering Party pursuant to Section 15.1(b) of this Agreement.
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(h) Holders of LTIP Units shall not be entitled to the right of Redemption provided for in Section 15.1 of this Agreement, unless and until such LTIP Units have been converted into Common Units (or any other class or series of Common Units entitled to such right of Redemption) in accordance with their terms.
(i) In connection with any Redemption provided for in Section 15.1 of this Agreement by a Member who holds, or whose Affiliate holds, Class A-2 REIT Shares, a number of Class A-2 REIT Shares equal to the number of Tendered Units shall be surrendered by such Member or its Affiliate to the Managing Member and cancelled in accordance with the Charter.
Section 15.2 Addressesand Notice. Any notice, demand, request or report required or permitted to be given or made to a Member or Assignee under this Agreement shall be in writing and shall be deemed given or made when delivered in person or when sent by first class United States mail or by other means of written or electronic communication (including by telecopy, facsimile, electronic mail or commercial courier service) to the Member, or Assignee at the address set forth in the Member Registry or such other address of which the Member shall notify the Managing Member in accordance with this Section 15.2.
Section 15.3 Titlesand Captions. All article or section titles or captions in this Agreement are for convenience only. They shall not be deemed part of this Agreement and in no way define, limit, extend or describe the scope or intent of any provisions hereof. Except as specifically provided otherwise, references to “Articles” or “Sections” are to Articles and Sections of this Agreement.
Section 15.4 Pronounsand Plurals. Whenever the context may require, any pronouns used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa.
Section 15.5 FurtherAction. The parties shall execute and deliver all documents, provide all information and take or refrain from taking action as may be necessary or appropriate to achieve the purposes of this Agreement.
Section 15.6 BindingEffect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their heirs, executors, administrators, successors, legal representatives and permitted assigns.
Section 15.7 Waiver.
(a) No failure by any party to insist upon the strict performance of any covenant, duty, agreement or condition of this Agreement or to exercise any right or remedy consequent upon a breach thereof shall constitute waiver of any such breach or any other covenant, duty, agreement or condition.
(b) The restrictions, conditions and other limitations on the rights and benefits of the Members contained in this Agreement, and the duties, covenants and other requirements of performance or notice by the Members, are for the benefit of the Company and, except for an obligation to pay money to the Company, may be waived or relinquished by the Managing Member, in its sole and absolute discretion, on behalf of the Company in one or more instances from time to time and at any time; provided, however, that any such waiver or relinquishment may not be made if it would have the effect of (i) creating liability for any other Member, (ii) causing the Company to cease to qualify as a limited liability company, (iii) reducing the amount of cash otherwise distributable to the Members (other than any such reduction that affects all of the Members holding the same class or series of Membership Units on a uniform or pro rata basis, if approved by a Majority in Interest of the Members holding such class or series of Membership Units), (iv) resulting in the classification of the Company as an association or publicly traded partnership taxable as a corporation or (v) violating the Securities Act, the Exchange Act or any state “blue sky” or other securities laws; and provided, further, that any waiver relating to compliance with the Ownership Limit or other restrictions in the Charter shall be made and shall be effective only as provided in the Charter.
Section 15.8 Counterparts. This Agreement may be executed in counterparts, all of which together shall constitute one agreement binding on all the parties hereto, notwithstanding that all such parties are not signatories to the original or the same counterpart. Each party shall become bound by this Agreement immediately upon affixing its signature hereto.
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Section 15.9 ApplicableLaw; Consent to Jurisdiction; Waiver of Jury Trial.
(a) This Agreement shall be construed and enforced in accordance with and governed by the laws of the State of Maryland, without regard to the principles of conflicts of law. In the event of a conflict between any provision of this Agreement and any non-mandatory provision of the Act, the provisions of this Agreement shall control and take precedence.
(b) Each Member hereby (i) submits to the non-exclusive jurisdiction of any state or federal court sitting in the State of Maryland (collectively, the “Maryland Courts”), with respect to any dispute arising out of this Agreement or any transaction contemplated hereby to the extent such courts would have subject matter jurisdiction with respect to such dispute, (ii) to the fullest extent permitted by law, irrevocably waives, and agrees not to assert by way of motion, defense, or otherwise, in any such action, any claim that it is not subject personally to the jurisdiction of any of the Maryland Courts, that its property is exempt or immune from attachment or execution, that the action is brought in an inconvenient forum, or that the venue of the action is improper, (iii) agrees that notice or the service of process in any action, suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be properly served or delivered if delivered to such Member at such Member’s last known address as set forth in the Company’s books and records, and (iv) irrevocably waives any and all right to trial by jury in any legal proceeding arising out of or related to this Agreement or the transactions contemplated hereby.
Section 15.10 EntireAgreement. This Agreement contains all of the understandings and agreements between and among the Members with respect to the subject matter of this Agreement and the rights, interests and obligations of the Members with respect to the Company. Notwithstanding the immediately preceding sentence, the Members hereby acknowledge and agree that the Managing Member, without the approval of any Member, may enter into side letters or similar written agreements with Members that are not Affiliates of the Managing Member, executed contemporaneously with the admission of such Member to the Company, affecting the terms hereof, as negotiated with such Member and which the Managing Member in its sole discretion deems necessary, desirable or appropriate. The parties hereto agree that any terms, conditions or provisions contained in such side letters or similar written agreements with a Member shall govern with respect to such Member notwithstanding the provisions of this Agreement.
Section 15.11 Invalidityof Provisions. If any provision of this Agreement is or becomes invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not be affected thereby.
Section 15.12 Limitationto Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount to be paid, credited, distributed or reimbursed by the Company to any REIT Member or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a “REIT Payment”), would constitute gross income to the REIT Member for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the Managing Member in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Fiscal Year so that the REIT Payments, as so reduced, for or with respect to such REIT Member shall not exceed the lesser of:
(a) an amount equal to the excess, if any, of (i) four percent (4%) of the REIT Member’s total gross income (but excluding the amount of any REIT Payments and any amounts excluded from gross income pursuant to Section 856(c) of the Code) for the Fiscal Year that is described in subsections (A) through (I) of Code Section 856(c)(2) over (ii) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Member from sources other than those described in subsections (A) through (I) of Code Section 856(c)(2) (but not including the amount of any REIT Payments or any amounts excluded from gross income pursuant to Section 856(c) of the Code); or
(b) an amount equal to the excess, if any, of (i) twenty-four percent (24%) of the REIT Member’s total gross income (but excluding the amount of any REIT Payments and any amounts excluded from gross income pursuant to Section 856(c) of the Code) for the Fiscal Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (ii) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Member from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT Payments or any amounts excluded from gross income pursuant to Section 856(c) of the Code);
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provided, however, that REIT Payments in excess of the amounts set forth in clauses (a) and (b) above may be made if the Managing Member, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts should not adversely affect the REIT Member’s ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Fiscal Year as a consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Fiscal Year if such carry over does not adversely affect the REIT Member’s ability to qualify as a REIT, provided, however, that any such REIT Payment shall not be carried over more than three Fiscal Years, and any such remaining payments shall no longer be due and payable. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Member from failing to qualify as a REIT under the Code by reason of such REIT Member’s share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Company, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.
Section 15.13 NoPartition. No Member nor any successor-in-interest to a Member shall have the right while this Agreement remains in effect to have any property of the Company partitioned, or to file a complaint or institute any proceeding at law or in equity to have such property of the Company partitioned, and to the fullest extent permitted by law, each Member, on behalf of itself and its successors and assigns hereby waives any such right. It is the intention of the Members that the rights of the parties hereto and their successors-in-interest to Membership property, as among themselves, shall be governed by the terms of this Agreement, and that the rights of the Members and their respective successors-in-interest shall be subject to the limitations and restrictions as set forth in this Agreement.
Section 15.14 NoThird-Party Rights Created Hereby. The provisions of this Agreement are solely for the purpose of defining the interests of the Holders, inter se; and no other person, firm or entity (i.e., a party who is not a signatory hereto or a permitted successor to such signatory hereto) shall have any right, power, title or interest by way of subrogation or otherwise, in and to the rights, powers, title and provisions of this Agreement, except that the Manager is expressly made a third-party beneficiary of the provisions of Section 7.1(a), Section 7.4(a) and Section 7.10 of this Agreement. No creditor or other third party having dealings with the Company (other than as expressly provided herein with respect to Indemnitees) shall have the right to enforce the right or obligation of any Member to make Capital Contributions or loans to the Company or to pursue any other right or remedy hereunder or at law or in equity. None of the rights or obligations of the Members herein set forth to make Capital Contributions or loans to the Company shall be deemed an asset of the Company for any purpose by any creditor or other third party, nor may any such rights or obligations be sold, transferred or assigned by the Company or pledged or encumbered by the Company to secure any debt or other obligation of the Company or any of the Members.
Section 15.15 NoRights as Stockholders. Nothing contained in this Agreement shall be construed as conferring upon the Holders of Membership Units any rights whatsoever as stockholders of the Managing Member, including without limitation any right to receive dividends or other distributions made to stockholders of the Managing Member or to vote or to consent or receive notice as stockholders in respect of any meeting of stockholders for the election of directors of the Managing Member or any other matter.
ARTICLE 16LTIP UNITS
Section 16.1 Designation. A class of Membership Units in the Company designated as the “LTIP Units” is hereby established. The number of LTIP Units that may be issued is not limited by this Agreement.
Section 16.2 Vesting.
(a) Vesting,Generally. LTIP Units may, in the sole discretion of the Managing Member, be issued subject to vesting, forfeiture and additional restrictions on Transfer pursuant to the terms of the applicable LTIP Unit Agreement or Equity Plan. The terms of any LTIP Unit Agreement may be modified by the Managing Member from time to time in its sole discretion, subject to any restrictions on amendment imposed by the relevant LTIP Unit Agreement or by the Plan or any other applicable Equity Plan. LTIP Units that were fully vested and nonforfeitable when issued or that have vested and are no longer subject to forfeiture under the terms of an LTIP Unit Agreement are referred to as “Vested LTIP Units”; all other LTIP Units are referred to as “Unvested LTIP Units.”
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(b) Forfeiture. Upon the forfeiture of any LTIP Units in accordance with the applicable LTIP Unit Agreement and Equity Plan (including any forfeiture effected through repurchase), the LTIP Units so forfeited (or repurchased) shall immediately, and without any further action, be treated as cancelled and no longer outstanding for any purpose. Unless otherwise specified in the applicable LTIP Unit Agreement, no consideration or other payment shall be due with respect to any LTIP Units that have been forfeited, other than any distributions declared prior to the effective date of the forfeiture with respect to a Company Record Date and with respect to such LTIP Units. Except as otherwise provided in this Agreement (including without limitation Section 6.4(a)(ix)), the Plan (or other applicable Equity Plan) and the applicable LTIP Unit Agreement, in connection with any forfeiture (or repurchase) of such units, the balance of the portion of the Capital Account of the Holder of LTIP Units that is attributable to all of such Holder’s LTIP Units shall be reduced by the amount, if any, by which it exceeds the target balance contemplated by Section 6.2(d), calculated with respect to such Holder’s remaining LTIP Units, if any.
Section 16.3 Adjustments. The Company shall maintain at all times a one-to-one correspondence between LTIP Units and Common Units for conversion, distribution and other purposes, including, without limitation, complying with the following procedures; provided, that the foregoing is not intended to alter any of (a) the special allocations pursuant to Section 6.2(d) hereof, (b) differences between distributions to be made with respect to LTIP Units and Common Units pursuant to Section 13.2 and Section 16.4(b) hereof in the event that the Capital Accounts attributable to the LTIP Units are less than those attributable to Common Units due to insufficient special allocation pursuant to Section 6.2(d) or (c) any related provisions. If an Adjustment Event occurs, then the Managing Member shall take any action reasonably necessary, including any amendment to this Agreement, any LTIP Unit Agreement and/or any update to the Member Registry adjusting the number of outstanding LTIP Units or subdividing or combining outstanding LTIP Units, in any case, to maintain a one-for-one conversion and economic equivalence ratio between Common Units and LTIP Units. An “Adjustment Event” shall mean any of the following events: (i) the Company makes a distribution on all outstanding Common Units in Membership Units, (ii) the Company subdivides the outstanding Common Units into a greater number of units or combines the outstanding Common Units into a smaller number of units, (iii) the Company issues any Membership Units in exchange for its outstanding Common Units by way of a reclassification or recapitalization of its Common Units or (iv) any other non-recurring event or transaction that would, as determined by the Managing Member in its sole discretion, have the similar effect of diluting or expanding the rights or benefits (or potential benefits) intended to be conferred by outstanding LTIP Units. If more than one Adjustment Event occurs, any adjustment to the LTIP Units may be made only once using a single formula that takes into account each and every Adjustment Event as if all Adjustment Events occurred simultaneously. For the avoidance of doubt, the following shall not be Adjustment Events: (x) the issuance of Membership Units in a financing, reorganization, acquisition or other similar business transaction, (y) the issuance of Membership Units pursuant to any employee benefit or compensation plan or distribution reinvestment plan, or (z) the issuance of any Membership Units to the Managing Member in respect of a Capital Contribution to the Company of proceeds from the sale of securities by the Managing Member. If the Company takes an action affecting the Common Units other than actions specifically described above as “Adjustment Events” and in the opinion of the Managing Member such action would require an action to maintain the one-to-one correspondence described above, the Managing Member shall have the right to take such action, to the extent permitted by law, in such manner and at such time as the Managing Member, in its sole discretion, may determine to be reasonably appropriate under the circumstances to preserve the one-to-one correspondence described above. If an amendment is made to this Agreement adjusting the number of outstanding LTIP Units as herein provided, the Company shall promptly file in the books and records of the Company an officer’s certificate setting forth a brief statement of the facts requiring such adjustment, which certificate shall be conclusive evidence of the correctness of such adjustment absent manifest error. Promptly after filing of such certificate, the Company shall mail a notice to each Holder of LTIP Units setting forth the adjustment to such Holder’s LTIP Units and the effective date of such adjustment.
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Section 16.4 Distributions.
(a) OperatingDistributions. Except as otherwise provided in this Agreement, any LTIP Unit Agreement, the Plan (or any other applicable Equity Plan), or by the Managing Member with respect to any particular class or series of LTIP Units, Holders of LTIP Units shall be entitled to receive, if, when and as authorized by the Managing Member out of funds or other property legally available for the payment of distributions, regular, special, extraordinary or other distributions (other than distributions upon the occurrence of a Liquidating Event or proceeds from a Terminating Capital Transaction) which may be made from time to time, in an amount per unit equal to (i) with respect to any LTIP Units that are not Performance LTIP Units, the amount of any such distributions that would have been payable to such holders if the LTIP Units had been Common Units (if applicable, assuming such LTIP Units were held for the entire period to which such distributions relate) and (ii) with respect to any Performance LTIP Units, an amount equal to (A) in the case of Performance LTIP Units that have not satisfied the applicable performance vesting condition, the product of the distribution made to holders of Common Units per Common Unit multiplied by the Performance Unit Sharing Percentage, and (B) in the case of Performance LTIP Units that have satisfied the applicable performance vesting condition, the distribution made to holders of Common Units per Common Unit, in each case, if applicable, assuming such LTIP Units were held for the entire period to which such distributions relate.
(b) LiquidatingDistributions. Holders of LTIP Units shall also be entitled to receive, if, when and as authorized by the Managing Member out of funds or other property legally available for the payment of distributions, distributions upon the occurrence of a Liquidating Event or representing proceeds from a Terminating Capital Transaction in an amount per LTIP Unit equal to the amount of any such distributions payable on one Common Unit, whether made prior to, on or after the LTIP Unit Distribution Payment Date, provided that the amount of such distributions shall not exceed the positive balances of the Capital Accounts of the holders of such LTIP Units to the extent attributable to the ownership of such LTIP Units.
(c) DistributionsGenerally. Distributions on the LTIP Units, if authorized, shall be payable on such dates and in such manner as may be authorized by the Managing Member (any such date, an “LTIP Unit Distribution Payment Date”). Absent a contrary determination by the Managing Member, the LTIP Unit Distribution Payment Date shall be the same as the corresponding date relating to the corresponding distribution on the Common Units. The record date for determining which Holders of LTIP Units are entitled to receive a distribution shall be the Company Record Date.
Section 16.5 Allocations.
(a) Holders of LTIP Units that are not Performance LTIP Units and Holders of Performance LTIP Units that have satisfied the applicable performance condition shall be allocated Net Income and Net Loss in amounts per LTIP Unit equal to the amounts allocated per Common Unit. The allocations provided by the preceding sentence shall be subject to Sections 6.2(a) and 6.2(b), and in addition to any special allocations required by Section 6.2(d).
(b) Holders of Performance LTIP Units that have not satisfied the applicable performance condition shall be allocated Net Income and Net Loss in amounts per Performance LTIP Unit equal to the amounts allocated per Performance LTIP Unit that has satisfied the applicable performance condition; provided, however, that for purposes of allocations of Net Income and Net Loss pursuant to Sections 6.2(a), 6.2(b), 6.3(c) and 6.4, the term Percentage Interest when used with respect to a Performance LTIP Unit that has not satisfied the applicable performance condition shall refer to the Percentage Interest of a Common Unit multiplied by the Performance Unit Sharing Percentage.
(c) The Managing Member is authorized in its discretion to delay or accelerate the participation of the LTIP Units in allocations of Net Income and Net Loss under this Section 16.5, or to adjust the allocations made under this Section 16.5, so that the ratio of (i) the total amount of Net Income or Net Loss allocated with respect to each LTIP Unit in the taxable year in which that LTIP Unit’s LTIP Unit Distribution Payment Date falls (excluding special allocations under Section 6.2(d)), to (ii) the total amount distributed to that LTIP Unit with respect to such period, is more nearly equal to the ratio of (i) the Net Income and Net Loss allocated with respect to the Managing Member’s Common Units in such taxable year to (ii) the amounts distributed to the Managing Member with respect to such Common Units and such taxable year.
Section 16.6 Transfers. Subject to the terms and limitations contained in an applicable LTIP Unit Agreement and the Plan (or any other applicable Equity Plan) and except as expressly provided in this Agreement with respect to LTIP Units, a Holder of LTIP Units shall be entitled to transfer such Holder’s LTIP Units to the same extent, and subject to the same restrictions, as Holders of Common Units are entitled to transfer their Common Units pursuant to Article 11.
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Section 16.7 Redemption. The Redemption right provided to Qualifying Parties under Section 15.1 shall not apply with respect to LTIP Units unless and until they are converted to Common Units as provided in Section 16.9 below.
Section 16.8 Legend. Any certificate evidencing an LTIP Unit shall bear an appropriate legend, as determined by the Managing Member, indicating that additional terms, conditions and restrictions on transfer, including without limitation under any LTIP Unit Agreement and the Plan (or any other applicable Equity Plan), apply to the LTIP Unit.
Section 16.9 Conversionto Common Units.
(a) A Qualifying Party holding LTIP Units shall have the right (the “Conversion Right”), at such Qualifying Party’s option, at any time to convert all or a portion of such Qualifying Party’s Vested LTIP Units into Common Units, taking into account all adjustments (if any) made pursuant to Section 16.3; provided, however, that a Qualifying Party may not exercise the Conversion Right for less than one thousand (1,000) Vested LTIP Units or, if such Qualifying Party holds less than one thousand (1,000) Vested LTIP Units, all of the Vested LTIP Units held by such Qualifying Party to the extent not subject to the limitation on conversion under Section 16.9(b) below. Qualifying Parties shall not have the right to convert Unvested LTIP Units into Common Units until they become Vested LTIP Units; provided, however, that in anticipation of any event that will cause such Qualifying Party’s Unvested LTIP Units to become Vested LTIP Units (and subject to the timing requirements set forth in Section 16.9(b) below), such Qualifying Party may give the Company a Conversion Notice conditioned upon and effective as of the time of vesting and such Conversion Notice, unless subsequently revoked by the Qualifying Party in writing prior to such vesting event, shall be accepted by the Company subject to such condition. In all cases, the conversion of any LTIP Units into Common Units shall be subject to the conditions and procedures set forth in this Section 16.9.
(b) A Qualifying Party may convert such Qualifying Party’s Vested LTIP Units into an equal number of fully paid and non-assessable Common Units, giving effect to all adjustments (if any) made pursuant to Section 16.3. Notwithstanding the foregoing, in no event may a Qualifying Party convert a number of Vested LTIP Units that exceeds the Capital Account Limitation. In order to exercise such Qualifying Party’s Conversion Right, a Qualifying Party shall deliver a written notice (a “Conversion Notice”) in substantially the form attached as Exhibit C to the Company (with a copy to the Managing Member) not less than 3 calendar days nor more than 10 calendar days prior to the date (the “Conversion Date”) specified in such Conversion Notice; provided, however, that if the Managing Member has not given to the Qualifying Party notice of a proposed or upcoming Transaction (as defined below) at least thirty (30) days prior to the effective date of such Transaction, then the Qualifying Party shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth (10th) calendar day after such notice from the Managing Member of a Transaction or (y) the third Business Day immediately preceding the effective date of such Transaction. A Conversion Notice shall be provided in the manner provided in Section 15.2. Each Qualifying Party seeking to convert Vested LTIP Units covenants and agrees with the Company that all Vested LTIP Units to be converted pursuant to this Section 16.9 shall be free and clear of all liens and encumbrances. Notwithstanding anything herein to the contrary, if the Initial Holding Period with respect to the Common Units into which the Vested LTIP Units are convertible has elapsed, a Qualifying Party may deliver a Notice of Redemption pursuant to Section 15.1(a) relating to such Common Units in advance of the Conversion Date; provided, however, that the redemption of such Common Units by the Company shall in no event take place until on or after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put a Qualifying Party in a position where, if such Qualifying Party so wishes, the Common Units into which such Qualifying Party’s Vested LTIP Units will be converted can be redeemed by the Company pursuant to Section 15.1(a) simultaneously with such conversion, with the further consequence that, if the Managing Member elects to assume the Company’s redemption obligation with respect to such Common Units under Section 15.1(b) by delivering to such Qualifying Party Class A-1 REIT Shares rather than cash, then such Qualifying Party can have such Class A-1 REIT Shares issued to such Qualifying Party simultaneously with the conversion of such Qualifying Party’s Vested LTIP Units into Common Units. The Managing Member shall use commercially reasonable efforts to cooperate with a Qualifying Party to coordinate the timing of the different events described in the foregoing sentence.
(c) Notwithstanding the provisions of Section 16.9(a) and 16.9(b) hereof: (i) no Qualifying Party may exercise its Conversion Right pursuant to this Agreement more than one (1) time during any fiscal quarter of the Company; and (ii) no Qualifying Party may deliver a Notice of Conversion during the period from December 1 of any year through January 1 of the following year, nor shall any Conversion Date occur during the period from December 21 of any year through January 22 of the following year.
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(d) The Company, at any time at the election of the Managing Member, may cause any number of Vested LTIP Units to be converted (a “ForcedConversion”) into an equal number of Common Units, giving effect to all adjustments (if any) made pursuant to Section 16.3; provided, however, that the Company may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the election of such Qualifying Party pursuant to Section 16.9(b). In order to exercise its right of Forced Conversion, the Company shall deliver a notice (a “Forced Conversion Notice”) in substantially the form attached hereto as Exhibit D to the applicable Holder of LTIP Units not less than 3 calendar days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section 15.2.
(e) A conversion of Vested LTIP Units for which the Holder thereof has given a Conversion Notice or the Company has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such Holder of LTIP Units, other than the surrender of any certificate or certificates evidencing such Vested LTIP Units, as of which time such Holder of LTIP Units shall be credited on the books and records of the Company as of the opening of business on the next day with the number of Common Units into which such LTIP Units were converted. After the conversion of LTIP Units as aforesaid, the Company shall deliver to such Holder of LTIP Units, upon such Holder’s written request, a certificate of the Managing Member certifying the number of Common Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Member pursuant to Article 11 hereof may exercise the rights of such Member pursuant to this Section 16.9 and such Member shall be bound by the exercise of such rights by the Assignee.
(f) For purposes of making future allocations under Section 6.2(d) and applying the Capital Account Limitation, the portion of the Economic Capital Account Balance of the applicable Holder of LTIP Units that is treated as attributable to such Holder’s LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the Common Unit Economic Balance.
(g) If the Company or the Managing Member shall be a party to any transaction (including without limitation a merger, consolidation, unit exchange, self-tender offer for all or substantially all Common Units or other business combination or reorganization, or sale of all or substantially all of the Company’s assets, but excluding any transaction which constitutes an Adjustment Event) in each case as a result of which Common Units shall be exchanged for or converted into the right, or the Holders shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Transaction”), then the Managing Member shall, immediately prior to the Transaction, exercise its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the Company were sold at the Transaction price or, if applicable, at a value determined by the Managing Member in good faith using the value attributed to the Common Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction and the conversion shall occur immediately prior to the effectiveness of the Transaction). In anticipation of such Forced Conversion and the consummation of the Transaction, the Company shall use commercially reasonable efforts to cause each Holder of LTIP Units to be afforded the right to receive in connection with such Transaction in consideration for the Common Units into which such Holder’s LTIP Units will be converted the same kind and amount of cash, securities and other property (or any combination thereof) receivable upon the consummation of such Transaction by a Holder of the same number of Common Units, assuming such Holder is not a Person with which the Company consolidated or into which the Company merged or which merged into the Company or to which such sale or transfer was made, as the case may be (a “ConstituentPerson”), or an affiliate of a Constituent Person. In the event that Holders of Common Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Transaction, prior to such Transaction the Managing Member shall give prompt written notice to each Holder of LTIP Units of such opportunity, and shall use commercially reasonable efforts to afford the Holder of LTIP Units the right to elect, by written notice to the Managing Member, the form or type of consideration to be received upon conversion of each LTIP Unit held by such Holder into Common Units in connection with such Transaction. If a Holder of LTIP Units fails to make such an election, such Holder (and any of such Holder’s transferees) shall receive upon conversion of each LTIP Unit held by such Holder (or by any of such Holder’s transferees) the same kind and amount of consideration that a Holder of Common Units would receive if such Holder of Common Units failed to make such an election. Subject to the rights of the Company and the Managing Member under any LTIP Unit Agreement and the relevant terms of the Plan or any other applicable Equity Plan, the Company shall use commercially reasonable effort to cause the terms of any Transaction to be consistent with the provisions of this Section 16.9(g) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any Holder of LTIP Units whose LTIP Units will not be converted into Common Units in connection with the Transaction that will (i) contain provisions enabling the Qualifying Parties that remain outstanding after such Transaction to convert their LTIP Units into securities as comparable as reasonably practicable under the circumstances to the Common Units and (ii) preserve as far as reasonably practicable under the circumstances the distribution, special allocation, conversion, and other rights set forth in the Agreement for the benefit of the Holder of LTIP Units.
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Section 16.10 Voting. Except as expressly provided in this Agreement, Members holding LTIP Units shall have the same voting rights as Members holding Common Units, with the LTIP Units voting together as a single class with the Common Units and having one vote per LTIP Unit and Holders of LTIP Units shall not be entitled to approve, vote on or consent to any other matter. The foregoing voting provision will not apply if, at or prior to the time when the action with respect to which such vote would otherwise be required will be effected, all outstanding LTIP Units shall have been converted (or provision is made for such conversion to occur as of or prior to such time) into Common Units.
Section 16.11 Section 83Safe Harbor. Each Member authorizes the Managing Member to elect to apply the safe harbor (the “Section 83 Safe Harbor”) set forth in proposed Regulations Section 1.83-3(l) and proposed IRS Revenue Procedure published in Notice 2005-43 (together, the “Proposed Section 83 Safe Harbor Regulation”) (under which the fair market value of a Membership Interest that is Transferred in connection with the performance of services is treated as being equal to the liquidation value of the interest), or in similar Regulations or guidance, if such Proposed Section 83 Safe Harbor Regulation or similar Regulations are promulgated as final or temporary Regulations. If the Managing Member determines that the Company should make such election, the Managing Member is hereby authorized to amend this Agreement without the consent of any other Member to provide that (i) the Company is authorized and directed to elect the Section 83 Safe Harbor, (ii) the Company and each of its Members (including any Person to whom a Membership Interest, including an LTIP Unit, is Transferred in connection with the performance of services) will comply with all requirements of the Section 83 Safe Harbor with respect to all Membership Interests Transferred in connection with the performance of services while such election remains in effect and (iii) the Company and each of its Members will take all actions necessary, including providing the Company with any required information, to permit the Company to comply with the requirements set forth or referred to in the applicable Regulations for such election to be effective until such time (if any) as the Managing Member determines, in its sole discretion, that the Company should terminate such election. The Managing Member is further authorized to amend this Agreement to modify Article 6 to the extent the Managing Member determines in its discretion that such modification is necessary or desirable as a result of the issuance of any applicable law, Regulations, notice or ruling relating to the tax treatment of the transfer of a Membership Interests in connection with the performance of services. Notwithstanding anything to the contrary in this Agreement, each Member expressly confirms that it will be legally bound by any such amendment.
[Remainder of Page Left Blank Intentionally]
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IN WITNESS WHEREOF, this Agreement has been executed as of the date first written above.
| MANAGING MEMBER: | |
|---|---|
| JANUS LIVING, INC., | |
| a Maryland corporation | |
| By: | /s/ Tracy A. Porter |
| Name: | Tracy A. Porter |
| Its: | Executive Vice President and General Counsel |
exhibitA
EXAMPLESREGARDING ADJUSTMENT FACTOR
For purposes of the following examples, it is assumed that (a) the Adjustment Factor in effect on is 1.0 and (b) on (the “CompanyRecord Date” for purposes of these examples), prior to the events described in the examples, there are 100 Class A-1 REIT Shares issued and outstanding.
Example 1
On the Company Record Date, the Managing Member declares a dividend on its outstanding Class A-1 REIT Shares in Class A-1 REIT Shares. The amount of the dividend is one Class A-1 REIT Share paid in respect of each Class A-1 REIT Share owned. Pursuant to Paragraph (a) of the definition of “Adjustment Factor,” the Adjustment Factor shall be adjusted on the Company Record Date, effective immediately after the stock dividend is declared, as follows:
1.0 * 200/100 = 2.0
Accordingly, the Adjustment Factor after the stock dividend is declared is 2.0.
Example 2
On the Company Record Date, the Managing Member distributes options to purchase Class A-1 REIT Shares to all holders of its Class A-1 REIT Shares. The amount of the distribution is one option to acquire one Class A-1 REIT Share in respect of each Class A-1 REIT Share owned. The strike price is $4.00 a share. The Value of a Class A-1 REIT Share on the Company Record Date is $5.00 per share. Pursuant to Paragraph (b) of the definition of “Adjustment Factor,” the Adjustment Factor shall be adjusted on the Company Record Date, effective immediately after the options are distributed, as follows:
1.0 * (100 + 100)/(100 + [100 * $4.00/$5.00]) = 1.1111
Accordingly, the Adjustment Factor after the options are distributed is 1.1111. If the options expire or become no longer exercisable, then the retroactive adjustment specified in Paragraph (b) of the definition of “Adjustment Factor” shall apply.
Example 3
On the Company Record Date, the Managing Member distributes assets to all holders of its Class A-1 REIT Shares. The amount of the distribution is one asset with a fair market value (as determined by the Managing Member) of $1.00 in respect of each Class A-1 REIT Share owned. It is also assumed that the assets do not relate to assets received by the Managing Member pursuant to a pro rata distribution by the Company. The Value of a Class A-1 REIT Share on the Company Record Date is $5.00 a share. Pursuant to Paragraph (c) of the definition of “Adjustment Factor,” the Adjustment Factor shall be adjusted on the Company Record Date, effective immediately after the assets are distributed, as follows:
1.0 * $5.00/($5.00 - $1.00) = 1.25
Accordingly, the Adjustment Factor after the assets are distributed is 1.25.
A-1
exhibitB
NOTICEOF REDEMPTION
To: [l]
The undersigned Member or Assignee hereby irrevocably tenders for Redemption Common Units in Janus Living OP, LLC in accordance with the terms of the Amended and Restated Operating Agreement of Janus Living OP, LLC, dated as of [l], 2026 (the “Agreement”), and the Redemption rights referred to therein. The undersigned Member or Assignee:
| (a) | undertakes (i) to surrender such Common<br> Units and any certificate therefor at the closing of the Redemption, (ii) in the case<br> of a Member or Assignee holding, or whose Affiliate holds, Class A-2 REIT Shares, to<br> surrender, or cause its Affiliate to surrender, an equal number of Class A-2 REIT Shares<br> to the Managing Member and any certificate therefor at the closing of the Redemptions, and<br> (iii) to furnish to the Managing Member, prior to the Specified Redemption Date, the<br> documentation, instruments and information required under Section 15.1(a) and Section 15.1(g) of<br> the Agreement; |
|---|---|
| (b) | directs that the certified check representing<br> the Cash Amount, or the REIT Shares Amount, as applicable, deliverable upon the closing of<br> such Redemption be delivered to the address specified below; |
| --- | --- |
| (c) | represents, warrants, certifies and agrees<br> that: |
| --- | --- |
| (i) | the undersigned Member or Assignee is<br> a Qualifying Party, |
| --- | --- |
| (ii) | the undersigned Member or Assignee has,<br> and at the closing of the Redemption will have, good, marketable and unencumbered title to<br> such Common Units, free and clear of the rights or interests of any other person or entity, |
| --- | --- |
| (iii) | the undersigned Member or Assignee has,<br> and at the closing of the Redemption will have, the full right, power and authority to tender<br> and surrender such Common Units as provided herein, and |
| --- | --- |
| (iv) | the undersigned Member or Assignee has<br> obtained the consent or approval of all persons and entities, if any, having the right to<br> consent to or approve such tender and surrender; and |
| --- | --- |
| (d) | acknowledges that the undersigned Member or<br> Assignee will continue to own such Common Units until and unless either (i) such Common<br> Units are acquired by the Managing Member pursuant to Section 15.1(b) of the Agreement<br> or (ii) such redemption transaction closes |
| --- | --- |
All capitalized terms used herein and not otherwise defined shall have the same meaning ascribed to them respectively in the Agreement.
| Dated: | Name of Member or Assignee:<br><br> <br><br><br> <br>(Signature of Member or Assignee)<br><br> <br><br><br> <br>(Street Address)<br><br> <br><br><br> <br>(City) (State) (Zip Code) |
|---|---|
| Signature Medallion Guaranteed by: | |
| Issue Check Payable to: | |
| Please insert social security or identifying number: |
B-1
exhibitC
NOTICEOF ELECTION BY MEMBER TO CONVERTLTIP UNITS INTO COMMON UNITS
The undersigned holder of LTIP Units hereby irrevocably (i) elects to convert the number of LTIP Units in Janus Living OP, LLC (the “Company”) set forth below into Common Units in accordance with the terms of the Amended and Restated Operating Agreement of the Company; and (ii) directs that any cash in lieu of Common Units that may be deliverable upon such conversion to be deliverable upon such conversion be delivered to the address specified below. The undersigned hereby represents, warrants, and certifies that the undersigned (a) has title to such LTIP Units, free and clear of the rights or interests of any other person or entity other than the Company; (b) has the full right, power, and authority to cause the conversion of such LTIP Units as provided herein; and (c) has obtained the consent or approval of all persons or entities, if any, having the right to consent or approve such conversion.
| Name of LTIP Unit Holder: | |
|---|---|
| Please Print Name as Registered with the Company | |
| Number of LTIP Units to be Converted: | |
| Date of this Notice: | |
| (Signature of LTIP Unit Holder) | |
| (Street Address) | |
| (City) (State) (Zip Code) | |
| Signature Medallion Guaranteed by: | |
| Issue Check Payable to: | |
| Please insert social<br>security or identifying number: |
C-1
exhibitD
NOTICEOF ELECTION BY COMPANY TO FORCE CONVERSIONOF LTIP UNITS INTO COMMON UNITS
Janus Living OP, LLC (the “Company”) hereby irrevocably elects to cause the number of LTIP Units held by the LTIP Unit Holder set forth below to be converted into Common Units in accordance with the terms of the Amended and Restated Operating Agreement of the Company.
| Name of LTIP Unit Holder: | |
|---|---|
| Please Print Name as Registered with the Company | |
| Number of LTIP Units to be Converted: | |
| Date of this Notice: |
D-1
Exhibit 10.2
MANAGEMENT AGREEMENT
This Management Agreement is made as of March 19, 2026, by and between Janus Living, Inc., a Maryland corporation (the “Parent REIT”), Janus Living OP, LLC, a Maryland limited liability company **(**the “Operating Company”), and Healthpeak Investment Management, LLC, a Delaware limited liability company (“Manager”).
WHEREAS, the Parent REIT is a publicly traded real estate investment trust that conducts substantially all of its business and holds substantially all of its assets through the Operating Company; and
WHEREAS, the Parent REIT and the Operating Company (together, the “Company”) desire to retain Manager to provide management and advisory services, and Manager is willing to do so on the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual agreements herein set forth, the parties hereto agree as follows:
Section 1. Definitions. As used in this Agreement, the following terms have the meanings set forth below:
(a) “Acquisition” means any direct or indirect purchase, exchange, issuance of equity, merger, division, reorganization or similar transaction pursuant to which the Company or any of its Subsidiaries acquires (i) Equity Interests in another Person, (ii) all or substantially all of the assets of another Person, or (iii) any other Investment.
(b) “Affiliate” means, with respect to any Person, (i) any other Person directly or indirectly controlling, controlled by or under common control with such Person, (ii) any executive officer, general partner or employee of such Person, and (iii) any member of the board of directors or managers (or similar governing body) of such Person. For purposes of this definition, the terms “controlling,” “controlled by,” or “under common control with” shall mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership or voting rights, by contract or otherwise.
(c) “Agreement” means this Management Agreement, as amended, restated or supplemented from time to time.
(d) “Boardof Directors” or “Board” mean the Board of Directors of the Parent REIT.
(e) “BusinessDay” means any day other than a Saturday or Sunday or a day on which banks in New York City are authorized or required to close.
(f) “CapitalDeployment” means the incurrence of capital expenditures with respect to any Investment that are equal to or greater than (i) ten percent (10%) of the gross book value (as determined in accordance with GAAP) of such Investment at the time of the initial incurrence of such capital expenditures or the initiation of such capital expenditure plan or (ii) five million U.S. dollars ($5,000,000.00).
(g) “Code” means the Internal Revenue Code of 1986, as amended from time to time, or any successor statute thereto. Reference to any provision of the Code shall mean such provision as in effect from time to time, as the same may be amended and any successor provision thereto, as interpreted by any applicable regulations as in effect from time to time.
(h) “CommonStock” means the Class A-1 common stock, par value $1.00, of the Parent REIT.
(i) “CommonUnits” means units of limited liability company interest in the Operating Company.
(j) “CompanyAccount” shall have the meaning set forth in Section 6 of this Agreement.
(k) “CompanyCompetitor” means any Person that, together with its Affiliates, directly or indirectly owns, operates, manages or develops senior housing communities, where either (i) at least ten percent (10%) of the consolidated gross book value (as determined in accordance with GAAP) is attributable to senior housing or (ii) at least 5,000 units of such Person’s real estate assets are attributable to senior housing.
(l) “CompanyData” shall have the meaning set forth in Section 8(b) of this Agreement.
(m) “Control” (including the terms “controlling,” “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management, policies or activities of a Person, whether through ownership of voting securities, by contract or otherwise. Without limiting the foregoing, a Person shall be deemed to Control another Person if it: (i) owns, directly or indirectly, more than fifty percent (50%) of the voting securities of such Person; or (ii) has the right to appoint or elect a majority of the members of the board of directors (or similar governing body) of such Person.
(n) “CoveredPerson” shall have the meaning set forth in Section 13(a) of this Agreement.
(o) “Disposition” means any transaction, or series of related transactions, pursuant to which the Company or any of its Subsidiaries sells, assigns, transfers, leases, or otherwise disposes of any Investment (whether now owned or hereafter acquired) to any other Person, in each case, whether or not the consideration therefor consists of cash, securities or other assets owned by the acquiring Person.
(p) “EquityAwards” shall mean equity-based awards recommended by Manager and approved and granted by the Board of Directors (or a subcommittee thereof) to Qualifying Service Providers pursuant to the Equity Plan or any other equity plan adopted or maintained by the Company from time to time.
(q) “EquityAward Expense” shall mean the stock-based compensation expense recognized by the Company in connection with the accounting for annual Equity Awards pursuant to FASB Accounting Standards Codification Topic 718, Compensation—Stock Compensation, net of any reversals in connection with forfeitures.
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(r) “EquityInterest” means (i) any share of stock, partnership or joint venture interest, membership interest, limited liability company interest, beneficial interest in a trust, or similar security or any other interest in the equity of any applicable Person; (ii) any security, debt instrument, or other interest directly or indirectly convertible into or exercisable or exchangeable for (with or without consideration) any of the foregoing securities or other equity interests; (iii) any and all other securities that are derived from, or the value of which is dependent upon, any of the securities or other equity interests of any applicable Person described in clause (i) (including any phantom stock, restricted stock units, profit participation, equity appreciation rights, arrangements, or the like); (iv) any warrant, option, put, call, or other right relating to the subscription, purchase, exchange, grant, issuance, conversion, redemption, repurchase, voting, or transfer of any of the securities or other equity interests described in clause (i) (including convertible or exchangeable securities); and (v) any bonds, debentures, notes, or other indebtedness issued by such Person that has the right to vote (or which is convertible or exchangeable for securities having the right to vote) on any matters on which the holders of Equity Interests under the foregoing clauses (i)-(iv) of this definition of such Person are entitled to vote, in each case with respect to the applicable Person, as the context requires.
(s) “EquityPlan” means the 2026 Janus Living, Inc. Equity Plan, as amended, restated, replaced or supplemented from time to time.
(t) “ExcessFunds” shall have the meaning set forth in Section 2(f) of this Agreement.
(u) “ExchangeAct” means the Securities Exchange Act of 1934, as amended.
(v) “ExclusivityAgreement” means that certain Exclusivity Agreement, of even date herewith, by and between the Company and Healthpeak Parent.
(w) “Expenses” shall have the meaning set forth in Section 11(c) of this Agreement.
(x) “GAAP” means accounting principles generally accepted in the United States.
(y) “GoverningInstruments” means, with regard to any entity, the articles of incorporation and bylaws in the case of a corporation, certificate of limited partnership (if applicable) and the partnership agreement in the case of a general or limited partnership, the articles of formation and the operating agreement in the case of a limited liability company, the trust instrument in the case of a trust, or similar governing documents, in each case as amended from time to time.
(z) “HealthpeakParent” means Healthpeak Properties, Inc., a Maryland corporation, of which Manager is an indirect subsidiary as of the date hereof.
(aa) “HealthpeakParent Change of Control” means, following the date of this Agreement, the acquisition by any Person(s), including any syndicate or group deemed to be a person under Section 13(d)(3) of the Exchange Act, of Control of Healthpeak Parent through a purchase, merger or other acquisition transaction or series of related transactions.
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(bb) “HealthpeakTRS” shall have the meaning set forth in Section 16 of this Agreement.
(cc) “IndependentCommittee” means a committee of the Board of Directors comprised of Independent Directors.
(dd) “IndependentDirectors” means the members of the Board of Directors who are not officers or employees of Manager or any Person directly or indirectly controlling or controlled by Manager and who are otherwise “independent” in accordance with the NYSE listing standards (or the rules of any other national securities exchange on which the Common Stock is listed).
(ee) “InitialPublic Offering” means an initial public offering of the Common Stock registered with the U.S. Securities and Exchange Commission under the Securities Act.
(ff) “InitialTerm” shall have the meaning set forth in Section 14(a) of this Agreement.
(gg) “InsolvencyEvent” means, with respect to any Person, (A) the filing by the Person of a voluntary petition seeking liquidation, reorganization, arrangement, or readjustment, in any form, of its debts under Title 11 of the United States Code or any other U.S. federal or state or foreign insolvency law, or the Person’s filing an answer consenting to or acquiescing in any petition, (B) the making by the Person of any assignment for the benefit of its creditors, (C) the expiration of sixty (60) days after the filing of an involuntary petition under Title 11 of the United State Code, an application for the appointment of a receiver for a material portion of the assets of the Person, or an involuntary petition seeking liquidation, reorganization, arrangement or readjustment of its debts under any other U.S. federal or state or foreign insolvency law, provided that the petition shall not have been vacated, set aside or stayed within such 60-day period, or (D) the entry against the Person of a final and non-appealable order for relief under any bankruptcy, insolvency or similar law now or hereinafter in effect.
(hh) “InvestmentCompany Act” means the Investment Company Act of 1940, as amended.
(ii) “InvestmentGuidelines” shall have the meaning set forth in Section 2(b) of this Agreement.
(jj) “Investment” means an investment, including an investment in real property, directly by the Company and indirectly by the Company through its Subsidiaries.
(kk) “ManagementFee” means an annual fee of ten million U.S. dollars ($10,000,000.00), plus or minus the cumulative effect of any Management Fee Adjustment Amount.
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(ll) “Management Fee AdjustmentAmount” means an annual amount equal to 50 basis points (0.5%) of (i) the gross book value (as determined in accordance with GAAP) of any Investment that was the subject of an Acquisition or Disposition or (ii) the increase in the gross book value of any Investment that was the subject of a Capital Deployment, in each case since January 1, 2026; provided, that (A) if the total Investments of the Company have a gross book value in excess of ten billion U.S. dollars ($10,000,000,000.00) but less than twenty billion U.S. dollars ($20,000,000,000.00) as of the determination of the Management Fee Adjustment Amount pursuant to Section 10(c), such 50 basis points (0.5%) will be decreased by 10 basis points (0.1%) for each dollar of gross book value of any Investment that was the subject of an Acquisition or Disposition, or increase in gross book value of any Investment that was the subject of a Capital Deployment, that is in excess of ten billion U.S. dollars ($10,000,000,000.00) but less than twenty billion U.S. dollars ($20,000,000,000.00), and (B) if the total Investments of the Company have a gross book value in excess of twenty billion U.S. dollars ($20,000,000,000.00) as of the determination of the Management Fee Adjustment Amount pursuant to Section 10(c), such 50 basis points (0.5%) will be decreased by 15 basis points (0.15%) for each dollar of gross book value of any Investment that was the subject of an Acquisition or Disposition, or increase in the gross book value of any Investment that was the subject of a Capital Deployment, that is in excess of twenty billion U.S. dollars ($20,000,000,000.00). For the purposes of this definition, (x) the gross book value of any Investment in an unconsolidated joint venture shall mean the gross book value of such Investment on the books and records of the joint venture, (y) the gross book value of any Investment that was the subject of Capital Deployment shall mean the incremental increase in the gross book value of such Investment as a result of such Capital Deployment and (z) the gross book value of any Investment that was the subject of an Acquisition since January 1, 2026 shall not include the Investments reflected on the balance sheet of “Janus Living Predecessor” as of December 31, 2025 included in Parent REIT’s registration statement on Form S-11 filed with the U.S. Securities and Exchange Commission under the Securities Act.
(mm) “ManagerChange of Control” means, following the date of this Agreement, the acquisition by any Person(s) who are not Affiliates of Manager, including any syndicate or group deemed to be a person under Section 13(d)(3) of the Exchange Act, of Control of Manager through a purchase, merger or other acquisition transaction or series of related transactions; provided, that for purposes of this definition, a Healthpeak Parent Change of Control shall not be deemed a Manager Change of Control unless such Healthpeak Parent Change of Control results in Manager being Controlled by a Company Competitor.
(nn) “ManagerIP” shall have the meaning set forth in Section 8(a) of this Agreement.
(oo) “NYSE” means the New York Stock Exchange.
(pp) “Person” means any individual, corporation, partnership, joint venture, limited liability company, estate, trust, unincorporated association, any federal, state, county or municipal government or any bureau, department or agency thereof and any fiduciary acting in such capacity on behalf of any of the foregoing.
(qq) “QualifyingService Provider” means an employee or consultant of the Manager or its Affiliates who qualifies as an “employee” within the meaning of the General Instructions of Form S-8 for registration under the Securities Act of securities to be offered to employees pursuant to employee benefit plans.
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(rr) “REIT” means a “real estate investment trust” within the meaning of Sections 856 through 860 of the Code.
(ss) “RelatedParty Transaction Policy” means the policy governing related person transactions adopted by the Board of Directors.
(tt) “RenewalTerm” shall have the meaning set forth in Section 14(a) of this Agreement.
(uu) “SecuritiesAct” means the Securities Act of 1933, as amended.
(vv) “Subsidiary” means a corporation, limited liability company, partnership, joint venture or other entity or organization in which the Company has a direct or indirect ownership interest.
(ww) “Term” shall have the meaning set forth in Section 14(a) of this Agreement.
(xx) “TerminationFee” shall have the meaning set forth in Section 14(f) of this Agreement.
(yy) “TransitionPeriod” shall have the meaning set forth in Section 15 of this Agreement.
(zz) The words “hereof,” “herein” and “hereunder” and words of similar import refer to this Agreement as a whole and not to any particular provision, and section references are to this Agreement unless otherwise specified. The meanings given to defined terms apply equally to the singular and plural forms of such terms, and the words include, includes and including shall be deemed to be followed by the phrase “without limitation.”
Section 2. Appointmentand Duties of Manager. (a) The Company hereby appoints Manager to perform the services set forth herein on the terms and conditions set forth in this Agreement, and Manager hereby accepts such appointment. The appointment is exclusive to Manager except as Manager may otherwise agree or as expressly provided in this Agreement.
(b) Manager is subject to the supervision, direction and management of the Board of Directors and is responsible for the day-to-day operations of the Company and its Subsidiaries. Manager shall provide the services described herein to each of the Parent REIT and the Operating Company as appropriate in light of their respective functions, responsibilities, and activities, including the matters described below. Subject to the investment guidelines approved by the Board of Directors from time to time (such guidelines as initially approved and attached hereto as Exhibit A, as the same may be modified, supplemented or waived with such approval, the “Investment Guidelines”), the direction of the Board of Directors, and applicable law, Manager shall:
(i) originate, evaluate, negotiate, structure, close, monitor, refinance and dispose of Investments;
(ii) arrange and manage equity and debt financings and hedging activities;
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(iii) provide portfolio, asset, property and risk management services;
(iv) furnish executive, administrative, accounting, internal audit, information-technology and other support services reasonably required for the operation of the Company and its Subsidiaries;
(v) advise and assist the Company with respect to the Company’s public relations, preparation of marketing materials, internet website and investor relations services;
(vi) engage, supervise, and monitor third-party service providers, including Affiliates, in accordance with Section 2(d);
(vii) to the extent not covered above, advise and assist the Company in the review and negotiation of the Company’s contracts and agreements, and coordinate and supervise all third-party legal services and claims by or against the Company;
(viii) assist the Company in retaining advisors to advise the Company regarding the maintenance of its qualification as a REIT and monitor compliance with the various REIT qualification tests and other rules set out in the Code and Treasury Regulations thereunder;
(ix) advise the Company regarding the maintenance of their exemptions from the status of an investment company required to register under the Investment Company Act, and monitor compliance with the requirements for maintaining such exemptions and using commercially reasonable efforts to cause them to maintain such exemptions from such status;
(x) assist the Company in qualifying to do business in all applicable jurisdictions in which the Company or its Subsidiaries do business, and ensure that the Company and its Subsidiaries obtain and maintain all applicable licenses;
(xi) assist the Company in complying with all regulatory requirements applicable to them with respect to their business activities, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports and documents, if any, required under the Exchange Act, the Securities Act or the NYSE (or such other securities exchange on which the Common Stock may be listed);
(xii) use commercially reasonable efforts to cause the Company, the Operating Company and their respective subsidiaries to comply with all applicable laws;
(xiii) provide office space, equipment and experienced and qualified personnel necessary for the performance of the foregoing services; and
(xiv) perform any other services reasonably requested by the Board of Directors that are consistent with the responsibilities outlined in the foregoing and Manager’s expertise.
(c) For the period and on the terms set forth in this Agreement, the Company and its Subsidiaries hereby constitutes, appoints, and authorizes Manager as its true and lawful agent and attorney-in-fact to negotiate, execute and deliver agreements and instruments on its behalf as Manager, acting in its reasonable discretion, deems necessary or appropriate. This power of attorney is coupled with an interest.
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(d) Manager may enter into agreements with other parties, including its Affiliates, for the provision of services on behalf of the Company and its Subsidiaries; provided that (i) any such agreements with Affiliates comply with the Related Party Transaction Policy and (ii) any modification or waiver of the Related Party Transaction Policy shall require approval of a majority of the Independent Directors.
(e) Manager shall prepare and deliver to the Board of Directors such periodic reports regarding performance of Investments, financial results and compliance as the Board of Directors may reasonably request, including quarterly and annual reports sufficient to allow the Company to satisfy its SEC and NYSE reporting obligations.
(f) Notwithstanding anything contained in this Agreement to the contrary, Manager shall not be required to expend money (“Excess Funds”) in connection with any expenses that are required to be paid for or reimbursed by the Company or its Subsidiaries pursuant to Section 11 in excess of that contained in any applicable Company Account or otherwise made available by the Company or its Subsidiaries to be expended by Manager hereunder. Manager’s decision not to advance Excess Funds shall not constitute unsatisfactory performance for purposes of Section 13(a).
(g) In performing its duties under this Section 2, Manager shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other service providers) hired by Manager at the Company’s sole cost and expense.
Section 3. Devotionof Time; Other Activities. (a) Manager and its Affiliates will provide the services set forth herein to the Company with employees of the Manager or its Affiliates, including senior executive officers and appropriate support personnel, who shall devote such portion of their time (including certain personnel who shall devote all of their time) to the Company’s affairs as Manager determines is necessary and appropriate. Except as provided in Section 10(d), the Manager’s personnel shall receive no compensation from the Company for their services to the Company in any such capacities.
(b) Subject to Section 3(a) above and the Exclusivity Agreement, nothing in this Agreement prevents Manager or its Affiliates, officers, directors or employees from engaging in other businesses, funds or accounts or from rendering services of any kind to any other Person.
(c) Managers, partners, officers, employees, personnel and agents of Manager or Affiliates of Manager may serve as directors, officers, employees, partners, personnel, agents, nominees or signatories for the Company and/or any of its Subsidiaries, to the extent permitted by their Governing Instruments or by any resolutions duly adopted by the Board of Directors. When executing documents or otherwise acting in such capacities for the Company or its Subsidiaries, such persons shall use their respective titles in the Company or its Subsidiaries.
(d) The Company agrees to take all actions reasonably necessary to permit and enable Manager to carry out its duties and obligations under this Agreement.
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Section 4. Conflictsof Interest. The parties recognize that conflicts of interest may arise involving transactions between the Company or its Subsidiaries, on the one hand, and Manager or its Affiliates, on the other. The parties agree to act in a commercially reasonable manner to address such conflicts to the reasonable satisfaction of the Independent Committee. Unless otherwise approved by the Manager and the Independent Committee, each party shall bear its own costs in connection with a Related Party Transaction.
Section 5. Agency. Manager shall act as agent of the Company or its Subsidiaries in making, acquiring, financing and disposing of Investments, disbursing and collecting the funds of the Company and its Subsidiaries, paying the debts and fulfilling the obligations of the Company and its Subsidiaries, supervising the performance of professionals engaged by or on behalf of the Company and its Subsidiaries and handling, prosecuting and settling any claims of or against the Company and its Subsidiaries, the Board of Directors, holders of the Company’s securities or representatives or assets of the Company and its Subsidiaries.
Section 6. BankAccounts. Manager may establish and maintain as an agent on behalf of the Company one or more bank accounts in its own name or in the name of the Company or any of its Subsidiaries (any such account, a “Company Account”), and shall collect and deposit into such account or accounts and may disburse therefrom any monies on behalf of the Company, provided that no funds in any such account shall be commingled with any funds of Manager or any other Person unless separate records of the Company’s funds are maintained. Manager shall from time to time, or at any time requested by the Board of Directors, render an appropriate accounting of such collections and payments to the Board of Directors and to the auditors of the Company.
Section 7. Booksand Records; Confidentiality. (a) Manager shall maintain appropriate books and records relating to services performed hereunder, accessible for inspection by the Company during normal business hours.
(b) Manager shall keep confidential any and all information obtained in connection with the services rendered under this Agreement and shall not disclose any such information (or use the same except in furtherance of its duties under this Agreement) to unaffiliated third parties, except: (i) with the prior written consent of the Board of Directors; (ii) to legal counsel, accountants and other professional advisors; (iii) to appraisers, due diligence providers, financing sources and others in the ordinary course of the Company’s business; (iv) to governmental officials having jurisdiction over the Company or any of its Subsidiaries, or Manager or any of its Affiliates (other than the Company and its Subsidiaries); (v) in connection with any governmental or regulatory filings of the Company or any of its Subsidiaries, or Manager or any of its Affiliates (other than the Company and its Subsidiaries), or disclosure or presentations to investors and potential investors in the ordinary course of business; (vi) as required by law or legal process to which Manager or any Person to whom disclosure is permitted hereunder is a party; or (vii) to the extent such information is otherwise publicly available through the actions of a Person other than Manager not resulting from Manager’s violation of this Section 7. The provisions of this Section 7(b) shall survive the expiration or earlier termination of this Agreement for a period of one year.
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Section 8. IntellectualProperty and Data. (a) Manager and its Affiliates will retain exclusive right, title and interest in and to: (i) all intellectual property, systems, processes, methodologies, software, databases, analytics, research, models, algorithms, trade secrets and know-how owned or developed by the Manager or its Affiliates prior to or independently of this Agreement; (ii) all improvements, enhancements, modifications or derivative works of the foregoing, whether or not developed in connection with services provided to the Company; and (iii) all general knowledge, experience, techniques and skills acquired or developed in the course of performing services under this Agreement, (collectively, “Manager IP”). For the avoidance of doubt, Manager IP includes any investment models, underwriting frameworks, data architecture, reporting systems, technology platforms and proprietary processes used by Manager in providing services to the Company, even if such Manager IP incorporates Company Data. Nothing in this Agreement shall be construed as transferring ownership of Manager IP to the Company.
(b) The Company will own: (i) its name, trademarks and branding; and (ii) all documents and materials prepared specifically for the Company, including final versions of offering documents, investor presentations and public disclosure materials. Additionally, all platform- and asset-level financial data, property-level operating data and other information relating specifically to the Investments or Company (collectively, “Company Data”) will be owned by the Company. Notwithstanding the foregoing, Manager shall have the right to use Company Data during and after the Term in the ordinary course of public reporting and in anonymized or aggregated form for internal business purposes, and may retain copies of Company Data to the extent required by law, regulatory obligation, internal compliance policies or bona fide record retention practices.
Section 9. ManagerObligations; Restrictions. (a) Manager shall use commercially reasonable efforts to refrain from actions (i) inconsistent with the Investment Guidelines, (ii) that would reasonably be expected to jeopardize the Parent REIT’s qualification as a REIT or its status under the Investment Company Act, or (iii) that would cause a material violation of applicable law or the Company’s Governing Instruments.
(b) If Manager is ordered to take any such action by the Board of Directors, Manager shall promptly notify the Board of Directors of Manager’s judgment that such action would adversely and materially affect the qualification of the Parent REIT as a REIT, the Company’s or any of its Subsidiaries’ status as an entity intended to be exempted or excluded from registration under the Investment Company Act, or violate any such law, rule or regulation or the Governing Instruments. Notwithstanding the foregoing, Manager and its officers, directors, members, managers and employees shall not be liable to the Company or any of its Subsidiaries or to any director or stockholder or other owner of the Company or any of its Subsidiaries for acts or omissions performed in accordance with and pursuant to this Agreement, except as provided in Section 13 of this Agreement.
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(c) Manager agrees to be bound by all compliance and governance policies and procedures, including the Company’s and its Subsidiaries’ code of conduct and other similar policies and procedures, applicable to Manager and its officers, directors, members, managers and employees that are adopted by the Board of Directors from time to time, including those required under the Exchange Act, the Securities Act, or by the NYSE (or such other securities exchange on which the Common Stock may be listed), and to take, or cause to be taken, all actions reasonably required to cause its officers, directors, members, managers and employees, and any principals, officers or employees of its Affiliates who are involved in the business and affairs of the Company or any of its Subsidiaries, to be bound by such policies and procedures to the extent applicable to such persons.
(d) Manager shall maintain customary errors and omissions and other insurance coverage of the type and in amounts generally carried by managers of comparable assets.
Section 10. Compensation. (a) During the Term, the Company shall pay Manager the Management Fee on the terms set forth herein.
(b) One-twelfth (1/12) of the Management Fee shall be payable in advance on the first (1^st^) Business Day of each month in cash. The first monthly installment shall be pro-rated for any partial month. Manager may withdraw the applicable portion of the Management Fee from a Company Account in accordance with Section 6.
(c) Manager shall calculate each Management Fee Adjustment Amount within thirty (30) days after the end of the month in which an Acquisition or Disposition of an Investment closes or capital expenditures related to an Investment subject to Capital Deployment are incurred. Following the determination of such Management Fee Adjustment Amount, the next monthly installment of the then-current Management Fee due and payable to Manager will be increased (in the case of an Acquisition or Capital Deployment) or decreased (in the case of a Disposition) by one-twelfth (1/12) of such Management Fee Adjustment Amount and will be included on the next statement of Expenses delivered by Manager pursuant to Section 12.
(d) The Management Fee payable to Manager shall be reduced by the Equity Award Expense recognized by the Company during the applicable period.
Section 11. Expenses. (a) Except as otherwise expressly provided herein or approved by majority vote of the Independent Directors, the Manager shall be responsible for and bear the following expenses incurred in connection with the performance of its duties under this Agreement:
(i) all employment expenses of the personnel employed by Manager, including, but not limited to, salaries, wages, payroll taxes and the cost of employee benefit plans;
(ii) all expenses incurred by directors, officers, personnel and agents of the Manager, except expenses incurred by such persons for travel solely on behalf of the Company or its Subsidiaries;
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(iii) all overhead expenses of Manager, including rent, telephone, utilities, office furniture, computer hardware, electronic equipment, software, related licenses, or purchased information technology services, except to the extent such expenses relate solely to the Company or its Subsidiaries, including any office maintained by the Company separate from the office or offices of the Manager (as directed and approved by the Board of Directors); and
(iv) any other miscellaneous administrative expenses relating to performance by the Manager of its obligations hereunder.
(b) If the Company or its Subsidiaries pay any portion of the expenses described in Section 11(a) directly, such amounts will be credited by Manager against the Management Fee payable to Manager hereunder.
(c) The Company or its Subsidiaries shall pay or reimburse Manager for all documented third-party costs and expenses incurred on behalf of the Company and its Subsidiaries (collectively, the “Expenses”), excepting only those expenses that are specifically the responsibility of the Manager pursuant to Section 11(a) of this Agreement, and subject to the credit of certain expenses against the Management Fee pursuant to Section 11(b) of this Agreement. Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company and its Subsidiaries shall be paid by the Company or its Subsidiaries and shall not be paid by the Manager or Affiliates of the Manager (other than the Company and its Subsidiaries):
(i) expenses in connection with any private or public offering of securities by the Company or its Subsidiaries, including but not limited to the Initial Public Offering, and transaction costs incident to unconsummated investments and the acquisition, disposition and financing of consummated Investments;
(ii) the cost of legal, tax, accounting, consulting, auditing, appraisal, reporting, administrative and other similar services rendered for the Company and its Subsidiaries by third-party providers retained by the Manager;
(iii) the compensation and expenses of the Parent REIT’s directors (excluding those directors who are officers of the Manager) and the cost of liability insurance to indemnify the directors and officers of the Company and its Subsidiaries;
(iv) costs associated with the establishment and maintenance of any of credit facilities, financing arrangements, or other indebtedness of the Company or any of its Subsidiaries (including commitment fees, accounting fees, legal fees, closing and other similar costs);
(v) expenses connected with communications to holders of securities of the Company or its Subsidiaries and other bookkeeping and clerical work necessary in maintaining relations with holders of such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies;
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(vi) compensation and expenses of any custodian and transfer agent of the Company and its Subsidiaries and other expenses of being a publicly listed company on the NYSE (or such other securities exchange on which the Common Stock may be listed);
(vii) the cost of maintaining compliance with all U.S. federal, state and local rules and regulations or with any other regulatory agency;
(viii) all taxes and license fees;
(ix) all insurance costs incurred in connection with the operation of the business of the Company and its Subsidiaries, except for the costs attributable to the insurance that the Manager elects to carry for itself and its personnel;
(x) all third-party costs and expenses relating to the business and operations of the Company and its Subsidiaries, including, without limitation, the costs and expenses of acquiring, owning, managing, operating protecting, maintaining, constructing, developing, redeveloping, expanding, renovating and disposing of Investments;
(xi) expenses relating to the payment of interest, dividends or distributions in cash or any other form authorized or caused to be made to or on account of holders of securities of the Company or its Subsidiaries, including, without limitation, in connection with any dividend reinvestment plan;
(xii) any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or any of its Subsidiaries, or against any trustee, director, partner, member or officer of the Company or of any Subsidiary in his, her or its capacity as such for which the Company or any of its Subsidiaries is required to indemnify such Person by any court or governmental agency;
(xiii) all costs and expenses relating to the development and management of the Company’s website; and
(xiv) costs associated with any computer hardware, electronic equipment, software, related licenses, or purchased information technology services from third-party vendors that is acquired or maintained solely for use by the Company and/or its Subsidiaries;
(xv) expenses incurred by directors, officers, personnel and agents of the Manager for travel solely on behalf of the Company or its Subsidiaries, and other out-of-pocket expenses incurred by directors, officers, personnel and agents of the Manager in connection with the purchase, financing, refinancing, sale or other disposition of an Investment or the establishment and maintenance of any securitizations of the Company or any its Subsidiaries or any of their securities offerings;
(xvi) expenses relating to any office(s) or office facilities maintained for the Company and its Subsidiaries or Investments separate from the office or offices of the Manager, to the extent directed and approved by the Board of Directors; and
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(xvii) all other third-party costs and expenses actually incurred by the Manager (except as described in Section 11(a) above) which are reasonably necessary for the performance by the Manager of its duties and functions under this Agreement.
