safeholdamendedandrestat






                                                         EXECUTION COPY                                                       Published Deal CUSIP Number:  78645NAA4                             Published Facility/Revolver CUSIP Number:  78645NAB2                                                     AMENDED AND RESTATED CREDIT AGREEMENT                          Dated as of November 6, 2019                                                                         among                                                                   SAFEHOLD INC.,                               as the Borrower,   SAFEHOLD OPERATING PARTNERSHIP LP, SAFEHOLD OP GENPAR LLC,      CARET VENTURES LLC, CARET MANAGEMENT HOLDINGS LLC                                    and            CERTAIN SUBSIDIARIES OF CARET VENTURES LLC                  FROM TIME TO TIME PARTY HERETO,                                as Guarantors,                          BANK OF AMERICA, N.A.,                            as Administrative Agent                          BANK OF AMERICA, N.A.                      JPMORGAN CHASE BANK, N.A.                           BARLCAYS BANK PLC,                                 as L/C Issuers                                                                          and                                                               The Other Lenders Party Hereto                           BOFA SECURITIES, INC.,                       JPMORGAN CHASE BANK, N.A.                           BARLCAYS BANK PLC,                            as Joint Lead Arrangers                            BOFA SECURITIES, INC.,                              as Sole Bookrunner                        JPMORGAN CHASE BANK, N.A.                          BARLCAYS BANK PLC and                             SUNTRUST BANK                           as Co-Syndication Agents                                                





 






                               TABLE OF CONTENTS   Section                                                                   Page   Article I.  DEFINITIONS AND ACCOUNTING TERMS .................................................... 1        1.01  Defined Terms ........................................................................................................ 1        1.02  Other Interpretive Provisions ................................................................................ 46        1.03  Accounting Terms ................................................................................................. 47        1.04  Rounding ............................................................................................................... 47        1.05  Times of Day; Rates.............................................................................................. 47        1.06  Letter of Credit Amounts ...................................................................................... 48   Article II. THE COMMITMENTS AND CREDIT EXTENSIONS ..................................... 48        2.01  Committed Loans .................................................................................................. 48        2.02  Borrowings, Conversions and Continuations of Loans ........................................ 48        2.03  Letters of Credit .................................................................................................... 50        2.04  Special Advance.................................................................................................... 59        2.05  Prepayments .......................................................................................................... 60        2.06  Termination or Reduction of Commitments ......................................................... 61        2.07  Repayment of Loans ............................................................................................. 61        2.08  Interest................................................................................................................... 61        2.09  Fees ....................................................................................................................... 62        2.10  Computation of Interest and Fees ......................................................................... 63        2.11  Evidence of Debt................................................................................................... 63        2.12  Payments Generally; Administrative Agent’s Clawback ..................................... 63        2.13  Sharing of Payments by Lenders; Sharing of Proceeds from a Foreclosure              or other Exercise of Remedies in respect of the BankNote Property              Mortgage ............................................................................................................... 65        2.14  Extension of Maturity Date ................................................................................... 66        2.15  Increase in Commitments; Addition of Incremental Term Loan Facilities .......... 68        2.16  Cash Collateral ...................................................................................................... 71        2.17  Defaulting Lenders................................................................................................ 72        2.18  Inclusions, Exclusions and Removals of Borrowing Base Assets ........................ 74        2.19  Assignment of Assigned BankNote Property Mortgage; Release and              Indemnity by Loan Parties; Authorization by Lenders ......................................... 81   Article III. TAXES, YIELD PROTECTION AND ILLEGALITY........................................ 85        3.01  Taxes ..................................................................................................................... 85        3.02  Illegality ................................................................................................................ 89        3.03  Inability to Determine Rates ................................................................................. 90        3.04  Increased Costs; Reserves on Eurodollar Rate Loans and LIBOR Floating              Rate Loans ............................................................................................................ 92        3.05  Compensation for Losses ...................................................................................... 94        3.06  Mitigation Obligations; Replacement of Lenders ................................................. 95        3.07  Survival ................................................................................................................. 95                                          i 





 






   Article IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS............................... 95        4.01  Conditions of Effectiveness .................................................................................. 95        4.02  Conditions to Credit Extensions ........................................................................... 98   Article V.  REPRESENTATIONS AND WARRANTIES..................................................... 99        5.01  Existence, Qualification and Power ...................................................................... 99        5.02  Authorization; No Contravention ......................................................................... 99        5.03  Governmental Authorization; Other Consents.................................................... 100        5.04  Binding Effect ..................................................................................................... 100        5.05  Financial Statements; No Material Adverse Effect ............................................ 100        5.06  Litigation ............................................................................................................. 101        5.07  No Default ........................................................................................................... 101        5.08  Ownership of Property; Liens ............................................................................. 101        5.09  Environmental Compliance ................................................................................ 101        5.10  Insurance ............................................................................................................. 101        5.11  Taxes ................................................................................................................... 102        5.12  Compliance with ERISA..................................................................................... 102        5.13  Subsidiaries; Equity Interests .............................................................................. 103        5.14  Margin Regulations; Investment Company Act ................................................. 103        5.15  Disclosure ........................................................................................................... 104        5.16  Compliance with Laws ....................................................................................... 104        5.17  Taxpayer Identification Number ......................................................................... 104        5.18  Anti-Corruption Laws and Sanctions; Anti-Money Laundering ........................ 104        5.19  Solvency .............................................................................................................. 105        5.20  Principal Offices ................................................................................................. 105        5.21  REIT Status and Stock Exchange Listing ........................................................... 105        5.22  No Burdensome Agreements .............................................................................. 105        5.23  Collateral Documents.......................................................................................... 105        5.24  Organization Documents .................................................................................... 105        5.25  Borrowing Base Assets ....................................................................................... 105        5.26  EEA Financial Institutions .................................................................................. 105   Article VI. AFFIRMATIVE COVENANTS ........................................................................ 106        6.01  Financial Statements ........................................................................................... 106        6.02  Certificates; Other Information ........................................................................... 106        6.03  Notices ................................................................................................................ 108        6.04  Payment of Obligations....................................................................................... 110        6.05  Preservation of Existence, Etc. ........................................................................... 110        6.06  Maintenance of Properties .................................................................................. 110        6.07  Maintenance of Insurance ................................................................................... 110        6.08  Compliance with Laws ....................................................................................... 113        6.09  Books and Records ............................................................................................. 113        6.10  Inspection Rights ................................................................................................ 113        6.11  Use of Proceeds................................................................................................... 114        6.12  Additional Subsidiary Guarantors....................................................................... 114                                          ii 





 






         6.13  Anti-Corruption Laws ......................................................................................... 115        6.14  Information Regarding Collateral ....................................................................... 115        6.15  Maintenance of REIT Status; Stock Exchange Listing....................................... 115        6.16  [Intentionally Omitted] ....................................................................................... 115        6.17  Further Assurances.............................................................................................. 115   Article VII. NEGATIVE COVENANTS ............................................................................... 116        7.01  Liens .................................................................................................................... 116        7.02  Investments ......................................................................................................... 116        7.03  Indebtedness ........................................................................................................ 117        7.04  Fundamental Changes ......................................................................................... 118        7.05  Dispositions......................................................................................................... 119        7.06  Restricted Payments ............................................................................................ 120        7.07  Change in Nature of Business ............................................................................. 120        7.08  Transactions with Affiliates ................................................................................ 120        7.09  Burdensome Agreements .................................................................................... 121        7.10  Use of Proceeds................................................................................................... 121        7.11  Financial Covenants ............................................................................................ 121        7.12  Sanctions ............................................................................................................. 122        7.13  Anti-Corruption Laws; Anti-Money Laundering................................................ 122        7.14  Amendments, Waivers and Terminations of Certain Agreements ..................... 122        7.15  Accounting Changes; Fiscal Year ....................................................................... 123   Article VIII. EVENTS OF DEFAULT AND REMEDIES ..................................................... 123        8.01  Events of Default ................................................................................................ 123        8.02  Remedies Upon Event of Default ....................................................................... 126        8.03  Application of Funds........................................................................................... 126   Article IX. ADMINISTRATIVE AGENT ............................................................................ 127        9.01  Appointment and Authority ................................................................................ 127        9.02  Rights as a Lender ............................................................................................... 128        9.03  Exculpatory Provisions ....................................................................................... 128        9.04  Reliance by Administrative Agent ...................................................................... 129        9.05  Delegation of Duties ........................................................................................... 129        9.06  Resignation of Administrative Agent ................................................................. 130        9.07  Non-Reliance on Administrative Agent and Other Lenders ............................... 131        9.08  No Other Duties, Etc. .......................................................................................... 131        9.09  Administrative Agent May File Proofs of Claim; Credit Bidding ...................... 131        9.10  Collateral and Guaranty Matters ......................................................................... 133        9.11  Certain ERISA Matters ....................................................................................... 134   Article X.  MISCELLANEOUS ........................................................................................... 135        10.01 Amendments, Etc. ............................................................................................... 135        10.02 Notices; Effectiveness; Electronic Communication ........................................... 137        10.03 No Waiver; Cumulative Remedies; Enforcement............................................... 139                                          iii 





 






         10.04 Expenses; Indemnity; Damage Waiver ............................................................... 140        10.05 Payments Set Aside............................................................................................. 142        10.06 Successors and Assigns....................................................................................... 142        10.07 Treatment of Certain Information; Confidentiality ............................................. 147        10.08 Right of Setoff..................................................................................................... 148        10.09 Interest Rate Limitation ...................................................................................... 148        10.10 Counterparts; Integration; Effectiveness ............................................................. 149        10.11 Survival of Representations and Warranties ....................................................... 149        10.12 Severability ......................................................................................................... 149        10.13 Replacement of Lenders ..................................................................................... 149        10.14 Governing Law; Jurisdiction; Etc. ...................................................................... 150        10.15 Waiver of Jury Trial ............................................................................................ 151        10.16 No Advisory or Fiduciary Responsibility ........................................................... 152        10.17 Electronic Execution of Assignments and Certain Other Documents ................ 152        10.18 USA PATRIOT Act ............................................................................................ 153        10.19 ENTIRE AGREEMENT ..................................................................................... 153        10.20 Acknowledgement and Consent to Bail-In of EEA Financial Institutions ......... 153        10.21 No Novation ........................................................................................................ 154        10.22 Acknowledgement Regarding Any Supported QFCs ......................................... 154   Article XI. GUARANTY ...................................................................................................... 155        11.01 Guaranty .............................................................................................................. 155        11.02 Rights of Lenders ................................................................................................ 156        11.03 Certain Waivers .................................................................................................. 157        11.04 Obligations Independent ..................................................................................... 157        11.05 Subrogation ......................................................................................................... 157        11.06 Termination; Reinstatement ................................................................................ 157        11.07 Subordination ...................................................................................................... 158        11.08 Stay of Acceleration ............................................................................................ 158        11.09 Condition of the Borrower .................................................................................. 158        11.10 Limitations on Enforcement ............................................................................... 158        11.11 Contribution ........................................................................................................ 158        11.12 Investment Grade Release ................................................................................... 159                                                                          iv 





 






   SCHEDULES         1.01  Closing Date Appraised Values        2.01  Commitments and Applicable Percentages        2.18  Borrowing Base Assets List        5.12  Multiemployer Plans/Collective Bargaining Agreements        5.13  Subsidiaries; Equity Interests        10.02 Administrative Agent’s Office; Certain Addresses for Notices                  EXHIBITS          A     Form of Committed Loan Notice        B     Form of Borrowing Base Certificate        C     Form of Note        D     Form of Compliance Certificate        E     Form of Assignment and Assumption        F-1   Form of Perfection Certificate        F-2   Form of Perfection Certificate Supplement        G     Form of U.S. Tax Compliance Certificates        H     Form of Joinder Agreement        I     Form of Notice of Loan Prepayment        J     Form of Nominated Asset Notice                                              v 





 






                 AMENDED AND RESTATED CREDIT AGREEMENT         This AMENDED AND RESTATED CREDIT AGREEMENT (“Agreement”) is entered  into as of November 6, 2019, among SAFEHOLD INC., a Maryland corporation (the “Borrower”),  SAFEHOLD OPERATING PARTNERSHIP LP, a Delaware limited partnership (the “Operating  Partnership”), SAFEHOLD OP GENPAR LLC, a Delaware limited liability company (“SIGOP”),  CARET  VENTURES  LLC,  a  Delaware  limited  liability  company  (“CARET”),  CARET  Management Holdings LLC, a Delaware limited liability company (“CARET Management”) and  certain subsidiaries of CARET from time to time party hereto, as Guarantors, each lender from  time to time party hereto (collectively, the “Lenders” and individually, a “Lender”), BANK OF  AMERICA,  N.A.,  as  Administrative  Agent, and  BANK  OF  AMERICA,  N.A.,  JPMORGAN  CHASE BANK, N.A. and BARCLAYS BANK PLC, as L/C Issuers.         The Borrower, Bank of America, as administrative agent, and certain other parties are party  to that certain Credit Agreement, dated as of June 2, 2017 (as amended, supplemented or otherwise  modified prior to the Closing Date, the “Existing Credit Agreement”); and         The Borrower has requested that the Lenders provide credit facilities pursuant to the terms  of this Agreement, which amends and restates the Existing Credit Agreement in its entirety, but  not as a novation, and the Lenders are willing to do so on the terms and conditions set forth herein.         In  consideration  of  the  mutual  covenants  and  agreements  herein  contained,  the  parties  hereto covenant and agree as follows:               ARTICLE I.  DEFINITIONS AND ACCOUNTING TERMS         1.01  Defined Terms.  As used in this Agreement, the following terms shall have the  meanings set forth below:         “Adjustment” has the meaning specified in Section 3.03(c).         “Administrative Agent” means Bank of America in its capacity as administrative agent  under any of the Loan Documents, or any successor administrative agent.         “Administrative  Agent’s  Office”  means  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 to the Borrower and the Lenders.         “Administrative  Questionnaire” means  with  respect  to  each  Lender,  an  administrative  questionnaire  in  the  form  prepared  by  the  Administrative  Agent  and  submitted  to  the  Administrative Agent (with a copy to the Borrower) duly completed by such Lender.         “Affiliate” as applied to any Person, means any other Person that directly or indirectly  Controls, is Controlled by, or is under common Control with, that Person.         “Aggregate Commitments” means at any time, the aggregate amount of the Commitments  of  all  the  Lenders then  in  effect.  On  the  Closing  Date,  the  Aggregate  Commitments  are  $525,000,000.                                          1 





 






         “Aggregate Deficit Amount” has the meaning specified in Section 11.11.         “Aggregate Excess Amount” has the meaning specified in Section 11.11.         “Agreement” means this Credit Agreement.         “Anti-Corruption  Laws”  means  all  laws,  rules  and  regulations  of  any  jurisdiction  applicable to the Borrower or any of its Subsidiaries from time to time concerning or relating to  bribery or corruption.         “Anti-Money  Laundering  Laws”  means  any  and  all  laws,  judgments,  executive  orders,  regulations, statutes or treaties applicable to a Loan Party or its Subsidiaries, related to terrorism  financing or money laundering including any applicable provision of the PATRIOT Act and The  Currency and Foreign Transactions Reporting Act (also known as the “Bank Secrecy Act”, 31  U.S.C. §§ 5311-5330 and 12 U.S.C. §§ 1818(s), 1820(b) and 1951-1959).         “Applicable Advance Rate” means (a) with respect to each Non-Stabilized Asset, 50%,  (b) with respect to each other Eligible Ground Net Lease Asset, 67% and (c) with respect to an  Eligible Loan Asset, 60%.         “Applicable Fee Rate” means, with respect to any day, the per annum fee rate set forth  opposite the Revolver Usage for such day in the following pricing grid:                         Revolver Usage   Applicable Fee Rate                             ≤ 50%             0.25%                             > 50%             0.15%   For purposes hereof, “Revolver Usage” means, with respect to any day, the ratio (expressed as a  percentage)  of  (a)  the  sum  of  (i)  the  Outstanding  Amount  of  Loans  on  such  day  and  (ii)  the  Outstanding Amount of L/C Obligations on such day to (b) the Aggregate Commitments in effect  on such day.         “Applicable Percentage” means with respect to any Lender at any time, the percentage  (carried  out  to  the  ninth  decimal  place)  of  the  Aggregate  Commitments  represented  by  such  Lender’s  Commitment  at  such time, subject  to  adjustment as  provided in Section 2.17.   If the  commitment of each Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit  Extensions have been terminated pursuant to Section 8.02 or if the Aggregate Commitments have  expired,  then  the  Applicable  Percentage  of  each  Lender  shall  be  determined  based  on  the  Applicable Percentage of such Lender most recently in effect,  giving effect to any subsequent  assignments.  The initial Applicable Percentage of each Lender is set forth opposite the name of  such  Lender  on Schedule 2.01 or  in  the  Assignment  and  Assumption or  New  Lender  Joinder  Agreement pursuant to which such Lender becomes a party hereto, as applicable.         “Applicable Rate” means, for any day, with respect to any Eurodollar Rate Loan, LIBOR  Floating Rate Loan, Base Rate Loan, Letter of Credit Fee and Facility Fee, as the case may be (a)                                          2 





 






   until the Investment Grade Pricing Effective Date, (i) 1.30% for Eurodollar Rate Loan, LIBOR  Floating Rate Loans and Letter of Credit Fees, (ii) 0.30% for Base Rate Loans and (iii) 0.00% for  the Facility Fee and (b) on and after the Investment Grade Pricing Effective Date, from time to  time, the following percentages per annum, based upon the Debt Rating as set forth below:                                                Applicable Rate for                                                Eurodollar Rate                                                 Loans, LIBOR                                              Floating Rate Loans  Applicable Rate    Pricing     Debt Ratings                  and Letter of Credit  for Base Rate     Level                       Facility Fee        Fees              Loans       1        A-/A3 or better    0.125%           0.775%            0.000%       2         BBB+/Baa1         0.150%           0.825%            0.000%       3          BBB/Baa2         0.200%           0.900%            0.000%       4         BBB-/Baa3         0.250%           1.100%            0.100%       5      Below BBB-/Baa3      0.300%           1.450%            0.450%                 (or unrated)                “Debt Rating” means, as of any date of determination, the rating as determined by        S&P, Moody’s or Fitch (collectively, the “Debt Ratings”) of the Borrower’s non-credit-       enhanced, senior unsecured long-term debt; provided that if at any time (x) the Borrower        has  three  (3)  Debt  Ratings and such  Debt  Ratings  are  not  equivalent,  then  (A)  if  the        difference between the highest and the lowest of such Debt Ratings is one ratings category        (e.g.  Baa2  by  Moody’s  and  BBB- by  S&P  or  Fitch),  the  Applicable  Rate  shall  be        determined based on the highest of the Debt Ratings, and (B) if the difference between        such Debt 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 determined based on the average of the two        (2) highest Debt Ratings, provided that if such average is not a recognized rating category,        then the Applicable Rate shall be determined based on the second highest of the Debt        Ratings; (y) the Borrower has only two (2) Debt Ratings and such Debt Ratings are not        equivalent, then: (A) if the difference between such Debt Ratings is one ratings category        (e.g.  Baa2  by  Moody’s  and  BBB- by  S&P  or  Fitch),  the  Applicable  Rate  shall  be        determined based on the higher of the Debt Ratings, and (B) if the difference between such        Debt 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 determined based on the Debt Rating that is one        higher than the lower of the applicable Debt Ratings; (c) the Borrower has only one Debt        Rating, then: (A) if such Debt Rating is issued by S&P or Moody’s, the Pricing Level that        is one level lower than that of such Debt Rating shall apply and (B) if such Debt Rating is        issued by Fitch, Pricing Level 5 shall apply; and (d) the Borrower does not have any Debt        Rating, Pricing Level 5 shall apply.   On the Investment Grade Pricing Effective Date, the Applicable Rate shall be determined based  upon the Debt Rating(s) specified in the certificate delivered pursuant to clause (ii) of the definition  of “Investment Grade Pricing Effective Date.”  Thereafter, each change in the Applicable Rate  resulting from a publicly announced change in a Debt Rating shall be effective, in the case of an  upgrade,  during  the  period  commencing  on  the  date  of  delivery  by  the  Borrower  to  the                                          3 





 






