FALSE000163297000016329702022-01-192022-01-19

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
 
FORM 8-K
 
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): January 19, 2022
 
American Healthcare REIT, Inc.
(Exact name of registrant as specified in its charter)
 
Maryland  
000-55775
  47-2887436
(State or other jurisdiction
of incorporation)
  (Commission
File Number)
  (I.R.S. Employer
Identification No.)
18191 Von Karman Avenue, Suite 300
Irvine, California
  92612
(Address of principal executive offices)   (Zip Code)
Registrant’s telephone number, including area code: (949) 270-9200
Not Applicable
(Former name or former address, if changed since last report)
 
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title of each class Trading Symbol(s) Name of each exchange on which registered
None None None

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

                                        Emerging growth company ☐ 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.    ☐ 



Item 1.01 Entry into a Material Definitive Agreement.

The information reported in Item 2.03 of this Current Report on Form 8-K is incorporated herein by reference.

Item 1.02 Termination of a Material Definitive Agreement.

Termination of Loan Agreement

On January 19, 2022, in connection with the amendment and extension of one of our other credit facilities as detailed in Item 2.03 below, we terminated our existing $530,000,000 revolving line of credit and term loan credit facility, or the 2018 Credit Facilities, and all related amendments and agreements with Bank of America, N.A., or Bank of America, as administrative agent, a swing line lender and a letter of credit issuer; KeyBank, National Association, or KeyBank, as syndication agent, a swing line lender and a letter of credit issuer; Merrill Lynch, Pierce, Fenner & Smith Incorporated, KeyBanc Capital Markets and Citizens Bank, National Association, or Citizens Bank, as joint lead arrangers and joint bookrunners; and the lenders named therein, which was entered into on November 20, 2018.

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

Amendment and Restatement to Credit Facilities

On January 25, 2019, we, through our operating partnership, American Healthcare REIT Holdings, LP, formally known as Griffin-American Healthcare REIT III Holdings, LP, its parent, formally known as Griffin-American Healthcare REIT IV, Inc., as successor by merger with Griffin-American Healthcare REIT III, Inc., or GAHR III, and certain of our subsidiaries, entered into a credit agreement, or the 2019 Corporate Credit Agreement, with Bank of America; KeyBank; Citizens Bank; and a syndicate of other banks, as lenders, to obtain a credit facility with an aggregate maximum principal amount of $630,000,000, or the 2019 Corporate Line of Credit. The 2019 Corporate Line of Credit initially consisted of a senior unsecured revolving credit facility in an aggregate amount of $150,000,000 and a senior unsecured term loan facility in an aggregate amount of $480,000,000. As disclosed in our Current Report on Form 8-K filed on October 5, 2021 with the Securities and Exchange Commission, on October 1, 2021, upon consummation of the merger with GAHR III, we assumed GAHR III's obligations under the 2019 Corporate Credit Agreement, which as amended, canceled the $150,000,000 senior unsecured revolving credit facility disclosed above, and amended certain financial covenants to account for the merged enterprise. The 2019 Corporate Line of Credit was set to mature on January 25, 2022.

On January 19, 2022, we, through American Healthcare REIT Holdings, LP, as borrower, and certain of our subsidiaries, or the subsidiary guarantors, and our company, collectively as guarantors, entered into an agreement, or the 2022 Credit Agreement, that amends, restates, supersedes and replaces the 2019 Corporate Credit Agreement with Bank of America, as administrative agent and letters of credit issuer; KeyBank; Citizens Bank; and Bank of the West, as syndication agents and letters of credit issuers; Fifth Third Bank, National Association, or Fifth Third Bank, as documentation agent; Truist Bank and Regions Bank, as managing agents; KeyBanc Capital Markets and Citizens Bank as joint lead arrangers; and BofA Securities, Inc., as a joint lead arranger and sole bookrunner, to obtain a credit facility with an aggregate maximum principal amount up to $1,050,000,000, or the 2022 Credit Facility. The 2022 Credit Facility consists of a senior unsecured revolving credit facility in the initial aggregate amount of $500,000,000 and a senior unsecured term loan facility in the initial aggregate amount of $550,000,000. We are not affiliated with Bank of America, KeyBank, Citizens Bank, Bank of the West, Fifth Third Bank, Truist Bank, Regions Bank, KeyBanc Capital Markets, or BofA Securities, Inc. The proceeds of loans made under the 2022 Credit Facility may be used for refinancing existing indebtedness and for general corporate purposes including for working capital, capital expenditures and other corporate purposes not inconsistent with obligations under the 2022 Credit Agreement. We may obtain up to $25,000,000 in the form of standby letters of credit.

Unless defined herein, all capitalized terms are as defined in the 2022 Credit Agreement. Under the terms of the 2022 Credit Agreement, the Revolving Loans mature on January 19, 2026, and may be extended for one 12-month period, subject to the satisfaction of certain conditions, including payment of an extension fee. The Term Loan matures on January 19, 2027, and may not be extended. The maximum principal amount of the 2022 Credit Facility may be increased by an aggregate incremental amount of $700,000,000, subject to: (i) the terms of the 2022 Credit Agreement; and (ii) at least five business days’ prior written notice to Bank of America.

The 2022 Credit Facility bears interest at varying rates based upon, at our option, (i) the Daily Simple Secured Overnight Financing Rate, or Daily SOFR, plus the Applicable Rate for Daily SOFR Rate Loans or (ii) the Term Secured Overnight Financing Rate, or the Term SOFR, plus the Applicable Rate for Term SOFR Rate Loans. If, under the terms of the 2022 Credit Agreement, there is an inability to determine the Daily SOFR or the Term SOFR then the 2022 Credit Facility will bear interest at a rate per annum equal to the Base Rate plus the Applicable Rate for Base Rate Loans. The loans may be repaid in whole or in part without prepayment premium or penalty, subject to certain conditions.




We are required to pay a fee on the unused portion of the lenders’ commitments under the 2022 Credit Agreement computed at (a) 0.25% per annum if the actual daily Commitment Utilization Percentage for such quarter is less than or equal to 50% and (b) 0.20% per annum if the actual daily Commitment Utilization Percentage for such quarter is greater than 50%, which fee shall be computed on the actual daily amount of the Available Commitments during the period for which payment is made and payable in arrears on a quarterly basis.

At any time that the Applicable Rate is determined based on the Debt Ratings Based Pricing Grid, we are required to pay a facility fee as determined in the Debt Ratings Based Pricing Grid multiplied by the actual daily amount of the Aggregate Revolving Commitments, or, if the Aggregate Revolving Commitments have terminated, the Outstanding Amount of all Revolving Loans and L/C Obligations, regardless of usage.

The 2022 Credit Agreement contains various affirmative and negative covenants that are customary for credit facilities and transactions of this type, including limitations on the incurrence of debt by our operating partnership and its subsidiaries and limitations on secured recourse indebtedness. The 2022 Credit Agreement also imposes certain financial covenants based on the following criteria: (a) Consolidated Leverage Ratio; (b) Consolidated Secured Leverage Ratio; (c) Consolidated Tangible Net Worth; (d) Consolidated Fixed Charge Coverage Ratio; (e) Unencumbered Indebtedness Yield; (f) Consolidated Unencumbered Leverage Ratio; (g) Consolidated Unencumbered Interest Coverage Ratio; and (h) Secured Recourse Indebtedness.

The 2022 Credit Agreement requires us to add additional subsidiaries as guarantors in the event the value of the assets owned by the subsidiary guarantors falls below a certain threshold as set forth in the 2022 Credit Agreement. In the event of default, Bank of America has the right to terminate the commitment of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions under the 2022 Credit Agreement, and to accelerate the payment on any unpaid principal amount of all outstanding loans and interest thereon. The aggregate borrowing capacity under the 2022 Credit Facility was $1,050,000,000 as of January 19, 2022. There were $925,900,000 in borrowings outstanding and $124,100,000 remained available under the 2022 Credit Facility as of January 19, 2022.

The 2022 Credit Facility replaces the 2018 Credit Facilities and the 2019 Corporate Line of Credit. The material terms of the 2022 Credit Agreement are qualified in their entirety by the agreement attached as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.

Item 8.01 Other Events.

On January 20, 2022, our board of directors authorized a distribution to our Class T and Class I stockholders of record as of the close of business on each of January 28, 2022, February 25, 2022 and March 29, 2022. The distribution for the months of January 2022, February 2022 and March 2022, will be equal to $0.033333333 per share of our common stock, which is equal to an annualized distribution rate of $0.40 per share. The distributions will be paid in cash or shares of our common stock pursuant to our distribution reinvestment plan. The distribution for the months of January 2022, February 2022 and March 2022 will be paid on or about February 1, 2022, March 1, 2022 and April 1, 2022, respectively, only from legally available funds.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits.





SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
 
American Healthcare REIT, Inc.
January 25, 2022
        By:/s/ Danny Prosky                     
        Name: Danny Prosky
        Title: Chief Executive Officer and President

EXHIBIT 10.1

AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of January 19, 2022
among
AMERICAN HEALTHCARE REIT HOLDINGS, LP,
as Borrower
AMERICAN HEALTHCARE REIT, INC.,
and
CERTAIN SUBSIDIARIES THEREOF,
as Guarantors,
THE LENDERS PARTY HERETO,
BANK OF AMERICA, N.A.,
as Administrative Agent and an L/C Issuer,
KEYBANK, NATIONAL ASSOCIATION,
as a Syndication Agent and an L/C Issuer,
CITIZENS BANK, NATIONAL ASSOCIATION,
as a Syndication Agent and an L/C Issuer,
BANK OF THE WEST,
as a Syndication Agent and an L/C Issuer,
FIFTH THIRD BANK, NATIONAL ASSOCIATION,
as Documentation Agent
TRUIST BANK
and

REGIONS BANK
,
as Managing Agents
KEYBANC CAPITAL MARKETS,
and
CITIZENS BANK, NATIONAL ASSOCIATION,
as Joint Lead Arrangers
BOFA SECURITIES, INC.,
as a Joint Lead Arranger and Sole Bookrunner
    


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SCHEDULES
SCHEDULE 2.01A
Lenders and Commitments
SCHEDULE 2.01B Letter of Credit Commitments
SCHEDULE 5.10
Unencumbered Properties
SCHEDULE 5.11
Corporate Structure; Capital Stock
SCHEDULE 7.01
Liens
SCHEDULE 7.02
Indebtedness
SCHEDULE 7.03
Investments
SCHEDULE 7.09
Negative Pledges
SCHEDULE 10.02
Notice Addresses
EXHIBITS
EXHIBIT A Form of Loan Notice
EXHIBIT B-1 Form of Revolving Note
EXHIBIT B-2 Form of Term Note
EXHIBIT C Form of Unencumbered Property Certificate
EXHIBIT D Form of Compliance Certificate
EXHIBIT E Form of Assignment and Assumption
EXHIBIT F Form of Subsidiary Guarantor Joinder Agreement
EXHIBIT G Form of Lender Joinder Agreement
EXHIBIT H Forms of U.S. Tax Compliance Certificates

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AMENDED AND RESTATED
CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT (as amended, modified, restated or supplemented from time to time, this “Credit Agreement”) is entered into as of January 19, 2022 by and among AMERICAN HEALTHCARE REIT HOLDINGS, LP, a Delaware limited partnership (the “Borrower”), AMERICAN HEALTHCARE REIT, INC., a Maryland corporation (the “Parent”), and certain subsidiaries of the Parent identified herein, as Guarantors, the Lenders (as defined herein), BANK OF AMERICA, N.A., as Administrative Agent, an L/C Issuer (each, as defined herein) and a Lender, and KeyBank, National Association, Citizens Bank, National Association and Bank of the West, as L/C Issuers.
WHEREAS, the Borrower (f/k/a Griffin-American Healthcare REIT III Holdings, LP), the Parent (f/k/a Griffin-American Healthcare REIT IV, Inc., as successor by merger to Griffin-American Healthcare REIT III, Inc.), Guarantors, the Administrative Agent, certain L/C Issuers and Lenders party thereto (as each term is defined therein) are parties to that certain Credit Agreement dated as of January 29, 2019 (as amended, modified, supplemented and extended from time to time, the “Existing Credit Agreement”); and
WHEREAS, the parties hereto desire to amend and restate the Existing Credit Agreement in its entirety;
NOW, THEREFORE, in consideration of these premises and the mutual covenants and agreements contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties hereto covenant and agree as follows:
I.DEFINITIONS AND ACCOUNTING TERMS.
1.01Defined Terms. As used in this Credit Agreement, the following terms have the meanings set forth below (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
Acquisition” with respect to any Person, means the purchase or acquisition by such Person of any Capital Stock in or any asset of another Person, whether or not involving a merger or consolidation with such other Person.
Administrative Agent” means Bank of America in its capacity as administrative agent for the Lenders under any of the Credit Documents, or any successor administrative agent.
Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02 or such other address or account as the Administrative Agent may from time to time notify the Borrower 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 Party” means any Lender or L/C Issuer.
    



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 Related Persons” means the Administrative Agent, together with its Affiliates (including, in the case of Bank of America in its capacity as the Administrative Agent, BofA Securities), and the officers, directors, employees, agents and attorneys in fact of such Persons and Affiliates.
Aggregate Occupancy” means, with respect to any reporting period, an amount equal to (a) the total number of rented and occupied square footage with respect to each Unencumbered Property that is a medical office building or other office space for such reporting period plus (b) with respect to each other Unencumbered Property (other than with respect to an Unencumbered Property that is a hospital or a skilled nursing facility), an amount equal to (x) the total rentable square footage relating to such Unencumbered Property for such reporting period multiplied by (y) by the applicable Occupancy Rate for such Unencumbered Property for such reporting period (determined in accordance with clause (a) of the definition of “Occupancy Rate” in this Section 1.01). For the purposes of the definition of “Aggregate Occupancy”, “Aggregate Occupancy Rate” and “Occupancy Rate”, a Tenant shall be deemed to occupy a Property notwithstanding a temporary cessation (not to exceed three months in any single instance) of operations for renovation, repairs or other similar temporary reason (not to exceed three months in any single instance) or for the purpose of completing tenant build-out, provided that the tenant pays rent during such cessation.
Aggregate Occupancy Rate” means, with respect to any reporting period, a percentage equaling (x) Aggregate Occupancy for the such reporting period divided by (y) the aggregate total rentable square footage relating to Unencumbered Property Pool for such reporting period.
Aggregate Revolving Commitments” means the Revolving Commitments of all the Revolving Lenders as increased or decreased from time to time pursuant to this Credit Agreement.
Applicable Law” means, as to any Person, all applicable Laws binding upon such Person or to which such a Person is subject.
Applicable Maturity Date” means (a) with respect to the Revolving Loans and Letters of Credit, the Revolving Loan Maturity Date and (b) with respect to the Term Loan, the Term Loan Maturity Date.
Applicable Rate” means:
(a)    until such time as (a) the Borrower or the Parent have obtained two Investment Grade Ratings from any of Moody’s, S&P and/or Fitch, and (b) the Borrower has submitted a written election (which election shall be irrevocable) to the Administrative Agent, the per annum “Applicable Rate” for any applicable period shall be determined based on the Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(a) as set forth in the table labeled as the Consolidated Leverage Ratio Based Pricing Grid below:
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Consolidated Leverage Ratio Based Pricing Grid (the “Consolidated Leverage Ratio Based Pricing Grid”):
Pricing
Level
Consolidated
Leverage Ratio
Term SOFR
Rate Revolving
Loans and Daily
SOFR Rate
Revolving Loans
Applicable Rate
Base Rate
Revolving
Loans
Applicable
Rate
Term SOFR
Rate Term
Loans and
Daily SOFR
Rate Term
Loans
Applicable
Rate
Base Rate
Term
Loans
Applicable
Rate
Letter of
Credit
Fees
1 ≤35.00% 1.30% 0.30% 1.25% 0.25% 1.30%
2 >35.00% and ≤40.00% 1.35% 0.35% 1.30% 0.30% 1.35%
3 >40.00% and ≤45.00% 1.45% 0.45% 1.40% 0.40% 1.45%
4 >45.00% and ≤50.00% 1.55% 0.55% 1.50% 0.50% 1.55%
5 >50.00% and ≤55.00% 1.70% 0.70% 1.65% 0.65% 1.70%
6 >55.00% 1.95% 0.95% 1.90% 0.90% 1.95%
Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated Leverage Ratio shall become effective as of the fifth Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(a); provided, however, that if a Compliance Certificate is not delivered within five Business Days following the date when due in accordance with such Section, then Pricing Level 6 shall apply from the first Business Day following the date such Compliance Certificate was due until the date on which such Compliance Certificate is delivered. Notwithstanding anything to the contrary contained in this definition, the determination of the Applicable Rate for any period shall be subject to the provisions of Section 2.09(b). The Applicable Rate in effect from the Closing Date through the date of delivery of the first Compliance Certificate due hereunder shall be determined based upon Pricing Level 5.
(b)    Upon (i) the Borrower or the Parent obtaining at least two Investment Grade Ratings from Moody’s, S&P and/or Fitch, and (ii) the Borrower submitting a written election (which election shall be irrevocable) to the Administrative Agent, the per annum “Applicable Rate” for any applicable period shall be determined based on the Debt Ratings as set forth in the table labeled Debt Ratings Based Pricing Grid below. If the Borrower or the Parent, as applicable, subsequently fails to maintain at least two Investment Grade Ratings, the “Applicable Rate” for any applicable period, shall be determined based on Pricing Level 5 in the table labeled Debt Ratings Based Pricing Grid below:
Debt Ratings Based Pricing Grid (the “Debt Ratings Based Pricing Grid”):
Pricing
Level
Debt Ratings Facility
Fee Rate
Term SOFR
Rate
Revolving
Loans and
Daily SOFR
Rate
Revolving
Loans
Applicable
Rate
Base Rate
Revolving
Loans
Applicable
Rate
Term
SOFR Rate
Term
Loans and
Daily
     SOFR Rate
Term
Loans
Applicable
Rate
Base Rate
Term
Loans
Applicable
Rate
Letter
of
Credit
Fees
1 ≥ A-/A3 0.125% 0.725% 0.000% 0.80% 0.00% 0.725%
2 BBB+/Baa1 0.150% 0.775% 0.000% 0.85% 0.00% 0.775%
3 BBB/Baa2 0.200% 0.85% 0.000% 0.95% 0.00% 0.85%
4 BBB-/Baa3 0.250% 1.05% 0.05% 1.20% 0.20% 1.05%
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5 <BBB-/Baa3 0.300% 1.40% 0.400% 1.60% 0.60% 1.40%

The Applicable Rate shall be adjusted effective on the next Business Day following any change in the Debt Rating. The Borrower shall notify the Administrative Agent in writing promptly after becoming aware of any change in the Debt Rating.