(d) The provisions of this Section 11 shall survive the expiration or earlier termination of this Agreement to the extent such expenses have previously been incurred or are incurred in connection with such expiration or termination.
Section 12. ExpenseStatements. Manager shall deliver a statement of Expenses on either a monthly or quarterly basis, at Manager’s election. Expenses shall be reimbursed within fifteen (15) Business Days after delivery of such statement and may be netted against amounts otherwise payable between the parties. The provisions of this Section 12 shall survive the expiration or earlier termination of this Agreement.
Section 13. Limitationof Liability; Indemnification. (a)
Manager assumes no responsibility under this Agreement other than to render the services called for herein in good faith and shall not be responsible for any action of the Board of Directors in following or declining to follow any advice or recommendations of Manager, including as set forth in Section 9(b) of this Agreement. Manager, its Affiliates and their respective officers, directors, members, managers and employees (each a “CoveredPerson”) will not be liable to the Company or any of its Subsidiaries, the Board of Directors, or the Company’s or any of its Subsidiaries’ stockholders, partners or members for any acts or omissions by any such Person (including, without limitation, errors that may result from ordinary negligence, such as errors in the investment decision making process), performed in accordance with and pursuant to this Agreement, except by reason of acts constituting bad faith, fraud, willful misconduct, gross negligence or reckless disregard of its duties under the Agreement.
(b) The Company shall indemnify and hold harmless each Covered Person against all claims and liabilities arising out of this Agreement, including reasonable legal fees and other expenses reasonably incurred, arising out of or in connection with the business and operations of the Company or any of its Subsidiaries or any action taken or omitted by any such Covered Person by or on behalf of the Company or any of its Subsidiaries pursuant to authority granted by this Agreement, except where found by a court of competent jurisdiction to be attributable to the bad faith, fraud, willful misconduct, gross negligence or reckless disregard of its duties under the Agreement of any such Covered Person. The Company shall advance reasonable expenses as incurred upon receipt of an undertaking by the Covered Person to repay such amounts if ultimately determined that such Covered Person was not entitled to indemnification.
(c) A Covered Person shall first seek recovery under available insurance before claiming indemnification from the Company, and any insurance proceeds received shall be applied to reduce the Company’s indemnity obligations.
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(d) Manager shall indemnify and hold harmless the Company, its Subsidiaries, and their respective officers, directors and employees from and against any claims or liabilities, including reasonable legal fees and other expenses reasonably incurred, arising out of or in connection with acts of Manager found by a court of competent jurisdiction to constitute bad faith, fraud, willful misconduct, gross negligence or reckless disregard of its duties under the Agreement, or any claims by Manager’s employees relating to the terms and conditions of their employment by Manager; provided, however, that nothing in this Section 13(d) shall create personal liability on the part of any of Manager’s Affiliates or its or their respective shareholders, partners, members, managers, officers, directors, employees, agents or representatives. Notwithstanding anything to the contrary in this Agreement, the aggregate liability of Manager with respect to this Section 13(d) shall be limited to no more than the amount of the Management Fee for the twelve (12) months prior to the date of such determination of liability or claim by Manager’s employee.
(e) The provisions of this Section 13 shall survive the expiration or earlier termination of this Agreement.
Section 14. Termand Termination. (a) Unless terminated earlier in accordance with its terms, this Agreement shall be in effect until three (3) years from the date of completion of the Initial Public Offering (the “Initial Term”). Thereafter, this Agreement shall renew for a one-year term on each anniversary date thereafter (a “Renewal Term” and each Renewal Term, together with the Initial Term, the “Term”), unless the Company elects to terminate this Agreement pursuant to Sections 14(b) or 14(c) hereof or Manager elects to terminate this Agreement pursuant to Section 14(d) or 14(e) hereof.
(b) The Company may terminate this Agreement at any time, and no Termination Fee shall be due and payable to the Manager, if any of the following events occur:
(i) Manager is convicted of a felony (including a plea of nolo contendere);
(ii) Manager commits an act of fraud against the Company, converts the funds of the Company or acts in a manner constituting bad faith or willful misconduct in the performance of its material duties under this Agreement (including a failure to act); provided, however, that if any such actions or omissions described in this Section 14(b)(ii) are caused by an employee and/or an officer of Manager or an Affiliate of Manager and Manager takes all reasonably necessary and appropriate action against such person and cures the damage caused by such actions or omissions within forty-five (45) days of Manager’s actual knowledge of the commission or omission, the Company will not have the right to terminate this Agreement pursuant to this Section 14(b)(ii);
(iii) an Insolvency Event occurs with respect to Manager; provided, Manager shall notify the Company no later than thirty (30) days following Manager’s knowledge of an Insolvency Event;
(iv) Parent REIT fails to qualify for taxation as a REIT under the Code primarily as a result of the gross negligence or willful misconduct of Manager or its Affiliates (in each case, excluding due to any action undertaken (or any inaction) at the direction of the Board of Directors) and Manager or its Affiliates do not use good faith efforts to take steps to remedy such intentional action(s) within a reasonable period of time after the Company provides written notice thereof specifying such intentional action(s) and requesting that the same be remedied; or
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(v) Manager or any of its Affiliates breaches any material term, condition or covenant contained in this Agreement and such breach has caused or would reasonably be expected to cause material harm to the Company and its Subsidiaries taken as a whole, and such material breach continues for a period of sixty (60) days after the Company provides written notice thereof to Manager specifying such material breach and requesting that the same be remedied in such sixty (60)-day period; provided, that, the Company may not terminate this Agreement pursuant to this clause (v) if the Company is then in material breach or material default under this Agreement which would give rise to Manager’s termination right in Section 14(d)(i) and such material breach or material default was not primarily caused by Manager; or
(vi) a Manager Change of Control occurs.
(c) Additionally, the Company may terminate this Agreement at any time following the completion of the Initial Term for any reason if (i) at least a majority of the Independent Committee approves the termination of this Agreement pursuant to this Section 14(c) and (ii) following such approval by the Independent Committee, such termination is approved by the stockholders by the affirmative vote of a majority of all the votes entitled to be cast on the matter at the next annual or special meeting of stockholders of Parent REIT.
(d) Manager may terminate this Agreement at any time if any of the following events occur:
(i) the Company breaches any material term, condition or covenant contained in this Agreement, and such breach continues for a period of sixty (60) days after Manager provides written notice thereof specifying such material breach and requesting that the same be remedied in such sixty (60)-day period; provided, that, Manager may not terminate this Agreement pursuant to this clause (i) if Manager is then in material breach under this Agreement which would give rise to the Company’s termination right in Section 14(b)(v); and
(ii) an Insolvency Event occurs with respect to the Company or any of its Subsidiaries.
(e) Additionally, Manager may terminate this Agreement at any time following the completion of the Initial Term for any reason upon at least thirty (30) days prior written notice to the Company (but subject to the Transition Period elected by the Company pursuant to Section 15 below), and no Termination Fee shall be due and payable to the Manager.
(f) In the event that this Agreement is terminated in accordance with the provisions of Sections 14(c) or Section 14(d) of this Agreement, the Company shall pay or cause to be paid to Manager, on the date on which such termination is effective, a termination fee (the “Termination Fee”) equal to three (3) times the Management Fee earned by Manager during the twelve (12)-month period immediately preceding the most recently completed fiscal quarter prior to the date of termination.
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Section 15. Action Upon Termination. For a period not to exceed twelve (12) months following the effectiveness of a termination of this Agreement (a “TransitionPeriod”), Manager shall use commercially reasonable efforts to cooperate with the Company in executing an orderly transition of the management of the Company’s and its Subsidiaries’ business and operations. The Company shall provide written notice to Manager of the proposed length of the Transition Period and the extent of services requested as soon as reasonably practicable. During the Transition Period, Manager shall be entitled to continue receiving compensation pursuant to Section 10. Manager shall be entitled to be paid all compensation earned hereunder up to the end of the Transition Period, but Manager shall not be entitled to compensation for further services from and after the end of the Transition Period. At the end of the Transition Period, Manager shall forthwith:
(i) after deducting any accrued compensation and reimbursement for Expenses to which it is then entitled, pay over to the Company or any of its Subsidiaries all money collected and held for the account of the Company or any of its Subsidiaries pursuant to this Agreement;
(ii) deliver to the Board of Directors a full accounting, including a statement showing all payments collected by it and a statement of all money held by it, covering the period following the date of the last accounting furnished to the Board of Directors with respect to the Company or any of its Subsidiaries; and
(iii) deliver to the Board of Directors all property and documents of the Company or any of its Subsidiaries then in the custody of Manager.
Section 16. Assignment. This Agreement shall terminate automatically, without payment of the Termination Fee, in the event of its assignment, in whole or in part, by Manager, unless such assignment is consented to in writing by the Company after the approval of a majority of the Board of Directors, including a majority of the Independent Directors; provided, however, that Manager may assign or subcontract all or a portion of this Agreement to any Affiliate of Manager without the consent of the Company or the approval of the Board of Directors. Any such permitted assignment shall bind the assignee under this Agreement in the same manner as Manager is bound, and Manager shall be liable to the Company for all errors or omissions of the assignee under any such assignment. In addition, the assignee shall execute and deliver to the Company a counterpart of this Agreement naming such assignee as Manager. This Agreement shall not be assigned by the Company without the prior written consent of Manager, except in the case of assignment by the Company to a successor (by merger, consolidation, purchase of assets, or other transaction) to the Company, in which case such successor organization shall be bound under this Agreement and by the terms of such assignment in the same manner as the Company is bound under this Agreement. In the event some or all of the Manager’s rights or obligations are assigned or subcontracted to taxable REIT subsidiary, within the meaning of Section 856(l) of the Code, of Healthpeak Parent (a “Healthpeak TRS”), the Manager and such Healthpeak TRS may allocate some or all of the Management Fees and Expenses payable hereunder to such Healthpeak TRS, and any such amounts paid to the Manager shall be collected as agent of, and promptly paid to, such Healthpeak TRS. For the avoidance of doubt, Healthpeak Parent Change of Control or a Manager Change of Control shall not constitute an assignment.
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Section 17. Releaseof Money or Other Property Upon Written Request. Manager agrees that any money or other property of the Company or any of its Subsidiaries held by Manager under this Agreement shall be held by Manager as custodian for the Company or any of its Subsidiaries, and Manager’s records shall be appropriately marked clearly to reflect the ownership of such money or other property by the Company or any such Subsidiary. Upon the receipt by Manager of a written request signed by a duly authorized officer of the Company requesting Manager to release to the Company or any of its Subsidiaries any money or other property then held by Manager for the account of the Company or any of its Subsidiaries under this Agreement, Manager shall release such money or other property to the Company or any of its Subsidiaries within a reasonable period of time, but in no event later than thirty (30) days following such request. Manager shall not be liable to the Company, any of its Subsidiaries, the Independent Directors, or the Company’s or any of its Subsidiaries’ stockholders or partners for any acts performed or omissions to act by the Company or any of its Subsidiaries in connection with the money or other property released to the Company or any of its Subsidiaries in accordance with the second sentence of this Section 17. The Company shall indemnify Manager and its officers, directors, personnel, and managers against any and all expenses, losses, damages, liabilities, demands, charges and claims of any nature whatsoever, which arise in connection with Manager’s release of such money or other property to the Company or any of its Subsidiaries in accordance with the terms of this Section 17. Indemnification pursuant to this provision shall be in addition to any right of Manager to indemnification under Section 13 of this Agreement.
Section 18. Representationsand Warranties. (a) the Company hereby makes the following representations and warranties to Manager, all of which shall survive the execution and delivery of this Agreement:
(i) Parent REIT is a corporation and Operating Company is a limited liability company, each duly formed, validly existing and in good standing under the laws of the State of Maryland, and are, or shall be prior to the commencement of services hereunder, qualified to do business and in good standing in Maryland. Each of Parent REIT and Operating Company have all power and authority required to execute and deliver this Agreement and to perform all its duties and obligations hereunder.
(ii) The execution, delivery, and performance of this Agreement by each of Parent REIT and Operating Company has been duly authorized by all necessary action on the part of Parent REIT and Operating Company, as applicable.
(iii) This Agreement constitutes a legal, valid, and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as limited by bankruptcy, insolvency, receivership and similar laws from time to time in effect and general principles of equity, including, without limitation, those relating to the availability of specific performance.
(b) Manager hereby makes the following representations and warranties to the Company, all of which shall survive the execution and delivery of this Agreement:
(i) Manager is a limited liability company duly formed, validly existing, and in good standing under the laws of the State of Delaware and is, or shall be prior to the commencement of services hereunder, qualified to do business and in good standing in Delaware. Manager has all power and authority required to execute and deliver this Agreement and to perform all its duties and obligations hereunder, subject only to its qualifying to do business and obtaining all requisite permits and licenses required as a result of or relating to the nature or location of any Investment of the Company or any of its Subsidiaries (which it shall do promptly after being required to do so).
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(ii) The execution, delivery, and performance of this Agreement by Manager have been duly authorized by all necessary action on the part of Manager.
(iii) This Agreement constitutes a legal, valid, and binding agreement of Manager enforceable against Manager in accordance with its terms, except as limited by bankruptcy, insolvency, receivership and similar laws from time to time in effect and general principles of equity, including, without limitation, those relating to the availability of specific performance.
Section 19. Notice. Unless expressly provided otherwise in this Agreement, all notices, requests, demands and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given, made and received if delivered by (i) personal delivery (notice deemed given upon receipt), (ii) delivery by reputable overnight courier, (notice deemed upon receipt of proof of delivery) or (iii) transmitted via email (notice deemed upon delivery if no automated notice of delivery failure is received by the sender), addressed as set forth below:
If to the Company, to:
Janus Living, Inc.
c/o Healthpeak Properties, Inc.
4600 South Syracuse Street, Suite 500
Denver, Colorado 80237
Attention: Tracy Porter
Email:
with a copy (which shall not constitute notice) to:
Latham & Watkins LLP
10250 Constellation Blvd., Suite 1100
Los Angeles, California 90067
Attention: Lewis Kneib
Email:
If to the Manager, to:
Healthpeak Investment Management, LLC
c/o Healthpeak Properties, Inc.
4600 South Syracuse Street, Suite 500
Denver, Colorado 80237
Attention: Tracy Porter
Email:
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with a copy (which shall not constitute notice) to:
Latham & Watkins LLP
10250 Constellation Blvd., Suite 1100
Los Angeles, California 90067
Attention: Lewis Kneib
Email:
Either party may alter the address to which communications or copies are to be sent by giving notice of such change of address in conformity with the provisions of this Section 19 for the giving of notice.
Section 20. BindingNature of Agreement; Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and permitted assigns as provided in this Agreement.
Section 21. EntireAgreement. This Agreement contains the entire agreement and understanding among the parties hereto with respect to the subject matter of this Agreement, and supersedes all prior and contemporaneous agreements, understandings, inducements and conditions, express or implied, oral or written, of any nature whatsoever with respect to the subject matter of this Agreement. The express terms of this Agreement control and supersede any course of performance and/or usage of the trade inconsistent with any of the terms of this Agreement.
Section 22. Amendments. This Agreement may be amended or modified only by an agreement in writing signed by all parties hereto.
Section 23. NoImplied Waivers; Remedies. No failure or delay on the part of any party in exercising any right, privilege, power, or remedy under this Agreement, and no course of dealing shall operate as a waiver of any such right, privilege, power or remedy; nor shall any single or partial exercise of any right, privilege, power or remedy under this Agreement preclude any other or further exercise of any such right, privilege, power or remedy or the exercise of any other right, privilege, power or remedy. No waiver shall be asserted against any party unless signed in writing by such party. The rights, privileges, powers and remedies available to the parties are cumulative and not exclusive of any other rights, privileges, powers or remedies provided by statute, at law, in equity or otherwise. Except as provided in this Agreement, no notice to or demand on any party in any case shall entitle such party to any other or further notice or demand in any similar or other circumstances or constitute a waiver of the right of the party giving such notice or making such demand to take any other or further action in any circumstances without notice or demand.
Section 24. GoverningLaw; Dispute Resolutions.
(a) This Agreement shall be construed in accordance with and governed by the laws of the State of Delaware. EACH OF THE PARTIES HEREBY IRREVOCABLY AGREES THAT THE COURTS OF THE STATE OF DELAWARE SHALL HAVE EXCLUSIVE JURISDICTION IN CONNECTION WITH ANY ACTIONS OR PROCEEDINGS ARISING BETWEEN THE PARTIES UNDER THIS AGREEMENT. EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS AND SUBMITS TO THE JURISDICTION OF SAID COURTS FOR ANY SUCH ACTION OR PROCEEDING. EACH OF THE PARTIES HEREBY WAIVES THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF ANY SUCH ACTION OR PROCEEDING IN SAID COURTS.
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Section 25. WAIVEROF JURY TRIAL. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
Section 26. Survival. All representations and warranties made hereunder, and in any document, certificate or statement delivered pursuant hereto or in connection herewith, shall survive the execution and delivery of this Agreement. The provisions of Section 7(b), Section 11, Section 12, Section 13, Section 14, Section 15, Section 17, Section 24, Section 25 this Section 26, and the relevant defined terms used therein, shall survive the expiration or earlier termination of this Agreement.
Section 27. Allocationof Costs; Payment as Agent. From time to time the Manager, at the request of the Company, may perform services contemplated by this Agreement to or for the benefit of one or more Subsidiaries, including Subsidiaries that constitute taxable REIT subsidiaries of the Company within the meaning of Section 856(l) of the Code. In such case, notwithstanding anything to the contrary contained in this Agreement, the Company and the applicable Subsidiaries may, in their sole discretion, reasonably allocate the costs associated with the payment of any Management Fees, Expenses or other amounts owing under this Agreement among the Company and the applicable Subsidiaries, and to the extent any amounts so allocated to a Subsidiary are paid to Manager or any other Person by the Company, such payments shall be made on behalf of and in the capacity as agent of the applicable Subsidiary.
Section 28. NoJoint Venture. Nothing in this Agreement shall be construed to make the Company and Manager partners or joint venturers or impose any liability as such on either of them.
Section 29. Headings. The headings contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any provisions of this Agreement.
Section 30. Severability. If any provision of the Agreement shall be held to be invalid, the remainder of the Agreement shall not be affected thereby.
Section 31. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original as against any party whose signature appears thereon, and all of which shall together constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. This Agreement shall become binding when one or more counterparts of this Agreement, individually or taken together, shall bear the signatures of all of the parties reflected hereon as the signatories.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their representatives on the date first written above.
| JANUS REIT | |
|---|---|
| JANUS LIVING, INC., | |
| a Maryland corporation | |
| By: | /s/ Kelvin O. Moses |
| Name: | Kelvin O. Moses |
| Title: | Chief Financial Officer |
| JANUS OP | |
| JANUS LIVING OP, LLC, | |
| a Maryland limited liability company | |
| By: | Janus Living, Inc. |
| its managing member | |
| By: | /s/ Kelvin O. Moses |
| Name: | Kelvin O. Moses |
| Title: | Chief Financial Officer |
| MANAGER | |
| Healthpeak<br> Investment Management, LLC, | |
| a Delaware limited liability company | |
| By: | /s/ Adam G. Mabry |
| Name: | Adam G. Mabry |
| Title: | Chief Investment Officer |
[Signature Page to Management Agreement]
Exhibit A
Investment Guidelines
The Board of Directors has adopted the following investment guidelines:
| · | No investment shall be made<br> that would cause Parent REIT to fail to qualify as a REIT for U.S. federal income tax<br> purposes; |
|---|---|
| · | No investment shall be made<br> that would cause the Company or any Subsidiary to be regulated as an investment company under<br> the Investment Company Act; |
| --- | --- |
| · | The Company’s investments<br> will be in seniors housing, including independent living, assisted living, memory care, active<br> adult, life plan communities or other residential dwellings that support the aging population;<br> and |
| --- | --- |
| · | Until appropriate investments<br> can be identified, Manager may invest the proceeds of the Initial Public Offering and any<br> future offerings in interest-bearing, short-term liquid investments, including money market<br> accounts and/or U.S. Treasury securities, that are consistent with Parent REIT’s<br> intention to qualify as a REIT and maintain its exemption from registration under the Investment<br> Company Act. |
| --- | --- |
Exh. A-1
Exhibit 10.3
EXCLUSIVITY AGREEMENT
This Exclusivity Agreement is made as of March 19, 2026, by and between Janus Living, Inc., a Maryland corporation (the “ParentREIT”), Janus Living OP, LLC, a Maryland limited liability company (the “Operating Company”), Healthpeak Properties, Inc., a Maryland corporation(“Healthpeak Parent”), and Healthpeak OP, LLC, a Maryland limited liability company (“Healthpeak OP”).
WHEREAS, the Parent REIT is a publicly traded real estate investment trust that conducts substantially all of its business and holds substantially all of its assets through the Operating Company;
WHEREAS, Healthpeak Parent is a publicly traded real estate investment trust that conducts substantially all of its business and holds substantially all of its assets through the Healthpeak OP;
WHEREAS, in connection with the initial public offering of the Parent REIT (the “IPO”), the Parent REIT and the Operating Company (together, the “Company”) intend to retain Healthpeak Investment Management, LLC, a Delaware limited liability company and indirect wholly subsidiary of Healthpeak OP as of the date hereof (“Manager”), to provide management and advisory services pursuant to a management agreement (the “Management Agreement”); and
WHEREAS, in connection with the IPO and the services to be provided by Manager to the Company pursuant to the Management Agreement, Healthpeak Parent and Healthpeak OP (together, “Healthpeak”) and the Company desire to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein set forth, the parties hereto agree as follows:
Section 1. Definitions. As used in this Agreement, the following terms have the meanings set forth below:
(a) “Affiliate” means, with respect to any Person, (i) any other Person directly or indirectly controlling, controlled by or under common control with such Person, (ii) any executive officer, general partner or employee of such Person, and (iii) any member of the board of directors or managers (or similar governing body) of such Person. For purposes of this definition, the terms “controlling,” “controlled by,” or “under common control with” shall mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership or voting rights, by contract or otherwise.
(b) “Agreement” means this Exclusivity Agreement, as amended, restated or supplemented from time to time.
(c) “Company Competing Business” means the ownership, acquisition, development, redevelopment, leasing, management, operation, financing, and disposition of real estate properties primarily used for senior housing, including independent living, assisted living, memory care, active adult, life plan communities or other residential dwellings that support the aging population.
(d) “Healthpeak Competing Business” means the ownership, acquisition, development, redevelopment, leasing, management, operation, financing, and disposition of real estate properties (i) primarily used as outpatient medical facilities, including medical office buildings, ambulatory surgery centers, specialty clinics, diagnostic facilities, or other facilities providing non-acute healthcare services outside of a hospital inpatient setting, or (ii) primarily used for laboratory, life science, research and development purposes, including properties reasonably capable of conversion to such uses or used for ancillary office purposes.
(e) “Person” means any individual, corporation, partnership, joint venture, limited liability company, estate, trust, unincorporated association, any federal, state, county or municipal government or any bureau, department or agency thereof and any fiduciary acting in such capacity on behalf of any of the foregoing.
(f) “Subsidiary” means a corporation, limited liability company, partnership, joint venture or other entity or organization in which a Person has a direct or indirect ownership interest.
(g) “Term” means the period from the date of the closing of the IPO through the date of the expiration or earlier termination of the Management Agreement, including any Transition Period (as defined in the Management Agreement).
(h) The words “hereof,” “herein” and “hereunder” and words of similar import refer to this Agreement as a whole and not to any particular provision, and section references are to this Agreement unless otherwise specified. The meanings given to defined terms apply equally to the singular and plural forms of such terms, and the words include, includes and including shall be deemed to be followed by the phrase “without limitation.”
Section 2. Exclusivity.
(a) During the Term, Healthpeak will not, and will cause its Affiliates to not, directly or indirectly, for its own benefit or the benefit of anyone else (other than the Company or any of its Subsidiaries), engage in, sponsor, own, operate, manage, or otherwise participate in a Company Competing Business.
(b) During the Term, the Company will not, and will cause its Affiliates to not, directly or indirectly, for its own benefit or the benefit of anyone else, engage in, sponsor, own, operate, manage, or otherwise participate in a Healthpeak Competing Business.
Section 3. Termination. This Agreement shall automatically terminate upon the expiration or earlier termination of the Management Agreement without any further action. Following such termination, nothing in this Agreement shall be construed to limit the other party from pursuing competitive opportunities with any tenant, operator, partner, client or customer.
Section 4. Assignment. This Agreement shall not be assigned by any party hereto without the prior written consent of the other parties hereto, except in the case of assignment by a party to a successor (by merger, consolidation, purchase of assets, or other transaction) to such party, in which case such successor organization shall be bound under this Agreement and by the terms of such assignment in the same manner as such party is bound under this Agreement.
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Section 5. No Automatic Breach. In no event shall the occurrence of a Manager Change of Control (as defined in the Management Agreement) result in a breach of this Agreement if the Company elects not to exercise its right to terminate the Management Agreement in connection therewith, and Manager’s ongoing performance under the Management Agreement following such Manager Change of Control shall not otherwise be deemed to modify or limit the rights and obligations under this Agreement.
Section 6. Notice. Unless expressly provided otherwise in this Agreement, all notices, requests, demands and other communications required or permitted under this Agreement shall be made in accordance with the provisions set forth in the Management Agreement (to Manager on behalf of Healthpeak).
Section 7. Binding Nature of Agreement; Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and permitted assigns as provided in this Agreement.
Section 8. Entire Agreement. This Agreement contains the entire agreement and understanding among the parties hereto with respect to the subject matter of this Agreement, and supersedes all prior and contemporaneous agreements, understandings, inducements and conditions, express or implied, oral or written, of any nature whatsoever with respect to the subject matter of this Agreement. The express terms of this Agreement control and supersede any course of performance and/or usage of the trade inconsistent with any of the terms of this Agreement.
Section 9. Amendments. This Agreement may be amended or modified only by an agreement in writing signed by all parties hereto.
Section 10. No Implied Waivers; Remedies. No failure or delay on the part of any party in exercising any right, privilege, power, or remedy under this Agreement, and no course of dealing shall operate as a waiver of any such right, privilege, power or remedy; nor shall any single or partial exercise of any right, privilege, power or remedy under this Agreement preclude any other or further exercise of any such right, privilege, power or remedy or the exercise of any other right, privilege, power or remedy. No waiver shall be asserted against any party unless signed in writing by such party. The rights, privileges, powers and remedies available to the parties are cumulative and not exclusive of any other rights, privileges, powers or remedies provided by statute, at law, in equity or otherwise. Except as provided in this Agreement, no notice to or demand on any party in any case shall entitle such party to any other or further notice or demand in any similar or other circumstances or constitute a waiver of the right of the party giving such notice or making such demand to take any other or further action in any circumstances without notice or demand.
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Section 11. Governing Law; Dispute Resolution. This Agreement shall be construed in accordance with and governed by the laws of the State of Delaware. Each of the parties hereby irrevocably agrees that the courts of the State of Delaware shall have exclusive jurisdiction in connection with any action or proceedings arising between the parties under this Agreement. Each of the parties irrevocably consents and submits to the jurisdiction of said courts for any such action or proceeding. Each of the parties hereby waives the defense of an inconvenient forum to the maintenance of any such action or proceeding in said courts.
Section 12. WAIVER OF JURY TRIAL. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
Section 13. Survival. All representations and warranties made hereunder, and in any document, certificate or statement delivered pursuant hereto or in connection herewith, shall survive the execution and delivery of this Agreement. The provisions of Section 3, Section 11, Section 12, and this Section 13, and the relevant defined terms used therein, shall survive the expiration or earlier termination of this Agreement.
Section 14. Headings. The headings contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any provisions of this Agreement.
Section 15. Severability. If any provision of the Agreement shall be held to be invalid, the remainder of the Agreement shall not be affected thereby.
Section 16. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original as against any party whose signature appears thereon, and all of which shall together constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. This Agreement shall become binding when one or more counterparts of this Agreement, individually or taken together, shall bear the signatures of all of the parties reflected hereon as the signatories.
[signature page follows]
-4-
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their representatives on the date first written above.
| JANUS LIVING: | |
|---|---|
| JANUS LIVING, INC. | |
| a Maryland corporation, <br><br>on behalf of itself and as Managing Member<br><br> of Janus Living OP, LLC, <br><br>a Maryland limited liability company | |
| By: | /s/<br>Kelvin O. Moses |
| Name: | Kelvin O. Moses |
| Title: | Chief Financial Officer |
| HEALTHPEAK: | |
| HEALTHPEAK OP, LLC, | |
| a Maryland limited liability company,<br><br><br> on behalf of itself and as Managing Member<br><br> of Healthpeak Properties, Inc., <br><br>a Maryland corporation | |
| By: | /s/ Adam G. Mabry |
| Name: | Adam G. Mabry |
| Title: | Chief Investment Officer |
[Signature Page to ExclusivityAgreement]
Exhibit 10.4
STOCKHOLDERS AGREEMENT
by and among
JANUS LIVING, INC.
and
the other parties hereto
Dated as of March 19, 2026
Contents
| Article I. INTRODUCTORY MATTERS | 1 | |
|---|---|---|
| 1.1 | Defined Terms | 1 |
| 1.2 | Construction | 4 |
| Article II. CORPORATE GOVERNANCE MATTERS | 4 | |
| 2.1 | Election of Directors | 4 |
| 2.2 | Compensation | 6 |
| 2.3 | Other Rights of Healthpeak Designees | 6 |
| Article III. INFORMATION; CONFIDENTIALITY | 6 | |
| 3.1 | Books and Records; Access | 6 |
| 3.2 | Certain Reports | 6 |
| 3.3 | Confidentiality | 7 |
| 3.4 | Information Sharing | 7 |
| Article IV. GENERAL PROVISIONS | 7 | |
| 4.1 | Termination | 7 |
| 4.2 | Notices | 7 |
| 4.3 | Amendment; Waiver | 8 |
| 4.4 | Further Assurances | 8 |
| 4.5 | Assignment | 9 |
| 4.6 | Third Parties | 9 |
| 4.7 | Governing Law | 9 |
| 4.8 | Waiver of Jury Trial | 9 |
| 4.9 | Specific Performance | 9 |
| 4.10 | Entire Agreement | 9 |
| 4.11 | Severability | 9 |
| 4.12 | Table of Contents, Headings and Captions | 10 |
| 4.13 | Counterparts | 10 |
| 4.14 | Effectiveness | 10 |
| 4.15 | No Recourse | 10 |
i
STOCKHOLDERS AGREEMENT
This Stockholders Agreement is entered into as of March 19, 2026 by and among Janus Living, Inc., a Maryland corporation (“Janus Living”), Healthpeak Properties, Inc., a Maryland corporation (“Healthpeak Parent”), and each of the other parties from time-to-time party hereto (each, a “Healthpeak Holder” and, collectively, the “Healthpeak Holders”).
BACKGROUND:
WHEREAS, Janus Living is currently contemplating an underwritten initial public offering (“IPO”) of shares of its Class A-1 Common Stock (as defined below); and
WHEREAS, in connection with the IPO, Janus Living, Healthpeak Parent and the Healthpeak Holders wish to set forth certain understandings between such parties, including with respect to certain governance matters.
NOW, THEREFORE, the parties agree as follows:
Article I.
INTRODUCTORY MATTERS
1.1 Defined Terms. In addition to the terms defined elsewhere herein, the following terms have the following meanings when used herein with initial capital letters:
“Affiliates” means, with respect to any specified Person, any other Person that directly, or indirectly through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such specified Person.
“Agreement” means this Stockholders Agreement, as the same may be amended, supplemented, restated or otherwise modified from time to time in accordance with the terms hereof.
“Beneficially Own” has the meaning set forth in Rule 13d-3 promulgated under the Exchange Act.
“Board” means the board of directors of Janus Living.
“Business Day” means any day other than a Saturday or Sunday or a day on which banks in Denver are authorized or required to close.
“Closing Date” means the date of the initial closing of the IPO.
“Class A-1 Common Stock” means the shares of Class A-1 common stock, par value $0.01 per share, of Janus Living, and any securities issued in respect thereof, or in substitution therefor, in connection with any stock split, dividend or combination, or any reclassification, recapitalization, merger, consolidation or similar transaction.
“Class A-2 Common Stock” means the shares of Class A-2 common stock, par value $0.01 per share, of Janus Living, and any securities issued in respect thereof, or in substitution therefor, in connection with any stock split, dividend or combination, or any reclassification, recapitalization, merger, consolidation or similar transaction.
“Common Stock” means the shares of Class A-1 Common Stock and Class A-2 Common Stock.
“Confidential Information” means any information concerning Janus Living or its Subsidiaries that is furnished after the date of this Agreement by or on behalf of Janus Living or its designated representatives to a Healthpeak Entity or its designated representatives, together with any notes, analyses, reports, models, compilations, studies, documents, records or extracts thereof containing, based upon or derived from such information, in whole or in part; provided, however, that Confidential Information does not include information:
| (i) | that is or has become publicly available other than as a result of a disclosure by a Healthpeak Entity or its designated representatives<br>in violation of this Agreement; |
|---|---|
| (ii) | that was already known to a Healthpeak Entity or its designated representatives or was in the possession of a Healthpeak Entity or<br>its designated representatives prior to its being furnished by or on behalf of Janus Living or its designated representatives; |
| --- | --- |
| (iii) | that is received by a Healthpeak Entity or its designated representatives from a source other than Janus Living or its designated<br>representatives, provided that the source of such information was not actually known by such Healthpeak Entity or designated representative<br>to be bound by a confidentiality agreement with, or other contractual obligation of confidentiality to, Janus Living; |
| --- | --- |
| (iv) | that was independently developed or acquired by a Healthpeak Entity or its designated representatives or on its or their behalf without<br>the violation of the terms of this Agreement; or |
| --- | --- |
| (v) | that a Healthpeak Entity or its designated representatives is required, in the good faith determination of such Healthpeak Entity<br>or designated representative, to disclose by applicable law, regulation or legal process, provided that such Healthpeak Entity<br>or designated representative take reasonable steps to minimize the extent of any such required disclosure. |
| --- | --- |
“Control” (including its correlative meanings, “Controlled by” and “under common Control with”) means possession, directly or indirectly, of the power to direct or cause the direction of management or policies (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise) of a Person.
“Director” means any director of Janus Living.
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“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, as the same may be amended from time to time.
“Governmental Authority” means any nation or government, any state or other political subdivision thereof, and any entity exercising executive, legislative, judicial, regulatory, or administrative functions of or pertaining to government.
“Healthpeak Designee” has the meaning set forth in Section 2.1(a).
“Healthpeak Entities” means the entities comprising Healthpeak Parent and its Affiliates, including, for the avoidance of doubt, each of the Healthpeak Holders and any Affiliate of Healthpeak Parent that holds Common Stock.
“Healthpeak Holder” and “Healthpeak Holders” each have the meaning set forth in the Preamble.
“Healthpeak Parent” has the meaning set forth in the Preamble.
“IPO” has the meaning set forth in the Background.
“Janus Living” has the meaning set forth in the Preamble.
“Janus OP” means Janus Living OP, LLC, a Maryland limited liability company.
“Law” means any statute, law, regulation, ordinance, rule, injunction, order, decree, governmental approval, directive, requirement, or other governmental restriction or any similar form of decision of, or determination by, or any interpretation or administration of any of the foregoing by, any Governmental Authority.
“Management Agreement” means the Management Agreement, dated on or about the date hereof, among Janus Living and the other persons party thereto from time to time, as amended and in effect from time to time.
“Non-Recourse Party” has the meaning set forth in Section 4.15.
“Operating Agreement” means the Operating Agreement of Janus OP, dated on or about the date hereof, among Janus Living and the other persons party thereto from time to time, as amended and in effect from time to time.
“Outstanding Interests” means, collectively, without duplication, the outstanding Common Stock. For purposes of this definition, Class A-1 Common Stock and Class A-2 Comon Stock shall be treated as having a one-for-one equivalence.
“Person” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, or other form of business organization, whether or not regarded as a legal entity under applicable Law, or any Governmental Authority or any department, agency or political subdivision thereof.
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“SEC” means the U.S. Securities and Exchange Commission.
“Subsidiary” means, with respect to any Person, any corporation, limited liability company, partnership, association or other business entity of which: (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, representatives or trustees thereof is at the time owned or Controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof; or (ii) if a limited liability company, partnership, association or other business entity, a majority of the total voting power of stock (or equivalent ownership interest) of the limited liability company, partnership, association or other business entity is at the time owned or Controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, a Person or Persons shall be deemed to have a majority ownership interest in a limited liability company, partnership, association or other business entity if such Person or Persons shall be allocated a majority of limited liability company, partnership, association or other business entity gains or losses or shall be or Control the managing member, managing director or other governing body or general partner of such limited liability company, partnership, association or other business entity.
“Total Number of Directors” means the total number of directors comprising the Board.
1.2 Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against any party. Unless the context otherwise requires: (a) “or” is disjunctive but not exclusive, (b) words in the singular include the plural, and in the plural include the singular, and (c) the words “hereof”, “herein”, and “hereunder” and words of similar import when used in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section references are to this Agreement unless otherwise specified.
Article II.
CORPORATE GOVERNANCE MATTERS
2.1 Election of Directors.
(a) Following the Closing Date, Healthpeak Parent, on behalf of the Healthpeak Holders, shall have the right, but not the obligation, to designate, and the individuals nominated for election as Directors by or at the direction of the Board or a duly-authorized committee thereof shall include, a number of individuals such that, following the election of any Directors and taking into account any Director continuing to serve as such without the need for re-election, the number of Healthpeak Designees (as defined below) serving as Directors of Janus Living would be equal (if elected) to: (i) if the Healthpeak Entities collectively Beneficially Own at least 30% or more of the total Outstanding Interests as of the close of business on the record date for such meeting, the lowest whole number that is equal to or greater than 40% of the Total Number of Directors; and (ii) if the Healthpeak Entities collectively Beneficially Own at least 5% (but less than 30%) of the total Outstanding Interests as of the close of business on the record date for such meeting, one individual.
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(b) If at any time, Healthpeak Parent, on behalf of the Healthpeak Holders, has designated fewer than the total number of individuals that Healthpeak Parent, on behalf of the Healthpeak Holders, is then entitled to designate pursuant to Section 2.1(a), Healthpeak Parent, on behalf of the Healthpeak Holders, shall have the right, at any time and from time to time, to designate such additional individuals which it is entitled to so designate, in which case, any individuals nominated by or at the direction of the Board or any duly-authorized committee thereof for election as Directors to fill any vacancy on the Board shall include such designees, and Janus Living shall use its best efforts to (x) effect the election of such additional designees, whether by increasing the size of the Board or otherwise, and (y) cause the election of such additional designees to fill any such newly-created vacancies or to fill any other existing vacancies. Each such individual whom Healthpeak Parent, on behalf of the Healthpeak Holders, shall actually designate pursuant to this Section 2.1 and who is thereafter elected and qualifies to serve as a Director shall be referred to herein as a “Healthpeak Designee.”
(c) In the event that a vacancy is created at any time by the death, disability, retirement, removal or resignation of any Healthpeak Designee, any individual nominated by or at the direction of the Board or any duly-authorized committee thereof to fill such vacancy shall be, and Janus Living shall use its best efforts to cause such vacancy to be, filled, as soon as possible, by a new designee of Healthpeak Parent, on behalf of the Healthpeak Holders, and Janus Living shall take or cause to be taken, to the fullest extent permitted by law, at any time and from time to time, all actions necessary to accomplish the same.
(d) Janus Living shall, to the fullest extent permitted by law, include in the slate of nominees recommended by the Board at any meeting of stockholders called for the purpose of electing directors (or consent in lieu of meeting), the persons designated pursuant to this Section 2.1 and use its best efforts to cause the election of each such designee to the Board, including nominating each such individual to be elected as a Director as provided herein, recommending such individual’s election and soliciting proxies or consents in favor thereof and otherwise supporting each Healthpeak Designee in a manner no less rigorous and favorable than the manner in which Janus Living supports any other Director nominee included in the slate of nominees recommended by the Board. In the event that any Healthpeak Designee shall fail to be elected to the Board at any meeting of stockholders called for the purpose of electing directors (or consent in lieu of meeting), Janus Living shall use its best efforts to cause such Healthpeak Designee (or a new designee of Healthpeak Parent, on behalf of the Healthpeak Holders) to be elected to the Board, as soon as possible, and Janus Living shall take or cause to be taken, to the fullest extent permitted by law, at any time and from time to time, all actions necessary to accomplish the same, including, without limitation, actions to effect an increase in the Total Number of Directors and/or filling any vacancy on the Board with such Healthpeak Designee (or a new designee of Healthpeak Parent, on behalf of the Healthpeak Holders). For any meeting of stockholders called for the purpose of electing directors (or consent in lieu of meeting), the Board shall not nominate, in the aggregate, a number of nominees greater than the number of members of the Board.
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(e) In addition to any vote or consent of the Board or the stockholders of Janus Living required by applicable Law or the charter or bylaws of Janus Living, and notwithstanding anything to the contrary in this Agreement, for so long as Healthpeak Parent, on behalf of the Healthpeak Holders, is entitled to designate a Director pursuant to Section 2.1(a), any action by the Board to increase or decrease the Total Number of Directors (other than any increase in the Total Number of Directors in connection with the election of one or more directors elected exclusively by the holders of one or more classes or series of Janus Living’s stock other than Common Stock or pursuant to Section 2.1(d)) shall require the prior written consent of Healthpeak Parent on behalf of the Healthpeak Holders, delivered in accordance with Section 4.2 of this Agreement.
2.2 Compensation. Any Healthpeak Designee who is a non-employee Director of Janus Living shall be entitled to compensation consistent with the compensation received by other non-employee Directors of Janus Living, including any fees and equity awards. Any Healthpeak Designee who is an employee of a Healthpeak Holder shall not be entitled to compensation from Janus Living for services provided in such individual’s capacity as a Director of Janus Living.
2.3 Other Rights of Healthpeak Designees. Except as provided in Section 2.2, each Healthpeak Designee serving on the Board shall be entitled to the same rights, benefits and privileges applicable to all other members of the Board generally or to which all such members of the Board are entitled.
Article III.
INFORMATION; CONFIDENTIALITY
3.1 Books and Records; Access. Janus Living shall, and shall cause its Subsidiaries to, permit the Healthpeak Holders and their respective designated representatives (including Healthpeak Parent), at reasonable times and upon reasonable prior notice to Janus Living, to review the books and records of Janus Living or any of such Subsidiaries and to discuss the affairs, finances and condition of Janus Living or any of such Subsidiaries with the officers of Janus Living or any such Subsidiary; provided, however, that Janus Living shall not be required to disclose any privileged information of Janus Living so long as Janus Living has used commercially reasonable efforts to enter into an arrangement pursuant to which it may provide such information to the Healthpeak Holders without the loss of any such privilege.
3.2 Certain Reports. Janus Living shall deliver or cause to be delivered to Healthpeak Parent, on behalf of the Healthpeak Holders, at its request:
(a) to the extent otherwise prepared by Janus Living, operating and capital expenditure budgets and periodic information packages relating to the operations and cash flows of Janus Living and its Subsidiaries; and
(b) to the extent otherwise prepared by Janus Living, such other reports and information as may be reasonably requested by Healthpeak Parent, on behalf of the Healthpeak Holders; provided, however, that Janus Living shall not be required to disclose any privileged information of Janus Living so long as Janus Living has used commercially reasonable efforts to enter into an arrangement pursuant to which it may provide such information to the Healthpeak Holders without the loss of any such privilege.
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3.3 Confidentiality. Each Healthpeak Holder agrees that it will, and will direct its designated representatives to, keep confidential and not disclose any Confidential Information; provided, however, that a Healthpeak Holder and its designated representatives may disclose Confidential Information to the Healthpeak Designees and to (a) its attorneys, accountants, consultants, insurers and other advisors in connection with such Healthpeak Holder’s investment in Janus Living, (b) any Person, including a prospective purchaser of Class A-1 Common Stock, as long as such Person has agreed to maintain the confidentiality of such Confidential Information, (c) any of such Healthpeak Holder’s or its respective Affiliates’ partners, members, stockholders, directors (including the board of directors of Healthpeak Parent), officers (including the officers of Healthpeak Parent), employees or agents in the ordinary course of business (the Persons referenced in clauses (a), (b) and (c), a Healthpeak Holder’s “designated representatives”) or (d) as Janus Living may otherwise consent in writing; provided, further, however, that each Healthpeak Holder agrees to be responsible for any breaches of this Section 3.3 by such Healthpeak Holder’s designated representatives.
3.4 Information Sharing. Each party hereto acknowledges and agrees that Healthpeak Designees may share any information concerning Janus Living and its Subsidiaries received by them from or on behalf of Janus Living or its designated representatives with each of the Healthpeak Holders and its designated representatives (subject to such Healthpeak Holder’s obligation to maintain the confidentiality of Confidential Information in accordance with Section 3.3).
Article IV.
GENERAL PROVISIONS
4.1 Termination. This Agreement shall terminate on the earlier to occur of (i) such time as Healthpeak Parent, on behalf of the Healthpeak Holders, is no longer entitled to designate a Director pursuant to Section 2.1(a) and (ii) the delivery of a written notice by Healthpeak Parent, on behalf of the Healthpeak Holders, to Janus Living requesting that this Agreement terminate with respect to the rights and obligations of the Healthpeak Holders hereunder.
4.2 Notices. Any notice, designation, request, request for consent or consent provided for in this Agreement shall be in writing and shall be either personally delivered, sent by e-mail or other electronic communication or sent by reputable overnight courier service (charges prepaid) to Janus Living at the address set forth below and to any other recipient at the address indicated on Janus Living’s records, or at such address or to the attention of such other Person as the recipient party has specified by prior written notice to the sending party. Notices and other such documents will be deemed to have been given or made hereunder when delivered personally, sent by e-mail or other electronic communication (receipt confirmed), and one (1) Business Day after deposit with a reputable overnight courier service.
If to Janus Living:
Janus Living, Inc.
c/o Healthpeak Properties, Inc.
4600 South Syracuse Street, Suite 500
Denver, Colorado 80237
Attention: Tracy Porter
Email:
7
with a copy (which shall not constitute notice) to:
Latham & Watkins LLP
10250 Constellation Blvd., Suite 1100
Los Angeles, California 90067
Attention: Lewis Kneib
Email:
If to the Healthpeak Entities:
Healthpeak Properties, Inc.
4600 South Syracuse Street, Suite 500
Denver, Colorado 80237
Attention: Tracy Porter
Email:
with a copy (which shall not constitute notice) to:
Latham & Watkins LLP
10250 Constellation Blvd., Suite 1100
Los Angeles, California 90067
Attention: Lewis Kneib
Email:
4.3 Amendment; Waiver. This Agreement may be amended, supplemented, or otherwise modified only by a written instrument executed by Janus Living and the other parties hereto. Neither the failure nor delay on the part of any party hereto to exercise any right, remedy, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise of the same or of any other right, remedy, power or privilege, nor shall any waiver of any right, remedy, power or privilege with respect to any occurrence be construed as a waiver of such right, remedy, power or privilege with respect to any other occurrence. No waiver shall be effective unless it is in writing and is signed by the party asserted to have granted such waiver.
4.4 Further Assurances. The parties hereto will sign such further documents, cause such meetings to be held, resolutions passed, exercise their votes and do and perform and cause to be done such further acts and things necessary, proper or advisable in order to give full effect to this Agreement and every provision hereof. To the fullest extent permitted by law, Janus Living shall not directly or indirectly take any action that is intended to, or would reasonably be expected to result in, any Healthpeak Entity being deprived of the rights contemplated by this Agreement.
8
4.5 Assignment. This Agreement may not be assigned without the express prior written consent of the other parties hereto, and any attempted assignment, without such consents, will be null and void; provided, however, that, without the prior written consent of any other party hereto, each Healthpeak Holders may assign its rights and obligations under this Agreement, in whole or in part, to any Affiliate, so long as such Affiliate, if not already a party to this Agreement, executes and delivers to Janus Living a joinder to this Agreement evidencing its agreement to be become a party to and to be bound by this Agreement as a Healthpeak Holder hereunder, whereupon such Affiliate shall be deemed a “Healthpeak Holder” hereunder. This Agreement will inure to the benefit of and be binding on the parties hereto and their respective successors and permitted assigns.
4.6 Third Parties. Except as provided for in Article II, Article III and Article IV with respect to any Healthpeak Entity and its Affiliates and their respective successors and permitted assigns, this Agreement does not create any rights, claims or benefits inuring to any person that is not a party hereto nor create or establish any third-party beneficiary hereto.
4.7 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Maryland, without regard to principles of conflicts of laws thereof.
4.8 Waiver of Jury Trial. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY INANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
4.9 Specific Performance. Each party hereto acknowledges and agrees that in the event of any breach of this Agreement by any of them, the other parties hereto would be irreparably harmed and could not be made whole by monetary damages. Each party accordingly agrees to waive the defense in any action for specific performance that a remedy at law would be adequate and agrees that the parties, in addition to any and all other rights and remedies that may be available to them in respect of such breach, shall be entitled to specific performance of this Agreement without the posting of bond.
4.10 Entire Agreement. This Agreement, together with the charter and bylaws of Janus Living, sets forth the entire understanding of the parties hereto with respect to the subject matter hereof. There are no agreements, representations, warranties, covenants or understandings with respect to the subject matter hereof or thereof other than those expressly set forth herein and therein. This Agreement supersedes all other prior agreements and understandings between the parties with respect to such subject matter.
4.11 Severability. If any provision of this Agreement, or the application of such provision to any Person or circumstance or in any jurisdiction, shall be held to be invalid or unenforceable to any extent, (i) the remainder of this Agreement shall not be affected thereby, and each other provision hereof shall be valid and enforceable to the fullest extent permitted by law, (ii) as to such Person or circumstance or in such jurisdiction such provision shall be reformed to be valid and enforceable to the fullest extent permitted by law and (iii) the application of such provision to other Persons or circumstances or in other jurisdictions shall not be affected thereby.
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4.12 Table of Contents, Headings and Captions. The table of contents, headings, subheadings and captions contained in this Agreement are included for convenience of reference only, and in no way define, limit or describe the scope of this Agreement or the intent of any provision hereof.
4.13 Counterparts. This Agreement and any amendment hereto may be signed in any number of separate counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one Agreement (or amendment, as applicable).
4.14 Effectiveness. This Agreement shall become effective upon the Closing Date.
4.15 No Recourse. This Agreement may only be enforced against, and any claims or cause of action that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement, the transactions contemplated hereby or the subject matter hereof may only be made against the parties hereto and no past, present or future Affiliate, director, officer, employee, incorporator, member, manager, partner, stockholder, agent, attorney or representative of any party hereto or any past, present or future Affiliate, director, officer, employee, incorporator, member, manager, partner, stockholder, agent, attorney or representative of any of the foregoing (each, a “Non-Recourse Party”) shall have any liability for any obligations or liabilities of the parties to this Agreement or for any claim based on, in respect of, or by reason of, the transactions contemplated hereby. Without limiting the rights of any party against the other parties hereto, in no event shall any party or any of its Affiliates seek to enforce this Agreement against, make any claims for breach of this Agreement against, or seek to recover monetary damages from, any Non-Recourse Party.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written.
| JANUS LIVING, INC. | |
|---|---|
| By: | /s/ Kelvin O. Moses |
| Name: | Kelvin O. Moses |
| Its: | Chief Financial Officer |
| HEALTHPEAK PROPERTIES, INC. | |
| --- | --- |
| By: | /s/ Adam G. Mabry |
| Name: | Adam G. Mabry |
| Its: | Chief Investment Officer |
| JANUS MEMBER, LLC | |
| --- | --- |
| By: | Healthpeak<br> OP, LLC, its managing member |
| By: | Healthpeak Properties, Inc.,<br>its managing member |
| By: | /s/ Adam G. Mabry |
| Name: | Adam G. Mabry |
| Its: | Chief Investment Officer |
| CCRC PROPCO VENTURES, LLC | |
| --- | --- |
| By: | Healthpeak<br> OP, LLC, its managing member |
| By: | Healthpeak Properties, Inc.,<br>its managing member |
| By: | /s/ Adam G. Mabry |
| Name: | Adam G. Mabry |
| Its: | Chief Investment Officer |
[Signature page to StockholdersAgreement]
Exhibit 10.5
REGISTRATION RIGHTS AGREEMENT
by and among
JANUS LIVING, INC.
and
the other parties hereto
Dated as of March 19, 2026
TABLE OF CONTENTS
Page
| Article I DEFINITIONS | 1 | |
|---|---|---|
| Section 1.1 | Certain Definitions | 1 |
| Section 1.2 | Other Definitional Provisions;<br> Interpretation | 5 |
| Article II<br> REGISTRATION RIGHTS | 6 | |
| Section 2.1 | Piggyback Rights | 6 |
| Section 2.2 | Demand Registration | 9 |
| Section 2.3 | Registration Procedures | 11 |
| Section 2.4 | Other Registration-Related Matters | 15 |
| Article III<br> INDEMNIFICATION | 18 | |
| Section 3.1 | Indemnification by the Company | 18 |
| Section 3.2 | Indemnification by the Holders<br> and Underwriters | 19 |
| Section 3.3 | Notices of Claims, Etc. | 19 |
| Section 3.4 | Contribution | 20 |
| Section 3.5 | Other Indemnification | 21 |
| Section 3.6 | Non-Exclusivity | 21 |
| Article IV<br> OTHER | 22 | |
| Section 4.1 | Notices | 22 |
| Section 4.2 | Assignment | 22 |
| Section 4.3 | Amendments; Waiver | 23 |
| Section 4.4 | Third Parties | 23 |
| Section 4.5 | Governing Law | 23 |
| Section 4.6 | CONSENT TO JURISDICTION | 23 |
| Section 4.7 | MUTUAL WAIVER OF JURY TRIAL | 23 |
| Section 4.8 | Specific Performance | 23 |
| Section 4.9 | Entire Agreement | 23 |
| Section 4.10 | Severability | 24 |
| Section 4.11 | Counterparts | 24 |
| Section 4.12 | Effectiveness | 24 |
| Section 4.13 | No Recourse | 24 |
| Section 4.14 | Independent Nature of the Rights<br> and Obligations of Holders | 24 |
| Section 4.15 | Termination as to a Holder | 24 |
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the “Agreement”) is dated as of March 19, 2026 and is by and among Janus Living, Inc., a Maryland corporation (the “Company”), and the Holders (as defined below) from time to time party hereto.
RECITALS
WHEREAS, the Company is effecting an underwritten initial public offering (“IPO”) of shares of its Class A-1 Common Stock (as defined below); and
WHEREAS, the Company desires to grant registration rights to the Holders on the terms and conditions set out in this Agreement.
NOW, THEREFORE, the parties agree as follows:
Article I
DEFINITIONS
Section 1.1 Certain Definitions. As used in this Agreement:
“Advice” has the meaning set forth in Section 2.4(b).
“Affiliate” has the meaning ascribed thereto in Rule 12b-2 promulgated under the Exchange Act, as in effect on the date hereof.
“Agreement” has the meaning set forth in the preamble.
“ATM Program” means any offer and sale from time to time of the Class A-1 Common Stock through one or more broker-dealers acting as the Company’s sales agent or agents or, if applicable, as forward seller or sellers (herein collectively referred to as “sales agents”) in negotiated transactions, including block trades, or transactions that are deemed to be “at the market” offerings as defined in Rule 415 under the Securities Act by means of ordinary brokers’ transactions at market prices prevailing at the time of sale, including sales made directly on a securities exchange, sales made to or through a market maker and sales made through electronic communications networks.
“Board” means the Board of Directors of the Company.
“Business Day” means a day other than a Saturday, Sunday, federal or New York State holiday or other day on which commercial banks in New York City are authorized or required by law to close.
“Closing Date” means the date of the initial closing of the IPO.
“Class A-1 Common Stock” means the shares of Class A-1 common stock, par value $0.01 per share, of the Company, and any Securities issued in respect thereof, or in substitution therefor, in connection with any stock split, dividend or combination, or into which it may be converted or exchanged pursuant to any reclassification, recapitalization, merger, consolidation, sale of all or any part of its assets, corporate conversion or other extraordinary transaction of the Company.
“Common Units” means common units of membership interests in the Operating Company.
“Company” has the meaning set forth in the preamble.
“Control” (including its correlative meanings, “Controlled by” and “under common Control with”) means possession, directly or indirectly, of the power to direct or cause the direction of management or policies (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise) of a Person.
“Custody Agreement and Power of Attorney” has the meaning set forth in Section 2.4(h).
“Demand Party” has the meaning set forth in Section 2.2(a).
“Demand Synthetic Secondary” has the meaning set forth in Section 2.2(e).
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, as the same may be amended from time to time.
“FINRA” means the Financial Industry Regulatory Authority, Inc.
“Governmental Authority” means any nation or government, any state or other political subdivision thereof, and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
“Healthpeak Holder” and “Healthpeak Holders” means each of, and collectively, as applicable, Janus Member, LLC, a Delaware limited liability company, and CCRC PropCo Ventures, LLC, a Delaware limited liability company.
“Holder” means a Healthpeak Holder or any Transferee of such Person to whom registration rights are expressly assigned by such Healthpeak Holder pursuant to Section 4.2.
“Indemnified Party” and “Indemnified Parties” have the meanings set forth in Section 3.1.
“IPO” has the meaning set forth in the recitals.
“Law” means any statute, law, regulation, ordinance, rule, injunction, order, decree, governmental approval, directive, requirement, or other governmental restriction or any similar form of decision of, or determination by, or any interpretation or administration of any of the foregoing by, any Governmental Authority.
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“Operating Agreement” means the Operating Agreement of the Operating Company, dated on or about the date hereof, among the Company and the other persons party thereto from time to time, as amended and in effect from time to time.
“Operating Company” means Janus Living OP, LLC, a Maryland limited liability company.
“Person” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, a cooperative, an unincorporated organization, or other form of business organization, whether or not regarded as a legal entity under applicable Law, or any Governmental Authority or any department, agency or political subdivision thereof.
“Piggyback Synthetic Secondary” has the meaning set forth in Section 2.1(e).
“Proceeding” has the meaning set forth in Section 3.3.
“Public Offering” means a public offering, including pursuant to any ATM Program, of equity securities of the Company or any successor thereto or any Subsidiary of the Company pursuant to a registration statement declared effective under the Securities Act.
“Registrable Securities” means all shares of Class A-1 Common Stock held by a Holder, whether now held or hereafter acquired, and including any such shares of Class A-1 Common Stock received by a Holder upon the conversion or exchange of, or pursuant to such a transaction with respect to, other Securities held by such Holder, including such shares of Class A-1 Common Stock received by a Holder upon exchange of Common Units in accordance with the Operating Agreement, in each case, whether now held or hereafter acquired. As to any Registrable Securities, such Securities shall cease to be Registrable Securities without further act of the Company or a Holder when:
(a) a registration statement covering such Registrable Securities has been declared effective and such Registrable Securities have been disposed of pursuant to such effective registration statement;
(b) such Registrable Securities shall have been sold pursuant to Section 4(a)(1), Rule 144 or 145 (or any similar provision then in effect) under the Securities Act;
(c) such Registrable Securities shall have been Transferred in a private transaction in which the Transferor’s registration rights under this Agreement are not assigned to the Transferee of the Securities (other than in connection with a Demand Synthetic Secondary or a Piggyback Synthetic Secondary); or
(d) such Registrable Securities cease to be outstanding.
As used herein, if the Holders elect to cause the Company to undertake a Public Offering of shares of Class A-1 Common Stock for the Company’s own account in connection with a Piggyback Synthetic Secondary or Demand Synthetic Secondary, the term “Registrable Securities” shall include, as applicable, the shares of Class A-1 Common Stock selected by a Healthpeak Holder for repurchase or redemption in connection with such Piggyback Synthetic Secondary or Demand Synthetic Secondary and the shares of Class A-1 Common Stock the Company issues in connection with such Piggyback Synthetic Secondary or Demand Synthetic Secondary.
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“Registration Expenses” means any and all expenses incurred in connection with the performance of or compliance with this Agreement, including:
(a) all SEC, stock exchange, or FINRA registration and filing fees (including, if applicable, the fees and expenses of any “qualified independent underwriter,” as such term is defined in Rule 5121 of FINRA, and of its counsel);
(b) all fees and expenses of complying with securities or blue sky Laws (including fees and disbursements of counsel for the underwriters or sales agents in connection with blue sky qualifications of the Registrable Securities);
(c) all printing, messenger and delivery expenses;
(d) all fees and expenses incurred in connection with the listing of the Registrable Securities on any securities exchange or FINRA and all rating agency fees;
(e) the reasonable fees and disbursements of counsel for the Company and of its independent public accountants, including the expenses of any special audits and/or “cold comfort” letters required by or incident to such performance and compliance;
(f) any fees and disbursements of underwriters or sales agents customarily paid by the issuers or sellers of Securities, including liability insurance if the Company so desires or if the underwriters or sales agents so require, and the reasonable fees and expenses of any special experts retained in connection with the requested registration, but excluding any underwriting discounts and commissions and sales agents commissions, as applicable, and transfer taxes, if any;
(g) the reasonable fees and out-of-pocket expenses of not more than one law firm together with appropriate local counsel (as selected by the Holders of a majority of the Registrable Securities included in such registration) acting as counsel for all the Holders in connection with the registration;
(h) other reasonable out-of-pocket expenses of the holders of Registrable Securities incurred in connection with the registration;
(i) the costs and expenses of the Company relating to analyst and investor presentations or any “road show” undertaken in connection with the registration and/or marketing of the Registrable Securities (including the reasonable out-of-pocket expenses of the Holders); and
(j) any other fees and disbursements customarily paid by the issuers of securities.
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“SEC” means the U.S. Securities and Exchange Commission or any successor agency.
“Securities” means capital stock, limited partnership interests, limited liability company interests, beneficial interests, warrants, options, notes, bonds, debentures, and other securities, equity interests, ownership interests and similar obligations of every kind and nature of any Person.
“Securities Act” means the U.S. Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder, as the same may be amended from time to time.
“Subsidiary” means, with respect to any Person, any corporation, limited liability company, partnership, association or other business entity of which: (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, representatives or trustees thereof is at the time owned or Controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof; or (ii) if a limited liability company, partnership, association or other business entity, a majority of the total voting power of stock (or equivalent ownership interest) of the limited liability company, partnership, association or other business entity is at the time owned or Controlled, directly or indirectly, by any Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, a Person or Persons shall be deemed to have a majority ownership interest in a limited liability company, partnership, association or other business entity if such Person or Persons shall be allocated a majority of limited liability company, partnership, association or other business entity gains or losses or shall be or Control the managing director or general partner of such limited liability company, partnership, association or other business entity.
“Subsidiary Units” means shares of capital stock, units of membership interests, units of partnership interests or other ownership interests of a Subsidiary of the Company.
“Transfer” (including its correlative meanings, “Transferor”, “Transferee” and “Transferred”) shall mean, with respect to any security, directly or indirectly, to sell, contract to sell, give, assign, hypothecate, pledge, encumber, grant a security interest in, offer, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend or otherwise transfer or dispose of any economic, voting or other rights in or to such security. When used as a noun, “Transfer” shall have such correlative meaning as the context may require.
Section 1.2 Other Definitional Provisions; Interpretation.
(a) The words “hereof,” “herein,” and “hereunder” and words of similar import when used in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement. The word “including” and words of similar import when used in this Agreement mean “including, without limitation,” unless otherwise specified. References in this Agreement to a designated “Article” or “Section” refer to an Article or Section of this Agreement unless otherwise specified and references to clauses without a cross-reference to a Section or subsection are references to clauses within the same Section or, if more specific, subsection. The word “extent” in the phrase “to the extent” means the degree to which a subject or other thing extends and such phrase shall not mean simply “if.” References to “day” means a calendar day unless otherwise indicated as a “Business Day.”