   Administrative  Agent  of  notice  thereof  pursuant  to Section 6.03(g) and  ending  on  the  date  immediately preceding the effective date of the next such change and, in the case of a downgrade,  during the period commencing on the date of the public announcement thereof and ending on the  date immediately preceding the effective date of the next such change.         “Appraisal” means, an “as-is” appraisal of the market value of a Real Property Asset (on  an individual, as opposed to portfolio value, basis) that is reasonably satisfactory as to value and  otherwise reasonably satisfactory to Administrative Agent (including satisfaction of applicable  regulatory requirements) prepared by an MAI appraiser reasonably satisfactory to Administrative  Agent and engaged directly by the Borrower.           “Appraised  Value” means,  with  respect  to  the  Real  Property  Asset underlying  any  Borrowing Base Asset, the appraised value of such Real Property Asset as reflected in the Current  Appraisal thereof most recently received and approved by the Administrative Agent on or prior to  the Closing Date or pursuant to any provision of this Agreement; provided that (a) the Appraised  Value of each Borrowing Base Asset listed on Schedule 1.01 shall be as set forth on such schedule  until  a  new  Appraisal  dated  on  or  after  the  Closing  Date is  received  and  approved  by  the  Administrative Agent with respect to the Real Property Asset underlying such Borrowing Base  Asset and (b) if the Administrative Agent has not received and approved a Current Appraisal with  respect to the Real Property Asset underlying any Borrowing Base Asset included pursuant to  Section 2.18(a) after the Closing Date, then the Appraised Value of such Real Property Asset shall  be an amount equal to 100% of the acquisition cost thereof; provided further that in the event that  there is no Current Appraisal for the Real Property Asset underlying any Borrowing Base Asset  that has been included as a Borrowing Base Asset hereunder for more than 90 days (or, in the case  of  any  Borrowing  Base  Asset  listed  on Schedule  1.01,  90  days  after  the  Closing  Date),  the  Appraised Value of such Real Property Asset shall be zero ($0).         “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an  Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a  Lender.         “Arrangers” means BofA Securities, Inc., JPMorgan Chase Bank, N.A. and Barclays Bank  PLC, each in its capacity as a joint lead arranger.         “Assigned BankNote Property Mortgage Debt” means an aggregate principal amount of  Indebtedness equal to $41,000,000 and outstanding on August 1, 2019 pursuant to one or more  promissory notes issued by Lafayette Avenue LLC to Wilmington Trust, National Association, as  Trustee for the benefit of the Registered Holders of JPMBB Commercial Mortgage Securities Trust  2014-C25,  Commercial  Mortgage  Pass-Through  Certificates,  Series  2014-C25,  which  Indebtedness was (a) secured solely by Mortgage BankNote Property and (b) was assumed from  Lafayette Avenue LLC by the BankNote Property Owner on August 1, 2019 in connection with  its acquisition of the BankNote Property.         “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                                          4 





 






   or any other form (including electronic documentation generated by use of an electronic platform)  approved by the Administrative Agent.         “Attributable Indebtedness” means, on any date, (a) in respect of any Capital Lease of any  Person,  the  capitalized  amount  thereof  that  would  appear  on  a  balance  sheet  of  such  Person  prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease  Obligation, the capitalized amount of the remaining lease payments under the relevant lease that  would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP  if such lease were accounted for as a Capital Lease.         “Audited  Financial  Statements” means  the  audited  consolidated  balance  sheet  of  the  Borrower  and  its  Subsidiaries  for  the  fiscal  year  ended  December  31,  2018,  and  the  related  consolidated statements of income or operations, shareholders’ equity and cash flows for such  fiscal year of the Borrower and its Subsidiaries, including the notes thereto.         “Availability” means, at any time, the lesser of (a) the Aggregate Commitments at such  time  and  (b)  an  amount  equal  to  the  Borrowing  Base  Amount  at  such  time minus Total  Outstandings minus (without duplication) the then outstanding amount of Total Unsecured Debt  (other than Unsecured Debt permitted under Section 7.03(c)) minus (without duplication) the then  outstanding amount of Secured Pari Passu Obligations.         “Availability Period” means the period from and including the Closing Date to the earliest  of (a) the Maturity Date, (b) the date of termination of the Aggregate Commitments pursuant to  Section 2.06, and (c) the date of termination of the commitment of each Lender to make Loans and  of the obligation of the L/C Issuers to make L/C Credit Extensions pursuant to Section 8.02.         “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the  applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.         “Bail-In  Legislation”  means,  with  respect  to  any  EEA  Member  Country  implementing  Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European  Union, the implementing law for such EEA Member Country from time to time which is described  in the EU Bail-In Legislation Schedule.         “Bank of America” means Bank of America, N.A. and its successors.         “BankNote Property” means that certain Ground Net Lease located at 1201-1231 Lafayette  Avenue, Bronx, New York .         “BankNote Property  Mortgage” means that  certain Amended  and  Restated  Mortgage,  Assignment of Leases and Rents, Security Agreement, Fixture Filing and Financing Statement,  dated  August  1,  2019, by  and  between  the  BankNote  Property  Owner  and  the  Administrative  Agent, for the benefit of the Secured Parties.          “BankNote Property  Mortgage  Debt”  means the  aggregate principal  amount  of  Indebtedness pursuant to the BankNote Property Mortgage Note, which Indebtedness is secured  by the BankNote Property Mortgage.                                          5 





 






         “BankNote  Property  Mortgage  Debt  Assignment”  has  the  meaning  specified  in  Section 2.04.         “BankNote  Property  Mortgage Note” means  that  certain  Amended  and  Restated  Promissory Note,  dated  August  1,  2019, issued  by  the  Borrower and  the  BankNote  Property  Owners to the Administrative Agent, for the ratable benefit of the Lenders, in the original principal  amount of $41,000,000, evidencing the Special Advance.         “BankNote  Property  Mortgage Transfer  Documentation”  has  the  meaning  specified  in  Section 2.19(a)(iii)(B).         “BankNote  Property  Mortgage Transfer  Notice”  has  the  meaning  specified  in  Section 2.19(a)(i).         “BankNote Property Owner” means 1201-31 Lafayette Ground Owner LLC, a Wholly- Owned Domestic Subsidiary of the Borrower and the Direct Owner of the BankNote Property.         “Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the  Federal  Funds  Rate  plus  1/2  of  1%,  (b) the  rate  of  interest  in  effect  for  such  day  as  publicly  announced from time to time by Bank of America as its “prime rate,” and (c) the Eurodollar Rate  plus 1.00%; provided that in no event will the Base Rate be less than zero.  The “prime rate” is a  rate set by Bank of America based upon various factors including Bank of America’s costs and  desired return, general economic conditions and other factors, and is used as a reference point for  pricing some loans, which may be priced at, above, or below such announced rate.  Any change in  such prime rate announced by Bank of America shall take effect at the opening of business on the  day specified in the public announcement of such change.  If the Base Rate is being used as an  alternate rate of interest pursuant to Section 3.03 hereof, then the Base Rate shall be the greater of  clauses (a) and (b) above and shall be determined without reference to clause (c) above.         “Base Rate Committed Loan” means a Committed Loan that is a Base Rate Loan.         “Base Rate Loan” means a Loan that bears interest based on the Base Rate.         “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.         “Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is  subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code or (c) any Person  whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of  ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan.”         “Bookrunner” means BofA Securities, Inc., in its capacity as sole bookrunner.         “Borrower” has the meaning specified in the introductory paragraph hereto.           “Borrower Materials” has the meaning specified in Section 6.02.         “Borrowing” means a borrowing consisting of simultaneous Loans of the same Type and,  in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the Lenders                                          6 





 






   pursuant  to Section 2.01.  For  the  avoidance  of  doubt, the  Special  Advance  constitutes  a  Borrowing, however, the BankNote  Property Mortgage  Debt  Assignment did not  constitute  a  Borrowing.         “Borrowing Base Amount” means, on any date, the lesser of:               (a)   the sum of the Individual Borrowing Base Amounts for all Borrowing Base        Assets on such date; and                 (b)   the  maximum  amount  of  Unsecured  Debt (other  than  Unsecured  Debt        permitted under Section 7.03(c)) plus Secured Pari Passu Obligations plus Indebtedness        under the Loan Documents that can be supported by the Borrowing Base Cash Flow for        all Borrowing Base Assets assuming (i) an interest rate equal to the interest rate (including        any Applicable Rate) applicable to Eurodollar Rate Loans on such date and (ii) interest        coverage of 1.50 to 1.00;   provided that, the Borrowing Base Amount shall be subject to the following adjustments:               (i)   the aggregate Individual Borrowing Base Amounts of all Eligible Ground        Net  Lease  Assets that  constitute  Non-Stabilized  Assets shall  not  exceed 30%  of  the        Borrowing Base Amount at any one time (and any such excess shall be disregarded for        purposes of determining the Borrowing Base Amount); and               (ii)  the  aggregate  Individual  Borrowing  Base  Amounts  of  all  Eligible  Loan        Assets shall not exceed 10% of the Borrowing Base Amount at any one time (and any such        excess shall be disregarded for purposes of determining the Borrowing Base Amount).          “Borrowing Base Assets” means, as of any date, the Eligible Loan Assets and the Eligible  Ground Net Lease Assets properly included in the calculation of the Borrowing Base Amount on  such date.         “Borrowing Base Assets List” has the meaning specified in Section 2.18(a) as such list may  be modified from time to time.         “Borrowing Base Cash Flow” means, as of any date of determination, for (subject to the  last sentence of this definition) the period of four full fiscal quarters ended on such date (if such  date is the last day of a fiscal quarter) or the then more recently ended period of four fiscal quarters  (if such date is not the last day of a fiscal quarter), the sum, without duplication of (i) interest  payable by the Loan Asset Borrowers and actually received by the applicable mortgagee with  respect to the Eligible Loan Assets included in the Borrowing Base Amount for such period and  (ii) cash flows from the Eligible Ground Net Lease Assets included in the Borrowing Base Amount  for such period consisting of base rent plus Percentage Rent payable by the lessee thereunder and  actually  received  by  the  lessor, minus any  expenses  incurred  during  such  period  by  any  Consolidated  Party  in  respect  of  such  Eligible  Ground  Net  Lease  Asset,  including  cash  management fees in an amount equal to the greater of (x) the actual aggregate amount of cash  management fees paid in respect of such Eligible Ground Net Lease Assets and (y) an amount  equal to 1.00% of the aggregate rent (including base rent, Percentage Rent and any other form of  cash rent) payable by lessees under such Eligible Ground Net Lease Assets; provided, that at any                                          7 





 






   time a Material Event has occurred and is continuing, such Eligible Ground Net Lease Asset or  Eligible Loan Asset, as the case may be, shall be excluded for all purposes of the calculation of  the foregoing; provided, further, that in the event that a Material Event that has occurred is no  longer continuing, any adjustment made to the Borrowing Base Cash Flow in connection therewith  shall be readjusted accordingly and the subject Eligible Ground Net Lease Asset(s) or Eligible  Loan Asset(s) shall be included for all purposes of the calculation of the foregoing.         For purposes of determining clause (b) of the definition of Borrowing Base Amount as of  any date, the Borrowing Base Cash Flow attributable to a Borrowing Base Asset that has been  owned by a Consolidated Party (A) for less than one full fiscal quarter as of such date shall be  mutually agreed upon by the Administrative Agent and the Borrower, (B) for not more than one  full fiscal quarter as of such date shall be the Borrowing Base Cash Flow attributable to such  Borrowing Base Asset for such fiscal quarter multiplied by 4, (C) for not more than two full fiscal  quarters as of such date shall be the Borrowing Base Cash Flow attributable to such Borrowing  Base Asset for such two fiscal quarter period multiplied by 2, and (D) for not more than three full  fiscal quarters shall be the Borrowing Base Cash Flow attributable to such Borrowing Base Asset  for such three fiscal quarter period multiplied by 4/3.         “Borrowing  Base  Certificate”  means  a  certificate,  signed  and  certified  as  accurate  and  complete by a senior financial officer of the Borrower, in substantially the form of Exhibit B (or  another form acceptable to the Administrative Agent) setting forth the calculation of the Borrowing  Base Amount.  All calculations of the Borrowing Base Amount in connection with the preparation  of any Borrowing Base Certificate shall originally be made by the Borrower and certified to the  Administrative Agent; provided, that the Administrative Agent shall have the right to review and  make  reasonable  adjustments  to  any  such  calculation  to  the  extent  the  Administrative  Agent  reasonably determines that such calculation contains errors or is not otherwise in accordance with  this Agreement and notifies the Borrower of such adjustment.         “Business  Day”  means  any  day  other  than  a  Saturday,  Sunday  or  other  day  on  which  commercial banks are authorized to close under the Laws of, or are in fact closed in, the state  where the Administrative Agent’s Office is located and, if such day relates to any Eurodollar Rate  Loan or LIBOR Floating Rate Loan, means any such day that is also a London Banking Day.         “Capital Leases” as applied to any Person, means any lease of any property (whether real,  personal or mixed) by that Person as lessee which, in conformity with GAAP, is or should be  accounted for as a capital lease on the balance sheet of that Person.         “CARET” has the meaning specified in the introductory paragraph hereto.         “CARET Entities” means CARET and CARET Management.         “CARET Management” has the meaning specified in the introductory paragraph hereto.         “Cash Collateralize” means to pledge and deposit with or deliver to the Administrative  Agent,  for  the  benefit  of  one  or  more  of  the  L/C  Issuer  or  the  Lenders,  as  collateral  for  L/C  Obligations or obligations of the Lenders to fund participations in respect of L/C Obligations, cash  or deposit account balances or, if the Administrative Agent and the L/C Issuer(s) shall agree in  their sole discretion, other credit support, in each case pursuant to documentation in form and                                          8 





 






   substance satisfactory to the Administrative Agent and the L/C Issuer(s). “Cash Collateral” shall  have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral  and other credit support.         “Cash  Equivalents” means  (a)  cash;  (b)  marketable  direct  obligations  issued  or  unconditionally guaranteed by the United States Government or issued by an agency thereof and  backed by the full faith and credit of the United States, in each case maturing within one (1) year  after the date of acquisition thereof; (c) marketable direct obligations issued by any state of the  United  States  of  America  or  any  political  subdivision  of  any  such  state  or  any  public  instrumentality thereof maturing within ninety (90) days after the date of acquisition thereof and,  at the time of acquisition, having one of the two highest ratings obtainable from any two of S&P,  Moody’s or Fitch (or, if at any time no two of the foregoing shall be rating such obligations, then  from such other nationally recognized rating services acceptable to the Administrative Agent); (d)  commercial paper (foreign and domestic) or master notes, other than commercial paper or master  notes issued by the Borrower or any of its Affiliates, and, at the time of acquisition, having a long- term rating of at least A or the equivalent from S&P, Moody’s or Fitch and having a short-term  rating of at least A-1, P-1 and F-1 from S&P, Moody’s and Fitch, respectively (or, if at any time  neither S&P nor Moody’s nor Fitch shall be rating such obligations, then the highest rating from  such  other  nationally  recognized  rating  services  acceptable  to  the  Administrative  Agent);  (e)  domestic  and  foreign  certificates  of  deposit  or  domestic  time  deposits  or  foreign  deposits  or  bankers’ acceptances (foreign or domestic) in Dollars that are issued by a bank (I) which has, at  the time of acquisition, a long-term rating of at least A or the equivalent from S&P, Moody’s or  Fitch and (II) if a domestic bank, which is a member of the Federal Deposit Insurance Corporation;  (f) overnight securities repurchase agreements, or reverse repurchase agreements secured by any  of the foregoing types of securities or debt instruments, provided that the collateral supporting  such repurchase agreements shall have a value not less than 101% of the principal amount of the  repurchase agreement plus accrued interest; and (g) money market funds invested in investments  substantially all of which consist of the items described in the foregoing clauses (a) through (f).          “Change in Law” means the occurrence, after the date of this Agreement, of any of the  following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in  any  law,  rule,  regulation  or  treaty  or  in  the  administration,  interpretation,  implementation  or  application thereof by any Governmental Authority or (c) the making or issuance of any request,  rule,  guideline  or  directive  (whether  or  not  having  the  force  of  law)  by  any  Governmental  Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall  Street  Reform  and  Consumer  Protection  Act  and  all  requests,  rules,  guidelines  or  directives  thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives  promulgated  by  the  Bank  for  International  Settlements,  the  Basel  Committee  on  Banking  Supervision  (or  any  successor  or  similar  authority)  or  the United  States  or  foreign  regulatory  authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in  Law”, regardless of the date enacted, adopted or issued.         “Change of Control” means an event or series of events by which:               (a)   any  Person  or  “group”  (as  such  term  is  defined  in  applicable  federal        securities laws and regulations), other than iStar Inc. or an Affiliate of iStar Inc., shall        become the owner, directly or indirectly, beneficially or of record, of shares representing                                          9 





 






         more than forty percent (40%) of the aggregate ordinary voting power represented by the        issued and outstanding common shares of the Borrower;               (b)   a majority of the Board of Directors of the Borrower over a consecutive        one-year period shall not consist of (i) the directors who constituted the Board of Directors        of the Borrower at the beginning of such period or (ii) directors whose nomination or        election was approved by a vote of at least a majority of the Board of Directors of the        Borrower then still in office who were either members of such Board of Directors at the        beginning of such period or whose nomination or election as a member of such Board of        Directors was previously so approved;                (c)   the Borrower or a Wholly-Owned Subsidiary that is a Guarantor shall cease        to be the sole general partner of the Operating Partnership or the Borrower shall cease to        Control the Operating Partnership;                (d)   the Operating Partnership shall cease to be the sole managing member of        CARET or the Operating Partnership shall cease to control CARET; or               (e)   the Borrower shall cease to be managed by iStar Inc. or a Wholly-Owned        Subsidiary thereof.         “Closing Date” means the first date all the conditions precedent in Section 4.01 are satisfied  or waived in accordance with Section 10.01.         “CMBS Financing” means financings of the Borrower that are secured by commercial real  property and/or loan interests and securitized by the lenders thereunder.         “Code” means the Internal Revenue Code of 1986.         “Collateral” means all of the “Collateral” and “Mortgaged Property” or other similar term  referred to in the Collateral Documents that is required under the terms of the Loan Documents to  be subject to Liens in favor of the Administrative Agent for the benefit of the Secured Parties,  including any property subject to the BankNote Property Mortgage and all proceeds thereof.          “Collateral Documents” means the Pledge Agreement, the BankNote Property Mortgage,  pledge agreement supplements or other similar agreements delivered to the Administrative Agent  pursuant to Section 6.12, and each of the other agreements, instruments or documents that creates  or perfects or purports to create or perfect a Lien in the Collateral in favor of the Administrative  Agent for the benefit of the Secured Parties to secure the obligations and liabilities of the Borrower  or any other Loan Party under any Loan Document or providing rights and remedies in respect of  the Collateral.         “Commitment” means, as to each Lender, its obligation to (a) make Loans to the Borrower  pursuant  to Section 2.01, and (b) purchase  participations  in  L/C  Obligations,  in  an  aggregate  principal amount at any one time outstanding not to exceed the amount set forth opposite such  Lender’s name on Schedule 2.01 or in the Assignment and Assumption or New Lender Joinder  Agreement pursuant to which such Lender becomes a party hereto, as applicable, as such amount  may be adjusted from time to time in accordance with this Agreement.                                          10 





 






         “Committed Loan” has the meaning specified in Section 2.01.         “Committed Loan Notice” means a notice of (a) a Borrowing, (b) a conversion of Loans  from  one  Type  to another,  or  (c) a  continuation  of  Eurodollar  Rate  Loans,  pursuant  to  Section 2.02(a),  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.         “Compliance Certificate” means a certificate substantially in the form of Exhibit D duly  executed  by  the  chief  executive  officer,  chief  financial  officer,  treasurer  or  controller  of  the  Borrower.         “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 EBITDA” means, for the Consolidated Group and for any period, an amount  equal to Consolidated Net Income for such period plus (a) the following to the extent deducted in  calculating Consolidated Net Income: (i) Interest Expense for such period, (ii) the provision for  federal, state, local and foreign income taxes payable by the Consolidated Group for such period,  (iii) depreciation and amortization expense incurred during such period, (iv) all non-cash items  decreasing Consolidated Net Income for such period and (v) other non-recurring expenses of the  Borrower and its Subsidiaries reducing such Consolidated Net Income (including straight line rent  adjustments) which do not represent a cash item in such period or any future period and minus (b)  the following to the extent included in calculating such Consolidated Net Income: (i) federal, state,  local and foreign income tax credits of the Consolidated Group for such period and (ii) all non- cash items increasing Consolidated Net Income for such period.         “Consolidated Group” means the Borrower and its Consolidated Subsidiaries.         “Consolidated Net Income” means, for any period, for the Consolidated Group, the net  income (or  loss) of  the Borrower  and  its  Subsidiaries on  a  consolidated  basis  for  such  period  (excluding extraordinary gains and extraordinary losses for that period).           “Consolidated Party” means a member of the Consolidated Group.          “Consolidated  Subsidiary” means  at  any  date  any  Subsidiary  or  other  entity  which  is  consolidated with the Borrower in accordance with GAAP or which is required under GAAP to be  consolidated with the Borrower.         “Consolidated Tangible Net Worth” means, as of any date of determination, Shareholders’  Equity minus the Intangible  Assets of  the  Borrower  and  its  Subsidiaries plus accumulated  depreciation of real property and amortization (excluding, to the extent included when determining  Shareholders’  Equity) of  the  Borrower  and  its  Subsidiaries,  in each  case, determined on  a  consolidated basis in accordance with GAAP.                                          11 