If at any time when the Borrower or the Parent, as applicable, has only two Investment Grade Ratings, and such Investment Grade Ratings are split, then: (a) if the difference between such Investment Grade 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 Investment Grade Ratings were used; and (b) if the difference between such Investment Grade Ratings is two ratings categories (e.g. Baa1 by Moody’s and BBB- by S&P) or more, the Applicable Rate shall be the rate per annum that would be applicable if the ratings category one category below the higher Investment Grade Rating were used. If at any time when the Borrower or the Parent, as applicable, has three Investment Grade Ratings, and such Investment Grade Ratings are split, then: (y) if the difference between the highest and the lowest such Investment Grade 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 Investment Grade Ratings were used; and (z) if the difference between such Investment Grade Ratings is two ratings categories (e.g. Baa1 by Moody’s and BBB- by S&P or Fitch) or more, the Applicable Rate shall be the rate per annum that would be applicable if the average of the two highest Investment Grade 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 Investment Grade Rating of the three were used.
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 each of (a) BofA Securities in its capacity as a joint lead arranger and sole bookrunner, and (b) KeyBanc Capital Markets and Citizens Bank, National Association, each in its capacity as a joint lead arranger; and “Arranger” means any one of the Arrangers.
Asset Value” means for any Real Property Asset, an amount, not less than $0, equal to (a) the product of (i) the Net Operating Income for such Real Property Asset for the most recently completed fiscal quarter multiplied by (ii) four divided by (b) the applicable Capitalization Rate for such Real Property Asset.
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 E or any other form approved by the Administrative Agent and, if such assignment and assumption requires its consent, the Borrower.
Attorney Costs” means and includes all reasonable and documented fees, expenses and disbursements of any law firm or other external counsel.
Attributable Principal Amount” means (a) in the case of Capital Leases, the amount of Capital Lease obligations determined in accordance with GAAP, (b) in the case of Synthetic Leases, an amount determined by capitalization of the remaining lease payments thereunder as if it were a Capital Lease determined in accordance with GAAP, (c) in the case of Securitization Transactions, the outstanding principal amount of such financing, after taking into account reserve amounts and making appropriate adjustments, determined by the Administrative Agent in its reasonable judgment and (d) in the case of sale and leaseback transactions, the present value (discounted in accordance with GAAP at the debt rate
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implied in the applicable lease) of the obligations of the lessee for rental payments during the term of such lease.
Auto-Extension Letter of Credit” has the meaning specified in Section 2.03(b).
Available Commitments” means, at any time, an amount equal to the excess, if any, of (a) the Aggregate Revolving Commitments, then in effect minus (b) the Outstanding Amount of Revolving Obligations.
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).
Bank of America” means Bank of America, N.A., together with its successors.
Bankruptcy Code” means Title 11 of the United States Code, as the same may be amended from time to time.
Bankruptcy Event” means, with respect to any Person, the occurrence of any of the following: (a) the entry of a decree or order for relief by a court or governmental agency in an involuntary case under any applicable Debtor Relief Law or any other bankruptcy, insolvency or other similar law now or hereafter in effect, or the appointment by a court or governmental agency of a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of such Person or for any substantial part of its Property or the ordering of the winding up or liquidation of its affairs by a court or governmental agency and such decree, order or appointment is not vacated or discharged within 90 days of its filing; or (b) the commencement against such Person of an involuntary case under any applicable Debtor Relief Law or any other bankruptcy, insolvency or other similar law now or hereafter in effect, or of any case, proceeding or other action for the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of such Person or for any substantial part of its Property or for the winding up or liquidation of its affairs, and such involuntary case or other case, proceeding or other action shall remain undismissed for a period of 90 consecutive days, or the repossession or seizure by a creditor of such Person of a substantial part of its Property; or (c) such Person shall commence a voluntary case under any applicable Debtor Relief Law or any other bankruptcy, insolvency or other similar law now or hereafter in effect, or consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment of or the taking possession by a receiver, liquidator, assignee, creditor in possession, custodian, trustee, sequestrator (or similar official) of such Person or for any substantial part of its Property or make any general assignment for the benefit of creditors; or (d) the filing of a petition by such Person seeking to take advantage of any Debtor Relief Law or any other applicable Law, domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding up, or composition or adjustment of debts, or (e) such Person shall fail to contest in a timely and appropriate manner (and if not dismissed within 90 days) or shall consent to any petition filed against it in an involuntary case under such bankruptcy laws or other applicable Law or consent to any proceeding or action relating to any bankruptcy, insolvency, reorganization, winding up, or composition or adjustment of debts with respect to
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its assets or existence, or (f) such Person shall admit in writing, or such Person’s financial statements shall reflect, an inability to pay its debts generally as they become due.
Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate for such day plus 1/2 of 1.00%, (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 for one month plus 1.00% 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.
Base Rate Loan” means a Loan that bears interest based on the Base Rate.
Beneficial Ownership Certification” a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.
Beneficial Ownership Regulation” 31 C.F.R. §1010.230.
Benefit Plan” any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Internal Revenue 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 Internal Revenue Code) the assets of any such “employee benefit plan” or “plan”.
BofA Securities” means BofA Securities, Inc., together with its successors.
Borrower” has the meaning provided in the introductory paragraph hereof.
Borrower Materials” has the meaning provided in Section 6.02.
Borrowing” means a borrowing consisting of simultaneous Loans of the same Type and, in the case of Term SOFR Rate Loans, having the same Interest Period.
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 New York, New York, Charlotte, North Carolina, Los Angeles, California or the state where the Administrative Agent’s Office is located.
Businesses” has the meaning provided in Section 5.07(a).
Capital Lease” means a lease that would be capitalized on a balance sheet of the lessee prepared in accordance with GAAP.
Capital Stock” means (a) in the case of a corporation, capital stock, (b) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of capital stock, (c) in the case of a partnership, partnership interests (whether general or limited), (d) in the case of a limited liability company, membership interests and (e) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.
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Capitalization Rate” means for (i) medical office buildings and life science buildings, 6.50%; (ii) assisted living and independent living properties, 7.25%; (iii) skilled nursing facilities and hospitals, 9.75%; and (iv) Integrated Facilities, 8.75%.
Cash Collateral” means cash or deposit account balances pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent and the L/C Issuers pledged and deposited with or delivered to the Administrative Agent, for the benefit of the L/C Issuers and the Revolving Lenders, as collateral for the L/C Obligations or obligations of the Lenders to fund participations in respect of L/C Obligations, cash or deposit account balances or, if the Administrative Agent and the L/C Issuers shall agree in their sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to the Administrative Agent and the L/C Issuers. “Cash Collateralization” and “Cash Collateralize” have meanings correlative thereto.
Cash Equivalents” means (a) securities issued or directly and fully guaranteed or insured by (i) the United States or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof) having maturities of not more than twelve months from the date of acquisition, (b) time deposits and certificates of deposit of (i) any Lender, (ii) any domestic commercial bank of recognized standing having capital and surplus in excess of $500,000,000 or (iii) any bank whose short term commercial paper rating from S&P is at least A-1 or the equivalent thereof or from Moody’s is at least P-1 or the equivalent thereof (each an “Approved Bank”), in each case with maturities of not more than two hundred seventy (270) days from the date of acquisition, (c) commercial paper and variable or fixed rate notes issued by any Approved Bank (or by the parent company thereof) or any variable rate notes issued by, or guaranteed by, any domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or better by Moody’s and maturing within six months of the date of acquisition, (d) repurchase agreements entered into by any Person with a bank or trust company (including any of the Lenders) or recognized securities dealer having capital and surplus in excess of $500,000,000 for direct obligations issued by or fully guaranteed by the United States in which such Person shall have a perfected first priority security interest (subject to no other Liens) and having, on the date of purchase thereof, a fair market value of at least 100% of the amount of the repurchase obligations and (e) Investments (classified in accordance with GAAP as current assets) in money market investment programs registered under the Investment Company Act of 1940, as amended, that are administered by reputable financial institutions having capital of at least $500,000,000 and the portfolios of which are limited to Investments of the character described in the foregoing subclauses hereof.
Change in Law” means the occurrence, after the Closing Date, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith or in the implementation thereof and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted, issued or implemented.
Change of Control” means the occurrence of any of the following events: (a) any Person or two or more Persons acting in concert shall have acquired beneficial ownership, directly or indirectly, of, or shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation, will result in its or their acquisition of or control over, voting stock of the Parent (or
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other securities convertible into such voting stock) representing 35% or more of the combined voting power of all voting stock of the Parent, (b) during any period of up to twelve (12) consecutive months, commencing after the Closing Date, individuals who at the beginning of such twelve (12) month period were directors of the Parent (together with any new director whose election by the Parent’s Board of Directors or whose nomination for election by the Parent’s stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the directors of the Parent then in office, (c) the General Partner shall cease to be the sole general partner of the Borrower or (d) Parent shall cease to own 100% of the General Partner; provided, that no Change of Control shall occur under clauses (c) or (d) in connection with the liquidation or other dissolution of the General Partner into the Parent, in which case the Parent shall be deemed the General Partner for all purposes hereunder and under the Loan Documents and clause (d) shall no longer apply. As used herein, “beneficial ownership” shall have the meaning provided in Rule 13d-3 of the SEC under the Securities Exchange Act of 1934.
Closing Date” means the date hereof.
CME” means CME Group Benchmark Administration Limited.
Commitment” means (a) with respect to each Lender, (i) the Revolving Commitment of such Lender, (ii) the Term Loan Commitment of such Lender and (iii) its obligation to purchase participations in L/C Obligations, and (b) with respect to each L/C Issuer, the L/C Commitment of such L/C Issuer.
Commitment Utilization Percentage” means, on any date, the percentage equal to a fraction, the numerator of which is the Outstanding Amount of Revolving Obligations and the denominator of which is the Aggregate Revolving Commitments.
Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. §1 et seq.).
Communication” means this Credit Agreement, any Credit Document and any document, any amendment, approval, consent, information, notice, certificate, request, statement, disclosure or authorization related to any Credit Document.
Compliance Certificate” means a certificate substantially in the form of Exhibit D.
Confidential Information” has the meaning provided in Section 10.07.
Conforming Changes” means, with respect to the use, administration of or any conventions associated with SOFR or any proposed Successor Rate, Daily Simple SOFR, or Term SOFR, as applicable, any conforming changes to the definitions of “Base Rate”, “Daily Simple SOFR”, “SOFR,” “Term SOFR”, and “Interest Period”, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including, for the avoidance of doubt, the definitions of “Business Day”, the definition of “U.S. Government Securities Business Day”, timing of borrowing requests or prepayment, conversion or continuation notices and length of lookback periods) as may be appropriate, in the discretion of the Administrative Agent, to reflect the adoption and implementation of such applicable rate(s), and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (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 exists, in such other manner of administration as the Administrative Agent determines is reasonably necessary in connection with the administration of this Credit Agreement and any other Credit Document).
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Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
Consolidated Adjusted EBITDA” means, for the most recently completed fiscal quarter, for the Consolidated Parties (other than the Trilogy Subsidiaries) on a consolidated basis, an amount equal to the product of (a) Consolidated EBITDA for such quarter multiplied by (b) four.
Consolidated EBITDA” means, for any period, for the Consolidated Parties (other than the Trilogy Subsidiaries) on a consolidated basis, the sum of (a) Consolidated Net Income, in each case, excluding (i) any non-recurring or extraordinary gains and losses for such period, (ii) any income or gain and any loss in each case resulting from the early extinguishment of indebtedness and (iii) any net income or gain or any loss resulting from a Swap Contract or other derivative contact (including by virtue of a termination thereof), plus (b) an amount which, in the determination of net income for such period pursuant to clause (a) above, has been deducted for or in connection with (i) Consolidated Interest Expense (plus, amortization of deferred financing costs, deferred discounts and deferred premiums to the extent included in the determination of Consolidated Interest Expense per GAAP), (ii) income taxes, (iii) depreciation and amortization, (iv) non-cash losses (or minus non-cash gains) relating to foreign currency translations, all determined in accordance with GAAP (v) acquisition costs as a result of the application of Accounting Standards Codification 805, Business Combinations and (vi) all non-cash expenses realized in connection with or resulting from stock option plans, employee benefit plans or agreements or post-employment benefit plans or agreements, or grants or sales of Capital Stock, plus (c) such Consolidated Parties’ pro rata share of the above attributable to interests in the Unconsolidated Affiliates.
Consolidated Fixed Charge Coverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Adjusted EBITDA as of such date to (b) Consolidated Fixed Charges as of such date.
Consolidated Fixed Charges” means, for the most recently completed fiscal quarter, for the Consolidated Parties (other than the Trilogy Subsidiaries) on a consolidated basis, the product of (a) the sum of (i) Consolidated Interest Expense for such period, plus (ii) current scheduled principal payments of Indebtedness for such period (excluding any “balloon” payment or final payment at maturity that is significantly larger than the scheduled payments that preceded it), plus (iii) dividends and distributions on preferred stock, if any, for such period, plus (iv) such Consolidated Parties’ pro rata share of any such amounts attributable to their interest in the Unconsolidated Affiliates, in each case, as determined in accordance with GAAP, multiplied by (b) four.
Consolidated Interest Expense” means, for any period, for the Consolidated Parties (other than the Trilogy Subsidiaries) on a consolidated basis, without duplication, an amount equal to all interest expense and letter of credit fee expense, as determined in accordance with GAAP during such period (including for the avoidance of doubt capitalized interest and interest expense attributable to such Consolidated Parties’ ownership interests in the Unconsolidated Affiliates and excluding amortization of loan fees, debt discount, debt premium and amortization of like items included in interest expense under GAAP).
Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Total Indebtedness as of such date to (b) Consolidated Total Asset Value as of such date.
Consolidated Net Income” means, for any period, for the Consolidated Parties (other than the Trilogy Subsidiaries) on a consolidated basis, the net income (or loss) of such Consolidated Parties for such period; provided, that Consolidated Net Income shall exclude (a) extraordinary gains and extraordinary losses for such period, (b) the net income of any Subsidiary during such period to the extent that the declaration or payment of dividends or similar distributions by such subsidiary of such income is
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not permitted by operation of the terms of its Organization Documents or any agreement, instrument or Law applicable to such Subsidiary during such period, except that the Parent’s equity in any net loss of any such Subsidiary for such period shall be included in determining Consolidated Net Income, and (c) any income (or loss) for such period of any Person if such Person is not a Subsidiary of the Parent, except that the Parent’s equity in the net income of any such Person for such period shall be included in Consolidated Net Income up to the aggregate amount of cash actually distributed by such Person during such period to the Parent or a Subsidiary thereof as a dividend or other distribution (and in the case of a dividend or other distribution to a subsidiary of the Parent, such Subsidiary is not precluded from further distributing such amount to the Parent as described in clause (b) of this proviso).
Consolidated Parties” means the Parent and its Consolidated Subsidiaries, as determined in accordance with GAAP.
Consolidated Secured Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Total Secured Indebtedness as of such date to (b) Consolidated Total Asset Value as of such date.
Consolidated Subsidiary” means at any date any Subsidiary or other entity the accounts of which would be consolidated with those of the Parent in its consolidated financial statements if such statements were prepared as of such date.
Consolidated Tangible Net Worth” means, for the Consolidated Parties as of any date of determination, (a) total equity on a consolidated basis determined in accordance with GAAP, minus (b) all non-real estate related Intangible Assets on a consolidated basis, plus (c) all depreciation and amortization, all determined in accordance with GAAP.
Consolidated Total Asset Value” means the sum of all the following of the Consolidated Parties (other than the Trilogy Subsidiaries), without duplication, an amount, not less than $0, equal to: (a) the Asset Value of all Real Property Assets (other than the Southlake Hospital Property) owned by such Consolidated Parties on the last day of the then most recently ended fiscal quarter (other than Real Property Assets acquired by such Consolidated Parties during the then most recently ended four fiscal quarters), plus (b) the undepreciated GAAP book value (net of any impairments) of the Southlake Hospital Property, so long as such Real Property Asset is leased to a tenant in occupancy and paying rent; plus (c) the aggregate acquisition cost of all Real Property Assets acquired by such Consolidated Parties during the then most recently ended four fiscal quarters, plus (d) the aggregate book value of all unimproved land holdings, direct or indirect interests in mortgage loans and mezzanine loans, notes receivable (as the book value of such notes receivable is determined in accordance with GAAP) and/or construction in progress owned by such Consolidated Parties, plus (e) such Consolidated Parties’ pro rata share of the foregoing items and components attributable to interest in Unconsolidated Affiliates, plus (f) all unrestricted cash; provided that the amount of Consolidated Total Asset Value attributable to (i) unimproved land holdings shall not exceed 5.00% of Consolidated Total Asset Value, (ii) mortgages, mezzanine loans and notes receivable shall not exceed 15.00% of Consolidated Total Asset Value, (iii) construction in progress (excluding tenant improvements) shall not exceed 10.00% of Consolidated Total Asset Value, (iv) Unconsolidated Affiliates shall not exceed 15.00% of Consolidated Total Asset Value, (v) Real Property Assets that are not Healthcare Facilities or general office buildings shall not exceed 15.00% of Consolidated Total Asset Value and (vi) the aggregate of the assets described in clauses (i) through (v) shall not exceed 30.00% of Consolidated Total Asset Value.
Consolidated Total Indebtedness” means, as of any date of determination, all Indebtedness of the Consolidated Parties (other than the Trilogy Subsidiaries) determined on a consolidated basis.
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Consolidated Total Secured Indebtedness” means, as of any date of determination, the aggregate principal amount of Indebtedness (other than Indebtedness hereunder) of the Consolidated Parties (other than the Trilogy Subsidiaries), on a consolidated basis, that is secured by a Lien.
Consolidated Unencumbered Interest Coverage Ratio” means, as of any date of determination, the ratio of (a) the product of (i) Unencumbered Net Operating Income for the fiscal quarter ended as of such date, multiplied by (ii) four to (b) the Consolidated Unsecured Debt Service as of such date.
Consolidated Unencumbered Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Unsecured Indebtedness as of such date to (b) Consolidated Unencumbered Total Asset Value as of such date.
Consolidated Unencumbered NOI” means, for the Consolidated Parties (other than the Trilogy Subsidiaries) as of any date of determination, the product of (a) the sum of the Net Operating Income of all Consolidated Unencumbered Properties of such Consolidated Parties calculated as follows: (i) in the case of Consolidated Unencumbered Properties that are owned for at least one fiscal quarter, the Net Operating Income from such Consolidated Unencumbered Properties for the then most recently ended fiscal quarter minus (ii) the Net Operating Income attributable to such Consolidated Unencumbered Properties that were sold or otherwise disposed of during the then most recently ended fiscal quarter; multiplied by (b) four. For the avoidance of doubt, the Net Operating Income of such Consolidated Unencumbered Properties that are owned by such Consolidated Parties for less than one fiscal quarter will be included in calculating Consolidated Unencumbered NOI as if such properties were owned by such Consolidated Parties as of the beginning of the then most recently fiscal quarter.
Consolidated Unencumbered Properties” shall mean, for the Consolidated Parties (other than the Trilogy Subsidiaries), all Real Property Assets that are included in the Unencumbered Property Pool.