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(b) The headings in this Agreement are included for convenience of reference only and do not limit or otherwise affect the meaning or interpretation of this Agreement.
(c) The meanings given to terms defined herein are equally applicable to both the singular and plural forms of such terms.
(d) When calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period is excluded. If the last day of such period is a non-Business Day, the period in question ends on the next succeeding Business Day.
Article II
REGISTRATION RIGHTS
Section 2.1 Piggyback Rights.
(a) If at any time following the IPO, the Company proposes to register Securities for public sale (whether proposed to be offered for sale by the Company or by any other Person) under the Securities Act (other than a registration on Form S-4 or S-8, or any successor or other forms promulgated for similar purposes or any registration statement filed solely to cover resales of Class A-1 Common Stock received by Persons upon exchange of outstanding Common Units or outstanding Subsidiary Units) in a manner which would permit registration of Registrable Securities for sale to the public under the Securities Act, it will give prompt written notice (which notice shall specify the intended method or methods of disposition) to the Holders of its intention to do so and of such Holder’s rights under this Section 2.1. For the avoidance of doubt, to the extent such registration is being effected pursuant to the exercise of a demand right pursuant to Section 2.2(a) or Section 2.2(e), the Company shall not be obligated to provide such notice to the Demand Party or its Affiliates. Upon the written request of any Holder made within fifteen (15) days after the receipt of any such notice (which request shall specify the number of Registrable Securities intended to be disposed of by such Holder), the Company shall use its best efforts to effect the registration under the Securities Act of all Registrable Securities which the Holders have so requested to be registered; provided that: (i) any Holder shall have the right to withdraw such Holder’s request for inclusion of any of such Holder’s Registrable Securities in any registration statement pursuant to this Section 2.1(a) by giving written notice to the Company of such withdrawal, provided that, in the case of any underwritten offering, written notice of such withdrawal must be given to the Company prior to the time at which the offering price and underwriter’s discount or commissions is determined with the managing underwriter or underwriters; (ii) if, at any time after giving written notice of its intention to register any Securities and prior to the effective date of the registration statement filed in connection with such registration, the Company shall determine for any reason not to proceed with the proposed registration of the Securities to be sold by it, the Company may, at its election, give written notice of such determination to the Holders and, thereupon, the Company shall be relieved of its obligation to register any Registrable Securities in connection with such registration (but not from its obligation to pay the Registration Expenses incurred in connection therewith) without prejudice to the rights of the Demand Party to request that such registration be effected as a registration under Section 2.2(a) or Section 2.2(e); and (iii) subject to clause (i), if such registration involves an underwritten offering, each Holder of Registrable Securities requesting to be included in the registration must, upon the written request of the Company, sell its Registrable Securities to the underwriters on the same terms and conditions as apply to the other Securities being sold through underwriters under such registration, with, in the case of a combined primary and secondary offering, only such differences, including any with respect to representations and warranties, indemnification and liability insurance, as may be customary or appropriate in combined primary and secondary offerings; provided that, in the case of Piggyback Synthetic Secondary, each Holder of Registrable Securities requesting to be included in the registration must, upon the written request of the Company, sell its Registrable Securities to the Company in accordance with Section 2.1(e).
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(b) Expenses. The Company shall pay all Registration Expenses in connection with each registration of Registrable Securities requested pursuant to this Section 2.1.
(c) Priority in Piggyback Registrations. If a registration pursuant to this Section 2.1 involves an underwritten offering and the managing underwriter advises the Company in writing (a copy of which shall be provided to the Holders) that, in its opinion, the number of Registrable Securities and other Securities requested to be included in such registration exceeds the number which can be sold in such offering, so as to be likely to have a material and adverse effect on the price, timing or distribution of the Securities offered in such offering, then the Company shall include in such registration: (i) first, the Securities the Company proposes to sell for its own account (other than Securities the Company proposes to sell for its own account in connection with a Piggyback Synthetic Secondary); and (ii) second, such number of Registrable Securities requested to be included in such registration by the Holders (including for this purpose any Securities the Company proposes to sell for its own account in connection with a Piggyback Synthetic Secondary) which, in the opinion of such managing underwriter, can be sold without having the material and adverse effect referred to above, which number of Registrable Securities shall be allocated pro rata among all such requesting Holders of Registrable Securities on the basis of the relative number of Registrable Securities then held by each such Holder (provided that any Securities thereby allocated to any such Holder that exceed such Holder’s request shall be reallocated among the remaining requesting Holders in like manner). Any other selling holders of the Company’s Securities shall be included in an underwritten offering only with the consent of Holders holding a majority of the shares being sold in such offering and, if so included, such securities, at the election of the Holders, shall be subject to clause (ii) above in the same manner as the Registrable Securities held by the Holders or shall have priority after the shares of the Holders.
(d) Excluded Transactions. The Company shall not be obligated to effect any registration of Registrable Securities under this Section 2.1 incidental to the registration of any of its Securities in connection with:
(i) the IPO;
(ii) a registration statement filed to cover solely issuances under employee benefits plans or dividend reinvestment plans;
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(iii) a registration statement filed solely to cover resales of Class A-1 Common Stock received by Persons upon exchange of outstanding Common Units or outstanding Subsidiary Units;
(iv) any registration statement relating solely to the acquisition or merger after the date hereof by the Company or any of its Subsidiaries of or with any other businesses, assets or properties; or
(v) any registration related solely to an exchange by the Company of its own securities.
(e) Plan of Distribution, Underwriters, Advisors and Counsel. If a registration pursuant to this Section 2.1 involves an underwritten offering, the Holders of a majority of the Registrable Securities included in such underwritten offering shall have the right to (i) determine the plan of distribution (including a Piggyback Synthetic Secondary), (ii) select the investment banker or bankers, managers and any provider of advisory services, which may include Affiliates of the Holders and/or Persons who provide other services to the Holders or their Affiliates, to administer the offering, including the lead managing underwriter or sales agent and (iii) select counsel for the selling Holders. Notwithstanding anything to the contrary in this Section 2.1, the Holders of a majority of the Registrable Securities included in such underwritten offering may, at their election, cause the Company to undertake a Public Offering of the Company’s Securities for its own account and use the net proceeds therefrom to purchase or redeem the number of Registrable Securities requested for registration pursuant to Section 2.1 (subject to Section 2.1(c)) (a “Piggyback Synthetic Secondary”). If the Holders elect a Piggyback Synthetic Secondary, unless otherwise agreed to by the Company and the Healthpeak Holders, the Company shall purchase or redeem each Registrable Security selected by the Healthpeak Holders for such purchase or redemption, and in each case for cash in immediately available funds in an amount equal to the net proceeds from each share of Class A-1 Common Stock received by the Company from the Piggyback Synthetic Secondary, determined after deduction of underwriting discounts or commissions attributable to the sale of such Securities and any transfer taxes relating to the registration or sale of such Securities.
(f) Shelf Takedowns. Subject to the expiration or waiver of any applicable lockup pursuant to Section 2.4(d), in connection with any shelf takedown (other than a shelf takedown at the request of the Demand Party, which shall be governed by Section 2.2(f)), the Holders may exercise “piggyback” rights in the manner described in this Agreement to have included in such takedown Registrable Securities held by them that are registered on such shelf registration statement.
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Section 2.2 Demand Registration.
(a) General. At any time following the IPO, upon the written request of any Holder (the “Demand Party”) requesting that the Company effect the registration under the Securities Act of Registrable Securities and specifying the amount and intended plan of distribution thereof (including, but not limited to, an underwritten offering, an ATM Program and a Demand Synthetic Secondary), the Company shall (x) promptly give written notice of such requested registration to Holders other than the Demand Party and its Affiliates and to other holders of Securities entitled to notice of such registration, if any, and (y) as expeditiously as possible, use its best efforts to file a registration statement to effect the registration under the Securities Act of:
(i) such Registrable Securities which the Company has been so requested to register by the Demand Party in accordance with the intended plan of distribution thereof; and
(ii) the Registrable Securities of other Holders which the Company has been requested to register by written request given to the Company within fifteen (15) days after the giving of such written notice by the Company.
Notwithstanding the foregoing, the Company shall not be obligated to file a registration statement relating to any registration request under this Section 2.2(a):
(A) prior to the expiration or waiver of the applicable lockup period, if any, in respect of a previous Public Offering; or
(B) if the amount of Registrable Securities which the Company has been so requested to register by the Demand Party is less than $50,000,000 based on the then-current public trading price at the time of such request (unless the amount of Registrable Securities which the Company has been so requested to register by the Demand Party constitutes all of the Registrable Securities held by the Demand Party); or
(C) if, in the good faith judgment of the Board, the Company is in possession of material non-public information the disclosure of which would be materially adverse to the Company and would not otherwise be required under Law, in which case the filing of the registration statement may be delayed until the earlier of the second Business Day after such conditions shall have ceased to exist and the 60th day after receipt by the Company of the written request from a Demand Party to register Registrable Securities under this Section 2.2(a); provided that the number of any such delays or any delay pursuant to Section 2.2(f) shall not exceed two in any twelve (12) month period.
(b) Form. Each registration statement prepared at the request of a Demand Party shall be effected on such form as reasonably requested by the Demand Party, including by a shelf registration pursuant to Rule 415 under the Securities Act on a Form S-3 (or any successor rule or form thereto) if so requested by the Demand Party and if the Company is then eligible to effect a shelf registration and use such form for such disposition.
(c) Expenses. The Company shall pay all Registration Expenses in connection with each registration of Registrable Securities requested pursuant to this Section 2.2.
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(d) Priority in Demand Registrations. If a requested registration pursuant to this Section 2.2 involves an underwritten offering and the managing underwriter advises the Company in writing (a copy of which shall be provided to each Holder that has requested that its Registrable Securities be included in such underwritten offering) that, in its opinion, the number of Registrable Securities requested to be included in such offering (including Securities of the Company which are not Registrable Securities) exceeds the number which can be sold in such offering, so as to be likely to have a material and adverse effect on the price, timing or distribution of the Securities offered in such offering, then the number of such Registrable Securities to be included in such offering shall be allocated pro rata among the Holders that have requested that their Registrable Securities be included in such offering, including pursuant to Section 2.2(a), if any, on the basis of the relative number of Registrable Securities then held by each such Holder (provided that any Securities thereby allocated to any such Holder that exceed such Holder’s request will be reallocated among all such remaining parties in like manner). Any other selling holders of the Company’s Securities shall be included in an underwritten offering only with the consent of Holders holding a majority of the Registrable Securities being sold by all Holders in such offering.
(e) Plan of Distribution, Underwriters, Advisors and Counsel. If a requested registration pursuant to this Section 2.2 involves an underwritten offering or ATM Program, the Demand Party shall have the right to (i) determine the plan of distribution (including a Demand Synthetic Secondary), (ii) select the investment banker or bankers, managers, sales agent or agents and any provider of advisory services, which may include Affiliates of the Holders and/or Persons who provide other services to the Holders or their Affiliates, to administer the offering, including the lead managing underwriter or sales agent and (iii) select counsel for the selling Holders. Notwithstanding anything to the contrary in this Section 2.2, the Holders of a majority of the Registrable Securities included in such underwritten offering or ATM Program may, at their election, cause the Company to undertake a Public Offering of the Company’s Securities for its own account and use the net proceeds therefrom to purchase or redeem the number of Registrable Securities requested for registration pursuant to Section 2.2 (subject to Section 2.2(d)) (a “Demand Synthetic Secondary”). If the Holders elect a Demand Synthetic Secondary, unless otherwise agreed to by the Company and the Healthpeak Holders, the Company shall purchase or redeem each Registrable Security selected by the Healthpeak Holders for such purchase or redemption, and in each case for cash in immediately available funds in an amount equal to the net proceeds from each Security received by the Company from the Demand Synthetic Secondary, determined after deduction of underwriting discounts or commissions or sales agents commissions, as applicable, attributable to the sale of such Securities and any transfer taxes relating to the registration or sale of such Securities.
(f) Shelf Takedowns. Upon the written request of the Demand Party at any time and from time to time, the Company shall facilitate in the manner described in this Agreement a “takedown” of the Demand Party’s Registrable Securities off of an effective shelf registration statement. Upon the written request of the Demand Party, the Company shall file and seek the effectiveness of a post-effective amendment to an existing shelf registration statement in order to register up to the number of the Demand Party’s Registrable Securities previously taken down off of such shelf by the Demand Party and not yet “reloaded” onto such shelf registration statement.
Notwithstanding the foregoing, the Company shall not be obligated to facilitate a “takedown” under this Section 2.2(f) if, in the good faith judgment of the Board, the Company is in possession of material non-public information the disclosure of which would be materially adverse to the Company and would not otherwise be required under Law, in which case the filing of the applicable prospectus or prospectus supplement may be delayed until the earlier of the second Business Day after such conditions shall have ceased to exist and the 60th day after receipt by the Company of the written request from a Demand Party to effect the takedown under this Section 2.2(f); provided that the number of any such delays or any delay pursuant to Section 2.2(a)(ii)(C) shall not exceed two in any twelve (12) month period.
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(g) No Inconsistent Agreements; Additional Rights. The Company has not entered, and shall not hereafter enter, into any agreement with respect to its securities which is inconsistent with the rights granted to the Holders in this Agreement. If the Company has entered into or enters into a registration rights agreement with a third party, the Company shall promptly send a copy thereof to the Holders.
In the event the Company engages in a merger or consolidation in which the shares of Class A-1 Common Stock are converted into Securities of another company, appropriate arrangements shall be made so that the registration rights provided under this Agreement continue to be provided to Holders by the issuer of such Securities. To the extent such new issuer, or any other company acquired by the Company in a merger or consolidation, was bound by registration rights that would conflict with the provisions of this Agreement, the Company shall use its best efforts to modify any such “inherited” registration rights so as not to interfere in any material respects with the rights provided under this Agreement.
Section 2.3 Registration Procedures. If and whenever the Company is required to file a registration statement with respect to, or to use its best efforts to effect or cause the registration of, any Registrable Securities under the Securities Act as provided in this Agreement, the Company shall:
(a) promptly prepare and file with the SEC a registration statement on an appropriate form with respect to such Registrable Securities in accordance with the intended plan of distribution thereof (including a Piggyback Synthetic Secondary or Demand Synthetic Secondary) and use its best efforts to cause such registration statement to become effective as soon as practicable thereafter; provided, however, that before filing a registration statement or prospectus, or any amendments or supplements thereto (including documents that would be incorporated or deemed to be incorporated therein by reference), the Company shall (i) furnish to counsel for the Holders copies of all documents proposed to be filed, which documents will be subject to the review of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC, (ii) fairly consider such reasonable changes in any such documents prior to or after the filing thereof as the counsel to the sellers of Registrable Securities being sold may request, and (iii) make such of the representatives of the Company as shall be reasonably requested by the sellers of the Registrable Securities being sold available for discussion of such documents;
(b) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period not in excess of two (2) years (which period shall not be applicable in the case of a shelf registration effected pursuant to a request under Section 2.2(b)) and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Securities covered by such registration statement during such period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; provided that before filing a registration statement or prospectus, or any amendments or supplements thereto (other than any reports or other documents filed with the SEC pursuant to the Exchange Act), the Company shall (i) furnish to counsel for the sellers of Registrable Securities covered by such registration statement copies of all documents proposed to be filed, which documents will be subject to the review of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC, (ii) fairly consider such reasonable changes in any such documents prior to or after the filing thereof as the counsel to the sellers of Registrable Securities being sold may request, and (iii) make such of the representatives of the Company as shall be reasonably requested by the sellers of the Registrable Securities being sold available for discussion of such documents;
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(c) furnish to each seller of such Registrable Securities and the underwriters or sales agents of the securities being registered such number of copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits filed therewith, including any documents incorporated by reference), such number of copies of the prospectus included in such registration statement (including each preliminary prospectus and summary prospectus), in conformity with the requirements of the Securities Act, and such other documents as such seller, underwriters or sales agents may reasonably request, without charge, in order to facilitate the disposition of the Registrable Securities by such seller or the sale of such securities by such underwriters or sales agent (it being understood that, subject to the requirements of the Securities Act and applicable state securities laws, the Company consents to the use of the prospectus and any amendment or supplement thereto by each seller and the underwriters or sales agents in connection with the offering and sale of the Registrable Securities covered by the registration statement of which such prospectus, amendment or supplement is a part);
(d) use its best efforts to register or qualify such Registrable Securities covered by such registration in such jurisdictions as each seller shall reasonably request and to keep each such registration or qualification (or exemption therefrom) effective during the period in which the registration statement is required to be kept effective, and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller;
(e) use its best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities, including registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or “blue sky” laws of such jurisdictions within the United States, to keep each such registration or qualification (or exemption from such registration or qualification) effective during the period such registration statement is required to be kept effective pursuant to this Agreement, to cooperate with the selling holders of such Registrable Securities, the underwriters or sales agents, if any, and their respective counsel in connection therewith, and to take any other action as may be necessary or advisable to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities in such jurisdiction;
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(f) promptly notify each seller (and in the case of clause (x), any underwriter or sales agent) of any such Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the Company’s becoming aware that (i) the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and at the request of any such seller, as promptly as practicable thereafter prepare and furnish to such seller and any underwriter or sales agent a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing and (ii) the representations and warranties of the Company contained in any agreement (including any underwriting agreement or sales agent agreement) contemplated by Section 2.3(j) below ceases to be true and correct in all material respects;
(g) comply with all applicable rules and regulations of the SEC, and make available to its Security holders, as soon as reasonably practicable after the effective date of the registration statement, an earnings statement which shall satisfy the provisions of Section 11(a) of the Securities Act no later than 45 days after the end of any 12-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm commitment or best efforts underwritten offering or ATM Program;
(h) (i) list such Registrable Securities on any securities exchange on which other Securities of the Company are then listed if such Registrable Securities are not already so listed and if such listing is then permitted under the rules of such exchange, and (ii) provide a transfer agent and registrar and CUSIP number for such Registrable Securities covered by such registration statement not later than the effective date of such registration statement;
(i) enter into such customary agreements (including an underwriting agreement or sales agent agreement in customary form), which shall include (x) indemnification provisions and procedures no less favorable to the holders of Registrable Securities than those set forth in Article III hereof (or such other provisions and procedures acceptable to holders of a majority of the Registrable Securities covered by such registration statement and the underwriters or sales agents) and (y) such representations and warranties to the underwriters or sales agents, with respect to the business of the Company and its Subsidiaries, and such registration statement, prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings or sales agents in ATM Programs, and the Company shall confirm the same if and when requested, and take such other actions as the underwriters or sales agents, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities;
(j) if requested by the managing underwriter(s) of an underwritten offering, sales agent(s) of an ATM Program or if reasonably requested by the seller or sellers of a majority of such Registrable Securities, use best efforts to obtain a comfort letter or letters and updates thereof from the Company’s independent certified public accountants (and, if necessary, any other independent certified public accountants of any Subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in such registration statement) addressed to the underwriters, sales agents or seller or sellers in customary form and covering matters of the type customarily covered by comfort letters;
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(k) make available for inspection by any seller of such Registrable Securities covered by such registration statement, by any underwriter or sales agent participating in any disposition to be effected pursuant to such registration statement and by any attorney, accountant or other agent retained by any such seller or any such underwriter or sales agent, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees to supply all information reasonably requested by any such seller, underwriter, sales agent, attorney, accountant or agent in connection with such registration statement;
(l) notify counsel for the Holders of Registrable Securities included in such registration statement and the managing underwriter or sales agent, immediately, and confirm the notice in writing: (i) when the registration statement, or any post-effective amendment to the registration statement, shall have become effective, or any supplement to the prospectus or any amendment to any prospectus shall have been filed; (ii) of the receipt of any comments from the SEC; (iii) of any request of the SEC to amend the registration statement or amend or supplement the prospectus or for additional information; and (iv) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the registration statement for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes;
(m) provide each Holder of Registrable Securities included in such registration statement reasonable opportunity to comment on the registration statement, any post-effective amendments to the registration statement, any supplement to the prospectus or any amendment to any prospectus;
(n) make every reasonable effort to prevent the issuance of any stop order suspending the effectiveness of the registration statement or of any order preventing or suspending the use of any preliminary prospectus and, if any such order is issued, to obtain the withdrawal of any such order at the earliest possible moment;
(o) if requested by the managing underwriter or sales agent or any Holder of Registrable Securities covered by the registration statement, promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or sales agent or such Holder reasonably requests to be included therein, including, with respect to the number of Registrable Securities being sold by such Holder to such underwriter or sales agent, the purchase price being paid therefor by such underwriter or sales agent and with respect to any other terms of the underwritten offering or ATM Program involving the Registrable Securities to be sold in such offering; and make all required filings of such prospectus supplement or post-effective amendment as soon as practicable after being notified of the matters incorporated in such prospectus supplement or post-effective amendment;
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(p) cooperate with the Holders of Registrable Securities covered by the registration statement and the managing underwriter or sales agent, if any, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legends) representing Securities to be sold under the registration statement, and enable such Securities to be in such denominations and registered in such names as the managing underwriter or sales agent, if any, or the Holders may request;
(q) use its best efforts to make available the executive officers of the Company to participate with the Holders of Registrable Securities and any underwriters or sales agents in any “road shows” that may be reasonably requested by the Holders in connection with distribution of Registrable Securities;
(r) in the case of an offering that includes a provider of advisory services, enter into and perform its obligations under customary agreements (including an advisory services agreement and an indemnification agreement in customary form);
(s) obtain for delivery to the Holders of Registrable Securities being registered and to the underwriter or sales agent an opinion or opinions from counsel for the Company in customary form and in form, substance and scope reasonably satisfactory to such Holders, underwriters or sales agents and their counsel; and
(t) cooperate with each seller of Registrable Securities and each underwriter or sales agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA.
Section 2.4 Other Registration-Related Matters.
(a) The Company may require any Person that is Transferring Securities in a Public Offering pursuant to Sections 2.1 or 2.2 to furnish to the Company in writing such information regarding such Person and pertinent to the disclosure requirements relating to the registration and the distribution of the Registrable Securities which are included in such Public Offering as the Company may from time to time reasonably request in writing; provided that such information shall be used only in connection with such registration.
(b) Each Holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 2.3(f)(i), it will forthwith discontinue disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until its receipt of the copies of the amended or supplemented prospectus contemplated by Section 2.3(f) or until it is advised in writing (the “Advice”) by the Company that the use of the prospectus may be resumed and, if so directed by the Company, each Holder will deliver to the Company or destroy (at the Company’s expense) all copies, other than permanent file copies then in its possession, of the prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company gives any such notice, the period for which the Company shall be required to keep the registration statement effective shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 2.3(f)(i) to and including the date when each seller of Registrable Securities covered by such registration statement has received the copies of the supplemented or amended prospectus contemplated by Section 2.3(f)(i) or the Advice. The Company shall use its best efforts and take such actions as are reasonably necessary to render the Advice as promptly as practicable.
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(c) Each Holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 2.3(l)(iv), it shall forthwith discontinue disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until the lifting of such stop order, other order or suspension or the termination of such proceedings and, if so directed by the Company, each Holder shall deliver to the Company or destroy (at the Company’s expense) all copies, other than permanent file copies then in its possession, of the prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company gives any such notice, the period for which the Company shall be required to keep the registration statement effective shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 2.3(l)(iv) to and including the date when such stop order, other order or suspension is lifted or such proceedings are terminated.
(d)
(i) Each Holder will, in connection with a Public Offering (other than the IPO) of the Company’s equity Securities (whether for the Company’s own account or for the account of any Holder or Holders, or both), upon the request of the Company or of the underwriters managing any underwritten offering of the Company’s equity Securities, agree in writing not to effect any sale, disposition or distribution of Registrable Securities (other than those included in the Public Offering) without the prior written consent of the managing underwriter for such period of time commencing seven (7) days before and ending ninety (90) days (or such earlier date as the managing underwriter shall agree) after (A) the effective date of such registration or (B) in the case of a Public Offering pursuant to Section 2.2(f), the pricing of such Public Offering.
(ii) The Company and its Subsidiaries will, in connection with an underwritten offering of the Company’s Securities in respect of which Registrable Securities are included, upon the request of the underwriters managing such offering, agree in writing not to effect any sale, disposition or distribution of equity Securities of the Company for the Company’s own account (other than those included in such Public Offering, offered on Form S-8, issuable in connection with any acquisition or merger of or with any other business, assets or properties, issuable upon conversion of Securities or upon the exercise of options, or the grant of options in the ordinary course of business pursuant to then-existing management equity plans or equity-based employee benefit plans, in each case outstanding on the date a notice is given by the Company pursuant to Section 2.1(a) or a request is made pursuant to Section 2.2(a), as the case may be, or agreed to by such managing underwriter), without the prior written consent of the managing underwriter, for such period of time commencing seven (7) days before and ending ninety (90) days (or such earlier date as the managing underwriter shall agree) after (x) the effective date of such registration or (y) in the case of a Public Offering pursuant to Section 2.2(f), the pricing of such Public Offering. The Company shall cause all directors and officers of the Company and all other Persons with registration rights with respect to the Company’s Securities (whether or not pursuant to this Agreement) to enter into agreements similar to those contained in this Section 2.4(d)(i) (without regard to this proviso).
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(e) With a view to making available the benefits of certain rules and regulations of the SEC which may at any time permit the sale of Securities of the Company to the public without registration after such time as a public market exists for Registrable Securities, the Company agrees:
(i) to make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act, at all times after the effective date of the first registration under the Securities Act filed by the Company for an offering of its Securities to the public;
(ii) to use its commercially reasonable efforts to then file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act (at any time after it has become subject to such reporting requirements); and
(iii) so long as a Holder owns any Registrable Securities, to furnish to such Holder promptly upon request: (A) a written statement by the Company as to its compliance with the reporting requirements of Rule 144 (at any time after ninety (90) days after the effective date of the first registration statement filed by the Company for an offering of its Securities to the public), and of the Securities Act and the Exchange Act (at any time after it has become subject to such reporting requirements); (B) a copy of the most recent annual or quarterly report of the Company; and (C) such other reports and documents of the Company as such Holder may reasonably request in availing itself or himself of any rule or regulation of the SEC allowing such Holder to sell any such Registrable Securities without registration.
(f) Counsel to represent Holders of Registrable Securities shall be selected by the Holders of at least a majority of the Registrable Securities held by all Holders included in the relevant registration.
(g) Each of the parties hereto agrees that the registration rights provided to the Holders herein are not intended to, and shall not be deemed to, override or limit any other restrictions on Transfer to which any such Holder may otherwise be subject.
(h) Upon delivering a request to participate in an underwritten offering or ATM Program under Section 2.1 or Section 2.2, a Holder (or its respective partners, members or stockholders) may, at its election, and shall, if requested by the Company, execute and deliver a customary custody agreement and power of attorney in form and substance reasonably satisfactory to the Company and such Holder with respect to such Holder's Registrable Securities to be offered pursuant thereto (a “Custody Agreement and Power of Attorney”). The Custody Agreement and Power of Attorney will provide, among other things, that the Holder will deliver to and deposit in custody with the custodian and attorney-in-fact named therein a certificate or certificates representing such Registrable Securities, if such Registrable Securities are certificated, and irrevocably appoint said custodian and attorney-in-fact with full power and authority to act under the Custody Agreement and Power of Attorney on behalf of such Holder (or its respective partners, members or stockholders) with respect to the matters specified therein. Each Holder agrees to execute (or cause its respective partners, members or stockholders to execute) such other agreements as the Company may reasonably request to further evidence the provisions of this paragraph.
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Article III
INDEMNIFICATION
Section 3.1 Indemnification by the Company. In the event of any registration of any Securities of the Company under the Securities Act pursuant to Section 2.1 or Section 2.2, the Company hereby indemnifies and agrees to hold harmless, to the fullest extent permitted by Law, each Holder of Registrable Securities, each Affiliate of such Holder and their respective directors, officers, employees, partners, equityholders, managers, accountants, attorneys and agents (and the directors, officers, employees, partners, equityholders, managers, accountants, attorneys, agents and controlling Persons of any of the foregoing), any financial or investment adviser, each other Person who participates as an underwriter in the offering, as a sales agent in an ATM Program or sale of such Securities and each other Person, if any, who controls such Holder or any such underwriter or sales agent within the meaning of the Securities Act (each, and “Indemnified Party” and collectively, the “Indemnified Parties”), against any and all losses, claims, damages or liabilities, joint or several, actions or proceedings (whether commenced or threatened) and reasonable and documented expenses and to which such Indemnified Party may become subject under the Securities Act, common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings in respect thereof, whether or not such Indemnified Party is a party thereto) arise out of or are based upon: (a) any untrue statement or alleged untrue statement of any material fact contained in any registration statement under which such Securities were registered under the Securities Act, any preliminary, final or summary prospectus contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, any other such disclosure document (including reports and other documents filed under the Exchange Act and any document incorporated by reference therein) or related document or report, or any issuer free writing prospectus (including any “road show,” whether or not required to be filed with the SEC); (b) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in the case of a prospectus or issuer free writing prospectus, in the light of the circumstances when they were made; or (c) any violation or alleged violation by the Company or any of its Subsidiaries of any federal, state, foreign or common law rule or regulation applicable to the Company or any of its Subsidiaries and relating to action or inaction in connection with any such registration, disclosure document or related document or report, and the Company shall reimburse such Indemnified Party for any legal or other expenses reasonably incurred by it in connection with investigating or defending any such loss, claim, liability, action or proceeding; provided that the Company shall not be liable to any Indemnified Party in any such case to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises out of or is based upon any untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, in any such preliminary, final or summary prospectus, or any amendment or supplement thereto, or any issuer free writing prospectus, in reliance upon and in conformity with written information with respect to such Indemnified Party furnished to the Company by such Indemnified Party expressly for use in the preparation thereof. Such indemnity will remain in full force and effect regardless of any investigation made by or on behalf of such Holder or any Indemnified Party and will survive the Transfer of such Securities by such Holder or any termination of this Agreement.
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Section 3.2 Indemnification by the Holders and Underwriters and Sales Agents. The Company may require, as a condition to including any Registrable Securities in any registration statement filed in accordance with Section 2.1 or 2.2, that the Company shall have received an undertaking from the Holder of such Registrable Securities, severally and not jointly, to indemnify and hold harmless (in the same manner and to the same extent as set forth in Section 3.1) the Company, all other Holders and any of their respective Affiliates, their respective directors, officers, employees, partners, equityholders, managers, accountants, attorneys and agents (and the directors, officers, employees, partners, equityholders, managers, accountants, attorneys, agents and controlling Persons of any of the foregoing) and each other Person, if any, who controls any of the foregoing Persons within the meaning of the Securities Act or Exchange Act, with respect to any untrue statement in or omission from such registration statement, any preliminary, final or summary prospectus contained therein, any amendment or supplement, or any issuer free writing prospectus, to the extent, but only to the extent, that such untrue or alleged untrue statement is contained in, or such omission or alleged omission is required to be contained in, any information which (i) relates solely to such Holder’s individual ownership of the Registrable Securities, and (ii) if such untrue statement or omission was made in reliance upon and in conformity with written information with respect to such Holder furnished to the Company by such Holder expressly for use in the preparation of such registration statement, preliminary, final or summary prospectus or amendment or supplement, a document incorporated by reference into any of the foregoing, or any such issuer free writing prospectus. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Company or any of the Holders, or any of their respective Affiliates, directors, officers or controlling Persons and shall survive the Transfer of such Securities by such Holder. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds actually received by such Holder upon the sale of the Registrable Securities giving rise to such indemnification obligation.
Section 3.3 Notices of Claims, Etc. Promptly after receipt by an Indemnified Party hereunder of written notice of the commencement of any action, suit, proceeding or investigation or written threat thereof with respect to which a claim for indemnification may be made pursuant to this Article III (each, a “Proceeding”), such Indemnified Party will, if a claim in respect thereof is to be made against an indemnifying party, give written notice to the latter of the commencement of such Proceeding; provided that the failure of the Indemnified Party to give notice as provided herein will not relieve the indemnifying party of its obligations under Section 3.1 or 3.2, except to the extent that the indemnifying party is actually and materially prejudiced by such failure to give notice. In case any such Proceeding is brought against an Indemnified Party, the indemnifying party shall be entitled to participate in and to assume the defense thereof, jointly with any other indemnifying party similarly notified to the extent that it may wish, with counsel selected by the indemnifying party and reasonably satisfactory to such Indemnified Party, and after notice from the indemnifying party to such Indemnified Party of its election so to assume the defense thereof, at the indemnifying party’s expense, the indemnifying party shall not be liable to such Indemnified Party for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof other than reasonable costs of investigation. If, in such Indemnified Party’s reasonable judgment, having common counsel would result in a conflict of interest between the interests of such indemnified and indemnifying parties, then such Indemnified Party may employ separate counsel reasonably acceptable to the indemnifying party to represent or defend such Indemnified Party in such Proceeding, it being understood, however, that the indemnifying party shall not be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for all such Indemnified Parties (and not more than one separate firm of local counsel at any time for all such Indemnified Parties) in such action unless (i) the indemnifying party agrees to pay such fees and expenses; (ii) the indemnifying party or parties fail promptly to assume the defense of such Proceeding or fail to employ counsel reasonably satisfactory to the indemnified party or parties; or (iii) the named parties to any such Proceeding (including any impleading parties) include both such indemnified party or parties and the indemnifying parties or an Affiliate of an indemnifying party or indemnified party, and there may be one or more defenses available to such indemnified party or parties that are different from or additional to those available to the indemnifying party or parties, in which case, if such indemnified party or parties notifies the indemnifying party or parties in writing that it elects to employ separate counsel at the expenses of the indemnifying party or parties, the indemnifying party or parties shall not have the right to assume the defense thereof and such counsel shall be at the expense of the indemnifying party or parties. No indemnifying party shall consent to entry of any judgment or enter into any settlement which (x) provides for other than monetary damages without the consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) or (y) does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect of such claim or litigation.
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Section 3.4 Contribution. If the indemnification provided for hereunder from the indemnifying party is unavailable to an Indemnified Party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to herein for reasons other than those described in the proviso in the first sentence of Section 3.1, then the indemnifying party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and Indemnified Parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and Indemnified Parties shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or Indemnified Parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party under this Section 3.4 as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds actually received by such Holder upon the sale of the Registrable Securities giving rise to such contribution obligation. Any obligation of Holders to contribute pursuant to this Section 3.4 shall be several in the same proportion that the dollar amount of the proceeds actually received by each such Holder bears to the total dollar amount of the proceeds received by all Holders and not joint.
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The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 3.4 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
If indemnification is available under Section 3.1, the indemnifying parties shall indemnify each Indemnified Party to the full extent provided in Section 3.1 without regard to the relative fault of said indemnifying party or Indemnified Party or any other equitable consideration provided for in this Section 3.4.
Section 3.5 Other Indemnification. Indemnification similar to that specified in this Article III (with appropriate modifications) shall be given by the Company with respect to any required registration or other qualification of Securities under any Law or with any Governmental Authority other than as required by the Securities Act.
Section 3.6 Non-Exclusivity. The obligations of the parties under this Article III shall be in addition to any liability which any party may otherwise have to any other party.
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Article IV
OTHER
Section 4.1 Notices. Any notice, request, instruction or other document to be given hereunder by any party hereto to another party hereto shall be in writing and shall be deemed given (a) when delivered personally, (b) five (5) Business Days after being sent by certified or registered mail, postage prepaid, return receipt requested, (c) one (1) Business Day after being sent by Federal Express or other nationally recognized overnight courier, or (d) if transmitted by e-mail or other electronic communication, if confirmed within 24 hours thereafter by a signed original sent in the manner provided in clause (a), (b) or (c) to parties at the following addresses (or at such other address for a party as shall be specified by prior written notice from such party).
If to the Company, to:
Janus Living, Inc.
c/o Healthpeak Properties, Inc.
4600 South Syracuse Street, Suite 500
Denver, Colorado 80237
Attention: Tracy Porter
Email:
with a copy (which shall not constitute notice) to:
Latham & Watkins LLP
10250 Constellation Blvd., Suite 1100
Los Angeles, California 90067
Attention: Lewis Kneib
Email:
If to a Healthpeak Holder:
Healthpeak Properties, Inc.
4600 South Syracuse Street, Suite 500
Denver, Colorado 80237
Attention: Tracy Porter
Email:
with a copy (which shall not constitute notice) to:
Latham & Watkins LLP
10250 Constellation Blvd., Suite 1100
Los Angeles, California 90067
Attention: Lewis Kneib
Email:
Section 4.2 Assignment. This Agreement may not be assigned without the express prior written consent of the other parties hereto, and any attempted assignment, without such consents, shall be null and void; provided, however, that, without the prior written consent of any other party hereto, a Holder may assign its rights and obligations under this Agreement, in whole or in part, to any Transferee of Registrable Securities so long as such Transferee, if not already a party to this Agreement, executes and delivers to the Company a joinder to this Agreement, substantially in the form of Exhibit A, and upon such Transfer such transferee shall be deemed a “Holder” hereunder.
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Section 4.3 Amendments; Waiver. This Agreement may be amended, supplemented or otherwise modified only by a written instrument executed by the Company and the Holders holding a majority of the Registrable Securities held by all Holders; provided that no such amendment, supplement or other modification shall adversely affect the economic interests of any Holder hereunder disproportionately to other Holders without the written consent of Holders that hold a majority of the Registrable Securities held by all Holders so affected. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and executed by the party so waiving. Except as provided in the preceding sentence, no action taken pursuant to this Agreement, including without limitation, any investigation by or on behalf of any party, shall be deemed to constitute a waiver by the party taking such action of compliance with any covenants or agreements contained herein. The waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach.
Section 4.4 Third Parties. This Agreement does not create any rights, claims or benefits inuring to any person that is not a party hereto nor create or establish any third party beneficiary hereto.
Section 4.5 Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware.
Section 4.6 CONSENT TO JURISDICTION. EACH OF THE PARTIES HEREBY IRREVOCABLY AGREES THAT THE COURTS OF THE STATE OF DELAWARE SHALL HAVE EXCLUSIVE JURISDICTION IN CONNECTION WITH ANY ACTIONS OR PROCEEDINGS ARISING BETWEEN THE PARTIES UNDER THIS AGREEMENT. EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS AND SUBMITS TO THE JURISDICTION OF SAID COURTS FOR ANY SUCH ACTION OR PROCEEDING. EACH OF THE PARTIES HEREBY WAIVES THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF ANY SUCH ACTION OR PROCEEDING IN SAID COURTS.
Section 4.7 MUTUAL WAIVER OF JURY TRIAL. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
Section 4.8 Specific Performance. Each of the parties hereto acknowledges and agrees that in the event of any breach of this Agreement by any of them, the non-breaching party would be irreparably harmed and could not be made whole by monetary damages. Each party accordingly agrees to waive the defense in any action for specific performance that a remedy at law would be adequate and that the parties, in addition to any other remedy to which they may be entitled at law or in equity, shall be entitled to compel specific performance of this Agreement; provided, however, that the Company shall not be entitled to specific performance for any breach by the Holders of the provisions of Section 2.4(d)(i).
Section 4.9 Entire Agreement. This Agreement sets forth the entire understanding of the parties hereto with respect to the subject matter hereof. There are no agreements, representations, warranties, covenants or undertakings with respect to the subject matter hereof other than those expressly set forth herein. This Agreement supersedes all other prior agreements and understandings between the parties with respect to such subject matter.
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Section 4.10 Severability. If one or more of the provisions, paragraphs, words, clauses, phrases or sentences contained herein, or the application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision, paragraph, word, clause, phrase or sentence in every other respect and of the remaining provisions, paragraphs, words, clauses, phrases or sentences hereof shall not be in any way impaired, it being intended that all rights, powers and privileges of the parties hereto shall be enforceable to the fullest extent permitted by Law.
Section 4.11 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument.
Section 4.12 Effectiveness. This Agreement shall become effective, as to any Holder, as of the date signed by the Company and countersigned by such Holder.
Section 4.13 No Recourse. This Agreement may only be enforced against, and any claims or cause of action that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement, the transactions contemplated hereby or the subject matter hereof may only be made against the parties hereto and no past, present or future Affiliate, director, officer, employee, incorporator, member, manager, partner, stockholder, agent, attorney or representative of any party hereto or any past, present or future Affiliate, director, officer, employee, incorporator, member, manager, partner, stockholder, agent, attorney or representative of any of the foregoing (each, a “Non-Recourse Party”) shall have any liability for any obligations or liabilities of the parties to this Agreement or for any claim based on, in respect of, or by reason of, the transactions contemplated hereby. Without limiting the rights of any party against the other parties hereto, in no event shall any party or any of its Affiliates seek to enforce this Agreement against, make any claims for breach of this Agreement against, or seek to recover monetary damages from, any Non-Recourse Party.
Section 4.14 Independent Nature of the Rights and Obligations of Holders. The rights and obligations of each Holder hereunder are several and not joint with the obligations of any Holder, and no Holder shall be responsible in any way for the performance of the obligations of any other Holder hereunder. The decision of each Holder to enter into this Agreement has been made by such Holder independently of any Holder. Nothing contained herein, and no action taken by any Holder pursuant hereto, shall be deemed to constitute the Holders as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Holders are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated hereby and the Company acknowledges that the Holders are not acting in concert or as a group, and the Company will not assert any such claim, with respect to such obligations or the transactions contemplated hereby.
Section 4.15 Termination as to a Holder. Any Person who ceases to hold any Registrable Securities, or who has forfeited, in writing, its rights hereunder with respect to such Registrable Securities, shall cease to be a Holder and shall have no further rights or obligations under this Agreement (except with respect to any indemnification or contribution rights or obligations under Article III, which shall survive).
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[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above.
| COMPANY | |
|---|---|
| JANUS LIVING, INC. | |
| By: | /s/<br>Kelvin O. Moses |
| Name: | Kelvin O. Moses |
| Title: | Chief Financial Officer |
| HEALTHPEAK HOLDERS | |
| JANUS MEMBER, LLC | |
| By: Healthpeak OP, LLC, its managing member | |
| By: Healthpeak Properties, Inc., its managing<br> member | |
| By: | /s/ Adam G. Mabry |
| Name: | Adam G. Mabry |
| Title: | Chief Investment Officer |
| CCRC PROPCO VENTURES, LLC | |
| By: Healthpeak OP, LLC, its managing member | |
| By: Healthpeak Properties, Inc., its managing<br> member | |
| By: | /s/ Adam G. Mabry |
| Name: | Adam G. Mabry |
| Title: | Chief Investment Officer |
[Signature page to Registration Rights Agreement]
Exhibit A
FORM OF ASSIGNMENT AND JOINDER
[___], 20[___]
Reference is made to the Registration Rights Agreement, dated as of [______], 2026, by and among Janus Living, Inc. (the “Company”) and the Holders (as defined therein) from time to time party thereto (the “Registration Rights Agreement”). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Registration Rights Agreement.
Pursuant to Section 4.2 of the Registration Rights Agreement, [___] (the “Assignor”) in its capacity as a Holder hereby assigns [in part][or: in full] its rights and obligations under the Registration Rights Agreement to each of [___], [___] and [___] (each, an “Assignee” and collectively, the “Assignees”). [For the avoidance of doubt, the Assignor shall remain a party to the Registration Rights Agreement following the assignment in part of its rights and obligations thereunder to the undersigned Assignees.]
Each undersigned Assignee hereby agrees to and does become party to the Registration Rights Agreement as a Holder. This assignment and joinder shall serve as a counterpart signature page to the Registration Rights Agreement and by executing below each undersigned Assignee is deemed to have executed the Registration Rights Agreement with the same force and effect as if originally named a party thereto and each Assignee’s shares of Class A-1 Common Stock shall be included as Registrable Securities under the Registration Rights Agreement.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the undersigned have duly executed this assignment and joinder as of date first set forth above.
| ASSIGNOR: |
|---|
| [___] |
| By: |
| Name: |
| Title: |
| ASSIGNEES: |
| [___] |
| By: |
| Name: |
| Title: |
Exhibit 10.6
JANUS LIVING, INC.
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (this “Agreement”) is made this [•] day of [•], [2026] (the “Effective Date”), by and between Janus Living, Inc., a Maryland corporation (the “Company”), and [•] (“Indemnitee”).
R E C I T A L S
WHEREAS, at the request of the Company, the Indemnitee currently serves as a [officer / director] of the Company and renders valuable services to the Company; and
WHEREAS, the Company desires to attract and retain the services of highly qualified individuals, such as Indemnitee, to serve as directors and officers of the Company and its related entities; and
WHEREAS, both the Company and the Indemnitee recognize the increased legal risks and potential liabilities to which directors and officers of corporations are subject in connection with their positions and that liability insurance for directors and officers and statutory indemnification provisions may be inadequate to provide proper protection to individuals requested to serve as directors and officers of the Company; and
WHEREAS, in order to induce Indemnitee to continue to provide services to the Company as an officer and/or director, the Company desires to provide for the indemnification of, and the advancement of expenses to, Indemnitee as set forth in this Agreement.
NOW THEREFORE, in consideration of the foregoing premises, the covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Indemnitee do hereby agree as follows:
**1.**Certain Definitions. For purposes of this Agreement, the following terms should have the following meanings:
(a)“Board of Directors” means the Board of Directors of the Company.
(b)“Bylaws” mean the bylaws of the Company, as the same may be amended from time to time.
(c)“Change in Control” shall be deemed to have occurred if after the Effective Date (i) any “person” (as that term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), other than (i) one or more members of the Healthpeak Group and its affiliates, (ii) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or (iii) a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing fifteen percent (15%) or more of the total voting power represented by the Company’s then outstanding voting securities, or (ii) during any period of two consecutive years, individuals who at the beginning of the two year period constitute the Board of Directors of the Company and any new director whose election by the Board of Directors or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds (2/3) of the entire Board of Directors who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute two-thirds of the entire Board of Directors (it being acknowledged and agreed that the election and nomination of any member of the Board of Directors whose election or nomination to the Board of Directors was approved or recommended by Healthpeak Properties, Inc., or any other member of the Healthpeak Group, shall not violate this clause (ii)), or (iii) there occurs a proxy contest, or the Company is a party to a merger, consolidation, sale of assets, plan of liquidation or other reorganization not approved by at least two-thirds of the entire Board of Directors then in office, as a consequence of which members of the Board of Directors in office immediately prior to such transaction or event constitute less than two-thirds of the entire Board of Directors thereafter.
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(d)“Charter” means the corporate charter of the Corporation, as the same may be amended from time to time.
(e)“Disinterested Director” means a director of the Company who is not and was not a party to the Proceeding (as defined herein) in respect of which indemnification or advance of Expenses (as defined herein) is sought by Indemnitee.
(f)“Expenses” shall mean any and all expenses, including, without limitation, reasonable attorneys fees, disbursements and retainers, accounting and witness fees, travel and deposition costs, transcript costs, fees of experts, expenses of investigations and court costs, customarily incurred in connection with investigating, prosecuting, defending, being a witness in or participating in (including on appeal), or preparing to prosecute or defend, to be a witness or other participant, in a Proceeding.
(g)“Healthpeak Group” shall mean Healthpeak Properties, Inc., Healthpeak OP, LLC, DOC DR Holdco, LLC, DOC DR, LLC and any of their respective direct or indirect wholly-owned subsidiaries that is not a subsidiary of the Company.
(h)“Indemnifiable Event” shall mean any actual or asserted event or occurrence related to the fact that Indemnitee is or was a director, officer, employee, agent or fiduciary of the Company, or is or was serving at the request of the Company as a director, officer, partner, employee, trustee, manager, member, agent or fiduciary of another corporation, partnership, limited liability company, association, joint venture, trust, employee benefit plan or other entity or enterprise, or by reason of any action or inaction on the part of Indemnitee while serving in such capacity.
(i)“Independent Counsel” means a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither presently is, nor in the past five years has been, retained to represent: (i) the Company or Indemnitee in any matter material to either such party, or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement. If a Change in Control has not occurred, Independent Counsel shall be selected by the Board of Directors, with the approval of Indemnitee, which approval will not be unreasonably withheld. If a Change in Control has occurred, Independent Counsel shall be selected by Indemnitee, with the approval of the Board of Directors, which approval will not be unreasonably withheld, and by such approval, the Board of Directors shall be deemed to have joined in such selection.
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(j)“Proceeding” includes any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, administrative hearing or any other proceeding (including any appeals in any of the foregoing), whether civil, criminal, administrative or investigative, except (i) one completed on or before the Effective Date, unless otherwise specifically agreed in writing by the Company and Indemnitee, and (ii) one initiated by an Indemnitee pursuant to Section 6 of this Agreement to enforce Indemnitee’s rights under this Agreement.
**2.**Indemnification.
2.1****Indemnification with Respect to Proceedings Other Than Proceedings by or in the Right of the Company. In the event that Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to, or witness or other participant in, any Proceeding (other than a Proceeding by or in the right of the Company) by reason of (or arising in whole or in part from) an Indemnifiable Event, the Company shall indemnify the Indemnitee, to the fullest extent permitted by applicable law, from and against all Expenses, judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by Indemnitee, or on behalf of Indemnitee, in connection with such Proceeding, provided that, in the case of amounts paid in settlement, any settlement of such Proceeding is approved in advance by the Company in writing, which approval shall not be unreasonably withheld, delayed or applied in an inconsistent manner.
2.2****Indemnification with Respect to Proceedings by or in the Right of the Company. In the event that Indemnitee was, is or becomes a party to, or witness or other participant in, any Proceeding brought by or in the right of the Company to procure a judgment in favor of the Company by reason of (or arising in whole or in part from) an Indemnifiable Event, the Company shall indemnify Indemnitee, to the fullest extent permitted by applicable law, from and against all Expenses and amounts paid in settlement actually and reasonably incurred by Indemnitee, or on behalf of Indemnitee, in connection with such Proceeding.
2.3****Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some portion of the Expenses, judgments, penalties, fines and amounts paid in settlement of a Proceeding which Indemnitee was, is or becomes a party to, or witness or other participant in, or is threatened to be made a party to, or witness or other participant in, by reason of an Indemnifiable Event, but not, however, for all of the total amount of such Expenses, judgments, fines, penalties and amounts paid in settlement, the Company will nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is entitled.
2.4****Indemnification for Expenses of a Party Who is Wholly or Partly Successful. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of an Indemnifiable Event, made a party to and is successful, on the merits or otherwise, in the defense of, any Proceeding, Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by Indemnitee, or on behalf of Indemnitee, in connection therewith. Without limiting any other rights of Indemnitee in this Agreement, if Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by him or her or on his or her behalf in connection with each successfully resolved claim, issue or matter. For purposes of this Section and without limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.
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**3.**Advance of Expenses. The Company shall advance all Expenses reasonably incurred by or on behalf of Indemnitee in connection with any Proceeding to which Indemnitee is, or is threatened to be made, a party or with respect to which Indemnitee is, or is threatened to be made, a witness or other participant, by reason of (or arising in whole or in part from) an Indemnifiable Event, prior to final disposition of such Proceeding, to the fullest extent permitted by applicable law and without requiring a preliminary determination as to Indemnitee’s ultimate entitlement to indemnification, within ten days after the receipt by the Company of a statement or statements from Indemnitee requesting such advance or advances from time to time. Such statement or statements shall reasonably evidence the Expenses incurred by Indemnitee and, if required by applicable law, shall include or be preceded or accompanied by (a) a written affirmation by the Indemnitee of the Indemnitee’s good faith belief that the standard of conduct necessary for indemnification by the Company as authorized by law and by this Agreement has been met and (b) a written undertaking by or on behalf of Indemnitee to repay any Expenses advanced if it shall ultimately be determined that such standard of conduct has not been met. Any advances to, and undertakings to repay by, Indemnitee pursuant to this Section 3 shall be unsecured and shall not bear interest.
**4.**Procedure for Determination of Entitlement to Indemnification.
4.1****Request for Indemnification. To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. Promptly upon receipt of such a request for indemnification, the Company shall cause its Board of Directors to be so advised in writing that Indemnitee has requested indemnification.
4.2****Determination of Right to Indemnification. Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 4.1, a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall promptly be made in the specific case: (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board of Directors, a copy of which shall be delivered to Indemnitee; or (ii) if a Change in Control shall not have occurred, (A) by the Board of Directors by a majority vote of a quorum consisting of Disinterested Directors, or, if a quorum of the Board of Directors consisting of Disinterested Directors is not obtainable or, even if obtainable, such quorum of Disinterested Directors so directs, or if the Indemnitee so requests, by Independent Counsel in a written opinion to the Board of Directors, a copy of which shall be delivered to Indemnitee, or (B) if so directed by two-thirds of the entire Board of Directors, by the stockholders of the Company. If it is determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten days after such determination. Indemnitee shall cooperate with the person making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or expenses (including reasonable attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person making such determination, in response to a request by such person, shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification).
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**5.**Presumptions and Effect of Certain Proceedings.
**(a)**In making a determination with respect to entitlement to indemnification hereunder, (i) the person making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 4.1, and (ii) the Company shall have the burden of proof to overcome that presumption in connection with the making of any determination contrary to that presumption.
**(b)**The termination of any proceeding by judgment, order, settlement, conviction, a plea of nolo contendere or its equivalent, or an entry of an order of probation prior to judgment, does not create a presumption that the Indemnitee did not meet the requisite standard of conduct required under applicable law for indemnification.
**6.**Remedies of Indemnitee.
**(a)**In the event that (i) a determination is made pursuant to Section 4.2 that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 3, (iii) no determination of entitlement to indemnification shall have been made pursuant to Section 4.2 within sixty days after receipt by the Company of the request for indemnification, (iv) payment of indemnification is not made pursuant to Section 2.4 within ten days after receipt by the Company of a written request therefor, or (v) payment of indemnification is not made within ten days after a determination has been made that Indemnitee is entitled to indemnification, Indemnitee shall be entitled to an adjudication in an appropriate court of the State of Maryland, or in any other court of competent jurisdiction, of his or her entitlement to such indemnification or advancement of Expenses. Neither the failure of the Board of Directors or a committee thereof, or the stockholders of the Company, or Independent Counsel to have made a determination pursuant to Section 4.2 that Indemnitee is entitled to indemnification, nor an actual determination by the Board of Directors or a committee thereof, or the stockholders, of the Company, or Independent Counsel, that Indemnitee is not entitled to indemnification shall be a defense to any judicial adjudication sought by Indemnitee or create a presumption that the Indemnitee is not entitled to indemnification or advancement of Expenses.
**(b)**In any judicial proceeding commenced pursuant to this Section 6, the Company shall have the burden of proving that Indemnitee is not entitled to indemnification or advancement of Expenses, as the case may be.
**(c)**If a determination shall have been made pursuant to Section 4.2 that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any judicial proceeding commenced pursuant to this Section 6, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law.
**(d)**In the event that Indemnitee, pursuant to this Section 6, seeks a judicial adjudication to establish or enforce Indemnitee’s rights under, or to recover damages for breach of, this Agreement, Indemnitee shall be entitled to recover from the Company, and shall be indemnified by the Company against, any and all expenses (of the types described in the definition of Expenses in Section 1) actually and reasonably incurred by Indemnitee in connection with such judicial adjudication, regardless of the outcome of such judicial adjudication unless the court in such judicial adjudication determines that the material assertions made by Indemnitee in such judicial adjudication were not made in good faith or were frivolous.
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**7.**Indemnification Hereunder Not Exclusive.
**(a)**The indemnification and advance of expenses provided by this Agreement shall not be deemed exclusive of, and shall be in addition to, any indemnification or other rights to which the Indemnitee may be entitled under the Charter, the Bylaws, any vote of stockholders or Disinterested Directors, applicable law, or otherwise, both as to action in his or her official capacity and as to action in another capacity on behalf of the Company while holding office; provided, however, that to the extent that the Indemnitee otherwise would have any greater right to indemnification under any provision of the Charter or Bylaws as in effect on the date hereof, the Indemnitee shall be deemed to have such greater right hereunder; and provided, further, that to the extent that any change is made to the Charter and/or Bylaws which permits any greater right to indemnification than that provided under this Agreement, the Indemnitee shall be entitled to have such greater right. No modification or amendment of this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under this Agreement in respect of any Indemnifiable Event prior to such modification or amendment.
(b)[The Company hereby acknowledges that Indemnitee may have certain rights to indemnification, advancement of expenses and/or insurance provided by Healthpeak Properties, Inc. and certain of its affiliates (collectively, the “Healthpeak Indemnitors”). The Company hereby agrees (i) that, as between the Company and the Healthpeak Indemnitors, the Company is the indemnitor of first resort (i.e., its obligations to Indemnitee are primary and any obligation of the Healthpeak Indemnitors to advance Expenses or to provide indemnification for the same Expenses or liabilities incurred by Indemnitee are secondary), (ii) that the Company shall be required to advance the full amount of expenses incurred by Indemnitee and shall be liable for the full amount of all Expenses, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted and as required by the terms of this Agreement and the Charter or Bylaws of the Company (or any other agreement between the Company and Indemnitee), without regard to any rights Indemnitee may have against the Healthpeak Indemnitors, and, (iii) that the Company irrevocably waives, relinquishes and releases the Healthpeak Indemnitors from any and all claims against the Healthpeak Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. The Company further agrees that no advancement or payment by the Healthpeak Indemnitors on behalf of Indemnitee with respect to any claim for which Indemnitee has sought indemnification from the Company shall affect the foregoing and the Healthpeak Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of Indemnitee against the Company. The Company and Indemnitee agree that the Healthpeak Indemnitors are express third party beneficiaries of the terms of this Section 7.]^1^
**8.**Liability Insurance. To the extent that the Company maintains liability insurance for directors, officers, employees, or agents of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise which such person serves at the request of the Company, Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any such director, officer, employee or agent under such policy or policies.
^1^ NTD: To be inserted if the Indemnitee is employed by Healthpeak Properties, Inc. or any of its affiliates.
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**9.**Subrogation. In the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the related rights of recovery of Indemnitee against other person or entities, and Indemnitee shall execute all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights.
**10.**No Duplication of Payment. [Subject to Section 7(b),^2^ the] [The] Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if and to the extent that Indemnitee has otherwise actually received payment of such amount under any insurance policy, contract, agreement, any provision of the Charter or Bylaws, or otherwise.
**11.**Exclusions. Notwithstanding any other provision of this Agreement to the contrary, the Company shall not be liable for, and the Indemnitee shall not be entitled to, indemnification or advance of Expenses under this Agreement with respect to: (i) any settlement or judgment for insider trading or for disgorgement of profits pursuant to Section 16(b) of the Securities Exchange Act of 1934; or (ii) any Proceeding initiated or brought by Indemnitee, and not by way of defense (other than an action or proceeding under Section 6), unless the bringing of such Proceeding has been approved by the Board of Directors.
**12.**Duration of Agreement. This Agreement shall continue until and terminate ten years after the date that Indemnitee shall have ceased to serve as a director, officer, employee, or agent of the Company or of any other corporation, partnership, limited liability company, association, joint venture, trust, employee benefit plan or other enterprise which Indemnitee served at the request of the Company; provided, that the rights of Indemnitee hereunder shall continue until the final termination of any Proceeding then pending in respect of which Indemnitee is granted rights of indemnification or advancement of Expenses hereunder and of any proceeding commenced by Indemnitee pursuant to Section 6 relating thereto.
**13.**Section 409A. If the Indemnitee’s right to payment of indemnification pursuant to Section 2 or right to the advancement of Expenses under Section 3 would not be exempt from Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) pursuant to Final Treasury Regulation 1.0409A-1(b)(10), then (i) the payment of indemnification and Expenses provided or advanced to or for Indemnitee pursuant to this Agreement in one taxable year shall not affect the amount of indemnification and Expenses provided or advanced to or for Indemnitee in any other taxable year, (ii) any reimbursement to Indemnitee of Expenses under this Agreement shall be paid to Indemnitee on or before the last day of Indemnitee’s taxable year following the taxable year in which the Expense was incurred and (iii) the right to advancement, reimbursement or payment of indemnification and Expenses under this Agreement may not be liquidated or exchanged for any other benefit. In addition, to the extent that this Agreement is subject to Section 409A of the Code, the parties agree to cooperate and work together in good faith to timely amend this Agreement to comply with Section 409A of the Code.
^2^ NTD: To be inserted if the Indemnitee is employed by Healthpeak Properties, Inc. or any of its affiliates.
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**14.**Successors and Assigns. This Agreement shall be binding upon the Company and its successors and assigns and shall inure to the benefit of Indemnitee and his or her heirs, executors and administrators.
**15.**Severability. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (i) the validity, legality and enforceability of the remaining provisions of this Agreement (including, without limitation, each portion of any section of this Agreement containing any such provision held to be invalid, illegal or unenforceable that is not itself invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby; and (ii) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any section of this Agreement containing any such provision held to be invalid, illegal or unenforceable that is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested thereby.
**16.**Counterparts. This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute one and the same Agreement. Only one such counterpart signed by the party against whom enforceability is sought needs to be produced to evidence the existence of this Agreement.
**17.**Headings. The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof.
**18.**Modification and Waiver. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
**19.**Notice by Indemnitee; Company Participation.
**(a)**Indemnitee shall promptly notify the Company in writing upon being served with any summons, citation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to indemnification or advance of Expenses covered hereunder.
**20.**With respect to any Proceeding which may be subject to indemnification or advance of Expenses under this Agreement, unless Indemnitee waives its indemnification rights under this Agreement with respect to such Proceeding, the Company will be entitled to participate in the Proceeding at its own expense and, except as otherwise provided below, if it so elects, the Company may assume the defense of the Proceeding, with counsel satisfactory to the Indemnitee. After notice from the Company to the Indemnitee of its election to assume the defense of a Proceeding, during the Company’s good faith active defense, the Company will not be liable to the Indemnitee under this Agreement for any Expenses subsequently incurred by the Indemnitee in connection with the defense of the Proceeding, other than reasonable costs of investigation or as otherwise provided below. The Company shall not settle any such Proceeding in any manner which would impose any penalty or limitation on the Indemnitee without the Indemnitee’s written consent. The Indemnitee shall have the right to employ separate counsel in any such Proceeding, but the fees the expenses of such counsel incurred after notice from the Company of its assumption of the defense of the Proceeding shall be at the expense of the Indemnitee, unless (i) the employment of counsel by Indemnitee has been authorized by the Company, (ii) the Indemnitee shall have reasonably concluded that there may be conflict of interest between the Company and the Indemnitee in the conduct of the defense of the Proceeding, or (iii) the Company shall not in fact have employed counsel to assume the defense of a Proceeding, in each of which cases the fees and expenses of Indemnitee’s counsel shall be Expenses for which Indemnitee may receive indemnification or advances under this Agreement. The Company shall not be entitled to assume the defense of any Proceeding bought by or on behalf of the Company or as to which the Indemnitee has reasonably concluded there may be a conflict of interest between the Company and the Indemnitee.
8
**21.**Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given when hand-delivered or dispatched by electronic facsimile transmission (with receipt thereof orally confirmed) or three calendar days after having been mailed by United States registered or certified mail, return receipt requested, postage prepaid or one business day after having been sent for next day delivery by a nationally recognized courier service, addressed as follows:
| (a) | If to Indemnitee, to the address set forth on the signature page hereto: |
|---|---|
| (b) | If to the Company to: |
| --- | --- |
Janus Living, Inc.
c/o Healthpeak Properties, Inc.
4600 South Syracuse Street, Suite 500
Denver, Colorado 80237
Attn: General Counsel
or to such other address as may have been furnished to Indemnitee by the Company or to the Company by Indemnitee, as the case may be.
**22.**Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Maryland.
9
**23.**Entire Agreement. This Agreement constitutes the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes all prior written or oral negotiations, understandings or agreements between the parties with respect to the subject matter hereof; provided however that this Agreement is not intended to, and does not, supersede any indemnification or other rights to which the Indemnitee may be entitled under the Charter, the Bylaws or applicable law, or pursuant to any employment agreement between Indemnitee and the Company.
* * *
[The remainder of this pageis left blank intentionally.]