 






         “Contingent Obligation” as to any Person means, without duplication, (i) any contingent  obligation of such Person required to be shown on such Person’s balance sheet in accordance with  GAAP which is not otherwise Indebtedness and (ii) any obligation required to be disclosed in  accordance  with  GAAP  in  the  footnotes  to  such  Person’s  financial  statements,  guaranteeing  partially or in whole any Non-Recourse Indebtedness, lease, dividend or other obligation including  guarantees of completion and guarantees of representations and warranties; provided, however,  Contingent Obligations shall not include title or contractual indemnities (including, any indemnity  or price-adjustment provision relating to the purchase or sale of securities or other assets) and  guarantees of non-monetary obligations (other than as described above) which have not yet been  called on or quantified, of such Person or of any other Person.  The amount of any Contingent  Obligation described in clause (ii) shall be deemed to be (a) with respect to a guaranty of interest  or interest and principal, or operating income guaranty, the Net Present Value of the sum of all  payments required to be made thereunder (which in the case of an operating income guaranty shall  be deemed to be equal to the debt service for the note secured thereby), through (i) in the case of  an interest or interest and principal guaranty, the stated date of maturity of the obligation (and  commencing  on  the  date interest  could  first  be  payable  thereunder),  or  (ii)  in  the  case  of  an  operating income guaranty, the date through which such guaranty will remain in effect, and (b)  with respect to all guarantees not covered by the preceding clause (a), an amount equal to the stated  or determinable amount of the primary obligation in respect of which such guaranty is made or, if  not  stated  or  determinable,  the  maximum  reasonably  anticipated  liability  in  respect  thereof  (assuming such Person is required to perform thereunder) as recorded on the balance sheet and on  the footnotes to the most recent financial statements of the Borrower required to be furnished  pursuant to Section 6.01.  Notwithstanding anything contained herein to the contrary, guarantees  of  completion  and  guarantees  of  Customary  Recourse  Carveouts  shall  not  be  deemed  to  be  Contingent  Obligations  unless  and  until  a  claim  for  payment  or  performance  has  been  made  thereunder, at which time any such guaranty of completion or guaranty of Customary Recourse  Carveouts shall be deemed to be a Contingent Obligation in an amount equal to any such claim.  All matters constituting “Contingent Obligations” shall be calculated without duplication.                “Contractual Obligation” means, as to any Person, any provision of any security issued by  such Person or of any agreement, instrument or other undertaking to which such Person is a party  or by which it or any of its property is bound.         “Control” means the possession, directly or indirectly, of the power to direct or cause the  direction of the management or policies of a Person, whether through the ability to exercise voting  power,  by  contract  or  otherwise.   “Controlling”  and  “Controlled”  have  meanings  correlative  thereto.         “Controlled  Joint  Venture”  means  a  Subsidiary  of the Borrower  (the  “Specified  Subsidiary”) that meets each of the following criteria: (a) it is organized under the laws of the  United States or a state thereof or the District of Columbia (and each Subsidiary of the Borrower  that directly or indirectly owns any Equity Interests in the Specified Subsidiary is also organized  under the laws of the United States or a state thereof or the District of Columbia), (b) it is not a  Wholly Owned Subsidiary of the Borrower, but the Borrower owns, directly or indirectly, at least  ninety percent (90%) of each class of its Equity Interests and (c) it is exclusively controlled by the  Borrower or a Guarantor (or, following the Investment Grade Release, the Borrower or a Wholly- Owned Subsidiary of the Borrower that is not a borrower or guarantor of, and does not otherwise  have a payment obligation in respect of, any Unsecured Debt or Secured Pari Passu Obligations).  For  purposes  of  this  definition,  a Subsidiary  of the Borrower  is  “exclusively  controlled”  by  a                                          12 





 






   Person if such Person has the right to exercise exclusive control over any disposition, refinancing  and operating activity of any Borrowing Base Property owned or ground leased by such Subsidiary  (including the making of Restricted Payments on a ratable basis to the owners thereof), without  the consent of any other Person (other than (i) the Borrower or (ii) any Subsidiary of the Borrower,  as long as such Subsidiary does not need the consent of any minority equity holder thereof to  consent  to  any  such  disposition, refinancing  or  operating activity  (including  the  making  of  Restricted Payments on a ratable basis to the owners thereof)).         “Controlled Joint Venture Subsidiary” means, as to any Controlled Joint Venture, a direct  Wholly-Owned Subsidiary of such Controlled Joint Venture (the “Specified CJV Subsidiary”) that  is organized under the laws of the United States or a state thereof or the District of Columbia (and  each  Subsidiary  of the Borrower  that  directly  or  indirectly  owns  any  Equity  Interests in  the  Specified CJV Subsidiary is also organized under the laws of the United States or a state thereof  or the District of Columbia).         “Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit  Extension.         “Current Appraisal” means, on any date, an Appraisal that is dated not more than one year  prior to such date (or such longer period, in no event to exceed 410 days, as the Administrative  Agent may agree in writing).         “Customary Recourse Carveouts” has the meaning specified in the definition of “Non- Recourse Indebtedness.”         “Debt Rating” has the meaning specified in the definition of “Applicable Rate.”         “Debtor  Relief  Laws”  means  the  Bankruptcy  Code  of  the  United  States,  and  all  other  liquidation,  conservatorship,  bankruptcy,  assignment  for  the  benefit  of  creditors,  moratorium,  rearrangement,  receivership,  insolvency,  reorganization,  or  similar  debtor  relief  Laws  of  the  United States or other applicable jurisdictions from time to time in effect.         “Default” means any event or condition that constitutes an Event of Default or that, with  the giving of any notice, the passage of time, or both, would be an Event of Default.         “Default Rate” means (a) when used with respect to Obligations other than Letter of Credit  Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate, if any, applicable to  Base Rate Loans plus (iii) 2% per annum; provided, however, that with respect to a Eurodollar  Rate Loan or a LIBOR Floating Rate Loan, the Default Rate shall be an interest rate equal to the  interest  rate  (including  any  Applicable  Rate)  otherwise  applicable  to  such  Loan  plus  2%  per  annum, and (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate  plus 2% per annum.         “Defaulting Lender” means, subject to Section 2.17(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                                          13 





 






   default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the  Administrative Agent, any L/C Issuer or any other Lender any other amount required to be paid  by it hereunder (including in respect of its participation in Letters of Credit) within two Business  Days of the date when due, (b) has notified the Borrower, the Administrative Agent or any L/C  Issuer in writing that it does not intend to comply with its funding obligations hereunder, or has  made a public statement to that effect (unless such writing or public statement relates to such  Lender’s  obligation  to  fund  a  Loan  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  Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental  Authority  so  long  as  such  ownership  interest  does  not  result  in  or  provide  such  Lender  with  immunity  from  the  jurisdiction  of  courts  within the  United  States  or  from  the  enforcement  of  judgments  or  writs  of  attachment  on  its  assets  or  permit  such  Lender  (or  such  Governmental  Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such  Lender.  Any determination by the Administrative Agent that a Lender is a Defaulting Lender  under 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 2.17(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.         “Direct Owner” means each Subsidiary of CARET that directly owns any Borrowing Base  Asset.         “Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (in  one  transaction  or  in  a  series  of  transactions  and  whether  effected  pursuant  to  a  Division  or  otherwise) of any property by any Person (including any sale and leaseback transaction and any  issuance of Equity  Interests by a  Subsidiary  of  such Person),  including  any  sale,  assignment,  transfer or other disposal, with or without recourse, of any notes or accounts receivable or any  rights and claims associated therewith.         “Dividing Person” has the meaning assigned to it in the definition of “Division.”         “Division” means the division of the assets, liabilities and/or obligations of a Person (the  “Dividing  Person”) among  two  or  more  Persons  (whether  pursuant  to  a  “plan  of  division”  or                                          14 





 






   similar arrangement), which may or may not include the Dividing Person and pursuant to which  the Dividing Person may or may not survive.         “Dollar” and “$” mean lawful money of the United States.         “Domestic  Subsidiary”  means  any  Subsidiary  that  is  organized  under  the  laws  of  any  political subdivision of the United States.         “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.         “Eligible Assignee” means any Person that meets the requirements to be an assignee under  Section 10.06(b)(iii),  and (v) (subject  to  such  consents,  if  any,  as  may  be  required  under  Section 10.06(b)(iii)).         “Eligible  Ground Net Lease  Assets”  means  the  Ground Net Lease  Assets  set  forth  on  Schedule 2.18 on  the  Closing  Date  and  each  other  Ground Net Lease  Asset  offered  by  the  Borrower and approved for inclusion as a Borrowing Base Asset pursuant to Section  2.18(a), in  each case, as in effect on the Closing Date or the date that such Ground Net Lease Asset is included  as a Borrowing Base Asset and as thereafter amended, supplemented or otherwise modified to the  extent  permitted  under  this  Agreement,  as  applicable, and in  each  case, that  (i) has  not  been  excluded  pursuant  to Section  2.18(b) or removed  pursuant  to Section  2.18(c) and  (ii)  unless  otherwise agreed by the Administrative Agent and the Super Majority Lenders in writing, at all  times satisfies each of the following criteria:               (a)   the Direct Owner of such Ground Net Lease Asset, and each Indirect Owner        of such Direct Owner, is either a Wholly-Owned Subsidiary of the Borrower, a Controlled        Joint Venture or a Controlled Joint Venture Subsidiary and (i) prior to the Investment        Grade Release, such Direct Owner and each Indirect Owner of such Direct Owner is a        Guarantor and all of the Equity Interests of each such Direct Owner and each Indirect        Owner thereof are pledged in favor of the Administrative Agent for the benefit of the        Secured Parties pursuant to the Pledge Agreement and (ii) following the Investment Grade        Release, the Direct Owner and each Indirect Owner of such Direct Owner is a Guarantor        to the extent required by clause (i) below;                (b)   such Ground Net Lease Asset (and the right to any income therefrom or        proceeds  thereof)  shall  not  be  subject  to  any  Lien  or  Negative  Pledge  or  any  other                                          15 





 






                encumbrance  or  restriction  on  the  ability  of  the  Direct  Owner  thereof  or  any  Indirect  Owner of such Direct Owner to transfer, finance or encumber such Ground Net Lease or  income  therefrom  or  proceeds  thereof  (in  each  case, other  than  Permitted  Property  Encumbrances);         (c)   such Ground Net Lease Asset (and the right to any income therefrom or  proceeds thereof) is not subject to any subordination by contract or otherwise (excluding  any subordination that may be deemed to occur by virtue of the existence of Permitted  Property Encumbrances);         (d)   such Ground Net Lease Asset is not an Other Net Lease and is located in a  state within the United States or in the District of Columbia;         (e)   such Ground Net Lease Asset has a remaining lease term of at least ten years  (inclusive of any unexercised extension options that are available to the ground lessee  thereof);         (f)   no  Material  Event  shall  be  continuing  with  respect  to  such  Ground  Net  Lease Asset;          (g)   such Ground Net Lease Asset generates income to the Direct Owner thereof;          (h)   none  of  the  Equity  Interests  (or  the  right  to  any  income  therefrom  or  proceeds thereof) in the Direct Owner of such Ground Net Lease Asset or in any Indirect  Owner of such Direct Owner, in each case that are owned by a Consolidated Party, are  subject  to  any  Lien  or  Negative  Pledge  or  any  restriction  on  the  ability  to  transfer  or  encumber such Equity Interests or any income therefrom or proceeds thereof (in each case,  other than Permitted Equity Encumbrances);          (i)   neither the Direct Owner of such Ground Net Lease Asset nor any Indirect  Owner of such Direct Owner is a borrower or guarantor of, or otherwise has a payment  obligation in respect of, any Indebtedness other than (i) the Obligations, (ii) following the  Investment Grade Release, (x) Unsecured Debt, so long as such Direct Owner or Indirect  Owner, as applicable, is a Guarantor and all of the Equity Interests in such Person that are  owned by a Consolidated Party are pledged in favor of the Administrative Agent for the  benefit of the Secured Parties pursuant to the Pledge Agreement and (y) Secured Pari  Passu Obligations and (iii) in the case of an Indirect Owner, unsecured guarantees of Non- Recourse Indebtedness of a Subsidiary thereof for which recourse to such Indirect Owner  is contractually limited to liability for Customary Recourse Carveouts;          (j)   such  Ground Net Lease  Asset does  not  have  any  title,  survey,  environmental,  structural,  or  other  defects  that  would materially  impair  the  profitable  operation of such Ground Net Lease Asset and is not subject to any material condemnation  or similar proceeding; and         (k)   neither the Direct Owner of such Ground Net Lease Asset nor any Indirect  Owner of such Direct Owner is subject to any proceedings under any Debtor Relief Law.                                     16 





 






         “Eligible Loan Assets” means the Loan Assets set forth on Schedule 2.18 on the Closing  Date and  each  other  Loan  Asset  offered  by  the  Borrower  and  approved  for  inclusion  as  a  Borrowing Base Asset pursuant to Section 2.18(a), in each case, that (i) has not been excluded  pursuant  to Section  2.18(b) or removed  pursuant  to Section 2.18(c) and  (ii) unless  otherwise  agreed by the Administrative Agent and the Super Majority Lenders, at all times satisfies each of  the following criteria:               (a)   the Direct  Owner of such Loan Asset, and  each Indirect  Owner of such        Direct Owner, is either a Wholly-Owned Subsidiary of the Borrower, a Controlled Joint        Venture or a Controlled Joint Venture Subsidiary and (i) prior to the Investment Grade        Release, such Direct Owner and each Indirect Owner of such Direct Owner is a Guarantor        and all of the Equity Interests of each such Direct Owner and each Indirect Owner thereof        are pledged in favor of the Administrative Agent for the benefit of the Secured Parties        pursuant to the Pledge Agreement and (ii) following the Investment Grade Release, the        Direct Owner and each Indirect Owner of such Direct Owner is a Guarantor to the extent        required by clause (f) below;                (b)   such Loan Asset is denominated in U.S. dollars;               (c)   the  borrower  with  respect  to  such Loan  Asset (each  a  “Loan  Asset        Borrower”)  is  the owner  and ground lessor of  the  Real  Property Asset  subject  to  the        mortgage securing such Loan Asset, is not an Affiliate of the Borrower, and is organized        in a state within the United States or in the District of Columbia;               (d)   such Loan Asset is secured by a first mortgage, deed of trust or analogous        document on a Ground Net Lease (excluding  any  Other  Net  Lease) located in  a state        within the United States or in the District of Columbia with a remaining lease term of at        least ten (10) years (inclusive of any unexercised extension options that are available to        the relevant Loan Asset Borrower);               (e)   such Loan Asset and mortgaged Real Property Asset (and, in each case, the        right to any income therefrom or proceeds thereof) shall not be subject to any Lien or        Negative Pledge or any other encumbrance or restriction on the ability of the Direct Owner        of such Loan Asset or any Indirect Owner of such Direct Owner to transfer, finance or        encumber such Loan Asset or income therefrom or proceeds thereof (in each case, other        than  under  the  documentation  for  the  Loan  Asset  and  the  related  mortgage and  any        Permitted Property Encumbrances);               (f)   neither the Direct Owner of such Loan Asset nor any Indirect Owner of such        Direct Owner is a borrower or guarantor of, or otherwise has a payment obligation in        respect of, any Indebtedness other than (i) the Obligations, (ii) following the Investment        Grade Release, (x) Unsecured Debt, so long as such Direct Owner or Indirect Owner, as        applicable, is a Guarantor and all of the Equity Interests in such Person that are owned by        a Consolidated Party are pledged in favor of the Administrative Agent for the benefit of        the  Secured  Parties  pursuant  to  the  Pledge  Agreement and  (y)  Secured  Pari  Passu        Obligations  and  (iii) in  the  case  of  an  Indirect  Owner,  unsecured  guarantees  of  Non-                                         17 





 






         Recourse Indebtedness of a Subsidiary thereof for which recourse to such Indirect Owner        is contractually limited to liability for Customary Recourse Carveouts;               (g)   such Loan Asset shall not be contractually or structurally junior to or pari        passu with any other loans, or secured by Liens that are junior to or pari passu with the        Liens securing other loans encumbering shared collateral;               (h)   no Material Event shall be continuing with respect to such Loan Asset;               (i)   such Loan Asset generates income to the Direct Owner thereof and has not        been classified as a Non-Performing Loan Asset;                (j)   such Loan Asset does not constitute a construction or development loan and        is fully disbursed;               (k)   the Look-Through LTV of such Loan Asset does not exceed eighty percent        (80%);               (l)   none  of  the  Equity  Interests  (or  the  right  to  any  income  therefrom  or        proceeds thereof) of the Direct Owner of such Loan Asset or any Indirect Owner of such        Direct Owner are subject to any Lien or Negative Pledge or any restriction on the ability        to transfer or encumber such Equity Interests or any income therefrom or proceeds thereof        (other than Permitted Equity Encumbrances); and               (m)   neither the Direct Owner nor any Indirect Owner of such Direct Owner is        subject to any proceedings under any Debtor Relief Law.          “Environmental  Affiliate”  means  any  partnership,  joint  venture,  trust  or  corporation  in  which an Equity Interest is owned directly or indirectly by any Consolidated Party and, as a result  of the ownership of such Equity Interest, a Consolidated Party may become subject to liability for  Environmental Claims against such partnership, joint venture, trust or corporation (or the property  thereof).         “Environmental Claim” means,  with  respect  to  any Person, any liability  (contingent  or  otherwise) or any notice, claim, demand or similar communication (written or oral) by any other  Person  alleging  potential  liability  of  such  Person  for  investigatory  costs,  cleanup  costs,  governmental response costs, natural resources damage, property damages, personal injuries, fines  or penalties arising out  of, based on or resulting, directly or indirectly, from (a) the presence,  release or threatened release into the environment, of any Hazardous Materials at any location,  whether or not owned by such Person, (b) the generation, use, handling, transportation, storage,  treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, or  (d) circumstances forming the basis of any violation of any Environmental Law.         “Environmental Laws” means any and all Federal, state, local, and foreign statutes, laws  (including  common law), judicial  decisions, regulations,  ordinances,  rules,  judgments,  orders,  decrees, plans, injunctions, permits, concessions, grants, franchises, licenses, agreements and other  governmental restrictions relating to pollution and the protection of the environment or of human  health or safety (as affected by exposure to harmful or deleterious substances).                                          18 





 






         “Equity Interests” means, with respect to any Person, all of the shares of capital stock of  (or other ownership or profit interests in) such Person, all of the warrants, options or other rights  for the purchase or acquisition from such Person of shares of capital stock of (or other ownership  or profit interests in) such Person, all of the securities convertible into or exchangeable for shares  of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or  options for the purchase or acquisition from such Person of such shares (or such other interests),  and all of the other ownership or profit interests in such Person (including partnership, member or  trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants,  options, rights or other interests are outstanding on any date of determination.         “Equity Issuance” means any issuance by a Consolidated Party to any Person which is not  a Consolidated Party of (a) shares of its Equity Interests, (b) any shares of its Equity Interests  pursuant to the exercise of options or warrants or (c) any shares of its Equity Interests pursuant to  the conversion of any debt securities to equity.         “ERISA” means the Employee Retirement Income Security Act of 1974.         “ERISA Group” means  the Borrower, any Subsidiary, and all members of a controlled  group of corporations and all trades or businesses (whether or not incorporated) under common  control and all members of an “affiliated service group” which, together with the Borrower, or any  Subsidiary, are treated as a single employer under Section 414 of the Code or Section 4001(b)(1)  of ERISA.  Any former member of the ERISA Group shall continue to be considered a member  of the ERISA Group within the meaning of this definition with respect to the period during which  such entity was a member of the ERISA Group.           “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published  by the Loan Market Association (or any successor person), as in effect from time to time.         “Eurodollar Rate” means:         (a)   for any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum  equal to the London Interbank Offered Rate as administered by ICE Benchmark Administration  (or any other Person that takes over the administration of such rate for U.S. Dollars for a period  equal in length to such Interest Period (“LIBOR”) as published on the applicable Bloomberg screen  page (or such other commercially available source providing such quotations as may be designated  by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two  Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery  on the first day of such Interest Period) with a term equivalent to such Interest Period;          (b)   for any interest calculation with respect to a Base Rate Loan on any date, the rate  per annum equal to LIBOR, at or about 11:00 a.m., London time determined two London Banking  Days prior to such date for U.S. Dollar deposits with a term of one month commencing that day;  and         (c)   if the Eurodollar Rate shall be less than zero, such rate shall be deemed zero for  purposes of this Agreement.                                          19 