Consolidated Unencumbered Total Asset Value” means an amount equal to (without duplication) (a) the aggregate Unencumbered Asset Value for all Consolidated Unencumbered Properties (other than the Southlake Hospital Property) owned by the Consolidated Parties (other than the Trilogy Subsidiaries) on the last day of the then most recently ended fiscal quarter (other than such Consolidated Unencumbered Properties acquired during the then most recently ended four fiscal quarters), plus (b) if such Real Property Asset is a Consolidated Unencumbered Property, the undepreciated GAAP book value (net of any impairments) of the Southlake Hospital Property, so long as such Real Property Asset is leased to a tenant in occupancy and paying rent, plus (c) the aggregate acquisition cost of all Consolidated Unencumbered Properties acquired by such Consolidated Parties during the then most recently ended four fiscal quarters.
Consolidated Unsecured Debt Service” means, for any period, for the Consolidated Parties (other than the Trilogy Subsidiaries) on a consolidated basis, the product of (a) the sum of (i) Consolidated Interest Expense from all Consolidated Unsecured Indebtedness, plus (ii) scheduled principal payments from all Consolidated Unsecured Indebtedness (excluding any “balloon” payment or final payment at maturity that is significantly larger than the scheduled payments that preceded it), plus (iii) such Consolidated Parties’ pro rata share of the above attributable to interests in Unconsolidated Affiliates, all for the then most recently ended fiscal quarter, multiplied by (b) four.
Consolidated Unsecured Indebtedness” means the aggregate principal amount of Indebtedness of the Consolidated Parties (other than the Trilogy Subsidiaries), on a consolidated basis, that is not Indebtedness that would constitute Consolidated Total Secured Indebtedness.
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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. Without limiting the generality of the foregoing, a Person shall be deemed to be Controlled by another Person if such other Person possesses, directly or indirectly, power to vote 25% or more of the securities having ordinary voting power for the election of directors, managing general partners or the equivalent.
Credit Agreement” has the meaning provided in the introductory paragraph hereof.
Credit Documents” means this Credit Agreement, the Notes, the Fee Letters, each Issuer Document, the Subsidiary Guarantor Joinder Agreements, the Unencumbered Property Certificates, the Compliance Certificates and any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.13.
Credit Party” means, as of any date, the Borrower, the Parent or any other Guarantor which is a party to the Credit Agreement as of such date; and “Credit Parties” means a collective reference to each of them.
Daily Simple SOFR” means, with respect to any applicable determination date, the SOFR published on the fifth (5th) U.S. Government Securities Business Day preceding such date of determination by the SOFR Administrator on the Federal Reserve Bank of New York’s website (or any successor source); provided, however that if such determination date is not a U.S. Government Securities Business Day, then SOFR means such rate that applied on the first (1st) U.S. Government Securities Business Day immediately prior thereto; plus the Daily SOFR Adjustment. Notwithstanding anything to the contrary contained herein, to the extent that, at any time, Daily Simple SOFR shall be less than zero percent (0.00%), Daily Simple SOFR shall be deemed to be zero percent (0.00%) for purposes of this Credit Agreement.
Daily SOFR Adjustment” means 0.10% (10 basis points).
Daily SOFR Rate Loan” means a Loan made hereunder with respect to which the interest rate is calculated by reference to Daily Simple SOFR.
Debt Rating” means, as of any date of determination, the rating as determined by S&P, Moody’s and/or Fitch for the Borrower’s or the Parent’s non-credit-enhanced, senior unsecured long-term debt.
Debtor Relief Laws” means the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
Default” means any event, act or condition that, with notice, the passage of time, or both, would constitute an Event of Default.
Default Rate” means an interest rate equal to (a) the Base Rate plus (b) the Applicable Rate for Base Rate Loans as set forth in the Pricing Level 5 of the definition of “Applicable Rateplus (c) 2% per annum; provided, however, that with respect to a Term SOFR Rate Loan, the Default Rate shall be an interest rate equal to (x) the interest rate (assuming Pricing Level 5 in the definition of “Applicable Rate”)
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otherwise applicable to such Loan plus (y) 2% per annum, in each case to the fullest extent permitted by applicable Law.
Defaulting Lender” means, subject to Section 2.14(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, the L/C Issuers or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit) within two Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent, the L/C Issuers in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Capital Stock 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 any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.14(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 Borrower, the L/C Issuers and each other Lender promptly following such determination.
Designated Jurisdiction” means any country, territory or region to the extent that such country, territory or region itself is the subject of any Sanction.
Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (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.
Disqualified Institution” means a publicly reporting or privately held REIT with an investment concentration in healthcare assets.
Dollar” or “$” means the lawful currency of the United States.
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Domestic Subsidiary” means any Subsidiary of the Parent that is organized under the laws of the United States or any state thereof or the District of Columbia.
EBITDAR” means, with respect to any Real Property Asset, for any period, the combined unaudited financial results as reported periodically by any Person’s (or consolidated group of Persons’) tenants calculated as net income for such period plus, (a) to the extent deducted in determining such net income, interest expense, rent expense paid to any such Person (or consolidated group of Persons), income tax expense, management fees and/or corporate overhead, depreciation and amortization for such period, excluding any other non-recurring or extraordinary gains or losses as reported by such Person’s (or consolidated group of Persons’) tenants, minus (b) management fees in an amount equal to 2.00% of total revenues for hospitals for such period and 5.00% of total revenues for skilled nursing facilities for such period, provided that with respect to any Real Property Asset acquired during such four fiscal quarter period, EBITDAR shall be determined on a Pro Forma Basis as if such acquisition occurred on the first day of such period and as if such Real Property Asset was owned by such Credit Party during such four fiscal quarter period using (i) except as set forth in clause (ii), the applicable financial information with respect to such Real Property Asset during such four fiscal quarter period, and (ii) solely with respect to skilled nursing facilities and hospitals, (A) with respect to the first fiscal quarter of such acquisition, the applicable financial information with respect to such Real Property Asset during the most recently completed one fiscal quarter period multiplied by four, (B) with respect to the second fiscal quarter of such acquisition, the applicable financial information with respect to such Real Property Asset during the most recently completed two fiscal quarter period multiplied by two, (C) with respect to the third fiscal quarter of such acquisition, the applicable financial information with respect to such Real Property Asset during the most recently completed three fiscal quarter period multiplied by four-thirds and (D) with respect to the fourth fiscal quarter of such acquisition, the applicable financial information with respect to such Real Property Asset during the most recently completed four fiscal quarter 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 clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
Electronic 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.
Eligible Assignee” means any Person that meets the requirements to be an assignee under Sections 10.06(b)(iii) and (v) (subject to such consents, if any, as may be required under Section 10.06(b)(iii)).
Eligible Ground Lease” means, at any time, either (a) a ground lease reviewed and deemed by the Administrative Agent, in its sole discretion, to be an “Eligible Ground Lease” or (b) a ground lease (i) under which a Credit Party is the lessee or holds equivalent rights and is the fee owner of the improvements located thereon, (ii) that has a remaining term (including renewal options exercisable at
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lessee’s sole option) of not less than 30 years, (iii) under which any required rental payment, principal or interest payment or other payment due under such lease from the applicable Credit Party to the ground lessor is not more than 60 days past due and any required rental payment, principal or interest payment or other payment due to such Credit Party under any sublease of the applicable real property lessor is not more than 60 days past due, (iv) where no party to such lease is subject to a then continuing Bankruptcy Event, (v) such ground lease (or a related document executed by the applicable ground lessor) contains customary provisions protective of any lender to the lessee and (vi) where the applicable Credit Party’s interest in the underlying Real Property Asset or the lease is not subject to (A) any Lien other than Permitted Liens and other encumbrances acceptable to the Administrative Agent and the Required Lenders, in their reasonable discretion, or (B) any Negative Pledge.
Eligible Unencumbered Property” means any Real Property Asset that:
(a)    is a Healthcare Facility;
(b)    is 100% owned in fee simple absolute by a Credit Party or that a Credit Party holds a leasehold interest or similar arrangement providing the right to occupy the Real Property Asset pursuant to an Eligible Ground Lease; provided:
(i)    such Credit Party is controlled exclusively by the Borrower or one or more Wholly Owned Subsidiaries of the Borrower (including the ability to control operating activities of such Credit Party and the ability of such Credit Party to dispose of, pledge or otherwise encumber assets, incur, repay and prepay debt, provide guarantees and pay dividends and distributions, in each case, without any requirement for the consent of any other party or entity);
(ii)    that the Borrower owns, directly or indirectly, at least 80% of the Capital Stock with ordinary voting rights issued by such Credit Party (each such Credit Party, referred to as a “Controlled Party”);
(iii)    such Credit Party is domiciled and incorporated in the United States (except with respect to any permitted International Unencumbered Properties); and
(iv)    such Credit Party is not liable for any Indebtedness (other than Indebtedness permitted under Sections 7.02(a) and 7.02(b));
(c)    does not have any title, survey, environmental, condemnation, or other defects that would give rise to a materially adverse effect as to the value, use (other than as a Healthcare Facility) of or ability to sell or finance such property;
(d)    is not subject to a Lien (other than Permitted Liens), a Negative Pledge or any other encumbrance or any restriction on the ability of the relevant Credit Party to transfer or encumber such Real Property Asset or income therefrom or proceeds thereof (other than the reasonable restrictions on transfers to competitors of a ground lessor of the property or affiliates of such ground lessor or of an owner of a hospital campus on or about which the property is located or affiliates of such owner);
(e)    is located in the United States or is an International Unencumbered Property; provided, however, the Borrower may include International Unencumbered Properties in the Unencumbered Property Pool so long as such the aggregate value of such properties does not exceed 15% of the total Unencumbered Asset Value;
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(f)    with respect to hospitals in the Unencumbered Property Pool, so long as that as of the end of the most recently completed four fiscal quarters (other than as set forth in the proviso below), such hospitals have a ratio of (A) EBITDAR for such four fiscal quarter period to (B) the sum of the annual rent of all such hospitals (measured on a consolidated basis including all buildings on any such Real Property Assets’ campus and/or master lease) not less than 2.00 to 1.00; provided, however, that such calculations with respect to the fiscal quarter ending December 31, 2021 shall be calculated using the applicable financial information during such fiscal quarter multiplied by four; such calculations with respect to the fiscal quarter ending March 31, 2022 shall be calculated using the applicable financial information during such fiscal quarter and the prior fiscal quarter multiplied by two; and such calculations with respect to the fiscal quarter ending June 30, 2022 shall be calculated using the applicable financial information during such fiscal quarter and the prior two fiscal quarters multiplied by four-thirds;
(g)    with respect to skilled nursing facilities in the Unencumbered Property Pool, so long as that as of the end of the most recently completed four fiscal quarters (other than as set forth in the proviso below), such skilled nursing facilities have a ratio of EBITDAR for such four fiscal quarter period to the sum of annual rent of all such skilled nursing facilities over the same four fiscal quarter period (measured on a consolidated basis including all buildings on any such Real Property Assets’ campuses and/or master leases) not less than 1.25 to 1.00; provided, however, that such calculations with respect to the fiscal quarter ending December 31, 2021 shall be calculated using the applicable financial information during such fiscal quarter multiplied by four; such calculations with respect to the fiscal quarter ending March 31, 2022 shall be calculated using the applicable financial information during such fiscal quarter and the prior fiscal quarter multiplied by two; and such calculations with respect to the fiscal quarter ending June 30, 2022 shall be calculated using the applicable financial information during such fiscal quarter and the prior two fiscal quarters multiplied by four-thirds;
(h)    unless such Real Property Asset is a hospital or skilled nursing facility, the Aggregate Occupancy Rate of that portion of the Unencumbered Property Pool that is other than a hospital or skilled nursing facility shall, as of any date of determination, be equal to or greater than 75%; and
(i)    (i) if such Real Property Asset is occupied by a single Tenant, the Tenant at such facility is not delinquent 60 days or more in rent payments and is not subject to a Bankruptcy Event or (ii) if such Real Property Asset is occupied by more than one Tenant, a Tenant or Tenants at such facility with an aggregate amount of 75% of the total sum of annual rent of such Real Property Asset neither is/are delinquent 60 days or more in rent payments nor is/are subject to a Bankruptcy Event.
Environmental Laws” means any and all federal, state, 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 the Borrower, any other Credit Party or any of their respective 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 of any Hazardous Materials into the environment or (e) any contract, agreement or other
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consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
Equity Transaction means, with respect to any member of the Consolidated Parties, any issuance or sale of shares of its Capital Stock, other than an issuance (a) to a Consolidated Party, (b) in connection with a conversion of debt securities to equity, (c) in connection with the exercise by a present or former employee, officer or director under a stock incentive plan, stock option plan or other equity based compensation plan or arrangement, or (d) in connection with any acquisition permitted hereunder.
ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder.
ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with any Consolidated Party within the meaning of Section 414(b) or (c) of the Internal Revenue Code (and Sections 414(m) and (o) of the Internal Revenue Code for purposes of provisions relating to Section 412 of the Internal Revenue Code).
ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by any Consolidated 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 Consolidated 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 Sections 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 that could reasonably be expected to constitute 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 any Consolidated Party or any ERISA Affiliate.
EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
Event of Default” has the meaning provided in Section 8.01.
Excluded Subsidiary” means any Subsidiary that (i) has Secured Indebtedness that (x) is owed to a Person other than an Affiliate of such Subsidiary and (y) by its terms does not permit such Subsidiary to become a Guarantor, (ii) is not at least 80%, directly or indirectly, owned by the Parent or the Borrower and controlled exclusively by the Parent or the Borrower and/or one or more wholly-owned subsidiaries of the Parent or the Borrower, including control over operating activities of such Subsidiary and the ability of such Subsidiary to dispose of, pledge or otherwise encumber assets, incur, repay and prepay debt, provide guarantees and pay dividends and distributions in each case without any requirement for the consent of any other party or entity and is restricted from being a Guarantor under its Organization Documents, (iii) is a Foreign Subsidiary or (iv) is a Trilogy Subsidiary. For the avoidance of doubt, an Excluded Subsidiary (other than a Foreign Subsidiary that is not a Trilogy Subsidiary) shall not own, directly or indirectly, all or any portion of an Eligible Unencumbered Property.
Excluded Swap Obligation” means, with respect to any Guarantor, any Obligation under any Swap Contract if, and to the extent that, all or a portion of the Guaranty of such Guarantor of, or the grant under a Credit Document by such Guarantor of a security interest to secure, such Obligation (or any Guaranty thereof) is or becomes illegal under the Commodity Exchange Act (or the application or official
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interpretation thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to Section 11.07 and any and all guarantees of such Guarantor’s Obligations under any Swap Contract by other Credit Parties) at the time the Guaranty of such Guarantor, or grant by such Guarantor of a security interest, becomes effective with respect to such Obligation. If an Obligation under any Swap Contract arises under a Master Agreement governing more than one Swap Contract, such exclusion shall apply to only the portion of such Obligations that is attributable to Swap Contracts for which such Guaranty or security interest becomes illegal.
Excluded Taxes” means any of the following Taxes imposed on or with respect to any Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the Laws of, or having its principal office or, in the case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a Law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 10.14) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 3.01(e)(ii), 3.01(e)(iii) or 3.01(g) or , amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.01(b) and (d) any U.S. federal withholding Taxes imposed pursuant to FATCA.
Existing Credit Agreement” has the meaning provided in the recitals hereto.
Extended Revolving Loan Maturity Date” means January 19, 2027.
Extension of Credit” means (a) any Borrowing and (b) any L/C Credit Extension.
Facilities” has the meaning provided in Section 5.07(a).
FASB” means the Accounting Standards Codification of the Financial Accounting Standards Board.
FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Credit Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code as of the date of this Credit Agreement (or any amended or successor version described above) and any intergovernmental agreement (and related fiscal or regulatory legislation, or related official rules or practices) implementing 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 Credit Agreement.
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Fee Letter” means any fee letter among the Administrative Agent, any Arranger, the Borrower and the Parent.
Fitch” means Fitch Ratings, a Subsidiary of Fimlac, S.A., and any successor thereto.
Foreign Lender” means a Lender that is not a U.S. Person. For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.
Foreign Subsidiary” means any Subsidiary of the Parent that is not organized under the laws of the United States or any state thereof or the District of Columbia.
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 any L/C Issuer, such Defaulting Lender’s Revolving Commitment Percentage of the Outstanding Amount of all outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving Lenders or Cash Collateralized in accordance with the terms hereof.
Fund” means any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.
GAAP” means accounting principles generally accepted in the United States as 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 from time to time applied on a consistent basis, subject to the provisions of Section 1.03.
GAIV Credit Agreement” means that certain credit agreement (as amended, modified, restated or supplemented from time to time), dated as of November 20, 2018, by and among Griffin-American Healthcare REIT III Holdings, LP (as successor by merger to Griffin-American Healthcare REIT IV Holdings, LP), as borrower, Griffin-American Healthcare REIT IV, Inc., as parent, and certain subsidiaries of parent identified therein, as guarantors, the Lenders (as defined therein), Bank of America, N.A., as Administrative Agent, Swing Line Lender and an L/C Issuer (each, as defined therein) and KeyBank National Association, as an L/C Issuer.
General Partner” means Continental Merger Sub, LLC, a Maryland limited liability company and the general partner of the Borrower.
Governmental Authority” means any nation or government, any state or other political subdivision thereof, and any agency, authority, instrumentality, regulatory body, court, administrative tribunal, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
Guaranteed Obligations” has the meaning provided in Section 11.01.
Guarantors” means the Parent and any Subsidiary of the Parent that guarantees the loans and obligations hereunder pursuant to the Guaranty, in each case with their successors and permitted assigns.
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Guaranty” means the guaranty of the Obligations by each of the Guarantors pursuant to Article XI hereof.
Hazardous Material” means any toxic or hazardous substance, including petroleum and its derivatives regulated under the Environmental Laws.
Healthcare Facilities” means any medical office buildings, general office buildings, skilled nursing facilities, assisted living facilities, independent living facilities, rehabilitation facilities, continuing care retirement communities, mental health facilities, life science facilities or hospitals.
Incremental Facilities” has the meaning provided in Section 2.01(c).
Incremental Facility Commitment” has the meaning provided in Section 2.01(c)(iii).
Incremental Revolving Increase” has the meaning provided in Section 2.01(c).
Incremental Term Loan Facility” has the meaning provided in Section 2.01(c).
Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:
(a)    all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;
(b)    all direct or contingent obligations under letters of credit (including standby and commercial), bankers’ acceptances and similar instruments (including bank guaranties, surety bonds, comfort letters, keep well agreements and capital maintenance agreements) to the extent such instruments or agreements support financial, rather than performance, obligations;
(c)    net obligations of such Person under any Swap Contract;
(d)    all obligations of such Person to pay the deferred purchase price of property or services (other than a contingent earn-out obligation until such amount is actually due);
(e)    the Attributable Principal Amount of Capital Leases, Synthetic Leases and Securitization Transactions;