10
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written.
| JANUS LIVING, INC. |
|---|
| Name: |
| Title: |
| INDEMNITEE: |
| Name: |
| Address: |
[Signature Page to Indemnification Agreement]
Exhibit 10.7
EXECUTION VERSION
Deal: 47103RAA5
Revolver: 47103RAB3
Term: 47103RAC1
$600,000,000CREDIT AGREEMENT
Dated as of March 23, 2026
among
JANUS LIVING OP, LLCand
CERTAIN SUBSIDIARIES,
as the Borrowers,
JANUS LIVING, INC.,
as Parent Guarantor,
the Guarantor Parties parties hereto,
THE LENDERS PARTY HERETO FROM TIME TO TIME,
and
**BANK OF AMERICA, N.A.,**as Administrative Agent and L/C Issuer,
JPMORGAN CHASE BANK, N.A. and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Co-Syndication Agents,
PNC BANK, NATIONAL ASSOCIATION,
MIZUHO BANK, LTD.,
CRÉDIT AGRICOLE CORPORATE AND INVESTMENTBANK,
KEYBANK NATIONAL ASSOCIATION,
TRUIST BANK,
BNP PARIBAS,
TD BANK, N.A.,
and
**THE BANK OF NOVA SCOTIA,**as Senior Managing Agents
BARCLAYS BANK, PLC,
GOLDMAN SACHS BANK USA,
MORGAN STANLEY SENIOR FUNDING, INC.,
ROYAL BANK OF CANADAas Co-Documentation Agents,
**BOFA SECURITIES, INC.,**as the Sole Bookrunner
and
BOFA SECURITIES, INC., JPMORGAN CHASEBANK, N.A.
and WELLS FARGO SECURITIES, LLC,
as Joint Lead Arrangers
TABLE OF CONTENTS
| Section | Page | |
|---|---|---|
| Article I Definitions and Accounting Terms | 1 | |
| --- | --- | |
| 1.01 | Defined<br> Terms | 1 |
| --- | --- | --- |
| 1.02 | Other<br> Interpretive Provisions | 39 |
| --- | --- | --- |
| 1.03 | Accounting<br> Terms | 40 |
| --- | --- | --- |
| 1.04 | Rounding | 41 |
| --- | --- | --- |
| 1.05 | Exchange<br> Rates; Currency Equivalents | 41 |
| --- | --- | --- |
| 1.06 | [RESERVED] | 41 |
| --- | --- | --- |
| 1.07 | [RESERVED] | 41 |
| --- | --- | --- |
| 1.08 | Interest<br> Rates; Licensing | 41 |
| --- | --- | --- |
| 1.09 | Times<br> of Day | 42 |
| --- | --- | --- |
| 1.10 | Letter<br> of Credit Amounts | 42 |
| --- | --- | --- |
| Article II The Commitments and Credit Extensions | 42 | |
| --- | --- | |
| 2.01 | Committed Loans | 42 |
| --- | --- | --- |
| 2.02 | Borrowings, Conversions and Continuations of Committed Loans | 43 |
| --- | --- | --- |
| 2.03 | Letters of Credit | 45 |
| --- | --- | --- |
| 2.04 | [Reserved] | 55 |
| --- | --- | --- |
| 2.05 | [Reserved] | 55 |
| --- | --- | --- |
| 2.06 | Prepayments | 55 |
| --- | --- | --- |
| 2.07 | Termination or Reduction of Commitments | 56 |
| --- | --- | --- |
| 2.08 | Repayment | 57 |
| --- | --- | --- |
| 2.09 | Interest | 57 |
| --- | --- | --- |
| 2.10 | Fees | 58 |
| --- | --- | --- |
| 2.11 | Computation of Interest and Fees | 59 |
| --- | --- | --- |
| 2.12 | Evidence of Debt | 59 |
| --- | --- | --- |
| 2.13 | Payments Generally; Administrative Agent’s Clawback | 60 |
| --- | --- | --- |
| 2.14 | Sharing of Payments by Lenders | 62 |
| --- | --- | --- |
| 2.15 | Extension of Revolving Maturity Date | 62 |
| --- | --- | --- |
| 2.16 | Increase in Revolving Commitments; Incremental Term Loans | 63 |
| --- | --- | --- |
| 2.17 | Cash Collateral | 66 |
| --- | --- | --- |
| 2.18 | Defaulting Lenders | 67 |
| --- | --- | --- |
| 2.19 | Designated Borrowers | 69 |
| --- | --- | --- |
| Article III Taxes, Yield Protection and Illegality | 70 | |
| --- | --- | |
| 3.01 | Taxes | 70 |
| --- | --- | --- |
| 3.02 | Illegality | 74 |
| --- | --- | --- |
| 3.03 | Inability to Determine Rates | 74 |
| --- | --- | --- |
| 3.04 | Increased Costs | 78 |
| --- | --- | --- |
| 3.05 | Compensation for Losses | 79 |
| --- | --- | --- |
| 3.06 | Mitigation Obligations; Replacement of Lenders | 80 |
| --- | --- | --- |
| 3.07 | Survival | 80 |
| --- | --- | --- |
| Article IV Conditions Precedent to Credit Extensions | 81 | |
| --- | --- | |
| 4.01 | Conditions of Initial Credit Extension | 81 |
| --- | --- | --- |
| 4.02 | Conditions to All Credit Extensions | 83 |
| --- | --- | --- |
i
| Article V Representations and Warranties | 84 | |
|---|---|---|
| 5.01 | Existence, Qualification and Power | 84 |
| --- | --- | --- |
| 5.02 | Authorization; No Contravention | 84 |
| --- | --- | --- |
| 5.03 | Governmental Authorization; Other Consents | 84 |
| --- | --- | --- |
| 5.04 | Binding Effect | 85 |
| --- | --- | --- |
| 5.05 | Financial Statements; No Material Adverse Effect | 85 |
| --- | --- | --- |
| 5.06 | Litigation | 85 |
| --- | --- | --- |
| 5.07 | No Default | 86 |
| --- | --- | --- |
| 5.08 | Ownership of Property and Valid Leasehold Interests; Liens | 86 |
| --- | --- | --- |
| 5.09 | Environmental Compliance | 86 |
| --- | --- | --- |
| 5.10 | Insurance | 86 |
| --- | --- | --- |
| 5.11 | Taxes | 86 |
| --- | --- | --- |
| 5.12 | ERISA, etc. Compliance | 86 |
| --- | --- | --- |
| 5.13 | Margin Regulations; Investment Company Act; REIT Status | 87 |
| --- | --- | --- |
| 5.14 | Disclosure | 88 |
| --- | --- | --- |
| 5.15 | Compliance with Laws | 88 |
| --- | --- | --- |
| 5.16 | Intellectual Property; Licenses, Etc. | 88 |
| --- | --- | --- |
| 5.17 | Use of Proceeds | 89 |
| --- | --- | --- |
| 5.18 | Taxpayer Identification Number | 89 |
| --- | --- | --- |
| 5.19 | Sanctions | 89 |
| --- | --- | --- |
| 5.20 | Affected Financial Institution | 89 |
| --- | --- | --- |
| 5.21 | Anti-Corruption Laws | 89 |
| --- | --- | --- |
| 5.22 | Solvency | 89 |
| --- | --- | --- |
| 5.23 | Subsidiaries | 90 |
| --- | --- | --- |
| 5.24 | Designated Borrowers | 90 |
| --- | --- | --- |
| Article VI Affirmative Covenants | 91 | |
| --- | --- | |
| 6.01 | Financial Statements | 91 |
| --- | --- | --- |
| 6.02 | Certificates; Other Information | 92 |
| --- | --- | --- |
| 6.03 | Notices | 93 |
| --- | --- | --- |
| 6.04 | Payment of Taxes | 94 |
| --- | --- | --- |
| 6.05 | Preservation of Existence, Etc. | 94 |
| --- | --- | --- |
| 6.06 | Maintenance of Properties | 94 |
| --- | --- | --- |
| 6.07 | Maintenance of Insurance | 94 |
| --- | --- | --- |
| 6.08 | Compliance with Laws | 94 |
| --- | --- | --- |
| 6.09 | Books and Records | 95 |
| --- | --- | --- |
| 6.10 | Inspection Rights | 95 |
| --- | --- | --- |
| 6.11 | Use of Proceeds | 95 |
| --- | --- | --- |
| 6.12 | REIT Status | 95 |
| --- | --- | --- |
| 6.13 | Employee Benefits | 95 |
| --- | --- | --- |
| 6.14 | Anti-Corruption Laws | 96 |
| --- | --- | --- |
| 6.15 | Guarantors | 96 |
| --- | --- | --- |
| Article VII Negative Covenants | 97 | |
| --- | --- | |
| 7.01 | Liens | 97 |
| --- | --- | --- |
| 7.02 | [Reserved] | 98 |
| --- | --- | --- |
| 7.03 | Indebtedness | 98 |
| --- | --- | --- |
| 7.04 | Fundamental Changes | 99 |
| --- | --- | --- |
| 7.05 | Dispositions | 99 |
| --- | --- | --- |
| 7.06 | Restricted Payments | 100 |
| --- | --- | --- |
| 7.07 | Change in Nature of Business | 100 |
| --- | --- | --- |
| 7.08 | Transactions with Affiliates | 101 |
| --- | --- | --- |
ii
| 7.09 | Burdensome Agreements | 101 |
|---|---|---|
| 7.10 | Financial Covenants | 102 |
| --- | --- | --- |
| 7.11 | Sanctions | 102 |
| --- | --- | --- |
| 7.12 | Anti-Corruption Laws | 102 |
| --- | --- | --- |
| Article VIII Events of Default and Remedies | 103 | |
| --- | --- | |
| 8.01 | Events of Default | 103 |
| --- | --- | --- |
| 8.02 | Remedies Upon Event of Default | 105 |
| --- | --- | --- |
| 8.03 | Application of Funds | 106 |
| --- | --- | --- |
| Article IX Administrative Agent | 107 | |
| --- | --- | |
| 9.01 | Appointment and Authority | 107 |
| --- | --- | --- |
| 9.02 | Rights as a Lender | 107 |
| --- | --- | --- |
| 9.03 | Exculpatory Provisions | 107 |
| --- | --- | --- |
| 9.04 | Reliance by Administrative Agent | 108 |
| --- | --- | --- |
| 9.05 | Delegation of Duties | 109 |
| --- | --- | --- |
| 9.06 | Resignation of Administrative Agent | 109 |
| --- | --- | --- |
| 9.07 | Non-Reliance on Administrative Agent, the Arrangers and<br>Other Lenders | 110 |
| --- | --- | --- |
| 9.08 | No Other Duties, Etc. | 110 |
| --- | --- | --- |
| 9.09 | Administrative Agent May File Proofs of Claim | 111 |
| --- | --- | --- |
| 9.10 | Recovery of Erroneous Payments | 111 |
| --- | --- | --- |
| 9.11 | Guaranty Matters | 112 |
| --- | --- | --- |
| Article X Miscellaneous | 112 | |
| --- | --- | |
| 10.01 | Amendments, Etc. | 112 |
| --- | --- | --- |
| 10.02 | Notices; Effectiveness; Electronic Communication | 115 |
| --- | --- | --- |
| 10.03 | No Waiver; Cumulative Remedies | 117 |
| --- | --- | --- |
| 10.04 | Expenses; Indemnity; Damage Waiver | 118 |
| --- | --- | --- |
| 10.05 | Payments Set Aside | 120 |
| --- | --- | --- |
| 10.06 | Successors and Assigns | 120 |
| --- | --- | --- |
| 10.07 | Treatment of Certain Information; Confidentiality | 125 |
| --- | --- | --- |
| 10.08 | Right of Setoff | 126 |
| --- | --- | --- |
| 10.09 | Interest Rate Limitation | 126 |
| --- | --- | --- |
| 10.10 | Integration; Effectiveness | 126 |
| --- | --- | --- |
| 10.11 | Survival of Representations and Warranties | 127 |
| --- | --- | --- |
| 10.12 | Severability | 127 |
| --- | --- | --- |
| 10.13 | Replacement of Lenders | 127 |
| --- | --- | --- |
| 10.14 | Governing Law; Jurisdiction; Etc. | 128 |
| --- | --- | --- |
| 10.15 | Waiver of Jury Trial | 129 |
| --- | --- | --- |
| 10.16 | No Advisory or Fiduciary Responsibility | 129 |
| --- | --- | --- |
| 10.17 | USA Patriot Act, Canadian AML Acts and Beneficial Ownership<br>Regulation Notice | 130 |
| --- | --- | --- |
| 10.18 | Delivery of Signature Page | 130 |
| --- | --- | --- |
| 10.19 | Judgment Currency | 130 |
| --- | --- | --- |
| 10.20 | Acknowledgement and Consent to Bail-In of Affected Financial<br>Institutions | 131 |
| --- | --- | --- |
| 10.21 | Electronic Execution; Electronic Records; Counterparts | 131 |
| --- | --- | --- |
| 10.22 | [RESERVED] | 132 |
| --- | --- | --- |
| 10.23 | Lender Representations | 132 |
| --- | --- | --- |
| 10.24 | Acknowledgement Regarding Any Supported QFCs | 133 |
| --- | --- | --- |
| 10.25 | Appointment of Company | 134 |
| --- | --- | --- |
| 10.26 | Keepwell | 134 |
| --- | --- | --- |
iii
| Article XI Continuing Guaranty | 134 | |
|---|---|---|
| 11.01 | Guaranty | 134 |
| --- | --- | --- |
| 11.02 | Rights of Lenders | 135 |
| --- | --- | --- |
| 11.03 | Certain Waivers | 135 |
| --- | --- | --- |
| 11.04 | Obligations Independent | 135 |
| --- | --- | --- |
| 11.05 | Subrogation | 135 |
| --- | --- | --- |
| 11.06 | Termination; Reinstatement | 136 |
| --- | --- | --- |
| 11.07 | Stay of Acceleration | 136 |
| --- | --- | --- |
| 11.08 | Condition of Borrowers | 136 |
| --- | --- | --- |
| 11.09 | Release of Parent Entity Guarantors | 137 |
| --- | --- | --- |
| Article XII Subsidiary Guarantor Continuing Guaranty | 137 | |
| --- | --- | |
| 12.01 | Guaranty | 137 |
| --- | --- | --- |
| 12.02 | Rights of Lenders | 138 |
| --- | --- | --- |
| 12.03 | Certain Waivers | 138 |
| --- | --- | --- |
| 12.04 | Obligations Independent | 138 |
| --- | --- | --- |
| 12.05 | Subrogation | 138 |
| --- | --- | --- |
| 12.06 | Termination; Reinstatement | 139 |
| --- | --- | --- |
| 12.07 | Stay of Acceleration | 139 |
| --- | --- | --- |
| 12.08 | Condition of Borrowers | 139 |
| --- | --- | --- |
| 12.09 | Subordination | 139 |
| --- | --- | --- |
| 12.10 | Release of Subsidiary Guarantors | 140 |
| --- | --- | --- |
| Article XIII COMPANY’s Continuing Guaranty | 140 | |
| --- | --- | |
| 13.01 | Guaranty | 140 |
| --- | --- | --- |
| 13.02 | Rights of Lenders | 141 |
| --- | --- | --- |
| 13.03 | Certain Waivers | 141 |
| --- | --- | --- |
| 13.04 | Obligations Independent | 141 |
| --- | --- | --- |
| 13.05 | Subrogation | 142 |
| --- | --- | --- |
| 13.06 | Termination; Reinstatement | 142 |
| --- | --- | --- |
| 13.07 | Stay of Acceleration | 142 |
| --- | --- | --- |
| 13.08 | Condition of Borrowers | 142 |
| --- | --- | --- |
| 13.09 | Release of Company | 143 |
| --- | --- | --- |
iv
SCHEDULES
| 2.01 | Commitments and Applicable Percentages |
|---|---|
| 5.23 | Subsidiaries |
| 7.09 | Burdensome Agreements |
| 10.02 | Administrative Agent’s Office; Certain Addresses for<br> Notices |
EXHIBITS
| Form of | |
|---|---|
| A | Committed Loan Notice |
| --- | --- |
| B-1 | Revolving Note |
| B-2 | Term Note |
| C | Compliance Certificate |
| D | Assignment and Assumption |
| E | Designated Borrower Request and Assumption Agreement |
| F | Designated Borrower Notice |
v
CREDIT AGREEMENT
This CREDIT AGREEMENT, dated as of March 23, 2026 (as amended, restated, supplemented or otherwise modified from time to time, this “Agreement”), among JANUS LIVING OP, LLC, a Maryland limited liability company (the “Company”), certain Subsidiaries of the Company party hereto pursuant to Section 2.19 (each a “Designated Borrower”; and together with the Company, the “Borrowers” and each a “Borrower”), JANUS LIVING, INC., a Maryland corporation, the lending institutions party hereto from time to time (each, a “Lender” and collectively, the “Lenders”), BANK OF AMERICA, N.A., as Administrative Agent and L/C Issuer, JPMORGAN CHASE BANK, N.A. and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Co-Syndication Agents, BARCLAYS BANK PLC, GOLDMAN SACHS BANK USA, MORGAN STANLEY SENIOR FUNDING, INC. and ROYAL BANK OF CANADA, as Co-Documentation Agents, and PNC BANK, NATIONAL ASSOCIATION, MIZUHO BANK, LTD., CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, KEYBANK NATIONAL ASSOCIATION, TRUIST BANK, BNP PARIBAS, TD BANK, N.A. and THE BANK OF NOVA SCOTIA, as Senior Managing Agents.
WHEREAS, the Company has requested that the Lenders provide a revolving credit facility in the amount of $500,000,000 and a delayed-draw term loan facility in the amount of $100,000,000 pursuant to the terms of this Agreement, and the Lenders are willing to do so on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
Article I
Definitionsand Accounting Terms
1.01 DefinedTerms.
As used in this Agreement, the following terms shall have the meanings set forth below:
“Administrative Agent” means Bank of America (or any of its designated branch offices or affiliates) in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.
“Administrative Agent’s Office” means, with respect to any currency, the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02 with respect to such currency, or such other address or account with respect to such currency as the Administrative Agent may from time to time notify to the Company and the Lenders.
“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.
“Affected Financial Institution” means (a) any EEA Financial Institution, or (b) any UK Financial Institution.
“Affected Loan” has the meaning specified in Section 3.02.
“Affiliate” means, with respect to any 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 specified in Section 10.02(c).
“Agents” means the Administrative Agent, the Arrangers, the Co-Syndication Agents, the Co-Documentation Agents, the Senior Managing Agents and the L/C Issuer.
“Aggregate Commitments” means, at any date of determination, the sum of the Aggregate Revolving Commitments and the Aggregate Term Commitments on such date.
“Aggregate Revolving Commitments” means the Revolving Commitments of all Revolving Lenders, which as of the Closing Date are $500,000,000, which may be increased pursuant to Section 2.16 or decreased pursuant to Section 2.07.
“Aggregate Term Commitments” means the Term Commitments of all Term Lenders, which as of the Closing Date are $100,000,000, which may be decreased pursuant to Section 2.07.
“Agreed Currency” means Dollars or Canadian Dollars, as applicable.
“Agreement” has the meaning specified in the introductory paragraph hereto.
“Agreement Currency” has the meaning specified in Section 10.19.
“Alternative Currency Equivalent” means, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in Canadian Dollars as determined by the Administrative Agent or the L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Canadian Dollars with Dollars.
“Alternative Currency Sublimit” means, at any time, an amount equal to the lesser of (a) the Aggregate Revolving Commitments at such time and (b) $250,000,000. The Alternative Currency Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.
“Alternative Currency Term Rate” means, for any Interest Period, with respect to any Alternative Currency Term Rate Loan, the rate per annum equal to the forward-looking term rate based on CORRA (“Term CORRA”), as published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) (in such case, the “Term CORRA Rate”) on the Rate Determination Date with a term equivalent to such Interest Period; provided if any Alternative Currency Term Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.
“Alternative Currency Term Rate Loan” means a Committed Revolving Loan that bears interest at a rate based on the definition of “Alternative Currency Term Rate.” Committed Revolving Loans that are Alternative Currency Term Rate Loans must be denominated in Canadian Dollars.
“Anti-Corruption Laws” has the meaning specified in Section 5.21.
“Applicable Authority” means (a) with respect to SOFR, the SOFR Administrator or any relevant Governmental Authority having jurisdiction over the SOFR Administrator with respect to its publication of SOFR, in each case acting in such capacity and (b) with respect to Canadian Dollars, the applicable administrator for the Relevant Rate for Canadian Dollars or any relevant Governmental Authority having jurisdiction over the Administrative Agent or such administrator with respect to its publication of the applicable Relevant Rate, in each case acting in such capacity.
2
“Applicable Designated Borrower Documents” has the meaning specified in Section 5.24.
“Applicable Percentage” means (a) with respect to Revolving Loans and L/C Obligations, for each Revolving Lender at any time, subject to adjustment as provided in Section 2.18, a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of such Revolving Lender’s Revolving Commitment and the denominator of which is the amount of the Aggregate Revolving Commitments at such time; provided that, if the Revolving Commitment of each Revolving Lender has been terminated in full or if the Aggregate Revolving Commitments have expired, then the Applicable Percentage of each Revolving Lender shall be determined based on the Applicable Percentage of such Revolving Lender in effect immediately prior to such termination or expiration, giving effect to any subsequent assignments; and (b) with respect to the Term Facility, for each Term Lender at any time, a fraction (expressed as a percentage, carried out to the ninth decimal place) of the Term Facility represented by (i) at any time during the Availability Period in respect of the Term Facility, the aggregate amount of such Term Lender’s unused Term Commitment at such time plus the principal amount of such Term Lender’s Term Loans at such time, and (ii) thereafter, the principal amount of such Term Lender’s Term Loans at such time. The Applicable Percentages of each Lender under the applicable Facility or Facilities as of the Closing Date are set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption or the New Lender Joinder Agreement pursuant to which such Lender becomes a party hereto, as applicable.
“Applicable Rate” means, for Revolving Loans and Term Loans:
(a) From time to time at any time prior to the Investment Grade Election Effective Date, the number of basis points per annum set forth immediately below:
| Revolving Loans and Letter of Credit Fees | Term Loans | ||||
|---|---|---|---|---|---|
| Pricing Level | Leverage Ratio | Applicable Rate for Alternative Currency Term Rate Loans, Term SOFR Loans, Daily SOFR Loans and Letter of Credit Fees | Applicable Rate for Base Rate Loans | Applicable Rate for Term SOFR Loans and Daily SOFR Loans | Applicable Rate for Base Rate Loans |
| 1 | <<br> 0.30 to 1.00 | 105.0<br> bps | 5.0<br> bps | 110.0<br> bps | 10.0<br> bps |
| 2 | > 0.30 to 1.00 and < 0.35 to 1.00 | 110.0<br> bps | 10.0<br> bps | 115.0<br> bps | 15.0<br> bps |
| 3 | > 0.35 to 1.00 and < 0.40 to 1.00 | 115.0<br> bps | 15.0<br> bps | 125.0<br> bps | 25.0<br> bps |
| 4 | > 0.40 to 1.00 and < 0.45 to 1.00 | 120.0<br> bps | 20.0<br> bps | 130.0<br> bps | 30.0<br> bps |
3
| Revolving Loans and Letter of Credit Fees | Term Loans | ||||
|---|---|---|---|---|---|
| Pricing Level | Leverage Ratio | Applicable Rate for Alternative Currency Term Rate Loans, Term SOFR Loans, Daily SOFR Loans and Letter of Credit Fees | Applicable Rate for Base Rate Loans | Applicable Rate for Term SOFR Loans and Daily SOFR Loans | Applicable Rate for Base Rate Loans |
| 5 | > 0.45 to 1.00 and < 0.50 to 1.00 | 125.0<br> bps | 25.0<br> bps | 140.0<br> bps | 40.0<br> bps |
| 6 | > 0.50 to 1.00 and < 0.55 to 1.00 | 130.0<br> bps | 30.0<br> bps | 150.0<br> bps | 50.0<br> bps |
| 7 | ><br> 0.55 | 155.0<br> bps | 55.0<br> bps | 180.0<br> bps | 80.0<br> bps |
Any increase or decrease in the Applicable Rate under this clause (a) resulting from a change in the Leverage Ratio shall become effective as of the third (3rd) Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(a) (it being understood and agreed that each change in Pricing Level shall apply during the period commencing on the effective date of such change and ending on the date immediately preceding the effective date of the next such change); provided, however, that if a Compliance Certificate is not delivered when due in accordance with such Section, then Pricing Level 6 shall apply as of the third (3rd) 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 (any such period, a “Delayed Financials Delivery Period”), after which the Pricing Level shall be determined in accordance with the table above as applicable (provided that if such Compliance Certificate reflects a determination of Pricing Level 7, Pricing Level 7 shall be deemed applicable during the Delayed Financials Delivery Period).
The Applicable Rate in effect from the Closing Date through the third (3rd) Business Day immediately following the Administrative Agent’s receipt of the Compliance Certificate for the fiscal quarter ending June 30, 2026 shall be determined based upon Pricing Level 1 above (unless the pro forma Leverage Ratio specified in the Closing Compliance Certificate or such other interim financial statements indicates that a different Pricing Level should have been applicable during such period, in which case such other Pricing Level shall be deemed to be applicable during such period) and adjustments to the Pricing Level then in effect shall thereafter be effected in accordance with the preceding paragraphs.
Notwithstanding anything to the contrary contained in this definition, the determination of the Applicable Rate for any period under this clause (a) shall be subject to the provisions of Section 2.11(b).
(b) From time to time at any time on and after the Investment Grade Election Effective Date, the number of basis points per annum set forth immediately below:
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| Revolving Loans and Letter of Credit Fees | Term Loans | ||||
|---|---|---|---|---|---|
| Pricing Level | Debt Ratings (S&P/Moody’s/Fitch) | Applicable Rate for Alternative Currency Term Rate Loans, Term SOFR Loans, Daily SOFR Loans and Letter of Credit Fees | Applicable Rate for Base Rate Loans | Applicable Rate for Term SOFR Loans and Daily SOFR Loans | Applicable Rate for Base Rate Loans |
| 1 | ≥A<br> / ≥A2 / ≥A | 65.0<br> bps | 0<br> bps | 70.0<br> bps | 0<br> bps |
| 2 | A-<br> / A3 / A- | 67.5<br> bps | 0<br> bps | 75.0<br> bps | 0<br> bps |
| 3 | BBB+<br> / Baa1 / BBB+ | 72.5<br> bps | 0<br> bps | 80.0<br> bps | 0<br> bps |
| 4 | BBB<br> / Baa2 / BBB | 80.0<br> bps | 0<br> bps | 90.0<br> bps | 0<br> bps |
| 5 | BBB-<br> / Baa3 / BBB- | 100.0<br> bps | 0<br> bps | 115.0<br> bps | 15.0<br> bps |
| 6 | <BBB- / <Baa3 / <BBB-<br> or non-rated | 135.0<br> bps | 35.0<br> bps | 155.0<br> bps | 55.0<br> bps |
For purposes of this clause (b), the term “Debt Rating” means, as of any date of determination, the rating by S&P, Moody’s or Fitch of the Company’s non-credit enhanced, senior unsecured long-term debt; provided that, if at any time when the Company has only two (2) Debt Ratings, and such Debt Ratings are split, then: (A) if the difference between such Debt Ratings is one ratings category (e.g., Baa2 by Moody’s and BBB- by S&P or Fitch), the Applicable Rate shall be the rate per annum that would be applicable if the higher of the Debt Ratings were used, and (B) if the difference between such Debt Ratings is two or more ratings categories (e.g., Baa1 by Moody’s and BBB- by S&P or Fitch), the Applicable Rate shall be the rate per annum that would be applicable if the median of the applicable Debt Ratings were used. If at any time when the Company has three (3) Debt Ratings, and such Debt Ratings are split, then: (A) if the difference between the highest and the lowest such Debt Ratings is one ratings category (e.g., Baa2 by Moody’s and BBB- by S&P or Fitch), the Applicable Rate shall be the rate per annum that would be applicable if the highest of the Debt Ratings were used, and (B) if the difference between such Debt Ratings is two or more ratings categories (e.g., Baa1 by Moody’s and BBB- by S&P or Fitch), the Applicable Rate shall be the rate per annum that would be applicable if the average of the two (2) highest Debt Ratings were used; provided that, if such average is not a recognized rating category, then the Applicable Rate shall be the rate per annum that would be applicable if the second highest Debt Rating of the three were used.
Initially, the Applicable Rate shall be determined based upon the Debt Rating specified in the certificate delivered pursuant to the definition of “Investment Grade Election Effective Date”. Thereafter, each change in the Applicable Rate shall occur on the first Business Day following the effective change in the Debt Rating.
“Applicable Time” means, with respect to any Borrowings and payments in Canadian Dollars, the local time in the place of settlement for Canadian Dollars as may be determined by the Administrative Agent or the L/C Issuer, as the case may be, to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment.
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“Applicant Borrower” has the meaning specified in Section 2.19(a).
“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 (a) BofA Securities, Inc., its capacity as the sole bookrunner and (b) BofA Securities, Inc., JPMorgan and Wells Fargo Securities, LLC, each in its capacity as a joint lead arranger.
“Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.
“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 10.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit D or any other form (including electronic documentation generated by use of an electronic platform) approved by the Administrative Agent.
“Attributable Indebtedness” means, on any date, (a) in respect of any Financing 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 Financing Lease.
“Auto-Extension Letter of Credit” has the meaning specified in Section 2.03(b)(iii).
“Availability Period” means (a) in respect of the Revolving Facility, the period from and including the Closing Date to and including the earliest of (i) the Business Day preceding the Revolving Maturity Date, (ii) the date of termination of the Aggregate Revolving Commitments pursuant to Section 2.07, and (iii) the date of termination of the commitment of each Revolving Lender to make Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02, and (b) in respect of the Term Facility, the period from and including the Closing Date to and excluding the earliest of (i) the two hundred seventieth (270th) day after the Closing Date (or, if such date is not a Business Day, the immediately preceding Business Day), (ii) the Term Loan Maturity Date and (iii) the date of termination of the Aggregate Term Commitments pursuant to Section 8.02.
“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 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).
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“Bank of America” means Bank of America, N.A. and its successors.
“Bankruptcy Code” means the Bankruptcy Reform Act of 1978, as heretofore and hereafter amended, as codified at 11 U.S.C. § 101 et seq., and the rules and regulations promulgated thereunder, or any successor provision thereto.
“Base Rate” means for any day a fluctuating rate of interest per annum equal to the highest of (a) the Federal Funds Rate plus ½ of 1%, (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 (as defined in clause (b) of the definition thereof) plus 1% and (d) 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. If at any time of determination, the Base Rate is being used as an alternate rate of interest pursuant to Section 3.03 hereof, then the Base Rate at such time shall be the greater of clauses (a), (b) and (d) above and shall be determined without reference to clause (c) above.
“Base Rate Committed Loan” means a Committed Loan that is a Base Rate Loan.
“Base Rate Loan” means a Loan that bears interest based on the Base Rate. All Base Rate Loans are available only to the Company and shall be denominated in Dollars.
“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.
“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.”
“Borrower” and “Borrowers” have the meaning specified in the introductory paragraph hereto.
“Borrower Materials” has the meaning specified in Section 6.02.
“Borrowing” means a Committed Borrowing.
“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 of California or the State of New York or the state where the Administrative Agent’s Office with respect to Obligations denominated in Dollars is located, and (a) if such day relates to any interest rate settings as to an Alternative Currency Term Rate Loan, means any such day on which dealings in deposits in Canadian Dollars are conducted by and between banks in the applicable interbank market for such currency; and (b) if such day relates to any fundings, disbursements, settlements and payments in respect of an Alternative Currency Term Rate Loan, or any other dealings in Canadian Dollars to be carried out pursuant to this Agreement in respect of such Alternative Currency Term Rate Loan (other than any interest rate settings), means any such day on which banks are open for foreign exchange business in Toronto, Ontario.
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“Canadian AML Acts” means applicable Canadian law regarding anti-money laundering, anti-terrorist financing, government sanction and “know your client” matters, including the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada).
“Canadian Defined Benefit Pension Plan” means a Canadian Pension Plan that contains or has ever contained a “defined benefit provision” as such term is defined in Section 147.1(1) of the Income Tax Act (Canada).
“Canadian Dollar” and “CAD” mean the lawful currency of Canada.
“Canadian Pension Plan” means a pension plan or plan that is subject to applicable pension benefits legislation in any jurisdiction of Canada and that is organized and administered to provide pensions, pension benefits or retirement benefits for employees and former employees of any Loan Party or any Subsidiary thereof.
“Cash Collateral” has the meaning specified in the definition of “Cash Collateralize.”
“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the Administrative Agent or the L/C Issuer (as applicable) and the Revolving Lenders, as collateral for L/C Obligations, Obligations in respect of Revolving Loans denominated in Canadian Dollars, or obligations of Revolving Lenders to fund participations in respect thereof (as the context may require), cash or deposit account balances or, if the L/C Issuer benefitting from such collateral shall agree in its sole discretion, other credit support, in each case pursuant to documentation in form and substance reasonably satisfactory to (a) the Administrative Agent and (b) the 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.
“Change in Law” means the occurrence, after the Closing Date, and with respect to any Person in particular, after the date such Person becomes a party to 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, Canadian 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 (i) 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 and (ii) one or more members of the Healthpeak Group or any of its Subsidiaries) 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 the Parent Guarantor (which equity securities have ordinary voting powers to elect a majority of the members of the board of directors or equivalent governing body of the Parent Guarantor (irrespective of whether at such time stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency)) 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) and the Borrowers shall not have repaid all of the outstanding Obligations in full in cash (other than contingent Obligations that are not then due and payable), Cash Collateralized all outstanding Letters of Credit in an amount equal to one hundred percent (100%) of the then current L/C Obligations and terminated the Aggregate Commitments within forty-five (45) days after such “person” or “group” shall have become the “beneficial owner” of such percentage of such stock;
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(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 the Parent Guarantor 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 or recommended 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 or recommended 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 (it being acknowledged and agreed that the election and nomination of any member of the board of directors or other equivalent governing body of the Parent Guarantor whose election or nomination to that board or governing body was approved or recommended by Healthpeak Properties, Inc., or any other member of the Healthpeak Group or any Subsidiary thereof (or any board of directors or other equivalent governing body thereof), shall not violate this clause (b));
(c) the Parent Guarantor shall, at any time, cease to Control the Borrowers; or
(d) the Company shall, at any time, cease to own, directly or indirectly, 100% of the Equity Interests of any other Borrower.
“Class” when used with respect to Loans or a Borrowing, refers to whether such Loans, or the Loans comprising such Borrowing, are Committed Revolving Loans, Committed Term Loans or a specific tranche of Incremental Term Loans.
“Closing Compliance Certificate” has the meaning specified in Section 4.01(a)(vii).
“Closing Date” means the first date all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 10.01.
“CME” means CME Group Benchmark Administration Limited.
“Co-Documentation Agent” means each of Barclays Bank PLC, Goldman Sachs Bank USA, Morgan Stanley Senior Funding Inc. and Royal Bank of Canada, in their capacities as Co-Documentation Agents.
“Co-Syndication Agent” means each of JPMorgan and Wells Fargo, in their capacities as Co-Syndication Agents.
“Code” means the Internal Revenue Code of 1986, as amended.
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“Combined Financial Statements” means the unaudited pro forma combined balance sheet of the Janus Living Predecessor (as set forth in the Form S-11) for the fiscal period ended December 31, 2025, and the related combined statement of operations for such fiscal year of the Janus Living Predecessor, including the notes thereto as set forth in the Form S-11.
“Commitment” means a Revolving Commitment or a Term Commitment, as the context may require.
“Committed Borrowing” means a borrowing consisting of simultaneous Committed Revolving Loans of the same Type and the same Class, in the same currency and, in the case of Term SOFR Loans or Alternative Currency Term Rate Loans, having the same Interest Period made by each of the Lenders of such Class pursuant to Section 2.01.
“Committed Loan” means a Committed Revolving Loan or a Committed Term Loan, as the context may require.
“Committed Loan Notice” means a notice of (a) a Committed Borrowing, (b) a conversion of Committed Loans of the same Class from one Type to another Type, or (c) a continuation of Term SOFR Loans or Alternative Currency Term Rate Loans, in each case provided to the Administrative Agent pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit A or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the applicable Borrower.
“Committed Revolving Loan” has the meaning specified in Section 2.01(a) and includes Committed Revolving Loans pursuant to Section 2.03.
“Committed Term Loan” has the meaning specified in Section 2.01(b).
“Communication” means this Agreement, any other Loan Document and any document, amendment, approval, consent, information, notice, certificate, request, statement, disclosure or authorization related to any Loan Document.
“Company” has the meaning specified in the introductory paragraph hereto.
“Compliance Certificate” means a certificate substantially in the form of Exhibit C.
“Conforming Changes” means, with respect to the use, administration of or any conventions associated with SOFR, Term CORRA or any proposed Successor Rate for an Agreed Currency or Term SOFR, as applicable, any conforming changes to the definitions of “Base Rate,” “Daily SOFR”, “Daily Simple SOFR,” “SOFR,” “Term CORRA,” “Term CORRA Rate,” “Term SOFR,” “Term SOFR Screen Rate,” “Interest Period,” “Relevant Rate,” 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 the applicability and length of lookback periods) as may be appropriate, in the discretion of the Administrative Agent (after consultation in good faith with the Company), to reflect the adoption and implementation of such applicable rate(s) and to permit the use and administration thereof by the Administrative Agent in a manner substantially consistent with market practice for such Agreed Currency (or, if the 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 for such Agreed Currency exists, in such other manner of administration as the Administrative Agent (after consultation in good faith with the Company) determines is reasonably necessary in connection with the administration of this Agreement and any other Loan Document).
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“Consolidated Intangible Assets” means, as of any date of determination, an amount equal to the Intangible Assets of the Group on a consolidated basis.
“Consolidated Shareholders’ Equity” means, as of any date of determination, consolidated shareholders’ equity of the Group, as determined in accordance with GAAP.
“Consolidated Tangible Net Worth” means, as of any date of determination, for the Group on a consolidated basis, an amount equal to (a) Consolidated Shareholders’ Equity on such date plus (b) accumulated depreciation and amortization, determined on a consolidated basis in accordance with GAAP, on such date, minus (c) Consolidated Intangible Assets on such date.
“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.
“CORRA” means the Canadian Overnight Repo Rate Average administered and published by the Bank of Canada (or any successor administrator).
“Covered Unencumbered Pool Entity” means any Unencumbered Pool Entity whose Unencumbered Asset Value is included in the calculation of Enterprise Unencumbered Asset Value. For the avoidance of doubt, (a) each Subsidiary of the Company the assets of which are included in the calculation of “Enterprise Unencumbered Asset Value” shall be required to be a Covered Unencumbered Pool Entity and (b) “Covered Unencumbered Pool Entity” shall include any Unsecured Debt Subsidiary.
“Covered Party” has the meaning specified in Section 10.24.
“Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.
“Daily Simple SOFR” means, with respect to any applicable determination date, a rate per annum equal to the Secured Overnight Financing Rate published on such date on the Federal Reserve Bank of New York’s website (or any successor source).
“Daily SOFR” means the rate per annum equal to SOFR determined for any day pursuant to the definition thereof. Any change in Daily SOFR shall be effective from and including the date of such change without further notice. If the rate as so determined would be less than 0.00%, such rate shall be deemed to be 0.00% for purposes of this Agreement.
“Daily SOFR Loan” means a Loan that bears interest at a rate based on Daily SOFR.
“Debt Rating” has the meaning specified in the definition of “Applicable Rate.”
“Debtor Relief Laws” means the Bankruptcy Code of the United States, the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada), the Winding-Up and Restructuring Act (Canada), 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, Canada or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
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“deemed year” has the meaning specified in Section 2.09(d).
“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 Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2% per annum; provided, however, that with respect to a Daily SOFR Loan, a Term SOFR Loan or an Alternative Currency Term Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2% per annum, and (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus 2% per annum.
“Defaulting Lender” means, subject to Section 2.18(b), any Lender that, as reasonably determined by the Administrative Agent, (a) has failed to (i) perform any of its funding obligations hereunder, including in respect of (x) its Loans or (y) participations in respect of L/C Obligations, in each case within two (2) Business Days of the date required to be funded by it hereunder, unless, in the case of clause (x) above, such Lender notifies the Administrative Agent and the Company in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied or (ii) pay to the Administrative Agent, the L/C Issuer 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 the Company, the Administrative Agent or the L/C Issuer that it does not intend to comply with its funding obligations or has made a public statement to that effect with respect to its funding obligations hereunder (unless such notice or public statement states that such position is based on such Lender’s good faith determination that a condition precedent (each of which conditions precedent, together with any applicable default, shall be specifically identified in such notice or public statement) to funding a Loan under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) has failed, within three (3) Business Days after written request by the Administrative Agent or the Company, to confirm in writing in a manner satisfactory to the Administrative Agent and the Company that it will comply with its funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Company), 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 a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets or a custodian appointed for it, (iii) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment or (iv) 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 the Administrative Agent that a Lender is a Defaulting Lender under 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 2.18(b)) as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Company, the L/C Issuer and each other Lender promptly following such determination.
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“Delaware Divided LLC” means any Delaware LLC that has been formed upon consummation of a Delaware LLC Division.
“Delaware LLC” means any limited liability company organized or formed under the laws of the State of Delaware.
“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.
“Designated Borrower” has the meaning specified in the introductory paragraph hereto.
“Designated Borrower Notice” means the notice substantially in the form of Exhibit F attached hereto.
“Designated Borrower Request and Assumption Agreement” means the notice substantially in the form of Exhibit E attached hereto.
“Designated Jurisdiction” means any country, region or territory to the extent that such country, region or territory itself is the target of comprehensive Sanctions (as of the date of this Agreement, Cuba, Iran, North Korea, Syria, the Crimea, the Kherson and Zaporizhzhia regions of Ukraine, the so-called Donetsk People’s Republic, and the so-called Luhansk People’s Republic).
“Development Property” means any real property in which the development and construction with respect thereto are not complete.
“Disclosed Matters” means any event, circumstance, condition or other matter expressly disclosed in the reports and other documents furnished to or filed with the SEC by the Parent Guarantor, the Company or any of their Subsidiaries and that are publicly available on or prior to the Closing Date.
“Disposition” or “Dispose” means the sale, transfer or assignment (including any sale and leaseback transaction) 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 and including any disposition of property to a Delaware Divided LLC pursuant to a Delaware LLC Division, in any case other than sales or other dispositions of assets in the ordinary course of business.
“Disqualified Equity Interests” shall mean any Equity Interest that, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, (a) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, or requires the payment of any cash dividend or any other scheduled payment constituting a return of capital, in each case at any time on or prior to the date that is 91 days following the latest Maturity Date at the time of the issuance of such Equity Interest; provided, however, that (i) only the portion of such Equity Interest which so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date shall be deemed to be a Disqualified Equity Interest, (ii) if such Equity Interests are issued to any current or former employees or other service providers or to any plan for the benefit of employees, directors, officers, members of management or consultants (including any equity or incentive compensation or benefit plan) of the Parent Guarantor, the Company or any of their Subsidiaries or by any such compensation or plan to such current or former employees, other service providers, directors, officers, members of management or consultants, such Equity Interests shall not constitute Disqualified Equity Interests solely because they may be required to be repurchased by such Person in order to satisfy applicable statutory or regulatory obligations or as a result of such current or former employee’s, other service provider’s, director’s, officer’s, management member’s or consultant’s termination, death or disability, (iii) any class of Equity Interests of such Person that by its terms authorizes such Person to satisfy its obligations thereunder by delivery of Equity Interests that are not Disqualified Equity Interests shall not be deemed to be Disqualified Equity Interests, and (iv) Equity Interests will not constitute Disqualified Equity Interests solely because of provisions giving holders thereof the right to require repurchase or redemption upon an “asset sale” or “change of control” occurring prior to such date; or (b) is convertible into or exchangeable (unless at the sole option of the issuer thereof) for (i) debt securities or (ii) any Equity Interest referred to in clause (a) above, in each case at any time prior to the date that is 91 days following the latest Maturity Date at the time of the issuance of such Equity Interest.
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“Dollar” and “$” mean lawful money of the United States.
“Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in Canadian Dollars, the equivalent amount thereof in Dollars as determined by the Administrative Agent or the L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Dollars with Canadian Dollars.
“EBITDA” means, for any period, for a Person and its Subsidiaries on a consolidated basis, an amount equal to, without duplication, the Net Income of such Person and its Subsidiaries for such period plus (a) the following to the extent deducted in calculating such Net Income: (i) Interest Expense of such Person and its Subsidiaries for such period, (ii) the provision for Federal, state, local and foreign taxes on or measured by income of such Person and its Subsidiaries for such period (whether or not payable during that period), (iii) depreciation and amortization expense for such period and (iv) expenses of such Person and its Subsidiaries reducing such Net Income during such period which do not represent a cash expenditure in such period or any prior or future period and minus (b) (i) all items of such Person and its Subsidiaries increasing Net Income for such period which do not represent a cash receipt in such period or any prior or future period and (ii) any addition to EBITDA pursuant to clause (a)(ii) above taken or payable during such period to the extent added to EBITDA in any prior or future period.
“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 clause (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” shall have the meaning specified in Section 10.21.
“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.
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“Eligible Assignee” means any Person that meets the requirements to be an assignee under Sections 10.06(b)(iii), (v), (vi) and (vii) (subject to such consents, if any, as may be required under Section 10.06(b)(iii)).
“EMU Legislation” means the legislation of the European Union relating to the Economic and Monetary Union.
“Enterprise EBITDA” means, for any period, the sum of (a) EBITDA of the Group on a consolidated basis for such period plus (b) without duplication, the Company’s Pro Rata Share of EBITDA of each Material Joint Venture for such period.
“Enterprise Fixed Charges” means, for any period, with respect to the Group on a consolidated basis, the sum of, without duplication, (a) Enterprise Interest Expense paid in cash during such period plus (b) Scheduled Principal Payments during such period plus (c) cash dividends and distributions in respect of preferred stock of the Group during such period (but excluding (i) redemption payments or charges in connection with the redemption of preferred stock and (ii) amounts paid to the Parent Guarantor, the Company or any of their respective Subsidiaries); provided that Enterprise Fixed Charges shall not include (i) any amounts with respect to any Intercompany Indebtedness, (ii) gains and losses from unwinding or break-funding of Swap Contracts, (iii) write-offs of unamortized deferred financing fees, (iv) prepayment fees, premiums and penalties, and (v) other unusual or non-recurring items as are reasonably acceptable to the Administrative Agent and the Required Lenders.
“Enterprise Gross Asset Value” means, as of any date of determination, the sum of (a) Gross Asset Value of the Group on a consolidated basis plus (b) without duplication, the Company’s Pro Rata Share of Gross Asset Value of each Material Joint Venture; provided that (i) without duplication, for purposes of calculating the Leverage Ratio, Enterprise Gross Asset Value shall not include the aggregate amount of unrestricted cash and cash equivalents deducted in the calculation of Enterprise Total Indebtedness pursuant to the first proviso of the definition of “Enterprise Total Indebtedness”, and (ii) for purposes of any determination of Enterprise Gross Asset Value (x) to the extent the amount of Enterprise Gross Asset Value attributable to Joint Ventures would exceed 25% of Enterprise Gross Asset Value, such excess shall be excluded (it being understood and agreed, that for purposes of this clause (x) the Loan Parties’ Investment in any Joint Venture will be valued at book value as shown on the consolidated balance sheet of the Parent Guarantor, as determined in accordance with GAAP), and (y) to the extent the amount of Enterprise Gross Asset Value attributable to Development Properties would exceed 35% of Enterprise Gross Asset Value, such excess shall be excluded.
“Enterprise Interest Expense” means, for any period, the sum of (a) Interest Expense of the Group on a consolidated basis for such period plus (b) without duplication, the Company’s Pro Rata Share of Interest Expense of each Material Joint Venture for such period.
“Enterprise Secured Debt” means, as of any date of determination, that portion of Enterprise Total Indebtedness that is subject to a Lien (other than Permitted Specified Liens); provided that in no event shall the Obligations hereunder and under the other Loan Documents constitute “Enterprise Secured Debt” solely as a result of any security interest granted to the Administrative Agent or the L/C Issuer, solely in any Cash Collateral or any account or other property, including proceeds thereof, established for the purpose of securing obligations in respect of Letters of Credit, exchange rate fluctuations or otherwise to the extent required pursuant to any of the cash collateralization provisions of the Loan Documents.
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“Enterprise Total Indebtedness” means, as of any date of determination, an amount equal to, without duplication, (a) Indebtedness of the Group on a consolidated basis outstanding on such date, plus (b) without duplication, the Company’s Pro Rata Share of Indebtedness of each Material Joint Venture outstanding on such date; provided that for purposes of calculating the Leverage Ratio, (x) clause (a) shall be reduced by the aggregate amount of (i) all unrestricted cash and cash equivalents of the Group and (ii) escrow and other deposits to the extent available on such date for the repayment of any of the Indebtedness included in the calculation of clause (a) above up to an amount in the aggregate for this clause (x) not to exceed the aggregate amount of Indebtedness reflected in clause (a) above maturing in the immediately succeeding 24 months and (y) clause (b) shall be reduced by the aggregate amount of (i) all unrestricted cash and cash equivalents of each such applicable Material Joint Venture and (ii) escrow and other deposits to the extent available on such date for the repayment of any of the Indebtedness included in the calculation of clause (b) above up to an amount in the aggregate for this clause (y) not to exceed the aggregate amount of Indebtedness reflected in clause (b) above maturing in the immediately succeeding 24 months; provided, further, that Enterprise Total Indebtedness shall not include accounts payable, intracompany debt, dividends and distributions declared but not payable, security deposits, accrued liabilities or prepaid rent, each as defined in accordance with GAAP.
“Enterprise Unencumbered Asset Value” means, as of any date of determination, the sum of (a) Unencumbered Asset Value of the Group on a consolidated basis plus (b) without duplication, the Company’s Pro Rata Share of Unencumbered Asset Value of each Material Joint Venture; provided that for purposes of any determination of Enterprise Unencumbered Asset Value (x) to the extent the amount of Enterprise Unencumbered Asset Value attributable to Joint Ventures would exceed 25% of Enterprise Unencumbered Asset Value, such excess shall be excluded (it being understood and agreed, that for purposes of this clause (x) the Loan Parties’ Investment in any Joint Venture will be valued at book value as shown on the consolidated balance sheet of the Parent Guarantor, as determined in accordance with GAAP), and (y) to the extent the amount of Enterprise Unencumbered Asset Value attributable to Development Properties would exceed 35% of Enterprise Unencumbered Asset Value, such excess shall be excluded.
“Enterprise Unsecured Debt” means, as of any date of determination, that portion of Enterprise Total Indebtedness that is not Enterprise Secured Debt or a Guarantee of Enterprise Secured Debt.
“Enterprise Unsecured Interest Expense” means, for any period, Interest Expense of the Group attributable to Enterprise Unsecured Debt for such period.
“Environmental Laws” means any and all Federal, state, provincial, territorial, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to hazardous substances or wastes, air emissions and discharges to waste or public systems.
“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of a Loan Party or any of its Subsidiaries 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 and all of the warrants or options for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person (but excluding any debt security that is convertible into or exchangeable for capital stock).
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“ERISA” means the Employee Retirement Income Security Act of 1974.
“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Loan Parties 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) a withdrawal by any Loan Party or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001 (a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by any Loan Party or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an 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 or Multiemployer Plan; or (f) 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 a Loan Party or any ERISA Affiliate in excess of the Threshold Amount.
“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 8.01.
“Excluded Swap Obligations” means, with respect to any Guarantor Party, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Guarantor Party of, or the grant by such Guarantor Party of a Lien to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation thereof) by virtue of such Guarantor Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to Section 10.26 and any other “keepwell”, support or other agreement for the benefit of such Guarantor Party and any and all guarantees of the Guarantor Party’s Swap Obligations by other guarantors (if any)) at the time the Guaranty of such Guarantor Party, or grant by such Guarantor Party of a Lien, becomes effective with respect to such Swap Obligation. 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 Guaranty or Lien is or becomes excluded in accordance with the first sentence of this definition.
“Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the 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, (a) taxes imposed on or measured by its overall net income (however denominated), and franchise taxes in each case (i) imposed on it (in lieu of net income taxes), by the jurisdiction (or any political subdivision thereof) under the Laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable Lending Office is located or (ii) that are Other Connection Taxes, (b) any branch profits taxes imposed by the United States or any similar tax imposed by any other jurisdiction in which any Loan Party is located, (c) any backup withholding tax that is required to be withheld from amounts payable to a Lender that has failed to comply with clause (A) of Section 3.01(e)(ii), (d) in the case of a Lender (other than an assignee pursuant to a request by the Company under Section 10.13), any Tax that is imposed on amounts payable to such Lender at the time such Lender becomes a party hereto (or designates a new Lending Office) or is attributable to such Lender’s failure or inability (other than as a result of a Change in Law) to comply with Section 3.01(e), except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment), to receive additional amounts from the Loan Parties with respect to such withholding tax pursuant to Section 3.01(a), (e) any Canadian federal withholding Tax imposed on a Lender by reason of (i) such Lender not dealing at arm’s length (within the meaning of the Income Tax Act (Canada) with a Loan Party at the time of such payment, (ii) such Lender being a “specified non-resident shareholder” of a Loan Party or not dealing at arm’s length with a “specified shareholder” of a Loan Party (in each case, within the meaning of subsection 18(5) of the Income Tax Act (Canada)) at the time of such payment, or (iii) a Loan Party being a “specified entity” pursuant to paragraph (b) of the definition thereof (as defined in subsection 18.4(1) of the Income Tax Act (Canada)) in respect of such Lender at the time of such payment (other than where the non-arm’s length relationship, the Lender being a “specified non-resident shareholder” or not dealing at arm’s length with a “specified shareholder” of a Loan Party, or a Loan Party being a “specified entity” in respect of such Lender, as the case may be, arises solely as a result of the Lender having become a party to, received or perfected a security interest under, or received or enforced any rights under, any Loan Document), and (f) Taxes imposed under FATCA.
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“Extended Letter of Credit” means any Letter of Credit with an expiration date occurring up to one year beyond the Letter of Credit Expiration Date pursuant to the terms of Section 2.03(a)(ii)(B).
“Facility” means the Revolving Facility or the Term Facility, as the context may require.
“Facility Fee Rate” means (a) at any time prior to the Investment Grade Election Effective Date, the number of basis points per annum set forth in the following table, with reference to the Pricing Levels set forth in clause (a) of the definition of “Applicable Rate” as applicable at any time prior to the Investment Grade Election Effective Date:
| Pricing<br> Level | Facility<br> Fee |
|---|---|
| 1 | 15.0<br> bps |
| 2 | 15.0<br> bps |
| 3 | 20.0<br> bps |
| 4 | 20.0<br> bps |
| 5 | 25.0<br> bps |
| 6 | 30.0<br> bps |
| 7 | 35.0<br> bps |
and (b) at any time on and after the Investment Grade Election Effective Date, the number of basis points per annum set forth in the following table, with reference to the Pricing Levels set forth in clause (b) of the definition of “Applicable Rate” as applicable at any time on and after the Investment Grade Election Effective Date:
| Pricing<br> Level | Facility<br> Fee |
|---|---|
| 1 | 10.0<br> bps |
| 2 | 12.5<br> bps |
| 3 | 15.0<br> bps |
| 4 | 20.0<br> bps |
| 5 | 25.0<br> bps |
| 6 | 30.0<br> bps |
“Facility Lease” means a lease or sublease (including any master lease) with respect to any Property owned or ground leased by any Loan Party or any Subsidiary thereof as lessor, to a third party tenant, which is a triple-net lease such that such tenant is required to pay all taxes, utilities, insurance (including casualty insurance), maintenance and other customary expenses with respect to the subject Property (whether in the form of reimbursements, additional rent or otherwise) in addition to the base rental payments required thereunder such that net operating income to such Loan Party for such Property (before non-cash items) equals the base rent paid thereunder.
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“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 Closing Date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities entered into in connection with the implementation of the foregoing.
“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.
“Financing Lease” means, as applied to any Person, any lease of any property by that Person as lessee which, in accordance with GAAP, is required to be accounted for as a financing lease on the balance sheet of that Person.
“Fitch” means Fitch Ratings, Inc. and any successor thereto.
“Fixed Charge Coverage Ratio” means, on the last day of any fiscal quarter, the ratio of (a) Enterprise EBITDA for the twelve-month period ending on such date to (b) Enterprise Fixed Charges for the twelve-month period ending on such date.
“Foreign Lender” means, with respect to any Borrower (a) if such Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if such Borrower is not a U.S. Person, a Lender that is resident or organized under the Laws of a jurisdiction other than that in which such Borrower is a 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.
“Form S-11” means the Registration Statement on Form S-11 filed by the Parent Guarantor, as amended as of March 17, 2026.
“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, with respect to the L/C Issuer, an amount equal to such Defaulting Lender’s Applicable Percentage of the outstanding L/C Obligations, less the amount of such L/C Obligations as to which such Defaulting Lender has funded its participation obligation or as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.
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“Fund” means any Person (other than a natural person or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, 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, Canada or any other nation, or of any political subdivision thereof, whether state, provincial, territorial 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 supranational bodies such as the European Union or the European Central Bank).
“Gross Asset Value” means, as of any date of determination, an amount equal to (a) all assets of a Person and its Subsidiaries as determined in accordance with GAAP plus (b) all accumulated depreciation and accumulated amortization associated with such assets minus (c) Intangible Assets of such Person and its Subsidiaries.
“Group” means the Parent Guarantor, the Company and their respective Subsidiaries.
“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 payment 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 11.01, Section 12.01 or Section 13.01 as the context may require.
“Guarantor Party” means each of the Parent Guarantor, any Parent Subsidiary Guarantor and each Subsidiary Guarantor; and “Guarantor Parties” means all of them collectively.
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“Guaranty” means, as the context may require, (a) the Guarantee made by the Parent Guarantor under Article XI in favor of the Administrative Agent and the Lenders, (b) the Guarantee made by each Subsidiary Guarantor under Article XII in favor of the Administrative Agent and the Lenders or (c) the Guarantee made by the Company under Article XIII in favor of the Administrative Agent and the Lenders.
“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 regulated pursuant to any Environmental Law.
“Healthpeak Group” means Healthpeak Properties, Inc., Healthpeak OP, LLC, DOC DR Holdco, LLC, DOC DR, LLC, and any of their respective direct or indirect wholly-owned Subsidiaries that is not a Subsidiary of Parent Guarantor.
“HMT” has the meaning specified in the definition of “Sanction(s).”
“Honor Date” has the meaning specified in Section 2.03(b)(v).
“Increase Effective Date” has the meaning specified in Section 2.16(d).
“Incremental Term Loan” has the meaning specified in Section 2.16(a).
“Incremental Term Loan Amendment” has the meaning specified in Section 2.16(e)(iii).
“Indebtedness” means, at any time and with respect to any Person, 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, whether secured or unsecured, and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments, including, without limitation, recourse and non-recourse mortgage debt;
(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;
(c) aggregate net obligations of such Person under Swap Contracts;
(d) all obligations of such Person to pay the deferred purchase price of property or services (other than (i) trade accounts payable and other accrued obligations in the ordinary course of business and (ii) liabilities with respect to earnouts, reimbursements, true-ups and other similar obligations incurred in connection with the purchase or sale of assets except to the extent such liabilities are required to appear on the balance sheet of such Person prepared in accordance with GAAP);
(e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or 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, to the extent of the value of the property encumbered by such Lien;
(f) Financing Leases and Synthetic Lease Obligations;
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(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 (other than OP units or LTIP units issued by such Person) at any time prior to the date that is six (6) months after the latest Maturity Date then in effect (other than obligations that can solely be satisfied by delivery of Equity Interests of such Person), valued, in the case of a redeemable preferred interest, at the liquidation preference thereof; and
(h) all Guarantees of such Person in respect of any of the foregoing.
For all purposes hereof, (i) 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 (which shall be a positive number if such amount would be owed by the Parent Guarantor, the Company or any of their respective Subsidiaries and a negative number if such amount would be owed to the Parent Guarantor, the Company or any of their respective Subsidiaries) and the net obligations under Swap Contracts shall not be less than zero and (ii) the amount of any Financing 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. Any liability will be excluded so long as it is (1) secured by a letter of credit issued for the benefit of the Parent Guarantor, the Company or any of their respective Subsidiaries in form and substance and from a financial institution reasonably acceptable to the Administrative Agent, but only to the extent neither the Parent Guarantor, the Company nor any of their respective Subsidiaries has liability therefor, (2) any obligation (including obligations under so called “sandwich leases”) against which a third party indemnifies the Parent Guarantor, the Company or any of their respective Subsidiaries, or guarantees all loss suffered by the Parent Guarantor, the Company or any of their respective Subsidiaries on account thereof, to the extent the indemnitor or guarantor has the financial wherewithal to satisfy its obligation, or (3) otherwise acceptable as a “Covered Liability” in the reasonable discretion of the Administrative Agent and the Required Lenders.
“Indemnified Taxes” means Taxes other than Excluded Taxes.
“Indemnitee” has the meaning specified in Section 10.04(b).
“Initial Revolving Maturity Date” has the meaning specified in Section 2.15(a).
“Intangible Assets” means, as of any date of determination, assets of a Person and its Subsidiaries that are classified as intangible assets under GAAP, but excluding interests in real estate that are classified as intangible assets in accordance with GAAP.
“Intercompany Indebtedness” means, as of any date, Indebtedness to which the only parties are the Parent Guarantor, the Company and/or any of their respective Subsidiaries as of such date and which, if the Parent Guarantor or any Borrower is the borrower with respect to such Indebtedness, is subordinated to the obligations under this Agreement and the other Loan Documents.
“Interest Expense” means, for any period, for a Person and its Subsidiaries on a consolidated basis, the sum, without duplication, of all (a) interest expense for such period determined in accordance with GAAP (but excluding, to the extent included in Interest Expense, (i) any charges resulting from settlement of options to repurchase remarketable bonds and (ii) amortization of deferred financing fees, amortization of debt discounts and swap breakage costs) and (b) interest that is capitalized in such period in accordance with GAAP.
“Interest Payment Date” means, (a) as to any Term SOFR Loan or Alternative Currency Term Rate Loan, the last day of each Interest Period applicable to such Loan and the applicable Maturity Date; provided, however, that, if any Interest Period for a Term SOFR Loan or Alternative Currency Term Rate Loan exceeds three months, then the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan, Daily SOFR Loan, the last Business Day of each calendar quarter and the applicable Maturity Date.
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“Interest Period” means, as to each Term SOFR Loan, the period commencing on the date such Term SOFR Loan is disbursed or converted to or continued as a Term SOFR Loan and ending on the numerically corresponding day in the calendar month that is one, three or six months (or (i) if requested by the applicable Borrower and agreed to by all Lenders, 12 months or (ii) in the case of any Alternative Currency Term Rate Loan, one or three months) thereafter (in each case, subject to availability for the interest rate applicable to the relevant currency), as selected by the applicable Borrower in its Committed Loan Notice; provided that:
(i) 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 such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;
(ii) any Interest Period 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
(iii) no Interest Period shall extend beyond the applicable 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 Election Effective Date” means the first Business Day following the date on which the Company has delivered to the Administrative Agent (and the Administrative Agent shall promptly provide a copy of such notice to the Lenders) a certificate signed by a Responsible Officer of the Company (a) certifying that the Investment Grade Rating Criteria has been satisfied (which certification shall also set forth the Credit Rating(s) as in effect, if any, from each of S&P and Moody’s as of such date) and (b) notifying the Administrative Agent that the Company has irrevocably elected to have the Applicable Rate as determined pursuant to clause (b) of the definition of “Applicable Rate” apply to the pricing of the Revolving Facility and the Term Facility.
“Investment Grade Rating Criteria” means a Debt Rating of either (a) BBB- or higher from S&P or (b) Baa3 or higher from Moody’s, in each case, applicable to the Company’s non-credit enhanced, senior unsecured long-term debt.
“IP Rights” has the meaning specified in Section 5.16.
“IPO” means the underwritten public offering of Equity Interests constituting common stock of the Parent Guarantor that results in such Equity Interests being traded on the New York Stock Exchange or other nationally-recognized stock exchange and the use of proceeds therefrom, in each case substantially as described in the Form S-11 for such offering.
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“IPO Transactions” means the IPO and the related transactions (including the “formation transactions” (as defined in the Form S-11)) expressly contemplated by, and consummated in accordance with, the terms of the Form S-11.
“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 the L/C Issuer and a Borrower (or any Subsidiary) or in favor of the L/C Issuer and relating to any such Letter of Credit.
“Joint Venture” means any Person in which the Company, directly or indirectly, has an ownership interest but does not consolidate the assets or income of such Person in preparing its consolidated financial statements.
“JPMorgan” means JPMorgan Chase Bank, N.A. and its successors.
“Judgment Currency” has the meaning specified in Section 10.19.
“Laws” means, collectively, all international, foreign, Federal, state, provincial, territorial and local statutes, treaties, rules, guidelines, regulations, ordinances, codes, executive orders and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
“L/C Advance” means, with respect to each Revolving Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Percentage. All L/C Advances shall be denominated in Dollars.
“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 Committed Borrowing. All L/C Borrowings shall be denominated in Dollars.