 






         “Eurodollar Rate Loan” means a Loan that bears interest at a rate based on clause (a) of  the definition of “Eurodollar Rate.”         “Event of Default” has the meaning specified in Section 8.01.         “Excluded Taxes” means any of the following Taxes imposed on or with respect to any  Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed  on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes,  in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having  its principal office or, in the case of any Lender, its Lending Office located in, the jurisdiction  imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes,  (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for  the  account  of  such  Lender  with  respect  to  an  applicable  interest  in  a  Loan  or  Commitment  pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan  or  Commitment  (other  than  pursuant  to  an  assignment  request  by  the  Borrower  under  Section 10.13) or (ii) such Lender changes its Lending Office, except in each case to the extent  that,  pursuant  to Section 3.01(a)(ii), (a)(iii) or (c), amounts  with  respect  to  such  Taxes  were  payable either to such Lender's assignor immediately before such Lender became a party hereto or  to such Lender immediately before it changed its Lending Office, (c) Taxes attributable to such  Recipient’s failure to comply with Section 3.01(e) and (d) any U.S. federal withholding Taxes  imposed pursuant to FATCA.          “Existing BankNote Property  Mortgage Note”  means the originals  of each outstanding  promissory note evidencing the Assigned BankNote Property Mortgage Debt.         “Existing  Credit  Agreement”  has  the  meaning  specified  in  the  second  introductory  paragraph.         “Existing Note” means a “Note” as defined in the Existing Credit Agreement.         “Facility Fee” has the meaning specified in Section 2.09(a).         “FASB ASC” means the Accounting Standards Codification of the Financial Accounting  Standards Board.         “FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement  (or any amended or successor version that is substantively comparable and not materially more  onerous to comply with), any current or future regulations or official interpretations thereof and  any agreements entered into pursuant to Section 1471 (b) (1) of the Code, any U.S. or non-U.S.  fiscal or regulatory Law, legislation, rules, guidance, notes or practices adopted pursuant to any  intergovernmental agreement entered into in connection with implementation of such Sections of  the Code.         “FDPA” means the Flood Disaster Protection Act of 1973, as it may be amended from time  to time.         “Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average  of the rates on overnight Federal funds transactions with members of the Federal Reserve System,                                          20 





 






   as published by the Federal Reserve Bank of New York on the Business Day next succeeding such  day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall  be such rate on such transactions on the next preceding Business Day as so published on the next  succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business  Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary,  to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions  as determined by the Administrative Agent. If the Federal Funds Rate shall be less than zero, such  rate shall be deemed zero for purposes of this Agreement.         “Fee Letter” means the letter agreement, dated October 10, 2019, among the Borrower, the  Administrative Agent and the Bookrunner.         “FIRREA” means the Financial Institutions Reform, Recovery and Enforcement Act of  1989 (FIRREA), as amended.         “Fitch” means Fitch Ratings, Inc. and any successor thereto.         “Fixed  Charges”  means,  for  the  Consolidated  Group and  for  any  period,  without  duplication,  the  sum  of  (a) Interest  Expense for  such  period, plus (b) all  regularly  scheduled  principal payments made or required to be made with respect to Indebtedness of the Consolidated  Parties during such period, other than any balloon or bullet payments necessary to repay maturing  Indebtedness in full, plus (c) Restricted Payments made with respect to preferred Equity Interests  of any Consolidated Party that are paid in cash during such period to a Person that is not a Wholly- Owned Subsidiary of the Borrower, in each case for such period.         “Foreign Lender” means (a) if the Borrower is a U.S. Person, a Lender that is not a U.S.  Person, and (b) if the Borrower is not a U.S. Person, a Lender that is resident or organized under  the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes.  For  purposes of this definition, the United States, each State thereof and the District of Columbia shall  be deemed to constitute a single jurisdiction.         “FRB” means the Board of Governors of the Federal Reserve System of the United States.         “Fronting Exposure” means, at any time there is a Defaulting Lender, with respect to the  L/C Issuers, such Defaulting Lender’s Applicable Percentage of the outstanding L/C Obligations  other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been  reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.         “Fund” means  any Person (other than a natural  Person) that is  (or will be) engaged in  making, purchasing, holding or otherwise investing in commercial loans and similar extensions of  credit in the ordinary course of its activities.         “GAAP” means generally accepted accounting principles in the United States set forth in  the opinions and pronouncements of the Accounting Principles Board and the American Institute  of Certified Public Accountants and statements and pronouncements of the Financial Accounting  Standards Board or such other principles  as  may be approved by a significant  segment of the  accounting profession in the United States, that are applicable to the circumstances as of the date  of  determination,  consistently  applied; provided, however,  that  revenues,  expenses,  gains  and                                          21 





 






   losses that are included in results of discontinued operations because of the application of SFAS  No. 144 will be treated as revenues, expenses, gains and losses from continuing operations.         “Governmental Authority” means the government of the United States or any other nation,  or  of  any  political  subdivision  thereof,  whether  state  or  local,  and  any  agency,  authority,  instrumentality,  regulatory  body,  court,  central  bank  or  other  entity  exercising  executive,  legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to  government (including any supra-national bodies such as the European Union or the European  Central  Bank),  any  securities  exchange  and  any  self-regulatory  organization  (including  the  National Association of Insurance Commissioners).         “Grantor” means the applicable Loan Party that is party to a Collateral Document.         “Ground Net Lease” means a Real Property Asset consisting of (i) a ground net lease of  the land underlying a commercial real estate project that is net leased by the fee owner of the land  to the owners/operators of the real estate projects built or to be built thereon that is a “triple net”  lease, such  that  the  tenant  is  responsible  for  development  costs,  capital  expenditures  and  all  property operating expense, including maintenance, real estate taxes and insurance, containing  contractual base rent increases (either at a specified percentage or CPI-based, or both) or (ii) an  Other Net Lease.         “Ground Net Lease  Asset”  means  a  Ground Net Lease Wholly-Owned directly  by  a  Wholly-Owned Domestic Subsidiary, a Controlled Joint Venture or a Controlled Joint Venture  Subsidiary as ground lessor.         “Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such  Person  guaranteeing  or  having  the  economic  effect  of  guaranteeing  any  Indebtedness  or  other  obligation  payable  or  performable  by  another  Person  (the  “primary  obligor”)  in  any  manner,  whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to  purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or  other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring  the obligee in respect of such Indebtedness or other obligation of the payment or performance of  such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other  financial statement condition or liquidity or level of income or cash flow of the primary obligor so  as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into  for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other  obligation of the payment or performance thereof or to protect such obligee against loss in respect  thereof  (in  whole  or  in  part),  or  (b) any  Lien  on  any  assets  of  such  Person  securing  any  Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other  obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such  Indebtedness to obtain any such Lien).  The amount of any Guarantee shall be deemed to be an  amount equal to the stated or determinable amount of the related primary obligation, or portion  thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum  reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good  faith.  The term “Guarantee” as a verb has a corresponding meaning.                                          22 





 






         “Guarantors” means, collectively, the Operating Partnership, SIGOP, the CARET Entities  and each Subsidiary Guarantor.         “Guaranty” means the guaranty of the Obligations by the Guarantors pursuant to Article XI  hereof.         “Hazardous Materials” means (i) all explosive or radioactive substances or wastes and all  hazardous  or  toxic  substances,  wastes  or  other  pollutants,  including  petroleum  or  petroleum  distillates,  asbestos  or  asbestos-containing  materials,  polychlorinated  biphenyls,  radon  gas,  infectious, medical wastes, mold, mildew and (ii) all other substances or wastes of any nature  regulated pursuant to, or that could give rise to liability under, any Environmental Law.         “Improvements” means,  with  respect  to  any Real Property  Asset,  all onsite and offsite  improvements thereto, together with all fixtures, tenant improvements, and appurtenances now or  later to be located on or in the real property and/or in such improvements.         “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 reimbursement obligations of such Person arising        under letters of credit (including standby and commercial), bankers’ acceptances, bank        guaranties, surety bonds and similar instruments;               (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 trade accounts payable in the ordinary course of business);               (e)   indebtedness  (excluding  prepaid  interest  thereon)  secured  by  a  Lien  on        property owned or being purchased by such Person (including indebtedness arising under        conditional sales or other title retention agreements), whether or not such indebtedness        shall have been assumed by such Person or is limited in recourse;               (f)   Capital Leases and Synthetic Lease Obligations;               (g)   all  obligations  of such  Person  to  purchase,  redeem,  retire,  defease  or        otherwise make any payment in respect of any Equity Interest in such Person or any other        Person, valued, in the case of a redeemable preferred interest, at the greater of its voluntary        or involuntary liquidation preference plus accrued and unpaid dividends; and               (h)   all Guarantees of such Person in respect of any of the foregoing (excluding        guarantees of Non-Recourse Indebtedness for which recourse is limited to liability for        Customary Recourse Carveouts), and all other Contingent Obligations.                                          23 





 






         For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of  any partnership or joint venture (other than a joint venture that is itself a corporation or limited  liability company) in which such Person is a general partner or a joint venturer (without duplication  of  any  other  Indebtedness,  including  intercompany  Indebtedness),  unless  such  Indebtedness  is  expressly  made  non-recourse  to  such  Person,  other  than  with  respect  to  Customary  Recourse  Carveouts.   The  amount  of  any  net  obligation  under  any  Swap  Contract  on  any  date  shall  be  deemed to be an amount equal to the Swap Termination Value thereof as of such date less any  portion of such Swap Termination Value that is secured by Cash Equivalents.  The amount of any  Capital Lease or Synthetic Lease Obligation as of any date shall be deemed to be the amount of  Attributable Indebtedness in respect thereof as of such date.         “Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with  respect to any payment made by or on account of any obligation of any Loan Party under any Loan  Document and (b) to the extent not otherwise described in (a), Other Taxes.         “Indemnitee” has the meaning specified in Section 10.04(b).         “Indirect Owner” means each Subsidiary of CARET that directly or indirectly owns an  Equity Interest in the Direct Owner of any Borrowing Base Asset.         “Individual Borrowing Base Amount” means, with respect to any Borrowing Base Asset  on any date, the lesser of:               (a)   the amount obtained by dividing (i) the Net Operating Income attributable        to such Borrowing Base Asset for (subject to the last sentence of this definition) the period        of four fiscal quarters ended on such date (if such date is the last day of a fiscal quarter)        or the then most recently ended period of four full fiscal quarters (if such date is not the        last day of a fiscal quarter), by (ii) 5.0% (or, with respect to any Borrowing Base Asset,        such lower percentage as the Administrative Agent and the Required Lenders may agree        in writing); and               (b)   the amount obtained by multiplying (i) in the case of an Eligible Ground        Net Lease  Asset,  the  Appraised  Value  of the  underlying  Real  Property  Asset,  by  the        Applicable Advance Rate and (ii) in the case of an Eligible Loan Asset, the Loan Asset        Value of such Eligible Loan Asset, by the Applicable Advance Rate;   provided,  that  the  Individual  Borrowing  Base  Amount  of  any  Eligible  Loan  Asset  shall  be  recalculated upon a material amendment or extension of the underlying loan of such Eligible Loan  Asset, or the execution of a new loan with respect thereto and reflected in a subsequent Borrowing  Base Certificate, in each case delivered pursuant to Section 6.02(b).     For purposes of determining the Individual Borrowing Base Amount as of any date with respect  to any Borrowing Base Asset, the Net Operating Income attributable to a Borrowing Base Asset  that has been owned by a Consolidated Party (A) for less than one full fiscal quarter as of such  date shall (1) with respect to any Borrowing Base Asset other than a Non- Stabilized Asset, be  agreed upon mutually by the Administrative Agent and Borrower (based upon the actual cash flow  expected over the next four full fiscal quarters) and (2) with respect to any Non-Stabilized Asset,  be the actual Net Operating Income thereof for the period that it is owned by a Consolidated Party                                          24 





 






   annualized in a manner reasonably acceptable to the Administrative Agent, (B) for only one full  fiscal quarter as of such date shall be the Net Operating Income attributable to such Borrowing  Base Asset for such fiscal quarter multiplied by 4, (C) for only two full fiscal quarters as of such  date shall be the Net Operating Income attributable to such Borrowing Base Asset for such two  fiscal quarter period multiplied by 2, and (D) for only three full fiscal quarters shall be the Net  Operating Income attributable to such Borrowing Base Asset for such three fiscal quarter period  multiplied by 4/3.   For purposes of determining the Individual Borrowing Base Amount as of any date with respect  to the Borrowing Base Asset commonly referred to as 1325 Wilson Boulevard, Arlington, VA, the  percentage in clause (a)(ii) of the definition of “Individual  Borrowing  Base Amount” shall be  reduced from 5.0% to 4.5%.         “Information” has the meaning specified in Section 10.07.         “Initial Maturity Date” has the meaning set forth in the definition of “Maturity Date.”         “Insolvency” means with respect to any Multiemployer Plan, the condition that such plan  is insolvent within the meaning of Section 4245 of ERISA.         “Insurance Proceeds” means all insurance proceeds, damages, claims and rights of action  and the right thereto under any insurance policies relating to the Collateral.          “Intangible Assets” means assets that are considered to be intangible assets under GAAP,  excluding lease intangibles but including customer lists, goodwill, computer software, copyrights,  trade names, trademarks, patents, franchises, licenses, unamortized deferred charges, unamortized  debt discount and capitalized research and development costs.         “Intercreditor  Agreements”  has  the  meaning  specified  in  the  definition  of  “Pari  Passu  Obligations.”         “Interest Expense” means as of any date, for the period of four fiscal quarters ended on  such date (if such date is the last day of a fiscal quarter) or for the then most recently ended period  of four full fiscal quarters (if such date is not the last day of a fiscal quarter) the total cash interest  expense of the Consolidated Group in respect of Total Unsecured Debt plus Secured Pari Passu  Obligations plus Indebtedness arising under the Loan Documents for such period determined in  accordance with GAAP.         “Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan or a LIBOR  Floating Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity  Date; provided, however, that if any Interest Period for a Eurodollar Rate Loan exceeds three  months, the respective dates that fall every three months after the beginning of such Interest Period  shall also be Interest Payment Dates; and (b) as to any Base Rate Loan or any LIBOR Floating  Rate Loan, the last Business Day of each March, June, September and December and the Maturity  Date.         “Interest Period” means as to each Eurodollar Rate Loan, the period commencing on the  date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate                                          25 





 






   Loan and ending on the date one, two, three or six months thereafter (in each case, subject to  availability), as selected by the Borrower in its Committed Loan Notice, or such other period that  is twelve months or less requested by the Borrower and consented to by all the Lenders; provided  that:               (i)   any Interest Period that would otherwise end on a day that is not a Business        Day  shall  be  extended  to  the  next  succeeding  Business  Day  unless,  in  the  case  of  a        Eurodollar Rate Loan, such Business Day falls in another calendar month, in which case        such Interest Period shall end on the next preceding Business Day;               (ii)  any Interest Period pertaining to a Eurodollar Rate Loan that begins on the        last  Business  Day of a  calendar month (or on  a day  for which there is  no numerically        corresponding day in the calendar month at the end of such Interest Period) shall end on        the last Business Day of the calendar month at the end of such Interest Period; and               (iii) no Interest Period shall extend beyond the Maturity Date.         “Investment” means, as to any Person, (a) the purchase or other acquisition of capital stock  or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or  assumption of debt of, or purchase or other acquisition of any other debt or equity participation or  interest in, another Person, including any partnership or joint venture interest in such other Person  and any arrangement pursuant to which the investor guaranties Indebtedness of such other Person,  (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of  another Person that constitute a business unit or (d) the purchase, acquisition or other investment  in any real property or real property-related assets (including mortgage loans and other real estate- related debt investments, investments in land holdings, and costs to construct real property assets  under development).  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 Affiliate” means any Person or Subsidiary, whose financial results are not  consolidated under GAAP with the financial results of the Borrower on the consolidated financial  statements of the Borrower.         “Investment Grade Pricing Effective Date” means the first Business Day following the date  on which (a) the Investment Grade Ratings Criteria have been satisfied and (b) the Borrower has  delivered to the Administrative Agent a certificate signed by a Responsible Officer (i) certifying  that the Investment Grade Ratings Criteria have been satisfied (which certification shall also set  forth the Debt Rating(s) as in effect, if any, from each of S&P, Moody’s and Fitch as of such date)  and (ii) notifying the Administrative Agent that the Borrower has irrevocably elected to have the  Applicable Rate determined based on the Borrower’s Debt Rating(s).         “Investment Grade Ratings Criteria” means receipt by the Borrower of a Debt Rating of  BBB- or better from S&P, Baa3 or better from Moody’s or BBB- or better from Fitch; provided  that in event that the Borrower has a Debt Rating from Fitch of BBB- or better it must also have                                           26 





 






   a Debt Rating of BBB-/Baa3 or better from S&P or Moody’s in order to satisfy the Investment  Grade Ratings Criteria.          “Investment Grade Release” has the meaning specified in Section 11.12.         “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 an L/C Issuer and  the Borrower (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  Lender,  such  Lender’s  funding  of  its  participation in any L/C Borrowing in accordance with its Applicable Percentage.         “L/C Borrowing” means an extension of credit resulting from a drawing under any Letter  of Credit which has not been reimbursed on the date when made or refinanced as a Committed  Loan.         “L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or  extension of the expiry date thereof, or the increase of the amount thereof.         “L/C Issuer” means, collectively, (i) Bank of America, (ii) JPMorgan Chase Bank, N.A.,  and (iii) Barclays Bank PLC, in each case in its capacity as issuer of Letters of Credit hereunder,  or any successor issuer of Letters of Credit hereunder.         “L/C Obligations” means, as at any date of determination, the aggregate amount available  to  be  drawn  under  all  outstanding  Letters  of  Credit  plus  the  aggregate  of  all  Unreimbursed  Amounts, including all L/C Borrowings.  For purposes of computing the amount available to be  drawn under any  Letter  of Credit, the amount of such  Letter of Credit shall be determined in  accordance with Section 1.06.  For all purposes of this Agreement, if on any date of determination  a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason  of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding”  in the amount so remaining available to be drawn.         “Lender” has the meaning specified in the introductory paragraph hereto.                                          27 





 






         “Lending Office” means, as to any Lender, the office or offices of such Lender described  as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender  may  from  time  to  time  notify  the  Borrower  and  the  Administrative  Agent,  which  office  may  include any Affiliate of such Lender or any domestic or foreign branch of such Lender or such  Affiliate.  Unless  the  context  otherwise  requires  each reference  to  a  Lender  shall  include  its  applicable Lending Office.         “Letter of Credit” means any standby letter of credit issued hereunder providing for the  payment of cash upon the honoring of a presentation thereunder.         “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 seven days prior to the Maturity  Date then in effect (or, if such day is not a Business Day, the next preceding Business Day).         “Letter of Credit Fee” has the meaning specified in Section 2.03(h).         “Letter of Credit Sublimit” means an amount equal to $20,000,000.  The Letter of Credit  Sublimit is part of, and not in addition to, the Aggregate Commitments.         “LIBOR” has the meaning specified in the definition of “Eurodollar Rate.”         “LIBOR Daily Floating Rate” means, for any day, a fluctuating rate of interest per annum  equal  to  LIBOR  as  published  on  the  applicable  Bloomberg  screen  page  (or  such  other  commercially available source providing such quotations as may be designated by Administrative  Agent from time to time), at approximately 11:00 a.m., London time, two (2) London Banking  Days prior to such day, for U.S. Dollar deposits with a term of one (1) month commencing that  day; provided that if the LIBOR Daily Floating Rate shall be less than zero, such rate shall be  deemed zero.         “LIBOR Floating Rate Loan” means a Loan that bears interest at a rate based on the LIBOR  Daily Floating Rate.         “LIBOR Successor Rate” has the meaning specified in Section 3.03(c).         “LIBOR  Screen  Rate”  means  the  LIBOR  quote  on  the  applicable  screen  page  the  Administrative  Agent  designates  to  determine  LIBOR  (or  such  other  commercially  available  source providing such quotations as may be designated by the Administrative Agent from time to  time).         “LIBOR  Successor  Rate  Conforming  Changes”  means,  with  respect  to  any  proposed  LIBOR Successor Rate, any conforming changes to (a) the definitions of Base Rate, Interest Period  and/or Applicable Rate, (b) timing and frequency of determining rates and making payments of  interest and (c) other technical, administrative or operational matters as may be appropriate, in the  discretion  of  the  Administrative Agent, in  consultation  with  the  Borrower, to (i) reflect  the  adoption and implementation of such LIBOR Successor Rate and (ii) permit the administration  thereof by the Administrative Agent in a manner substantially consistent with market practice (or,                                          28 