(f)    all obligations to purchase, redeem, retire, defease or otherwise make any payment in respect of any equity interest, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference, plus accrued and unpaid dividends;
(g)    indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse; and
(h)    all guarantees in respect of any of the foregoing (except for guarantees of customary exceptions for fraud, misapplication of funds, environmental indemnities, violation of “special purpose entity” covenants, and other similar exceptions to recourse liability until a claim is made with respect thereto, and then shall be included only to the extent of the amount of such claim).
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For all purposes hereof, Indebtedness shall include the Consolidated Parties’ pro rata share of the foregoing items and components attributable to Indebtedness of Unconsolidated Affiliates. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date. The Attributable Principal Amount of any Capital Lease, Synthetic Lease or Securitization Transaction as of any date shall be deemed to be the Attributable Principal Amount in respect thereof as of such date.
Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Credit Party under any Credit Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
Indemnitee” has the meaning provided in Section 10.04.
Initial Revolving Loan Maturity Date” means January 19, 2026.
Intangible Assets” means all assets consisting of goodwill, patents, trade names, trademarks, copyrights, franchises, experimental expense, organization expense, unamortized investment debt discount and premium, deferred assets (other than prepaid insurance and prepaid taxes), the excess of cost of shares acquired over book value of related assets and such other assets as are properly classified as “intangible assets” in accordance with GAAP. For the avoidance of doubt, direct and indirect interests in mortgage loans and mezzanine loans are not “Intangible Assets”.
Integrated Facilities” means any Real Property Asset with mixed uses consisting of both (a) assisted living and/or independent living properties and (b) skilled nursing facilities, but specifically excluding medical office buildings and life science buildings.
Interest Payment Date” means, (a) as to any Daily SOFR Rate Loan or Base Rate Loan, the first (1st) Business Day of each calendar month and the Applicable Maturity Date; and (b) as to any Term SOFR Rate Loan, the last day of each Interest Period applicable to such Term SOFR Rate Loan and the Applicable Maturity Date; provided, however, that if any Interest Period for a Term SOFR Rate Loan exceeds three (3) months, the respective dates that fall every three (3) months after the beginning of such Interest Period shall also be Interest Payment Dates.
Interest Period” means, as to any Term SOFR Rate Loan, the period commencing on the date such Term SOFR Rate Loan is disbursed or converted to or continued as a Term SOFR Rate Loan and ending on the date one, three or six months thereafter, as selected by the Borrower in its Loan Notice (in the case of each requested Interest Period, subject to availability); provided, that:
(a)    any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the immediately succeeding Business Day unless, in the case of a Term SOFR Rate Loan, such Business Day falls in another calendar month, in which case such Interest Period shall end on the immediately preceding Business Day;
(b)    any Interest Period pertaining to a Term SOFR Rate Loan that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period;
(c)    no Interest Period shall extend beyond the Applicable Maturity Date; and
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(d)    with respect to the continuation of a one month Term SOFR Rate Loan when any Swap Contract of any Credit Party to which a Lender or any Affiliate of a Lender is a party is in effect, notwithstanding clause (a) above, the Interest Period applicable to such continued Term SOFR Rate Loan shall commence on the last day of the preceding one month Interest Period (the “Commencement Date”) and end on the earlier of (x) one month from such Commencement Date and (y) a day when a payment is due from either counterparty under any such Swap Contract.
Interest Rate Protection Agreement” means any interest rate swap agreement, interest rate cap agreement, interest collar agreement, interest rate hedging agreement or other similar agreement or arrangement.
Internal Revenue Code” means the Internal Revenue Code of 1986, as amended.
International Unencumbered Property” means an Unencumbered Property which is located in Canada, the United Kingdom or Isle of Man.
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 of another Person, (b) a loan, advance or capital contribution to, guaranty 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, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.
Investment Grade Rating” means a Debt Rating of BBB- or higher from S&P or Fitch or Baa3 or higher from Moody’s.
IRS” means the United States Internal Revenue Service.
ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).
Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by any L/C Issuer and the Borrower (or the Parent or any Subsidiary) or in favor of such L/C Issuer and relating to such Letter of Credit.
Laws” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
L/C Advance” means, with respect to each Revolving Lender, such Revolving Lender’s funding of its participation in any L/C Borrowing.
L/C Borrowing” means any extension of credit resulting from a drawing under any Letter of Credit that has not been reimbursed or refinanced as a Borrowing of Revolving Loans.
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L/C Cash Collateralization Date” means the day that is 30 days prior to the Revolving Loan Maturity Date then in effect.
L/C Commitment” means, with respect to each L/C Issuer, the commitment of such L/C Issuer to issue Letters of Credit hereunder. The initial amount of each L/C Issuer’s Letter of Credit Commitment is set forth on Schedule 2.01B, or if an L/C Issuer has entered into an Assignment and Assumption or has otherwise assumed a Letter of Credit Commitment after the Closing Date, the amount set forth for such L/C Issuer as its Letter of Credit Commitment in the Register maintained by the Administrative Agent. The Letter of Credit Commitment of an L/C Issuer may be modified from time to time by agreement between such L/C Issuer and the Borrower, and notified to the Administrative Agent.
L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the renewal or increase of the amount thereof.
L/C Disbursement” means a payment made by an L/C Issuer pursuant to a Letter of Credit.
L/C Issuer” means each of Bank of America, KeyBank, National Association, Citizens Bank, National Association and Bank of the West in its capacity as issuer of Letters of Credit hereunder, and each other Lender (if any) as the Borrower may from time to time select as an L/C Issuer hereunder pursuant to Section 2.03; provided that such Lender has agreed to be an L/C Issuer. Any L/C Issuer may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of such L/C Issuer, in which case the term “L/C Issuer” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate. Each reference herein to the “L/C Issuer” in connection with a Letter of Credit or other matter shall be deemed to be a reference to the relevant L/C Issuer with respect thereto.
L/C Issuer Fees” has the meaning provided in Section 2.08(d)(ii).
L/C Obligations” means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time, including any automatic or scheduled increases provided for by the terms of such Letters of Credit, determined without regard to whether any conditions to drawing could be met at that time, plus (b) the aggregate amount of all Unreimbursed Amounts, including all L/C Borrowings. The L/C Obligations of any Lender at any time shall be its Revolving Committed Percentage of the total L/C Obligations at such time. For all purposes of this Credit 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 Article 29(a) of the UCP or 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 Borrower 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” means each of the Persons identified as a “Lender” on the signature pages hereto and each Person who joins as a Lender pursuant to the terms hereof, together with their respective successors and assigns.
Lender Joinder Agreement” means a joinder agreement in the form of Exhibit G, executed and delivered in accordance with the provisions of Section 2.01(c).
Lender Parties” means, collectively, the Lenders and the L/C Issuers and “Lender Party” means any of the Lender Parties.
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Lending Office” means, as to any Lender, the office or offices of such Lender set forth in such Lender’s Administrative Questionnaire or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent.
Letter of Credit” means each standby (non-commercial) letter of credit issued hereunder providing for the payment of cash upon the honoring of a presentation thereunder.
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 applicable L/C Issuer.
Letter of Credit Expiration Date” means the day that is the first anniversary of the Revolving Loan Maturity Date then in effect (or, if such day is not a Business Day, the immediately preceding Business Day).
Letter of Credit Fee” has the meaning provided in Section 2.08(d)(i).
Letter of Credit Sublimit” means an amount equal to $25,000,000. The Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.
Lien” means any mortgage, deed of trust, deed to secured debt, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement 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 any Revolving Loan or Term Loan and the Base Rate Loans, Term SOFR Rate Loans and Daily SOFR Rate Loans comprising such Loans.
Loan Notice” means a notice of (a) a Borrowing of Loans, (b) a conversion of Loans from one Type to the other, or (c) a continuation of Term SOFR Rate Loans, which shall be substantially in the form of Exhibit A or such other form as may be approved by 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 Borrower.
Master Agreement” has the meaning provided in the definition of “Swap Contract” in this Section 1.01.
Material Adverse Effect” means a material adverse effect on (a) the condition (financial or otherwise), operations, business, assets, properties, liabilities (actual or contingent) or prospects of the Parent and its Consolidated Subsidiaries taken as a whole, (b) the ability of the Borrower or the other Credit Parties, taken as a whole, to perform any material obligation under the Credit Documents, (c) the rights and remedies of the Administrative Agent and the Lenders under the Credit Documents or (d) the legality, validity, binding effect or enforceability against any Credit Party of any Credit Documents to which it is a party.
Material Contract” means, any agreement the breach, nonperformance or cancellation of which could reasonably be expected to have a Material Adverse Effect.
Material Subsidiary” means any Subsidiary of the Parent, other than Borrower and the Excluded Subsidiaries, which has assets which constitute more than 10% of the Consolidated Total Asset Value of the Consolidated Parties (other than the Trilogy Subsidiaries) or which contributes more than 10% of the Consolidated EBITDA of the Consolidated Parties (other than the Trilogy Subsidiaries).
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Merger and Internalization Transaction” means the merger and internalization transaction whereby (a) Griffin American Healthcare REIT IV Holdings, LP merged with and into the Borrower, with the Borrower as the surviving entity, and (b) Griffin American Healthcare REIT III, Inc. merged into the Parent.
Minimum Collateral Amount” means, at any time, (i) with respect to Cash Collateral consisting of cash or deposit account balances provided to reduce or eliminate Fronting Exposure during the existence of a Defaulting Lender, an amount equal to 105% of the Fronting Exposure of all L/C Issuers with respect to Letters of Credit issued and outstanding at such time, (ii) with respect to Cash Collateral consisting of cash or deposit account balances provided in accordance with the provisions of Section 2.13(a)(i), (a)(ii) or (a)(iii), an amount equal to 105% of the Outstanding Amount of all L/C Obligations, and (iii) otherwise, an amount determined by the Administrative Agent and the L/C Issuers in their sole discretion
Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.
Mortgage Loan” means any loan owned or held by any of the Consolidated Parties (other than the Trilogy Subsidiaries) secured by a mortgage or deed of trust on Real Property Assets.
Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which any Consolidated 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 agreement (other than this Credit Agreement or any other Credit Document) that in whole or in part prohibits the creation of any Lien on any assets of a Person; provided, however, that an agreement that establishes a maximum ratio of unsecured debt to unencumbered assets, or of secured debt to total assets, or that otherwise conditions a Person’s ability to encumber its assets upon the maintenance of one or more specified ratios that limit such Person’s ability to encumber its assets but that do not generally prohibit the encumbrance of its assets, or the encumbrance of specific assets, shall not constitute a “Negative Pledge” for purposes of this Credit Agreement.
Net Operating Income” means, for any Real Property Asset for any period, an amount equal to (a) the aggregate gross revenues from the operations of such Real Property Asset during such period from Tenants in occupancy and paying rent, plus (b) any other income of such Real Property Asset, plus (c) business interruption insurance proceeds for a period of no more than twelve months, minus (d) the sum of all expenses and other proper charges incurred in connection with the operation of such Real Property Asset during such period (including management fees and accruals for real estate taxes and insurance, but excluding debt service charges, income taxes, depreciation, amortization and other non-cash expenses), which expenses and accruals shall be calculated in accordance with GAAP.
Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all Lenders or all affected Lenders, or all Lenders or all affected Lenders in a Facility, in accordance with the terms of Section 10.01 and (b) has been approved by the Required Lenders.
Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.
Non-Extension Notice Date” has the meaning specified in Section 2.03(b).
Non-Recourse Indebtedness” means any Indebtedness that is not Recourse Indebtedness.
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Notes” means a collective reference to the Revolving Notes and the Term Notes; and “Note” means any one of them.
Notice of Loan Prepayment” means a notice of prepayment with respect to a Loan in a 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.
Obligations” means, without duplication, (a) all advances to, and debts, liabilities, obligations, covenants and duties of, any Credit Party arising under any Credit 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 Credit 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, (b) all obligations under any Swap Contract of any Credit Party to which a Lender or any Affiliate of a Lender is a party and (c) all obligations under any Treasury Management Agreement between any Credit Party and any Lender or Affiliate of a Lender; provided, however, that the “Obligations” of a Credit Party shall exclude any Excluded Swap Obligations with respect to such Credit Party.
Occupancy Rate” means, (a) with respect to any Real Property Asset that is not a medical office building or other office spaces, a percentage equaling (x) total patient days relating to such Real Property Asset for any reporting period divided by (y) the product of (I) total number of in-service beds at such Real Property Asset (or, in the case of assisted living facilities, the total number of units at such Real Property Asset) and (II) the total days in such reporting period, and (b) with respect to all other Real Property Assets, a percentage equaling (x) the total number of rented and occupied square footage at such Real Property Asset for any reporting period divided by (y) the total rentable square footage relating to such Real Property Asset for any reporting period.
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 Credit Document, or sold or assigned an interest in any Loan or Credit Document).
Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with
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respect to, any Credit Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 10.14).
Outstanding Amount” means (i) with respect to Revolving Loans and Term Loans on any date, the amount of the aggregate outstanding principal amount thereof after giving effect to any Borrowings and prepayments or repayments of such Loans occurring on such date; and (ii) with respect to any L/C Obligations on any date, the amount 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 the Borrower of Unreimbursed Amounts.
Overnight Rate” means, for any day, the greater of (a) the Federal Funds Rate and (b) an overnight rate determined by the Administrative Agent or the applicable L/C Issuer, as the case may be, in accordance with banking industry rules on interbank compensation.
Parent” has the meaning provided in the introductory paragraph hereof.
Participant” has the meaning provided in Section 10.06(d).
Participant Register” has the meaning provided in Section 10.06(d).
Patriot Act” means the USA Patriot Act, Pub. L. No. 107-56 et seq.
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 any Consolidated Party or any ERISA Affiliate or to which any Consolidated 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 Liens” means, at any time, Liens in respect of the Parent or any of its Subsidiaries permitted to exist at such time pursuant to the terms of Section 7.01.
Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) established by any Credit Party, with respect to any such plan that is subject to Section 412 of the Internal Revenue Code or Title IV of ERISA, any ERISA Affiliate.
Platform” has the meaning provided in Section 6.02.
Pro Forma Basis” shall mean, for purposes of determining the calculation of and compliance with the financial covenants set forth in Section 6.12 and the definition of “EBITDAR”, that the subject transaction shall be deemed to have occurred as of the first day of the period of four 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 Credit 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
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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, (i) income statement items (whether positive or negative) attributable to the property, entities or business units that are the subject of such Acquisition shall be included as of the first day of the applicable period to the extent relating to any period prior to the date of the subject transaction, (ii)(x) except as set forth in clause (y), with respect to any Real Property Asset acquired during such four fiscal quarter period, EBITDAR shall be calculated using the applicable financial information with respect to such Real Property Asset during such four fiscal quarter period, and (y) solely with respect to skilled nursing facilities and hospitals acquired during such four fiscal quarter period, EBITDAR shall be calculated using (A) with respect to the first fiscal quarter of such acquisition, the applicable financial information with respect to such Real Property Asset during the most recently completed one fiscal quarter period multiplied by four, (B) with respect to the second fiscal quarter of such acquisition, the applicable financial information with respect to such Real Property Asset during the most recently completed two fiscal quarter period multiplied by two, (C) with respect to the third fiscal quarter of such acquisition, the applicable financial information with respect to such Real Property Asset during the most recently completed three fiscal quarter period multiplied by 4/3 and (D) with respect to the fourth fiscal quarter of such acquisition, the applicable financial information with respect to such Real Property Asset during the most recently completed four fiscal quarter period, and (iii) 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 an Equity Transaction, 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 Forma Financial Statements” means the unaudited balance sheet and income statement of the Consolidated Group dated as of and for the three (3) month period ended March 31, 2021, giving effect to the Merger and Internalization Transaction as if it had been consummated on March 31, 2021, as filed with the registration statement of the Parent on Form S-4/A (No. 333-257974) filed with the SEC on July 27, 2021.
Property” means all property owned or leased by a Credit Party or any of its Subsidiaries, both real and personal.
PTE” a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
Qualified ECP Guarantor” means, at any time, each Credit 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.
Qualified Mortgage Loan” means any direct or indirect wholly-owned interest in any Mortgage Loan that is secured by a first mortgage or a first deed of trust on Real Property Assets so long as the mortgagor or grantor with respect to such Mortgage Loan is not delinquent 60 days or more in interest or principal payments due thereunder.
Real Property Asset” means, a parcel of real property, together with all improvements (if any) thereon, owned in fee simple or leased pursuant to an Eligible Ground Lease, in each case, by any Person (other than a Trilogy Subsidiary); “Real Property Assets” means a collective reference to each Real Property Asset.
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Recipient” means the Administrative Agent, any Lender, any L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of any Credit Party hereunder.
Recourse Indebtedness” means, with respect to any Credit Party or Subsidiary, any Indebtedness, in respect of which recourse for payment (except for limited or full recourse liability on account of customary exceptions for fraud, misapplication of funds, environmental indemnities, bankruptcy, transfer and due on sale violations, and other similar exceptions to recourse liability) is to such Person; provided, that notwithstanding the foregoing, Recourse Indebtedness shall not include any Indebtedness, in respect of which such recourse for payment is to any Trilogy Subsidiary, in each case, solely to the extent such Indebtedness (or the underlying Indebtedness giving rise thereto) would not constitute Recourse Indebtedness of any Credit Party or Subsidiary that is not a Trilogy Subsidiary. If any Indebtedness is partially Non-Recourse Indebtedness and partially Recourse Indebtedness, only that portion that is Recourse Indebtedness shall be included as Recourse Indebtedness for purposes hereof, including Section 7.02(f)(ii).
Register” has the meaning provided in Section 10.06(c).
Regulation U” means Regulation U of the FRB, as in effect from time to time.
Regulation X” means Regulation X of the FRB, as in effect from time to time.
REIT” means a real estate investment trust as defined in Sections 856-860 of the Internal Revenue Code.
Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, and advisors, consultants, service providers and representatives of such Person and of such Person’s Affiliates.
Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the thirty day notice period has been waived.
Request for Extension of Credit” means (a) with respect to a Borrowing of Loans or the conversion or continuation of Loans, a Loan Notice and (b) with respect to an L/C Credit Extension, a Letter of Credit Application.
Required Lenders” means, as of any date of determination, at least two Lenders (unless there is only one Lender at the time) having in the aggregate more than 50% of (a) the sum of the Outstanding Amount of the Term Loans and the Aggregate Revolving Commitments or (b) if the commitment to make Loans and the obligation of the L/C Issuers to make L/C Credit Extensions have been terminated pursuant to Article VIII, at least two Lenders (unless there is only one Lender at the time) holding in the aggregate, more than 50% of the sum of the Outstanding Amount of the Term Loans and the Outstanding Amount of the Revolving Obligations (including, in each case, the aggregate amount of each Revolving Lender’s risk participation and funded participation in L/C Obligations); provided, that (i) the unfunded Commitments of any Defaulting Lender and (ii) the portion of the Outstanding Amount of the Term Loans and the Outstanding Amount of the Revolving Obligations (including, in each case, the aggregate amount of each Revolving Lender’s risk participation and funded participation in L/C Obligations) held or deemed 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, Revolving Lenders having more than 50% of (a) the Aggregate Revolving Commitments or (b) if the Revolving Commitments and the obligation of the L/C Issuers to make L/C Credit Extensions have been terminated pursuant to