“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 Issuer” means each of Bank of America and any other Revolving Lender designated by the Company (to the extent such Lender has accepted such designation) and acceptable to the Administrative Agent (such acceptance not to be unreasonably withheld), in each case in its capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder. For the avoidance of doubt, references to “L/C Issuer” in this Agreement shall refer to the L/C Issuers collectively; provided that the term “L/C Issuer” when used with respect to a Letter of Credit or L/C Obligations relating to a Letter of Credit shall refer to the L/C Issuer that issued such Letter of Credit.
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“L/C Obligations” means, as at any date of determination, 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 1.10. 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 3.13 or Rule 3.14 of the ISP or similar terms of the Letter of Credit itself, or if compliant documents have been presented but not yet honored, such Letter of Credit shall be deemed to be “outstanding” and “undrawn” in the amount so remaining available to be paid, and the obligations of the Borrowers and each Lender shall remain in full force and effect until the L/C Issuers and the Lenders shall have no further obligations to make any payments or disbursements under any circumstances with respect to any Letter of Credit.
“Lender” has the meaning specified in the introductory paragraph hereto.
“Lender Parties” mean, collectively, the Lenders and the L/C Issuers.
“Lender Related Party” has the meaning specified in Section 10.04(d).
“Lending Office” means, as to any Lender, the office or offices of such Lender or its Affiliates described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Company and the Administrative Agent.
“Letter of Credit” means any standby letter of credit issued hereunder. Letters of Credit may be issued in Dollars or in Canadian Dollars.
“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 the L/C Issuer.
“Letter of Credit Expiration Date” means the day that is the fifth day prior to the Revolving Maturity Date then in effect (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(g).
“Letter of Credit Sublimit” means $25,000,000. The Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.
“Leverage Ratio” means, on the last day of any fiscal quarter, the ratio of (a) Enterprise Total Indebtedness outstanding on such date to (b) Enterprise Gross Asset Value as of such date.
“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, hypothec 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 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 a Borrower under Article II in the form of a Committed Revolving Loan or Committed Term Loan.
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“Loan Documents” means this Agreement, each Note, each Issuer Document, each Designated Borrower Request and Assumption Agreement and any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.17.
“Loan Parties” means, collectively, the Company, the Designated Borrowers and each Guarantor Party (and, for the avoidance of doubt, “Loan Parties” shall not include any member of the Healthpeak Group).
“Management Agreement” means that certain Management Agreement, dated as of March 23, 2026, by and among the Parent Guarantor, the Company and Healthpeak Investment Management, LLC (the “Healthpeak Manager”) under which the Parent Guarantor and the Company shall have engaged the Healthpeak Manager to provide day-to-day management services and advice with respect to the management of the Group’s operations and Properties, substantially in the form provided to the Administrative Agent prior to the Closing Date, as amended or otherwise modified from time to time to the extent such amendments and modifications are not reasonably expected to have a Material Adverse Effect (a “Permitted Amendment”).
“Master Agreement” has the meaning specified in the definition of “Swap Contract.”
“Material Adverse Effect” means a material adverse effect on (a) the business, operations, properties or financial condition of the Group, taken as a whole, (b) the ability of the Loan Parties to perform any of their material obligations under the Loan Documents, or (c) the rights of or remedies available to the Administrative Agent and the Lenders under the Loan Documents.
“Material Group” has the meaning specified in the definition of “Material Subsidiary.”
“Material Joint Venture” means a Joint Venture in which the Company has made a net equity investment of $15,000,000 or greater. For purposes of this definition, the Company’s aggregate Investment in a Joint Venture will be valued at book value as shown on the consolidated balance sheet of the Company, as determined in accordance with GAAP.
“Material Non-Recourse Indebtedness” means any Indebtedness of any Subsidiary of the Company (other than Indebtedness under the Loan Documents and Indebtedness under Swap Contracts) that (a) constitutes Non-Recourse Indebtedness, and (b) individually or in the aggregate, has a principal amount (including, without duplication, undrawn committed or available amounts and amounts owing to all creditors under any combined or syndicated credit arrangement) of more than the Threshold Amount.
“Material Recourse Indebtedness” means any Indebtedness of the Parent Guarantor, the Company and/or any of their respective Subsidiaries (other than Indebtedness under the Loan Documents and Indebtedness under Swap Contracts) that (a) does not constitute Non-Recourse Indebtedness, and (b) individually or in the aggregate, has a principal amount (including, without duplication, undrawn committed or available amounts and amounts owing to all creditors under any combined or syndicated credit arrangement) of more than the Threshold Amount.
“Material Subsidiary” means each Subsidiary or any group of Subsidiaries (a) which, as of the most recent fiscal quarter of the Parent Guarantor or the Company, as applicable, for the period of four consecutive fiscal quarters then ended, for which financial statements have been delivered pursuant to Section 6.01, contributed greater than $25,000,000 of Enterprise EBITDA for such period or (b) which contributed greater than (x) prior to the Investment Grade Election Effective Date, $50,000,000 and (y) on and after the Investment Grade Election Effective Date, $150,000,000 of Enterprise Gross Asset Value as of such date. A group of Subsidiaries (a “Material Group”) each of which is not otherwise a Material Subsidiary (defined in the foregoing sentence) shall constitute a Material Subsidiary if the group taken as a single entity satisfies the requirements of the foregoing sentence.
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“Maturity Date” means (a) with respect to the Revolving Facility, the Revolving Maturity Date, (b) with respect to the Term Facility, the Term Loan Maturity Date and/or (c) with respect to any tranche of Incremental Term Loans, subject to Section 2.16(e)(iii), the date set forth in the applicable Incremental Term Loan Amendment as the “Maturity Date” for such tranche of Incremental Term Loans, in each case, as the context may require.
“Maximum Rate” has the meaning specified in Section 10.09.
“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.
“Mortgage Lien” means any Lien that encumbers a real property owned by a Person other than Permitted Specified Liens.
“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which a 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.
“Negative Pledge” means any provision of a document, instrument or agreement (other than this Agreement or any other Loan Document) that is binding on a Loan Party or any Wholly-Owned Subsidiary and prohibits the creation or assumption of any Lien on any assets of such Person to secure the Obligations; provided, however, that a provision conditioning a Person’s ability to encumber its assets upon the maintenance of one or more specified ratios shall not constitute a Negative Pledge so long as such provision does not generally prohibit the encumbrance of such Person’s assets or the encumbrance of specific assets.
“Net Income” means, for any period, for a Person and its Subsidiaries on a consolidated basis, the net income of such Person and its Subsidiaries for such period as determined in accordance with GAAP (without giving effect to (i) any net after tax gains or losses attributable to sales of non-current assets out of the ordinary course of business and write-downs of non-current assets in anticipation of losses to the extent they have decreased net income, and (ii) gains and losses from dispositions of depreciable real estate investments, impairment charges, the early extinguishment of debt and transaction costs of acquisitions not permitted to be capitalized pursuant to GAAP and other non-recurring items, including, without limitation, charges resulting from settlement of options to repurchase remarketable bonds and other similar charges).
“New Lender Joinder Agreement” has the meaning specified in Section 2.16(c).
“Net Operating Income” or “NOI” means, for any Property and for a given period, the following (without duplication and determined on a consistent basis with prior periods): (a) rents and other revenues received in cash in the ordinary course from such Property (whether in the nature of base rent, minimum rent, percentage rent, additional rent, proceeds from rent loss or business interruption insurance or otherwise (including amortized non-refundable entrance fees paid in respect of such Property), but excluding (x) pre-paid rents and revenues, security deposits, earnest money deposits, advance rentals, reserves for capital expenditures, impounds, escrows, charges, expenses or items required to be paid or reimbursed by the tenant thereunder, except to the extent applied in satisfaction of tenants’ obligations for rent and (y) proceeds from the sale of such Property) pursuant to the Facility Lease applicable to such Property, minus (b) all expenses paid by a Loan Party and not reimbursed by a Person that is not a Loan Party (excluding interest but including an appropriate accrual for property taxes and insurance) related to the ownership, operation or maintenance of such Property, including but not limited to property taxes, assessments and the like, insurance, utilities, payroll costs, maintenance, repair and landscaping expenses, marketing expenses, general and administrative expenses (including an appropriate allocation for legal, accounting, advertising, marketing and other expenses incurred in connection with such Property, but specifically excluding general overhead expenses of the Company and its Subsidiaries and all property management fees).
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“Non-Extension Notice Date” has the meaning specified in Section 2.03(b)(iii).
“Non-Recourse Indebtedness” of a Person means any Indebtedness of such Person, the recourse for which is limited to the asset or assets securing such Indebtedness (and, if applicable, in the event such Person owns no assets other than real estate that secures such Indebtedness and assets incident to ownership of such real estate (e.g., personal property) and has no other Indebtedness, to such Person and/or such Person’s Equity Interests), other than in respect of environmental liabilities, fraud, misrepresentation and other similar matters.
“Notes” means, collectively, the Revolving Notes, the Term Notes and any promissory notes made by the Borrowers evidencing any Incremental Term Loans in a form agreed between the Borrowers and the Administrative Agent, as the context may require, and “Note” means any of them individually.
“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, without limiting the foregoing, the Obligations of any Guarantor Party shall exclude any Excluded Swap Obligations with respect to such Guarantor Party.
“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, documentary intangible, recording, filing or similar taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other 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 or Section 10.13).
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“Outstanding Amount” means (a) with respect to Committed Revolving Loans and Committed Term Loans on any date, the Dollar Equivalent of the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Committed Revolving Loans and Committed Term Loans, as the case may be, occurring on such date; and (b) with respect to any L/C Obligations on any date, the Dollar Equivalent of the aggregate outstanding 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 or on behalf of the Borrowers of Unreimbursed Amounts or any refinancings thereof.
“Overnight Rate” means, for any day, (a) with respect to any amount denominated in Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the Administrative Agent or the L/C Issuer, as the case may be, in accordance with banking industry rules on interbank compensation, and (b) with respect to any amount denominated in Canadian Dollars, an overnight rate determined by the Administrative Agent or the L/C Issuer, as the case may be, in accordance with banking industry rules on interbank compensation.
“Parent Guarantor” means Janus Living, Inc., a Maryland corporation.
“Parent Subsidiary Guarantor” has the meaning specified in Section 6.15(a).
“Participant” has the meaning specified in Section 10.06(d).
“Participant Register” has the meaning specified in Section 10.06(d).
“Patriot Act” has the meaning specified in Section 10.17.
“PBGC” means the Pension Benefit Guaranty Corporation.
“Pension Plan” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by a Loan Party or any ERISA Affiliate or to which a Loan Party or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five plan years.
“Permitted Specified Liens” means Liens permitted under Section 7.01(c) – (h), (j) - (m) and (o) – (q).
“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” (as such term is defined in Section 3(3) of ERISA) established by a Loan Party or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.
“Platform” has the meaning specified in Section 6.02.
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“Pro Forma Basis” means, for purposes of determining any financial covenant hereunder, that the subject transaction shall be deemed to have occurred as of the first day of the period of four (4) consecutive fiscal quarters ending as of the end of the most recent fiscal quarter for which annual or quarterly financial statements shall have been delivered in accordance with the provisions of this Agreement. Further, for purposes of making calculations on a “Pro Forma Basis” hereunder, (a) in the case of a Disposition, (i) income statement items (whether positive or negative) attributable to the property, entities or business units that are the subject of such Disposition shall be excluded to the extent relating to any period prior to the date of the subject transaction, and (ii) Indebtedness paid or retired in connection with the subject transaction shall be deemed to have been paid and retired as of the first day of the applicable period; (b) in the case of an acquisition, development or redevelopment, (i) income statement items (whether positive or negative) attributable to the property, entities or business units that are the subject of such acquisition, development or redevelopment shall be included to the extent relating to any period prior to the date of the subject transaction, and (ii) Indebtedness incurred in connection with the subject transaction shall be deemed to have been incurred as of the first day of the applicable period (and interest expense shall be imputed for the applicable period utilizing the actual interest rates thereunder or, if actual rates are not ascertainable, assuming prevailing interest rates hereunder) and (c) in the case of the issuance or exercise of Equity Interests, Indebtedness paid or retired in connection therewith shall be deemed to have been paid and retired as of the first day of the applicable period.
“Pro Rata Share” means (a) with respect to the EBITDA, Net Income, Interest Expense, Gross Asset Value and Unencumbered Asset Value of each Joint Venture, the Company’s direct or indirect percentage ownership interest in such Joint Venture and (b) with respect to the Indebtedness of each Joint Venture (i) if the Indebtedness is recourse to the Parent Guarantor, the Company or any of their respective Subsidiaries, the amount of such Indebtedness that is recourse to the Parent Guarantor, the Company or such Subsidiary and (ii) if the Indebtedness is not recourse to the Parent Guarantor, the Company or any of their respective Subsidiaries, the Company’s percentage ownership interest in such Joint Venture.
“Property” means a parcel (or group of related parcels) of real property owned or leased (in whole or in part) and developed (or to be developed) by (a) the Company, (b) prior to the Investment Grade Election Effective Date, any Guarantor Party and (c) on or after the Investment Grade Election Effective Date, any Subsidiary of the Company.
“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 6.02.
“QFC Credit Support” has the meaning specified in Section 10.24.
“Qualified ECP Guarantor” means, at any time, each Loan Party with total assets exceeding $10,000,000 or that qualifies at such time as an “eligible contract participant” under the Commodity Exchange Act and can cause another Person to qualify as an “eligible contract participant” at such time under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
“Rate Determination Date” means, with respect to any Interest Period, two (2) Business Days prior to the commencement of such Interest Period (or such other day as is generally treated as the rate fixing day by market practice in such interbank market, as reasonably determined by the Administrative Agent; provided that, to the extent such market practice is not administratively feasible for the Administrative Agent, then “Rate Determination Date” means such other day as otherwise reasonably determined by the Administrative Agent).
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“Recipient” means the Administrative Agent, any Lender and the L/C Issuer, as applicable.
“Register” has the meaning specified in Section 10.06(c).
“REIT” means a real estate investment trust as defined in Sections 856-860 of the Code.
“Related Indemnified Party” of an Indemnitee means (a) any trustees, members, administrators, managers, partners, Controlling Person or Controlled Affiliate of such Indemnitee, (b) the respective directors, officers or employees of such Indemnitee or any of its Controlling Persons or Controlled Affiliates and (c) the respective advisors, attorneys, accountants, agents and representatives of such Indemnitee or any of its Controlling Persons or Controlled Affiliates, in the case of this clause (c), acting on behalf of, or at the express instructions of, such Indemnitee, Controlling Person or such Controlled Affiliate.
“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.
“Relevant Rate” means with respect to any Credit Extension denominated in (a) Dollars, initially, SOFR and (b) Canadian Dollars, the Term CORRA Rate, as applicable, and, in each case, if such rate is replaced pursuant to Section 3.03(b) or (c), any replacement rate in respect thereof.
“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.
“Request for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation of Committed Revolving Loans or Committed Term Loans, a Committed Loan Notice and (b) with respect to an L/C Credit Extension, a Letter of Credit Application.
“Required Class Lenders” means, at any time with respect to any Class of Loans (or any Class of commitments to make Loans), Lenders having Total Credit Exposures with respect to such Class representing more than 50% of the Total Credit Exposures of all Lenders of such Class. The Total Credit Exposure of any Defaulting Lender with respect to such Class shall be disregarded in determining Required Class Lenders at any time.
“Required Lenders” means, as of any date of determination, Lenders having more than 50% of the sum of (a) the Total Outstandings (with the aggregate amount of each Revolving Lender’s risk participation and funded participation in L/C Obligations being deemed “held” by such Revolving Lender for purposes of this definition) and (b) the aggregate unused Commitments; provided that (i) any Revolving Commitment of, and the portion of the Total Revolving Outstandings (other than risk participations in Letters of Credit, which risk participations shall be deemed to be held by the applicable L/C Issuer in its capacity as a Revolving Lender for purposes of making a determination of Required Lenders) held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders and (ii) the portion of the Term Facility held by any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.
“Required Revolving Lenders” means, as of any date of determination, (a) Revolving Lenders having more than 50% of the Aggregate Revolving Commitments or (b) if the Revolving Commitment of each Revolving Lender to make Revolving Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02, Revolving Lenders holding in the aggregate more than 50% of the Total Revolving Outstandings (with the aggregate amount of each Revolving Lender’s risk participation and funded participation in L/C Obligations being deemed “held” by such Revolving Lender for purposes of this definition); provided that any Revolving Commitment of, and the portion of the Total Revolving Outstandings (other than risk participations in Letters of Credit, which risk participations shall be deemed to be held by the applicable L/C Issuer in its capacity as a Revolving Lender for purposes of making a determination of Required Revolving Lenders) held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Revolving Lenders.
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“Required Term Lenders” means, as of any date of determination, Term Lenders holding more than 50% of the sum of the (a) Outstanding Amount of Term Loans and (b) the aggregate unused Term Commitments on such date; provided that the portion of the Term Facility held by any Defaulting Lender shall be excluded for purposes of making a determination of Required Term Lenders.
“Rescindable Amount” has the meaning specified in Section 2.13(b)(ii).
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” means the chief executive officer, president, chief financial officer, each executive vice president and senior vice president, and the treasurer of any Loan Party, and solely for purposes of the delivery of incumbency certificates pursuant to Section 4.01, the secretary or any assistant secretary of a Loan Party or any entity authorized to act on behalf of such Loan Party, and, solely for purposes of notices given pursuant to Article II, any other officer or employee of a Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer or employee of such Loan Party designated in or pursuant to an agreement between such Loan Party and the Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of the applicable Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
“Restricted Payment” means any payment (whether in cash, securities or other property) by the Parent Guarantor, the Company or any of their respective Subsidiaries, including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any of the Parent Guarantor’s or Company’s capital stock or other Equity Interest, or on account of any return of capital to the Parent Guarantor’s or the Company’s stockholders, partners or members (or the equivalent Person thereof); provided that dividends to the extent in the form of Equity Interests shall not constitute Restricted Payments.
“Revaluation Date” means (a) with respect to any Loan, each of the following: (i) each date of a Borrowing of an Alternative Currency Term Rate Loan, (ii) each date of a continuation of an Alternative Currency Term Rate Loan pursuant to Section 2.02, and (iii) such additional dates as the Administrative Agent shall determine or the Required Lenders shall require; and (b) with respect to any Letter of Credit, each of the following: (i) each date of issuance, amendment and/or extension of a Letter of Credit denominated in Canadian Dollars, (ii) each date of any payment by the L/C Issuer under any Letter of Credit denominated in Canadian Dollars, and (iii) such additional dates as the Administrative Agent or the L/C Issuer shall determine or the Required Revolving Lenders shall require.
“Revolving Commitment” means, as to each Revolving Lender, its obligation to (a) make Committed Revolving Loans to the Borrowers pursuant to Section 2.01(a) and (b) purchase participations in L/C Obligations, in an aggregate principal amount at any one time outstanding the Dollar Equivalent of which does not exceed the Dollar amount set forth opposite such Lender’s name in the column entitled “Revolving Commitment” on Schedule 2.01 or in the Assignment and Assumption or the New Lender Joinder Agreement 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.
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“Revolving Credit Exposure” means, as to any Revolving Lender at any time, the aggregate principal amount at such time of its outstanding Revolving Loans and such Lender’s participation in L/C Obligations at such time.
“Revolving Facility” means, at any time, the aggregate amount of the Revolving Lenders’ Revolving Commitments at such time.
“Revolving Lender” means a Lender with a Revolving Commitment or an outstanding Committed Revolving Loan and, as the context requires, includes the L/C Issuer.
“Revolving Loan” means any extension of credit under the Revolving Facility in the form of a loan by a Revolving Lender to the applicable Borrower under Article II.
“Revolving Maturity Date” means March 22, 2030 subject to extension in accordance with Section 2.15.
“Revolving Note” means a promissory note made by the Borrowers in favor of a Revolving Lender evidencing Revolving Loans made by such Lender, substantially in the form of Exhibit B-1.
“S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of S&P Global Inc., and any successor thereto.
“Same Day Funds” means (a) with respect to disbursements and payments in Dollars, immediately available funds, and (b) with respect to disbursements and payments in Canadian Dollars, same day or other funds as may be determined by the Administrative Agent or the L/C Issuer, as the case may be, to be customary in the place of disbursement or payment for the settlement of international banking transactions in Canadian Dollars.
“Sanction(s)” means any international economic or financial sanctions, trade embargoes or similar restrictions, administered or enforced by the United States federal government (including, without limitation, OFAC), the Canadian federal government, the United Nations Security Council, the European Union, His Majesty’s Treasury of the United Kingdom (“HMT”) or other relevant sanctions authority with jurisdiction over any Loan Party.
“Scheduled Principal Payment” means, for any period, (a) all regularly scheduled principal payments during such period by the Parent Guarantor and its Subsidiaries with respect to Indebtedness of the Parent Guarantor and its Subsidiaries (other than payments due at final maturity of any tranche of Indebtedness) and (b) without duplication, the Company’s Pro Rata Share of all regularly scheduled principal payments during such period with respect to the Indebtedness (other than payments due at final maturity of any tranche of Indebtedness) of each Material Joint Venture. For purposes of determining Scheduled Principal Payments, Indebtedness shall not include accounts payable, intracompany debt, dividends and distributions declared but not payable, security deposits, accrued liabilities or prepaid rent, each as defined in accordance with GAAP.
“Scheduled Unavailability Date” has the meaning specified in Section 3.03(c).
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“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“Secured Debt Ratio” means, on the last day of any fiscal quarter, the ratio of (a) Enterprise Secured Debt outstanding on such date to (b) Enterprise Gross Asset Value as of such date. Notwithstanding anything to the contrary contained herein, for the purposes of this ratio, the aggregate amount of all unrestricted cash and cash equivalents on such date deducted from Enterprise Secured Debt pursuant to the definition of “Enterprise Total Indebtedness” shall exclude the aggregate amount of all unrestricted cash and cash equivalents deducted from Enterprise Unsecured Debt pursuant to the definition of “Enterprise Total Indebtedness” for the purpose of determining the Unsecured Leverage Ratio as of such date.
“Senior Managing Agents” means PNC Bank, National Association, Mizuho Bank, LTD., Crédit Agricole Corporate and Investment Bank, KeyBank National Association, Truist Bank, BNP Paribas, TD Bank, N.A. and The Bank of Nova Scotia, in their capacities as Senior Managing Agents.
“Significant Acquisition” means the acquisition (in one or a series of related transactions) of all or substantially all of the assets or Equity Interests of a Person or any division, line of business or business unit of a Person for an aggregate consideration in excess of ten percent (10%) of Enterprise Gross Asset Value as of the last day of the most recently completed fiscal quarter in respect of which the Company shall have delivered (or be required to deliver) financial statements under Section 6.01(a) or (b).
“SOFR” means, with respect to any applicable determination date, the Secured Overnight Financing Rate published on the second U.S. Government Securities Business Day preceding such date by the SOFR Administrator (or a successor administrator of such rate) on the Federal Reserve Bank of New York’s website (or any successor source); provided however that, with respect to any Daily SOFR Loan, if such determination date is not a U.S. Government Securities Business Day, then SOFR means such rate that applied on the first U.S. Government Securities Business Day immediately prior thereto.
“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 that is satisfactory to the Administrative Agent.
“SOFR Scheduled Unavailability Date” has the meaning specified in Section 3.03(b).
“SOFR Successor Rate” has the meaning specified in Section 3.03(b).
“Specified Default” means an Event of Default arising under Section 8.01(a) or 8.01(f).
“Spot Rate” for a currency means the rate determined by the Administrative Agent or the L/C Issuer, as applicable, to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two (2) Business Days prior to the date as of which the foreign exchange computation is made; provided that the Administrative Agent or the L/C Issuer may obtain such spot rate from another financial institution designated by the Administrative Agent or the L/C Issuer if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency; provided, further, that the L/C Issuer may use such spot rate quoted on the date as of which the foreign exchange computation is made in the case of any Letter of Credit denominated in Canadian Dollars.
“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity the accounts of which are consolidated with the accounts of such Person in such Person’s consolidated financial statements prepared in accordance with GAAP. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of a Loan Party.
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“Subsidiary Guarantor” means each Unsecured Debt Subsidiary and, prior to the Investment Grade Election Effective Date, each other Covered Unencumbered Pool Entity.
“Subsidiary Guaranty Documents” means, with respect to any Subsidiary that is required to become a Guarantor pursuant to Section 6.15, the following documents: (x) an accession agreement or other counterpart to the Guaranty pursuant to Article XII as the Administrative Agent shall reasonably deem appropriate for such purpose and (y) the items with respect to such Subsidiary that would have been delivered under Sections 4.01(a)(iii) through (v) and Section 4.01(c) if such Subsidiary had been a Guarantor Party on the Closing Date, each in form and substance reasonably satisfactory to the Administrative Agent.
“Successor Rate” has the meaning specified in Section 3.03(c).
“Supported QFC” has the meaning specified in Section 10.24.
“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, cap 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 (as defined below), 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 Party, 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) any similar off-balance sheet financing product that is considered borrowed money indebtedness for tax purposes but classified as an operating lease under GAAP.
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“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 CORRA” has the meaning specified in the definition of “Alternative Currency Term Rate.”
“Term CORRA Rate” has the meaning specified in the definition of “Alternative Currency Term Rate.”
“Term SOFR*”* means:
(a) for any Interest Period with respect to a Term SOFR Loan, the rate per annum equal to the Term SOFR Screen Rate two 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. 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 for which such rate was published; 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 month commencing that day; provided that, if the rate is not published prior to 11:00 a.m. 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 for which such rate was published;
provided that, if Term SOFR determined in accordance with the provisions of either clause (a) or (b) above would otherwise be less than 0.00%, then Term SOFR shall be deemed 0.00% for purposes of this Agreement.
“Term Borrowing” means a borrowing consisting of simultaneous Term Loans of the same Type, and, in the case of Term SOFR Loans, having the same Interest Period made by each of the Term Lenders pursuant to Section 2.01(b).
“Term Commitment” means, as to each Term Lender, its obligation to make Term Loans to the Company 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 Lender’s name on Schedule 2.01 under the caption “Term Commitment” or opposite such caption in the Assignment and Assumption or the New Lender Joinder Agreement pursuant to which such Term Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The Term Commitment as of the Closing Date is $100,000,000.
“Term Facility” means, at any time, (a) at any time during the Availability Period in respect of the Term Facility, the sum of (i) the aggregate amount of the Term Commitments at such time and (ii) the aggregate principal amount of the Term Loans of all Term Lenders outstanding at such time and (b) thereafter, the aggregate principal amount of the Term Loans of all Term Lenders outstanding at such time.
“Term Lender” means (a) at any time during the Availability Period in respect of the Term Facility, any Lender with a Term Commitment or an outstanding Term Loan at such time and (b) at any time thereafter, any Lender with an outstanding Term Loan at such time.
“Term Loan” means an advance under the Term Facility by a Term Lender to the Company under Article II
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“Term Loan Exposure” means, as to any Lender at any time, the aggregate Outstanding Amount at such time of its Term Loans; provided that at any time prior to the end of the Availability Period with respect to the Term Facility, the Term Loan Exposure of any Lender shall include such Lender’s unused Term Commitment.
“Term Loan Maturity Date” means March 21, 2031.
“Term Note” means a promissory note made by the Company in favor of a Term Lender evidencing Term Loans made by such Term Lender, substantially in the form of Exhibit B-2.
“Term SOFR Loan” means a Loan that bears interest at a rate based on clause (a) of the definition of “Term SOFR.”
“Term SOFR Screen Rate” means the forward-looking SOFR term rate administered by CME (or any successor administrator satisfactory to the Administrative Agent) and published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time).
“Threshold Amount” means (a) other than with respect to Material Non-Recourse Indebtedness, (i) prior to the Investment Grade Election Effective Date, $50,000,000 and (ii) on and after the Investment Grade Election Effective Date, $100,000,000, and (b) with respect to Material Non-Recourse Indebtedness, $100,000,000.
“Ticking Fee” has the meaning specified in Section 2.10(c).
“Total Credit Exposure” means, as to any Lender at any time, (a) in respect of the Revolving Facility, the unused Revolving Commitments and Revolving Credit Exposure of such Lender at such time and (b) in respect of the Term Facility, the Term Loan Exposure of such Lender at such time.
“Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C Obligations.
“Total Revolving Outstandings” means the aggregate Outstanding Amount of all Committed Revolving Loans and all L/C Obligations.
“Treasury Management Agreement” means any treasury, depository or cash management arrangements, services or products, including, without limitation, overdraft services and automated clearinghouse transfers of funds.
“Treasury Management Lender” means any Person that, at the time it enters into a Treasury Management Agreement, is a Lender or an Affiliate of a Lender, in its capacity as a party to such Treasury Management Agreement.
“Type” means, (a) with respect to a Committed Revolving Loan, its character as a Base Rate Loan, a Daily SOFR Loan, a Term SOFR Loan or an Alternative Currency Term Rate Loan and (b) with respect to a Committed Term Loan, its character as a Base Rate Loan, a Daily SOFR Loan or a Term SOFR 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.
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“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unencumbered Asset Value” means, for a Person and its Subsidiaries on a consolidated basis, as of any date of determination, the sum of (a) the aggregate net book value, as determined in accordance with GAAP, of all real property of a Person (such Person, an “Unencumbered Pool Entity”) that is not subject to a Mortgage Lien plus (b) all accumulated depreciation and amortization with respect to such real properties plus (c) unrestricted cash and cash equivalents of such Person plus (d) the sum of (i) unencumbered mezzanine and mortgage loan receivables (at the value reflected in the consolidated financial statements of the Parent Guarantor, in accordance with GAAP, as of such date, including the effect of any impairment charges) and (ii) unencumbered marketable securities (at the value reflected in the consolidated financial statements of the Parent Guarantor, in accordance with GAAP, as of such date, including the effect of any impairment charges); provided that the items described in this clause (ii) and in the preceding clause (i) shall not be taken into account to the extent that the amounts of such items exceed, in the aggregate, 20% of Unencumbered Asset Value. For purposes of this definition, (1) (x) with respect to the Parent Guarantor and its Subsidiaries, the phrase “not subject to a Mortgage Lien” shall include that all Equity Interests of an Unencumbered Pool Entity, and all Equity Interests of each Subsidiary of the Parent Guarantor that owns, directly or indirectly, any Equity Interests of any Unencumbered Pool Entity, shall be free of any Liens (other than Permitted Specified Liens and any lien securing Intercompany Indebtedness) and (y) “Mortgage Lien” shall not include any lien securing Intercompany Indebtedness, and (2) for the avoidance of doubt, the value of any asset or property subject to Liens on assets of the Parent Guarantor, the Company or any of their respective Subsidiaries securing obligations under Swap Contracts shall not be included in the calculation of Unencumbered Asset Value.
“Unencumbered NOI” means, for any period, the Net Operating Income from all Property included in Enterprise Unencumbered Asset Value for such period.
“Unencumbered Pool Entity” has the meaning specified in the definition of “Unencumbered Asset Value”.
“Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.
“United States” and “U.S.” mean the United States of America.
“Unreimbursed Amount” has the meaning specified in Section 2.03(b)(v).
“Unsecured Debt Subsidiary” means any wholly-owned Subsidiary of the Company that is a borrower or a guarantor, or otherwise has a payment obligation in respect of, any Enterprise Unsecured Debt (other than (a) obligations arising under the Loan Documents, or (b) Intercompany Indebtedness); provided, however, that any non-wholly-owned Subsidiary of the Company that is a borrower or a guarantor, or otherwise has a payment obligation in respect of, any Enterprise Unsecured Debt (other than contingent obligations in respect of any purchase of the Equity Interests of such Subsidiary owned by any holder of any minority interest in such Subsidiary), shall be an Unsecured Debt Subsidiary.
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“Unsecured Interest Coverage Ratio” means, on the last day of any fiscal quarter, the ratio of (a) Unencumbered NOI for the twelve-month period ending on such date to (b) Enterprise Unsecured Interest Expense for the twelve-month period ending on such date.
“Unsecured Leverage Ratio” means, on the last day of any fiscal quarter, the ratio of (a) Enterprise Unsecured Debt outstanding on such date to (b) Enterprise Unencumbered Asset Value as of such date. Notwithstanding anything to the contrary contained herein, for the purposes of this ratio, the aggregate amount of all unrestricted cash and cash equivalents on such date deducted from Enterprise Unsecured Debt pursuant to the definition of “Enterprise Total Indebtedness” shall exclude the aggregate amount of all unrestricted cash and cash equivalents deducted from Enterprise Secured Debt pursuant to the definition of “Enterprise Total Indebtedness” for the purpose of determining the Secured Debt Ratio as of such date.
“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.
“U.S. Special Resolution Regimes” has the meaning specified in Section 10.24.
“Wells Fargo” means Wells Fargo Bank, National Association and its successors.
“Wholly-Owned Subsidiary” means any wholly-owned Subsidiary of the Parent Guarantor or the Company, as applicable, in each case, that is not a special purpose entity.
“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.
1.02 OtherInterpretive 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, restated, supplemented or otherwise modified (subject to any restrictions on such amendments, restatements, 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, rule or regulation shall, unless otherwise specified, refer to such law, rule 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.
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(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, 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, 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).
(e) For the avoidance of doubt, the parties intend that the term “Enterprise” refer to financial calculations that cover (i) the Group and (ii) the Company’s Pro Rata Share of Material Joint Ventures.
1.03 AccountingTerms.
(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 Combined 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 Parent Guarantor and its Subsidiaries shall be deemed to be carried in accordance with GAAP, excluding the effects of FASB ASC 825 on financial liabilities. Notwithstanding anything to the contrary in the Loan Documents, and notwithstanding any accounting change after January 1, 2019 that would require lease obligations (whether such lease obligations are entered into before or after such date) that would be treated as operating leases to be classified and accounted for as Financing Leases or otherwise reflected on the consolidated balance sheet of the Parent Guarantor and its Subsidiaries, for the purposes of determining compliance with any covenant contained herein, such obligations shall be treated in the same manner as operating leases are treated as of such date without giving effect to any such changes in accounting and shall not constitute Indebtedness or a Financing Leases of the Parent Guarantor or any of its Subsidiaries as a result of such changes in accounting.
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(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 the Company or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Company shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders and the Company); 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) the Company shall provide to the Administrative Agent financial statements and other documents required under this Agreement or as reasonably requested in writing hereunder by the Administrative Agent setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.
1.04 Rounding.
Any financial ratios required to be maintained by the Parent Guarantor 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 ExchangeRates; Currency Equivalents. (a) The Administrative Agent or the L/C Issuer, as applicable, shall determine the Spot Rates as of each Revaluation Date to be used for calculating Dollar Equivalents and/or Alternative Currency Equivalents of Credit Extensions and Outstanding Amounts denominated in Canadian Dollars or Dollars. Such Spot Rates shall become effective as of such Revaluation Date and shall be the Spot Rates employed in converting any amounts between the applicable currencies until the next Revaluation Date to occur. Except for purposes of financial statements delivered by Loan Parties hereunder or calculating financial covenants hereunder or except as otherwise provided herein, the applicable amount of any currency (other than Dollars) for purposes of the Loan Documents shall be its Dollar Equivalent as so determined by the Administrative Agent or the L/C Issuer, as applicable.
(a) Wherever in this Agreement in connection with a Committed Borrowing, conversion, continuation or prepayment of an Alternative Currency Term Rate Loan or the issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such Committed Borrowing, Loan or Letter of Credit is denominated in Canadian Dollars, such amount shall be the relevant Alternative Currency Equivalent of such Dollar amount (rounded to the nearest unit of Canadian Dollars, with 0.5 of a unit being rounded upward), as determined by the Administrative Agent or the L/C Issuer, as the case may be.
1.06 [RESERVED].
1.07 [RESERVED].
1.08 InterestRates; Licensing.
(a) Except as specifically set forth herein, the Administrative Agent does not warrant, nor accept responsibility, nor shall the 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. The 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 the Company. The 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 any Loan Party, 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 such rate (or component thereof) provided by any such information source or service.
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(b) By agreeing to make Loans under this Agreement, each Lender is confirming it has all licenses, permits and approvals necessary for use of the reference rates referred to herein and it will do all things reasonably necessary to comply, preserve, renew and keep in full force and effect such licenses, permits and approvals.
1.09 Timesof Day.
Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).
1.10 Letterof Credit Amounts.
Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of 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 at any given time shall be deemed to be the Dollar Equivalent of the maximum stated amount of such Letter of Credit after giving effect to all increases that are scheduled to occur at any time thereafter (notwithstanding that such maximum stated amount is not in effect at such time).
Article II
TheCommitments and Credit Extensions
2.01 CommittedLoans.
(a) Committed Revolving Loans. Subject to the terms and conditions set forth herein, each Revolving Lender severally agrees to make revolving loans (each such loan, a “Committed Revolving Loan”) to the Borrowers in Dollars or in Canadian Dollars from time to time, on any Business Day during the Availability Period for the Revolving Facility, in an aggregate amount not to exceed at any time outstanding the amount of such Revolving Lender’s Revolving Commitment; provided, however, that after giving effect to any Committed Borrowing, (i) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, (ii) the aggregate Outstanding Amount of the Committed Revolving Loans of any Revolving Lender, plus such Revolving Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations shall not exceed such Revolving Lender’s Revolving Commitment and (iii) the aggregate Outstanding Amount of all Revolving Loans denominated in Canadian Dollars shall not exceed the Alternative Currency Sublimit. Within the limits of each Revolving Lender’s Revolving Commitment, and subject to the other terms and conditions hereof, the Borrowers may borrow under this Section 2.01, prepay under Section 2.06, and reborrow under this Section 2.01. Committed Revolving Loans may be Base Rate Loans, Daily SOFR Loans, Term SOFR Loans or Alternative Currency Term Rate Loans, as further provided herein.
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(b) Committed Term Loans. Subject to the terms and conditions set forth herein, each Term Lender severally agrees to make up to five (5) term loans (each such loan, a “Committed Term Loan”) to the Company in Dollars from time to time, on any Business Day during the Availability Period for the Term Facility, in an aggregate amount not to exceed such Term Lender’s Applicable Percentage of the Term Facility. Each Term Borrowing shall consist of Term Loans made simultaneously by the Term Lenders in accordance with their respective Applicable Percentage of the Term Facility. Amounts borrowed under this Section 2.01(b) and repaid or prepaid may not be reborrowed. Term Loans may be Base Rate Loans, Daily SOFR Loans or Term SOFR Loans, as further provided herein.
2.02 Borrowings,Conversions and Continuations of Committed Loans.
(a) Each Committed Borrowing, each conversion of Committed Revolving Loans or Committed Term Loans from one Type to another Type, and each continuation of Term SOFR Loans and Alternative Currency Term Rate Loans shall be made upon the applicable Borrower’s irrevocable notice to the Administrative Agent, which may be given by (A) telephone, or (B) a Committed Loan Notice; provided that any telephonic notice must be confirmed immediately by delivery to the Administrative Agent of a Committed Loan Notice. Each such Committed Loan Notice must be received by the Administrative Agent not later than 12:00 Noon (i) two (2) Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Term SOFR Loans or of any conversion of Term SOFR Loans to Base Rate Committed Loans, (ii) on the requested date of any Borrowing of, or conversion to Daily SOFR Loans or of any conversion of Daily SOFR Loans to Base Rate Committed Loans, (iii) four (4) Business Days prior to the requested date of any Borrowing or continuation of Alternative Currency Term Rate Loans, and (iv) on the requested date of any Borrowing of Base Rate Committed Loans. Each Borrowing of or conversion to Term SOFR Loans, Daily SOFR Loans and Alternative Currency Term Rate Loans, or continuation of Term SOFR Loans and Alternative Currency Term Rate Loans, shall be in a principal amount the Dollar Equivalent of which is $1,000,000 or a whole multiple of $100,000 in excess thereof. Except as provided in Section 2.03(b), each Borrowing of or conversion to Base Rate Committed Loans shall be in a principal amount the Dollar Equivalent of which is $500,000 or a whole multiple of $100,000 in excess thereof.
Each Committed Loan Notice (whether telephonic or written) shall specify (i) whether the applicable Borrower is requesting a Committed Borrowing, a conversion of Committed Revolving Loans or Committed Term Loans from one Type to another Type, or a continuation of Term SOFR Loans or Alternative Currency Term 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 Committed Loans to be borrowed, converted or continued, (iv) the Type and Class of Committed Loans to be borrowed or to which existing Committed Loans are to be converted, (v) if applicable, the duration of the Interest Period with respect thereto (vi) the currency of the Committed Loans to be borrowed or continued (which currency shall be Dollars for any Committed Term Loan) and (vii) if applicable, with respect to any Committed Revolving Loan, the Designated Borrower. If the applicable Borrower fails to specify a Type of Committed Loan in a Committed Loan Notice or if such Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Committed Loans shall be made as, or converted to, Base Rate Loans; provided, however, that, in the case of a failure to timely request a continuation of Term SOFR Loans or Alternative Currency Term Rate Loans, such Loans shall be continued as a Term SOFR Loan or an Alternative Currency Term Rate Loan in its original currency, as applicable, with an Interest Period of one month (unless an Event of Default exists and is continuing at such time and the Administrative Agent has notified the Company that the Required Lenders have determined that such a continuation as Term SOFR Loans or Alternative Currency Term Rate Loans, as applicable, is not appropriate in accordance with Section 2.02(c)). Any such automatic conversion to Base Rate Loans or Term SOFR Loans or Alternative Currency Term Rate Loans with an Interest Period of one month shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Term SOFR Loans or Alternative Currency Term Rate Loans. If the applicable Borrower requests a Borrowing of, conversion to, or continuation of Term SOFR Loans or Alternative Currency Term 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 month. Except as provided pursuant to Section 3.03, no Committed Revolving Loan may be converted into or continued as a Committed Revolving Loan denominated in a different currency, but instead must be prepaid in the original currency of such Committed Revolving Loan and reborrowed in the other currency. For the avoidance of doubt, Base Rate Loans shall automatically continue as Base Rate Loans and Daily SOFR Loans shall automatically continue as Daily SOFR Loans unless and until such Loans are converted to Term SOFR Loans pursuant to this Section 2.02 or are repaid in accordance with this Agreement, and no Committed Loan Notice shall be required in connection with such continuation.
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(b) Following receipt of a Committed Loan Notice requesting a Committed Borrowing denominated in Dollars or in Canadian Dollars, the Administrative Agent shall promptly notify each applicable Lender of the amount (and, with respect to Committed Revolving Loans, currency) of its Applicable Percentage of the applicable Committed Loans. If no timely notice of a conversion or continuation is provided by the applicable Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans or continuation of Committed Revolving Loans denominated in Canadian Dollars, in each case as described in Section 2.02(a).
Each applicable Lender shall make the amount of its Loan available to the Administrative Agent in Same Day Funds for the applicable currency at the Administrative Agent’s Office not later than 1:00 p.m., in the case of any Committed Loan denominated in Dollars, and not later than the Applicable Time specified by the Administrative Agent in the case of any Committed Revolving Loan in Canadian Dollars, in each case on the Business Day specified in the applicable Committed Loan Notice. In any event, a Revolving Lender may cause any foreign or domestic branch or Affiliate to fund or make the amount of its Revolving Loan available in accordance with the foregoing provisions. Upon satisfaction or waiver of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01), the Administrative Agent shall make all funds so received available to the applicable Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of such 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) the Administrative Agent by such Borrower; provided, however, that if, on the date the Committed Loan Notice with respect to a Committed Revolving Borrowing denominated in Dollars is given by such Borrower, there are L/C Borrowings outstanding, then the proceeds of such Borrowing, first, shall be applied to the payment in full of any such L/C Borrowings, and, second, shall be made available to such Borrower as provided above.
(c) Except as otherwise provided herein, Term SOFR Loans and Alternative Currency Term Rate Loans may be continued or converted only on the last day of an Interest Period for the applicable Term SOFR Loan or Alternative Currency Term Rate Loan. During the existence of an Event of Default that is continuing, (i) no Loans may be requested as, converted to or continued as Term SOFR Loans, Daily SOFR Loans or Alternative Currency Term Rate Loans if the Administrative Agent has notified the applicable Borrower that the Required Lenders have determined that such a continuation or conversion is not appropriate, and (ii) the Required Lenders may require that any or all of the then outstanding Alternative Currency Term Rate Loans be prepaid, or redenominated into Base Rate Loans denominated in Dollars in the amount of the Dollar Equivalent thereof, on the last day of the then current Interest Period with respect thereto.
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(d) The Administrative Agent shall promptly notify the applicable Borrower and the Lenders of the interest rate applicable to any Interest Period for Term SOFR Loans and Alternative Currency Term Rate Loans upon determination of such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Company and the Lenders of any change in Bank of America’s prime rate used in determining the Base Rate promptly following the public announcement of such change.
(e) After giving effect to all Committed Revolving Borrowings, all conversions of Committed Revolving Loans from one Type to another Type, and all continuations of Committed Revolving Loans as the same Type, there shall not be more than ten (10) Interest Periods in effect with respect to all Committed Revolving Loans. After giving effect to all Term Borrowings, all conversions of Term Loans from one Type to another Type, and all continuations of Term Loans as the same Type, there shall not be more than five (5) Interest Periods in effect with respect to all Committed Term Loans.
(f) With respect to any Alternative Currency Term Rate, SOFR, Daily SOFR or Term SOFR, the 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, the Administrative Agent shall post each such amendment implementing such Conforming Changes to the Company and the Lenders reasonably promptly after such amendment becomes effective.
2.03 Lettersof Credit.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Revolving Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars or in Canadian Dollars for the account of a Borrower or its Subsidiaries, and to amend Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor drawings under the Letters of Credit; and (B) the Revolving Lenders severally agree to participate in Letters of Credit issued for the account of a Borrower or its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, (y) the Outstanding Amount of the Committed Revolving Loans of any Revolving Lender, plus such Revolving Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations shall not exceed such Revolving Lender’s Revolving Commitment and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit; provided, further, that unless the applicable L/C Issuer shall otherwise consent, no L/C Issuer shall be obligated to issue Letters of Credit hereunder in an aggregate face amount at any time outstanding in excess of an amount equal to the lesser of (i) one-third of the Letter of Credit Sublimit at such time and (ii) the Revolving Commitment of the Revolving Lender acting as such L/C Issuer at such time. Each request by a Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by such Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrowers’ ability to obtain Letters of Credit shall be fully revolving, and accordingly the applicable Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. The Existing Letters of Credit shall be deemed to have been issued hereunder by the issuer thereof, to the extent such issuer is a Revolving Lender, and such issuer shall have the obligation to amend, renew, extend or otherwise modify any such Existing Letter of Credit, subject to terms, conditions and limitations hereunder. From and after the Closing Date, the Existing Letters of Credit shall be subject to and governed by the terms and conditions hereof.
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(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance, unless the Required Revolving Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Revolving Lenders have approved such expiry date; provided that a Letter of Credit may expire up to one year beyond the Letter of Credit Expiration Date so long as the Company Cash Collateralizes 105% of the face amount of such Letter of Credit no later than the Letter of Credit Expiration Date.
(iii) The 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 the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good faith deems material to it (for which the L/C Issuer is not otherwise compensated hereunder);
(B) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $500,000;
(D) except as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is to be denominated in a currency other than Dollars or Canadian Dollars;
(E) the L/C Issuer does not as of the issuance date of such requested Letter of Credit issue Letters of Credit in the requested currency;
(F) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder; or
(G) any Revolving Lender is at such time a Defaulting Lender hereunder, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the L/C Issuer (in its sole discretion) with the Company or such Defaulting Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.18(a)(iv)) with respect to such Defaulting Lender arising from either the Letter of Credit then proposed to be issued or such Letter of Credit and all other L/C Obligations as to which the L/C Issuer has Fronting Exposure, as it may elect in its sole discretion.
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(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Revolving Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the 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 IX included the L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuer.
(b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the applicable Borrower delivered to the L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer. Such Letter of Credit Application must be received by the L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least two (2) Business Days (or such later date and time as the Administrative Agent and the 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. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount and currency thereof, (C) the expiry date thereof, (D) the name and address of the beneficiary thereof, (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the purpose and nature of the requested Letter of Credit and (H) such other matters as the L/C Issuer may reasonably require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as the L/C Issuer may reasonably require. Additionally, the applicable Borrower shall furnish to the L/C Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the L/C Issuer or the Administrative Agent may reasonably require.
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(ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the applicable Borrower and, if not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Unless the L/C Issuer has received written notice from any Revolving Lender, the Administrative Agent or the applicable Borrower, at least one (1) Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Article IV shall not then be satisfied, then, subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the applicable Borrower (or the applicable Subsidiary) or enter into the applicable amendment, as the case may be, in each case in accordance with the L/C Issuer’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Revolving Lender’s Applicable Percentage of the Aggregate Revolving Commitments times the amount of such Letter of Credit.
(iii) If a Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve (12) month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve (12) month period to be agreed upon by such Borrower and the applicable L/C Issuer at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, such Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Revolving Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date (except as set forth in Section 2.03(a)(ii)(B)); provided, however, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that the Required Revolving Lenders have elected not to permit such extension or (2) from the Administrative Agent, any Revolving Lender or the applicable Borrower that one or more of the applicable conditions specified in Section 4.02 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
(iv) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C Issuer will also deliver to the applicable Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.
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(v) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the L/C Issuer shall promptly notify the applicable Borrower and the Administrative Agent thereof. In the case of a Letter of Credit denominated in Canadian Dollars, the applicable Borrower shall reimburse the L/C Issuer in Canadian Dollars, unless (A) the L/C Issuer (at its option) shall have specified in such notice that it will require reimbursement in Dollars, or (B) in the absence of any such requirement for reimbursement in Dollars, the applicable Borrower shall have notified the L/C Issuer promptly following receipt of the notice of drawing that such Borrower will reimburse the L/C Issuer in Dollars. In the case of any such reimbursement in Dollars of a drawing under a Letter of Credit denominated in Canadian Dollars, the L/C Issuer shall notify such Borrower of the Dollar Equivalent of the amount of the drawing promptly following the determination thereof. If a notice of such payment with respect to a Letter of Credit is received by the applicable Borrower (x) on or prior to 11:00 a.m. on the date of any payment by the L/C Issuer under a Letter of Credit to be reimbursed in Dollars, or the Applicable Time on the date of any payment by the L/C Issuer under a Letter of Credit to be reimbursed in Canadian Dollars (each such date, an “Honor Date”), then, not later than 1:00 p.m. on the Honor Date, such Borrower shall reimburse such L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing and in the applicable currency or (y) after 11:00 a.m. or the Applicable Time, as the case may be, on the Honor Date, then, not later than 11:00 a.m. on the first Business Day following the Honor Date, such Borrower shall reimburse the L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing and in the applicable currency. If the applicable Borrower fails to so reimburse the L/C Issuer by such time, the Administrative Agent shall promptly notify each Revolving Lender of the Honor Date, the amount of the unreimbursed drawing (expressed in Dollars in the amount of the Dollar Equivalent thereof in the case of a Letter of Credit denominated in Canadian Dollars) (the “Unreimbursed Amount”), and the amount of such Lender’s Applicable Percentage thereof. In such event, such Borrower shall be deemed to have requested a Committed Revolving Borrowing of Base Rate Committed Loans to be disbursed on the Honor Date 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 Base Rate Committed Loans, but subject to the amount of the unutilized portion of the Aggregate Revolving Commitments and the conditions set forth in Section 4.02 (other than the delivery of a Committed Loan Notice). Any notice given by the L/C Issuer or the Administrative Agent pursuant to this Section 2.03(b)(v) 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.
(vi) Each Revolving Lender shall upon any notice pursuant to Section 2.03(b)(v) make funds available to the Administrative Agent (and the Administrative Agent may apply Cash Collateral that has been provided for such purpose) for the account of the L/C Issuer, in Dollars, at the Administrative Agent’s Office for Dollar-denominated payments in an amount equal to its Applicable Percentage of the Dollar Equivalent of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.03(b)(vii), each Revolving Lender that so makes funds available shall be deemed to have made a Committed Revolving Loan that is a Base Rate Committed Loan to the applicable Borrower in such amount. The Administrative Agent shall remit the funds so received to the L/C Issuer in Dollars and such funds shall be applied to reimburse the L/C Issuer for the applicable draw under the Letter of Credit.
(vii) With respect to any Unreimbursed Amount that is not fully refinanced by a Committed Revolving Borrowing of Base Rate Committed Loans because the conditions set forth in Section 4.02 cannot be satisfied or for any other reason, the applicable Borrower shall be deemed to have incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate. In such event, each Revolving Lender’s payment to the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(b)(vi) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.03.
(viii) Until each Revolving Lender funds its Committed Revolving Loan or L/C Advance pursuant to this Section 2.03(b) to reimburse the applicable L/C Issuer for any amount drawn under any Letter of Credit issued by it, interest in respect of such Lender’s Applicable Percentage of such amount shall be solely for the account of the L/C Issuer.
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(ix) Each Revolving Lender’s obligation to make Committed Revolving Loans or L/C Advances to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(b), shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the L/C Issuer, any Borrower, any Subsidiary or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Revolving Lender’s obligation to make Committed Revolving Loans pursuant to this Section 2.03(b) is subject to the conditions set forth in Section 4.02 (other than delivery by the applicable Borrower of a Committed Loan Notice). No such making of an L/C Advance shall relieve or otherwise impair the obligation of the applicable Borrower to reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer under any Letter of Credit, together with interest as provided herein.
(x) If any Revolving Lender fails to make available to the Administrative Agent for the account of the L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.03(b) by the time specified in Section 2.03(b)(vi), then, without limiting the other provisions of this Agreement, the L/C Issuer shall be entitled to recover from such Lender (acting through the 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 the L/C Issuer at a rate per annum equal to the applicable Overnight Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by the L/C Issuer in connection with the foregoing. If such Revolving Lender pays such amount (with interest and fees as aforesaid), the amount so paid (excluding such interest and fees) shall constitute such Lender’s Committed Revolving Loan included in the relevant Committed Revolving Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A certificate of the L/C Issuer submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this clause (x) shall be conclusive absent manifest error.
(c) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment under any Letter of Credit and has received from any Revolving Lender such Lender’s L/C Advance in respect of such payment in accordance with Section 2.03(b), if the Administrative Agent receives for the account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the applicable Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its Applicable Percentage thereof (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s L/C Advance was outstanding) in Dollars and in the same funds as those received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(b)(v) is required to be returned under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by the L/C Issuer in its discretion), each Revolving Lender shall pay to the Administrative Agent for the account of the L/C Issuer its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the applicable Overnight Rate from time to time in effect. The obligations of the Revolving Lenders under this clause (c)(ii) shall survive the payment in full of the Obligations and the termination of this Agreement.
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(d) Obligations Absolute. The applicable Borrower’s obligation to reimburse the L/C Issuer for each drawing under each Letter of Credit as provided in Section 2.03(b) and to repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff, defense or other right that any 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), the 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 such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein 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) honor of a demand for payment presented electronically even if such Letter of Credit required that demand be in the form of a draft;
(v) any payment made by the 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 or the ISP, as applicable;
(vi) any payment by the L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by the 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;
(vii) any adverse change in the relevant exchange rates or in the availability of Canadian Dollars to any Borrower or any Subsidiary or in the relevant currency markets generally; or
(viii) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Borrower or any Subsidiary.
The applicable 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 such Borrower’s instructions or other irregularity, such Borrower will promptly notify the L/C Issuer. The applicable Borrower shall be conclusively deemed to have waived any such claim against the L/C Issuer and its correspondents unless such notice is given as aforesaid.
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None of the Administrative Agent, the Lenders, the L/C Issuer, or any of their Related Parties or any correspondent, participant or assignee of the L/C Issuer shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit by the applicable 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 the applicable L/C Issuer; provided, however, that anything in such clauses to the contrary notwithstanding, the applicable Borrower may have a claim against the L/C Issuer, and the L/C Issuer may be liable to such Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by such Borrower which such Borrower proves were caused by the L/C Issuer’s willful misconduct or gross negligence as determined by a court of competent jurisdiction in a final and non-appealable judgment or the L/C Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit or the L/C Issuer’s payment under any Letter of Credit without presentation to it of a draft, certificates and/or other documents that substantially comply with the terms and conditions of the Letter of Credit, except where any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms have enjoined or restrained, or purported to enjoin or restrain, such L/C Issuer from making such payment. The parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on the part of the L/C Issuer, or breach in bad faith or material breach of such L/C Issuer’s obligations under this Agreement, in each case as finally determined by a court of competent jurisdiction, the L/C Issuer shall be deemed to have exercised care in each such determination, and that:
(i) the 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;
(ii) the L/C Issuer may accept documents that appear on their face to be in 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 compliance with the terms of such Letter of Credit and without regard to any non-documentary condition in such Letter of Credit;
(iii) the 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 the 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 but subject to the first paragraph hereof, none of the Administrative Agent, the Lenders, the L/C Issuer, or any of their Related Parties shall have any liability or responsibility by reason of (A) 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, (B) the L/C Issuer declining to take-up documents and make payment (1) against documents that are fraudulent, forged, or for other reasons by which that it is entitled not to honor or (2) following a Borrower’s waiver of discrepancies with respect to such documents or request for honor of such documents or (C) the 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 the L/C Issuer.
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(e) Role of L/C Issuer. Each Revolving Lender and the Borrowers agree that, in paying any drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable to any Revolving Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Revolving Lenders or the Required Revolving Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final and non-appealable judgment; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. The applicable Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude such Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. In furtherance and not in limitation of the foregoing, the L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and the L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.
(f) Applicability of ISP; Limitation of Liability. Unless otherwise expressly agreed by the applicable L/C Issuer and the applicable 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 to each standby Letter of Credit. Notwithstanding the foregoing, no L/C Issuer shall be responsible to any Borrower for, and no L/C Issuer’s rights and remedies against any Borrower shall be impaired by, any action or inaction of the 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 the L/C Issuer or the beneficiary is located, the practice stated in the ISP or in the decisions, opinions, practice statements, or official commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade - International Financial Services Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses such law or practice.
(g) Letter of Credit Fees. The Borrowers shall pay to the Administrative Agent for the account of each Revolving Lender in accordance with its Applicable Percentage in Dollars a Letter of Credit fee (the “Letter of Credit Fee”) for each Letter of Credit equal to the Applicable Rate times the Dollar Equivalent of the daily amount available to be drawn under such Letter of Credit; provided, however, any Letter of Credit Fees otherwise payable for the account of a Defaulting Lender with respect to any Letter of Credit as to which such Defaulting Lender has not provided Cash Collateral satisfactory to the L/C Issuer pursuant to Section 2.03(a)(iii) shall be payable, to the maximum extent permitted by applicable Law, to the other Revolving Lenders in accordance with the upward adjustments, if any, in their respective Applicable Percentages allocable to such Letter of Credit pursuant to Section 2.18(a)(iv), with the balance of such fee, if any, retained by the Company, if the Company has provided Cash Collateral in respect of such Defaulting Lender’s Fronting Exposure, or if the Company has not provided Cash Collateral in respect of such Fronting Exposure, payable to the L/C Issuer for its own account. 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 1.10. Letter of Credit Fees shall be (i) computed on a quarterly basis in arrears and (ii) due and payable on the first Business Day after the end of each calendar quarter, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. If there is any change in the Applicable Rate during any quarter, the daily amount available to be drawn under each Letter of Credit shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate 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.
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(h) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The applicable Borrower shall pay directly to the L/C Issuer for its own account, in Dollars, a fronting fee per annum with respect to each Letter of Credit issued by it, equal to the greater of (i) the rate per annum of 12.5 basis points of the face amount of the Letter of Credit, in each case computed on the Dollar Equivalent of the daily amount available to be drawn under such Letter of Credit and (ii) $1,500 per annum. The amount of such fronting fees shall be determined on a quarterly basis in arrears, and due and payable on the first Business Day after the end of each calendar quarter, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of 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 1.10. In addition, the applicable Borrower shall pay directly to the L/C Issuer for its own account, in Dollars, the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of the L/C Issuer relating to letters of credit issued by it as from time to time in effect. Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.
(i) Disbursement Procedures. The L/C Issuer 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. The L/C Issuer shall promptly after such examination notify the Administrative Agent and the applicable Borrower in writing of such demand for payment if the L/C Issuer has made or will make a disbursement or other payment thereunder; provided that any failure to give or delay in giving such notice shall not relieve such Borrower of its obligation to reimburse the L/C Issuer and the Revolving Lenders with respect to any such disbursement or other payment.
(j) 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.
(k) 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, the applicable Borrower shall be obligated to reimburse the L/C Issuer hereunder for any and all drawings under such Letter of Credit. Each Borrower hereby acknowledges that the issuance of Letters of Credit for the account of Subsidiaries inures to the benefit of such Borrower, and that such Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.
(l) Outstanding Letters of Credit. The L/C Issuer shall deliver to the Administrative Agent, for distribution to the Revolving Lenders, an accounting of all Letters of Credit outstanding as of the end of each fiscal quarter of the Company.
(m) L/C Issuer Reports to the Administrative Agent. Unless otherwise agreed by the Administrative Agent, each L/C Issuer shall, in addition to its notification obligations set forth elsewhere in this Section 2.03, report in writing to the Administrative Agent (i) periodic activity (for such period or recurrent periods as shall be requested by the Administrative Agent, and in any event not less frequently than the last Business Day of each calendar month) in respect of Letters of Credit issued by such L/C Issuer, including all issuances, extensions, amendments and renewals, all expirations and cancellations and all disbursements and reimbursements, (ii) within five (5) Business Days following the time that such L/C Issuer issues, amends, renews or extends any Letter of Credit, the date of such issuance, amendment, renewal or extension, and the face amount of the Letters of Credit issued, amended, renewed or extended by it and outstanding after giving effect to such issuance, amendment, renewal or extension (and whether the amounts thereof shall have changed), (iii) on each Business Day on which such L/C Issuer makes any payment under any Letter of Credit, the date and amount of such payment, (iv) on any Business Day on which a Borrower fails to reimburse a payment under a Letter of Credit required to be reimbursed to such L/C Issuer on such day, the date of such failure and the amount of such payment and (v) on any other Business Day, such other information as the Administrative Agent shall reasonably request as to the Letters of Credit issued by such L/C Issuer.
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2.04 [Reserved].
2.05 [Reserved].
2.06 Prepayments.
(a) Each Borrower may, upon notice to the Administrative Agent, at any time or from time to time, voluntarily prepay any Class of Loans in whole or in part without premium or penalty pursuant to this Section 2.06(a); provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) two (2) Business Days (or such shorter period as the Administrative Agent shall agree) prior to any date of prepayment of Term SOFR Loans, (B) on the date of prepayment of Daily SOFR Loans, (C) four (4) Business Days (or such shorter period as the Administrative Agent shall agree) prior to any date of prepayment of Alternative Currency Term Rate Loans and (D) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Term SOFR Loans or Daily SOFR Loans shall be in a principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof, (iii) any prepayment of Alternative Currency Term Rate Loans shall be in a minimum principal amount the Dollar Equivalent of which is $1,000,000 or a whole multiple of $100,000 in excess thereof; and (iv) any prepayment of Base Rate Committed 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) and Class(es) of Loans to be prepaid and, if Term SOFR Loans or Alternative Currency Term Rate Loans are to be prepaid, the Interest Period(s) of such Loans. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s Applicable Percentage of such prepayment. If such notice is given by a Borrower, such Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein; provided, however, that a notice of voluntary prepayment may state that such notice is conditioned upon an event, such as the effectiveness of other credit facilities, the receipt of the proceeds from the issuance of Equity Interests or other Indebtedness or the receipt of the proceeds from a Disposition, in which case such notice of prepayment may be revoked by the applicable Borrower if such condition is not satisfied. Any prepayment of any Loan (other than any Base Rate Loan) shall be accompanied by all accrued interest on the amount prepaid, together with, in the case of any Term SOFR Loans and any Alternative Currency Term Rate Loans, any additional amounts required pursuant to Section 3.05. Subject to Section 2.18, each prepayment of Committed Revolving Loans made pursuant to this clause (a) shall be made ratably among the Revolving Lenders in accordance with their respective Applicable Percentages of the Committed Revolving Loans. Each prepayment of Committed Term Loans made pursuant to this clause (a) shall be made ratably among the Term Lenders in accordance with their respective Applicable Percentages of the Committed Term Loans.
(b) [Reserved].
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(c) [Reserved].
(d) If the Administrative Agent notifies the Company at any time that (i) the Total Revolving Outstandings at such time exceed an amount equal to 105% of the Aggregate Revolving Commitments then in effect, (ii) the L/C Obligations at such time exceed the Letter of Credit Sublimit then in effect or (iii) the Outstanding Amount of all Revolving Loans denominated in Canadian Dollars at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, the Borrowers shall prepay the applicable Revolving Loans and/or the Company shall Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess within one (1) Business Day (or, with respect to clause (iii), within four (4) Business Days, with respect to Outstanding Amounts denominated in Canadian Dollars) after the Administrative Agent notifies the Company that such a prepayment is required and of the amount thereof; provided, however, that, subject to the provisions of Section 2.17(a)(iv), the Company shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.06(d) unless after the prepayment in full of the Committed Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Commitments then in effect.