 






   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  LIBOR  Successor  Rate exists,  in  such  other  manner  of  administration  as  the  Administrative  Agent  determines, in  consultation  with  the Borrower, is  reasonably necessary in connection with  the  administration of this Agreement).          “Lien”  means  any  mortgage,  pledge,  hypothecation,  assignment,  deposit  arrangement,  encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or  preferential  arrangement  in  the  nature  of  a  security  interest  of  any  kind  or  nature  whatsoever  (including any conditional sale or other title retention agreement, any easement, right of way or  other encumbrance on title to real property, and any financing lease having substantially the same  economic effect as any of the foregoing).         “Loan” means an extension of credit by a Lender to the Borrower under Article II in the  form of a Committed Loan or a portion of the Special Advance.         “Loan  Asset  Borrower”  has  the  meaning  specified  in  the  definition  of  “Eligible  Loan  Assets.”         “Loan Asset Value” means, with respect to any Loan Asset, the face amount of such Loan  Asset at the time of its origination by a Consolidated Party, minus the sum of (a) the aggregate  amount of all payments on account  of principal on such  Loan Asset  (whether by virtue of  an  amortization payment, a prepayment, a release of collateral, an enforcement or otherwise) received  by any Consolidated Party and (b) the amount, if any, by which the Borrower has reduced the  value of such Loan Asset on its books and records subsequent to the origination thereof; provided  that at any time the Appraised Value of the Real Property Asset underlying such Loan Asset is  zero ($0) then the Loan Asset Value of such Loan Asset shall also be zero ($0).         “Loan Assets” means commercial mortgage loans originated or acquired by, and Wholly- Owned, as mortgagee, by a Wholly-Owned Domestic Subsidiary, a Controlled Joint Venture or a  Controlled Joint Venture Subsidiary.         “Loan  Documents”  means  this  Agreement (including  the  Guaranty),  each  Note, the  BankNote  Property  Mortgage  Note, each  Issuer  Document, each  Perfection  Certificate,  each  Perfection Certificate Supplement, any agreement creating or perfecting rights in Cash Collateral  pursuant  to  the  provisions  of Section 2.16 of this  Agreement,  the  Fee  Letter, the  Intercreditor  Agreements (if any) and the Collateral Documents.         “Loan Parties” collectively, (a) the Borrower, (b) the Operating Partnership, (c) SIGOP,  (d) the CARET Entities, (e) each Grantor, (f) at all times prior to the Investment Grade Release,  each Subsidiary Guarantor and (g) upon and at all times following the Investment Grade Release,  the Direct Owner of a Borrowing Base Asset and each Indirect Owner of such Direct Owner that  is  a borrower  or  a  guarantor  of,  or  otherwise  incurs  a  payment  obligation  in  respect  of,  any  Unsecured Debt or Secured Pari Passu Obligations.         “Loan Party Pro Rata Share” means, with respect to (i) any Wholly-Owned Subsidiary of  the Borrower, 100% and (ii) with respect to any other Subsidiary of the Borrower, the percentage  interest held by the Borrower, directly or indirectly, in such Controlled Joint Venture determined                                          29 





 






   by calculating the percentage of the Equity Interests of such Controlled Joint Venture owned by  the Borrower and/or one or more Consolidated Parties.         “Look-Through LTV” means, as of any date of determination with respect to any Loan  Asset, the ratio (expressed as a percentage) of (a) the aggregate outstanding principal amount of  such  Loan  Asset (including  all  capitalized  interest) on  such  date  of  determination to  (b) the  Appraised Value of the underlying mortgaged Real Property Asset.         “London Banking Day” means any day on which dealings in Dollar deposits are conducted  by and between banks in the London interbank eurodollar market.         “Management Agreement” means the Management Agreement, dated as of June 27, 2017,  by and among the Borrower, the Operating Partnership, SFTY Manager LLC and iStar Inc., as the  same may be amended from time to time.         “Material Adverse Effect” means an effect resulting from any circumstance or event or  series of circumstances or events, of whatever nature (but excluding general economic conditions),  which does or would reasonably be expected to, materially and adversely impair (a) the ability of  the Loan Parties,  taken  as  a  whole,  to  perform  their  respective  obligations under  the  Loan  Documents, or (b) the ability of the Administrative Agent or the Lenders to enforce the Loan  Documents (other than as a result of circumstances related solely to the Administrative Agent or  such Lender).         “Material Event”  means, (a)  as  to  any  Ground Net Lease  Asset,  (i)  the  lessee  of  such  Ground Net Lease Asset becomes a debtor in a proceeding under any Debtor Relief Law and such  lessee is not continuing to perform its obligation to pay rent pursuant to the applicable ground net  lease documentation, (ii) the lessee of such Ground Net Lease Asset defaults on its obligation to  pay rent pursuant to the applicable ground net lease documentation for a period of more than ninety  (90) days (exclusive of any period of grace with respect to such payment), (iii) any event resulting  from material physical damage to the Improvements related to such Ground Net Lease Asset in  respect of which the lessee of such Ground Net Lease Asset has no obligation to and otherwise  elects not to, restore and repair such physical damage or (iv) any material write-down or reserve  established by any Consolidated Party in respect of such Ground Net Lease Asset in accordance  with GAAP, and (b) as to any Loan Asset, (i) the Loan Asset Borrower becomes a debtor in a  proceeding under any Debtor Relief Law and is not continuing to perform its obligation to pay  principal and interest pursuant to the applicable loan documentation, (ii) the Loan Asset Borrower  defaults on its obligation to make any payment pursuant to the applicable loan documentation for  a period of more than ninety (90) days (exclusive of any period of grace with respect to such  payment), (iii) any event resulting from material physical damage to the Improvements related to  the Real Property Asset underlying such Loan Asset in respect of which the mortgagor of such  Real  Property Asset  has  no  obligation  to  and  otherwise  elects  not  to,  restore  and  repair  such  physical  damage  or  (iv)  any  material  write-down  or  reserve  in  respect  of  such  Loan  Asset  in  accordance with GAAP.         “Maturity  Date”  means November 6,  2022 (the  “Initial  Maturity  Date”) subject  to  extension in accordance with Section 2.14; provided, however, that, in each case, if such date is  not a Business Day, the Maturity Date shall be the immediately preceding Business Day.                                          30 





 






         “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 100% of the Fronting Exposure  of the 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 2.16(a)(i), (a)(ii) or (a)(iii),  an  amount  equal  to 100%  of  the  Outstanding Amount  of all  L/C Obligations,  and (iii) otherwise, an amount  determined by the  Administrative Agent and the applicable L/C Issuer(s) in their sole discretion.         “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.         “Mortgage”  means  a  mortgage,  deed  of  trust,  deed  to  secured  debt  or  similar  security  interest in respect of a Real Property Asset.         “Multiemployer  Plan” means  at  any  time  an  employee  pension  benefit  plan  within  the  meaning of Section 4001(a)(3) of ERISA which is subject to Title IV of ERISA to which any  member of the ERISA Group is then making or accruing an obligation to make contributions or as  to which the Borrower could have any obligation or liability.         “Negative Pledge” means, a provision of any agreement (other than any Loan Document)  that prohibits the creation of any Lien on any assets of a Person to secure the Obligations; provided,  however, that (i) an agreement that 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,  (ii) an agreement relating to  the sale of  a Property that limits  the creation of any  Lien  pending the closing of the sale thereof and (iii) Permitted Pari Passu Provisions, in each case shall  not constitute a “Negative Pledge.”         “Net  Operating  Income”  means,  for  any  period,  the  Loan  Party  Pro  Rata  Share  of  the  following:                (a)   with respect to any Eligible Ground Net Lease Asset, income derived by the  Direct  Owner  thereof  from  the  operation  of  such  Borrowing  Base  Asset  as  determined  in  accordance with  GAAP, minus the amount of all expenses  (as  determined in  accordance with  GAAP) incurred in connection with and directly attributable to the ownership and operation by the  Direct Owner of such Borrowing Base Asset for such period (including cash management fees in  an amount equal to the greater of (x) the actual amount of cash management fees paid by the Direct  Owner in respect of such Eligible Ground Net Lease Asset and (y) an amount equal to 1.00% of  the rent (including base rent and Percentage Rent), and amounts accrued by any Consolidated Party  for the payment of real estate taxes and insurance premiums, but excluding (1) any general and  administrative expenses, and acquisition costs, related to the operation of the Borrower and its  Subsidiaries, (2) any interest expense or other debt service charges and (3) any non-cash charges  such as depreciation or amortization of financing costs); and               (b)   with  respect  to  any  Eligible  Loan  Asset,  the  aggregate  amount  of  cash  interest income actually received by the Direct Owner thereof during such period in respect of  such Eligible Loan Asset.                                          31 





 






         “Net Present Value” means, as to a specified or ascertainable Dollar amount, the present  value, as of the date of calculation of any such amount using a discount rate equal to the Base Rate  in effect as of the date of such calculation.         “Net Proceeds” means with respect to any Equity Issuance, the aggregate amount of all  cash and the fair market value of all other property (other than securities of such Person being  converted or exchanged in connection with any such Equity Issuance) received by such Person in  respect  of  such  Equity  Issuance  net  of  investment  banking  fees,  legal  fees,  accountants’  fees,  underwriting discounts and commissions and other customary fees and expenses actually incurred  by such Person in connection with such Equity Issuance other than any such amounts paid or  payable to an Affiliate of the Borrower.  Notwithstanding the foregoing, Net Proceeds will not  include net proceeds from any Equity Issuance to the extent used to redeem all or part of an existing  class of Equity Interest of any Consolidated Party.         “New Lender Joinder Agreement” has the meaning specified in Section 2.15(c).         “Nominated Asset” has the meaning specified in Section 2.18(a).         “Nominated  Asset  Notice”  means  a request  by  the  Borrower  for  the  inclusion  of  a  Nominated Asset, which shall be substantially in the form of Exhibit J or such other form as may  be approved by the Administrative Agent, appropriately completed and signed by a Responsible  Officer.          “Non-Consenting Lender” means any Lender that does not approve any consent, waiver or  amendment that (i) requires the approval of all Lenders or all affected Lenders in accordance with  the terms of Section 10.01 and (ii) 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-Performing Loan Assets” means any Loan Asset classified as non-performing by a  Consolidated Party in accordance with internal procedures, consistent with past practice.         “Non-Recourse  Indebtedness”  means  Indebtedness  with  respect  to which  recourse  for  payment is limited to (i) specific assets related to a particular Real Property Asset or group of Real  Property Assets encumbered by a Lien securing such Indebtedness or (ii) any Subsidiary (provided  that if a Subsidiary is a partnership, there is no recourse to the Borrower as a general partner of  such partnership); provided that if any portion of Indebtedness is so limited, then such portion shall  constitute  Non-Recourse  Indebtedness  and  only  the  remainder  of  such  Indebtedness  shall  constitute Recourse Debt; provided, further, however, that personal recourse of a Consolidated  Party for  any  such  Indebtedness  for  fraud,  misrepresentation,  misapplication  of  cash,  waste,  bankruptcy, unpermitted transfers, Environmental Claims and liabilities and other circumstances  customarily  excluded  by  institutional  lenders  from  exculpation  provisions  and/or  included  in  separate  indemnification  agreements  in  non-recourse  financing  of  real  estate (collectively,  “Customary  Recourse  Carveouts”) shall  not,  by itself,  prevent  such  Indebtedness  from  being  characterized as Non-Recourse Indebtedness.                                          32 





 






         “Non-Stabilized Asset” means, as of any date, an Eligible Ground Lease Asset with respect  to  unimproved  land  or  property  under  ground-up  development  by  a  ground  lessee  (excluding  construction  activities  that  are  not  ground-up  constructions,  including,  without  limitation,  restoration and repair of casualty loss, tenant improvements and other repairs, renovations and  maintenance); for the avoidance of doubt, any such Eligible Ground Lease Asset shall constitute a  Non-Stabilized Asset  until: (i) all development  and related construction activities with  respect  thereto  are  substantially  complete,  and  (ii)  the  applicable  Direct  Owner  has  received  a  final  certificate  of  occupancy  or  equivalent  certification  allowing  legal  occupancy  thereof  for  its  intended purpose.         “Note” means a promissory note made by the Borrower in favor of a Lender evidencing  Loans made by such Lender, substantially in the form of Exhibit C.         “Notice of Loan Prepayment” means a notice of prepayment with respect to a Loan, which  shall  be  substantially  in  the  form  of Exhibit  I 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.          “Obligations”  means  all  advances  to,  and  debts,  liabilities,  obligations,  covenants  and  duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan  or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute  or contingent, due or to become due, now existing or hereafter arising and including interest and  fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of  any  proceeding  under  any  Debtor  Relief  Laws  naming  such  Person  as  the  debtor  in  such  proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.         “OFAC” means the Office of Foreign Assets Control of the United States Department of  the Treasury.         “Operating Partnership” has the meaning specified in the introductory paragraph hereto.         “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 or limited liability  company 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                                          33 





 






   interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or  sold or assigned an interest in any Loan or Loan Document).         “Other  Net  Lease”  means  any  lease (other  than  a  ground  net  lease) that  the  Borrower  determines reasonably and in good faith has characteristics of a ground net lease, including length  of lease term, value relative to the combined value of the land, buildings and improvements (in  each case, whether owned by the ground lessee or ground lessor) relating to a commercial property  as if there were no ground net lease on the land at the property (as such value is determined by us  using one or more valuation methodologies that the Borrower determines reasonably and in good  faith to be appropriate), periodic rent escalations or percentage rent participations and "triple net"  terms.         “Other  Taxes”  means  all  present  or  future  stamp,  court  or  documentary,  intangible,  recording, filing or similar Taxes that arise from any payment made under, from the execution,  delivery, performance, enforcement or registration of, from the receipt or perfection of a security  interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are  Other Connection Taxes imposed with respect to an assignment (other than an assignment made  pursuant to Section 3.06).         “Outstanding Amount”  means  (i) with  respect  to  Committed  Loans and the Special  Advance on any date, the aggregate outstanding principal amount thereof after giving effect to any  borrowings and prepayments or repayments of Committed Loans and the Special Advance, as the  case may be, occurring on such date; and (ii) with respect to any L/C Obligations on any date, the  amount of such  L/C Obligations  on such date after giving effect  to  any  L/C Credit Extension  occurring on such date and any other changes in the aggregate amount of the L/C Obligations as  of  such  date,  including  as  a  result  of  any  reimbursements  by  the  Borrower  of  Unreimbursed  Amounts.         “Pari Passu  Obligations” means (a) Unsecured Debt (exclusive of  Indebtedness  arising  under this Agreement) of a Loan Party owing to a Person that is not a Consolidated Party or a  Person Controlled (directly or indirectly) by the Borrower and (b) Secured Debt of a Loan Party  owing to a Person that is not a Consolidated Party or a Person Controlled (directly or indirectly)  by  the  Borrower, provided that  (x)  the  assets  and  property  of  the  Loan  Parties  securing  such  Secured Debt shall not include any asset or property of a Loan Party that is not also subject to a  perfected Lien in favor of the Administrative Agent, for the benefit of the Secured Parties, (y) the  Liens  securing  such Secured  Debt shall  be  pari  passu  or  junior  to  the  Liens  granted  to  the  Administrative Agent, for the benefit of the Secured Parties, and (z) the lender(s) providing such  Secured  Debt (or  an  agent  or  trustee on  their  behalf)  shall  have  entered  into  intercreditor  arrangements with the Administrative Agent setting forth the relative rights of such lender(s) and  the  Administrative  Agent  in  respect  of  the  collateral  securing  such Secured  Debt,  which  intercreditor arrangements shall be reasonably satisfactory to the Administrative Agent and the  Borrower (any  and  all  agreements  and  documents  evidencing  such  intercreditor  arrangements  being referred to herein as “Intercreditor Agreements”).          “Participant” has the meaning specified in Section 10.06(d).         “Participant Register” has the meaning specified in Section 10.06(d).                                          34 





 






         “PATRIOT Act” means Title III of the Uniting and Strengthening America by Providing  Appropriate Tools Required to  Intercept and Obstruct Terrorism Act (USA PATRIOT Act) of  2001 (Title III of Pub. L. 107-56).         “PBGC” means the Pension Benefit Guaranty Corporation or any entity succeeding to any  or all of its functions under ERISA.         “Percentage  Rent”  means,  as  to  any  Ground Net Lease,  such  rent  that  is  payable with  respect thereto to a Loan Party based on a percentage of gross sales.         “Perfection Certificate” shall mean a certificate in the form of Exhibit F-1 or any other  form approved by the Administrative Agent, as the same shall be supplemented from time to time  by a Perfection Certificate Supplement or otherwise.         “Perfection Certificate Supplement” shall mean a certificate supplement in the form of  Exhibit F-2 or any other form approved by the Administrative Agent.         “Permitted Equity Encumbrances” means:               (a)   Liens and Negative Pledges pursuant to any Loan Document;               (b)   Liens for taxes not yet due or Liens for taxes which are being contested in        good  faith  and  by  appropriate  proceedings  diligently  conducted,  and  which  adequate        reserves  with  respect  thereto  are  maintained  on  the  books  of  the  applicable  Person  in        accordance with GAAP; and                (c)   Permitted Judgment Liens;               (d)   Permitted Pari Passu Provisions.         “Permitted Judgment Liens” means Liens securing judgments for the payment of money  not constituting an Event of Default solely to the extent the aggregate amount of the judgments  (other  than  judgments  that  are  being  contested  in  good  faith  and  by  appropriate  actions  or  proceedings diligently conducted (which actions or proceedings have the effect of preventing the  forfeiture  or sale  of  the  property  of  assets  subject  to  any  such  Lien))  secured  by  such  Liens  encumbering (x) Borrowing Base Assets (and the proceeds of and income therefrom) and/or (y) the  Equity Interests of the Direct Owners of Borrowing Base Assets (and the proceeds of and income  therefrom) and Indirect Owners of such Direct Owners, does not exceed $10,000,000.         “Permitted Pari Passu Provisions” means provisions that are contained in documentation  evidencing or governing Pari Passu Obligations which provisions are the result of (i) limitations  on the ability of a Consolidated Party to make Restricted Payments or transfer property to the  Borrower or a Guarantor which limitations are not, taken as a whole, materially more restrictive  than those contained in the Loan Documents, (ii) limitations on the creation of any Lien on any  assets of a Person that are not, taken as a whole, materially more restrictive than those contained  in the Loan Documents or (iii) any requirement that Pari Passu Obligations be secured on an “equal  and ratable basis” to the extent that Indebtedness arising under the Loan Documents is secured or  (iv) an agreement that conditions a Person’s ability to encumber its assets upon the maintenance                                          35 





 






   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, which  conditions are not, taken as a whole, materially more restrictive than those contained in the Loan  Documents.          “Permitted Property Encumbrances” means:               (a)   Liens  for  Taxes,  assessments  or  other  governmental  charges  not  yet        delinquent  or  which  are  being  contested  in  good  faith  by  appropriate  proceedings        promptly instituted and diligently conducted in accordance with the terms hereof;               (b)   statutory  liens  of  carriers,  warehousemen,  mechanics,  materialmen  and        other similar liens imposed by law, which are incurred in the ordinary course of business        for sums not more than ninety (90) days delinquent or which are being contested in good        faith in accordance with the terms hereof;               (c)   utility deposits and other deposits or pledges to secure the performance of        bids,  trade  contracts  (other  than  for  borrowed  money),  leases,  purchase  contracts,        construction  contracts,  governmental  contracts,  statutory  obligations,  surety  bonds,        performance bonds and other obligations of a like nature incurred in the ordinary course        of business;               (d)   easements  (including  reciprocal  easement  agreements  and  utility        agreements),  rights-of-way,  zoning  restrictions,  other  covenants,  reservations,        encroachments,  leases,  licenses  or  similar  charges  or  encumbrances  (whether  or  not        recorded) and all other items listed on any Schedule B to the Borrower’s owner’s title        insurance policies, except in connection with any Indebtedness, for any of the Borrower’s        Real Property Assets, so long as the foregoing do not interfere in any material respect with        the use or ordinary conduct of the business of the Borrower and do not diminish in any        material respect the value of the property to which such Lien is attached;               (e)   (i) Liens and judgments which have been bonded (and the Lien on any cash        or securities serving as security for such bond) or released of record within forty-five (45)        days after the date such Lien or judgment is entered or filed against a Loan Party, or (ii)        Liens which are being contested in good faith by appropriate proceedings for review and        in respect of which there shall have been secured a subsisting stay of execution pending        such appeal or proceedings and as to which the subject asset is not at risk of forfeiture;                (f)   Liens and Negative Pledges pursuant to any Loan Document;                (g)   Liens in favor of a Loan Party;               (h)   any interest or right of a lessee of a Real Property Asset under leases entered        into in the ordinary course of business of the applicable lessor;               (i)   with respect to Borrowing Base Assets that are Loan Assets, rights of lessors        under Ground Net Leases;                                          36 