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Article VIII, Revolving Lenders holding in the aggregate more than 50% of the Revolving Obligations (including, in each case, the aggregate amount of each Revolving Lender’s risk participation and funded participation in L/C Obligations); provided, that the unfunded Revolving Commitments of, and the portion of the Revolving Obligations held or deemed held by, any Defaulting Lender that is a Revolving Lender shall be excluded for purposes of making a determination of Required Revolving Lenders.
Required Term Lenders” means, at any time, Term Loan Lenders having an Outstanding Amount of the Term Loans representing more than 50% of the Outstanding Amount of the Term Loans of all Term Loan Lenders. The Outstanding Amount of any Defaulting Lender shall be disregarded in determining Required Term Lenders at any time.
Rescindable Amount” has the meaning provided in Section 2.11(b).
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 operating officer and chief financial officer and, solely for purposes of the delivery of incumbency certificates pursuant to Section 4.01(a), the secretary or any assistant secretary of a Credit Party and, solely for purposes of notices given pursuant to Article II, any other officer or employee of the applicable Credit Party so designated by any of the foregoing officers in a notice to the Administrative Agent of any Credit Party or any other officer or employee of the applicable Credit Party designated in or pursuant to an agreement between the applicable Credit Party and the Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer of a Credit Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Credit Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Credit Party.
Restricted Payment” means any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of the Capital Stock of the Parent, or on account of any return of capital to the Parent’s stockholders, partners or members (or equivalent Person thereof); provided, that dividends to the extent in the form of Capital Stock shall not constitute Restricted Payments.
Revolving Commitment” means, with respect to each Revolving Lender, the commitment of such Revolving Lender to make Revolving Loans and to share in the Revolving Obligations hereunder up to such Revolving Lender’s Revolving Commitment Percentage thereof. The aggregate principal amount of the Revolving Commitments of all of the Revolving Lenders as in effect on the Closing Date is $500,000,000.
Revolving Commitment Percentage” means, at any time for each Revolving Lender, a fraction (expressed as a percentage carried to the ninth decimal place), the numerator of which is such Revolving Lender’s Revolving Committed Amount in Dollars and the denominator of which is the Aggregate Revolving Commitments in Dollars, subject to adjustment as provided in Section 2.14. The Revolving Commitment Percentages are set forth on Schedule 2.01A (as such schedule may be updated from time to time).
Revolving Commitment Period” means the period from and including the Closing Date to the earlier of (a) in the case of Revolving Loans, the Revolving Loan Maturity Date, and, in the case of the Letters of Credit, the Letter of Credit Expiration Date, or (b) the date on which the Revolving Commitments shall have been terminated as provided herein.
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Revolving Committed Amount” means, with respect to each Revolving Lender, the amount of such Revolving Lender’s Revolving Commitment. The initial Revolving Committed Amounts are set forth on Schedule 2.01A (as such schedule may be updated from time to time).
Revolving Credit Exposure” means, as to any Revolving Lender at any time, the aggregate principal amount at such time of its outstanding Revolving Loans and such Revolving Lender’s participation in L/C Obligations at such time.
Revolving Lenders” means a collective reference to the Lenders holding Revolving Loans or Revolving Commitments.
Revolving Loan Maturity Date” means (a) if the Initial Revolving Loan Maturity Date is not extended to the Extended Revolving Loan Maturity Date pursuant to Section 2.15, then the Initial Revolving Loan Maturity Date, or (b) if the Initial Revolving Loan Maturity Date is extended to the Extended Revolving Loan Maturity Date pursuant to Section 2.15, then the Extended Revolving Loan Maturity Date.
Revolving Loans” has the meaning provided in Section 2.01.
Revolving Note” means the promissory notes in the form of Exhibit B-1, if any, given to each Revolving Lender to evidence the Revolving Loans of such Revolving Lender, as amended, restated, modified, supplemented, extended, renewed or replaced.
Revolving Obligations” means the Revolving Loans and the L/C Obligations.
Revolving Unused Fee” has the meaning provided in Section 2.08(a).
S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of S&P Global Inc., and any successor thereto.
Same Day Funds” means immediately available funds.
Sanction(s)” means any sanction administered or enforced by the United States Government (including without limitation, OFAC), the United Nations Security Council, the European Union, Her Majesty’s Treasury (“HMT”) or other relevant sanctions authority.
Scheduled Unavailability Date” has the meaning provided in Section 3.03.
SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
Secured Indebtedness” means any Indebtedness for borrowed money (other than pursuant to this Credit Agreement), that is secured by a Lien.
Secured Recourse Indebtedness” means any Secured Indebtedness, in respect of which recourse for payment (except for customary exceptions for fraud, misapplication of funds, environmental indemnities, and other similar exceptions to recourse liability) is to a Credit Party.
Securitization Transaction” means any financing or factoring or similar transaction (or series of such transactions) entered by any member of the Consolidated Parties pursuant to which such member of the Consolidated Parties may sell, convey or otherwise transfer, or grant a security interest in, accounts,
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payments, receivables, rights to future lease payments or residuals or similar rights to payment to a special purpose subsidiary or affiliate or any other Person.
Significant Acquisition” means an acquisition or series of related acquisitions of (a) one or more entities or businesses for an amount in excess of 10% of Consolidated Total Asset Value, or (b) one or more properties for an amount in excess of 10% of Consolidated Total Asset Value.
SOFR” means the Secured Overnight Financing Rate as administered by the Federal Reserve Bank of New York (or a successor administrator).
SOFR Administrator” means the Federal Reserve Bank of New York, as the administrator of SOFR, or any successor administrator of SOFR designated by the Federal Reserve Bank of New York or other Person acting as the SOFR Administrator at such time.
Solvent” means, with respect to any person on a particular date, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person, (b) the present fair saleable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and other commitments as they mature given the likelihood of refinancing, (d) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature, and (e) such Person is not engaged in a business or a transaction, and is not about to engage in a business or a transaction, for which such Person’s property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which such Person is engaged. In computing the amount of contingent liabilities at any time, it is intended that such liabilities will be computed at the amount which, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
Southlake Hospital Property” means that certain Real Property Asset known as the Southlake, Texas Hospital.
Specified Loan Party” has the meaning provided in Section 11.07.
Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise provided, “Subsidiary” shall refer to a Subsidiary of the Parent.
Subsidiary Guarantor” means (a) each Material Subsidiary of the Parent other than the Borrower, the Excluded Subsidiaries and any taxable REIT subsidiary and (b) each Subsidiary (other than the Borrower or any Foreign Subsidiary) that is the owner of an Unencumbered Property included in the Unencumbered Property Pool; provided that, in the event that the value of the assets of all Subsidiary Guarantors is less than 85% of the Consolidated Total Asset Value attributable to the Subsidiaries of the Parent (other than the Borrower and the Excluded Subsidiaries), the Borrower (or the Administrative Agent, in the event the Borrower has failed to do so within 10 days of request therefor by the Administrative Agent) shall, to the extent necessary, designate sufficient Subsidiaries to be deemed to be “Material Subsidiaries” to eliminate such shortfall, and such designated Subsidiaries shall thereafter constitute Material Subsidiaries.
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Subsidiary Guarantor Joinder Agreement” means a joinder agreement in the form of Exhibit F to be executed by each new Subsidiary of the Parent that is required to become a Subsidiary Guarantor in accordance with Section 6.15 hereof.
Successor Rate” has the meaning provided in Section 3.03.
Swap Contract” means (a) any Interest Rate Protection Agreement, (b) 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, and (c) any and all transactions of any kind, and the related confirmations, that 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 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 values determined in accordance therewith, such termination values, and (b) for any date prior to the date referenced in clause (a), the amounts determined as the mark to market values 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” means any synthetic lease, tax retention operating lease, off balance sheet loan or similar off balance sheet financing arrangement that is considered borrowed money indebtedness for tax purposes but is classified as an operating lease under GAAP.
Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
Tenant” means any Person who is a lessee with respect to any lease held by a Consolidated Party as lessor or as an assignee of the lessor thereunder.
Term Loan” has the meaning provided in Section 2.01(b).
Term Loan Commitment” means, with respect to each Term Loan Lender, the commitment of such Term Loan Lender to make its portion of the Term Loan to the Borrower pursuant to Section 2.01(b), in the principal amount set forth opposite such Term Loan Lender’s name on Schedule 2.01A; provided that, at any time after funding of a Term Loan, the determination of “Required Lender” shall also be based on the Outstanding Amount of such Term Loan. The aggregate principal amount of the Term Loan Commitments of all of the Term Loan Lenders as in effect on the Closing Date is $550,000,000.
Term Loan Commitment Percentage” means, at any time for each Term Loan Lender, a fraction (expressed as a percentage carried to the ninth decimal place), the numerator of which is the aggregate amount of Term Loans in Dollars (and/or aggregate Term Loan Commitment in Dollars, prior to the termination thereof) held by such Term Loan Lender and the denominator of which is the aggregate
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amount of Term Loans in Dollars (and/or aggregate Term Loan Commitments in Dollars) held by all Term Loan Lenders. The Term Loan Commitment Percentages are set forth on Schedule 2.01A (as such schedule may be updated from time to time).
Term Loan Lenders” means a collective reference to the Lenders holding Term Loans or Term Loan Commitments.
Term Loan Maturity Date” means January 19, 2027.
Term Note” means the promissory note in the form of Exhibit B-2, if any, given to each Term Loan Lender to evidence the Term Loan of such Term Loan Lender, as amended, restated, modified, supplemented, extended, renewed or replaced.
Term SOFR” means:
(a)    for any Interest Period with respect to a Term SOFR Rate Loan, the rate per annum equal to the Term SOFR Screen Rate two (2) U.S. Government Securities Business Days prior to the commencement of such Interest Period with a term equivalent to such Interest Period; provided that if the rate is not published prior to 11:00 a.m. Eastern Time on such determination date, then Term SOFR means the Term SOFR Screen Rate on the first U.S. Government Securities Business Day immediately prior thereto, in each case, plus the Term SOFR Adjustment for such Interest Period; and
(b)    for any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to the Term SOFR Screen Rate with a term of one (1) month commencing that day;
provided that if Term SOFR determined in accordance with either of the foregoing clauses (a) or (b) of this definition would otherwise be less than zero percent (0.00%), Term SOFR shall be deemed zero percent (0.00%) for purposes of this Credit Agreement.
Term SOFR Adjustment” means (a) 0.10% (10 basis points) for an Interest Period of one (1)- month’s duration, (b) 0.26161% (26.161 basis points) for an Interest Period of three (3)- months’ duration, and (c) 0.42826% (42.826 basis points) for an Interest Period of six (6)- months’ duration.
Term SOFR Rate Loan” means a Loan made hereunder with respect to which the interest rate is calculated by reference to Term SOFR.
Term SOFR Replacement Date” has the meaning provided in Section 3.03.
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) for any Recourse Indebtedness, $35,000,000, and (b) for any Non-Recourse Indebtedness, $100,000,000.
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Total Credit Exposure” means, as to any Lender at any time, the unused Commitments, Revolving Credit Exposure and Outstanding Amount of all Term Loans of such Lender at such time.
Treasury Management Agreement” means any agreement governing the provision of treasury or cash management services, including, without limitation, deposit accounts, overnight draft, credit cards, debit cards, p-cards (including purchasing cards, employee credit card programs and commercial cards), funds transfer, automated clearinghouse, direct debit, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade finance services, netting services, cash pooling arrangements, credit and debit card acceptance or merchant services and other treasury or cash management services.
Trilogy Subsidiary” means Trilogy REIT Holdings, LLC or any Subsidiary thereof, and collectively, the “Trilogy Subsidiaries”.
Type” means, with respect to any Revolving Loan or Term Loan, its character as a Base Rate Loan, a Term SOFR Rate Loan or a Daily SOFR Rate Loan.
UCC” means the Uniform Commercial Code as from time to time in effect in the State of New York or, as the context requires, any other applicable jurisdiction.
UCP” means, with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce (“ICC”) Publication No. 600 (or such later version thereof as may be in effect at the time of issuance).
UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person subject to IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
Unconsolidated Affiliates” means an affiliate of the Parent whose financial statements are not required to be consolidated with the financial statements of the Parent in accordance with GAAP.
Unencumbered Asset Value” means for any Consolidated Unencumbered Property, an amount, not less than $0, equal to: (a)(1) for a Consolidated Unencumbered Property owned by such Consolidated Party (other than a Trilogy Subsidiary) on the last day of the then most recently ended fiscal quarter (other than a Consolidated Unencumbered Property acquired during the then most recently ended four fiscal quarters), an amount equal to the Net Operating Income for the most recently completed fiscal quarter multiplied by four and (2) divided by the applicable Capitalization Rate for such Consolidated Unencumbered Property and (b) for a Consolidated Unencumbered Property acquired by such Consolidated Party (other than a Trilogy Subsidiary) during the most recently ended four fiscal quarters, the aggregate acquisition cost of such Consolidated Unencumbered Property.
Unencumbered Indebtedness Yield” means, as of any date of determination, the ratio of (a)(i) Consolidated Unencumbered NOI plus (ii) interest income from unencumbered Qualified Mortgage Loans, as of the end of the most recently completed fiscal quarter, multiplied by four to (b) the Consolidated Unsecured Indebtedness for the most recently completed fiscal quarter. For the avoidance of doubt, the interest income from unencumbered Qualified Mortgage Loans that are owned by the Consolidated Parties
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(other than the Trilogy Subsidiaries) for less than one fiscal quarter will be included in calculating Unencumbered Indebtedness Yield as if such Qualified Mortgage Loans were owned by such Consolidated Parties as of the beginning of the then most recently completed fiscal quarter.
Unencumbered Net Operating Income” means, for any period, the Net Operating Income from all Unencumbered Properties.
Unencumbered Property” means, as of any date of determination, each Eligible Unencumbered Property, and each Real Property Asset that is identified as an Unencumbered Property in accordance with Section 6.16 and was included in the calculations set forth in the most recent Unencumbered Property Certificate delivered to the Administrative Agent.
Unencumbered Property Certificate” means a certificate substantially in the form of Exhibit C hereto.
Unencumbered Property Pool” means, collectively, on and after the Closing Date, (i) the Real Property Assets that satisfy the criteria set forth in the definition of Eligible Unencumbered Properties that are included in the calculations set forth in the most recent Unencumbered Property Certificate delivered to the Administrative Agent and (ii) also collectively satisfy the Unencumbered Property Pool Criteria.
Unencumbered Property Pool Criteria” means the following diversification parameters and other criteria:
(a)    no single Unencumbered Property shall account for greater than 25% of the Consolidated Unencumbered Total Asset Value, with any excess being subtracted from the Consolidated Unencumbered Total Asset Value;
(b)    Unencumbered Properties that are located in any single metropolitan statistical area shall not account for greater than 25% of the Consolidated Unencumbered Total Asset Value, with any excess being subtracted from the Consolidated Unencumbered Total Asset Value;
(c)    no more than 25% of the Consolidated Unencumbered Total Asset Value shall be attributable to one or more Unencumbered Properties with the same Tenant, with any excess being subtracted from the Consolidated Unencumbered Total Asset Value;
(d)    no more than 15% of the Consolidated Unencumbered Total Asset Value shall be attributable to Unencumbered Properties of which the Parent, the Borrower or any Wholly Owned Subsidiary of the Borrower own less than 95% of the Capital Stock of the applicable Controlled Party with ordinary voting rights issued by the applicable Controlled Party, with any excess being subtracted from the Consolidated Unencumbered Total Asset Value;
(e)    no more than 20% of the Consolidated Unencumbered Total Asset Value may be attributable to hospital properties, with any excess being subtracted from the Consolidated Unencumbered Total Asset Value; and
(f)    no more than 25% of the Consolidated Unencumbered Total Asset Value may be attributable to skilled nursing facilities, with any excess being subtracted from the Consolidated Unencumbered Total 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
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accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the Internal Revenue Code for the applicable plan year.
United States” or “U.S.” means the United States of America.
Unreimbursed Amount” has the meaning provided in Section 2.03(f).
Unused Fee Rate” means for any calendar quarter (a) 0.25% per annum if the actual daily Commitment Utilization Percentage for such quarter is less than or equal to 50% and (b) 0.20% per annum if the actual daily Commitment Utilization Percentage for such quarter is greater than 50%.
U.S. Government Securities Business Day” means any Business Day, except any Business Day on which any of the Securities Industry and Financial Markets Association, the New York Stock Exchange or the Federal Reserve Bank of New York is not open for business because such day is a legal holiday under the federal laws of the United States or the laws of the State of New York, as applicable.
U.S. Person” means any Person that is a “United States person” as defined in Section 7701(a)(30) of the Internal Revenue Code.
Wholly Owned” means, with respect to any direct or indirect Subsidiary of any Person, that 100% of the Capital Stock with ordinary voting power issued by such Subsidiary (other than directors’ qualifying shares and investments by foreign nationals mandated by applicable Law) is beneficially owned, directly or indirectly, by such Person.
Withholding Agent” means the Borrower and the Administrative Agent.
Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
1.02Interpretive Provisions. With reference to this Credit Agreement and each other Credit Document, unless otherwise provided herein or in such other Credit Document:
(a)The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.
(b)(i)    The words “herein,” “hereto,” “hereof” and “hereunder” and words of similar import when used in any Credit Document shall refer to such Credit Document as a whole and not to any particular provision thereof.
(ii)Unless otherwise provided or required by context, Article, Section, Exhibit and Schedule references are to the Credit Document in which such reference appears.
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(iii)The term “including” is by way of example and not limitation.
(iv)The term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements and other writings, however evidenced, whether in physical or electronic form.
(c)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.”
(d)Section headings herein and in the other Credit Documents are included for convenience of reference only and shall not affect the interpretation of this Credit Agreement or any other Credit Document.
1.03Accounting Terms.
(a)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 Credit 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 Pro Forma Financial Statements except as otherwise specifically prescribed herein.
(b)The Borrower will provide a written summary of material changes in GAAP or in the consistent application thereof with each annual and quarterly Compliance Certificate delivered in accordance with Section 6.02(a). If at any time any change in GAAP or in the consistent application thereof would affect the computation of any financial ratio or requirement set forth in any Credit Document, and either the Borrower or the Required Lenders shall object in writing to determining compliance based on such change, then such computations shall continue to be made on a basis consistent with the most recent financial statements delivered pursuant to Section 6.01(a) or (b) as to which no such objection has been made. Notwithstanding the foregoing, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any change to GAAP occurring after the Closing Date as a result of the adoption of Accounting Standards Update, 2016-02 Leases (Topic 842), issued by the Financial Accounting Standards Board in February 2016, or any other proposals issued by the Financial Accounting Standards Board in connection therewith, in each case if such change would require treating any lease (or similar arrangement conveying the right to use an asset) as a capital or financing lease where such lease (or similar arrangement) was not required to be so treated under GAAP as in effect on the Closing Date.
(c)Determinations of the calculation of and compliance with the financial covenants set forth in Section 6.12 shall be made on a Pro Forma Basis.
1.04Rounding. Any financial ratios required to be maintained by the Consolidated Parties pursuant to this Credit 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).
1.05References to Agreements and Laws. Unless otherwise expressly provided herein, (a) references to Organization Documents, agreements (including the Credit Documents) and other
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contractual instruments shall be deemed to include all subsequent amendments, restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, extensions, supplements and other modifications are not prohibited by any Credit Document; and (b) references to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Law.