2.07 Terminationor Reduction of Commitments.
(a) Unless previously terminated, the Revolving Commitments will terminate on the Revolving Maturity Date. Unless previously terminated, the Term Commitments will terminate on (i) a dollar-for-dollar basis concurrently with any Term Loans made hereunder and (ii) with respect to any unused Term Commitments then in effect, the earlier of (x) the date that is the final day of the Availability Period with respect to the Term Facility and (y) immediately after giving effect to the fifth (5th) Term Borrowing.
(b) The Company may, upon notice to the Administrative Agent, terminate the Aggregate Revolving Commitments, or from time to time permanently reduce the Aggregate Revolving Commitments; provided that (i) any such notice shall be received by the Administrative Agent not later than 12:00 Noon five (5) Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii) the Company shall not terminate or reduce the Aggregate Revolving Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, (A) the Total Revolving Outstandings would exceed the Aggregate Revolving Commitments, (B) the Outstanding Amount of Letters of Credit would exceed the Letter of Credit Sublimit or (C) the Outstanding Amount of all Loans denominated in Canadian Dollars exceeds an amount equal to 105% of the Alternative Currency Sublimit. The amount of any such Aggregate Revolving Commitment reduction shall not be applied to the Alternative Currency Sublimit or the Letter of Credit Sublimit unless otherwise specified by the Company. Any reduction of the Aggregate Revolving Commitments shall be applied to the Revolving Commitment of each Revolving Lender according to its Applicable Percentage.
(c) The Company may, upon notice to the Administrative Agent, terminate any unused Term Commitments, or from time to time permanently reduce the unused Term Commitments; provided that (i) any such notice shall be received by the Administrative Agent not later than 12:00 Noon five (5) Business Days prior to the date of termination or reduction and (ii) any such partial reduction shall be in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof. Any reduction of the unused Term Commitments shall be applied to the Term Commitment of each Term Lender according to its Applicable Percentage.
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(d) Each notice of termination under the foregoing clauses (b) or (c) shall specify such election to terminate and the effective date thereof. The Administrative Agent will promptly notify the applicable Lenders of any such notice of termination or reduction of the Aggregate Revolving Commitments or unused Term Commitments, as applicable. All fees accrued until the effective date of any termination of the Aggregate Revolving Commitments or the unused Term Commitments shall be paid on the effective date of such termination. A notice delivered by the Company pursuant to this Section 2.07 may state that such notice is conditioned upon an event, such as the effectiveness of other credit facilities, the receipt of the proceeds from the issuance of Equity Interests or other Indebtedness or the receipt of the proceeds from a Disposition, in which case such notice may be revoked by the Company (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied.
2.08 Repayment.
(a) Each Borrower shall repay to the Revolving Lenders on the Revolving Maturity Date, unless accelerated sooner pursuant to Section 8.02, the entire outstanding principal balance of all Committed Revolving Loans and all L/C Obligations made to such Borrower, together with accrued but unpaid interest, fees and all other sums with respect thereto.
(b) The Company shall repay to the Term Lenders on the Term Loan Maturity Date, unless accelerated sooner pursuant to Section 8.02, the entire outstanding principal balance of all Committed Term Loans, together with accrued but unpaid interest, fees and all other sums with respect thereto.
2.09 Interest.
(a) Applicable Interest. Subject to the provisions of Section 2.09(b), (i) each Term SOFR Loan under a Facility shall bear interest on the outstanding principal amount thereof for each Interest Period applicable thereto at a rate per annum equal to Term SOFR for such Interest Period plus the Applicable Rate for such Facility; (ii) each Daily SOFR Loan under a Facility shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to Daily SOFR plus the Applicable Rate for such Facility; (iii) each Base Rate Loan under a Facility shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate for such Facility and (iv) each Alternative Currency Term Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Alternative Currency Term Rate plus the Applicable Rate for the Revolving Facility.
(b) Default Interest.
(i) If any amount of principal of any Loan is not paid when due, whether at stated maturity, by acceleration or otherwise, then upon the request of the 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.
(ii) If any amount (other than principal of any Loan) payable by any Borrower under any Loan Document is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then upon the request of the 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 the Required Lenders, while any Event of Default exists, the Borrowers 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 Law.
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(iv) Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.
(c) Interest Payment Date. 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.
(d) Interest Act (Canada). For the purposes of the Interest Act (Canada), (i) whenever a rate of interest or fee rate hereunder is calculated on the basis of a year (the “deemed year”) that contains fewer days than the actual number of days in the calendar year of calculation, such rate of interest or fee rate shall be expressed as a yearly rate by multiplying such rate of interest or fee rate by the actual number of days in the calendar year of calculation and dividing it by the number of days in the deemed year, (ii) the principle of deemed reinvestment of interest shall not apply to any interest calculation hereunder and (iii) the rates of interest stipulated herein are intended to be nominal rates and not effective rates or yields. Each Loan Party hereby irrevocably agrees not to plead or assert, whether by way of defense or otherwise, in any proceeding relating to this Agreement and the other Loan Documents, that the interest payable under this Agreement and the calculation thereof has not been adequately disclosed to it, whether pursuant to Section 4 of the Interest Act (Canada) or any other applicable Law or legal principle.
2.10 Fees.
In addition to certain fees described in Sections 2.03(g) and 2.03(h):
(a) Facility Fee. The Company shall pay to the Administrative Agent for the account of each Revolving Lender in accordance with its Applicable Percentage of the Aggregate Revolving Commitments, a facility fee in Dollars equal to the Facility Fee Rate times the actual daily amount of the Aggregate Revolving Commitments (or, if the Aggregate Revolving Commitments have terminated, on the Outstanding Amount of all Committed Revolving Loans and L/C Obligations), regardless of usage, subject to adjustment as provided in Section 2.18. The facility fee shall accrue at all times during the Availability Period for the Revolving Facility (and thereafter so long as any Committed Revolving Loans or L/C Obligations remain outstanding), including at any time during which one or more of the conditions in Article IV is not met, and shall be due and payable quarterly in arrears (calculated on a 360-day basis) on the last Business Day of each calendar quarter, commencing with the first such date to occur after the Closing Date, and on the Revolving Maturity Date (and, if applicable, thereafter on demand). The facility fee shall be calculated quarterly in arrears, and if there is any change in the Facility Fee Rate during any quarter, the actual daily amount shall be computed and multiplied by the Facility Fee Rate separately for each period during such quarter that such Facility Fee Rate was in effect.
(b) Other Fees.
(i) The Company shall pay to the Arrangers and the Administrative Agent, as applicable, for their own respective accounts, in Dollars, fees in the amounts and at the times as separately agreed upon in writing between the Company, the applicable Arrangers and the Administrative Agent, as applicable. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever, absent manifest error.
(ii) The Company shall pay to the Lenders, in Dollars, 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, absent manifest error.
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(c) Ticking Fee. The Company agrees to pay to the Administrative Agent for the account of each Term Lender with a Term Commitment at such time a ticking fee (the “Ticking Fee”) in Dollars, which shall accrue at a rate of 0.15% (15.0 basis points) per annum on the actual daily amount of the undrawn Term Commitment of such Term Lender during the period commencing on July 21, 2026 to and including the final day of the Availability Period with respect to the Term Facility. Accrued Ticking Fees shall be due and payable upon the earlier of (a) the date that is the final day of the Availability Period with respect to the Term Facility and (b) the date on which the fifth (5th) Term Borrowing occurs. All Ticking Fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).
2.11 Computationof Interest and Fees.
(a) All computations of interest for Base Rate Loans (including Base Rate Loans determined by reference to Term SOFR) shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All computations of interest for Alternative Currency Term Rate Loans shall be made on the basis of a 365-day year 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 2.13(a), bear interest for one day. Each determination by the 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 the Parent Guarantor or for any other reason, the Company determines, or the Lenders reasonably determine that (i) the Leverage Ratio as calculated by the Company as of any applicable date was inaccurate and (ii) a proper calculation of the Leverage Ratio would have resulted in higher pricing for such period, each Borrower shall immediately and retroactively be obligated to pay to the Administrative Agent for the account of the applicable Lenders or the L/C Issuer, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code of the United States or any other Debtor Relief Law, automatically and without further action by the Administrative Agent, any Lender or the 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 clause (b) shall not limit the rights of the Administrative Agent, any Lender or the L/C Issuer, as the case may be, under Section 2.03(i) or 2.09(b) or under Article VIII. Each Borrower’s obligations under this clause (b) shall survive the termination of the Aggregate Commitments and the repayment of all other Obligations hereunder.
2.12 Evidenceof 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 the Administrative Agent in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the Borrowers 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 the Borrowers 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 the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. Upon the request of any Lender to a Borrower made through the Administrative Agent, such Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note with respect to the applicable Facility, which shall evidence such Lender’s Loans to such Borrower in addition to such accounts or records. Each Lender may attach schedules to its Note(s) and endorse thereon the date, Type (if applicable), amount, currency and maturity of its Loans and payments with respect thereto.
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(b) In addition to the accounts and records referred to in Section 2.12(a), each Revolving Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or 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 the Administrative Agent and the accounts and records of any Revolving Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.
2.13 PaymentsGenerally; Administrative Agent’s Clawback.
(a) General. All payments to be made by the Borrowers shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein and except with respect to principal of and interest on Loans denominated in Canadian Dollars, all payments by the Borrowers hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in Dollars and in Same Day Funds not later than 2:00 p.m. on the date specified herein. Except as otherwise expressly provided herein, all payments by the Borrowers hereunder with respect to principal of and interest on Loans denominated in Canadian Dollars shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in Canadian Dollars and in Same Day Funds not later than the Applicable Time specified by the Administrative Agent on the dates specified herein. Without limiting the generality of the foregoing, the Administrative Agent may require that any payments due under this Agreement be made in the United States. If, for any reason, any Borrower is prohibited by any Law from making any required payment hereunder in Canadian Dollars, such Borrower shall make such payment in Dollars in an amount equal to the Dollar Equivalent of the Canadian Dollar payment amount. The Administrative Agent will promptly distribute to each Lender its Applicable Percentage in respect of the relevant Facility (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 the Administrative Agent (i) after 2:00 p.m., in the case of payments in Dollars, or (ii) after the Applicable Time specified by the Administrative Agent in the case of payments in Canadian Dollars, shall in each case 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 any Borrower shall come due on a day other than a Business Day, such due date shall be extended to the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.
(b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Committed Borrowing of Term SOFR Loans, Daily SOFR Loans or Alternative Currency Term Rate Loans (or, in the case of any Committed Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such Committed Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Committed Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Committed Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02) and may, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Committed Borrowing available to the Administrative Agent, then the applicable Lender and the applicable Borrower severally agree to pay to the Administrative Agent forthwith on demand (without duplication) such corresponding amount in Same Day Funds with interest thereon, for each day from and including the date such amount is made available to such Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the Overnight Rate plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by such Borrower, the interest rate applicable to the Loans constituting such Borrowing. If such Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to such Borrower the amount of such interest paid by such Borrower for such period. In the event such Borrower pays such amount to the Administrative Agent, then such amount shall reduce the principal amount of such Borrowing (subject to the last sentence of this paragraph and any applicable provisions of Section 2.18). If such Lender pays its share of the applicable Committed Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Committed Loan included in such Committed Borrowing. Any payment by such Borrower shall be without prejudice to any claim such Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
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(ii) Payments by the Borrowers; Presumptions by Administrative Agent. Unless the Administrative Agent shall have received notice from any Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the L/C Issuer hereunder that such Borrower will not make such payment, the Administrative Agent may assume that such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the L/C Issuer, as the case may be, the amount due. With respect to any payment that the Administrative Agent makes for the account of the Lenders or the L/C Issuer hereunder as to which the 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) the applicable Borrower has not in fact made such payment; (2) the Administrative Agent has made a payment in excess of the amount so paid by such Borrower (whether or not then owed); or (3) the Administrative Agent has for any reason otherwise erroneously made such payment, then each of the Lenders or the L/C Issuer, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the Rescindable Amount so distributed to such Lender or the L/C Issuer, in Same Day 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 the Administrative Agent, at the Overnight Rate.
A notice of the Administrative Agent to any Lender or any Borrower with respect to any amount owing under this Section 2.13(b) shall be conclusive, absent manifest error.
(c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the 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 any Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the 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 Committed Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(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 10.04(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 10.04(c).
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(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.
(f) Insufficient Funds. If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, L/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, toward payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, toward payment of principal and L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and L/C Borrowings then due to such parties.
2.14 Sharingof Payments by Lenders.
If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the Committed Loans made by it, the participations in L/C Obligations held by it resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such Committed Loans or participations and accrued interest thereon greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Committed Loans (and, to the extent such Lender is a Revolving Lender, purchase subparticipations in L/C Obligations of the other Revolving Lenders), or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the relevant Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Committed Loans or such other amounts owing them under the relevant Facilities, as applicable; 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 2.14 shall not be construed to apply to (x) any payment made by or on behalf of any 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 2.17 or (z) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Committed Loans or subparticipations in L/C Obligations to any assignee or participant, other than an assignment to the Company or any Subsidiary thereof (as to which the provisions of this Section 2.14 shall apply).
Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Borrower in the amount of such participation.
2.15 Extensionof Revolving Maturity Date.
(a) Requests for Extension. The Company may, by written notice to the Administrative Agent (who shall promptly notify the Revolving Lenders) not earlier than ninety (90) days and not later than thirty (30) days prior to the Revolving Maturity Date then in effect (such date, an “Initial Revolving Maturity Date”), elect that the Revolving Lenders extend the Revolving Maturity Date for an additional six (6) months after such Initial Revolving Maturity Date; provided that the Company may not make more than two (2) such elections pursuant to this Section 2.15 during the term of this Agreement.
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(b) Confirmation by Administrative Agent. The Administrative Agent shall confirm receipt of the Company’s notice delivered pursuant to Section 2.15(a) no later than the date that is fifteen (15) days prior to the applicable Initial Revolving Maturity Date (or, if such date is not a Business Day, on the next preceding Business Day).
(c) Extension of Revolving Maturity Date. If (and only if) the conditions precedent set forth in Section 2.15(d) have been met, then, effective as of the applicable Initial Revolving Maturity Date, the Revolving Maturity Date shall be extended to the date falling six (6) months after such Initial Revolving Maturity Date (except that, if such date is not a Business Day, such Revolving Maturity Date as so extended shall be the next preceding Business Day). Upon satisfaction of the conditions precedent set forth in Section 2.15(d), as certified by the Company to the Administrative Agent in writing, the Administrative Agent shall deliver a copy of such certification to each Revolving Lender.
(d) Conditions to Effectiveness of Extensions. As a condition precedent to such extension, (i) the Company shall deliver to the Administrative Agent a certificate of the Company dated as of the applicable Initial Revolving Maturity Date signed by a Responsible Officer (x) certifying and attaching the resolutions adopted by each Borrower approving or consenting to such extension and (y) certifying that (1) the representations and warranties contained in Article V and in the other Loan Documents are true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect or similar language, in which case such representation or warranty shall be true and correct in all respects) on and as of such Initial Revolving Maturity Date (other than (i) such representations and warranties which are expressly made only as of the Closing Date and (ii) following the occurrence of the Investment Grade Election Effective Date, the representations and warranties set forth in Section 5.05(c) and Section 5.22, which, following the occurrence of the Investment Grade Election Effective Date, shall be made only as of the last date on which such representations and warranties were made under the Loan Documents prior to the Investment Grade Election Effective Date), except to the extent that such representations and warranties specifically refer to an earlier date, in which case they were true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect or similar language, in which case such representation or warranty shall have been true and correct in all respects) as of such earlier date, and except that for purposes of this Section 2.15, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 and (2) as of such Initial Revolving Maturity Date, and immediately after giving effect to such extension, no Default exists and (ii) the Company shall pay to the Revolving Lenders on such Initial Revolving Maturity Date a fee (to be shared among the Revolving Lenders based upon their Applicable Percentages of the Aggregate Revolving Commitments) equal to the product of (x) 0.0625% multiplied by (y) the then Aggregate Revolving Commitments.
(e) Conflicting Provisions. This Section 2.15 shall supersede any provisions in Section 2.02(b), 2.14 or 10.01 to the contrary.
2.16 Increasein Revolving Commitments; Incremental Term Loans.
(a) Request for Increase. From time to time, the Company shall have the right to increase the Aggregate Revolving Commitments and/or enter into one or more new tranches (or increasing an existing tranche) of term loans (each, an “Incremental Term Loan”); provided that (i) no Default has occurred and is continuing, (ii) each increase or tranche of Incremental Term Loans must be in a minimum amount of $10,000,000 and in integral multiples of $5,000,000 in excess thereof (or such other amounts as are agreed to by the Company and the Administrative Agent), and (iii) after giving effect to all such Aggregate Revolving Commitment increases, the Term Loans and all such Incremental Term Loans, the sum of the aggregate principal amounts of the Revolving Facility and all such Incremental Term Loans shall not exceed $1,500,000,000. At the time of sending such notice to the Administrative Agent of the exercise of such right, the Company (in consultation with the Administrative Agent) shall specify the Lenders to be approached to provide all or a portion of such increase (subject in each case to any requisite consents required under Section 10.06) and the time period within which each such 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 such Lenders).
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(b) Lender Elections to Increase. Each Lender shall notify the Administrative Agent within such time period whether or not it agrees to increase its Revolving Commitment or participate in such tranche, as the case may be, and, if so, whether by an amount equal to, greater than, or less than its Applicable Percentage of such requested increase or tranche. Any Lender not responding within such time period shall be deemed to have declined to increase its Revolving Commitment, if any, or participate in such tranche, as the case may be. Any such increase or tranche shall be syndicated on a best efforts basis and no Lender shall be required to increase its Revolving Commitment, if any, or participate in any tranche of Incremental Term Loans to facilitate such increase or tranche.
(c) Notification by Administrative Agent; Additional Lenders. The Administrative Agent shall notify the Company and each Lender of the Lenders’ responses to each request made hereunder. Subject to the approval of the Administrative Agent and, in the case of an increase to the Aggregate Revolving Commitments, the L/C Issuer (which approvals shall not be unreasonably withheld), the Company may also invite additional Eligible Assignees to become Lenders pursuant to a joinder agreement in form and substance reasonably satisfactory to the Administrative Agent and its counsel (a “New Lender Joinder Agreement”).
(d) Effective Date and Allocations. If the Aggregate Revolving Commitments are increased or any tranche of Incremental Term Loans is extended in accordance with this Section 2.16, the Administrative Agent and the Company shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase or tranche, as the case may be. The Administrative Agent shall promptly notify the Company and the Lenders of the final allocation of such increase or tranche, as the case may be, and the Increase Effective Date.
(e) Conditions to Effectiveness of Increase. As a condition precedent to any such increase or tranche, as the case may be:
(i) the Company shall deliver to the Administrative Agent a certificate of the Company dated as of the Increase Effective Date signed by a Responsible Officer (A) certifying and attaching the resolutions adopted by each Borrower approving or consenting to such increase or tranche, as the case may be, and (B) certifying that (1) the representations and warranties contained in Article V and in the other Loan Documents are true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect or similar language, in which case such representation or warranty shall be true and correct in all respects) on and as of the Increase Effective Date (other than (i) such representations and warranties which are expressly made only as of the Closing Date and (ii) following the occurrence of the Investment Grade Election Effective Date, the representations and warranties set forth in Section 5.05(c) and Section 5.22, which, following the occurrence of the Investment Grade Election Effective Date, shall be made only as of the last date on which such representations and warranties were made under the Loan Documents prior to the Investment Grade Election Effective Date), except to the extent that such representations and warranties specifically refer to an earlier date, in which case they were true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect or similar language, in which case such representation or warranty shall have been true and correct in all respects) as of such earlier date, and except that for purposes of this Section 2.16, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01, and (2) as of the Increase Effective Date, and immediately after giving effect to such increase or tranche, as the case may be, no Default or Event of Default exists;
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(ii) (A) upon the reasonable request of any Lender made at least five (5) days prior to the applicable Increase Effective Date, the Company shall have provided to such Lender the documentation and other information so requested by such Lender that satisfies all requirements of regulatory authorities applicable to such Lender and such Lender’s internal policies and procedures in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act and (B) if any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation it shall have delivered, to each Lender that so requests at least five (5) days prior to the applicable Increase Effective Date, a Beneficial Ownership Certification in relation to such Borrower;
(iii) in the case of any tranche of Incremental Term Loans, such Incremental Term Loans (A) shall rank pari passu in right of payment with the Revolving Loans, the Term Loans and any other outstanding Incremental Term Loans, (B) shall not mature earlier than the latest Maturity Date then in effect (but may have amortization prior to such date so long as the weighted average life to maturity of any Incremental Term Loans shall be no shorter than the remaining weighted average life to maturity of any previously funded and then outstanding Incremental Term Loans (if any) at such time) and (C) shall be treated substantially the same as (and in any event no more favorably than) the Revolving Loans, the Term Loans and any other outstanding Incremental Term Loans; provided that (1) the terms and conditions applicable to any tranche of Incremental Term Loans maturing after the latest Maturity Date then in effect may provide for material additional or different financial or other covenants or requirements applicable only during periods after such Maturity Date then in effect, (2) the Incremental Term Loans may be priced differently than the Revolving Loans, the Term Loans and any other outstanding Incremental Term Loans and (3) other terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans and the Term Loans to the extent such differences are solely administrative in nature or are terms and conditions reasonably acceptable to the Administrative Agent that customarily apply to syndicated term loan facilities but not revolving credit facilities (as determined in good faith by the board of directors or other equivalent governing body of the Company). Incremental Term Loans may be made hereunder pursuant to an amendment or restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Company, each Lender participating in such tranche and the Administrative Agent. The Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.16; and
(iv) in the case of any increase in the Aggregate Revolving Commitments, the Borrowers shall prepay any Committed Revolving 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 Committed Revolving Loans ratable with any revised Applicable Percentages of the Revolving Lenders arising from any non-ratable increase in the Revolving Commitments under this Section 2.16; and
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(v) the Borrowers shall provide a Note to any Lender increasing its Revolving Commitment or otherwise joining on the Increase Effective Date, if requested.
(f) Conflicting Provisions. This Section 2.16 shall supersede any provisions in Sections 2.14 or 10.01 to the contrary.
(g) Fees. The Company shall pay such fees to the Administrative Agent, for its own account and for the benefit of the Lenders providing such additional Revolving Commitments or participating in such tranche of Incremental Term Loans, as the case may be, as determined at the time of such increase or funding of such tranche of Incremental Term Loans and agreed to by the Company in writing.
(h) Lenders. In connection with any increase of the Aggregate Revolving Commitments or Incremental Term Loans pursuant to this Section 2.16, any new Lender party hereto shall (i) execute such documents and agreements as the Administrative Agent may reasonably request and (ii) in the case of any new Lender that is organized under the laws of a jurisdiction outside of the United States of America, provide to the Administrative Agent, its name, address, tax identification number and/or such other information as shall be necessary for the Administrative Agent to comply with “know your customer” and anti-money laundering rules and regulations, including, without limitation, the Patriot Act.
2.17 CashCollateral.
(a) Certain Credit Support Events. (i) (A) Upon the request of the Administrative Agent or the L/C Issuer (x) if the 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, or (y) if, as of the Letter of Credit Expiration Date, any L/C Obligation (other than in respect of an Extended Letter of Credit) for any reason remains outstanding or (B) upon the request of the Administrative Agent pursuant to Section 8.02, the Company shall, in each case, promptly, and in any event, no later than three (3) Business Days after receipt of such request, Cash Collateralize the then Outstanding Amount of all L/C Obligations.
(i) If at any time that there shall exist a Defaulting Lender under the Revolving Facility, promptly upon the request of the Administrative Agent, the L/C Issuer, the Company shall deliver to the Administrative Agent Cash Collateral in an amount sufficient to cover all Fronting Exposure (after giving effect to Section 2.18(a)(iv) and any Cash Collateral provided by such Defaulting Lender).
(ii) In addition, if the Administrative Agent notifies the Company at any time that the Outstanding Amount of all L/C Obligations at such time exceeds 105% of the Letter of Credit Sublimit then in effect, then, within five (5) Business Days after receipt of such notice, the Company shall Cash Collateralize the L/C Obligations in an amount equal to the amount by which the Outstanding Amount of all L/C Obligations exceeds the Letter of Credit Sublimit; provided that Cash Collateral provided pursuant to this Section 2.17(a)(iii) shall be refunded to the Company when the Outstanding Amount of all L/C Obligations is less than 105% of the Letter of Credit Sublimit then in effect.
(iii) The Administrative Agent may, at any time and from time to time after the initial deposit of Cash Collateral, request that additional Cash Collateral be provided as required in the reasonable judgment of the Administrative Agent in order to protect against the results of exchange rate fluctuations.
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(b) Grant of Security Interest. All Cash Collateral (other than credit support not constituting funds subject to deposit) shall be maintained in blocked, interest bearing deposit accounts at Bank of America. The Company, and to the extent provided by any Revolving Lender, such Lender, hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit of the Administrative Agent, the L/C Issuer and the Revolving 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 2.17(c). If at any time the Administrative Agent reasonably determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent as herein provided, or that the total amount of such Cash Collateral is less than the applicable Fronting Exposure and other obligations secured thereby, the Company or the relevant Defaulting Lender will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an aggregate amount equal to the excess of (x) the aggregate amount of such applicable Fronting Exposure and obligations, over (y) the total amount of funds or other credit support, if any, then held as Cash Collateral that the Administrative Agent reasonably determines to be free and clear of any such right and claim.
(c) Application. Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under or applied pursuant to any of this Section 2.17 or Sections 2.02, 2.03, 2.06, 2.18 or 8.02 in respect of Letters of Credit shall be held and applied to the satisfaction of the specific L/C Obligations (including, as to Cash Collateral provided by a Defaulting Lender under the Revolving Facility, 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 be provided for herein.
(d) Release. Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or other obligations shall be released promptly (and in any event within two (2) Business Days), together with all interest, if any, that has accrued on such amount, following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by (x) the cure or waiver of the relevant Event of Default in respect of Cash Collateral provided pursuant to Section 8.02 and (y) the termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee following compliance with Section 10.06(b)(vii))), (ii) as provided in Section 2.17(a)(iii) (solely to the extent described therein) or (iii) the Administrative Agent’s good faith determination that there exists excess Cash Collateral; provided, however, (x) that Cash Collateral furnished by or on behalf of the Company (including any interest thereon) shall not be released during the continuance of a Default or an Event of Default (and following application as provided in this Section 2.17 may be otherwise applied in accordance with Section 8.03 during the continuance of an Event of Default), and (y) the Person providing Cash Collateral and the L/C Issuer may agree that Cash Collateral (including any interest thereon) shall not be released but instead held to support future anticipated Fronting Exposure or other obligations.
2.18 DefaultingLenders.
(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. That 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 Section 10.01 and in the definitions of “Required Class Lenders”, “Required Lenders”, “Required Revolving Lenders” and “Required Term Lenders”.
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(ii) Reallocation of Payments. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise, and including any amounts made available to the Administrative Agent by that Defaulting Lender pursuant to Section 10.08), shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by that Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the L/C Issuer; third, if so determined by the Administrative Agent or requested by the L/C Issuer, to be held as Cash Collateral for future funding obligations of such Defaulting Lender of any participation in any Letter of Credit; fourth, as the Company may request (so long as no Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Company, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of such Defaulting Lender to fund Loans under this Agreement; sixth, to the payment of any amounts owing to the Lenders or the L/C Issuer as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the L/C Issuer against such Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Event of Default exists, to the payment of any amounts owing to the Company as a result of any judgment of a court of competent jurisdiction obtained by the Company 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 or L/C Borrowings were made at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Borrowings 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 Borrowings owed to, such Defaulting Lender. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.18(a)(ii) shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.
(iii) Certain Fees. Such Defaulting Lender (x) shall not be entitled to receive any facility fee on unfunded amounts pursuant to Section 2.10(a) or any Ticking Fee on unfunded amounts pursuant to Section 2.10(c) for any period during which that Lender is a Defaulting Lender except only to the extent allocable to the sum of (1) the Outstanding Amount of the Committed Revolving Loans funded by it and (2) its Applicable Percentage of the stated amount of Letters of Credit for which it has provided (or is deemed to have provided) Cash Collateral pursuant to Section 2.03(a)(iii), Section 2.17 or Section 2.18(a)(ii), as applicable (and the applicable Borrower shall (A) be required to pay to the L/C Issuer the amount of such facility fee allocable to its Fronting Exposure arising from such Defaulting Lender (solely to the extent not Cash Collateralized by the Company) and (B) not be required to pay the remaining amount of such facility fee or any Ticking Fee on unfunded amounts pursuant to Section 2.10(c) that otherwise would have been required to have been paid to such Defaulting Lender during such period), and (y) shall be limited in its right to receive Letter of Credit Fees as provided in Section 2.03(g).
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(iv) Reallocation of Applicable Percentages to Reduce Fronting Exposure. During any period in which there is a Defaulting Lender under the Revolving Facility, for purposes of computing the amount of the obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit pursuant to Section 2.03, the “Applicable Percentage” of each non-Defaulting Lender that is a Revolving Lender shall be computed without giving effect to the Revolving Commitment of such Defaulting Lender; provided that, (i) each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Event of Default exists; and (ii) the aggregate obligation of each such non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit shall not exceed the positive difference, if any, of (1) the Revolving Commitment of such non-Defaulting Lender minus (2) the aggregate Outstanding Amount of the Committed Revolving Loans of such Lender. Subject to Section 10.20, 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.
(b) Defaulting Lender Cure. If the Company, the Administrative Agent and the L/C Issuer agree in writing in their sole discretion that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), such Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders under the applicable Facility and, if such Lender is a Revolving Lender, funded and unfunded participations in Letters of Credit of the other Revolving Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit to be held on a pro rata basis by the Lenders under the applicable Facility in accordance with their Applicable Percentages of the applicable Facility (without giving effect to Section 2.18(a)(iv)), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Company while such Lender was a Defaulting Lender; and provided, further, that subject to Section 10.20 and 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 such Lender’s having been a Defaulting Lender.
2.19 DesignatedBorrowers.
(a) Designated Borrowers. The Company may at any time, upon not less than fifteen (15) Business Days’ notice from the Company to the Administrative Agent (or such shorter period as may be agreed by the Administrative Agent in its sole and reasonable discretion), request to designate any additional Subsidiary of the Company organized under the laws of Canada or any province or territory thereof (an “Applicant Borrower”) as a Designated Borrower to receive Revolving Loans hereunder by delivering to the Administrative Agent (which shall promptly deliver counterparts thereof to each Revolving Lender) a duly executed notice and agreement in substantially the form of Exhibit E (a “Designated Borrower Request and Assumption Agreement”). The parties hereto acknowledge and agree that prior to any Applicant Borrower becoming entitled to utilize the Revolving Facility provided for herein (i) the Administrative Agent and the Revolving Lenders that are to provide Revolving Commitments and/or Revolving Loans in favor of an Applicant Borrower must each agree to such Applicant Borrower becoming a Designated Borrower (such agreement not to be unreasonably withheld, conditioned or delayed), (ii) the Administrative Agent and such Revolving Lenders shall have received such supporting resolutions, incumbency certificates, opinions of counsel and other documents or information (including, without limitation, whether such Applicant Borrower maintains, contributes to, or has or reasonably expects to incur any liability or contingent liability in respect of, a Canadian Defined Benefit Pension Plan), in form, content and scope reasonably satisfactory to the Administrative Agent, as may be required by the Administrative Agent, and Notes signed by such new Borrowers to the extent any Revolving Lender so requires, and (iii) upon the reasonable request of any Revolving Lender, the Applicant Borrowers shall have provided to such Revolving Lender, and such Revolving 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, without limitation, the PATRIOT Act and any Applicant Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Revolving Lender that so requests, a Beneficial Ownership Certification in relation to such Applicant Borrower (the requirements in clauses (i), (ii) and (iii) hereof, the “Designated Borrower Requirements”). If the Designated Borrower Requirements are met, the Administrative Agent shall send a notice in substantially the form of Exhibit F (a “Designated Borrower Notice”) to the Company and the Revolving Lenders specifying the effective date upon which the Applicant Borrower shall constitute a Designated Borrower for purposes hereof, whereupon each of the Revolving Lenders agrees to permit such Designated Borrower to receive Revolving Loans hereunder, on the terms and conditions set forth herein, and each of the parties agrees that such Designated Borrower otherwise shall be a Borrower for all purposes of this Agreement; provided that no Committed Loan Notice or Letter of Credit Application may be submitted by or on behalf of such Designated Borrower until the date five (5) Business Days after such effective date.
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(b) Obligations. Notwithstanding anything contained to the contrary herein or in any Loan Document (including any Designated Borrower Request and Assumption Agreement), (i) no Designated Borrower shall be obligated with respect to any Obligations of the Company, (ii) the Obligations owed by a Designated Borrower shall be several and not joint with the Obligations of the Company and (iii) no Designated Borrower shall be obligated as a Guarantor Party under Article XII with respect to the Obligations of the Company.
(c) Appointment. Each Subsidiary of the Company that is or becomes a “Designated Borrower” pursuant to this Section 2.19 hereby irrevocably appoints the Company to act as its agent for all purposes of this Agreement and the other Loan Documents and agrees that (i) the Company may execute such documents on behalf of such Designated Borrower as the Company deems appropriate in its sole discretion and each Designated Borrower shall be obligated by all of the terms of any such document executed on its behalf, (ii) any notice or communication delivered by the Administrative Agent or the Lenders to the Company shall be deemed delivered to each Designated Borrower and (iii) the Administrative Agent or the Lenders may accept, and be permitted to rely on, any document, instrument or agreement executed by the Company on behalf of each of the Loan Parties.
Article III
Taxes,Yield Protection and Illegality
3.01 Taxes.
(a) Payments Free of Taxes. Any and all payments by or on account of any obligation of any Loan Party hereunder or under any other Loan Document shall be made free and clear of and without reduction or withholding for any Taxes; provided that, if the applicable Loan Party or the Administrative Agent shall be required by applicable Law to withhold or deduct any Taxes, including both United States federal backup withholding and withholding taxes, from any payment, then (A) such Loan Party or the Administrative Agent shall withhold or make such deductions as are determined by the Administrative Agent to be required based upon the information and documentation it has received pursuant to Section 3.01(e), (B) the 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 or Other Taxes, the sum payable by the applicable Loan Party 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 3.01) the Administrative Agent, the applicable Lender or L/C Issuer, as the case may be, receives an amount equal to the sum it would have received had no such withholding or deduction been made.
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(b) Payment of Other Taxes by the Loan Parties. Without limiting the provisions of Section 3.01(a), the Loan Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Law.
(c) Tax Indemnification. (i) Without limiting the provisions of Section 3.01(a) or 3.01(b), each of the Loan Parties shall, and does hereby, jointly and severally, indemnify the Administrative Agent, each Lender and the L/C Issuer, and shall make payment in respect thereof, within ten (10) Business Days after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 3.01) payable or paid by the Administrative Agent, such Lender or any L/C Issuer, as the case may be, or required to be withheld or deducted from a payment to the Administrative Agent, such Lender or any L/C Issuer, as the case may be, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, to the extent such Indemnified Taxes or Other Taxes are payable in respect of any payments by or on account of any obligation of the Loan Parties hereunder or under any other Loan Document or otherwise with respect to any Loan Document or activities related thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of any such payment or liability delivered to the Company by a Lender or the L/C Issuer (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender or the L/C Issuer, shall be conclusive absent manifest error.
(ii) Without limiting the provisions of Section 3.01(a) or 3.01(b), each Lender and the L/C Issuer shall, and do hereby, indemnify the Loan Parties and the Administrative Agent, and shall make payment in respect thereof, within ten (10) days after demand therefor, against any and all Taxes and any and all related losses, claims, liabilities, penalties, interest and expenses (including the fees, charges and disbursements of any counsel for the Loan Parties and the Administrative Agent) incurred by or asserted against the Administrative Agent by any Governmental Authority as a result of the failure by such Lender or the L/C Issuer, as the case may be, to deliver, or as a result of the inaccuracy, inadequacy or deficiency of, any documentation required to be delivered by such Lender or the L/C Issuer, as the case may be, to the Company or the Administrative Agent pursuant to Section 3.01(e). Each Lender and the L/C Issuer hereby authorize the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender or the L/C Issuer, as the case may be, under this Agreement or any other Loan Document against any amount due to the Administrative Agent under this clause (ii). The agreements in this clause (ii) shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender or the L/C Issuer, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all other Obligations.
(d) Evidence of Payments. As soon as practicable after any payment of Indemnified Taxes or Other Taxes by any Loan Party to a Governmental Authority, the Company shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
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(e) Status of Lenders. (i) Each Lender shall deliver to the Company (with a copy to the Administrative Agent), at the time or times prescribed by applicable Law or reasonably requested by the Company or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Law or by the taxing authorities of any jurisdiction and such other reasonably requested information as will permit the Company or the Administrative Agent, as the case may be, to determine (A) whether or not payments made by the Company hereunder or under any other Loan Document are subject to Taxes, (B) if applicable, the required rate of withholding or deduction, and (C) such Lender’s entitlement to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be made to such Lender by the Company pursuant to this Agreement or otherwise to establish such Lender’s status for withholding tax purposes in the applicable jurisdictions. Notwithstanding anything to the contrary in the preceding sentence, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), Section 3.01(e)(ii)(B) and Section 3.01(e)(ii)(C)) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, with respect to each Borrower that is a U.S. Person:
(A) any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent executed copies of IRS Form W-9 or such other documentation or information prescribed by applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent, as the case may be, to determine that such Lender is not subject to backup withholding or information reporting requirements; and
(B) each Foreign Lender that is entitled under the Code or any applicable treaty to an exemption from or reduction of withholding tax with respect to payments hereunder or under any other Loan Document shall deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the request of the Borrower or the Administrative Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the following is applicable:
(i) duly completed executed copies of IRS Form W-8BEN or W-8BEN-E, as applicable, claiming eligibility for benefits of an income tax treaty to which the United States is a party,
(ii) duly completed executed copies of IRS Form W-8ECI,
(iii) duly completed executed copies of IRS Form W-8IMY and all required supporting documentation,
(iv) 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 to the effect that such Foreign Lender is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code and (y) duly completed copies of IRS Form W-8BEN or W-8BEN-E, as applicable, or
(v) any other form prescribed by applicable Law as a basis for claiming exemption from or a reduction in United States Federal withholding tax duly completed together with such supplementary documentation as may be prescribed by applicable Law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
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(C) if a payment made to a Lender under any Loan Document would be subject to U.S. Federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (C), “FATCA” shall include any amendments made to FATCA after the Closing Date.
(iii) Each Lender shall promptly (A) notify the Company and the Administrative Agent of any change in circumstances which would modify or render invalid any claimed exemption or reduction, and (B) take such steps as shall not be materially disadvantageous to it, in the reasonable judgment of such Lender, and as may be reasonably necessary (including the re-designation of its Lending Office) to avoid any requirement of applicable Law of any jurisdiction that the Company or the Administrative Agent make any withholding or deduction for taxes from amounts payable to such Lender.
(iv) 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 the Company and the Administrative Agent in writing of its legal inability to do so.
(f) Treatment of Certain Refunds. Unless required by applicable Law, at no time shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender or the L/C Issuer, or have any obligation to pay to any Lender or the L/C Issuer, any refund of Taxes withheld or deducted from funds paid for the account of such Lender or the L/C Issuer, as the case may be. If the Administrative Agent, any Lender or the L/C Issuer determines, in its sole discretion, that it has received a refund of any Taxes or Other 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 such Loan Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Loan Party under this Section 3.01 with respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses and net of any loss or gain realized in the conversion of such funds from or to another currency incurred by the Administrative Agent, such Lender or the L/C Issuer, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that each Loan Party, upon the request of the Administrative Agent, such Lender or the L/C Issuer, agrees to repay the amount paid over to such Loan Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent, such Lender or the L/C Issuer in the event the Administrative Agent, such Lender or the L/C Issuer is required to repay such refund to such Governmental Authority. This Section 3.01(f) shall not be construed to require the Administrative Agent, any Lender or the L/C Issuer 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. Notwithstanding anything to the contrary in this Section 3.02(f), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this Section 3.02(f) if the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid.
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(g) Definitions. For purposes of this Section 3.01, the term “applicable Law” includes FATCA.
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 any Loans (other than Base Rate Loans), or to determine or charge interest rates based upon SOFR, Daily SOFR or Term SOFR or any Loans whose interest is determined by reference to a Relevant Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars or Canadian Dollars in the applicable interbank market (each an “Affected Loan”), then (a) such Lender shall promptly give written notice of such circumstances to the Company through the Administrative Agent, which notice shall be withdrawn whenever such circumstances no longer exist, (b) the obligation of such Lender hereunder to make Affected Loans, continue Affected Loans as such and, in the case of Term SOFR Loans and Daily SOFR Loans, to convert a Base Rate Loan to an Affected Loan shall forthwith be suspended and, until such time as it shall no longer be unlawful for such Lender to make or maintain such Affected Loans, such Lender shall then have a commitment only to make a Base Rate Loan when an Affected Loan denominated in Dollars is requested, (c) such Lender’s Loans then outstanding as Affected Loans, denominated in Dollars, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law, (d) such Lender’s Loans then outstanding as Affected Loans, if any, denominated in Canadian Dollars shall be immediately repaid by the applicable Borrower on the last day of the then current Interest Period with respect thereto (or such earlier date as may be required by any such requirement of Law) together with accrued interest thereon and (e) 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 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 the Administrative Agent without reference to the Term SOFR component of the Base Rate, in each case until such Lender notifies the Administrative Agent and the Company that the circumstances giving rise to such determination no longer exist. If any such conversion or prepayment of an Affected Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, the applicable Borrower shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.05.
3.03 Inabilityto Determine Rates.
(a) Subject to Sections 3.03(b) and (c), if in connection with any request for a Term SOFR Loan or an Alternative Currency Term Rate Loan or a conversion of Base Rate Loans to Term SOFR Loans or Daily SOFR Loans or a continuation of any of such Loans, as applicable, or at any time in connection with a Daily SOFR Loan (i) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (A) no Successor Rate for the Relevant Rate for the applicable Agreed Currency has been determined in accordance with Section 3.03(b) or Section 3.03(c) and the circumstances under clause (i) of Section 3.03(b) or of Section 3.03(c) or the Scheduled Unavailability Date, or the SOFR Scheduled Unavailability Date, has occurred with respect to Term SOFR, Daily SOFR or such Relevant Rate (as applicable) or (B) adequate and reasonable means do not otherwise exist for determining SOFR, Term SOFR, Daily SOFR or the Relevant Rate for the applicable Agreed Currency for any determination date(s) or requested Interest Period, as applicable, with respect to a proposed Term SOFR Loan, Daily SOFR Loan or an Alternative Currency Term Rate Loan or in connection with an existing or proposed Base Rate Loan, or (ii) the Administrative Agent or the Required Revolving Lenders or the Required Term Lenders, as applicable, determine that for any reason that the Relevant Rate with respect to a proposed Loan denominated in an Agreed Currency for any requested Interest Period or determination date(s) does not adequately and fairly reflect the cost to such Lenders of funding such Loan, the Administrative Agent will promptly so notify the Company and each such Lender.
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Thereafter, (x) the obligation of the Lenders to make or maintain Loans in the affected currencies, as applicable, or to convert Base Rate Loans to Term SOFR Loans or Daily SOFR Loans, shall be suspended in each case to the extent of the affected Term SOFR Loans, Daily SOFR Loans, Alternative Currency Term Rate Loans or Interest Period or determination date(s), as applicable, 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 the Administrative Agent (or, in the case of a determination by the Required Lenders described in clause (ii) of the first paragraph of this Section 3.03(a), until the Administrative Agent upon instruction of the Required Revolving Lenders or the Required Term Lenders, as applicable) revokes such notice.
Upon receipt of such notice, (i) the applicable Borrower may revoke any pending request for a Borrowing of, or conversion to Daily SOFR Loans, a Borrowing of, or continuation of, or conversion to Term SOFR Loans, or a Borrowing of, or continuation of Alternative Currency Term Rate Loans to the extent of the affected Daily SOFR Loans, Term SOFR Loans, Alternative Currency Term Rate Loans or Interest Period or determination date(s), as applicable or, failing that, will be deemed to have converted such request into a request for a Committed Borrowing of, or conversion to, as applicable, Base Rate Loans denominated in Dollars in the Dollar Equivalent of the amount specified therein and (ii) (A) any outstanding affected Term SOFR Loans and Daily SOFR Loans shall be deemed to have been converted to Base Rate Loans immediately, in the case of Daily SOFR Loans, or at the end of the applicable Interest Period, in the case of Term SOFR Loans, and (B) any outstanding affected Alternative Currency Term Rate Loans, at the Company’s election, shall either (1) be converted into a Committed Borrowing of Base Rate Loans denominated in Dollars in the Dollar Equivalent of the amount of such outstanding Alternative Currency Term Rate Loan at the end of the applicable Interest Period or (2) be prepaid in full at the end of the applicable Interest Period; provided that if no election is made by the Company by the last day of the current Interest Period for the applicable Alternative Currency Term Rate Loan, the Company shall be deemed to have elected clause (1) above.
(b) Replacement of SOFR, Term SOFR or SOFR Successor Rate. Notwithstanding anything to the contrary in this Agreement or any other Loan Documents, if the Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Company or Required Revolving Lenders or the Required Term Lenders, as applicable, notify the Administrative Agent (with, in the case of the Required Revolving Lenders or Required Term Lenders, as applicable, a copy to the Company) that the Company or Required Revolving Lenders or Required Term Lenders (as applicable) have determined, that:
(i) adequate and reasonable means do not exist for ascertaining SOFR or one month, three month and six month interest periods of Term SOFR, including, without limitation, 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) the Applicable Authority has made a public statement identifying a specific date after which one month, three month and six month interest periods of Term SOFR, the Term SOFR Screen Rate or SOFR shall or will no longer be made available, or permitted to be used for determining the interest rate of U.S. 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 reasonably satisfactory to the Administrative Agent, that will continue to provide such interest periods of Term SOFR or SOFR after such specific date (the latest date on which one month, three month and six month interest periods of Term SOFR, SOFR or the Term SOFR Screen Rate are no longer available permanently or indefinitely, the “SOFR Scheduled Unavailability Date”);
then, on a date and time determined by the Administrative Agent (any such date, the “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 (ii) above, no later than the SOFR Scheduled Unavailability Date, Term SOFR and/or Daily SOFR, as applicable, 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 the 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 “SOFR Successor Rate”).
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If the SOFR Successor Rate is Daily Simple SOFR, all interest payments will be payable on a monthly basis.
Notwithstanding anything to the contrary herein, (i) if the Administrative Agent determines that Daily Simple SOFR is not available on or prior to the SOFR Replacement Date, or (ii) if the events or circumstances of the type described in Section 3.03(b)(i) or (ii) have occurred with respect to the SOFR Successor Rate then in effect, then in each case, the Administrative Agent and the Company may amend this Agreement solely for the purpose of replacing Term SOFR, SOFR or any then current SOFR Successor Rate in accordance with this Section 3.03(b) 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 U.S. 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 U.S. dollar denominated credit facilities syndicated and agented in the United States for such benchmark. For the avoidance of doubt, any such proposed rate and adjustments shall constitute a “SOFR Successor Rate”. Any such amendment executed by the Administrative Agent and the Company shall become effective at 5:00 p.m. on the fifth Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Company unless, prior to such time, Lenders comprising the Required Revolving Lenders or Required Term Lenders, as applicable, have delivered to the Administrative Agent written notice that such Required Revolving Lenders or Required Term Lenders, as applicable, object to such amendment.
This Section 3.03(b) shall supersede any provisions in Section 10.01 to the contrary.
(c) Replacement of Relevant Rate or Successor Rate. Notwithstanding anything to the contrary in this Agreement or any other Loan Documents, but subject to the provisions of Section 3.03(b) with respect to the replacement of Term SOFR and SOFR, if the Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Company or Required Revolving Lenders notify the Administrative Agent (with, in the case of the Required Revolving Lenders, a copy to the Company) that the Company or Required Revolving Lenders (as applicable) have determined, that:
(i) adequate and reasonable means do not exist for ascertaining the Relevant Rate for Canadian Dollars because none of the tenors of such Relevant Rate under this Agreement is available or published on a current basis, and such circumstances are unlikely to be temporary; or
(ii) the Applicable Authority has made a public statement identifying a specific date after which all tenors of the Relevant Rate for Canadian Dollars under this Agreement shall or will no longer be representative or made available, or permitted to be used for determining the interest rate of syndicated loans denominated in Canadian Dollars, or shall or will otherwise cease, provided that, in each case, at the time of such statement, there is no successor administrator that is satisfactory to the Administrative Agent that will continue to provide such representative tenor(s) of the Relevant Rate for Canadian Dollars (the latest date on which all tenors of the Relevant Rate for Canadian Dollars under this Agreement are no longer representative or available permanently or indefinitely, the “Scheduled Unavailability Date”);
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then, the Administrative Agent and the Company may amend this Agreement solely for the purpose of replacing the Relevant Rate for Canadian Dollars or any then current Successor Rate for Canadian Dollars in accordance with this Section 3.03(c) with an alternative benchmark rate giving due consideration to any evolving or then existing convention for similar credit facilities syndicated and agented in the United States and denominated in Canadian Dollars for such alternative benchmarks, 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 credit facilities syndicated and agented in the United States and denominated in Canadian Dollars for such benchmarks (and any such proposed rate, including for the avoidance of doubt, any adjustment thereto, a “Non-SOFR Successor Rate”, and collectively with the SOFR Successor Rate, each a “Successor Rate”). Any such amendment executed by the Administrative Agent and the Company shall become effective at 5:00 p.m. on the fifth Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Company unless, prior to such time, Lenders comprising the Required Revolving Lenders have delivered to the Administrative Agent written notice that such Required Revolving Lenders object to such amendment.
This Section 3.03(c) shall supersede any provisions in Section 10.01 to the contrary.
(d) Successor Rate. The Administrative Agent will promptly (in one or more notices) notify the Company 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 the Administrative Agent, such Successor Rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent.
Notwithstanding anything else herein, if at any time any Successor Rate as so determined would otherwise be less than 0.00%, the Successor Rate will be deemed to be 0.00% for the purposes of this Agreement and the other Loan Documents.
In connection with the implementation of a Successor Rate, the 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, the Administrative Agent shall post each such amendment implementing such Conforming Changes to the Company and the Lenders reasonably promptly after such amendment becomes effective.
This Section 3.03(d) shall supersede any provisions in Section 10.01 to the contrary.
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3.04 IncreasedCosts.
(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, the Administrative Agent, any Lender or the L/C Issuer;
(ii) subject the Administrative Agent, any Lender or the L/C Issuer to any Tax of any kind whatsoever with respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or any Term SOFR Loan, Daily SOFR Loan, or Alternative Currency Term Rate Loan made by it, or change the basis of taxation of payments to the Administrative Agent, such Lender or the L/C Issuer in respect thereof (except for Indemnified Taxes or Other Taxes covered by Section 3.01 and the imposition of, or any change in the rate of, any Excluded Tax); or
(iii) impose on the Administrative Agent, any Lender or the L/C Issuer or any applicable interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement, Term SOFR Loans, Daily SOFR Loans, or Alternative Currency Term 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 the Administrative Agent or such Lender of making, maintaining, converting to or continuing any Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to the Administrative Agent, such Lender or the 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 the Administrative Agent, such Lender or the L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon request of the Administrative Agent, such Lender or the L/C Issuer, the Company will pay (or cause the applicable Designated Borrower to pay) to the Administrative Agent, such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will compensate the Administrative Agent, such Lender or the L/C Issuer, as the case may be, for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender or the L/C Issuer determines that any Change in Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender or such Lender’s or the L/C Issuer’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 or the L/C Issuer’s capital or on the capital of such Lender’s or the 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 the L/C Issuer, to a level below that which such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the L/C Issuer’s policies and the policies of such Lender’s or the L/C Issuer’s holding company with respect to capital adequacy and liquidity), then from time to time the Company will pay (or cause the applicable Designated Borrower to pay) to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company for any such reduction suffered. The Company shall not be required to pay such additional amounts unless such amounts are the result of requirements imposed generally on lenders similar to such Lender or such L/C Issuer and not the result of some specific reserve or similar requirement imposed on such Lender or such L/C Issuer as a result of such Lender’s or such L/C Issuer’s special circumstances.
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(c) Certificates for Reimbursement. A certificate of the Administrative Agent, a Lender or the L/C Issuer setting forth in reasonable detail the basis for and calculation of the amount or amounts necessary to compensate the Administrative Agent, such Lender or the L/C Issuer or its holding company, as the case may be, as specified in Section 3.04(a) or 3.04(b) and delivered to the Company, in detail sufficient to enable the Company to verify the computation thereof, shall be conclusive absent manifest error. The Company shall pay the Administrative Agent, such Lender or the L/C Issuer, as the case may be, the amount shown as due on any such certificate within ten (10) Business Days after receipt thereof. Any amounts requested to be payable pursuant to this Section 3.04 shall be requested in good faith (and not on an arbitrary and capricious basis) and consistent with similarly situated customers of the Administrative Agent, the applicable Lender or L/C Issuer after consideration of factors as the Administrative Agent, such Lender or L/C Issuer, as the case may be, then reasonably determines to be relevant.
(d) Delay in Requests. Failure or delay on the part of the Administrative Agent, any Lender or the L/C Issuer to demand compensation pursuant to the foregoing provisions of this Section 3.04 shall not constitute a waiver of the Administrative Agent, such Lender’s or the L/C Issuer’s right to demand such compensation; provided that no Borrower shall be required to compensate the Administrative Agent, a Lender or the L/C Issuer pursuant to the foregoing provisions of this Section 3.04 for any increased costs incurred or reductions suffered more than six (6) months prior to the date that the Administrative Agent, such Lender or the L/C Issuer, as the case may be, notifies the Company of the Change in Law giving rise to such increased costs or reductions and of the Administrative Agent’s, such Lender’s or the 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 six (6) month period referred to above shall be extended to include the period of retroactive effect thereof).
(e) [Reserved].
(f) The provisions set forth in Sections 3.04(a) and (b) above shall not apply to the extent any increased cost is already compensated for by payment made by or on behalf of the applicable Borrower pursuant to Section 3.01.
3.05 Compensationfor Losses.
Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Company shall promptly compensate (or cause the applicable Designated Borrower to compensate) such Lender for and hold such Lender harmless from any loss, cost or expense (other than loss of anticipated profits) incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan or a Daily SOFR 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 the Company or the applicable Designated 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 or a Daily SOFR Loan on the date or in the amount notified by the Company or the applicable Designated Borrower;
(c) any failure by any Borrower to make payment of any Loan or drawing under any Letter of Credit (or interest due thereon) denominated in Canadian Dollars on its scheduled due date or any payment thereof in a different currency; or
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(d) any assignment of a Term SOFR Loan or an Alternative Currency Term Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by any Borrower pursuant to Section 10.13.
The Company shall also pay (or cause the applicable Designated Borrower to pay) any customary administrative fees charged by such Lender in connection with the foregoing, including, without limitation, any loss or expense arising from the termination of any foreign exchange contract.
For purposes of calculating amounts payable by the Company (or the applicable Designated Borrower) to the Lenders under this Section 3.05, each Lender shall be deemed to have funded each Term SOFR Loan or Alternative Currency Term Rate Loan, as applicable, made by it at Term SOFR or the applicable Alternative Currency Term Rate, as applicable, for such Loan by a matching deposit or other borrowing in the applicable interbank market for the relevant currency for a comparable amount and for a comparable period, whether or not such Term SOFR Loan or Alternative Currency Term Rate Loan, as applicable, was in fact so funded.
3.06 MitigationObligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender requests compensation under Section 3.04, or a Borrower is required to pay any additional amount to any Lender, the L/C Issuer or any Governmental Authority for the account of any Lender or the L/C Issuer pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then such Lender or the 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 the 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 the L/C Issuer, as the case may be, to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender or the L/C Issuer, as the case may be. The Company hereby agrees to pay (or cause the applicable Designated Borrower to pay) all reasonable costs and expenses incurred by any Lender or the 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 a Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lender’s obligation to make, continue or convert to Affected Loans is suspended pursuant to Section 3.02, the Company may replace such Lender in accordance with Section 10.13.
3.07 Survival.
All of the Borrowers’ obligations under this Article III shall survive termination of the Aggregate Commitments, repayment of all other Obligations hereunder and resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender or L/C Issuer.
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Article IV
ConditionsPrecedent to Credit Extensions
4.01 Conditionsof Initial Credit Extension.
The effectiveness of this Agreement and the obligation of the L/C Issuer and of each Lender to make its initial Credit Extension hereunder on the Closing Date, if any, are subject to satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimile or electronic copies (followed promptly by originals from the applicable Loan Parties in the case of clauses (i) and (ii) below or as otherwise reasonably requested by the Administrative Agent), 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 reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement, executed and delivered by the Administrative Agent, the Loan Parties and each Lender listed on Schedule 2.01;
(ii) (x) a Revolving Note executed by the Borrowers in favor of each Revolving Lender requesting a Revolving Note and (y) a Term Note executed by the Company in favor of each Term Lender requesting a Term Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents;
(iv) such documents and certifications as the 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 its jurisdiction of organization and 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) favorable opinions of Latham & Watkins LLP and Ballard Spahr LLP, counsels to the Loan Parties, addressed to the Administrative Agent and each Lender;
(vi) a certificate signed by a Responsible Officer of the Company certifying that:
(A) the conditions specified in clauses (d) and (e) of this Section 4.01 have been satisfied;
(B) as of the Closing Date, after giving pro forma effect to the IPO Transactions and to any Revolving Loans and Term Loans made on the Closing Date,
(i) (a) the fair value of the assets of the Parent Guarantor and its Subsidiaries, taken as a whole, will exceed their debts and liabilities, subordinated, contingent or otherwise; (b) the present fair saleable value of the property of the Parent Guarantor and its Subsidiaries, taken as a whole, will be greater than the amount that will be required to pay the probable liability of their debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and mature; and (c) no Borrower will have unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted following the Closing Date;
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(ii) no circumstance or condition exists that has had as of the Closing Date, or would reasonably be expected, either individually or in the aggregate, to have on or after the Closing Date, a Material Adverse Effect; and
(iii) no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, is threatened in any court or before any arbitrator or Governmental Authority related to the Facilities or that would reasonably be expected to have a Material Adverse Effect; and
(C) the IPO shall have been consummated or shall be consummated prior to or substantially contemporaneously with the initial closing under the Facilities; and
(vii) a duly completed Compliance Certificate signed by a Responsible Officer of the Company certifying that as of December 31, 2025, the Company was in pro forma compliance (giving effect to any Revolving Loans and Term Loans made on the Closing Date and the IPO Transactions) with the financial covenants contained in Section 7.10 (the “Closing Compliance Certificate”).
(b) Any fees required to be paid by the Loan Parties on or prior to the Closing Date pursuant to the Loan Documents and all expenses required to be reimbursed by the Loan Parties on or prior to the Closing Date pursuant to the Loan Documents shall have been paid; provided that invoices for such expenses have been presented to the Loan Parties a reasonable period of time (and in any event not less than one (1) Business Day) prior to the Closing Date (including, unless waived by the Administrative Agent, all reasonable, documented, out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent, 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 the Company and the Administrative Agent)).
(c) (i) Upon the reasonable request of any Lender made in writing at least ten (10) Business Days prior to the Closing Date, the Company shall have provided to such Lender the documentation and other information so requested by such Lender that satisfies all requirements of regulatory authorities applicable to such Lender and such Lender’s internal policies and procedures in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act and, solely to the extent of any Designated Borrower, the Canadian AML Acts, in each case at least five (5) Business Days prior to the Closing Date and (ii) at least five (5) Business Days prior to the Closing Date, if any Loan Party qualifies as a “legal entity customer” under the Beneficial Ownership Regulation it shall have delivered, to each Lender that so requests at least ten (10) Business Days prior to the Closing Date, a Beneficial Ownership Certification in relation to such Loan Party.
(d) The representations and warranties of the Loan Parties contained in Article V and any other Loan Document executed on the Closing Date, or which are contained in any document, certificate or other writing executed by a Responsible Officer and required to be furnished hereunder on or prior to the Closing Date, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect or similar language, in which case such representation or warranty shall be true and correct in all respects) on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect or similar language, in which case such representation or warranty shall be true and correct in all respects) as of such earlier date.
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(e) No Default or Event of Default shall exist on the Closing Date or would result from any Credit Extension hereunder on the Closing Date or from the application of the proceeds thereof.
Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
4.02 Conditionsto All Credit Extensions.
The obligation of each Lender to honor any Request for Credit Extension (other than (x) the initial extensions of credit on the Closing Date and (y) a Committed Loan Notice requesting only a conversion of Loans to another Type, or a continuation of Term SOFR Loans or Alternative Currency Term Rate Loans) is subject to the following conditions precedent:
(a) The representations and warranties of the Loan Parties contained in Article V and any other Loan Document, or which are contained in any document, certificate or other writing executed by a Responsible Officer and required to be furnished hereunder, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect or similar language, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such Credit Extension (other than (i) such representations and warranties which are expressly made only as of the Closing Date and (ii) following the occurrence of the Investment Grade Election Effective Date, the representations and warranties set forth in Section 5.05(c) and Section 5.22, which, following the occurrence of the Investment Grade Election Effective Date, shall be made only as of the last date on which such representations and warranties were made under the Loan Documents prior to the Investment Grade Election Effective Date), except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect or similar language, in which case such representation or warranty shall be true and correct in all respects) as of such earlier date, and except that for purposes of this Section 4.02, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(b) No Default or Event of Default shall exist on the date of such Credit Extension, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(c) The Administrative Agent and, if applicable, the L/C Issuer shall have received a Request for Credit Extension in accordance with the requirements hereof.
(d) In the case of a Credit Extension to be denominated in Canadian Dollars, there shall not have occurred any change in national or international financial, political or economic conditions or currency exchange rates or exchange controls which, in the reasonable opinion of the Administrative Agent, the Required Revolving Lenders (in the case of any Loans to be denominated in Canadian Dollars) or the L/C Issuer (in the case of any Letter of Credit to be denominated in Canadian Dollars), would make it impracticable for such Credit Extension to be denominated in Canadian Dollars.
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(e) If the applicable Borrower is a Designated Borrower, then the conditions of Section 2.19 to the designation of such Borrower as a Designated Borrower shall have been met.
Each Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Loans to another Type or a continuation of Term SOFR Loans or Alternative Currency Term Rate Loans) submitted by a Borrower shall be deemed to be a representation and warranty by such Borrower that the conditions specified in Sections 4.02(a) and (b) have been satisfied on and as of the date of the applicable Credit Extension.
Article V
Representationsand Warranties
Each Loan Party represents and warrants to the Administrative Agent and the Lenders that:
5.01 Existence,Qualification and Power.
Each Loan Party and each of its Subsidiaries (a) is duly organized or formed, validly existing and, where 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 its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Loan Documents to which it is a party and (c) is duly qualified to do business and, where 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 (a) (other than with respect to any Loan Party or any Material Subsidiary), clause (b)(i) or clause (c), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
5.02 Authorization;No Contravention.
The execution, delivery and performance by each Loan Party of each Loan Document to which it is party has 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 Loan Party’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 Loan Party is party or affecting such Loan Party or the properties of such Loan Party or any of its Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Loan Party or its property is subject; or (c) violate any Law; except in each case referred to in clause (b) or (c), to the extent such conflict, breach, contravention or violation, or creation of any such Lien or required payment, could not reasonably be expected to have a Material Adverse Effect.
5.03 GovernmentalAuthorization; 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, except for such approvals, consents, exemptions, authorizations or other actions or notices or filings which have already been completed or obtained.
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5.04 BindingEffect.
This Agreement has been, and each other Loan Document to which each Loan Party is a party, when delivered hereunder, will have been, duly executed and delivered by such Loan Party. This Agreement constitutes, and each other Loan Document to which each Loan Party is a party when so delivered will constitute, a legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or other similar laws, now or hereafter in effect, relating to or affecting the enforcement of creditors’ rights generally and except that the remedy of specific performance and other equitable remedies are subject to judicial discretion.
5.05 FinancialStatements; No Material Adverse Effect.
(a) The Combined 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 consolidated financial condition of the Parent Guarantor and its Subsidiaries (assuming that the transactions required to effectuate the IPO shall have occurred) 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 material liabilities, direct or contingent, of the Parent Guarantor and its Subsidiaries as of the date thereof, including liabilities for taxes, material commitments and material Indebtedness, in each case, to the extent required by GAAP.