 






               (j)   Permitted Pari Passu Provisions; and                (k)   easements, zoning restrictions,  rights  of  way,  sewers,  electric  lines,        telegraph and telephone lines, encroachments, protrusions and similar encumbrances on        real property imposed by law or arising in the ordinary course of business or other title        and survey exceptions disclosed in the applicable title insurance policies, in any such case        that do not secure any monetary obligations and do not materially detract from the value        of the affected property or materially interfere with the ordinary conduct of business of        the Borrower or any Subsidiary thereof.         “Person”  means  any  natural  person,  corporation,  limited  liability  company,  trust,  joint  venture, association, company, partnership, Governmental Authority or other entity.         “Plan” means at any time an employee pension benefit plan (other than a Multiemployer  Plan) which is covered by Title IV of ERISA or subject to the minimum funding standards under  Section 412 of the Code and either (i) is maintained, or contributed to, by any member of the  ERISA Group for employees of any member of the ERISA Group, (ii) has at any time within the  preceding five years been maintained, or contributed to, by any Person which was at such time a  member of the ERISA Group for employees of any Person which was at such time a member of  the ERISA Group, (iii) to which any member of the ERISA Group has had liability within the  previous five years or (iv) as to which the Borrower has any obligation or liability.         “Platform” has the meaning specified in Section 6.02.         “Pledge Agreement” means  that certain  Pledge  Agreement, dated  as  of June 27, 2017,  made by each of the Loan Parties party thereto from time to time in favor of the Administrative  Agent  for  the  benefit  of  the  Secured  Parties, together  with  each  pledge joinder  and pledge  amendment required to be delivered hereunder or thereunder.         “PTE” means a prohibited transaction class exemption issued by the U.S. Department of  Labor, as any such exemption may be amended from time to time.         “Public Lender” has the meaning specified in Section 6.02.         “Qualified Debt Notice” has the meaning set forth in Section 7.03(b).         “Qualified Debt” means, on any date, the sum of (i) Indebtedness (including all Loans)  then outstanding and permitted pursuant to Section 7.03 and (ii) Indebtedness that the Borrower  would be permitted to borrow hereunder on such date pursuant to Section 7.03 and, in the case of  Loans, Section  4.02(a), (b) and (e), and  which  the  Borrower intends  to  borrow  within  twelve  months of such date.  For purposes of this Agreement, the outstanding principal balance of any  Loan described in clause (ii) of the preceding sentence on any date will be the amount thereof set  forth in the then most recent Qualified Debt Notice received by the Administrative Agent.         “Recourse Debt” means Indebtedness other than Non-Recourse Indebtedness.                                          37 





 






         “Real  Property  Assets”  means  as  to  any  Person  as  of  any  time, any  parcel  of  real  or  leasehold property, together with all improvements and fixtures (if any) thereon or appurtenant  thereto owned in fee simple or ground leased directly or indirectly by such Person at such time.         “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  Loan  Party  hereunder.         “Register” has the meaning specified in Section 10.06(c).         “REIT” means a real estate investment trust, as defined under Section 856 of the Code.         “Release Conditions” means, with respect to (i) the release of any Subsidiary Guarantor  from  its  obligations  under  the  Guaranty,  (ii) [intentionally  omitted],  (iii) the  release  of  any  Collateral consisting of the Equity Interests in a Subsidiary Guarantor from the Liens created under  the Pledge Agreement or (iv) the removal of any Borrowing Base Asset from the calculation of  the Borrowing Base Amount (each a “Release Transaction”), (in each case other than in connection  with  the  Investment  Grade  Release,  which  shall  be  governed  by Section 11.12), each  of  the  following:               (a)   the Borrower shall have delivered to the Administrative Agent, at least five        (5) Business Days prior to the date of the proposed Release Transaction (or such shorter        period  of  time  as  agreed  to  by  the  Administrative  Agent  in  writing),  a  written  notice        requesting such Release Transaction (a “Release Notice”), which Release Notice shall        identify each Borrowing Base Asset, the Equity Interests of any Subsidiary Guarantor to        be  released  from  the  Liens  created  under  the  applicable  Collateral  Document,  the        Subsidiary Guarantor to be released from the Guaranty, or the Borrowing Base Asset to        be removed from the calculation of the Borrowing Base Amount, as applicable, as part of        the proposed Release Transaction, and the date proposed for consummation of the Release        Transaction;               (b)   immediately before and after giving effect to such Release Transaction, no        Default has occurred and is continuing on such date (or would exist immediately after        giving effect to the proposed Release Transaction);                (c)   Availability  shall  equal  or  exceed  zero  ($0)  on  a  pro  forma  basis        immediately after giving pro forma effect to the proposed Release Transaction (and any        contemporaneous  prepayment of  Loans and/or replacement with  additional Borrowing        Base Assets);               (d)   the Loan Parties will be in compliance with the provisions of Section 7.11        on a pro forma basis immediately after giving effect to the proposed Release Transaction        (and  any  contemporaneous  prepayment  of  Loans and/or  replacement  with  additional        Borrowing Base Assets);               (e)   the Borrower shall have delivered to the Administrative Agent an updated        Borrowing Base Assets List; and                                          38 





 






               (f)   at least two (2) Business Days prior to the proposed release date (or such        shorter  period  of  time  as  agreed  to  by  the  Administrative  Agent  in  writing),  the        Administrative  Agent  shall  have  received  (1)  a  fully  completed  Borrowing  Base        Certificate  demonstrating  to  its  satisfaction  that,  after  giving  effect  to  the  proposed        Release Transaction (and any related and contemplated transactions), the condition set        forth in clause (c) above will be satisfied, (2) a Compliance Certificate demonstrating to        its  satisfaction  that,  after  giving  effect  to  the  proposed  Release  Transaction  (and  any        related and contemplated transactions), the condition set forth in clause (d) above will be        satisfied and (3) a certificate executed by a Responsible Officer of the Borrower certifying        to the Administrative Agent that the conditions in clauses (b) through (d) above have been        satisfied.         “Release Notice” has the meaning specified in the definition of “Release Conditions.”         “Release Transaction” has the meaning specified in the definition of “Release Conditions.”         “Related  Parties”  means,  with  respect  to  any  Person,  such  Person’s  Affiliates  and  the  partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and  representatives of such Person and of such Person’s Affiliates.         “Relevant  Governmental  Body” means  the  Federal  Reserve Board  and/or  the  Federal  Reserve  Bank  of  New  York,  or  a  committee  officially  endorsed  or  convened  by  the  Federal  Reserve Board and/or the Federal Reserve Bank of New York for the purpose of recommending a  benchmark rate to replace LIBOR in loan agreements similar to this Agreement.         “Replacement  BankNote  Property  Mortgage Financing”  has  the  meaning  specified  in  Section 2.19(a)(i).         “Request  for  Credit  Extension”  means  (a) with  respect  to  a  Borrowing  of  Committed  Loans, or with respect to a conversion or continuation of Loans, a Committed Loan Notice, and  (b) with respect to an L/C Credit Extension, a Letter of Credit Application.         “Required  Lenders”  means,  at  any  time,  Lenders  having  Total  Credit  Exposures  representing  more  than  50%  of  the  Total  Credit  Exposures  of  all  Lenders.   The  Total  Credit  Exposure of any Defaulting Lender shall be disregarded in determining Required Lenders at any  time; provided that,  the  amount  of  any  participation  in  Unreimbursed  Amounts  that  such  Defaulting  Lender has  failed to  fund that  have  not  been reallocated to  and funded by another  Lender shall be deemed to be held by the Lender that is the applicable L/C Issuer in making such  determination.         “Responsible Officer” means the chief executive officer, president, vice president, chief  financial officer, treasurer, assistant treasurer, general counsel, vice chairman, chief legal officer  or controller of a Loan Party (or of any entity authorized to act on behalf of such Loan Party),  solely  for  purposes  of  the  delivery  of  incumbency  certificates  pursuant  to Section 4.01,  the  secretary or any assistant secretary of a Loan Party (or entity authorized to act on behalf of such  Loan Party) and, solely for purposes of notices given pursuant to Article II, any other officer or  employee of the applicable Loan Party (or entity authorized to act on behalf of such Loan Party)  so designated by any of the foregoing officers in a notice to the Administrative Agent or any other                                          39 





 






   officer or employee of the applicable Loan Party (or entity authorized to act on behalf of such Loan  Party) designated in or pursuant to an agreement between the applicable Loan Party (or entity  authorized to act on behalf of such Loan Party) and the Administrative Agent.  Any document  delivered hereunder that is signed by a Responsible Officer of a Loan Party (or entity authorized  to act on behalf of such Loan Party) shall be conclusively presumed to have been authorized by all  necessary corporate, partnership, limited liability company and/or other action on the part of such  Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf  of such Loan Party.         “Restricted Payment” means, with respect to any Person, any dividend or other distribution  (whether in cash, securities or other property) with respect to any capital stock or other Equity  Interest of such Person or any Subsidiary thereof, or any payment (whether in cash, securities or  other  property),  including  any  sinking  fund  or  similar  deposit,  on  account  of  the  purchase,  redemption, retirement, acquisition, cancellation or termination of any such capital stock or other  Equity Interest, or on account of any return of capital to such Person’s stockholders, partners or  members (or the equivalent Person thereof).         “Revolving Credit Exposure” means, as to any Lender at any time, the aggregate principal  amount at such time of its outstanding Committed Loans and its portion of the Special Advance  and such Lender’s participation in L/C Obligations at such time.         “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.         “S&P” means  S&P  Global  Ratings,  a  division  of  S&P  Global  Inc.,  and  any  successor  thereto.         “Sanctioned Country” means, at any time, a country or territory which is itself the subject  or target of any Sanctions (at the time of this Agreement, Crimea, Cuba, Iran, North Korea, Sudan  and Syria).         “Sanctioned Person”  means,  at  any  time,  (a)  any  Person  listed or  described in  any  Sanctions-related Executive Order or list of designated Persons administered or maintained by the  Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of  State or by the United Nations Security Council, the European Union, HMT or other relevant  sanctions authority, (b) any Person operating, organized or resident in a Sanctioned Country or (c)  any Person owned or controlled by any such Person or Persons.         “Scheduled Unavailability Date” has the meaning specified in Section 3.03(c).         “SEC” means the Securities and Exchange Commission, or any Governmental Authority  succeeding to any of its principal functions.         “Secured Debt” means, as to any Person, Indebtedness of such Person that is secured by a  Lien (excluding, in any event, Indebtedness arising under or in connection with this Agreement).   For the avoidance of doubt, for purposes of this Agreement the term “Secured Debt” shall include  (i) the Specified Guaranty, (ii) Specified Indemnity and (iii) any CMBS Financing.                                          40 





 






         “Secured Leverage Ratio” means the ratio (expressed as a percentage) of Total Secured  Debt to Total Asset Value.          “Secured Pari Passu Obligations” means Pari Passu Obligations described in clause (b) of  the definition of “Pari Passu Obligations.”         “Secured  Parties”  means,  collectively,  the  Administrative  Agent,  the  Lenders,  the  L/C  Issuers,  each  co-agent  or  sub-agent  appointed  by  the  Administrative  Agent  from  time  to  time  pursuant to Section 9.05 and the other Persons the Obligations owing to which are or are purported  to be secured by the Collateral under the terms of the Collateral Documents.         “Shareholders’ Equity” means, as of any date of determination, consolidated shareholders’  equity of the Borrower and its Subsidiaries as of that date determined in accordance with GAAP.         “Significant Subsidiary” means, on any date of determination, each Subsidiary or group of  Subsidiaries of the Borrower whose total assets as of the last day of the then most recently ended  fiscal quarter were equal to or greater than 3% of the Total Asset Value at such time (it being  understood that all such calculations shall be determined in the aggregate for all Subsidiaries of  the Borrower subject to any of the events specified in clause (e), (f), (g) or (h) of Section 8.01).         “SIGOP” has the meaning specified in the introductory paragraph hereto.         “SOFR” with respect to any day means the secured overnight financing rate published for  such day by the Federal Reserve Bank of New York, as the administrator of the benchmark (or a  successor administrator) on the Federal Reserve Bank of New York’s website (or any successor  source) and, in each case, that has been selected or recommended by the Relevant Governmental  Body.         “SOFR-Based Rate” means SOFR or Term SOFR.         “Solvent”  means  that,  when  used  with  respect  to  any  Person,  as  of  any  date  of  determination, (a) the amount of the “present fair saleable value” of the assets of such Person will,  as of such date, exceed the amount of all “liabilities of such Person, contingent or otherwise”, as  of such date, as such quoted terms are determined in accordance with applicable federal and state  laws governing determinations of the insolvency of debtors, (b) the present fair saleable value of  the assets of such Person will, as of such date, be greater than the amount that will be required to  pay the liability of such Person on its debts as such debts become absolute and matured, (c) such  Person will not have, as of such date, an unreasonably small  amount of capital with which to  conduct its business, and (d) such Person will be able to pay its debts as they mature. For purposes  of this definition, (i) “debt” means liability on a “claim”, and (ii) “claim” means any (x) right to  payment,  whether or  not  such  a  right  is  reduced  to  judgment,  liquidated,  unliquidated,  fixed,  contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured or  (y) right to an equitable remedy for breach of performance if such breach gives rise to a right to  payment,  whether  or  not  such  right  to  an  equitable  remedy  is  reduced  to  judgment,  fixed,  contingent, matured or unmatured, disputed, undisputed, secured or unsecured.         “Special Advance” has the meaning specified in Section 2.04.                                          41 





 






         “Special Flood Hazard Area” means an area identified as such by the Administrator of the  Federal  Emergency  Management  Agency  or  any  successor  agency  (“FEMA”)  using  FEMA’s  Flood Insurance Rate Map or FEMA’s Flood Hazard Boundary Map.          “Specified Guaranty” means the Limited Recourse Guaranty, dated as of March 30, 2017,  by iStar Inc. in favor of Barclays Bank PLC, JPMorgan Chase Bank, National Association and  Bank of America, N.A., as the same may be amended from time to time, so long as the obligations  thereunder are secured by a Lien on assets of a Consolidated Party.          “Specified Indemnity” means the Environmental Indemnity Agreement, dated as of March  30, 2017, by iStar Inc. and each of the entities listed on Schedule 1 thereto in favor of Barclays  Bank PLC, JPMorgan Chase Bank, National Association and Bank of America, N.A., as the same  may be amended from time to time, so long as the obligations thereunder are secured by a Lien on  assets of a Consolidated Party.          “Specified CJV Subsidiary” has the meaning specified in the definition of “Controlled Joint  Venture Subsidiary.”         “Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability  company or other business entity of which a majority of the shares of securities or other interests  having ordinary voting power for the election of directors or other governing body (other than  securities or interests having such power only by reason of the happening of a contingency) are at  the time beneficially owned, or the management of which is  otherwise controlled, directly, or  indirectly  through  one  or  more  intermediaries,  or  both,  by  such  Person.   Unless  otherwise  specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or  Subsidiaries of the Borrower.         “Subsidiary Guarantor” means, (a) at all times prior to the Investment Grade Release, each  existing and future direct and indirect Subsidiary of CARET that is a Direct Owner of a Borrowing  Base Asset or an Indirect Owner of any such Direct Owner and (b) upon and at all times following  the Investment Grade Release, each Subsidiary of CARET (if any) that is a borrower or guarantor  of, or otherwise has a payment obligation in respect of, any Unsecured Debt or any Secured Pari  Passu Obligations, unless, in each case under clauses (a) and (b), released in accordance with the  terms of this Agreement or otherwise with the consent of the Administrative Agent and Required  Lenders.         “Super  Majority  Lenders”  means  at  any  time  Lenders having  Total  Credit  Exposures  representing at least 67% of the Total Credit Exposures of all Lenders.  The Total Credit Exposure  of any Defaulting Lender shall be disregarded in determining Super Majority Lenders at any time;  provided that, the amount of any participation in any Unreimbursed Amounts that such Defaulting  Lender has failed to fund that has not been reallocated to and funded by another Lender shall be  deemed to be held by the Lender that is the L/C Issuer with respect to such Unreimbursed Amounts  in making such determination.         “Swap  Contract”  means  (a) any  and  all  rate  swap  transactions,  basis  swaps,  credit  derivative transactions, forward rate transactions, commodity swaps, commodity options, forward  commodity contracts, equity or equity index swaps or options, bond or bond price or bond index                                          42 





 






   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 (b) any and all transactions of any kind, and  the related confirmations, which are subject to the terms and conditions of, or governed by, any  form of master agreement published by the International Swaps and Derivatives Association, Inc.,  any International Foreign Exchange Master Agreement, or any other master agreement (any such  master agreement, together with any related schedules, a “Master Agreement”), including any such  obligations or liabilities under any Master Agreement.         “Swap Termination Value” means, in respect of any one or more Swap Contracts, after  taking into account the effect of any legally enforceable netting agreement relating to such Swap  Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and  termination value(s) determined in accordance therewith, such termination value(s), and (b) for  any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market  value(s) for such Swap Contracts, as determined based upon one or more mid-market or other  readily available quotations provided by any recognized dealer in such Swap Contracts (which  may include a Lender or any Affiliate of a Lender).         “Syndication  Agents”  means  JPMorgan  Chase  Bank,  N.A., Barclays  Bank  PLC and  SunTrust Bank, each in its capacity as a Co-Syndication Agent.         “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a so- called  synthetic,  off-balance  sheet  or  tax  retention  lease,  or  (b) an  agreement for  the  use  or  possession of property creating obligations that do not appear on the balance sheet of such Person  but  which,  upon  the  insolvency  or  bankruptcy  of  such  Person,  would  be  characterized  as  the  indebtedness of such Person (without regard to accounting treatment).         “Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings  (including backup withholding), assessments, fees or other charges imposed by any Governmental  Authority, including any interest, additions to tax or penalties applicable thereto.         “Term SOFR” means the forward-looking term rate for any period that is approximately  (as determined by the Administrative Agent) as long as any of the Interest Period options set forth  in the definition of “Interest Period” and that is based on SOFR and that has been selected or  recommended by the Relevant Governmental Body, in each case as published on an information  service as selected by the Administrative Agent from time to time in its reasonable discretion.         “Termination Event” means (i) a “reportable event”, as such term is described in Section  4043 of ERISA and the regulations promulgated thereunder as in effect on the date of such event  (other than a “reportable event” not subject to the provision for thirty (30)-day notice to the PBGC),  or an event described in Section 4062(e) of ERISA, (ii) the withdrawal by any member of the  ERISA Group from a Multiemployer Plan during a plan year in which it is 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, or the incurrence of liability by any member of the                                          43 





 