1.06Times of Day. Unless otherwise provided, all references herein to times of day shall be references to Central time (daylight or standard, as applicable).
1.07Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
1.08Divisions. For all purposes under the Credit Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Capital Stock at such time.
1.09Interest Rates. 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 Borrower. 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 Credit Agreement, and shall have no liability to the Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or other action or omission related to or affecting the selection, determination, or calculation of any rate (or component thereof) provided by any such information source or service.
II.COMMITMENTS AND EXTENSION OF CREDIT.
2.01Commitments. Subject to the terms and conditions set forth herein:
(a)Revolving Loans. During the Revolving Commitment Period, each Revolving Lender severally agrees to make revolving credit loans (the “Revolving Loans”) to the Borrower in Dollars on any Business Day; provided that after giving effect to any such Revolving Loan, (i) with regard to the Revolving Lenders collectively, the aggregate Outstanding Amount of
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Revolving Obligations shall not exceed the Aggregate Revolving Commitments, and (ii) with regard to each Revolving Lender individually, such Revolving Lender’s Revolving Commitment Percentage of Revolving Obligations shall not exceed its respective Revolving Committed Amount. Revolving Loans may consist of Term SOFR Rate Loans or Daily SOFR Rate Loans, or a combination thereof, except as provided herein, and may be repaid and reborrowed in accordance with the provisions hereof.
(b)Term Loan. Subject to the terms and conditions hereof and in reliance upon the representations and warranties set forth herein, each Term Loan Lender severally, but not jointly, agrees to fund its pro rata share of a term loan in Dollars to the Borrower (the “Term Loan”) on the Closing Date in an aggregate amount not to exceed such Term Loan Lender’s Term Loan Commitment; provided, that after giving effect to any Borrowing of a Term Loan, the outstanding amount of the Term Loan shall not exceed the total Term Loan Commitment. Term Loans may consist of Term SOFR Rate Loans or Daily SOFR Rate Loans, or a combination thereof, except as provided herein. Term Loans may be repaid in whole or in part at any time but amounts repaid on the Term Loan may not be reborrowed.
(c)Increases of the Aggregate Revolving Commitments; Addition of Incremental Term Loan Facilities. The Borrower shall have the right, upon at least five Business Days’ prior written notice to the Administrative Agent, to increase the Aggregate Revolving Commitments (each such increase, an “Incremental Revolving Increase”) or to add one or more tranches of term loans (each an “Incremental Term Loan Facility”; each Incremental Term Loan Facility and each Incremental Revolving Increase are collectively referred to as “Incremental Facilities”), provided that
(i)the aggregate principal amount of all Incremental Facilities shall not exceed $700,000,000;
(ii)no Default or Event of Default shall exist on the effective date of any Incremental Facility or would exist after giving effect to any such Incremental Facility;
(iii)no existing Lender shall be under any obligation to provide any commitment to an Incremental Facility (an “Incremental Facility Commitment”) and any such decision whether to provide an Incremental Facility Commitment shall be in such Lender’s sole and absolute discretion;
(iv)each Incremental Facility Commitment shall be in a minimum principal amount of $5,000,000 and in integral multiples of $1,000,000 in excess thereof (or such lesser amounts as the Administrative Agent and the Borrower may agree);
(v)the maturity date of any Incremental Revolving Increase shall be the Revolving Loan Maturity Date and the maturity date of any Incremental Term Loan Facility shall be the Term Loan Maturity Date;
(vi)each Person providing an Incremental Facility Commitment shall qualify as an Eligible Assignee;
(vii)the Borrower shall deliver to the Administrative Agent:
(A)a certificate of each Credit Party dated as of the date of such increase signed by a Responsible Officer of such Credit Party certifying and
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attaching resolutions adopted by the board of directors or equivalent governing body of such Credit Party approving such Incremental Facility;
(B)a certificate of the Borrower dated as of the effective date of such Incremental Facility signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to such Incremental Facility, (1) the representations and warranties of each Credit Party contained in Article V or any other Credit Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such increase, 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 as of such earlier date, and (2) no Default or Event of Default exists;
(C)any new or amended and restated Notes (to the extent requested by the Lenders) to reflect such Incremental Facilities;
(D)opinions of legal counsel to the Credit Parties, addressed to the Administrative Agent and each Lender (including each Person providing an Incremental Facility Commitment), dated as of the effective date of such Incremental Facility, in form and substance reasonably satisfactory to the Administrative Agent;
(E)upon the reasonable request of any increasing or new Lender made at least five (5) days prior to the effective date of such increase, each Credit Party shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least five (5) days prior to the effective date of such increase and (y) at least five days prior to the effective date of such increase, any Credit Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each increasing or new Lender that so requests, a Beneficial Ownership Certification in relation to such Credit Party; and
(F)all fees, including but not limited to arrangement and upfront fees required under any engagement letter or Fee Letter due in connection with the syndication of the commitments to fund such Incremental Facility;
(viii)the Administrative Agent shall have received documentation from each Person providing an Incremental Facility Commitment evidencing its Incremental Facility Commitment and its obligations under this Credit Agreement in form and substance reasonably acceptable to the Administrative Agent, including, without limitation a Lender Joinder Agreement substantially in the form of Exhibit G attached hereto or other arrangement reasonably acceptable to the Administrative Agent;
(ix)in the case of any Incremental Revolving Increase with respect to the Aggregate Revolving Commitments, (A) if any Revolving Loans are outstanding on the date of such increase, (1) each Lender providing such Incremental Revolving Increase shall make Revolving Loans, the proceeds of which shall be applied by the Administrative Agent to prepay the Revolving Loans of the existing Revolving Lenders, in an amount necessary
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such that after giving effect thereto the outstanding Revolving Loans are held ratably among all the Revolving Lenders and (2) the Borrower shall pay an amount required pursuant to Section 3.05 as a result of any such prepayment of Revolving Loans of existing Revolving Lenders and (B) such Incremental Revolving Increase shall be on the exact same terms and pursuant to the exact same documentation applicable to such existing Revolving Loans; and
(x)in the case of an Incremental Term Loan Facility and subject to the requirements of clauses (c)(i) through (vii) above, upon notice to the Administrative Agent (which shall promptly notify the Lenders), the Borrower may, from time to time, request an increase to the Term Loan Commitments, or one or more additional term loan tranches. At the time of sending such notice, the Borrower (in consultation with the Administrative Agent) shall specify the time period within which each Lender is requested to respond (which shall in no event be less than 10 Business Days from the date of delivery of such notice to the Lenders).
The Incremental Facility Commitments and credit extensions thereunder shall constitute Commitments and Obligations under, and shall be entitled to all the benefits afforded by, this Credit Agreement and the other Credit Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guaranty.
2.02Borrowings, Conversions and Continuations.
(a)Each Borrowing, each conversion of Loans from one Type to the other, and each continuation of Loans shall be made upon the Borrower’s irrevocable notice to the Administrative Agent, which may be given by (i) telephone or (ii) a Loan Notice; provided that any telephonic notice must be confirmed immediately by delivery to the Administrative Agent of a Loan Notice. Each such notice must be received by the Administrative Agent not later than 12:00 p.m. (A) on the date of the request for any Borrowing or continuation of Daily SOFR Rate Loans, (B) two Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Term SOFR Rate Loans or of any conversion of Term SOFR Rate Loans to Daily SOFR Rate Loans. Each Borrowing, conversion or continuation of (x) Term SOFR Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof and (y) Base Rate Loans and Daily SOFR Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof (or, in connection with any conversion or continuation of a Term Loan, if less, the entire principal thereof then outstanding). Unless otherwise specified herein, no conversion from Term SOFR Rate Loans may be made other than at the end of the corresponding Interest Period. Each Loan Notice shall specify (i) whether the applicable request is with respect to Revolving Loans or Term Loans, (ii) whether such request is for a Borrowing, conversion of Loans from one Type to the other, or a continuation of either Term SOFR Rate Loans or Daily SOFR Rate Loans, (iii) the requested date of such Borrowing, conversion or continuation (which shall be a Business Day), (iv) the principal amount of Loans to be borrowed, converted or continued, (v) the Type of Loans to be borrowed or to which existing Loans are to be converted, and (vi) if applicable, the duration of the Interest Period with respect thereto. If the Borrower fails to specify Term SOFR in a Loan Notice or if the Borrower fails to give a timely notice requesting a conversion or continuation of a Term SOFR Rate Loan, then the applicable Loans shall be made as, or converted to, Daily SOFR Rate Loans. Any such automatic conversion to Daily SOFR Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Loans. Notwithstanding the foregoing, so long as a standing instruction notification in form and substance reasonably acceptable to the Administrative Agent is in effect, if the Borrower fails to give a timely notice requesting a conversion or continuation of a Term SOFR Rate Loan, then the Term SOFR
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Rate Loan shall be automatically continued as a Term SOFR Rate Loan with an Interest Period of one month. If the Borrower requests a Term SOFR Rate Loan, or a conversion to or continuation of Term SOFR Rate Loans in any such Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.
(b)Following receipt of a Loan Notice, the Administrative Agent shall promptly notify each Lender, as applicable, of the amount of its Revolving Commitment Percentage or Term Loan Commitment Percentage of the applicable Loans, as the case may be, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Lender, as applicable, of the details of any continuation of Term SOFR Rate Loans or automatic conversion to Daily SOFR Rate Loans, in each case as described in the preceding subsection. In the case of a Borrowing, each Lender shall make the amount of its Loan available to the Administrative Agent in Same Day Funds at the Administrative Agent’s Office not later than 2:00 p.m. on the Business Day specified in the applicable Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial Extension of Credit, Section 4.01), the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of the applicable party on the books of the Administrative Agent 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 the Borrower; provided, however, that if, on the date the Loan Notice with respect to such Borrowing is given by the Borrower, there are L/C Borrowings outstanding, then the proceeds of such Borrowing shall be applied, first, to the payment in full of any such L/C Borrowings and second, to the party identified in the applicable Loan Notice as provided above.
(c)Without limitation of any other conditions herein, a Borrowing or continuation of or conversion to Term SOFR Rate Loans shall not be permitted if:
(i)The requested Borrowing or continuation of or conversion to Term SOFR Rate Loans would cause more than seven Interest Periods to be in effect at any one time for Term SOFR Rate Loans, after giving effect to all Term SOFR Rate Loans, all conversions of Loans from one Type to another, and all continuations of Loans as the same Type; or
(ii)The requested interest period does not conform to the definition of Interest Period herein; or
(iii)Any of the circumstances referred to in Section 3.03 shall apply with respect to the requested Borrowing or continuation of or conversion to Term SOFR Rate Loans.
(d)The Administrative Agent shall promptly notify the Borrower and the Lenders of the interest rate applicable to each portion of the Loan other than Daily SOFR Rate Loans upon determination of same.
(e)Notwithstanding the foregoing provisions of this Section 2.02 or any other provisions in any other Credit Document to the contrary, at all times when any Swap Contract of any Credit Party to which a Lender or any Affiliate of a Lender is a party is in effect, Borrower shall elect Interest Periods of one month in duration for all Term SOFR Rate Loans. Borrower shall time its rate election so that each Interest Period with respect to such Term SOFR Rate Loans ends on a day when a payment is due from either counterparty under any such Swap Contract.
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(f)With respect to 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 Borrower and the Lenders reasonably promptly after such amendment becomes effective.
2.03Letters of Credit.
(a)General. Subject to the terms and conditions set forth herein, in addition to the Loans provided for in Section 2.01, the Borrower may request any L/C Issuer, in reliance on the agreements of the Revolving Lenders set forth in this Section 2.03, to issue, at any time and from time to time during the Revolving Commitment Period, Letters of Credit denominated in Dollars for its own account or the account of any of its Subsidiaries in such form as is acceptable to the Administrative Agent and such L/C Issuer in its reasonable determination. Letters of Credit issued hereunder shall constitute utilization of the Commitments.
(b)Notice of Issuance, Amendment, Extension, Reinstatement or Renewal. To request the issuance of a Letter of Credit (or the amendment of the terms and conditions, extension of the terms and conditions, extension of the expiration date, or reinstatement of amounts paid, or renewal of an outstanding Letter of Credit), the Borrower shall deliver (or transmit by electronic communication, if arrangements for doing so have been approved by the applicable L/C Issuer) to an L/C Issuer selected by it and to the Administrative Agent not later than 11:00 a.m. at least two Business Days (or such later date and time as the Administrative Agent and such L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, extended, reinstated or renewed, and specifying the date of issuance, amendment, extension, reinstatement or renewal (which shall be a Business Day), the date on which such Letter of Credit is to expire (which shall comply with clause (d) of this Section 2.03), the amount of such Letter of Credit, the name and address of the beneficiary thereof, the purpose and nature of the requested Letter of Credit and such other information as shall be necessary to prepare, amend, extend, reinstate or renew such Letter of Credit. If requested by the applicable L/C Issuer, the Borrower also shall submit a letter of credit application and reimbursement agreement on such L/C Issuer’s standard form in connection with any request for a Letter of Credit. In the event of any inconsistency between the terms and conditions of this Credit Agreement and the terms and conditions of any form of letter of credit application and reimbursement agreement or other agreement submitted by the Borrower to, or entered into by the Borrower with, an L/C Issuer relating to any Letter of Credit, the terms and conditions of this Credit Agreement shall control.
If the Borrower so requests in any applicable Letter of Credit Application (or the amendment of an outstanding Letter of Credit), the applicable 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 shall permit such L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than the date(the “Non-Extension Notice Date”) in each such twelve-month period agreed upon by the Borrower and the applicable L/C Issuer at the time such Letter of Credit is issued. Unless otherwise directed by the applicable L/C Issuer, the Borrower shall not be required to make a specific request to such L/C Issuer for any such extension. Once an Auto-Extension Letter of
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Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the applicable L/C Issuer to permit the extension of such Letter of Credit at any time to an expiration date not later than the date permitted pursuant to Section 2.03(d); provided, that such L/C Issuer shall not (i) permit any such extension if (A) such 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 extended form under the terms hereof (except that the expiration date may be extended to a date that is no more than one year from the then-current expiration date) or (B) it has received notice (which may be in writing or by telephone (if promptly confirmed in writing)) on or before the day that is seven Business Days before the Non-Extension Notice Date from the Administrative Agent that the Required Lenders have elected not to permit such extension or (ii) be obligated to permit such extension if it has received notice (which may be in writing or by telephone (if promptly confirmed in writing)) on or before the day that is seven Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions set forth in Section 4.02 is not then satisfied, and in each such case directing such L/C Issuer not to permit such extension.
(c)Limitations on Amounts, Issuance and Amendment. A Letter of Credit shall be issued, amended, extended, reinstated or renewed only if (and upon issuance, amendment, extension, reinstatement or renewal of each Letter of Credit the Borrower shall be deemed to represent and warrant that), after giving effect to such issuance, amendment, extension, reinstatement or renewal (i) the aggregate amount of the outstanding Letters of Credit issued by any L/C Issuer shall not exceed its L/C Commitment, (ii) the aggregate L/C Obligations shall not exceed the Letter of Credit Sublimit, (iii) the Revolving Credit Exposure of any Revolving Lender shall not exceed its Revolving Committed Amount and (iv) the total Revolving Credit Exposures shall not exceed the Aggregate Revolving Commitments.
(i)No L/C Issuer shall 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 such L/C Issuer from issuing the Letter of Credit, or any Law applicable to such L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon such L/C Issuer with respect to the Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such L/C Issuer in good faith deems material to it;
(B)the issuance of such Letter of Credit would violate one or more policies of such L/C Issuer applicable to letters of credit generally;
(C)except as otherwise agreed by the Administrative Agent and such L/C Issuer, the Letter of Credit is in an initial stated amount less than $500,000;
(D)any Lender is at that time a Defaulting Lender, unless such L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to such L/C Issuer (in its sole discretion) with the Borrower or such
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Lender to eliminate such L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.14(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which such L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion; or
(E)the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.
(ii)No L/C Issuer shall be under any obligation to amend any Letter of Credit if (A) such L/C Issuer would have no obligation at such time to issue the Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of the Letter of Credit does not accept the proposed amendment to the Letter of Credit.
(d)Expiration Date. Each Letter of Credit shall have a stated expiration date no later than the earlier of (i) the date 12 months after the date of the issuance of such Letter of Credit (or, in the case of any extension of the expiration date thereof, whether automatic or by amendment, 12 months after the then current expiration date of such Letter of Credit) and (ii) the Letter of Credit Expiration Date, unless approved by the Required Revolving Lenders.
(e)Participations. By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount or extending the expiration date thereof), and without any further action on the part of the applicable L/C Issuer or the Revolving Lenders, such L/C Issuer hereby grants to each Revolving Lender, and each Revolving Lender hereby acquires from such L/C Issuer, a participation in such Letter of Credit equal to such Revolving Lender’s Revolving Commitment Percentage of the aggregate amount available to be drawn under such Letter of Credit. Each Lender acknowledges and agrees that its obligation to acquire participations pursuant to this clause (e) in respect of Letters of Credit is absolute, unconditional and irrevocable and shall not be affected by any circumstance whatsoever, including any amendment, extension, reinstatement or renewal of any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the Revolving Commitments.
In consideration and in furtherance of the foregoing, each Revolving Lender hereby absolutely, unconditionally and irrevocably agrees to pay to the Administrative Agent, for account of the applicable L/C Issuer, such Revolving Lender’s Revolving Commitment Percentage of each L/C Disbursement made by an L/C Issuer not later than 12:00 p.m. on the Business Day specified in the notice provided by the Administrative Agent to the Revolving Lenders pursuant to Section 2.03(f) until such L/C Disbursement is reimbursed by the Borrower or at any time after any reimbursement payment is required to be refunded to the Borrower for any reason, including after the Revolving Loan Maturity Date. Such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each such payment shall be made in the same manner as provided in Section 2.02 with respect to Revolving Loans made by such Revolving Lender (and Section 2.02 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders), and the Administrative Agent shall promptly pay to the applicable L/C Issuer the amounts so received by it from the Revolving Lenders. Promptly following receipt by the Administrative Agent of any payment from the Borrower pursuant to Section 2.03(f), the Administrative Agent shall distribute such payment to the applicable L/C Issuer or, to the extent that the Revolving Lenders have made payments pursuant to this clause (e) to reimburse such L/C Issuer, then to such Revolving Lenders and such L/C Issuer as their interests may appear. Any payment made by a Revolving Lender pursuant to this clause (e) to reimburse an L/C Issuer for any L/C Disbursement
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shall not constitute a Revolving Loan and shall not relieve the Borrower of its obligation to reimburse such L/C Disbursement.
Each Revolving Lender further acknowledges and agrees that its participation in each Letter of Credit will be automatically adjusted to reflect such Revolving Lender’s Revolving Commitment Percentage of the aggregate amount available to be drawn under such Letter of Credit at each time such Revolving Lender’s Revolving Commitment is amended pursuant to the operation of Section 2.01(c) or 2.15, as a result of an assignment in accordance with Section 10.06 or otherwise pursuant to this Credit Agreement.