(b) Upon the delivery thereof pursuant to Section 6.01(b), the unaudited consolidated balance sheet of the Parent Guarantor and its Subsidiaries for the fiscal quarter ended June 30, 2026, and the related unaudited consolidated statements of income or operations, shareholders’ equity and cash flows for the fiscal quarter ended on such date, (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein or as otherwise permitted pursuant to Section 1.03, (ii) fairly present the consolidated financial condition of the Parent Guarantor and its Subsidiaries 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 and (iii) show all material indebtedness and other material liabilities, direct or contingent, of the Parent Guarantor and its Subsidiaries as of the date thereof, including liabilities for taxes, material commitments and material Indebtedness, in each case, to the extent required by GAAP.
(c) Since the Closing Date, there has been no event or condition, either individually or in the aggregate, that has had or would reasonably be expected to have a Material Adverse Effect.
5.06 Litigation.
There are no actions, suits, proceedings, claims, investigations or disputes pending or, to the knowledge of any Loan Party, threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against any Loan Party or any of their respective Subsidiaries or against any of their properties or revenues that (a) affect or pertain to this Agreement or any other Loan Document, or any of the transactions contemplated hereby, or (b) either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
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5.07 NoDefault.
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.
5.08 Ownershipof Property and Valid Leasehold Interests; Liens.
(a) Each of the Loan Parties and each of their respective Subsidiaries has good record and marketable title in fee simple to, or valid leasehold interests in, all real property necessary or used in the ordinary conduct of its business, except for such defects in title or valid leasehold interests as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(b) The property of each Loan Party and each of its Subsidiaries is subject to no Liens, other than Liens permitted by Section 7.01.
5.09 EnvironmentalCompliance.
There are no existing violations of Environmental Laws by any Loan Party or any Subsidiary or claims against any Loan Party or any Subsidiary alleging potential liability under, or responsibility for the violation of, any Environmental Law that could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
5.10 Insurance.
Each Loan Party and each of its Subsidiaries maintain or require the tenants or managers of their owned properties to maintain insurance that complies with the requirements set forth in Section 6.07.
5.11 Taxes.
Each Loan Party and its Subsidiaries have filed all Federal, state, provincial, territorial and other material tax returns and reports required to be filed, and have paid all Federal, state, provincial, territorial 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 (a) those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves with respect thereto, to the extent required by GAAP, are maintained on the books of the applicable Person, or (b) where the failure to take any of the foregoing actions could not reasonably be expected to cause, individually or in the aggregate, a Material Adverse Effect. To the knowledge of any Loan Party, there is no proposed tax assessment against such Loan Party or any Subsidiary that would, if made, have a Material Adverse Effect.
5.12 ERISA, etc.Compliance.
(a) Each Plan is in compliance with the applicable provisions of ERISA, the Code and other Federal or state Laws, except for any such failures to comply as, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. Each Plan that is intended to qualify under Section 401(a) of the Code has received a favorable determination or opinion letter from the IRS or an application for such a letter is currently being processed by the IRS with respect thereto and, to the knowledge of any Loan Party, nothing has occurred that could reasonably be expected to prevent, or cause the loss of, such qualification. Each Loan Party and each ERISA Affiliate have made all required contributions to each Plan subject to Section 412 of the Code, and no application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made with respect to any Plan.
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(b) There are no pending or, to the knowledge of any 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 or is reasonably expected to occur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii) no Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (iv) no Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v) no Loan Party nor any ERISA Affiliate has engaged in a transaction that could be subject to Sections 4069 or 4212(c) of ERISA; except in each case referred to in clauses (i) through (v), to the extent that any such event, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
(d) As of the Closing Date, no Borrower is and no Borrower will be (i) an employee benefit plan subject to Title I of ERISA, (ii) a plan or account subject to Section 4975 of the Code, (iii) 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 Loans, the Letters of Credit or the Commitments or (iv) a “governmental plan” within the meaning of ERISA.
(e) Each Canadian Pension Plan of a Designated Borrower or Subsidiary thereof that is incorporated or organized under the laws of Canada or any province or territory thereof (i) is in compliance in all material respects with the applicable provisions of all Applicable Laws except for any such failures to comply as, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect and (ii) has received a confirmation of registration from the Canada Revenue Agency if applicable and, to the knowledge of any Loan Party, nothing has occurred that could reasonably be expected to prevent, or cause the loss of, such registration.
(f) There are no pending or, to the knowledge of any Designated Borrower or Subsidiary thereof that is incorporated or organized under the laws of Canada or any province or territory thereof, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Canadian Pension 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 Canadian Pension Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect.
5.13 MarginRegulations; Investment Company Act; REIT Status.
(a) No Loan Party is engaged and no Loan Party will engage, principally or as one of its 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) No Loan Party is, and no Loan Party is required to be, registered as an “investment company” under the Investment Company Act of 1940.
(c) The Parent Guarantor meets all requirements to qualify as a REIT.
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5.14 Disclosure.
(a) No report, financial statement, certificate or other information furnished in writing by or on behalf of any Loan Party or any of its Subsidiaries to the 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 and when furnished and as modified or supplemented by other information so furnished), together with all such information previously provided and when taken as a whole, contains any untrue statement of a material fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made (together with all such information previously provided and when taken as a whole), not materially misleading; provided, however, that it is understood that no Loan Party makes any representation or warranty with respect to any general economic or specific industry information, any projections, pro forma financial information, financial estimates, forecasts and forward-looking information, except that, with respect to projected financial information concerning the Loan Parties and their respective Subsidiaries furnished in writing by or on behalf of the Company to the 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, each Loan Party represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time such information was prepared. It is further understood that (i) any projected financial information furnished to the Administrative Agent or any Lender is not to be viewed as facts, is not a guarantee of future performance and is subject to significant uncertainties and contingencies, many of which are beyond a Loan Party’s control, (ii) no assurance is given by such Loan Party that such projections will be realized and (iii) the actual results may differ from such projections and such differences may be material.
(b) As of the Closing Date, the information included in the Beneficial Ownership Certification delivered to the Administrative Agent and/or any Lender pursuant to Section 4.01(c), if applicable, is true and correct in all respects.
5.15 Compliancewith Laws.
Each of the Loan Parties and each Subsidiary 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 result in a Material Adverse Effect.
5.16 IntellectualProperty; Licenses, Etc.
Each Loan Party and each of its Subsidiaries own, or possess the right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual property rights (collectively, “IP Rights”) that are reasonably necessary for the operation of their respective businesses, without conflict with the rights of any other Person, except to the extent failure to do so could not reasonably be expected to have a Material Adverse Effect; provided that the foregoing is not a representation or warranty with respect to infringement or other violation of the IP Rights of any other Person (which is addressed in the following sentence of this Section 5.16). To the knowledge of any Loan Party, no slogan or other advertising device, product, process, method, substance, part or other material now employed, or now contemplated to be employed, by such Loan Party or any Subsidiary infringes upon any rights held by any other Person to an extent that such infringement could reasonably be expected to result in a Material Adverse Effect. No claim or litigation regarding any of the foregoing is pending against any Loan Party or any of its Subsidiaries or, to the knowledge of any Loan Party, threatened against such Loan Party or any of its Subsidiaries, which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
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5.17 Useof Proceeds.
The proceeds of the Loans hereunder will be used solely for the purposes specified in Section 6.11. No proceeds of the Loans hereunder will be used for the acquisition of another Person unless the board of directors (or other comparable governing body) or stockholders (or other equity owners), as appropriate, of such other Person has approved such acquisition.
5.18 TaxpayerIdentification Number.
Each Loan Party’s true and correct U.S. taxpayer identification number is set forth on Schedule 10.02.
5.19 Sanctions.
None of the Loan Parties, any Subsidiary of the Loan Parties or, to the knowledge of the chief executive officer, chief financial officer or general counsel of any Loan Party, any director, officer or employee thereof is an individual or entity that is currently (i) the subject of any Sanctions or in violation of any Sanctions or (ii) located, organized or resident in a Designated Jurisdiction.
5.20 AffectedFinancial Institution.
No Loan Party is an Affected Financial Institution.
5.21 Anti-CorruptionLaws.
Each Loan Party and each of its Subsidiaries (a) have conducted their businesses for the past two years (or if any Loan Party or Subsidiary was formed within the past two years, for the duration of such Loan Party’s or Subsidiary’s existence) and, to the knowledge of the chief executive officer, chief financial officer, chief operating officer (if any) or general counsel of such Loan Party, their respective directors, officers, agents and employees are, in each case, in compliance in all material respects with the United States Foreign Corrupt Practices Act of 1977, the Corruption of Foreign Public Officials Act (Canada) solely to the extent of a Designated Borrower, the UK Bribery Act 2010, and other similar applicable anti-money-laundering and anti-corruption legislation in other applicable jurisdictions, in any such case of the foregoing, to the extent applicable to, and binding on, the Loan Parties and their Subsidiaries (collectively, “Anti-Corruption Laws”), and (b) have instituted and maintain policies and procedures reasonably designed to promote and achieve compliance by each Loan Party, its Subsidiaries and, to the knowledge of the chief executive officer, chief financial officer, chief operating officer (if any) or general counsel of such Loan Party, their respective directors, officers, agents and employees with applicable Anti-Corruption Laws and applicable Sanctions.
5.22 Solvency.
As of the Closing Date, immediately after giving effect to the initial Credit Extensions (if any) made on the Closing Date and the IPO Transactions, (a) the fair value of the assets of the Parent Guarantor and its Subsidiaries, taken as a whole, will exceed their debts and liabilities, subordinated, contingent or otherwise; (b) the present fair saleable value of the property of the Parent Guarantor and its Subsidiaries, taken as a whole, will be greater than the amount that will be required to pay the probable liability of their debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and mature; and (c) no Borrower will have unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted following the Closing Date.
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5.23 Subsidiaries.
As of the Closing Date, the Parent Guarantor has no Subsidiaries other than those specifically disclosed on Schedule 5.23, and all of the outstanding Equity Interests in such Subsidiaries have been validly issued, are fully paid and nonassessable and are owned by a Loan Party in the amounts specified on Schedule 5.23 free and clear of all Liens other than Permitted Specified Liens. Schedule 5.23 identifies each Guarantor Party as of the Closing Date.
5.24 DesignatedBorrowers.
(a) Each Designated Borrower is subject to civil and commercial Laws with respect to its obligations under this Agreement and the other Loan Documents to which it is a party (collectively as to such Designated Borrower, the “Applicable Designated Borrower Documents”), and the execution, delivery and performance by such Designated Borrower of the Applicable Designated Borrower Documents constitute and will constitute private and commercial acts and not public or governmental acts. Neither such Designated Borrower nor any of its property has any immunity from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) under the laws of the jurisdiction in which such Designated Borrower is organized and existing in respect of its obligations under the Applicable Designated Borrower Documents.
(b) The Applicable Designated Borrower Documents are in proper legal form under the Laws of the jurisdiction in which each Designated Borrower is organized and existing for the enforcement thereof against such Designated Borrower under the Laws of such jurisdiction, and to ensure the legality, validity, enforceability, priority or admissibility in evidence of the Applicable Designated Borrower Documents. It is not necessary to ensure the legality, validity, enforceability, priority or admissibility in evidence of the Applicable Designated Borrower Documents that the Applicable Designated Borrower Documents be filed, registered or recorded with, or executed or notarized before, any court or other authority in the jurisdiction in which such Designated Borrower is organized and existing or that any registration charge or stamp or similar tax be paid on or in respect of the Applicable Designated Borrower Documents or any other document, except for (i) any such filing, registration, recording, execution or notarization as has been made or is not required to be made until the Applicable Designated Borrower Document or any other document is sought to be enforced and (ii) any charge or tax as has been timely paid.
(c) There is no tax, levy, impost, duty, fee, assessment or other governmental charge, or any deduction or withholding, imposed by any Governmental Authority in or of the jurisdiction in which any Designated Borrower is organized and existing either (i) on or by virtue of the execution or delivery of the Applicable Designated Borrower Documents or (ii) on any payment to be made by such Designated Borrower pursuant to the Applicable Designated Borrower Documents, except as has been disclosed to the Administrative Agent.
(d) The execution, delivery and performance of the Applicable Designated Borrower Documents executed by such Designated Borrower are, under applicable foreign exchange control regulations of the jurisdiction in which such Designated Borrower is organized and existing, not subject to any notification or authorization except (i) such as have been made or obtained or (ii) such as cannot be made or obtained until a later date (provided that any notification or authorization described in clause (ii) shall be made or obtained as soon as is reasonably practicable).
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Article VI
AffirmativeCovenants
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied (other than contingent Obligations that are not then due and payable), or any Letter of Credit shall remain outstanding, each Loan Party shall, and shall (except in the case of the covenants set forth in Sections 6.01, 6.02, 6.03 and 6.12) cause each of its Subsidiaries to:
6.01 FinancialStatements.
Deliver to the Administrative Agent (for distribution to each Lender):
(a) as soon as available, but in any event within five (5) Business Days following the date the Parent Guarantor is required to file its Form 10-K with the SEC (without giving effect to any extension of such due date, whether obtained by filing the notification permitted by Rule 12b-25 or any successor provision thereto or otherwise) (commencing with the fiscal year ending December 31, 2026), a consolidated balance sheet of the Group as at the end of such fiscal year, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year, setting forth, commencing with the fiscal year ending December 31, 2027, 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, which report and opinion shall be prepared in accordance with generally accepted auditing standards and applicable securities laws 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 (provided that, to the extent the components of such consolidated financial statements relating to a prior fiscal period are separately audited by different independent public accounting firms, the audit report of any such accounting firm may contain a qualification or exception as to scope of such consolidated financial statements as they relate to such components); and
(b) as soon as available, but in any event within five (5) Business Days following the date the Parent Guarantor is required to file its Form 10-Q with the SEC (without giving effect to any extension of such due date, whether obtained by filing the notification permitted by Rule 12b-25 or any successor provision thereto or otherwise) (commencing with the fiscal quarter ending June 30, 2026), an unaudited consolidated balance sheet of the Group as at the end of such fiscal quarter, and the related unaudited consolidated statements of income or operations for such fiscal quarter and for the portion of the Parent Guarantor’s fiscal year then ended, and an unaudited statement of cash flow for the portion of the Parent Guarantor’s fiscal year then ended setting forth, commencing with the fiscal quarter ending June 30, 2027, in each case in comparative form the figures for the corresponding date of the previous fiscal year or the corresponding portion of the previous fiscal year, as applicable, all in reasonable detail, such consolidated statements to be certified by a Responsible Officer as fairly presenting the consolidated financial condition of the Group as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes.
As to any information contained in materials furnished pursuant to Section 6.02(d), the Company shall not be separately required to furnish such information under clause (a) or (b) above, but the foregoing shall not be in derogation of the obligation of the Company to furnish the information and materials described in clauses (a) and (b) above at the times specified therein.
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6.02 Certificates;Other Information.
Deliver to the Administrative Agent (for distribution to each Lender):
(a) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b) (commencing with the delivery of the financial statements for the fiscal quarter ending June 30, 2026), a duly completed Compliance Certificate signed by a Responsible Officer;
(b) promptly after any request by the Administrative Agent, copies of any management letters submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with an audit of the accounts of the Loan Parties and their respective Subsidiaries;
(c) [reserved];
(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 any Loan Party, and copies of all annual, regular, periodic and special reports and registration statements which such Loan Party 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 the Administrative Agent pursuant hereto;
(e) promptly, and in any event within five (5) Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation by such agency regarding financial or other operational results of such Loan Party or any Subsidiary thereof, other than ordinary course or routine notices, correspondence, inquiries, examinations or audits;
(f) promptly following any written request therefor, information and documentation reasonably requested by the 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, the Canadian AML Acts with respect to any Designated Borrower, and the Beneficial Ownership Regulation (to the extent any Loan Party qualifies as a “legal entity customer” under the Beneficial Ownership Regulation and has provided a Beneficial Ownership Certification to any Lender or the Administrative Agent in connection with this Agreement as required by the Beneficial Ownership Regulation);
(g) promptly following the execution thereof, copies of any notice of termination of, material amendments or other material modifications to the Management Agreement; and
(h) promptly, such additional information regarding the business, financial or corporate affairs of any Loan Party or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent may from time to time reasonably request.
Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(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 the Company or the Parent Guarantor posts such documents, or provides a link thereto on the Company’s or the Parent Guarantor’s website on the Internet at the website address listed on Schedule 10.02; or (ii) on which such documents are posted on the Company’s or the Parent Guarantor’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that the Company shall notify the Administrative Agent (by facsimile or electronic mail), which shall notify each Lender, of the posting of any such documents and, upon request, provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Company or the Parent Guarantor with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
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Each Loan Party hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of any Loan Party hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic transmission system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel that do not wish to receive material non-public information with respect to any Loan Party 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. Each Loan Party hereby agrees that so long as such Loan Party 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, (x) by marking Borrower Materials “PUBLIC,” each Loan Party shall be deemed to have authorized the Administrative Agent, the Arrangers, the L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to such Loan Party 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 10.07) (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor”; and (z) the Administrative Agent and the Arrangers shall treat the Borrower Materials that are not marked “PUBLIC” or that are marked “PRIVATE” as being suitable only for posting on a portion of the Platform not designated “Public Investor.” Notwithstanding the foregoing, no Loan Party shall be under any obligation to mark any Borrower Materials “PUBLIC.”
6.03 Notices.
Promptly following knowledge thereof by a Responsible Officer, notify the Administrative Agent (which shall notify each Lender) of:
(a) the occurrence of any Default or Event of Default;
(b) any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect;
(c) the information set forth in Section 6.13 at the times required therein;
(d) any material change in accounting policies or financial reporting practices by any Loan Party or any Subsidiary, including any determination by the Company referred to in Section 2.11(b); and
(e) from and after the Investment Grade Election Effective Date, any announcement by Moody’s, S&P or Fitch of any change or possible adverse change in a Debt Rating.
Each notice pursuant to this Section 6.03 (other than Section 6.03(e)) shall be accompanied by a statement of a Responsible Officer setting forth details of the occurrence referred to therein and stating what action the applicable Loan Party has taken and proposes to take with respect thereto. Each notice pursuant to Section 6.03(a) shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached.
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6.04 Paymentof Taxes.
Pay and discharge as the same shall become due and payable, all of its tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves with respect thereto, to the extent required by GAAP, are maintained on the books of the applicable Person, in each case in this Section 6.04, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.
6.05 Preservationof Existence, Etc.
(a) Preserve, renew and maintain in full force and effect its legal existence and, where applicable, good standing under the Laws of the jurisdiction of its organization except in a transaction not prohibited by Section 7.04 or 7.05, or to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; (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.
6.06 Maintenanceof Properties.
(a) Maintain, preserve and protect, or make contractual or other provisions to cause to maintain, preserve or protect, all of its properties and equipment necessary in the operation of its business in good working order and condition, ordinary wear and tear excepted, in each case except where the failure to do so could not reasonably be expected to have a Material Adverse Effect; and (b) make, or make contractual or other provisions to cause to be made, all necessary repairs thereto and renewals and replacements thereof except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.
6.07 Maintenanceof Insurance.
Maintain, or use reasonable efforts to cause the tenants under all leases to which it is a party as landlord or the manager of its facilities to maintain, insurance with respect to its owned properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business and owning similar properties in localities where the applicable Loan Party or the applicable Subsidiary operates, of such types and in such amounts as are customarily carried under similar circumstances by such other Persons (including with respect to any captive insurance subsidiary or self-insurance, a system or systems of self-insurance and reinsurance which accords with the practices of similar businesses).
6.08 Compliancewith Laws.
Comply in all material respects with the requirements of all 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.
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6.09 Booksand Records.
Maintain 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 any Loan Party or its Subsidiary, as the case may be.
6.10 InspectionRights.
Subject to (x) rights of tenants, (y) applicable health and safety laws, and (z) except to the extent disclosure could reasonably be expected to contravene attorney client privilege or similar protection or violate any confidentiality or privacy obligation or otherwise contravene applicable law, permit representatives and independent contractors of the Administrative Agent and each Lender (in each case of a Lender, coordinated through the Administrative Agent) to visit and inspect any of its properties, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants (provided that the Loan Parties shall have the right to participate in any such discussions), all at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to the Loan Parties; provided, however, that, excluding any such visits and inspections during the continuation of an Event of Default, only one (1) such visit and inspection by the Administrative Agent during any calendar year shall be at the reasonable expense of the Company; provided, further, however, that when an Event of Default exists and is continuing the Administrative Agent or any Lender (or any of their respective representatives or independent contractors) may do any of the foregoing at the expense of the Company at any time during normal business hours and without advance notice.
6.11 Useof Proceeds.
Use proceeds from the Committed Loans for working capital and general corporate purposes, including Investments, dividends and distributions, and acquisitions and developments and, in each case, not (a) in contravention of any applicable Law in any material respect or of any Loan Document or (b) to purchase or carry margin stock (within the meaning of Regulation U) or to extend credit to others for the purpose of purchasing or carrying margin stock.
6.12 REITStatus.
The Parent Guarantor shall maintain its qualification as a real estate investment trust under Sections 856 through 860 of the Code.
6.13 EmployeeBenefits.
(a) Comply with the applicable provisions of ERISA and the Code with respect to each Plan, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect and (b) furnish to the Administrative Agent (x) within five (5) Business Days after any Responsible Officer or any ERISA Affiliate knows or has reason to know that, any ERISA Event has occurred that, alone or together with any other ERISA Event could reasonably be expected to result in liability of any Loan Party or any of its ERISA Affiliates in an aggregate amount exceeding the Threshold Amount or the imposition of a Lien, a statement setting forth details as to such ERISA Event and the action, if any, that such Loan Party or ERISA Affiliate proposes to take with respect thereto, and (y) upon request by the Administrative Agent, copies of (i) each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) filed by any Loan Party or any ERISA Affiliate with the Internal Revenue Service with respect to each Pension Plan; (ii) the most recent actuarial valuation report for each Pension Plan; (iii) all notices received by any Loan Party or any ERISA Affiliate from a Multiemployer Plan sponsor or any governmental agency concerning an ERISA Event; and (iv) such other documents or governmental reports or filings relating to any Plan as the Administrative Agent shall reasonably request.
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(b) With respect to a Designated Borrower or any Subsidiary thereof that is incorporated or organized under the laws of Canada or any province or territory thereof, comply with the applicable provisions of applicable Law with respect to each Canadian Pension Plan, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect and (b) furnish to the Administrative Agent (x) within five (5) Business Days after any Responsible Officer of a Designated Borrower or Subsidiary thereof that is incorporated or organized under the laws of Canada or any province or territory thereof knows or has reason to know that any failure by a Designated Borrower or Subsidiary thereof that is incorporated or organized under the laws of Canada or any province or territory thereof to perform its obligations under a Canadian Pension Plan has occurred that, alone or together with any other failures, could reasonably be expected to result in liability of a Designated Borrower or any Subsidiary thereof that is incorporated or organized under the laws of Canada or any province or territory thereof in an aggregate amount exceeding the Threshold Amount or the imposition of a Lien, a statement setting forth details as to such event and the action, if any, that such Designated Borrower or Subsidiary thereof that is incorporated or organized under the laws of Canada or any province or territory thereof proposes to take with respect thereto, and (y) upon request by the Administrative Agent, copies of (i) each annual report filed by a Designated Borrower or Subsidiary thereof that is incorporated or organized under the laws of Canada or any province or territory thereof with the Canada Revenue Agency or other Governmental Authority with respect to each Canadian Pension Plan; (ii) the most recent actuarial valuation report for each Canadian Pension Plan; (iii) all notices received by a Designated Borrower or Subsidiary thereof that is incorporated or organized under the laws of Canada or any province or territory thereof from any Governmental Authority concerning each such Canadian Pension Plan; and (iv) such other documents or governmental reports or filings relating to any Canadian Pension Plan as the Administrative Agent shall reasonably request.
6.14 Anti-CorruptionLaws.
Conduct its businesses in compliance in all material respects with applicable Anti-Corruption Laws and maintain policies and procedures reasonably designed to promote and achieve compliance by each Loan Party, its Subsidiaries and, to the knowledge of the chief executive officer, chief financial officer, chief operating officer (if any) or general counsel of such Loan Party, their respective directors, officers, agents and employees with applicable Anti-Corruption Laws.
6.15 Guarantors.
(a) Parent Subsidiary Guarantors and Unsecured Debt Subsidiaries as Guarantors. Not later than the date on which (i) any Subsidiary of the Parent Guarantor owns, directly or indirectly, any Equity Interests of the Company (any such entity, a “Parent Subsidiary Guarantor”) or (ii) any Subsidiary of the Company becomes an Unsecured Debt Subsidiary (in each case, or such later date as the Administrative Agent shall reasonably agree), the Parent Guarantor and the Company shall cause such Parent Subsidiary Guarantor or Unsecured Debt Subsidiary, as applicable, to become a Guarantor and execute and deliver or cause to be executed and delivered to the Administrative Agent the applicable Subsidiary Guaranty Documents.
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(b) Covered Unencumbered Pool Entities as Guarantors. Prior to the Investment Grade Election Effective Date, in addition to, and without limiting the requirements in Section 6.15(a), the Company shall cause each Subsidiary that it elects to treat as a Covered Unencumbered Pool Entity to be a Guarantor and, with respect to any Subsidiary that the Company elects to treat as a Covered Unencumbered Pool Entity after the Closing Date, execute and deliver or cause to be executed and delivered to the Administrative Agent the applicable Subsidiary Guaranty Documents on or prior to the later of (i) the date that is sixty (60) days following the first date on which the Company elects to treat such Subsidiary as a Covered Unencumbered Pool Entity and (ii) the date on which the Compliance Certificate is delivered (or required to be delivered) with respect to any fiscal quarter (or fiscal year in the case of the fourth fiscal quarter) during which the Company elects to treat such Subsidiary as a Covered Unencumbered Pool Entity (or such later date as the Administrative Agent may reasonably agree).
Article VII
NegativeCovenants
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied (other than contingent Obligations that are not then due and payable), or any Letter of Credit shall remain outstanding, no Loan Party shall, nor shall it permit any Subsidiary (except Section 7.09 shall apply only to Wholly-Owned Subsidiaries) to, directly or indirectly:
7.01 Liens.
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 pursuant to any Loan Document;
(b) Liens securing Indebtedness of the Parent Guarantor and its Subsidiaries permitted under Section 7.03;
(c) Liens for Taxes not yet due or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto, to the extent required by GAAP, are maintained on the books of the applicable Person;
(d) 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 thirty (30) days or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto, to the extent required by GAAP, are maintained on the books of the applicable Person;
(e) pledges or deposits or other Liens arising in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, or to secure statutory obligations, other than any Lien imposed by ERISA or in respect of a Canadian Pension Plan;
(f) Liens and rights of setoff of banks and securities intermediaries in respect of deposit accounts and securities accounts maintained in the ordinary course of business;
(g) the interests of lessees and lessors under leases or subleases of, and the interest of managers or operators with respect to, real or personal property made in the ordinary course of business;
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(h) Liens on property where the Parent Guarantor or its Subsidiaries is insured against such Liens by title insurance;
(i) Liens on property acquired by the Parent Guarantor or any of its Subsidiaries after the date hereof and which are in place at the time such properties are so acquired and not created in contemplation of such acquisition;
(j) Liens securing assessments or charges payable to a property owner association or similar entity, which assessments are not yet due and payable or that are being contested in good faith by appropriate proceedings diligently conducted, and for which adequate reserves with respect thereto, to the extent required by GAAP, are maintained on the books of the applicable Person;
(k) Liens securing assessment bonds, so long as the Parent Guarantor or its Subsidiaries is not in default under the terms thereof;
(l) deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety bonds (other than bonds related to judgments or litigation), performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(m) easements, rights-of-way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
(n) Liens securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h) or securing appeal or other surety bonds related to such judgments;
(o) Liens solely on any cash earnest money deposits made by the Parent Guarantor or any of its Subsidiaries in connection with any letter of intent or purchase agreement;
(p) assignments to a reverse Section 1031 exchange trust;
(q) licenses of intellectual property granted in the ordinary course of business;
(r) Liens on assets of the Company or any of its Subsidiaries securing obligations under Swap Contracts; and
(s) precautionary UCC filings in respect of operating leases.
7.02 [Reserved].
7.03 Indebtedness.
Create, incur, assume or suffer to exist any Indebtedness of any Loan Party or any of its Subsidiaries, except:
(a) Indebtedness under the Loan Documents;
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(b) other Indebtedness; provided that (i) at the time of the incurrence of such Indebtedness and immediately after giving effect thereto (including any Liens associated therewith) no Event of Default has occurred and is continuing or would result therefrom and (ii) with respect to obligations of a Loan Party in respect of Swap Contracts, such Swap Contracts shall be (x) entered into in order to manage existing or anticipated risk and not for speculative purposes or (y) (i) for the sale of Equity Interests issued by the Parent Guarantor at a future date that could be discharged solely by (1) delivery of the Parent Guarantor’s Equity Interests, or, (2) solely at Parent Guarantor’s option made at any time, payment of the net cash value of such Equity Interests at the time, irrespective of the form or duration of such agreement, commitment or arrangement and (ii) not for speculative purposes; and
(c) (i) Indebtedness between or among Parent Guarantor and any Subsidiary of Parent Guarantor or between or among any Subsidiaries of Parent Guarantor and (ii) Indebtedness owing to any member of the Healthpeak Group as of the Closing Date or incurred after the Closing Date pursuant to or in connection with the Management Agreement, in each case, so long as such Indebtedness is subordinated to the Obligations on terms and conditions reasonably acceptable to the Administrative Agent.
7.04 FundamentalChanges.
Merge, dissolve, liquidate, amalgamate or consolidate with or into another Person, except that, so long as no Default exists or would result therefrom, (i) any Person may merge with or into, consolidate with or amalgamate with the Company in a transaction in which the Company shall be the continuing or surviving Person, (ii) any Person (other than Parent Guarantor) may merge with or into, consolidate with or amalgamate with any Subsidiary (other than the Company) in a transaction in which the continuing or surviving Person shall be a Subsidiary of the Company (provided that if a Designated Borrower is party to any such transaction, (x) such Designated Borrower shall be the continuing or surviving Person or (y) the continuing or surviving Person shall have met the conditions of Section 2.19 to the designation of such Person as a Designated Borrower and shall assume the obligations of the predecessor Designated Borrower), (iii) any Subsidiary of the Company may merge with or into, consolidate with or amalgamate with any Person in order to consummate a Disposition permitted by Section 7.05 or an Investment (provided that if a Designated Borrower is party to any such transaction, (x) such Designated Borrower shall be the continuing or surviving Person or (y) the continuing or surviving Person shall have met the conditions of Section 2.19 to the designation of such Person as a Designated Borrower and shall assume the obligations of the predecessor Designated Borrower); (iv) any Subsidiary of the Company may merge into, the Parent Guarantor, the Company or any other Subsidiary of the Company (provided that if a Designated Borrower is party to any such transaction (other than any merger into the Parent Guarantor or the Company; it being understood and agreed that the Parent Guarantor or the Company, as applicable, shall be the continuing or surviving Person thereof), (x) such Designated Borrower shall be the continuing or surviving Person or (y) the continuing or surviving Person shall have met the conditions of Section 2.19 to the designation of such Person as a Designated Borrower and shall assume the obligations of the predecessor Designated Borrower); and (v) any Subsidiary of the Company (other than a Designated Borrower) may liquidate or dissolve if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the Lenders. For avoidance of doubt, in each case to the extent constituting a merger, dissolution, liquidation or consolidation after the effectiveness of this Agreement, each of the IPO Transactions is permitted under this Section 7.04.
7.05 Dispositions.
Make any Disposition (other than any Disposition to any Loan Party or any Subsidiary) of all or substantially all of the assets (whether now owned or hereafter acquired, including pursuant to a Delaware LLC Division) of any Loan Party and its Subsidiaries, taken as a whole. For avoidance of doubt, in each case to the extent constituting a Disposition after the effectiveness of this Agreement, each of the IPO Transactions is permitted under this Section 7.05.
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7.06 RestrictedPayments.
Declare or make, directly or indirectly, any Restricted Payment; provided that, (i) (a) each Loan Party and each Subsidiary may declare or make, directly or indirectly, any Restricted Payment required to qualify and maintain such Loan Party’s qualification as a real estate investment trust under Sections 856 through 860 of the Code, and (b) each Loan Party and each Subsidiary may declare or make, directly or indirectly, any Restricted Payment required to avoid the payment of federal or state income or excise tax; which permitted Restricted Payments under clauses (i)(a) and (i)(b), for the avoidance of doubt, include Restricted Payments from the Company or any of its Subsidiaries to its equity holders in order for the Parent Guarantor to comply with the foregoing, (ii) so long as no Default shall have occurred and be continuing or would result therefrom, each Loan Party and each Subsidiary may purchase, redeem, retire, acquire, cancel or terminate Equity Interests issued by such Loan Party or such Subsidiary so long as immediately after giving effect thereto the Parent Guarantor is in compliance on a Pro Forma Basis with the requirements of Section 7.10(e), (iii) so long as no Default shall have occurred and be continuing or would result therefrom, each Loan Party and each Subsidiary may make any payment on account of any return of capital to the Parent Guarantor’s stockholders, partners or members (or the equivalent Person thereof), (iv) each Loan Party and each Subsidiary may declare and make dividend payments, other distributions or other Restricted Payments payable solely in the Equity Interests in such Person, (v) any Subsidiary may at any time make Restricted Payments to the Parent Guarantor, the Company or any other Subsidiary and, solely to the extent such Restricted Payments to other holders of its Equity Interests are required by its Organization Documents, to such other holders of Equity Interests, (vi) each Loan Party and each Subsidiary may declare or make, directly or indirectly, any Restricted Payment within sixty (60) days after the date of declaration thereof, if on the date of declaration of such payment, such payment would have been permitted pursuant to another clause of this Section 7.06 and, on the date of such payment, no Default under Section 8.01(a), (f) or (g) shall have occurred and be continuing, (vii) so long as no Event of Default under Section 8.01(a), (f) or (g) shall have occurred and be continuing at the time of such payment, each Loan Party and each Subsidiary thereof may make any payments (including but not limited to management fees, expense reimbursement payments, indemnification payments and tax distributions) contemplated by the Management Agreement and (viii) (x) the Parent Guarantor may sell Equity Interests of the Parent Guarantor (other than Disqualified Equity Interests or Equity Interests sold to a Subsidiary of the Company) (collectively, “Refunding Equity Interests”) and the Parent Guarantor or the Company may substantially concurrently use the net proceeds from such Refunding Equity Interests to purchase or redeem Equity Interests of the Parent Guarantor or the Company (“Retired Equity Interests”) in a number equal to the Refunding Equity Interests sold by the Parent Guarantor and (y) the Parent Guarantor or the Company, as applicable, may declare and pay dividends or distributions on the Retired Equity Interests out of the net proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of Refunding Equity Interests; provided that, in the case of each of clauses (viii)(x) and (viii)(y), such Restricted Payment must be made within 90 days of the receipt of the proceeds from the issuance of such Refunding Equity Interests. For avoidance of doubt, in each case to the extent constituting a Restricted Payment after the effectiveness of this Agreement, each of the IPO Transactions is permitted under this Section 7.06.
7.07 Changein Nature of Business.
Engage in any material line of business substantially different from those lines of business conducted by each Loan Party and its Subsidiaries on the Closing Date or any business substantially related or incidental thereto.
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7.08 Transactionswith Affiliates.
Enter into any transaction of any kind with any Affiliate of any Loan Party (other than transactions between or among a Loan Party and a Subsidiary (including any entity that becomes a Subsidiary as a result of such transaction) (or any combination thereof)), whether or not in the ordinary course of business, except (i) transactions on fair and reasonable terms substantially as favorable to such Loan Party or such Subsidiary as would be obtainable by such Loan Party or such Subsidiary at the time in a comparable arm’s-length transaction with a Person other than an Affiliate, (ii) payments of compensation, perquisites and fringe benefits arising out of any employment or consulting relationship in the ordinary course of business, (iii) making Restricted Payments permitted by this Agreement, (iv) payments (whether in cash, securities or other property) by any non-Wholly-Owned Subsidiary of the Company, including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Equity Interests of such Subsidiary, or on account of any return of capital to such Subsidiary’s stockholders, partners or members (or the equivalent Person thereof), in any such case, made to holders of Equity Interests in such Subsidiary (x) to the extent required pursuant to such Subsidiary’s Organization Documents or (y) to the extent such payment would have been permitted by Section 7.06 had it constituted a Restricted Payment, (v) other transactions expressly permitted by this Agreement, (vi) transactions with Affiliates that are Disclosed Matters (together with any amendments, restatements, extensions, replacements or other modifications thereto that are not adverse to the interests of the Lenders in their capacities as such), (vii) transactions in the ordinary course of business that comply with the requirements of the North American Securities Administrators Association’s Statement of Policy of Real Estate Investment Trusts, (viii) transactions between a Loan Party or Subsidiary and any “taxable REIT subsidiary” (within the meaning of Section 856(l) of the Code) of any Loan Party or Subsidiary, (ix) the IPO Transactions, (x) entry into the Management Agreement and any Permitted Amendment thereof and (xi) transactions pursuant to the Management Agreement.
7.09 BurdensomeAgreements.
Enter into, assume or otherwise be bound, or permit any Wholly-Owned Subsidiary to enter into, assume or otherwise be bound, by any Negative Pledge other than (i) any Negative Pledge contained in an agreement entered into in connection with any Indebtedness that is permitted pursuant to Section 7.03, which Indebtedness is of a type that customarily includes a Negative Pledge or with respect to which such Negative Pledge is no more restrictive on a Loan Party or such Wholly-Owned Subsidiary in any material respect, when taken as a whole, than this Section 7.09 (as determined in good faith by the Company); (ii) any Negative Pledge required or imposed by, or arising under or as a result of, any Law; (iii) Negative Pledges contained in (x) the agreements set forth on Schedule 7.09 or that are Disclosed Matters; (y) any agreement relating to the Disposition of any Subsidiary or any assets pending such Disposition; provided that, in any such case, the Negative Pledge applies only to the Subsidiary or the assets that are the subject of such Disposition; or (z) any agreement in effect at the time any Person becomes a Wholly-Owned Subsidiary so long as such agreement was not entered into in contemplation of such Person becoming a Wholly-Owned Subsidiary and such restriction only applies to such Person and/or its assets, (iv) customary restrictions in leases, licenses and other contracts restricting the assignment thereof, (v) other customary restrictions set forth in agreements relating to assets specified in such agreements and entered into in the ordinary course of business to the extent such restrictions shall solely apply to such specified assets; and (vi) restrictions that apply only to the Equity Interests in, or assets of, any Person other than a Loan Party or a Wholly-Owned Subsidiary, in each case as such agreements, leases or other contracts may be amended from time to time and including any renewal, extension, refinancing or replacement thereof; provided that, with respect to any agreement described in clause (iii), such amendment, renewal, extension, refinancing or replacement does not contain restrictions of the type prohibited by this Section 7.09 that are, in the aggregate, more onerous in any material respect on a Loan Party or any Wholly-Owned Subsidiary than the restrictions, in the aggregate, in the original agreement.
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7.10 FinancialCovenants.
(a) Leverage Ratio. Permit the Leverage Ratio to be greater than 0.60 to 1.00 as of the end of any fiscal quarter. Notwithstanding the foregoing, in connection with the consummation of a Significant Acquisition, the Parent Guarantor shall be permitted to increase the maximum Leverage Ratio to 0.65 to 1.00 for any fiscal quarter in which a Significant Acquisition occurs and for the three (3) consecutive full fiscal quarters immediately thereafter; provided that, solely in the case of any increase pursuant to this sentence, in no event shall the Leverage Ratio exceed 0.65 to 1.00 as of the end of any fiscal quarter or exceed 0.60 to 1.00 for more than four (4) consecutive fiscal quarters in any consecutive five (5) fiscal quarter period.
(b) Secured Debt Ratio. Permit the Secured Debt Ratio to be greater than 0.40 to 1.00 as of the end of any fiscal quarter.
(c) Fixed Charge Coverage Ratio. Permit the Fixed Charge Coverage Ratio to be less than 1.50 to 1.00 as of the end of any fiscal quarter.
(d) Unsecured Leverage Ratio. Permit the Unsecured Leverage Ratio to be greater than 0.60 to 1.00 as of the end of any fiscal quarter. Notwithstanding the foregoing, in connection with the consummation of a Significant Acquisition, the Parent Guarantor shall be permitted to increase the maximum Unsecured Leverage Ratio to 0.65 to 1.00 for any fiscal quarter in which a Significant Acquisition occurs and for the three (3) consecutive full fiscal quarters immediately thereafter; provided that, solely in the case of any increase pursuant to this sentence, in no event shall the Unsecured Leverage Ratio exceed 0.65 to 1.00 as of the end of any fiscal quarter or exceed 0.60 to 1.00 for more than four (4) consecutive fiscal quarters in any consecutive five (5) fiscal quarter period.
(e) Consolidated Tangible Net Worth. Permit the Consolidated Tangible Net Worth to be less than the sum of (i) $2,040,890,000 as of the end of any fiscal quarter plus (ii) an amount equal to 75% of the net proceeds received by the Parent Guarantor from any offerings of Equity Interests of the Parent Guarantor occurring after the Closing Date.
(f) Unsecured Interest Coverage Ratio. Permit the Unsecured Interest Coverage Ratio to be less than 1.75 to 1.00 as of the end of any fiscal quarter.
7.11 Sanctions.
Directly or, to its knowledge, indirectly, use any part of the proceeds of any Credit Extension or lend, contribute or otherwise make available such Credit Extension or the proceeds of any Credit Extension to any Person (i) to fund any activities of or business with any Person, or in any Designated Jurisdiction, that, at the time of such funding, is the subject of Sanctions (except to the extent permitted for a Person that is required to comply with such Sanctions) or (ii) in any other manner that will result in a violation of Sanctions applicable to any party hereto.
7.12 Anti-CorruptionLaws.
Directly or, to its knowledge, indirectly use the proceeds of any Credit Extension for any purpose which would violate in any material respect any applicable Anti-Corruption Laws.
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Article VIII
Eventsof Default and Remedies
8.01 Eventsof Default.
Any of the following shall constitute an Event of Default:
(a) Non-Payment. Any Borrower or any other Loan Party fails to pay (i) when and as required to be paid herein, and in the currency required hereunder, any amount of principal of any Loan or any L/C Obligation, or (ii) within five (5) Business 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) Business Days after the same becomes due, any other amount payable hereunder or under any other Loan Document; or
(b) Specific Covenants. Any Borrower, any other Loan Party or any of their respective Subsidiaries fails to perform or observe any term, covenant or agreement contained in any of (i) Section 6.03(b), 6.05 (solely with respect to the legal existence of the Loan Parties), 6.11 or 6.15 or Article VII and such failure continues for five (5) consecutive Business Days, or (ii) Section 6.03(a) or (d) and such failure continues for fifteen (15) consecutive Business Days; or
(c) Other Defaults. Any Borrower, any Loan Party or any of their respective Subsidiaries fails to perform or observe any other covenant or agreement (not specified in Section 8.01(a) or 8.01(b)) contained in any Loan Document on its part to be performed or observed and such failure continues for thirty (30) consecutive days after the receipt by the Company of written notice of such failure from the Administrative Agent; provided that, if such failure is of such a nature that can be cured but cannot with reasonable effort be completely cured within thirty (30) days, then such thirty (30) day period shall be extended for such additional period of time (not exceeding ninety (90) additional days) as may be reasonably necessary to cure such failure so long as such Loan Party or its Subsidiaries, as applicable, commence such cure within such thirty (30) day period and diligently prosecute same until completion; or
(d) Representations and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of any Loan Party herein, in any other Loan Document, or in any document, certificate or other writing executed by a Responsible Officer and required to be furnished hereunder, shall be incorrect in any material respect when made or deemed made (or, in the case of the representations and warranties in Section 5.14(b) or any representation and warranty that is qualified by materiality, shall be incorrect in any respect when made or deemed made) and, with respect to any representation, warranty, certification or statement (other than the representations and warranties in Section 5.14(b)) not known by such Loan Party at the time made or deemed made to be incorrect, the defect causing such representation or warranty to be incorrect when made or deemed made is not removed within thirty (30) days after the first to occur of (i) the date upon which a Responsible Officer of any Loan Party obtains knowledge thereof or (ii) receipt by the Company of written notice thereof from the Administrative Agent; or
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(e) Cross-Default. (i) The Parent Guarantor, the Company or any of their respective Subsidiaries (A) (x) fails (after giving effect to any notice or grace periods applicable thereto) to make any required payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Material Recourse Indebtedness or (y) fails to observe or perform any other agreement or condition relating to any such Material Recourse Indebtedness 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, or, prior to the Investment Grade Election Effective Date, to permit the holder or holders of such Material Recourse Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holder or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Material Recourse Indebtedness pursuant to the terms thereof to be demanded or to become due or to require the Parent Guarantor, the Company or such Subsidiary to repurchase, prepay, defease or redeem (automatically or otherwise) or make an offer to repurchase, prepay, defease or redeem such Material Recourse Indebtedness pursuant to the terms thereof, prior to its stated maturity or (B) prior to the Investment Grade Election Effective Date, (x) fails (after giving effect to any notice or grace periods applicable thereto) to make any required payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Material Non-Recourse Indebtedness or (y) fails to observe or perform any other agreement or condition relating to any such Non-Material Recourse Indebtedness 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, or, prior to the Investment Grade Election Effective Date, to permit the holder or holders of such Material Non-Recourse Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holder or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Material Non-Recourse Indebtedness pursuant to the terms thereof to be demanded or to become due or to require the Parent Guarantor, the Company or such Subsidiary to repurchase, prepay, defease or redeem (automatically or otherwise) or make an offer to repurchase, prepay, defease or redeem such Material Non-Recourse Indebtedness pursuant to the terms thereof, prior to its stated maturity; 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 Loan Party or any Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as so defined) under such Swap Contract as to which any Loan Party or any Subsidiary is an Affected Party (as so defined) and, in either event, the Swap Termination Value owed by such Loan Party or such Subsidiary as a result thereof is greater than the Threshold Amount; provided that this clause (e) shall not apply to (1) secured Indebtedness that becomes due and payable (or as to which an offer to repurchase, prepay, defease or redeem is required to be made) as a result of the voluntary Disposition of the property or assets securing such Indebtedness, if such Disposition is permitted hereunder and under the documents providing for such Indebtedness and such Indebtedness that has become so due and payable (including as a result of such offer to repurchase, prepay, defease or redeem such Indebtedness) is assumed or repaid in full when and to the extent required under the document providing for such Indebtedness (after giving effect to any notice or grace periods applicable thereto), (2) any redemption, repurchase, conversion or settlement with respect to any convertible debt security which is consummated in accordance with the terms of such convertible debt security, unless such redemption, repurchase, conversion or settlement results from a default thereunder or an event of the type that constitutes an Event of Default or (3) any early payment requirement or unwinding or termination with respect to any Swap Contract (A) not arising out of a default by any Loan Party or any Subsidiary and (B) to the extent that such Swap Termination Value owed has been paid in full by any Loan Party or any of its Subsidiaries when due; or
(f) Insolvency Proceedings, Etc. Any Loan Party or any of its Material Subsidiaries 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, undismissed 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 undischarged, undismissed or unstayed for sixty (60) calendar days, or an order for relief is entered in any such proceeding; or
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(g) Inability to Pay Debts; Attachment. (i) Any Loan Party or any of its Material Subsidiaries 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 Loan Party or any of its Material Subsidiaries (i) a final non-appealable judgment or order that has not been discharged, satisfied, dismissed or vacated for the payment of money in an aggregate amount exceeding the Threshold Amount (to the extent (x) not paid, fully bonded or covered by independent third-party insurance as to which the insurer has not denied coverage or (y) for which such Loan Party or applicable Material Subsidiary has not been indemnified), or (ii) any one or more non-monetary final non-appealable judgments that have not been discharged, dismissed or vacated and that have, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case of clause (i) or (ii), (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) there is a period of sixty (60) 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, etc. (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 any Loan Party 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 failure by a Designated Borrower or any Subsidiary thereof that is incorporated or organized under the laws of Canada or any province or territory thereof to perform its obligations under a Canadian Pension Plan which has resulted or could reasonably be expected to result in liability of any Loan Party or any Subsidiary thereof in an aggregate amount in excess of the Threshold Amount; or
(j) Invalidity of Loan Documents. Any material 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 arising under the Loan Documents, ceases to be in full force and effect; or any Loan Party or any of its Subsidiaries contests in writing in any manner the validity or enforceability of any material provision of any Loan Document; or any Loan Party denies in writing that it has any or further liability or obligation under any Loan Document, or purports in writing to revoke, terminate or rescind any material provision of any Loan Document; or
(k) Change of Control. There occurs any Change of Control.
For purposes of clauses (f), (g), and (h) above (including as it relates to the exercise of remedies set forth below in Section 8.02), no Event of Default shall be deemed to have occurred with respect to a Material Group unless the type of event specified therein has occurred with respect to each Subsidiary that is a member of such Material Group.
8.02 RemediesUpon Event of Default.
If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any or all of the following actions:
(a) declare the Commitments of each Lender to make Loans and any obligation of the 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 the Loan Parties;
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(c) require that the Company Cash Collateralize the L/C Obligations (in an amount equal to the then Outstanding Amount thereof); and
(d) exercise on behalf of itself, the Lenders and the L/C Issuer all rights and remedies available to it, the Lenders and the L/C Issuer under the Loan Documents;
provided, however, that upon the occurrence of an Event of Default with respect to any Loan Party pursuant to Section 8.01(f) or (g) or the occurrence of an actual or deemed entry of an order for relief with respect to any Loan Party under the Bankruptcy Code or any other Debtor Relief Law solely with respect to a Designated Borrower, the obligation of each Lender to make Loans and any obligation of the 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 the Company to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender.
8.03 Applicationof Funds.
After the exercise of remedies provided for in Section 8.02 (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 8.02), any amounts received on account of the Obligations shall, subject to the provisions of Sections 2.17 and 2.18, be applied by the 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 the Administrative Agent and amounts payable under Article III) payable to the Administrative Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders and the L/C Issuer (including fees, charges and disbursements of counsel to the respective Lenders and the L/C Issuer and amounts payable under Article III), ratably among them in proportion to the 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 and L/C Borrowings and fees, premiums and scheduled periodic payments, and any interest accrued thereon, due under any Swap Contract between any Loan Party and any Lender, or any Affiliate of a Lender, ratably among the Lenders (and, in the case of such Swap Contracts, Affiliates of Lenders) and the 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 unpaid principal of the Loans and L/C Borrowings, payment of breakage, termination or other payments, and any interest accrued thereon, due under any Swap Contract between any Loan Party and any Lender, or any Affiliate of a Lender and amounts owing under Treasury Management Agreements, ratably among the Lenders (and, in the case of such Swap Contracts, Affiliates of Lenders), the Treasury Management Lenders and the L/C Issuer in proportion to the respective amounts described in this clause Fourth held by them;
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Fifth, to the Administrative Agent for the account of the 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 the Company pursuant to Sections 2.03, 2.06(d) and/or 2.17; and
Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Company or as otherwise required by Law.
Subject to Sections 2.03(c) and 2.17, 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 IX
AdministrativeAgent
9.01 Appointmentand Authority.
Each of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. Except as otherwise expressly set forth herein and except with respect to Section 9.06, the provisions of this Article IX are solely for the benefit of the Administrative Agent, the Lenders and the L/C Issuer, and no Loan Party shall have any rights as a third-party beneficiary of any of such provisions.
9.02 Rightsas a Lender.
The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the 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 banking, trust, financial, advisory, underwriting or other business with any Loan Party or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders or to provide notice to or obtain consent of the Lenders with respect thereto.
9.03 ExculpatoryProvisions.
The 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, the Administrative Agent and its Related Parties:
(a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
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(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 the 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 the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable 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 any Loan Party or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not taken by it (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 the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 10.01 and 8.02) or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final and non-appealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given to the Administrative Agent by the Company, a Lender or the L/C Issuer.
The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement 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 forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
9.04 Relianceby Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (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. The 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 the L/C Issuer, the Administrative Agent may presume that such condition is satisfactory to such Lender or the L/C Issuer unless the Administrative Agent shall have received notice to the contrary from such Lender or the L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Loan Parties), 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.
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9.05 Delegationof Duties.
The 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 the Administrative Agent. The 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 IX shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The 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 the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.
9.06 Resignationof Administrative Agent.
The Administrative Agent may at any time resign as Administrative Agent upon thirty (30) days’ notice to the Lenders, the L/C Issuer and the Company. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, subject to the approval (not to be unreasonably withheld or delayed) of the Company (unless an Event of Default has occurred and is continuing), 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; provided that if any such potential successor is not classified as a “U.S. person” and a “financial institution” within the meaning of Treasury Regulation Section 1.1441-1, then the Company shall have the right to prohibit such potential successor from becoming the Administrative Agent in its reasonable discretion. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may on behalf of the Lenders and the L/C Issuer (and subject to the approval (not to be unreasonably withheld or delayed) of the Company (unless an Event of Default has occurred and is continuing)), appoint a successor Administrative Agent meeting the qualifications set forth above; provided that if any such potential successor is not classified as a “U.S. person” and a “financial institution” within the meaning of Treasury Regulation Section 1.1441-1, then the Company shall have the right to prohibit such potential successor from becoming the Administrative Agent in its reasonable discretion; provided, further, that, if the retiring Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders or the L/C Issuer under any of the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral security on behalf of the Lenders or the L/C Issuer until such time as a successor Administrative Agent is appointed hereunder) and (2) all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and the L/C Issuer directly, until such time as the Required Lenders appoint a successor Administrative Agent as provided for above in this Section 9.06. 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 retired) Administrative Agent, and the retiring 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 9.06). The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the retiring Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article IX and Section 10.04 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent.
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Any resignation by Bank of America as Administrative Agent pursuant to this Section 9.06 shall also constitute its resignation as L/C Issuer, unless otherwise agreed to between the Company and Bank of America. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer, (b) the retiring L/C Issuer shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents as an L/C Issuer, and (c) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, issued by the retiring L/C Issuer and outstanding at the time of such succession or make other arrangement satisfactory to the retiring L/C Issuer to effectively assume the obligations of the retiring L/C Issuer with respect to such Letters of Credit.
9.07 Non-Relianceon Administrative Agent, the Arrangers and Other Lenders.
Each Lender and the L/C Issuer expressly acknowledges that none of the Administrative Agent or any Arranger has made any representation or warranty to it, and that no act by the Administrative Agent or any Arranger hereafter taken, including any consent to, and acceptance of any assignment or review of the affairs of any Loan Party of any Affiliate thereof, shall be deemed to constitute any representation or warranty by the Administrative Agent or any Arranger to any Lender or the L/C Issuer as to any matter, including whether the Administrative Agent or any Arranger has disclosed material information in its (or its Related Parties’) possession. Each Lender and the L/C Issuer acknowledges that it has, independently and without reliance upon the Administrative Agent or any Arranger 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 the L/C Issuer also acknowledges that it will, independently and without reliance upon the Administrative Agent, any Arranger 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, 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 the Loan Parties. Each Lender and the L/C Issuer represents and warrants that (i) the Loan Documents set forth the terms of a commercial lending facility and (ii) it is engaged in making, acquiring or holding commercial loans in the ordinary course and is entering into this Agreement as a Lender or L/C Issuer, as applicable, for the purpose of making, acquiring or holding commercial loans and providing other facilities set forth herein as may be applicable to such Lender or L/C Issuer, as applicable, and not for the purpose of purchasing, acquiring or holding any other type of financial instrument, and each Lender and the L/C Issuer agrees not to assert a claim in contravention of the foregoing. Each Lender and the L/C Issuer represents and warrants that it is sophisticated with respect to decisions to make, acquire and/or hold commercial loans and to provide other facilities set forth herein, as may be applicable to such Lender or such L/C Issuer, and either it, or the Person exercising discretion in making its decision to make, acquire and/or hold such commercial loans or to provide such other facilities, is experienced in making, acquiring or holding such commercial loans or providing such other facilities.
9.08 NoOther Duties, Etc.
Anything herein to the contrary notwithstanding, none of the Arrangers, Co-Syndication Agents, Co-Documentation Agents or Senior Managing Agents 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 the Administrative Agent, a Lender or the L/C Issuer hereunder.
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9.09 AdministrativeAgent May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding under any Debtor Relief Law relative to any Loan Party, the 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 the Administrative Agent shall have made any demand on any Loan Party) 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, the L/C Issuer and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the L/C Issuer and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the L/C Issuer and the Administrative Agent under Sections 2.03(g) and (h), 2.10 and 10.04) 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 the L/C Issuer to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders and the L/C Issuer, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.10 and 10.04.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or the L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.
9.10 Recoveryof Erroneous Payments.
Without limitation of any other provision in this Agreement, if at any time the Administrative Agent makes a payment hereunder in error to any Lender, whether or not in respect of an Obligation due and owing by any 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 the Administrative Agent forthwith on demand the Rescindable Amount received by such Lender in Same Day 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 the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. 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. The 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.
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9.11 GuarantyMatters.
The Lenders irrevocably authorize the Administrative Agent to release any Subsidiary Guarantor from its obligations under Article XII in accordance with Section 12.10. Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release any Subsidiary Guarantor from its obligations under Article XII pursuant to this Section 9.11, provided that neither the request nor the delivery of such confirmation shall be a condition to or shall cause any delay in the provision of any release permitted, required or requested in accordance with Section 12.10.
Article X
Miscellaneous
10.01 Amendments,Etc.
Except as set forth in Section 2.02(f) in respect of Conforming Changes made pursuant to such section, Section 2.15 in respect of an extension of a Maturity Date, Section 2.16 in respect of an Incremental Term Loan Amendment or Section 3.03 in respect of the replacement of Term SOFR, SOFR or the Relevant Rate and/or Conforming Changes or other amendments or modifications made pursuant to such section, no amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Company or any other Loan Party therefrom, shall be effective unless in writing signed 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) and the Company or the applicable Loan Party, as the case may be, and acknowledged by the 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) extend the expiration date or increase the amount of any Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.02) without the written consent of such Lender (it being understood and agreed that a waiver of any condition precedent in Section 4.02 or of any Default or Event of Default is not considered an extension or increase in the Commitments of any Lender);
(b) postpone any date fixed by this Agreement or any other Loan Document for any payment or mandatory prepayment (other than mandatory prepayments (if any) with respect to any Term Loans or Incremental Term Loans) 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 and adversely affected thereby;
(c) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (iv) of the second proviso to this Section 10.01) any fees or other amounts payable hereunder (including pursuant to Section 2.06) or under any other Loan Document without the written consent of each Lender directly and adversely affected thereby; provided, however, that (i) only the consent of the Required Class Lenders shall be necessary to amend the definition of “Default Rate” with respect to such Class or to waive any obligation of the Borrowers to pay interest at the Default Rate with respect to such Class, and (ii) only the consent of the Required Revolving Lenders shall be necessary to waive any obligation of the Borrowers to pay Letter of Credit Fees at the Default Rate;
(d) (i) change the definition of “Applicable Percentage” or Section 2.14 or Section 8.03 in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender directly and adversely affected thereby, (ii) change Section 2.07(b) in a manner that would alter the pro rata reductions required thereby without the written consent of each Revolving Lender directly and adversely affected thereby or (iii) change Section 2.07(c) in a manner that would alter the pro rata reductions required thereby without the written consent of each Term Loan Lender directly and adversely affected thereby;
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(e) change (i) any provision of this Section 10.01 or the definition of “Required Lenders” or “Required Class 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 10.01(e)), without the written consent of each Lender or (ii) the definition of “Required Revolving Lenders” or “Required Term Lenders” without the written consent of each Lender under the applicable Facility;
(f) (i) release the Parent Guarantor from its obligations as a Guarantor without the written consent of each Lender, (ii) release all or substantially all of the value of the Guaranteed Obligations of the Guarantor Parties (other than Parent Guarantor), taken as a whole, under the Guaranties (except as provided herein) without the written consent of each Lender, or (iii) release the Company from its Obligations as a Borrower or as a Guarantor without the written consent of each Lender; or
(g) directly and materially adversely affect the rights of Lenders holding Commitments or Loans of one Class differently from the rights of Lenders holding Commitments or Loans of any other Class without the written consent of the applicable Required Class Lenders;
and provided, further, that:
(x) only the written consent of each Revolving Lender shall be required to the extent such amendment, waiver or consent shall change the definition of “Canadian Dollars”;
(y) only the written consent of the Required Term Lenders shall be required to the extent such amendment, waiver or consent shall (i) amend, waive or otherwise modify any of the conditions precedent set forth in Section 4.02 with respect to any Term Loan or (ii) impose any greater restriction on the ability of any Term Lender to assign any of its rights or obligations hereunder; and
(z) only the written consent of the Required Revolving Lenders, and, to the extent required pursuant to clause (i) of the proviso below, the L/C Issuer, shall be required to the extent such amendment, waiver or consent shall (i) amend, waive or otherwise modify any of the conditions precedent set forth in Section 4.02 with respect to any Credit Extension under the Revolving Facility, (ii) impose any greater restriction on the ability of any Revolving Lender to assign any of its rights or obligations hereunder or (iii) release any Designated Borrower from its obligations as a Borrower;
and provided, further, that (i) no amendment, waiver or consent shall, unless in writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be issued by it; (ii) [reserved]; (iii) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document; (iv) any fee letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto (and, for the avoidance of doubt, no other parties shall have any right to approve or disapprove any such amendment, waiver or consent) and (v) no amendment, waiver or consent shall, unless in writing and signed by any Agent directly and adversely affected thereby in its capacity as such, in addition to the Administrative Agent and the Lenders required above, affect the rights or duties of such Agent under this Agreement or any other Loan Document in its capacity as such. 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 (or all Lenders of a Class or each affected Lender of a Class) may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) no Commitment of any Defaulting Lender may be increased or extended without the consent of such Defaulting Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders shall require the consent of such Defaulting Lender.
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Notwithstanding anything to the contrary herein, (A) the Administrative Agent and the Company may, with the consent of the other (but without the consent of any other Person), amend, modify or supplement any Loan Document to correct, amend or cure any ambiguity, inconsistency, omission, mistake or defect or correct any obvious error or any error or omission of an administrative or technical nature so long as such amendment, modification or supplement does not impose additional obligations on any Lender; provided that the Administrative Agent shall promptly give the Lenders notice of, and provide to the Lenders a copy of, any such amendment, modification or supplement, and (B) this Agreement may be amended and restated without the consent of any Lender (but with the consent of the Company and the Administrative Agent) if, upon giving effect to such amendment and restatement, such Lender shall no longer be a party to this Agreement (as so amended and restated), the Commitments of such Lender shall have terminated, and such Lender shall have no other commitment or other obligation hereunder and shall have been paid in full all principal, interest and other amounts owing to it or accrued for its account under this Agreement.
Notwithstanding the fact that the consent of all the Lenders is required in certain circumstances as set forth above, (x) each Lender is entitled to vote as such Lender sees fit on any reorganization plan that affects the Loans or, with respect to Revolving Lenders, the Letters of Credit, and each Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code supersede the unanimous consent provisions set forth herein and (y) the Required Lenders may consent to allow the Borrowers to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Lenders.
Notwithstanding any provision herein to the contrary, this Agreement may be amended with the written consent of the Required Lenders, the Administrative Agent and the Company (i) to add one or more additional revolving credit or term loan facilities to this Agreement 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 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 the Administrative Agent and approved by the Required Lenders, 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.
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In addition, notwithstanding the foregoing, the Company may, by written notice to the Administrative Agent from time to time, make one or more offers (each, a “Loan Modification Offer”) to all the Lenders to make one or more amendments or modifications to (A) allow the maturity of the Commitments or Loans of the Accepting Lenders (as defined below) to be extended, (B) modify the Applicable Rate and/or fees payable with respect to the Loans and Commitments of the Accepting Lenders, (C) modify any covenants or other provisions or add new covenants or provisions that are agreed between the Company, the Administrative Agent and the Accepting Lenders; provided that such modified or new covenants and provisions are applicable only during periods after the applicable Maturity Date that is in effect on the effective date of such Permitted Amendment, and (D) any other amendment to a Loan Document required to give effect to the Permitted Amendments described in clauses (A), (B) and (C) of this paragraph (“Permitted Amendments,” and any amendment to this Agreement to implement Permitted Amendments, a “Loan Modification Agreement”) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Company. Such notice shall set forth (i) the terms and conditions of the requested Permitted Amendments and (ii) the date on which such Permitted Amendments are requested to become effective. Permitted Amendments shall become effective only with respect to the Commitments and/or Loans of the Lenders that accept the applicable Loan Modification Offer (such Lenders, the “Accepting Lenders”) and, in the case of any Accepting Lender, only with respect to such Lender’s Commitments and/or Loans as to which such Lender’s acceptance has been made. The Company and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof, and the Company shall also deliver such resolutions, opinions and other documents as reasonably requested by the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that (1) upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendments evidenced thereby and only with respect to the Commitments and Loans of the Accepting Lenders as to which such Lenders’ acceptance has been made, (2) any applicable Lender who is not an Accepting Lender may be replaced by the Company in accordance with Section 10.13, and (3) the Administrative Agent and the Company shall be permitted to make any amendments or modifications to any Loan Documents necessary to allow any borrowings, prepayments, participations in Letters of Credit and commitment reductions to be ratable across each Class of commitments to make Loans the mechanics for which may be implemented through the applicable Loan Modification Agreement and may include technical changes related to the borrowing and repayment procedures of the Lenders; provided that with the consent of the Accepting Lenders such prepayments and commitment reductions and reductions in participations in Letters of Credit may be applied on a non-ratable basis to the class of non-Accepting Lenders.