   ERISA Group under Section 4064 of ERISA upon the termination of a Multiemployer Plan, (iii)  the filing of a notice of intent to terminate any Plan under Section 4041 of ERISA, other than in a  standard termination within the meaning of Section 4041 of ERISA, or the treatment of a Plan  amendment  as  a distress  termination under Section 4041 of ERISA, (iv) the institution by the  PBGC of proceedings to terminate, impose liability (other than for premiums under Section 4007  of ERISA) in respect of, or cause a trustee to be appointed to administer, any Plan, (v) any failure  to make by its due date any required installment under Section 430(j) of the Code with respect to  any Plan, any failure by the Borrower or any member of the ERISA Group to make any required  contribution to any Multiemployer Plan, or any failure to satisfy the minimum funding standards  (within the meaning of Section 302 of ERISA or Section 412 of the Code), whether or not waived,  shall  exist  with  respect  to  any  Plan,  any  Lien  in  favor  of  the  PBGC, under  Section 303(k)  of  ERISA, a Plan, or a Multiemployer Plan shall arise on the assets of the Borrower or any member  of the ERISA Group, or there shall be any determination that any Plan is or is expected to be in  “at risk” status (within the meaning of Section 430 of the Code or Section 303 of ERISA), (vi) )  the  Borrower  or  any  member  of  the  ERISA  Group  shall,  or  in  the  reasonable  opinion  of  the  Required Banks is likely to, incur any liability in connection with a withdrawal from any Plan in  which it was a substantial employer, or the withdrawal from, termination, or Insolvency of, or  “endangered” or “critical” status (within the meaning of Section 432 of the Code or Section 305  of ERISA) of, a Multiemployer Plan, (vi) a proceeding shall be instituted by a fiduciary of any  Multiemployer  Plan  against  any  member  of  the  ERISA  Group,  to  enforce  Section  515  or  4219(c)(5) of ERISA and such proceeding shall not have been dismissed within 30 days thereafter,  (vii) the provision by the administrator of any Plan pursuant to Section 4041(a)(2) of ERISA of a  notice of intent to terminate such plan in a distress termination described in Section 4041(c) of  ERISA, (viii) the withdrawal by the Borrower or any member of the ERISA Group from any Plan  with two or more contributing sponsors or the termination of any such Plan resulting in liability to  any member of the ERISA Group pursuant to Section 4063 or 4064 of ERISA, (ix) receipt from  the Internal Revenue Service of notice of the failure of any Plan (or any other employee benefit  plan sponsored by the Borrower or any of its Subsidiaries which is intended to be qualified under  Section  401(a)  of  the  Internal  Revenue  Code)  to  qualify  under  Section  401(a)  of  the  Internal  Revenue Code, or the failure of any trust forming part of any such employee benefit plan to qualify  for exemption from taxation under Section 501(a) of the Internal Revenue Code or (x) any other  event  or  condition  that  might  reasonably  constitute  grounds  for  the  termination  of,  or  the  appointment of a trustee to administer, any Plan or the imposition of any liability or encumbrance  or Lien on the Real Property Assets or any member of the ERISA Group under Section 303(k) of  ERISA or Section 430(k) of the Code.         “Total  Asset  Value” shall mean, as  of any date, the Loan Party Pro Rata Share of the  following:                (a)   the  aggregate  amount  of  cash  and  “cash  equivalents”  (as  defined  in        accordance with GAAP) owned by the Consolidated Parties; plus               (b)   an  amount  equal  to  the  aggregate  undepreciated  book  value  of  all  other        assets owned by the Consolidated Parties, as adjusted in accordance with GAAP to reflect        impairment charges, write-downs and losses, owned on such date.                                          44 





 






         “Total Credit Exposure” means, as to any Lender at any time, the unused Commitments  and Revolving Credit Exposure of such Lender at such time.         “Total Indebtedness” means, as of any date, the then aggregate outstanding amount of all  Indebtedness of the Consolidated Group.          “Total Leverage Ratio” means the ratio (expressed as a percentage) of Total Indebtedness  to Total Asset Value.         “Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C  Obligations.         “Total Secured Debt”  means the  portion  of Total  Indebtedness  that  is Secured Debt  (excluding Secured Pari Passu Obligations).          “Total Unsecured Debt” means the portion of Total Indebtedness that is Unsecured Debt.          “Type” means, with respect to a Committed Loan or the Special Advance, its character as  a Base Rate Loan, a LIBOR Floating Rate Loan or a Eurodollar Rate Loan.         “UCP” means, with respect to any Letter of Credit, the Uniform Customs and Practice for  Documentary Credits, International Chamber of Commerce (“ICC”) Publication No. 600 (or such  later version thereof as may be in effect at the time of issuance).         “Uniform Commercial Code” means the Uniform Commercial Code as the same may from  time to time be in effect in the State of New York or the Uniform Commercial Code (or similar  code or statute) of another jurisdiction, to the extent it may be required to apply to any item or  items of Collateral.         “United States” and “U.S.” mean the United States of America.         “Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).         “Unsecured Debt” means, as to any Person, Indebtedness of such Person that is not Secured  Debt.          “U.S.  Person”  means  any  Person  that  is  a  “United  States  Person”  as  defined  in  Section 7701(a)(30) of the Code.         “U.S. Tax Compliance Certificate” has the meaning specified in Section 3.01(e)(ii)(B)(III).         “Wholly-Owned” means, with respect to the ownership by any Person of any Property, that  one hundred percent (100%) of the title to such Property is held in fee directly by such Person.         “Wholly-Owned  Subsidiary”  means,  with  respect  to  any  Person,  a  Subsidiary  of  such  Person of which one hundred percent (100%) of the outstanding shares of stock or other equity  interests are owned and Controlled, directly or indirectly, by such Person.  For purposes of this                                          45 





 






   Agreement, the Operating Partnership, the CARET Entities and each of their respective Wholly- Owned Subsidiaries shall be deemed to be Wholly-Owned Subsidiaries of the Borrower.         “Write-Down  and  Conversion  Powers”  means,  with  respect to  any  EEA  Resolution  Authority, the write-down and conversion powers of such EEA Resolution Authority from time to  time under the Bail-In Legislation for the applicable EEA Member Country, which write-down  and conversion powers are described in the EU Bail-In Legislation Schedule.         1.02  Other Interpretive Provisions.  With reference to this Agreement and each other  Loan Document, unless otherwise specified herein or in such other Loan Document:         (a)   The definitions of terms herein shall apply equally to the singular and plural forms  of  the  terms  defined.   Whenever  the  context  may  require,  any  pronoun  shall  include  the  corresponding  masculine,  feminine  and  neuter  forms.   The  words  “include,”  “includes”  and  “including” shall be deemed to be followed by the phrase “without limitation.”  The word “will”  shall be construed to have the same meaning and effect as the word “shall.”  Unless the context  requires  otherwise,  (i) any  definition  of  or  reference  to  any  agreement,  instrument  or  other  document  (including  any  Organization  Document)  shall  be  construed  as  referring  to  such  agreement, instrument or other document as from time to time amended, amended and restated,  supplemented or otherwise modified (subject to any restrictions on such amendments, amendments  and restatements, supplements or modifications set forth herein or in any other Loan Document),  (ii) any reference herein to any Person shall be construed to include such Person’s successors and  assigns, (iii) the words “hereto,” “herein,” “hereof” and “hereunder,” and words of similar import  when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety  and not to any particular provision thereof, (iv) all references in a Loan Document to Articles,  Sections,  Exhibits  and  Schedules  shall  be  construed  to  refer  to  Articles  and  Sections  of,  and  Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference  to any law shall include all statutory and regulatory provisions consolidating, amending, replacing  or interpreting  such  law  and  any  reference  to  any  law  or  regulation  shall,  unless  otherwise  specified, refer to such law or regulation as amended, modified or supplemented from time to time,  and (vi) the words “asset” and “property” shall be construed to have the same meaning and effect  and to refer to any and all tangible and intangible assets and properties, including cash, securities,  accounts and contract rights.         (b)   Any  reference  herein  to  a  merger,  transfer,  consolidation,  amalgamation,  assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a Division as  if it were a merger, transfer, consolidation, amalgamation, assignment, sale, disposition or transfer,  or similar term, as applicable, to, of or with a separate Person.  Any Division of a Person shall  constitute a separate Person hereunder (and each Division of any Person that is a Subsidiary, joint  venture or any other like term shall also constitute such a Person or entity).         (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.”                                          46 





 






         (d)   Section headings  herein  and  in  the  other  Loan  Documents  are  included  for  convenience of reference only and shall not affect the interpretation of this Agreement or any other  Loan Document.         1.03  Accounting Terms.         (a)   Generally.  All accounting terms not specifically or completely defined herein shall  be  construed  in  conformity  with, and  all  financial  data  (including  financial  ratios  and  other  financial calculations) required to be submitted pursuant to this Agreement shall be prepared in  conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a  manner  consistent  with  that  used  in  preparing  the  Audited  Financial  Statements, except as  otherwise  specifically  prescribed  herein.  Notwithstanding  the  foregoing,  for  purposes  of  determining compliance with any covenant (including the computation of any financial covenant)  contained herein, Indebtedness of the Borrower and its Subsidiaries shall be deemed to be carried  at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB  ASC 470-20 on financial liabilities shall be disregarded.         (b)   Changes  in  GAAP.  If  at  any  time  any  change  in  GAAP  would  affect  the  computation of any financial ratio or requirement set forth in any Loan Document, and either the  Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the  Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original  intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders);  provided, that, until so amended, (A) such ratio or requirement shall continue to be computed in  accordance with GAAP prior to such change therein and (B) the Borrower shall provide to the  Administrative Agent and the Lenders financial statements and other documents required under  this  Agreement or  as  reasonably  requested  hereunder  setting  forth  a  reconciliation  between  calculations of such ratio or requirement made before and after giving effect to such change in  GAAP.  Without limiting the foregoing, leases (whether the Borrower or its Subsidiaries are the  lessors or lessees thereof) shall continue to be classified and accounted for on a basis consistent  with  that  reflected  in  the  Audited  Financial  Statements  for  all  purposes  of  this  Agreement,  notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a  mutually acceptable amendment addressing such changes, as provided for above.         (c)   Consolidation of Variable Interest Entities.  All references herein to consolidated  financial statements of the Borrower and its Subsidiaries or to the determination of any amount for  the Borrower and its Subsidiaries on a consolidated basis or any similar reference shall, in each  case, be deemed to include each variable interest entity that the Borrower is required to consolidate  pursuant to FASB ASC 810 as if such variable interest entity were a Subsidiary as defined herein.         1.04  Rounding.   Any  financial  ratios  required  to  be  maintained  by  the  Borrower  pursuant to this Agreement shall be calculated by dividing the appropriate component by the other  component, carrying the result to one place more than the number of places by which such ratio is  expressed herein and rounding the result up or down to the nearest number (with a rounding-up if  there is no nearest number).         1.05  Times of Day; Rates.  Unless otherwise specified, all references herein to times of  day shall be references to Eastern time (daylight or standard, as applicable).  The Administrative                                          47 





 






   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 the rates in  the definition of “Eurodollar Rate” or “LIBOR Daily Floating Rate” or with respect to any rate  that  is  an  alternative  or  replacement  for or  successor to any  of  such  rate  (including,  without  limitation, any LIBOR Successor Rate) or the effect of any of the foregoing, or of any LIBOR  Successor Rate Conforming Changes.         1.06  Letter of Credit Amounts.  Unless otherwise specified herein, the amount of a  Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in  effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms  or the terms of any Issuer Document related thereto, provides for one or more automatic increases  in  the  stated  amount  thereof,  the  amount  of  such  Letter  of  Credit  shall  be  deemed  to  be  the  maximum stated amount of such Letter of Credit after giving effect to all such increases, whether  or not such maximum stated amount is in effect at such time.            ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS         2.01  Committed Loans.   Subject  to  the  terms  and  conditions  set  forth  herein,  each  Lender severally agrees to make loans (each such loan, a “Committed Loan”) to the Borrower from  time to time, on any Business Day during the Availability Period, in an aggregate amount not to  exceed at any time outstanding the amount of such Lender’s Commitment; provided, however,  that after giving effect to any Committed Loan, (i) Availability shall equal or exceed zero ($0) and  (ii) the Revolving Credit Exposure of any Lender shall not exceed such Lender’s Commitment.   Within the limits of each Lender’s Commitment, and subject to the other terms and conditions  hereof,  the  Borrower  may  borrow  under  this Section 2.01,  prepay  under Section 2.05,  and  reborrow under this Section 2.01.  Committed Loans may be Base Rate Loans, LIBOR Floating  Rate Loans or Eurodollar Rate Loans, as further provided herein.         2.02  Borrowings, Conversions and Continuations of Loans.         (a)   Each Borrowing of Committed Loans, each conversion of Loans from one Type to  another,  and  each  continuation  of  Eurodollar  Rate  Loans  shall  be  made  upon  the  Borrower’s  irrevocable notice to the Administrative Agent, which may be given by (A) telephone or (B) a  Committed Loan Notice; provided that any telephonic notice must be confirmed immediately by  delivery to the Administrative Agent of a Committed Loan Notice.  Each such Committed Loan  Notice must be received by the Administrative Agent not later than 11:00 a.m. (i) three Business  Days prior to the requested date of any Borrowing of, conversion to or continuation of Eurodollar  Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate Loans or LIBOR Floating  Rate Loans, and (ii) on the requested date of any Borrowing of Base Rate Loans or LIBOR Floating  Rate  Loans  or  any  conversion  of  Base  Rate  Loans  to  LIBOR  Floating  Rate  Loans  or  LIBOR  Floating Rate Loans to Base Rate Loans; provided, however, that if the Borrower wishes to request  Eurodollar  Rate  Loans  having  an  Interest  Period  other  than  one,  two,  three  or  six  months  in  duration as provided in the definition of “Interest Period,” the applicable notice must be received  by the Administrative Agent not later than 11:00 a.m. four Business Days prior to the requested  date of such Borrowing, conversion or continuation, whereupon the Administrative Agent shall  give prompt notice to the Lenders of such request and determine whether the requested Interest  Period is acceptable to all of them.  Not later than 11:00 a.m., three Business Days before the                                          48 





 






   requested date of such  Borrowing, conversion  or continuation, the Administrative Agent  shall  notify the Borrower (which notice may be by telephone) whether or not the requested Interest  Period has been consented to by all the Lenders.  Each Borrowing of, conversion to or continuation  of Eurodollar Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of  $1,000,000  in  excess  thereof.   Except  as  provided  in Sections 2.03(c),  each  Borrowing  of  or  conversion to Base Rate Loans or LIBOR Floating Rate Loans shall be in a principal amount of  $1,000,000 or a whole multiple of $500,000 in excess thereof.  Each Committed Loan Notice shall  specify (i) whether the Borrower is requesting a Committed Loan, a conversion of Loans from one  Type  to another,  or  a  continuation  of  Eurodollar  Rate  Loans,  (ii) the  requested  date  of  the  Borrowing,  conversion  or  continuation,  as  the  case  may  be  (which  shall  be  a  Business  Day),  (iii) the  principal  amount  of  Loans  to  be  borrowed,  converted  or  continued,  (iv) the  Type  of  Committed Loans to be borrowed or the Type of Loans to be converted and the Type of Loans  which such existing Loans are to be converted, and (v) if applicable, the duration of the Interest  Period with respect thereto.  If the Borrower fails to specify a Type of Loan in a Committed Loan  Notice or if the Borrower fails to give a timely notice requesting a conversion or continuation, then  the applicable Loans shall be made as, or converted to, LIBOR Floating Rate Loans.  Any such  automatic conversion to LIBOR Floating Rate Loans shall be effective as of the last day of the  Interest Period then in effect with respect to the applicable Eurodollar Rate Loans.  If the Borrower  requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any such  Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified  an Interest Period of one month.         (b)   Following  receipt  of  a  Committed  Loan  Notice,  the  Administrative  Agent  shall  promptly notify each Lender of the amount of its Applicable Percentage of the applicable Loans,  and  if  no  timely  notice  of  a  conversion  or  continuation  is  provided  by  the  Borrower,  the  Administrative Agent shall notify each Lender of the details of any automatic conversion to Base  Rate Loans described in the preceding subsection.  In the case of a Committed Loan to be funded,  each Lender shall make the amount of its Committed Loan available to the Administrative Agent  in immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on  the Business Day specified in the applicable Committed Loan Notice.  Upon satisfaction of the  applicable  conditions  set  forth  in Section 4.02 (and,  if  such  Borrowing  is  the  initial  Credit  Extension, Section 4.01), the Administrative Agent shall make all funds so received available to  the Borrower in  like funds  as  received by the Administrative Agent  either by (i) crediting the  account  of the  Borrower on the books  of Bank  of America with  the amount  of such funds or  (ii) wire  transfer  of  such  funds,  in  each  case  in  accordance  with  instructions  provided  to  (and  reasonably acceptable to) the Administrative Agent by the Borrower; provided, however, that if,  on the date the Committed Loan Notice with respect to such Borrowing is given by the Borrower,  there are L/C Borrowings outstanding, then the proceeds of such Borrowing, first, shall be applied  to the payment in full of any such L/C Borrowings, and second, shall be made available to the  Borrower as provided above.         (c)   Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or  converted only on the last day of an Interest Period for such Eurodollar Rate Loan.  During the  existence of a Default, no Loans may be requested as, converted to or continued as Eurodollar Rate  Loans without the consent of the Required Lenders.                                          49 





 






         (d)   The Administrative Agent shall promptly notify the Borrower and the Lenders of  the interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of  such interest rate.         (e)   After giving effect to all Loans, all conversions of Loans from one Type to another,  and all continuations of Loans as the same Type, there shall not be more than ten (10) Interest  Periods in effect with respect to Loans.         (f)   Notwithstanding anything  to  the  contrary  in  this  Agreement,  any  Lender  may  exchange, continue or rollover all of the portion of its Loans in connection with any refinancing,  extension,  loan  modification  or  similar  transaction  permitted  by  the  terms  of  this  Agreement,  pursuant to a cashless settlement mechanism approved by the Borrower, the Administrative Agent,  and such Lender.         2.03  Letters of Credit.         (a)   The Letter of Credit Commitment.               (i)   Subject to the terms and conditions set forth herein, (A) each L/C Issuer        agrees,  in  reliance upon  the  agreements  of  the  Lenders  set  forth  in  this Section 2.03,        (1) from time to time on any Business Day during the period from the Closing Date until        the  Letter  of  Credit  Expiration  Date,  to  issue  Letters  of  Credit  for  the  account  of  the        Borrower or its Subsidiaries, and to amend or extend Letters of Credit previously issued        by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters        of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for        the account of the Borrower or its Subsidiaries and any drawings thereunder; provided that        after  giving  effect  to  any  L/C  Credit  Extension  with  respect  to  any  Letter  of  Credit,        (x) Availability shall equal or exceed zero ($0), (y) the Revolving Credit Exposure of any        Lender shall not exceed such Lender’s Commitment, and (z) the Outstanding Amount of        the L/C Obligations shall not exceed the Letter of Credit Sublimit.  Each request by the        Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a        representation by the Borrower that the L/C Credit Extension so requested complies with        the conditions set forth in the proviso to the preceding sentence.  Within the foregoing        limits,  and subject  to  the terms  and  conditions  hereof, the Borrower’s  ability to  obtain        Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the        foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or        that have been drawn upon and reimbursed.               (ii)  No L/C Issuer shall issue any Letter of Credit, if:                     (A)   subject to Section 2.03(b)(iii), the expiry date of the requested Letter              of Credit would occur more than twelve months after the date of issuance or last              extension, unless the Required Lenders have approved such expiry date; or                     (B)   the expiry date of the requested Letter of Credit would occur after              the Letter of Credit Expiration Date, unless all the Lenders have approved such              expiry date.                                          50 





 






                      (iii) No L/C  Issuer  shall  be  under  any  obligation  to (but  may,  in  its  sole  discretion) 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  the  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)   the Letter of Credit is to be denominated in a currency other than        Dollars;               (E)   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        Lender to eliminate such L/C Issuer’s actual or potential Fronting Exposure (after        giving effect to Section 2.17(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;                (F)   the  Letter  of  Credit  contains  any  provisions  for  automatic        reinstatement of the stated amount after any drawing thereunder;                (G)   after giving effect to any L/C Credit Extension with respect to such        Letter of Credit, the L/C Obligations with respect to all Letters of Credit issued by        such  L/C  Issuer  would  exceed  one-third  of  the  Letter  of  Credit  Sublimit  (with        respect to such L/C Issuer, its “L/C Commitment Amount”); provided that, subject        to the limitations set forth in the proviso to Section 2.03(a)(i), any L/C Issuer in its        sole  discretion  may  issue  Letters  of  Credit  in  excess  of  such  L/C  Issuer’s  L/C        Commitment Amount; or               (H)   after giving effect to any L/C Credit Extension with respect to such        Letter  of  Credit, the  sum  of  the  aggregate  principal  amount  at  such  time  of  all        outstanding Loans of such L/C Issuer plus the L/C Obligations with respect to all                                    51 





 