If any Revolving Lender fails to make available to the Administrative Agent for the account of the applicable L/C Issuer any amount required to be paid by such Revolving Lender pursuant to the foregoing provisions of this Section 2.03(e), then, without limiting the other provisions of this Credit Agreement, the applicable L/C Issuer shall be entitled to recover from such Revolving 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 such L/C Issuer at a rate per annum equal to the Overnight Rate, plus any administrative, processing or similar fees customarily charged by such 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 shall constitute such Revolving Lender’s Revolving Loan included in the relevant Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A certificate of any L/C Issuer submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this clause shall be conclusive absent manifest error.
(f)Reimbursement. If an L/C Issuer shall make any L/C Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such L/C Issuer in respect of such L/C Disbursement by paying to the Administrative Agent an amount equal to such L/C Disbursement not later than 11:00 a.m. on (i) the Business Day that the Borrower receives notice of such L/C Disbursement, if such notice is received prior to 9:00 a.m. or (ii) the Business Day immediately following the day that the Borrower receives such notice, if such notice is not received prior to such time, provided that, if such L/C Disbursement is not less than $500,000, the Borrower may, subject to the conditions to borrowing set forth herein, request in accordance with Section 2.02 that such payment be financed with a Borrowing of Daily SOFR Rate Loans in an equivalent amount and, to the extent so financed, the Borrower’s obligation to make such payment shall be discharged and replaced by the resulting Borrowing of Daily SOFR Rate Loans. If the Borrower fails to make such payment when due, the Administrative Agent shall notify each Revolving Lender of the applicable L/C Disbursement, the payment then due from the Borrower in respect thereof (the “Unreimbursed Amount”) and such Revolving Lender’s Revolving Committed Percentage thereof. In such event, the Borrower shall be deemed to have requested a Borrowing of Daily SOFR Rate Loans to be disbursed on the date of payment by the applicable L/C Issuer under a Letter of Credit in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02 for the principal amount of Daily SOFR Rate Loans, but subject to the amount of the unutilized portion of the Aggregate Revolving Commitments and the conditions set forth in Section 4.02 (other than the delivery of a Loan Notice). Any notice given by any L/C Issuer or the Administrative Agent pursuant to this Section 2.03(f) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.
(g)Obligations Absolute. The Borrower’s obligation to reimburse L/C Disbursements as provided in clause (f) of this Section 2.03 shall be absolute, unconditional and
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irrevocable, and shall be performed strictly in accordance with the terms of this Credit Agreement under any and all circumstances whatsoever and irrespective of:
(i)any lack of validity or enforceability of this Credit Agreement, any other Credit Document or any Letter of Credit, or any term or provision herein or therein;
(ii)the existence of any claim, counterclaim, setoff, defense or other right that the 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), any L/C Issuer or any other Person, whether in connection with this Credit Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;
(iii)any draft, demand, certificate or other document presented under a Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement in such draft or other document being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;
(iv)waiver by any L/C Issuer of any requirement that exists for such L/C Issuer’s protection and not the protection of the Borrower or any waiver by such L/C Issuer which does not in fact materially prejudice the Borrower;
(v)honor of a demand for payment presented electronically even if such Letter of Credit required that demand be in the form of a draft;
(vi)any payment made by any L/C Issuer in respect of an otherwise complying item presented after the date specified as the expiration date of, or the date by which documents must be received under such Letter of Credit if presentation after such date is authorized by the UCC, the ISP or the UCP, as applicable;
(vii)payment by the applicable L/C Issuer under a Letter of Credit against presentation of a draft or other document that does not comply strictly with the terms of such Letter of Credit; or any payment made by any L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; or
(viii)any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 2.03, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder.
The 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 the Borrower’s instructions or other irregularity, the Borrower will immediately notify the applicable L/C Issuer. The Borrower shall be conclusively deemed to have waived any such claim against each L/C Issuer and its correspondents unless such notice is given as aforesaid.
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None of the Administrative Agent, the Lenders, any L/C Issuer, or any of their Related Parties shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit by 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 that the foregoing shall not be construed to excuse an L/C Issuer from liability to the Borrower to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by Applicable Law) suffered by the Borrower that are caused by such L/C Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on the part of an L/C Issuer (as finally determined by a court of competent jurisdiction), an L/C Issuer shall be deemed to have exercised care in each such determination, and that:
(i)an L/C Issuer may replace a purportedly lost, stolen, or destroyed original Letter of Credit or missing amendment thereto with a certified true copy marked as such or waive a requirement for its presentation;
(ii)an L/C Issuer may accept documents that appear on their face to be in substantial compliance with the terms of a Letter of Credit without responsibility for further investigation, regardless of any notice or information to the contrary, and may make payment upon presentation of documents that appear on their face to be in substantial compliance with the terms of such Letter of Credit and without regard to any non-documentary condition in such Letter of Credit;
(iii)an 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 an L/C Issuer when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof (and the parties hereto hereby waive, to the extent permitted by Applicable Law, any standard of care inconsistent with the foregoing).
Without limiting the foregoing, none of the Administrative Agent, the Lenders, any L/C Issuer, or any of their Related Parties shall have any liability or responsibility by reason of (i) any presentation that includes forged or fraudulent documents or that is otherwise affected by the fraudulent, bad faith, or illegal conduct of the beneficiary or other Person, (ii) an L/C Issuer declining to take-up documents and make payment (A) against documents that are fraudulent, forged, or for other reasons by which that it is entitled not to honor or (B) following a Borrower’s waiver of discrepancies with respect to such documents or request for honor of such documents or (iii) an 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 such L/C Issuer.
(h)Applicability of ISP and UCP; Limitation of Liability. Unless otherwise expressly agreed by the applicable L/C Issuer and the Borrower when a Letter of Credit is issued by it, the rules of the ISP shall apply to each Letter of Credit. Notwithstanding the foregoing, no L/C Issuer shall be responsible to the Borrower for, and no L/C Issuer’s rights and remedies against
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the Borrower shall be impaired by, any action or inaction of any 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 Credit Agreement, including the Law or any order of a jurisdiction where any L/C Issuer or the beneficiary is located, the practice stated in the ISP or UCP, as applicable, or in the decisions, opinions, practice statements, or official commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade - International Financial Services Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses such law or practice.
(i)Benefits of L/C Issuers. Each 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 each 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 such 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 such L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to such L/C Issuer.
(j)Disbursement Procedures. The L/C Issuer for any Letter of Credit shall, within the time allowed by applicable Laws or the specific terms of the Letter of Credit following its receipt thereof, examine all documents purporting to represent a demand for payment under such Letter of Credit. Such L/C Issuer shall promptly after such examination notify the Administrative Agent and the Borrower in writing of such demand for payment if such L/C Issuer has made or will make an L/C Disbursement thereunder; provided that any failure to give or delay in giving such notice shall not relieve the Borrower of its obligation to reimburse such L/C Issuer and the Revolving Lenders with respect to any such L/C Disbursement.
(k)Interim Interest. If the L/C Issuer for any Letter of Credit shall make any L/C Disbursement, then, unless the Borrower shall reimburse such L/C Disbursement in full on the date such L/C Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such L/C Disbursement is made to but excluding the date that the Borrower reimburses such L/C Disbursement, at the rate per annum then applicable to Daily SOFR Rate Loans; provided that if the Borrower fails to reimburse such L/C Disbursement when due pursuant to clause (f) of this Section 2.03, then Section 2.07(b) shall apply. Interest accrued pursuant to this clause (k) shall be for account of such L/C Issuer, except that interest accrued on and after the date of payment by any Revolving Lender pursuant to clause (f) of this Section 2.03 to reimburse such L/C Issuer shall be for account of such Revolving Lender to the extent of such payment.
(l)Replacement of any L/C Issuer. Any L/C Issuer may be replaced at any time by written agreement between the Borrower, the Administrative Agent, the replaced L/C Issuer and the successor L/C Issuer. The Administrative Agent shall notify the Revolving Lenders of any such replacement of an L/C Issuer. At the time any such replacement shall become effective, the Borrower shall pay all unpaid fees accrued for the account of the replaced L/C Issuer pursuant to Section 2.08(d). From and after the effective date of any such replacement, (i) the successor L/C Issuer shall have all the rights and obligations of an L/C Issuer under this Credit Agreement with respect to Letters of Credit to be issued by it thereafter and (ii) references herein to the term “L/C Issuer” shall be deemed to include such successor or any previous L/C Issuer, or such successor and all previous L/C Issuer, as the context shall require. After the replacement of an L/C Issuer hereunder, the replaced L/C Issuer shall remain a party hereto and shall continue to have all the rights and obligations of an L/C Issuer under this Credit Agreement with respect to Letters of Credit issued by it prior to such replacement, but shall not be required to issue additional Letters of Credit.
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(m)Cash Collateralization. If any Event of Default shall occur and be continuing, on the Business Day that the Borrower receives notice from the Administrative Agent or the Required Revolving Lenders (or, if the maturity of the Loans has been accelerated, Revolving Lenders with L/C Obligations representing more than 50% of the total L/C Obligations) demanding the deposit of cash collateral pursuant to this clause (m), the Borrower shall immediately deposit into an account established and maintained on the books and records of the Administrative Agent (the “Collateral Account”) an amount in cash equal to Minimum Collateral Amount as of such date plus any accrued and unpaid interest thereon, provided that the obligation to deposit such cash collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default with respect to the Borrower described in clause (f) of Section 8.01. Such deposit shall be held by the Administrative Agent as collateral for the payment and performance of the obligations of the Borrower under this Credit Agreement. In addition, and without limiting the foregoing or clause (d) of this Section 2.03, if any L/C Obligations remain outstanding after the expiration date specified in said clause (d) or on any L/C Cash Collateralization Date, the Borrower shall immediately deposit into the Collateral Account an amount in cash equal to the Minimum Collateral Amount as of such date plus any accrued and unpaid interest thereon.
The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over the Collateral Account. Other than any interest earned on the investment of such deposits, which investments shall be made at the option and sole discretion of the Administrative Agent and at the Borrower’s risk and expense, such deposits shall not bear interest. Interest or profits, if any, on such investments shall accumulate in the Collateral Account. Moneys in the Collateral Account shall be applied by the Administrative Agent to reimburse each L/C Issuer for L/C Disbursements for which it has not been reimbursed, together with related fees, costs, and customary processing charges, and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Borrower for the L/C Obligations at such time or, if the maturity of the Revolving Loans has been accelerated (but subject to the consent of Revolving Lenders with L/C Obligations representing more than 50% of the total L/C Obligations), be applied to satisfy other obligations of the Borrower under this Credit Agreement. If the Borrower is required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower within three Business Days after all Events of Default have been cured or waived.
(n)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.
(o)Multiple L/C Issuers. The Borrower may select which L/C Issuer it requests to issue a Letter of Credit.
(p)Reports. Each L/C Issuer shall provide to the Administrative Agent a list of outstanding Letters of Credit issued by it (together with type, amounts, maturity and/or cancellation date).
2.04Repayment of Loans.
(a)Revolving Loans. The Borrower shall repay to the Revolving Lenders on the Revolving Loan Maturity Date the aggregate principal amount of Revolving Loans outstanding on such date.
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(b)Term Loans. The Borrower shall repay to the Term Loan Lenders on the Term Loan Maturity Date the aggregate principal amount of Term Loans outstanding on such date.
2.05Prepayments.
(a)Voluntary Prepayments. The Loans may be repaid in whole or in part without premium or penalty (except, in the case of Term SOFR Rate Loans, amounts payable pursuant to Section 3.05); provided, that (i) a Notice of Loan Prepayment must be received by 11:00 a.m. by the Administrative Agent (A) two Business Days prior to any date of prepayment of Term SOFR Rate Loans and Daily SOFR Rate Loans and (B) on the date of prepayment of Base Rate Loans, (ii) any such prepayment of Term SOFR Rate Loans or Daily SOFR Rate Loans shall be in a minimum principal amount of $1,000,000 and integral multiples of $500,000 in excess thereof, and (iii) any prepayment of Base Rate Loans shall be in a minimum principal amount of $1,000,000 and integral multiples of $500,000 in excess thereof, or, in each case, the entire principal amount thereof, if less. Each such notice of voluntary repayment hereunder shall be irrevocable and shall specify the date and amount of prepayment and the Loans and Types of Loans which are to be prepaid. The Administrative Agent will give prompt notice to the applicable Lenders of any prepayment on the Loans and the Lender’s interest therein. Any prepayments of a Loan hereunder shall be accompanied by accrued interest thereon and, in the case of Term SOFR Rate Loans or Daily SOFR Rate Loans, any additional amounts required pursuant to Section 3.05. Subject to Section 2.14, each such prepayment shall be applied to the Revolving Loans of the Revolving Lenders in accordance with their respective Revolving Commitment Percentages and to the Term Loans of the Term Loan Lenders in accordance with their respective Term Loan Commitment Percentages, as applicable.
(b)Mandatory Prepayments. If the Administrative Agent notifies the Borrower at any time that the aggregate Outstanding Amount of all Revolving Loans and all L/C Obligations at such time exceed the Revolving Commitments then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans and/or the Borrower shall Cash Collateralize the L/C Obligations in an aggregate amount at least equal to such excess; provided, however, that, subject to the provisions of Section 2.13(a), the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b) unless after the prepayment in full of the Revolving Loans the aggregate Outstanding Amount of all Revolving Loans and all L/C Obligations exceed the Revolving Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of exchange rate fluctuations.
(c)Application. Within each Loan, prepayments will be applied first to Daily SOFR Rate Loans, then to Term SOFR Rate Loans in direct order of Interest Period maturities. In addition, voluntary prepayments shall be applied as specified by the Borrower. Voluntary prepayments on the Revolving Obligations and on the Term Loans will be paid by the Administrative Agent to the Revolving Lenders and the Term Loan Lenders, as the case may be, ratably in accordance with their respective interests therein.
2.06Termination or Reduction of Commitments. The Revolving Commitments and the Term Loan Commitments hereunder may be permanently reduced in whole or in part by notice from the Borrower to the Administrative Agent; provided, that (i) any such notice thereof must be received by 11:00 a.m. at least five Business Days prior to the date of reduction or termination and any such reduction shall be in a minimum principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof; (ii) the Revolving Commitments may not be reduced to an amount less than the Revolving Obligations then
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outstanding; and (iii) if, after giving effect to any reduction of the Revolving Commitments the Letter of Credit Sublimit exceeds the amount of the Revolving Commitments, such Letter of Credit Sublimit shall be automatically reduced by the amount of such excess. The Administrative Agent shall give prompt notice to the Lenders, as the case may be, of any such reduction in the Revolving Commitments and/or Term Loan Commitments. Any reduction of the Revolving Commitments and/or Term Loan Commitments shall be applied to the respective Commitment of each such Lender according to its Revolving Commitment Percentage and/or Term Loan Commitment Percentage thereof. All commitment or other fees accrued until the effective date of any termination of the Commitments shall be paid on the effective date of such termination.
2.07Interest.
(a)Subject to the provisions of subsection (b) and subsection (c) below, (i) each Daily SOFR Rate Loan shall bear interest on the outstanding principal amount thereof at a rate per annum equal to the Daily Simple SOFR Rate plus the Applicable Rate for Daily SOFR Rate Loans; and (ii) each Term SOFR Rate Loan shall bear interest on the outstanding principal amount thereof at a rate per annum equal to Term SOFR for such Interest Period plus the Applicable Rate for Term SOFR Rate Loans; and (iii) each Base Rate Loan 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 Base Rate Loans.
(b)If any amount of principal of any Loan is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
(c)If any amount (other than principal of any Loan) payable by the Borrower under any Credit 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.
(d)Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.
(e)Interest on each Loan shall be due and payable in arrears on the applicable Interest Payment Date. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.
2.08Fees.
(a)Revolving Unused Fee. Commencing on the Closing Date and at any time that the Applicable Rate is determined based on the Consolidated Leverage Ratio Based Pricing Grid, the Borrower agrees to pay the Administrative Agent for the ratable benefit of the Revolving Lenders an unused fee in Dollars (the “Revolving Unused Fee”) computed at the Unused Fee Rate on the actual daily amount of the Available Commitments. To the extent applicable, the Revolving Unused Fee shall accrue at all times during the Revolving Commitment Period (and thereafter so long as Revolving Obligations shall remain outstanding), including periods during which the conditions in Section 4.02 may not be met, and shall be payable quarterly in arrears on the 10th day following the last day of each March, June, September and December, commencing with the first such date
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to occur after the Closing Date, and on the Revolving Loan Maturity Date (and, if applicable, thereafter on demand); provided that pursuant to Section 2.14(a)(iii), (i) no Revolving Unused Fee shall accrue on the Revolving Commitment of a Defaulting Lender so long as such Revolving Lender shall be a Defaulting Lender and (ii) any Revolving Unused Fee accrued with respect to the Revolving Commitment of a Defaulting Lender during the period prior to the time such Revolving Lender became a Defaulting Lender and unpaid at such time shall not be payable by the Borrower so long as such Revolving Lender shall be a Defaulting Lender. The Revolving Unused Fee shall be calculated quarterly in arrears, and if there is any change in the Unused Fee Rate, the actual daily amount shall be computed and multiplied by the Unused Fee Rate separately for each day that such Unused Fee Rate was in effect. The Administrative Agent shall distribute the Revolving Unused Fee to the Revolving Lenders pro rata in accordance with the respective Revolving Commitments of the Revolving Lenders.
(b)Facility Fee. At any time that the Applicable Rate is determined based on the Debt Ratings Based Pricing Grid, the Borrower shall pay to the Administrative Agent for the account of each Revolving Lender in accordance with its Revolving Commitment Percentage, a facility fee in Dollars equal to the facility fee as determined in the Debt Ratings Based Pricing Grid times the actual daily amount of the Aggregate Revolving Commitments (or, if the Aggregate Revolving Commitments have terminated, on the Outstanding Amount of all Revolving Loans and L/C Obligations), regardless of usage, subject to adjustment as provided in Section 2.15. The facility fee shall accrue at all times during the Revolving Commitment Period (and thereafter so long as any 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 on the tenth (10th) day following the last day of each March, June, September and December, commencing with the first such date to occur after the Applicable Rate is determined based on the Debt Ratings Based Pricing Grid, and on the last day of the Revolving Commitment Period (and, if applicable, thereafter on demand). The facility fee shall be calculated quarterly in arrears, and if there is any change in the Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied by the facility fee as determined in the Debt Ratings Based Pricing Grid separately for each period during such quarter that such Applicable Rate was in effect.
(c)Upfront and Other Fees. The Borrower agrees to pay to the Administrative Agent for the benefit of the Lenders the upfront and other fees in Dollars provided in the Fee Letters.
(d)Letter of Credit Fees.
(i)Letter of Credit Fee. In consideration of the L/C Commitments hereunder, the Borrower agrees to pay, in Dollars, to the Administrative Agent for the ratable benefit of the Revolving Lenders an annual fee in Dollars (the “Letter of Credit Fee”) with respect to each Letter of Credit issued hereunder equal to (A) the Applicable Rate per annum multiplied by (B) the actual daily maximum amount available to be drawn under such Letter of Credit (whether or not such maximum amount is then in effect under such Letters of Credit) from the date of issuance to the date of expiration. The Letter of Credit Fee shall be computed on a quarterly basis in arrears and shall be payable quarterly in arrears on the 10th day after the end of each March, June, September and December, commencing on the first such date to occur after the Closing Date, and on the Revolving Loan Maturity Date (and, if applicable, thereafter on demand); 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 an L/C Issuer pursuant to Section 2.03 shall be payable, to the maximum extent permitted by applicable Law, to the other Revolving Lenders in accordance with the