Notwithstanding anything herein to the contrary, this Agreement may be amended in connection with Incremental Term Loans, as set forth in Section 2.16(e)(iii).
10.02 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 Section 10.02(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 the Company or any other Loan Party, the Administrative Agent, the L/C Issuer, to the address, facsimile number, electronic mail address or telephone number specified for such Person on Schedule 10.02; and
(ii) if to any other Lender, to the address, facsimile number, 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 the Loan Parties).
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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 Section 10.02(b) below, shall be effective as provided in such Section 10.02(b).
(b) Electronic Communications. Notices and other communications to the Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices to any Lender or the L/C Issuer provided pursuant to Article II if such Lender or the L/C Issuer, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article II by electronic communication. The Administrative Agent, the L/C Issuer or the Company 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 the 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, e-mail or other communication is not sent during the normal business hours of the recipient, such notice, e-mail 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 the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to any Loan Party, any Lender, the 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 any Loan Party’s or the Administrative Agent’s transmission of Borrower Materials or notices through the Platform, or 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 non-appealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party; provided, however, that in no event shall any Agent Party have any liability to any Loan Party, any Lender, the L/C Issuer or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).
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(d) Change of Address, Etc. Each of the Borrowers and any other Loan Party, the Administrative Agent and the L/C Issuer may change its address, facsimile number, telephone number or e-mail address for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, facsimile number, telephone number or e-mail address for notices and other communications hereunder by notice to the Company, the Administrative Agent, and, in the case of Revolving Lenders, the L/C Issuer. In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the 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 any Loan Party or its securities for purposes of United States Federal or state securities Laws.
(e) Reliance by Administrative Agent, L/C Issuer and Lenders. The Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including telephonic Committed Loan Notices) purportedly given by or on behalf of any 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. The Company shall indemnify the Administrative Agent, the 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 any Borrower in accordance with Section 10.02. All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.
10.03 NoWaiver; Cumulative Remedies.
No failure by any Lender, the L/C Issuer or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder 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 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 any Loan Party and its Subsidiaries or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 8.02 for the benefit of all the Lenders and the L/C Issuer; provided, however, that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) the 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 enforcing payments of amounts payable to such Lender pursuant to Sections 3.01, 3.04, 3.05 and 10.04 or from exercising setoff rights in accordance with Section 10.08 (subject to the terms of Section 2.14), 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 or any Subsidiary 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) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 8.02 and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to Section 2.14, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.
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10.04 Expenses;Indemnity; Damage Waiver.
(a) Costs and Expenses. Each Loan Party shall, jointly and severally, pay (i) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent and the Arrangers (limited, in the case of legal fees, to the reasonable and documented fees, charges and disbursements of one primary counsel, and, if applicable, one local counsel in each material jurisdiction, for the Administrative Agent), in connection with the syndication of the credit facilities provided for herein, due diligence, 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 and documented out-of-pocket expenses incurred by the L/C Issuer in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder (subject to the limitations set forth in clause (i) above with respect to legal fees) and (iii) all documented out-of-pocket expenses incurred by the Administrative Agent, any Lender or the L/C Issuer (limited, in the case of legal fees, to the reasonable and documented fees, charges and disbursements of (x) one primary counsel for the Administrative Agent (and, if reasonably required, one counsel for the Administrative Agent per specialty area and one local counsel for the Administrative Agent per applicable jurisdiction) and (y) one additional counsel for all the Lenders (and, if reasonably required, one additional counsel per specialty area and one local counsel per applicable jurisdiction), plus additional counsel for the Lenders as necessary in the event of an actual or potential conflict of interest among the Lenders), 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 10.04, or (B) in connection with the Loans made or Letters of Credit issued hereunder, including all such reasonable and documented out-of-pocket expenses (subject to the limitations set forth above with respect to legal fees) incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) Indemnification by the Loan Parties. Each Loan Party shall, jointly and severally, indemnify the Administrative Agent (and any sub-agent thereof), each Lender and the L/C Issuer, the Agents and their Affiliates 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, penalties, liabilities and related reasonable and documented out-of-pocket expenses (including the reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel for the Indemnitees; provided that reimbursement for reasonable and documented out-of-pocket fees, charges and disbursements of additional counsel of the Indemnitees will be limited to such specialist counsel as may reasonably be required by the Indemnitees, a single firm of local counsel for the Indemnitees in each material jurisdiction and, in the event of an actual or potential conflict of interest (as reasonably determined by the applicable Indemnitee), one additional firm of counsel to each group of similarly affected Indemnitees), incurred by any Indemnitee or asserted against any Indemnitee by any third party or by any Loan Party 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 (including, without limitation, each Lender’s agreement to make Loans or the use or intended use of the proceeds thereof) or, in the case of the 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 the 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 any Loan Party or any of its Subsidiaries, or any Environmental Liability related in any way to any Loan Party or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by any Loan Party, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, penalties, liabilities or related expenses (A)(x) 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 or any of its Related Indemnified Parties or (y) result from a claim brought by any Loan Party against an Indemnitee for breach in bad faith or a material breach of the obligations of such Indemnitee or any of its Related Indemnified Parties hereunder or under any other Loan Document, if any Loan Party has obtained a final and non-appealable judgment in its favor on such claim as determined by a court of competent jurisdiction or (B) arise out of a dispute solely among Indemnitees and not resulting from any act or omission by any Loan Party or any of its Affiliates (other than any such losses, claims, damages, penalties, liabilities or related reasonable and documented out-of-pocket expenses against an Indemnitee in its capacity or in fulfilling its role as an Agent). Notwithstanding the foregoing, Section 3.01 shall be the sole remedy for any indemnification claim in respect of Taxes. No Loan Party shall, except as a result of its indemnification obligations hereunder, and nor shall any of its Related Parties have any liability for any indirect or consequential damages (as opposed to direct or actual damages) in connection with its activities related to the Revolving Facility.
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(c) Reimbursement by Lenders. To the extent that any Loan Party for any reason fails to indefeasibly pay any amount required under Section 10.04(a) or 10.04(b) to be paid by it to the Administrative Agent (or any sub-agent thereof), the L/C Issuer or any Related Party of any of the foregoing and without relieving such Loan Party of its obligations with respect thereto, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), the L/C Issuer or such Related Party, as the case may be, such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent) or the L/C Issuer in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent) or the L/C Issuer in connection with such capacity. The obligations of the Lenders under this Section 10.04(c) are subject to the provisions of Section 2.13(d).
(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable Law, each Loan Party shall not assert, and hereby waives, any claim against any of the Administrative Agent (and any sub-agent thereof), each Lender and the L/C Issuer, the Agents and their Affiliates and each Related Party of any of the foregoing Persons (each such Person being called a “Lender Related Party”), 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 Letter of Credit or the use of the proceeds thereof. No Lender Related Party shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it 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, except to the extent of such Lender Related Party’s gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final, non-appealable judgment.
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(e) Payments. All amounts due under this Section 10.04 shall be payable not later than ten (10) Business Days after demand therefor (accompanied by backup documentation to the extent available).
(f) Survival. The agreements in this Section 10.04 shall survive the resignation of the Administrative Agent, the L/C Issuer, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations.
10.05 PaymentsSet Aside.
To the extent that any payment by or on behalf of any Loan Party is made to the Administrative Agent, the L/C Issuer or any Lender, or the Administrative Agent, the 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 the Administrative Agent, the 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 the L/C Issuer severally agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the 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 applicable Overnight Rate from time to time in effect, in the applicable currency of such recovery or payment. The obligations of the Lenders and the 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.
10.06 Successorsand 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 the Company nor any other Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent, the L/C Issuer and each Lender (provided that, for the avoidance of doubt, the rights and obligations of any Loan Party may be assigned to any applicable surviving or successor Loan Party in connection with a transaction permitted by, and consummated in accordance with, Section 7.04) 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 or grant of a security interest subject to the restrictions of subsection (f) 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 the Administrative Agent, the L/C Issuer and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
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(b) Assignments by Lenders. Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment(s) and the Loans with respect to any Facility (including for purposes of this subsection (b), participations in L/C Obligations) at the time owing to it); provided that, with respect to any Facility, 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(s) and/or the Loans at the time owing to it, in each case with respect to any Facility, or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and
(B) in any case not described in subsection (b)(i)(A) of this Section, the aggregate amount of the applicable Commitment (which for this purpose includes Loans outstanding thereunder) or, if the applicable Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, in each case with respect to any Facility, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000 in the case of any assignment in respect of a Facility unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, any Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed); provided, however, that concurrent assignments to members of an Assignee Group and concurrent assignments from members of an Assignee Group to a single assignee (or to an assignee and members of its Assignee Group) will be treated as a single assignment for purposes of determining whether such minimum amount has been met.
(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 Commitments 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 and, in addition:
(A) the consent of the Company (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 in respect of (i) the Revolving Facility to a Person that is a Revolving Lender, an Affiliate of any Revolving Lender or an Approved Fund with respect to any Revolving Lender or (ii) the Term Facility to a Person that is a Lender, an Affiliate of a Lender or an Approved Fund with respect to any Lender; provided that the Company shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof;
(B) the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required unless such assignment is in respect of (i) the Revolving Facility to a Person that is a Revolving Lender, an Affiliate of any Revolving Lender or an Approved Fund with respect to any Revolving Lender or (ii) the Term Facility to a Person that is a Lender, an Affiliate of a Lender or an Approved Fund with respect to any Lender; and
(C) the consent of the L/C Issuer (such consent not to be unreasonably withheld or delayed) shall be required for any assignment of a Revolving Commitment that increases the obligation of the assignee to participate in exposure under one or more Letters of Credit (whether or not then outstanding).
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(iv) Assignment and Assumption. The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500; provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.
(v) No Assignment to the Loan Parties. No such assignment shall be made to any Loan Party or any of the Loan Parties’ Affiliates or Subsidiaries.
(vi) No Assignment to Natural Persons. No such assignment shall be made to a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural person).
(vii) No Assignment to Defaulting Lenders. No such assignment shall be made to a 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 (vii).
(viii) Certain Additional Payments. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Company and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent 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 the Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the Eligible 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 10.04 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, each Borrower (at its expense) shall execute and deliver Note(s) with respect to the applicable Facility or Facilities 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.
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(c) Register. The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of any Borrower (and such agency being solely for tax purposes), shall maintain at the 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 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 the Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. In addition, the Administrative Agent shall maintain on the Register information regarding the designation, and revocation of designation, of any Lender as a Defaulting Lender. The Register shall be available for inspection by any Borrower, the L/C Issuer and any Lender (with respect to its own interest only), 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, any Borrower, the Administrative Agent or the L/C Issuer, sell participations to any Person (other than a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural person), a Defaulting Lender (or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute a Defaulting Lender or any of its Subsidiaries) or any Loan Party or any of the Loan Parties’ 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 Commitments and/or the Loans (including such Lender’s participations in L/C Obligations under the Revolving Facility) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrowers, the Administrative Agent, the Lenders and the 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.
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 10.01 that affects such Participant. Subject to subsection (e) of this Section, the Company 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(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 10.06(b); provided that such Participant agrees to be subject to the provisions of Sections 3.01, 3.04, 3.05, 3.06 and 10.13 and any requirements or limitations contained therein as if it were an assignee under subsection (b) of this Section. Each Lender that sells a participation agrees, at the Company’s request and expense, to use reasonable efforts to cooperate with the Company 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 10.08 as though it were a Lender; provided such Participant agrees to be subject to Section 2.14 as though it were a Lender.
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Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Company, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(e) Limitations upon Participant Rights. A Participant shall not be entitled to receive any greater payment under Section 3.01 or 3.04 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Company’s prior written consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.01 unless the Company is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrowers, to comply with Section 3.01(e) as though it were a Lender.
(f) Certain Pledges. Any Lender may at any time pledge, assign or grant a security interest in, all or any portion of its rights under this Agreement (including under its Note(s), if any) to secure obligations of such Lender, including any pledge or assignment or grant of a security interest to secure obligations to a Federal Reserve Bank or other central banking authority; provided that no such pledge or assignment or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee or grantee for such Lender as a party hereto.
(g) [Reserved].
(h) 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 Revolving Commitment and Revolving Loans pursuant to subsection (b) above, Bank of America may, upon thirty (30) days’ notice to the Company and the Lenders, resign as L/C Issuer. In the event of any such resignation or any other Person’s resignation as L/C Issuer, the Company shall be entitled to appoint from among the Revolving Lenders (with the applicable Revolving Lender’s consent) a successor L/C Issuer hereunder; provided, however, that no failure by the Company 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 the L/C Issuer hereunder with respect to all Letters of Credit issued by it and 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 Revolving Lenders to make Revolving Loans that are Base Rate Committed Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(b)). Upon the appointment of a successor L/C Issuer, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer, and (b) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, issued by the resigning L/C Issuer and outstanding at the time of such succession or make other arrangements reasonably satisfactory to Bank of America to effectively assume the obligations of the resigning L/C Issuer with respect to such Letters of Credit.
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10.07 Treatmentof Certain Information; Confidentiality.
Each of the Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) on a need-to-know basis to its Affiliates and to its and its Affiliates’ respective partners, directors, officers, employees, agents, advisors, consultants, service providers and representatives (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 governmental agency or regulatory authority purporting to have jurisdiction over it or its Affiliates (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable Laws 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 (or no less restrictive than) those of this Section 10.07, 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 2.16(c), (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to any of the Borrowers and its obligations or (iii) an actual or potential insurer or reinsurer, (g) with the consent of the Company, (h) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section 10.07 or (y) becomes available to the Administrative Agent, any Lender, the L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than the Company that the Administrative Agent, any such Lender or the L/C Issuer reasonably believes is not bound by a duty of confidentiality to the Company, (i) to any rating agency in connection with rating the Company or its Subsidiaries or the credit facilities provided hereunder (provided such rating agencies are advised of the confidential nature of such information and agree to keep such information confidential), (j) on a confidential basis to the CUSIP Service Bureau or any similar agency in connection with the application, issuance, publishing and monitoring of CUSIP numbers or other market identifiers with respect to the credit facilities provided hereunder or (k) to any Person that would qualify as an Eligible Assignee hereunder (without giving effect to the consent required under Section 10.06(b)(iii)) providing financing to the disclosing Lender, to the extent reasonably required by such Person (provided such other Persons are advised of the confidential nature of such information and agree to keep such information confidential). In addition, the Administrative Agent and the Lenders may disclose the existence of this Agreement and customary information about this Agreement to market data collectors, similar service providers to the lending industry and service providers to the Agents and the Lenders in connection with the administration of this Agreement, the other Loan Documents, and the Commitments.
For purposes of this Section 10.07, “Information” means all information received from or on behalf of the Company or any Subsidiary relating to the Company or any Subsidiary or any of their respective businesses, other than any such information that is available to the Administrative Agent, any Lender or the L/C Issuer on a nonconfidential basis prior to disclosure by the Company or any Subsidiary; provided that, in the case of information received from the Company 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 10.07 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 or its other similarly situated customers’ confidential information.
Each of the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a) the Information may include material non-public information concerning any Loan Party or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in accordance with applicable Law, including United States Federal and state securities Laws.
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For the avoidance of doubt, nothing herein prohibits any individual from communicating or disclosing information regarding suspected violations of laws, rules, or regulations to a Governmental Authority (including any self-regulatory authority) without any notification to any Person.
10.08 Rightof Setoff.
If an Event of Default shall have occurred and be continuing, each Lender, the 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, the L/C Issuer or any such Affiliate to or for the credit or the account of the applicable Loan Party against any and all of the Obligations of such Loan Party now or hereafter existing under this Agreement or any other Loan Document to such Lender or the L/C Issuer, irrespective of whether or not such Lender or the L/C Issuer shall have made any demand under this Agreement or any other Loan Document and although such obligations of such Loan Party may be contingent or unmatured or are owed to a branch or office of such Lender or the L/C Issuer different from the branch or office 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 the Administrative Agent for further application in accordance with the provisions of Section 2.18 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (y) such Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender, the L/C Issuer and their respective Affiliates under this Section 10.08 are in addition to other rights and remedies (including other rights of setoff) that such Lender, the L/C Issuer or their respective Affiliates may have. Each Lender and the L/C Issuer agrees to notify the Company and the 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.
10.09 InterestRate 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 (including without limitation, under the Criminal Code (Canada) with respect to any Designated Borrower) (the “Maximum Rate”). If the 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 the Company. In determining whether the interest contracted for, charged, or received by the 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.
10.10 Integration;Effectiveness.
This Agreement and the other Loan Documents 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 Section 4.01, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto.
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10.11 Survivalof Representations and Warranties.
All representations and warranties made hereunder and in any other Loan Document or any document, certificate or other writing executed by a Responsible Officer and required to be furnished hereunder shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by the Administrative Agent and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the 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.
10.12 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 10.12, 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 the Administrative Agent or the L/C Issuer, as applicable, then such provisions shall be deemed to be in effect only to the extent not so limited.
10.13 Replacementof Lenders.
If any Lender requests compensation under Section 3.04, or if any Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lender’s obligation to make, continue or convert to Affected Loans is suspended pursuant to Section 3.02, or if any Lender is a Defaulting Lender, or if any Lender does not consent to any amendment or waiver of any provision hereof or of any other Loan Document for which its consent is required under Section 10.01 after Required Lenders or applicable Required Class Lenders have consented thereto, then the Company may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 10.06), all of its interests, rights and obligations under this Agreement and the related Loan Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that:
(a) the assignment fee specified in Section 10.06(b) shall have been paid to or waived by the Administrative Agent;
(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 the Company (or the applicable Designated Borrower) (in the case of all other amounts);
(c) in the case of any such assignment resulting from (i) 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, (ii) a suspension of a Lender’s obligation to make, continue or convert to Affected Loans pursuant to Section 3.02, the applicable assignee shall not be subject to a similar suspension and (iii) a Lender not consenting to any amendment or waiver hereunder or under any Loan Document for which its consent is required under Section 10.01, the applicable assignee shall have consented to such amendment or waiver; and
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(d) such assignment does not conflict with applicable Laws.
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 the Company to require such assignment and delegation cease to apply.
Each party hereto agrees that (i) an assignment required pursuant to this Section 10.13 may be effected pursuant to an Assignment and Assumption executed by the Company, the Administrative Agent and the assignee and (ii) the Lender required to make such assignment need not be a party thereto in order for such assignment to be effective and shall be deemed to have consented to and be bound by the terms thereof; provided that, following the effectiveness of any such assignment, the other parties to such assignment agree to execute and deliver such documents necessary to evidence such assignment as reasonably requested by the applicable Lender; provided, further, that any such documents shall be without recourse to or warranty by the parties thereto.
10.14 GoverningLaw; Jurisdiction; Etc.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
(b) SUBMISSION TO JURISDICTION. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING (WHETHER IN CONTRACT, TORT, OR OTHERWISE AND WHETHER AT LAW OR IN EQUITY) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION 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 OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE COMPANY OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
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(c) WAIVER OF VENUE. EACH PARTY HERETO 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 SECTION 10.14(b). 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 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
10.15 Waiverof 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 10.15.
10.16 NoAdvisory 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), the Company and each other Loan Party acknowledges and agrees**,** and acknowledges its Subsidiaries’ understanding, that: (i) (A) the arranging and other services regarding this Agreement provided by the Administrative Agent, the Lenders and the Arrangers are arm’s-length commercial transactions between the Company and each other Loan Party, on the one hand, and the Administrative Agent, the Lenders and the Arrangers, on the other hand, (B) the Company and each other Loan Party has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) the Company 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) the Administrative Agent, each Lender and each Arranger each 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 the Company or any other Loan Party or any of its Affiliates, or any other Person and (B) neither the Administrative Agent, any Lender nor any Arranger has any obligation to the Company or any other Loan Party or any of its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) the Administrative Agent, the Lenders and the Arrangers and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company and each other Loan Party and its Affiliates, and neither the Administrative Agent, any Lender nor any Arranger has any obligation to disclose any of such interests to the Company or any other Loan Party or its Affiliates. To the fullest extent permitted by law, the Company and each other Loan Party hereby waives and releases any claims that it may have against the Administrative Agent, the Lenders and the Arrangers with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.
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10.17 USAPatriot Act, Canadian AML Acts and Beneficial Ownership Regulation Notice.
Each Lender that is subject to the Patriot Act (as hereinafter defined) (or solely with respect to the Canadian AML Acts, a Designated Borrower) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Company and each other Loan Party 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”) (or solely with respect to the Canadian AML Acts, a Designated Borrower), and the Beneficial Ownership Regulation, as applicable, it is required to obtain, verify and record information that identifies the Company and each other Loan Party, which information includes the name and address of the Company and each other Loan Party and other information that will allow such Lender or the Administrative Agent, as applicable, to identify the Company and each other Loan Party in accordance with the Patriot Act (or solely with respect to the Canadian AML Acts, a Designated Borrower) and the Beneficial Ownership Regulation, as applicable.
10.18 Deliveryof Signature Page.
Each Lender to become a party to this Agreement on the date hereof shall do so by delivering to the Administrative Agent a counterpart of this Agreement duly executed by such Lender.
10.19 JudgmentCurrency.
If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due hereunder or under any other Loan Document in one currency into another currency, the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase the first currency with such other currency on the Business Day preceding that on which final judgment is given. The obligation of the Company and each other Loan Party in respect of any such sum due from it to the Administrative Agent or any Lender hereunder or under the other Loan Documents shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other than that in which such sum is denominated in accordance with the applicable provisions of this Agreement (the “Agreement Currency”), be discharged only to the extent that on the Business Day following receipt by the Administrative Agent or such Lender, as the case may be, of any sum adjudged to be so due in the Judgment Currency, the Administrative Agent or such Lender, as the case may be, may in accordance with normal banking procedures purchase the Agreement Currency with the Judgment Currency. If the amount of the Agreement Currency so purchased is less than the sum originally due to the Administrative Agent or any Lender from the Company or any other Loan Party in the Agreement Currency, the Company and each other Loan Party agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or such Lender, as the case may be, against such loss. If the amount of the Agreement Currency so purchased is greater than the sum originally due to the Administrative Agent or any Lender in such currency, the Administrative Agent or such Lender, as the case may be, agrees to return the amount of any excess to the Company or such other Loan Party (or to any other Person who may be entitled thereto under applicable law). All of the Company’s and each other Loan Party’s obligations under this Section 10.19 shall survive termination of the Aggregate Commitments and repayment of all other Obligations hereunder.
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10.20 Acknowledgementand Consent to Bail-In of Affected Financial Institutions.
Solely to the extent any Lender or L/C Issuer that is an Affected Financial Institution is a party to this Agreement and 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 or L/C Issuer 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 or L/C Issuer 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.
10.21 ElectronicExecution; Electronic Records; Counterparts.
This Agreement, any Loan Document and any other 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 the Administrative Agent and each Lender Party 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. The 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 the Administrative Agent or the 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 the Administrative Agent and the L/C Issuer has agreed to accept such Electronic Signature, the 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 Lender Party without further verification and (b) upon the reasonable request of the Administrative Agent or any Lender Party, any Electronic Signature shall be promptly followed by such manually executed counterpart.
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10.22 [RESERVED].
10.23 LenderRepresentations.
(a) Each Lender (x) represents and warrants, as of the Closing Date or such later date such Person became a Lender party hereto, to, and (y) covenants, from the Closing Date or such later date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and the Arrangers and their respective Affiliates and not, for the avoidance of doubt, to or for the benefit of any Loan Party, that at least one of the following is and will be true:
(i) such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments or this Agreement,
(ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement,
(iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of subsections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, or
(iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.
(b) In addition, unless either (1) subclause (i) in the immediately preceding clause (a) is true with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordance with subclause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the Closing Date or such later date such Person became a Lender party hereto, to, and (y) covenants, from the Closing Date or such later date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and the Arrangers and their respective Affiliates and not, for the avoidance of doubt, to or for the benefit of any Loan Party, that none of the Administrative Agent or the Arrangers or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent or the Arrangers under this Agreement, any Loan Document or any documents related hereto or thereto).
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10.24 AcknowledgementRegarding 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 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 10.24, 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).
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10.25 Appointmentof Company.
Each of the Loan Parties hereby appoints the Company to act as its agent for all purposes of this Agreement, the other Loan Documents and all other documents and electronic platforms entered into in connection herewith and agrees that any notice or communication delivered by the Administrative Agent, L/C Issuer or a Lender to the Company shall be deemed delivered to each Loan Party.
10.26 Keepwell.
Each Loan Party that is a Qualified ECP Guarantor at the time the Guaranty or the grant of a Lien under the Loan Documents, in each case, by any 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 Loan Party with respect to such Swap Obligation as may be needed by such Loan Party from time to time to honor all of its obligations under the 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 such Qualified ECP Guarantor’s obligations and undertakings under this Article XI voidable under applicable Law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations and undertakings of each Qualified ECP Guarantor under this Section 10.26 shall remain in full force and effect until the Obligations have been indefeasibly paid and performed in full. Each Loan Party intends this Section 10.26 to constitute, and this Section 10.26 shall be deemed to constitute, a guarantee of the obligations of, and a “keepwell, support, or other agreement” for the benefit of, each Loan Party for all purposes of the Commodity Exchange Act.
Article XI
ContinuingGuaranty
11.01 Guaranty.
Each of the Parent Guarantor and each other Parent Subsidiary Guarantor (each, a “Parent Entity Guarantor”) hereby absolutely and unconditionally, jointly and severally guarantees, as primary obligor and as guaranty of payment and performance and not merely as a guaranty of collection, prompt payment when due, whether at stated maturity, by required prepayment, upon acceleration, demand or otherwise, and at all times thereafter, of any and all Obligations (for each Parent Entity Guarantor, subject to the proviso in this sentence, its “Guaranteed Obligations”); provided that (a) the Guaranteed Obligations of such Parent Entity Guarantor shall exclude any Excluded Swap Obligations with respect to such Parent Entity Guarantor and (b) the liability of such Parent Entity Guarantor individually with respect to this Guaranty shall be limited to an aggregate amount equal to the largest amount that would not render its obligations hereunder subject to avoidance under Section 548 of the Bankruptcy Code of the United States or any comparable provisions of any applicable state law or other applicable Law. Without limiting the generality of the foregoing, the Guaranteed Obligations shall include any such indebtedness, obligations, and liabilities, or portion thereof, which may be or hereafter become unenforceable or compromised or shall be an allowed or disallowed claim under any proceeding or case commenced by or against any debtor under any Debtor Relief Laws. The Administrative Agent’s books and records showing the amount of the Obligations shall be admissible in evidence in any action or proceeding, and shall be binding upon each Parent Entity Guarantor, and conclusive for the purpose of establishing the amount of the Obligations. This Guaranty shall not be affected by the genuineness, validity, regularity or enforceability of the Obligations or any instrument or agreement evidencing any Obligations, or by the existence, validity, enforceability, perfection, non-perfection or extent of any collateral therefor, or by any fact or circumstance relating to the Obligations which might otherwise constitute a defense to the obligations of any Parent Entity Guarantor, or any of them, under this Guaranty, and each Parent Entity Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to any or all of the foregoing (other than a defense as to the payment in full of the Guaranteed Obligations).
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11.02 Rightsof Lenders.
Each Parent Entity Guarantor consents and agrees that the Administrative Agent, the L/C Issuer and each of the other Lenders may, at any time and from time to time, without notice or demand, and without affecting the enforceability or continuing effectiveness hereof: (a) amend, extend, renew, compromise, discharge, accelerate or otherwise change the time for payment or the terms of the Obligations or any part thereof; (b) take, hold, exchange, enforce, waive, release, fail to perfect, sell, or otherwise dispose of any security for the payment of this Guaranty or any Obligations; (c) apply such security and direct the order or manner of sale thereof as the Administrative Agent, the L/C Issuer or any of the Lenders in their sole discretion may determine; and (d) release or substitute one or more of any endorsers or other guarantors of any of the Obligations. Without limiting the generality of the foregoing, each Parent Entity Guarantor consents to the taking of, or failure to take, any action which might in any manner or to any extent vary the risks of any Parent Entity Guarantor under this Guaranty or which, but for this provision, might operate as a discharge of any Parent Entity Guarantor.
11.03 CertainWaivers.
Each Parent Entity Guarantor waives (a) any defense arising by reason of any disability or other defense of any Borrower, or the cessation from any cause whatsoever (including any act or omission of the Administrative Agent, the L/C Issuer or any other Lender) of the liability of any Borrower (other than as to the payment in full of the Guaranteed Obligations); (b) any defense based on any claim that such Parent Entity Guarantor’s obligations exceed or are more burdensome than those of any Borrower; (c) the benefit of any statute of limitations affecting such Parent Entity Guarantor’s liability hereunder; (d) any right to proceed against any Borrower, proceed against or exhaust any security for the Obligations, or pursue any other remedy in the power of the Administrative Agent, the L/C Issuer or any other Lender whatsoever; (e) any benefit of and any right to participate in any security now or hereafter held by the Administrative Agent, the L/C Issuer or any other Lender; and (f) to the fullest extent permitted by law, any and all other defenses or benefits that may be derived from or afforded by applicable Law limiting the liability of or exonerating guarantors or sureties (other than as to the payment in full of the Guaranteed Obligations). Each Parent Entity Guarantor expressly waives all setoffs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Obligations, and all notices of acceptance of this Guaranty or of the existence, creation or incurrence of new or additional Obligations.
11.04 ObligationsIndependent.
The obligations of each Parent Entity Guarantor hereunder are those of primary obligor, and not merely as surety, and are independent of the Obligations and the obligations of any other guarantor, and a separate action may be brought against any Parent Entity Guarantor to enforce this Guaranty whether or not any Borrower or any other person or entity is joined as a party.
11.05 Subrogation.
Each Parent Entity Guarantor shall not exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Guaranty until all of the Obligations have been paid in full in cash (other than contingent Obligations that are not then due and payable) and the Commitments are terminated. If any amounts are paid to any Parent Entity Guarantor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Administrative Agent, the L/C Issuer and the other Lenders and shall forthwith be paid to the Administrative Agent, the L/C Issuer and the other Lenders to reduce the amount of the Obligations, whether matured or unmatured.
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11.06 Termination;Reinstatement.
This Guaranty is a continuing and irrevocable guaranty of all Guaranteed Obligations now or hereafter existing and shall remain in full force and effect until the earlier of (i) the payment in cash of all Guaranteed Obligations and the Commitments and the Facilities with respect to the Guaranteed Obligations are terminated (other than contingent indemnification obligations as to which no claim has been asserted)and (ii) the release of the applicable Parent Entity Guarantor pursuant to Section 10.01(f). Notwithstanding the foregoing, this Guaranty shall continue in full force and effect or be revived, as the case may be, if any payment by or on behalf of any Borrower or any Parent Entity Guarantor is made, or any of the Administrative Agent, the L/C Issuer or the other Lenders exercises its right of setoff, in respect of the Obligations 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 any of the Administrative Agent, the L/C Issuer or the other Lenders in their discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Laws or otherwise, all as if such payment had not been made or such setoff had not occurred and whether or not the Administrative Agent, the L/C Issuer or the other Lenders are in possession of or have released this Guaranty and regardless of any prior revocation, rescission, termination or reduction. The obligations of each Parent Entity Guarantor under this Section 11.06 shall survive termination of this Guaranty.
11.07 Stayof Acceleration.
If acceleration of the time for payment of any of the Obligations is stayed, in connection with any case commenced by or against any Parent Entity Guarantor or any Borrower under any Debtor Relief Laws, or otherwise, all such amounts shall nonetheless be payable by the Parent Entity Guarantors immediately upon demand by the Administrative Agent or the Lenders.
11.08 Conditionof Borrowers.
Each Parent Entity Guarantor acknowledges and agrees that it has the sole responsibility for, and has adequate means of, obtaining from any Borrower such information concerning the financial condition, business and operations of any Borrower as such Parent Entity Guarantor requires, and that none of the Administrative Agent, the L/C Issuer or any other Lender has any duty, and such Parent Entity Guarantor is not relying on the Administrative Agent, the L/C Issuer or any other Lender at any time, to disclose to it any information relating to the business, operations or financial condition of any Borrower (such Parent Entity Guarantor waiving any duty on the part of the Administrative Agent, the L/C Issuer or any other Lender to disclose such information and any defense relating to the failure to provide the same).
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11.09 Releaseof Parent Entity Guarantors. A Parent Entity Guarantor (other than the Parent Guarantor) shall be automatically released from this Guaranty, and any Liens granted by such Parent Entity Guarantor in respect of the Obligations shall be automatically released, if (a) such Parent Entity Guarantor ceases to be a Wholly-Owned Subsidiary of the Parent Guarantor and ceases to directly or indirectly hold any Equity Interests of the Company in a transaction not prohibited by this Agreement; and (b) the Administrative Agent shall have received a certificate of the Company signed by a Responsible Officer certifying that, as of the date of such release, (x) the matters set forth in clause (a) are true and correct, (y) no Default or Event of Default shall then exist or would occur as a result of such releases and (z) the representations and warranties contained in Article V and in the other Loan Documents are true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect or similar language, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of release of such Parent Entity Guarantor (other than (i) such representations and warranties which are expressly made only as of the Closing Date and (ii) following the occurrence of the Investment Grade Election Effective Date, the representations and warranties set forth in Section 5.05(c) and Section 5.22, which, following the occurrence of the Investment Grade Election Effective Date, shall be made only as of the last date on which such representations and warranties were made under the Loan Documents prior to the Investment Grade Election Effective Date), except to the extent that such representations and warranties specifically refer to an earlier date, in which case they were true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect or similar language, in which case such representation or warranty shall have been true and correct in all respects) as of such earlier date, and except that for purposes of this Section 11.09, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01. The Administrative Agent agrees to furnish to the Company, promptly after the Company’s request and at the Company’s sole cost and expense, any release, termination, or other agreement or document as is reasonably necessary or advisable to evidence the foregoing release or as may be reasonably requested by the Company.
Article XII
SubsidiaryGuarantor Continuing Guaranty
12.01 Guaranty.
Each Subsidiary Guarantor hereby absolutely and unconditionally, jointly and severally guarantees, as primary obligor and as guaranty of payment and performance and not merely as a guaranty of collection, prompt payment when due, whether at stated maturity, by required prepayment, upon acceleration, demand or otherwise, and at all times thereafter, of any and all Obligations (for each Subsidiary Guarantor, subject to the proviso in this sentence, its “Guaranteed Obligations”); provided that (a) the Guaranteed Obligations of such Subsidiary Guarantor shall exclude any Excluded Swap Obligations with respect to such Subsidiary Guarantor and (b) the liability of such Subsidiary Guarantor individually with respect to this Guaranty shall be limited to an aggregate amount equal to the largest amount that would not render its obligations hereunder subject to avoidance under Section 548 of the Bankruptcy Code of the United States or any comparable provisions of any applicable state law or other applicable Law. Without limiting the generality of the foregoing, the Guaranteed Obligations shall include any such indebtedness, obligations, and liabilities, or portion thereof, which may be or hereafter become unenforceable or compromised or shall be an allowed or disallowed claim under any proceeding or case commenced by or against any debtor under any Debtor Relief Laws. The Administrative Agent’s books and records showing the amount of the Obligations shall be admissible in evidence in any action or proceeding, and shall be binding upon each Subsidiary Guarantor, and conclusive for the purpose of establishing the amount of the Obligations. This Guaranty shall not be affected by the genuineness, validity, regularity or enforceability of the Obligations or any instrument or agreement evidencing any Obligations, or by the existence, validity, enforceability, perfection, non-perfection or extent of any collateral therefor, or by any fact or circumstance relating to the Obligations which might otherwise constitute a defense to the obligations of any Subsidiary Guarantor, or any of them, under this Guaranty, and each Subsidiary Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to any or all of the foregoing (other than a defense as to the payment in full of the Guaranteed Obligations).
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12.02 Rightsof Lenders.
Each Subsidiary Guarantor consents and agrees that the Administrative Agent, the L/C Issuer and each of the other Lenders may, at any time and from time to time, without notice or demand, and without affecting the enforceability or continuing effectiveness hereof: (a) amend, extend, renew, compromise, discharge, accelerate or otherwise change the time for payment or the terms of the Obligations or any part thereof; (b) take, hold, exchange, enforce, waive, release, fail to perfect, sell, or otherwise dispose of any security for the payment of this Guaranty or any Obligations; (c) apply such security and direct the order or manner of sale thereof as the Administrative Agent, the L/C Issuer or any of the Lenders in their sole discretion may determine; and (d) release or substitute one or more of any endorsers or other guarantors of any of the Obligations. Without limiting the generality of the foregoing, each Subsidiary Guarantor consents to the taking of, or failure to take, any action which might in any manner or to any extent vary the risks of such Subsidiary Guarantor under this Guaranty or which, but for this provision, might operate as a discharge of such Subsidiary Guarantor.
12.03 CertainWaivers.
Each Subsidiary Guarantor waives (a) any defense arising by reason of any disability or other defense of any Borrower, or the cessation from any cause whatsoever (including any act or omission of the Administrative Agent or any other Lender) of the liability of any Borrower (other than as to the payment in full of the Guaranteed Obligations); (b) any defense based on any claim that such Subsidiary Guarantor’s obligations exceed or are more burdensome than those of any Borrower; (c) the benefit of any statute of limitations affecting such Subsidiary Guarantor’s liability hereunder; (d) any right to proceed against any Borrower, proceed against or exhaust any security for the Obligations, or pursue any other remedy in the power of the Administrative Agent or any other Lender whatsoever; (e) any benefit of and any right to participate in any security now or hereafter held by the Administrative Agent or any other Lender; and (f) to the fullest extent permitted by law, any and all other defenses or benefits that may be derived from or afforded by applicable Law limiting the liability of or exonerating guarantors or sureties (other than as to the payment in full of the Guaranteed Obligations). Each Subsidiary Guarantor expressly waives all setoffs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Obligations, and all notices of acceptance of this Guaranty or of the existence, creation or incurrence of new or additional Obligations.
12.04 ObligationsIndependent.
The obligations of each Subsidiary Guarantor hereunder are those of primary obligor, and not merely as surety, and are independent of the Obligations and the obligations of any other guarantor, and a separate action may be brought against such Subsidiary Guarantor to enforce this Guaranty whether or not any Borrower or any other person or entity is joined as a party.
12.05 Subrogation.
No Subsidiary Guarantor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Guaranty until all of the Obligations have been paid in full in cash (other than contingent Obligations that are not then due and payable) and the Commitments are terminated. If any amounts are paid to any Subsidiary Guarantor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Administrative Agent, the L/C Issuer and the other Lenders and shall forthwith be paid to the Administrative Agent, the L/C Issuer and the other Lenders to reduce the amount of the Obligations, whether matured or unmatured.
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12.06 Termination;Reinstatement.
This Guaranty is a continuing and irrevocable guaranty of all Guaranteed Obligations now or hereafter existing and shall remain in full force and effect until the earlier of (i) the payment in cash of all Guaranteed Obligations and the Commitments and the Facilities with respect to the Guaranteed Obligations are terminated (other than contingent indemnification obligations as to which no claim has been asserted) and (ii) the release of the applicable Subsidiary Guarantor pursuant to Section 12.10. Notwithstanding the foregoing, this Guaranty shall continue in full force and effect or be revived, as the case may be, if any payment by or on behalf of any Borrower or the applicable Subsidiary Guarantor is made, or any of the Administrative Agent, the L/C Issuer or the other Lenders exercises its right of setoff, in respect of the Obligations 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 any of the Administrative Agent, the L/C Issuer or the other Lenders in their discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Laws or otherwise, all as if such payment had not been made or such setoff had not occurred and whether or not the Administrative Agent, the L/C Issuer or the other Lenders are in possession of or have released this Guaranty and regardless of any prior revocation, rescission, termination or reduction. The obligations of each Subsidiary Guarantor under this Section 12.06 shall survive termination of this Guaranty.
12.07 Stayof Acceleration.
If acceleration of the time for payment of any of the Obligations is stayed, in connection with any case commenced by or against any Subsidiary Guarantor or any Borrower under any Debtor Relief Laws, or otherwise, all such amounts shall nonetheless be payable by such Subsidiary Guarantor immediately upon demand by the Administrative Agent or the Lenders.
12.08 Conditionof Borrowers.
Each Subsidiary Guarantor acknowledges and agrees that it has the sole responsibility for, and has adequate means of, obtaining from any Borrower such information concerning the financial condition, business and operations of any Borrower as such Subsidiary Guarantor requires, and that none of the Administrative Agent, the L/C Issuer or any other Lender has any duty, and neither Subsidiary Guarantor is relying on the Administrative Agent, the L/C Issuer or any other Lender at any time, to disclose to it any information relating to the business, operations or financial condition of any Borrower (each Subsidiary Guarantor waiving any duty on the part of the Administrative Agent, the L/C Issuer or any other Lender to disclose such information and any defense relating to the failure to provide the same).
12.09 Subordination. Each Subsidiary Guarantor hereby subordinates the payment of all obligations and indebtedness of any Borrower owing to such Subsidiary Guarantor, whether now existing or hereafter arising, including but not limited to any obligation of any Borrower to such Subsidiary Guarantor as subrogee of the Administrative Agent, on behalf of the Lenders, or resulting from such Subsidiary Guarantor’s performance under this Guaranty, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Administrative Agent so requests, after the occurrence and during the continuance of an Event of Default, any such obligation or indebtedness of any Borrower to any Subsidiary Guarantor shall be enforced and performance received by such Subsidiary Guarantor as trustee for the Administrative Agent, on behalf of the Lenders, and the proceeds thereof shall be paid over to the Administrative Agent, on behalf of the Lenders, on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of such Subsidiary Guarantor under this Guaranty.
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12.10 Releaseof Subsidiary Guarantors. A Subsidiary Guarantor shall be automatically released from this Guaranty, and any Liens granted by such Subsidiary Guarantor in respect of the Obligations shall be automatically released, if: (a) (i) prior to the Investment Grade Election Effective Date, such Subsidiary Guarantor is not a Covered Unencumbered Pool Entity (including, for the avoidance of doubt, after giving effect to any transaction not prohibited by this Agreement) or Unsecured Debt Subsidiary; or (ii) on or after the Investment Grade Election Effective Date, such Subsidiary Guarantor is not an Unsecured Debt Subsidiary pursuant to a transaction not prohibited by this Agreement; and (b) the Administrative Agent shall have received a certificate of the Company signed by a Responsible Officer certifying that, as of the date of such release, (x) the matters set forth in clause (a)(i) or (a)(ii), as applicable, are true and correct, (y) no Default or Event of Default shall then exist or would occur as a result of such releases and (z) the representations and warranties contained in Article V and in the other Loan Documents are true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect or similar language, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of release of such Subsidiary Guarantor (other than (i) such representations and warranties which are expressly made only as of the Closing Date and (ii) following the occurrence of the Investment Grade Election Effective Date, the representations and warranties set forth in Section 5.05(c) and Section 5.22, which, following the occurrence of the Investment Grade Election Effective Date, shall be made only as of the last date on which such representations and warranties were made under the Loan Documents prior to the Investment Grade Election Effective Date), except to the extent that such representations and warranties specifically refer to an earlier date, in which case they were true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect or similar language, in which case such representation or warranty shall have been true and correct in all respects) as of such earlier date, and except that for purposes of this Section 12.10, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01. The Administrative Agent agrees to furnish to the Company, promptly after the Company’s request and at the Company’s sole cost and expense, any release, termination, or other agreement or document as is reasonably necessary or advisable to evidence the foregoing release or as may be reasonably requested by the Company.
Article XIII
COMPANY’sContinuing Guaranty
13.01 Guaranty.
The Company hereby absolutely and unconditionally, jointly and severally guarantees, as primary obligor and as guaranty of payment and performance and not merely as a guaranty of collection, prompt payment when due, whether at stated maturity, by required prepayment, upon acceleration, demand or otherwise, and at all times thereafter, of any and all Obligations of each other Borrower (for the Company, subject to the proviso in this sentence, its “Guaranteed Obligations”); provided that (a) the Guaranteed Obligations of the Company shall exclude any Excluded Swap Obligations with respect to the Company and (b) the liability of the Company individually with respect to this Guaranty shall be limited to an aggregate amount equal to the largest amount that would not render its obligations hereunder subject to avoidance under Section 548 of the Bankruptcy Code of the United States or any comparable provisions of any applicable state law or other applicable Law. Without limiting the generality of the foregoing, the Guaranteed Obligations shall include any such indebtedness, obligations, and liabilities, or portion thereof, which may be or hereafter become unenforceable or compromised or shall be an allowed or disallowed claim under any proceeding or case commenced by or against any debtor under any Debtor Relief Laws. The Administrative Agent’s books and records showing the amount of the Obligations shall be admissible in evidence in any action or proceeding, and shall be binding upon the Company, and conclusive for the purpose of establishing the amount of the Obligations. This Guaranty shall not be affected by the genuineness, validity, regularity or enforceability of the Obligations or any instrument or agreement evidencing any Obligations, or by the existence, validity, enforceability, perfection, non-perfection or extent of any collateral therefor, or by any fact or circumstance relating to the Obligations which might otherwise constitute a defense to the obligations of the Company, or any of them, under this Guaranty, and the Company hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to any or all of the foregoing (other than a defense as to the payment in full of the Guaranteed Obligations).
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13.02 Rightsof Lenders.
The Company consents and agrees that the Administrative Agent, the L/C Issuer and each of the other Lenders may, at any time and from time to time, without notice or demand, and without affecting the enforceability or continuing effectiveness hereof: (a) amend, extend, renew, compromise, discharge, accelerate or otherwise change the time for payment or the terms of the Obligations or any part thereof; (b) take, hold, exchange, enforce, waive, release, fail to perfect, sell, or otherwise dispose of any security for the payment of this Guaranty or any Obligations; (c) apply such security and direct the order or manner of sale thereof as the Administrative Agent, the L/C Issuer or any of the Lenders in their sole discretion may determine; and (d) release or substitute one or more of any endorsers or other guarantors of any of the Obligations. Without limiting the generality of the foregoing, the Company consents to the taking of, or failure to take, any action which might in any manner or to any extent vary the risks of the Company under this Guaranty or which, but for this provision, might operate as a discharge of the Company.
13.03 CertainWaivers.
The Company waives (a) any defense arising by reason of any disability or other defense of any Borrower, or the cessation from any cause whatsoever (including any act or omission of the Administrative Agent, the L/C Issuer or any other Lender) of the liability of any Borrower (other than as to the payment in full of the Guaranteed Obligations); (b) any defense based on any claim that the Company’s obligations exceed or are more burdensome than those of any Borrower; (c) the benefit of any statute of limitations affecting the Company’s liability hereunder; (d) any right to proceed against any Borrower, proceed against or exhaust any security for the Obligations, or pursue any other remedy in the power of the Administrative Agent, the L/C Issuer or any other Lender whatsoever; (e) any benefit of and any right to participate in any security now or hereafter held by the Administrative Agent, the L/C Issuer or any other Lender; and (f) to the fullest extent permitted by law, any and all other defenses or benefits that may be derived from or afforded by applicable Law limiting the liability of or exonerating guarantors or sureties (other than as to the payment in full of the Guaranteed Obligations). The Company expressly waives all setoffs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Obligations, and all notices of acceptance of this Guaranty or of the existence, creation or incurrence of new or additional Obligations.
13.04 ObligationsIndependent.
The obligations of the Company hereunder are those of primary obligor, and not merely as surety, and are independent of the Obligations and the obligations of any other guarantor, and a separate action may be brought against the Company to enforce this Guaranty whether or not any Borrower or any other person or entity is joined as a party.
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13.05 Subrogation.
The Company shall not exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Guaranty until all of the Obligations have been paid in full in cash (other than contingent Obligations that are not then due and payable) and the Commitments are terminated. If any amounts are paid to the Company in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Administrative Agent, the L/C Issuer and the other Lenders and shall forthwith be paid to the Administrative Agent, the L/C Issuer and the other Lenders to reduce the amount of the Obligations, whether matured or unmatured.
13.06 Termination;Reinstatement.
This Guaranty is a continuing and irrevocable guaranty of all Guaranteed Obligations now or hereafter existing and shall remain in full force and effect until the payment in cash of all Guaranteed Obligations and the Commitments and the Facilities with respect to the Guaranteed Obligations are terminated (other than contingent indemnification obligations as to which no claim has been asserted). Notwithstanding the foregoing, this Guaranty shall continue in full force and effect or be revived, as the case may be, if any payment by or on behalf of any other Borrower or the Company is made, or any of the Administrative Agent, the L/C Issuer or the other Lenders exercises its right of setoff, in respect of the Obligations 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 any of the Administrative Agent, the L/C Issuer or the other Lenders in their discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Laws or otherwise, all as if such payment had not been made or such setoff had not occurred and whether or not the Administrative Agent, the L/C Issuer or the other Lenders are in possession of or have released this Guaranty and regardless of any prior revocation, rescission, termination or reduction. The obligations of the Company under this Section 13.06 shall survive termination of this Guaranty.
13.07 Stayof Acceleration.
If acceleration of the time for payment of any of the Obligations is stayed, in connection with any case commenced by or against the Company or any other Borrower under any Debtor Relief Laws, or otherwise, all such amounts shall nonetheless be payable by the Company immediately upon demand by the Administrative Agent or the Lenders.
13.08 Conditionof Borrowers.
The Company acknowledges and agrees that it has the sole responsibility for, and has adequate means of, obtaining from any Borrower such information concerning the financial condition, business and operations of any Borrower as the Company requires, and that none of the Administrative Agent, the L/C Issuer or any other Lender has any duty, and the Company is not relying on the Administrative Agent, the L/C Issuer or any other Lender at any time, to disclose to it any information relating to the business, operations or financial condition of any Borrower (the Company waiving any duty on the part of the Administrative Agent, the L/C Issuer or any other Lender to disclose such information and any defense relating to the failure to provide the same).
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13.09 Releaseof Company.
The Company shall be automatically released from this Guaranty with respect to the Guaranteed Obligations of any Designated Borrower, and any Liens granted by the Company in respect of such Guaranteed Obligations shall be automatically released, if: (a) such Guaranteed Obligations of such Designated Borrower are repaid or otherwise discharged in full at any time; (b) such Designated Borrower shall cease to be a Designated Borrower hereunder; and (c) the Administrative Agent shall have received a certificate of the Company signed by a Responsible Officer certifying that, as of the date of such release, (x) the matters set forth in clause (a) are true and correct, (y) no Default or Event of Default shall then exist or would occur as a result of such releases and (z) the representations and warranties contained in Article V and in the other Loan Documents are true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect or similar language, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of release of the Company (other than (i) such representations and warranties which are expressly made only as of the Closing Date and (ii) following the occurrence of the Investment Grade Election Effective Date, the representations and warranties set forth in Section 5.05(c) and Section 5.22, which, following the occurrence of the Investment Grade Election Effective Date, shall be made only as of the last date on which such representations and warranties were made under the Loan Documents prior to the Investment Grade Election Effective Date), except to the extent that such representations and warranties specifically refer to an earlier date, in which case they were true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect or similar language, in which case such representation or warranty shall have been true and correct in all respects) as of such earlier date, and except that for purposes of this Section 13.09, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01. The Administrative Agent agrees to furnish to the Company, promptly after the Company’s request and at the Company’s sole cost and expense, any release, termination, or other agreement or document as is reasonably necessary or advisable to evidence the foregoing release or as may be reasonably requested by the Company.
[Remainder of Page Intentionally Left Blank]
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Each of the parties hereto have caused this Agreement to be duly executed as of the date first above written.
| JANUS LIVING OP, LLC, as the Company and a Borrower | ||
|---|---|---|
| By: | Janus Living, Inc., its managing member | |
| By: | /s/ Ankit Patadia | |
| Name: | Ankit Patadia | |
| Title: | Executive Vice President, Treasurer and Head of Finance & Capital Markets | |
| JANUS LIVING, INC., as the Parent Guarantor | ||
| By: | /s/ Ankit Patadia | |
| Name: | Ankit Patadia | |
| Title: | Executive Vice President, Treasurer and Head of Finance & Capital Markets |
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| Janus living trs, llc, as a Subsidiary Guarantor | ||
|---|---|---|
| By: Janus Living OP, LLC, its sole member | ||
| By: Janus Living, Inc., its managing member | ||
| By: | /s/ Ankit Patadia | |
| Name: | Ankit Patadia | |
| Title: | Executive Vice President, Treasurer and Head of Finance & Capital Markets | |
| ALEWIFE PROPCO 1, LLC | ||
| BRANDYWINE GP, LLC | ||
| HCP S-H OPCO TRS, LLC | ||
| JANUS FUND 1, LLC, | ||
| as Subsidiary Guarantors | ||
| By: | /s/ Patrick Cheng | |
| Name: | Patrick Cheng | |
| Title: | Senior Vice President |
2
| BOTHELL OPCO 1, LLC | ||
|---|---|---|
| BOTHELL PROPCO 1, LLC | ||
| BRANDYWINE HOLDCO A, LLC | ||
| BRANDYWINE HOLDCO B, LLC | ||
| EAST COBB OPCO 1, LLC | ||
| EAST COBB PROPCO 1, LLC | ||
| LEESBURG OPCO 1, LLC | ||
| LEESBURG PROPCO 1, LLC | ||
| LPC OPCO HOLDCO, LLC | ||
| LPC PROPCO HOLDCO, LLC | ||
| NONA LAKES OPCO 1, LLC | ||
| NONA LAKES PROPCO 1, LLC | ||
| QUADRANGLE HOLDCO A, LLC | ||
| QUADRANGLE HOLDCO B, LLC | ||
| SH OPCO HOLDCO, LLC | ||
| SH PROPCO HOLDCO, LLC | ||
| WEST COBB OPCO 1, LLC | ||
| WEST COBB PROPCO 1, LLC | ||
| WILDWOOD OPCO 1, LLC | ||
| WILDWOOD PROPCO 1, LLC, | ||
| as Subsidiary Guarantors | ||
| By: | /s/ Patrick Cheng | |
| Name: | Patrick Cheng | |
| Title: | President |
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| BRANDYWINE PROPCO 1, LLC | ||
|---|---|---|
| CCRC–BRANDYWINE, LLC | ||
| CCRC–FREEDOM FAIRWAYS GOLF COURSE, LLC | ||
| CCRC–FREEDOM POINTE AT THE VILLAGES, LLC | ||
| CCRC–LAKE PORT SQUARE, LLC | ||
| CCRC–REGENCY OAKS, LLC | ||
| CCRC–SOUTH PORT SQUARE, LLC | ||
| CCRC HOLDCO–HOLLAND, LLC | ||
| CCRC OPCO–BRADENTON, LLC | ||
| CCRC OPCO–CYPRESS VILLAGE, LLC | ||
| CCRC OPCO–FREEDOM SQUARE, LLC | ||
| CCRC OPCO–GALLERIA WOODS, LLC | ||
| CCRC OPCO–GLEANNLOCH FARMS, LLC | ||
| CCRC OPCO–HOLLAND, LLC | ||
| CCRC OPCO–SUN CITY CENTER, LLC | ||
| CCRC OPCO VENTURES, LLC | ||
| CCRC PROPCO-BRADENTON, LLC | ||
| CCRC PROPCO–CYPRESS VILLAGE, LLC | ||
| CCRC PROPCO–FREEDOM PLAZA, LLC | ||
| CCRC PROPCO–FREEDOM SQUARE, LLC | ||
| CCRC PROPCO–GALLERIA WOODS, LLC | ||
| CCRC PROPCO–GLEANNLOCH FARMS, LLC | ||
| CCRC PROPCO–HOLLAND, LLC | ||
| CCRC PROPCO–HOMEWOOD RESIDENCE, LLC, | ||
| as Subsidiary Guarantors | ||
| By: | /s/ Patrick Cheng | |
| Name: | Patrick Cheng | |
| Title: | Vice President & Corporate Secretary |
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| FDG-VINTAGE PARK II PROPERTY, LLC | ||
|---|---|---|
| S-H THIRTY-FIVE PROPCO - NORTH RICHLAND HILLS 1, LLC | ||
| S-H THIRTY-FIVE PROPCO - NORTH RICHLAND HILLS 2, LLC | ||
| S-H THIRTY-FIVE PROPCO-ARVADA MERIDIAN, LLC | ||
| S-H THIRTY-FIVE PROPCO – BOULDER MERIDIAN, LLC | ||
| S-H THIRTY-FIVE PROPCO - LAKEWOOD MERIDIAN, LLC | ||
| S-H THIRTY-FIVE PROPCO – LOWRY, LLC | ||
| S-H THIRTY-FIVE PROPCO - ROUND ROCK, LLC | ||
| S-H THIRTY FIVE PROPCO - SAN MARCOS, LLC | ||
| S-H THIRTY-FIVE PROPCO – WESTLAND MERIDIAN, LLC | ||
| SH 2019 OPCO HOLDCO II, LLC | ||
| SH PROPCO CLEAR LAKE, LLC | ||
| SH PROPCO FIRST COLONY, LLC | ||
| SH PROPCO GALLERIA, LLC | ||
| SH PROPCO GERMANTOWN, LLC | ||
| SH PROPCO OLNEY II, LLC | ||
| SH PROPCO PARK AT VERNON HILLS, LLC | ||
| SH PROPCO PECAN PARK, LLC | ||
| SH PROPCO TERRACE MEMORIAL CITY, LLC | ||
| SH PROPCO TERRACE WEST, LLC | ||
| SH PROPCO VINTAGE PARK AL, LLC, | ||
| as Subsidiary Guarantors | ||
| By: | /s/ Patrick Cheng | |
| --- | --- | --- |
| Name: | Patrick Cheng | |
| Title: | Vice President |
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| CCRC PROPCO–LADY LAKE, LLC | ||
|---|---|---|
| CYPRESS GARDEN HOMES, LLC | ||
| HCP MA3 PENNSYLVANIA, LLC | ||
| HCP MA3 VIRGINIA, LLC | ||
| HCP S-H SUNRISE OPCO HOLDCO, LLC | ||
| LAKE PORT SQUARE PROPCO 1, LLC | ||
| LAKE SEMINOLE SQUARE, LLC | ||
| LAKE SEMINOLE SQUARE PROPCO 1, LLC | ||
| REGENCY OAKS PROPCO 1, LLC | ||
| S-H OPCO CLEAR LAKE, LLC | ||
| S-H OPCO FIRST COLONY, LLC | ||
| S-H OPCO GERMANTOWN, LLC | ||
| S-H OPCO PARK AT VERNON HILLS, LLC | ||
| S-H OPCO PECAN PARK, LLC | ||
| S-H OPCO TERRACE MEMORIAL CITY, LLC | ||
| S-H OPCO TERRACE WEST, LLC | ||
| S-H OPCO VINTAGE PARK AL, LLC | ||
| S-H OPCO GALLERIA, LLC | ||
| S-H THIRTY-FIVE OPCO – ARVADA MERIDIAN, LLC, | ||
| as Subsidiary Guarantors | ||
| By: | /s/ Patrick Cheng | |
| --- | --- | --- |
| Name: | Patrick Cheng | |
| Title: | Vice President & Corporate Secretary |
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| S-H THIRTY-FIVE OPCO - BOULDER MERIDIAN, LLC | ||
|---|---|---|
| S-H THIRTY-FIVE OPCO – LAKEWOOD MERIDIAN, LLC | ||
| S-H THIRTY-FIVE OPCO - LOWRY, LLC | ||
| S-H THIRTY-FIVE OPCO – NORTH RICHLAND HILLS, LLC | ||
| S-H THIRTY-FIVE OPCO – ROUND ROCK, LLC | ||
| S-H THIRTY-FIVE OPCO – SAN MARCOS, LLC | ||
| S-H THIRTY FIVE OPCO-WESTLAND MERIDIAN, LLC | ||
| SH OPCO OLNEY, LLC | ||
| SH OPCO THE FAIRFAX, LLC | ||
| SH OPCO THE QUADRANGLE, LLC | ||
| SH OPCO VINTAGE PARK II, LLC | ||
| SOUTH PORT SQUARE PROPCO 1, LLC | ||
| THE VILLAGES PROPCO 1, LLC, | ||
| as Subsidiary Guarantors | ||
| By: | /s/ Patrick Cheng | |
| --- | --- | --- |
| Name: | Patrick Cheng | |
| Title: | Vice President & Corporate Secretary |
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| bank of america, n.a., <br><br>as Administrative Agent | ||
|---|---|---|
| By: | /s/ Liliana Claar | |
| Name: | Liliana Claar | |
| Title: | Vice President |
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| bank of america, n.a., <br><br>as a Revolving Lender, a Term Lender and an L/C Issuer | ||
|---|---|---|
| By: | /s/ Darren Merten | |
| Name: | Darren Merten | |
| Title: | Managing Director |
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| JPMORGAN CHASE BANK, N.A., as a Revolving Lender and a Term Lender | ||
|---|---|---|
| By: | /s/ Jason Baeten | |
| Name: | Jason Baeten | |
| Title: | Executive Director |
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| WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Revolving Lender and a Term Lender | ||
|---|---|---|
| By: | /s/ Andrea S Chen | |
| Name: | Andrea S Chen | |
| Title: | Managing Director |
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| BARCLAYS BANK, PLC, as a Revolving Lender and a Term Lender | ||
|---|---|---|
| By: | /s/ Charlene Saldanha | |
| Name: | Charlene Saldanha | |
| Title: | Director |
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| GOLDMAN SACHS BANK USA, as a Revolving Lender and a Term Lender | ||
|---|---|---|
| By: | /s/ Jonathan Dworkin | |
| Name: | Jonathan Dworkin | |
| Title: | Authorized Signatory |
13
| MORGAN STANLEY BANK, N.A., as a Revolving Lender and a Term Lender | ||
|---|---|---|
| By: | /s/ Michael King | |
| Name: | Michael King | |
| Title: | Authorized Signatory |
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| ROYAL BANK OF CANADA, as a Revolving Lender and a Term Lender | ||
|---|---|---|
| By: | /s/ William Behuniak | |
| Name: | William Behuniak | |
| Title: | Authorized Signatory |
15
| PNC BANK, NATIONAL ASSOCIATION, as a Revolving Lender and a Term Lender | ||
|---|---|---|
| By: | /s/ James A. Harmann | |
| Name: | James A. Harmann | |
| Title: | Senior Vice President |
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| MIZUHO BANK, LTD, as a Revolving Lender and a Term Lender | ||
|---|---|---|
| By: | /s/ Donna DeMagistris | |
| Name: | Donna DeMagistris | |
| Title: | Managing Director |
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| CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as a Revolving Lender and a Term Lender | ||
|---|---|---|
| By: | /s/ Jill Wong | |
| Name: | Jill Wong | |
| Title: | Director | |
| By: | /s/ Gordon Yip | |
| Name: | Gordon Yip | |
| Title: | Director |
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| KEYBANK NATIONAL ASSOCIATION, as a Revolving Lender and a Term Lender | ||
|---|---|---|
| By: | /s/ Laura Conway | |
| Name: | Laura Conway | |
| Title: | Senior Vice President |
19
| TRUIST BANK, as a Revolving Lender and a Term Lender | ||
|---|---|---|
| By: | /s/ Tim Conway | |
| Name: | Tim Conway | |
| Title: | Vice President |
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| BNP PARIBAS, as a Revolving Lender and a Term Lender | ||
|---|---|---|
| By: | /s/ John Bosco | |
| Name: | John Bosco | |
| Title: | Managing Director | |
| By: | /s/ Kirby Young | |
| Name: | Kirby Young | |
| Title: | Vice President |
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| TD BANK, N.A., as a Revolving Lender and a Term Lender | ||
|---|---|---|
| By: | /s/ George Skoufis | |
| Name: | George Skoufis | |
| Title: | Vice President |
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| THE BANK OF NOVA SCOTIA, as a Revolving Lender and a Term Lender | ||
|---|---|---|
| By: | /s/ Robb Gass | |
| Name: | Robb Gass | |
| Title: | Managing Director |
23