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upward adjustments in their respective Revolving Commitment Percentage allocable to such Letter of Credit pursuant to Section 2.14(a)(iv), with the balance of such fee, if any, payable to the applicable L/C Issuer for its own account.
(ii)L/C Issuer Fees. In addition to the Letter of Credit Fee, the Borrower agrees to pay directly to the applicable L/C Issuer for its own account without sharing by the other Revolving Lenders (A) with the issuance of each such Letter of Credit, a fronting fee of 0.125% per annum on the maximum amount available to be drawn under Letters of Credit issued by it from the date of issuance to the date of expiration, and (B) upon the issuance, amendment, negotiation, transfer and/or conversion of any Letters of Credit or any other action or circumstance requiring administrative action on the part of the L/C Issuer with respect thereto, customary charges of the applicable L/C Issuer with respect thereto (collectively, the “L/C Issuer Fees”). The L/C Issuer Fees shall be computed on a quarterly basis in arrears and shall be payable quarterly in arrears on the 10th day after the end of each March, June, September and December, commencing on the first such date to occur after the Closing Date, and on the Revolving Loan Maturity Date (and, if applicable, thereafter on demand).
(e)Administrative Agent’s Fees. The Borrower agrees to pay the Administrative Agent such fees as provided in the Fee Letters or as may be otherwise agreed by the Administrative Agent and the Borrower from time to time.
(f)Other Fees.
(i)The Borrower shall pay to the Arrangers and the Administrative Agent for their own respective accounts fees, in Dollars, in the amounts and at the times specified in the Fee Letters. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
(ii)The Borrower shall pay to the Lenders such fees, in Dollars, as shall have been separately agreed upon in writing in the amounts and at the times so specified. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
2.09Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.
(a)All computations of interest for Base Rate Loans (including Base Rate Loans determined by reference to the Term SOFR Rate) shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360 day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365 day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid; provided, that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.10(a), bear interest for one day.
(b)If, as a result of any restatement of or other adjustment to the financial statements of the Credit Parties or for any other reason related to the finances of the Credit Parties, any Credit Party or the Lenders determine that (i) the Consolidated Leverage Ratio as calculated by the Credit Parties as of any applicable date was inaccurate and (ii) a proper calculation of the Consolidated Leverage Ratio would have resulted in higher pricing for such period, the Credit Parties shall immediately and retroactively be obligated to pay to the Administrative Agent for the account of
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the applicable Lenders or the applicable 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 the 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 any L/C Issuer), an amount equal to the excess of the amount of interest and fees that should have been paid for such period over the amount of interest and fees actually paid for such period. This paragraph shall not limit the rights of the Administrative Agent, any Lender or any L/C Issuer, as the case may be, under Section 2.03(c)(iii), 2.03(h) or 2.07(b) or under Article VIII. The Credit Parties’ obligations under this paragraph shall survive the termination of the Aggregate Revolving Commitments, the Term Loan Commitments and the repayment of all other Obligations hereunder.
2.10Payments Generally.
(a)All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the 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. Without limiting the generality of the foregoing, the Administrative Agent may require that any payments due under this Credit Agreement be made in the United States. The Administrative Agent will promptly distribute to each Lender its Revolving Commitment Percentage or Term Loan Commitment Percentage (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments received by the Administrative Agent after 2:00 p.m. shall be deemed received on the immediately succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b)Subject to the definition of “Interest Period” in Section 1.01, if any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.
(c)Unless the Borrower or any Lender has notified the Administrative Agent, prior to the date (or in the case of any Daily SOFR Rate Loan, prior to 12:00 (Noon) on the date of such Borrowing) any payment is required to be made by it to the Administrative Agent hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the Person entitled thereto. If and to the extent that such payment was not in fact made to the Administrative Agent in Same Day Funds, then:
(i)if the Borrower fails to make such payment, each Lender shall forthwith on demand repay to the Administrative Agent the portion of such assumed payment that was made available to such Lender in Same Day Funds, together with interest thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is repaid to the Administrative Agent in Same Day Funds at the Overnight Rate from time to time in effect; and
(ii)if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in Same Day Funds,
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together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Overnight Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights that the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder.
A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this subsection (c) shall be conclusive, absent manifest error.
(d)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 the Borrower by the Administrative Agent because the conditions to the applicable Extension of Credit set forth in Section 4.02 are not satisfied or waived in accordance with the terms hereof or for any other reason, the Administrative Agent shall promptly return such funds (in like funds as received from such Lender) to such Lender, without interest.
(e)The obligations of the Term Loan Lenders hereunder to make Term Loans and of the Revolving Lenders hereunder to make Revolving Loans and 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 or to fund any such participation or to make payments pursuant to 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, nor relieve Borrower from any obligations hereunder to the Lenders which fulfill such obligations and no Lender shall be responsible for the failure of any other Lender to so make its Loan or purchase its participation or to make its payments pursuant to Section 10.04(c).
(f)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.
(g)If at any time insufficient funds are received by or are 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 costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment 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 (iii) third, toward repayment 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.
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2.11Sharing of Payments.
(a)If any Lender shall obtain on account of the Loans made by it, or the participations in L/C Obligations held by it (excluding any amounts received by an L/C Issuer to secure the obligations of a Defaulting Lender to fund risk participations hereunder), any payment (whether voluntary, involuntary, through the exercise of any right of set off, or otherwise, but excluding any payments made to a Lender in error by the Administrative Agent (which such payments shall be returned by the Lender to the Administrative Agent immediately upon such Lender’s obtaining knowledge that such payment was made in error)) in excess of its ratable share (or other share contemplated hereunder) thereof, such Lender shall immediately (a) notify the Administrative Agent of such fact, and (b) purchase from the other Lenders such participations in the Loans made by them and/or such subparticipations in the participations in L/C Obligations held by them, as the case may be, as shall be necessary to cause such purchasing Lender to share the excess payment in respect of such Loans or such participations, as the case may be, pro rata with each of them; provided, however, that (i) if all or any portion of such excess payment is thereafter recovered from the purchasing Lender under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by the purchasing Lender in its discretion), such purchase shall to that extent be rescinded and each other Lender shall repay to the purchasing Lender the purchase price paid therefor, together with an amount equal to such paying Lender’s ratable share (according to the proportion of (A) the amount of such paying Lender’s required repayment to (B) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered, without further interest thereon and (ii) the provisions of this Section shall not be construed to apply to (A) any payment made by or on behalf of the Borrower pursuant to and in accordance with the express terms of this Credit Agreement (including the application of funds arising from the existence of a Defaulting Lender), (B) the application of Cash Collateral provided for in Section 2.13 or (C) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or subparticipations in L/C Obligations to any assignee or participant, other than an assignment to any Credit Party or any Subsidiary thereof (as to which the provisions of this Section shall apply). The Borrower agrees that any Lender so purchasing a participation from another Lender may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of set off, but subject to Section 10.08) with respect to such participation as fully as if such Lender were the direct creditor of the Borrower in the amount of such participation. The Administrative Agent will keep records (which shall be conclusive and binding in the absence of manifest error) of participations purchased under this Section and will in each case notify the Lenders following any such purchases or repayments. Each Lender that purchases a participation pursuant to this Section shall from and after such purchase have the right to give all notices, requests, demands, directions and other communications under this Credit Agreement with respect to the portion of the Revolving Obligations purchased to the same extent as though the purchasing Lender were the original owner of the Revolving Obligations purchased.
(b)With respect to any payment that the Administrative Agent makes for the account of the Lenders or any L/C Issuer hereunder, if 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”): (i) the Borrowers have not in fact made such payment; (ii) the Administrative Agent has made a payment in excess of the amount so paid by the Borrowers (whether or not then owed); or (iii) the Administrative agent has for any reason otherwise erroneously made such payment; then each of the Lenders or L/C Issuers, 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 such L/C Issuer, as applicable, in immediately available funds, with interest thereon for each day from the date such amount is distributed to it to the date
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of repayment by it 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.
2.12Evidence of Debt.
(a)The Extension of Credit 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 Extension of Credit made by the Lenders to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. The Borrower shall execute and deliver to the Administrative Agent a Note for each Lender, requesting a Note, which Note shall evidence such Lender’s Loans in addition to such accounts or records. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.
(b)In addition to the accounts and records referred to in Section 2.12(a), each 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 Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.
(c)Notwithstanding anything to the contrary in this Credit Agreement, any Lender may exchange, continue or rollover all or the portion of its Loans in connection with any refinancing, extension, loan modification or similar transaction permitted by the terms of this Credit Agreement, pursuant to a cashless settlement mechanism approved by the Borrower, the Administrative Agent and such Lender.
2.13Cash Collateral.
(a)Obligation to Cash Collateralize. At any time that there shall exist a Defaulting Lender, within one Business Day following the written request of the Administrative Agent or any L/C Issuer (with a copy to the Administrative Agent), the Borrower shall Cash Collateralize the L/C Issuers’ Fronting Exposure with respect to such Defaulting Lender (determined after giving effect to Section 2.14(a)(iv) and any Cash Collateral provided by such Defaulting Lender) in an amount not less than the Minimum Collateral Amount.
(b)Grant of Security Interest. The Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit of the Administrative Agent, the L/C Issuers 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 2.13(c). If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative
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Agent or the applicable L/C Issuer as herein provided, or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, the Borrower will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency (determined in the case of Cash Collateral provided pursuant to clause (a) above, after giving effect to Section 2.14(a)(iv) and any Cash Collateral provided by the Defaulting Lender). All Cash Collateral (other than credit support not constituting funds subject to deposit) shall be maintained in blocked, non-interest bearing deposit accounts at Bank of America. The Borrower shall pay on demand therefor from time to time all customary account opening, activity and other administrative fees and charges in connection with the maintenance and disbursement of Cash Collateral.
(c)Application. Notwithstanding anything to the contrary contained in this Credit Agreement, Cash Collateral provided under any of this Section 2.13 or Sections 2.03, 2.05, 2.14 or 8.02 in respect of Letters of Credit shall be held and applied to the satisfaction of the specific L/C Obligations, obligations to fund participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein.
(d)Release. Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or to secure other obligations shall be released promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable Revolving Lender (or, as appropriate, its assignee following compliance with Section 10.06(b)(vi)) or (ii) the determination by the Administrative Agent and the applicable L/C Issuer that there exists excess Cash Collateral; provided, however, (x) any such release shall be without prejudice to, and any disbursement or other transfer of Cash Collateral shall be and remain subject to, any other Lien conferred under the Credit Documents and the other applicable provisions of the Credit Documents, and (y) the Person providing Cash Collateral and the applicable L/C Issuer may agree that Cash Collateral shall not be released but instead held to support future anticipated Fronting Exposure or other obligations.
2.14Defaulting Lenders.
(a)Adjustments. Notwithstanding anything to the contrary contained in this Credit Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:
(i)Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Credit Agreement shall be restricted as set forth in the definitions of “Required Lenders”, “Required Revolving Lenders”, “Required Term Lenders” and Section 10.01.
(ii)Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) or received by the Administrative Agent from a 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 such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any L/C Issuer hereunder; third, to Cash Collateralize any L/C Issuer’s Fronting Exposure with respect to such
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Defaulting Lender in accordance with Section 2.13; fourth, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Credit Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Credit Agreement and (y) Cash Collateralize any L/C Issuer’s future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Credit Agreement, in accordance with Section 2.13; sixth, to the payment of any amounts owing to the Lenders or any L/C Issuer as a result of any judgment of a court of competent jurisdiction obtained by any Lender or any L/C Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Credit Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Credit Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or L/C Borrowings in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in L/C Obligations are held by the Lenders pro rata in accordance with the Commitments hereunder without giving effect to Section 2.14(a)(iv). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.14(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(iii)Certain Fees.
(A)No Defaulting Lender shall be entitled to receive any fee payable under Section 2.08(a) for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).
(B)Each Defaulting Lender shall be entitled to receive fees payable under Section 2.08(b) for any period during which that Lender is a Defaulting Lender only to extent allocable to the sum of (1) the Outstanding Amount of the Revolving Loans funded by it, and (2) its Revolving Commitment Percentage of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section 2.13.
(C)Each Defaulting Lender shall be entitled to receive Letter of Credit Fees for any period during which that Lender is a Defaulting Lender only to the extent allocable to its Revolving Commitment Percentage of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section 2.13.
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(D)With respect to any fee payable under Section 2.08(a) or any Letter of Credit Fee not required to be paid to any Defaulting Lender pursuant to clause (A) or (B) above, the Borrower shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in L/C Obligations that has been reallocated to such Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to the applicable L/C Issuer, as applicable, the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such L/C Issuer’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.
(iv)Reallocation of Revolving Commitment Percentage to Reduce Fronting Exposure. All or any part of such Defaulting Lender’s participation in L/C Obligations shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Revolving Commitment Percentage (calculated without regard to such Defaulting Lender’s Revolving Commitment) but only to the extent that (x) the conditions set forth in Section 4.02 are satisfied at the time of such reallocation (and, unless the Borrower shall have otherwise notified the Administrative Agent at such time, the Borrower shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (y) such reallocation does not cause the aggregate Revolving Credit Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving Commitment. Subject to Section 10.23, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.
(v)Cash Collateral. If the reallocation described in clause (a)(iv) above cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under applicable Law, Cash Collateralize each L/C Issuer’s Fronting Exposure in accordance with the procedures set forth in Section 2.13.
(b)Defaulting Lender Cure. If the Borrower, the Administrative Agent and the L/C Issuers agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit to be held on a pro rata basis by the Lenders in accordance with their Revolving Commitment Percentage (without giving effect to Section 2.14(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 Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
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2.15Extension of Revolving Loan Maturity Date.
(a)Requests for Extension. The Borrower may, at its option, on a one-time basis during the term of this Credit Agreement, by notice to the Administrative Agent (who shall promptly notify the Lenders, as applicable) not earlier than 90 days and not later than 30 days prior to the Initial Revolving Loan Maturity Date (the date of such notice, the “Extension Request Date”), elect to extend the Initial Revolving Loan Maturity Date to the Extended Revolving Loan Maturity Date.
(b)Conditions to Effectiveness of Extensions. Notwithstanding the foregoing, the extension of Initial Revolving Loan Maturity Date pursuant to this Section 2.15 shall not be effective unless:
(i)no Default exists on the date of the request, date of such extension and after giving effect thereto;
(ii)the representations and warranties of the Credit Parties contained in this Credit Agreement and the other Credit Documents are true and correct in all material respects on the Extension Request Date and on and as of the date of such extension of the Initial Revolving Loan Maturity Date (except to the extent that any such representation and warranty is qualified by materiality or reference to a Material Adverse Effect, in which case such representation and warranty shall be true and correct in all respects), other than those representations and warranties which specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date (except to the extent that any such representation and warranty is qualified by materiality or reference to a Material Adverse Effect, in which case such representation and warranty shall be true and correct in all respects as of such earlier date); provided, for purposes of this Section 2.15, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01;
(iii)the Administrative Agent shall have received a Compliance Certificate signed by a Responsible Officer of the Borrower (which shall include, without limitation, calculation of the financial covenants) certifying that the Credit Parties are in compliance on a Pro Forma Basis (as of the date of such extension of the Revolving Loan Maturity Date, as applicable) with each financial covenant contained in Section 6.12;
(iv)upon the reasonable request of any Lender made at least five (5) days prior to the effective date of such extension, each Credit Party shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least five (5) days prior to the effective date of such extension and (y) at least five days prior to the effective date of such extension, any Credit Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Credit Party; and
(v)the Borrower shall pay to the Administrative Agent, for the pro rata account of each Revolving Lender in accordance with their respective Revolving Commitment Percentages, an extension fee equal to 0.15% of the Aggregate Revolving
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Commitments as of such date, which fee shall, when paid, be fully earned and non-refundable under any circumstances.
(c)Conflicting Provisions. This Section 2.15 shall supersede any provisions in Section 2.13 and Section 10.01 to the contrary.
III.TAXES, YIELD PROTECTION AND ILLEGALITY.
3.01Taxes.
(a)Defined Terms. For purposes of this Section 3.01, the term “Applicable Law” includes FATCA.
(b)Payments Free of Taxes. Any and all payments by or on account of any obligation of any Credit Party under any Credit Document shall be made without deduction or withholding for any Taxes, except as required by Applicable Law. If any Applicable Law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with Applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Credit Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 3.01) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(c)Payment of Other Taxes by Borrower. The Credit Parties shall timely pay to the relevant Governmental Authority in accordance with Applicable Law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(d)Indemnification by Borrower. Each of the Credit Parties shall indemnify each Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 3.01) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(e)Indemnification by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Credit Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Credit Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.06(d) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Credit Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent
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manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Credit Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this clause (e).
(f)Evidence of Payments. As soon as practicable after any payment of Taxes by the Borrower to a Governmental Authority as provided in this Section 3.01, the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by Laws to report such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(g)Status of Lenders; Tax Documentation.
(i)Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(g)(ii)(A), (ii)(B) and (ii)(D)