               Letters  of  Credit  issued  by  such  L/C  Issuer would  exceed  such  Lender’s              Commitment.               (iv)  No L/C Issuer shall amend any Letter of Credit if such L/C Issuer would        not be permitted at such time to issue the Letter of Credit in its amended form under the        terms hereof.               (v)   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.               (vi)  Each L/C  Issuer  shall  act  on  behalf  of  the  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  the  L/C  Issuers with  respect  to  such  acts  or        omissions, and (B) as additionally provided herein with respect to the L/C Issuers.         (b)   Procedures  for  Issuance  and  Amendment  of  Letters  of Credit;  Auto-Extension  Letters of Credit.               (i)   Each Letter of Credit shall be issued or amended, as the case may be, upon        the  request  of  the  Borrower  delivered  to  a  single L/C  Issuer  (with  a  copy  to  the        Administrative  Agent)  in  the  form  of  a  Letter  of  Credit  Application,  appropriately        completed and signed by a Responsible Officer of the Borrower.  Such Letter of Credit        Application  may  be  sent  by  facsimile,  by  United  States  mail,  by  overnight  courier,  by        electronic transmission using the system provided by the applicable L/C Issuer, by personal        delivery  or  by  any  other  means  acceptable  to such L/C  Issuer.   Such  Letter  of  Credit        Application must be received by the applicable L/C Issuer and 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.         In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit        Application  shall  specify  in  form  and  detail  satisfactory  to  the applicable L/C  Issuer:        (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business        Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the        beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any        drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary        in case of any drawing thereunder; (G) the purpose and nature of the requested Letter of        Credit; and (H) such other matters as the applicable L/C Issuer may require.  In the case of        a  request  for  an  amendment  of  any  outstanding  Letter  of  Credit,  such  Letter  of  Credit        Application shall specify in form and detail satisfactory to the applicable L/C Issuer (A) the        Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall        be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters                                          52 





 






                as such L/C Issuer may require.  Additionally, the Borrower shall furnish to the applicable  L/C Issuer and the Administrative Agent such other documents and information pertaining  to such requested Letter of Credit issuance or amendment, including any Issuer Documents,  as such L/C Issuer or the Administrative Agent may require.         (ii)  Unless  the applicable L/C  Issuer  has  received  written  notice  from  any  Lender, the Administrative Agent or any Loan Party, at least one Business Day prior to the  requested date of issuance or amendment of the applicable Letter of Credit, that one or  more applicable conditions contained in Article IV shall not then be satisfied, then, subject  to the terms and conditions hereof, such L/C Issuer shall, on the requested date, issue a  Letter of Credit for the account of the Borrower (or the applicable Subsidiary) or enter into  the applicable amendment, as the case may be, in each case in accordance with such L/C  Issuer’s usual and customary business practices.  Immediately upon the issuance of each  Letter  of  Credit,  each  Lender  shall  be  deemed  to,  and  hereby  irrevocably  and  unconditionally agrees to, purchase from the applicable L/C Issuer a risk participation in  such  Letter  of  Credit  in  an  amount  equal  to  the  product  of  such  Lender’s  Applicable  Percentage times the amount of such Letter of Credit.         (iii) If the Borrower so requests in any applicable Letter of Credit Application,  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 must 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 a day (the “Non-Extension Notice Date”) in each such twelve-month period to be  agreed upon 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 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 expiry date not  later than the Letter of Credit Expiration Date; provided, however, that no L/C Issuer shall  permit any such extension if (A) the applicable L/C Issuer has determined that it would not  be permitted, or would have no obligation, at such time to issue such Letter of Credit in its  revised form (as extended) under the terms hereof (by reason of the provisions of clause (ii)  or (iii) of Section 2.03(a) or otherwise), or (B) it has received notice (which may be by  telephone or in writing) on or before the day that is seven Business Days before the Non- Extension Notice Date (1) from the Administrative Agent that the Required Lenders have  elected not to permit such extension or (2) from the Administrative Agent, any Lender or  the Borrower that one or more of the applicable conditions specified in Section 4.02 is not  then satisfied, and in each such case directing such L/C Issuer not to permit such extension.         (iv)  Promptly after its delivery of any Letter of Credit or any amendment to a  Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the  applicable L/C Issuer will also deliver to the Borrower a true and complete copy of such  Letter of Credit or amendment.   (c)   Drawings and Reimbursements; Funding of Participations.                                    53 





 






                      (i)   Upon receipt from the beneficiary of any Letter of Credit of any notice of a  drawing under such Letter of Credit, the applicable L/C Issuer shall notify the Borrower  and the Administrative Agent thereof (such notification provided by an L/C Issuer to the  Borrower and the Administrative Agent being referred to herein as an “L/C Draw Notice”).  If an L/C Draw Notice with respect to a Letter of Credit is received by the Borrower (x) on  or prior to 11:00 a.m. on the date of any payment by the applicable L/C Issuer under such  Letter of Credit (each such date a payment is made by an L/C Issuer under a Letter of Credit  being referred to herein as an “Honor Date”), then, not later than 12:00 p.m. on the Honor  Date, the Borrower shall reimburse the applicable L/C Issuer through the Administrative  Agent in an amount equal to the amount of such drawing or (y) after 11:00 a.m. on the  Honor Date, then, not later than 11:00 a.m. on the first Business Day following the Honor  Date, the Borrower shall reimburse the applicable L/C Issuer through the Administrative  Agent in an amount equal to the amount of such drawing (such date on which the Borrower,  pursuant to clauses (x) and (y) of this sentence, are required to reimburse an L/C Issuer for  a drawing under a Letter of Credit is referred to herein as the “L/C Reimbursement Date”);  provided, however, that if the L/C Reimbursement Date for a drawing under a Letter of  Credit is the Business Day following the Honor Date pursuant to clause (y) of this sentence,  the Unreimbursed Amount shall accrue interest from and including the Honor Date until  such  time  as  the  applicable  L/C  Issuer  is  reimbursed  in  full  therefor  (whether  through  payment by the Borrower and/or through a Committed Loan or L/C Borrowing made in  accordance with paragraph (ii) or (iii) of this Section 2.03(c)) at a rate equal to (A) for the  period from and including the Honor Date to but excluding the first Business Day to occur  thereafter, the rate of interest then applicable to a Committed Loan that is a Base Rate  Committed Loan and (B) thereafter, at the Default Rate applicable to a Committed Loan  that  is  a  Base  Rate  Committed  Loan.   Interest  accruing  on  the  Unreimbursed  Amount  pursuant  to  the  proviso to  the  immediately  preceding  sentence  shall  be  payable  by  the  Borrower  upon  demand  to  the  Administrative  Agent,  solely  for  the  account  of  the  applicable L/C Issuer.  If the Borrower fails to so reimburse the applicable L/C Issuer by  such time, the Administrative Agent shall promptly notify each Lender of the Honor Date,  the amount of the unreimbursed drawing (the “Unreimbursed Amount”), and the amount  of such  Lender’s  Applicable Percentage thereof.   In such  event,  the Borrower shall be  deemed to have requested a Committed Loan of Base Rate Loans to be disbursed on the  Honor  Date  in  an  amount  equal  to  the  Unreimbursed  Amount,  without  regard  to  the  minimum  specified  in Section  2.02 for  the  principal  amount  of  Base  Rate  Loans,  but  subject to the amount of the unutilized portion of the Commitments and the conditions set  forth in Section 4.02 (other than the delivery of a Committed Loan Notice).  Any notice  given by an L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may  be given by telephone if promptly (and, in any event, on the same Business Day) confirmed  in  writing; provided that  the  lack  of  such  a  prompt  confirmation  shall  not  affect  the  conclusiveness or binding effect of such notice.         (ii)  Each  Lender  shall  upon  any  notice  pursuant  to Section 2.03(c)(i) make  funds available (and the Administrative Agent may apply Cash Collateral provided for this  purpose) for the account of the applicable L/C Issuer at the Administrative Agent’s Office  in an amount equal to its Applicable Percentage of the Unreimbursed Amount not later  than 1:00 p.m. on the Business Day specified in such notice by the Administrative Agent,  whereupon, subject to the provisions of Section 2.03(c)(iii), each Lender that so makes                                    54 





 






                funds  available  shall  be  deemed  to  have  made  a  Base  Rate  Committed  Loan  to  the  Borrower in such amount.  The Administrative Agent shall remit the funds so received to  the applicable L/C Issuer.         (iii) With respect to any Unreimbursed Amount that is not fully refinanced by a  Committed  Loan of  Base  Rate  Loans  because  the  conditions  set  forth  in Section 4.02  cannot be satisfied or for any other reason, the Borrower shall be deemed to have incurred  from  the applicable L/C  Issuer  an  L/C  Borrowing  in  the  amount  of  the  Unreimbursed  Amount  that  is  not  so  refinanced,  which  L/C  Borrowing  shall  be  due  and  payable  on  demand (together with interest) and shall bear interest at the Default Rate.  In such event,  each Lender’s payment to the Administrative Agent for the account of the applicable L/C  Issuer  pursuant  to Section 2.03(c)(ii) shall  be  deemed  payment  in  respect  of  its  participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender  in satisfaction of its participation obligation under this Section 2.03.         (iv)  Until each Lender funds its Committed Loan or L/C Advance pursuant to  this Section 2.03(c) to reimburse the applicable L/C Issuer for any amount drawn under  any Letter of Credit, interest in respect of such Lender’s Applicable Percentage of such  amount shall be solely for the account of such L/C Issuer.         (v)   Each Lender’s obligation to make Committed Loans or L/C Advances to  reimburse an L/C Issuer for amounts drawn under Letters of Credit, as contemplated by  this Section 2.03(c), shall be absolute and unconditional and shall not be affected by any  circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right  which such Lender may have against such L/C Issuer, the Borrower or any other Person  for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other  occurrence, event or condition, whether or not similar to any of the foregoing; provided,  however,  that  each  Lender’s  obligation  to  make  Committed  Loans  pursuant  to  this  Section 2.03(c) is subject to the conditions set forth in Section 4.02 (other than delivery by  the Borrower of a Committed Loan Notice).  No such making of an L/C Advance shall  relieve or otherwise impair the obligation of the Borrower to reimburse an L/C Issuer for  the amount of any payment made by such L/C Issuer under any Letter of Credit, together  with interest as provided herein.         (vi)  If any Lender fails to make available to the Administrative Agent for the  account of an L/C Issuer any amount required to be paid by such Lender pursuant to the  foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii),  then, without limiting the other provisions of this Agreement, such L/C Issuer shall be  entitled  to  recover  from  such  Lender  (acting  through  the  Administrative  Agent), on  demand, such amount with interest thereon for the period from the date such payment is  required to the date on which such payment is immediately available to such L/C Issuer at  a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by  such L/C Issuer in accordance with banking industry rules on interbank compensation, plus  any administrative, processing or similar fees customarily charged by such L/C Issuer in  connection with the foregoing.  If such Lender pays such amount (with interest and fees as  aforesaid), the amount so paid shall constitute such Lender’s Committed Loan included in  the relevant Committed Loan or L/C Advance in respect of the relevant L/C Borrowing, as                                    55 





 






         the  case  may  be.   A  certificate  of  the applicable L/C  Issuer  submitted  to  any  Lender        (through  the  Administrative  Agent)  with  respect  to  any  amounts  owing  under  this        clause (vi) shall be conclusive absent manifest error.         (d)   Repayment of Participations.               (i)   At any time after an L/C Issuer has made a payment under any Letter of        Credit and has received from any Lender such Lender’s L/C Advance in respect of such        payment in accordance with Section 2.03(c), if the Administrative Agent receives for the        account of such L/C Issuer any payment in respect of the related Unreimbursed Amount or        interest thereon (whether directly from the Borrower or otherwise, including proceeds of        Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent        will distribute to such Lender its Applicable Percentage thereof in the same funds as those        received by the Administrative Agent.               (ii)  If any payment received by the Administrative Agent for the account of an        L/C  Issuer  pursuant  to Section 2.03(c)(i) is  required  to  be  returned  under  any  of  the        circumstances  described in Section 10.05 (including pursuant  to  any settlement entered        into by such L/C Issuer in its discretion), each Lender shall pay to the Administrative Agent        for the account of such L/C Issuer its Applicable Percentage thereof on demand of the        Administrative Agent, plus interest thereon from the date of such demand to the date such        amount is returned by such Lender, at a rate per annum equal to the Federal Funds Rate        from time to time in effect.  The obligations of the Lenders under this clause shall survive        the payment in full of the Obligations and the termination of this Agreement.         (e)   Obligations Absolute.  The obligation of the Borrower to reimburse the applicable  L/C Issuer for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be  absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of  this Agreement under all circumstances, including the following:               (i)   any  lack  of  validity  or  enforceability  of  such  Letter  of  Credit,  this        Agreement, or any other Loan Document;               (ii)  the existence of any claim, counterclaim, setoff, defense or other right that        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), the applicable L/C Issuer or any other Person, whether in        connection with this Agreement, the transactions contemplated hereby or by such Letter of        Credit or any agreement or instrument relating thereto, or any unrelated transaction;               (iii) any  draft,  demand,  certificate  or  other  document  presented  under  such        Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or        any statement therein being untrue or inaccurate in any respect; or any loss or delay in the        transmission or otherwise of any document required in order to make a drawing under such        Letter of Credit;                                          56 





 






               (iv)  waiver by the applicable 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  the        applicable 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 requires that demand be in the form of a draft;               (vi)  any payment made by the applicable 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) any  payment  by  the applicable L/C  Issuer  under  such  Letter  of  Credit        against presentation of a draft or certificate that does not comply with the terms of such        Letter of Credit; or any payment made by the applicable 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 circumstance or happening whatsoever, whether or not similar to        any of the foregoing, including any other circumstance that might otherwise constitute a        defense available to, or a discharge of, the Borrower or any Subsidiary.         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 promptly notify the applicable L/C Issuer.  The  Borrower shall be conclusively deemed to have waived any such claim against the applicable L/C  Issuer and its correspondents unless such notice is given as aforesaid.         (f)   Role  of  L/C  Issuer.   Each  Lender  and  the  Borrower  agree  that,  in  paying  any  drawing  under  a  Letter  of  Credit, no L/C  Issuer  shall  have  any  responsibility  to  obtain  any  document (other than any sight draft, certificates and documents expressly required by the Letter  of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the  authority of the Person executing or delivering any such document.  None of the L/C Issuers, the  Administrative Agent, any of their respective Related Parties nor any correspondent, participant  or assignee of any L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in  connection herewith at the request or with the approval of the Lenders or the Required Lenders, as  applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct  as determined by a court of competent jurisdiction by final and nonappealable judgment; or (iii) the  due execution, effectiveness, validity or enforceability of any document or instrument related to  any Letter of Credit or Issuer Document.  The Borrower hereby assumes all risks of the acts or  omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided,  however, that this assumption is not intended to, and shall not, preclude the Borrower’s pursuing  such rights and remedies as it may have against the beneficiary or transferee at law or under any  other  agreement.   None  of the L/C  Issuers,  the  Administrative  Agent,  any  of  their  respective  Related Parties nor any correspondent, participant or assignee of any L/C Issuer shall be liable or                                          57 





 






   responsible  for  any  of  the  matters  described  in clauses (i) through (viii) of Section 2.03(e);  provided, however, that anything in such clauses to the contrary notwithstanding, the Borrower  may have a claim against an L/C Issuer, and such L/C Issuer may be liable to the Borrower, to the  extent,  but  only  to  the  extent,  of  any  direct,  as  opposed  to special,  indirect, consequential,  exemplary or punitive, damages suffered by the Borrower which the Borrower proves were caused  by such L/C Issuer’s willful misconduct or gross negligence as determined by a court of competent  jurisdiction  by  final  and  nonappealable judgment.   In  furtherance  and  not  in  limitation  of  the  foregoing, an L/C Issuer may accept documents that appear on their face to be in order, without  responsibility for further investigation, regardless of any notice or information to the contrary, and  such L/C  Issuer  shall  not  be  responsible  for  the  validity  or  sufficiency  of  any  instrument  transferring  or  assigning  or  purporting  to  transfer  or  assign  a  Letter  of  Credit  or  the  rights  or  benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or  ineffective  for  any  reason.  An L/C  Issuer  may  send  a  Letter  of  Credit  or  conduct  any  communication  to  or  from  the  beneficiary  via  the  Society  for  Worldwide  Interbank  Financial  Telecommunication  (“SWIFT”)  message  or  overnight  courier,  or  any  other  commercially  reasonable means of communicating with a beneficiary.         (g)   Applicability of ISP and UCP; Limitation of Liability.  Unless otherwise expressly  agreed by an L/C Issuer and the Borrower when a Letter of Credit is issued, the rules of the ISP or  UCP 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 the Borrower  shall be impaired by, any action or inaction of such L/C Issuer required or permitted under any  law, order, or practice that is required or permitted to be applied to any Letter of Credit or this  Agreement, including the Law or any order of a jurisdiction where the applicable 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.         (h)   Letter of Credit Fees.  The Borrower shall pay to the Administrative Agent for the  account of each Lender in accordance, subject to Section 2.17, with its Applicable Percentage a  Letter of Credit fee (the “Letter of Credit Fee”) for each Letter of Credit equal to the Applicable  Rate times the daily amount available to be drawn under such Letter of Credit.  For purposes of  computing the daily amount available to be drawn under any Letter of Credit, the amount of such  Letter of Credit shall be determined in accordance with Section 1.06.  Letter of Credit Fees shall  be (i) due and payable on the last Business Day of each March, June, September and December,  commencing with the first such date to occur after the issuance of such Letter of Credit, on the  expiry date with respect to such Letter of Credit and thereafter on demand and (ii) computed on a  quarterly basis in arrears.  If there is any change in the Applicable Rate during any quarter, the  daily amount available to be drawn under each Letter of Credit shall be computed and multiplied  by the Applicable Rate separately for each period during such quarter that such Applicable Rate  was in effect.  Notwithstanding anything to the contrary contained herein, upon the request of the  Required Lenders, while any Event of Default is continuing, all Letter of Credit Fees shall accrue  at the Default Rate.                                          58 





 






         (i)   Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer.  The  Borrower shall pay directly to the applicable L/C Issuer for its own account a fronting fee with  respect to each Letter of Credit, at the rate per annum equal to the greater of (a) 0.125% multiplied  by the daily amount available to be drawn under such Letter of Credit and (b) $500, computed on  a quarterly basis in arrears.  Such fronting fee shall be due and payable on the tenth Business Day  after the end of each March, June, September and December in respect of the most recently-ended  quarterly period (or portion thereof, in the case of the first payment), commencing with the first  such date to occur after the issuance of such Letter of Credit, on the expiry date of such Letter of  Credit and thereafter on demand.  For purposes of computing the daily amount available to be  drawn under any  Letter  of Credit, the amount of such  Letter of Credit shall be determined in  accordance with Section 1.06.  In addition, the Borrower shall pay directly to the applicable L/C  Issuer for its own account the customary issuance, presentation, amendment and other processing  fees, and other standard costs and charges, of such L/C Issuer relating to letters of credit as from  time to time in effect.  Such customary fees and standard costs and charges are due and payable  on demand and are nonrefundable.         (j)   Conflict  with  Issuer  Documents.   In  the  event  of  any  conflict or  inconsistency  between the terms and conditions of this Agreement and the terms and conditions of any Issuer  Document, including a letter of credit application on an L/C Issuer’s standard form or any 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 hereof shall control.          (k)   Letters of Credit Issued for Subsidiaries.  Notwithstanding that a Letter of Credit  issued or outstanding hereunder is in support of any obligations of, or is for the account of, a  Subsidiary, the Borrower shall be obligated to reimburse the applicable L/C Issuer hereunder for  any and all drawings under such Letter of Credit.  The Borrower hereby acknowledges that the  issuance of Letters of Credit for the account of Subsidiaries inures to the benefit of the Borrower,  and  that  the  Borrower’s  business  derives  substantial  benefits  from  the  businesses  of  such  Subsidiaries.         (l)   Outstanding Letters of Credit.  Within 10 days of the end of each month, each L/C  Issuer shall deliver to the Administrative Agent, for distribution to the Lenders, an accounting of  all Letters of Credit issued by such L/C Issuer and outstanding as of the end of such month.         2.04  Special Advance.  On August 1, 2019, subject to the terms and conditions set forth  in the Existing Credit Agreement, the Administrative Agent acquired, on behalf of the lenders  party to the Existing Credit Agreement, all of the Assigned BankNote Property Mortgage Debt  (such acquisition of the Assigned BankNote Property Mortgage Debt being referred to herein as  the “BankNote Property Mortgage Debt Assignment”). Immediately upon consummation of the  BankNote Property Mortgage Debt Assignment, among other things, the terms and provisions of  the Assigned BankNote Property Mortgage Debt acquired by the Administrative Agent, on behalf  of the Lenders (and the funds advanced by the Lenders in connection therewith) were automatically  amended and restated and incorporated as,  and  on  the  Closing  Date  each  lender  party  to  the  Existing Credit Agreement is severally holding a portion of, a loan owing from the Borrower to  the Lenders (such loan being referred to herein as the “Special Advance”).  Promptly following  fulfillment of the conditions set forth in Article IV, if the Applicable Percentage of any Lender on  the Closing Date is different than such Lender’s Applicable Percentage under (and as defined in)                                          59 





 






   the  Existing  Credit  Agreement  immediately  prior  to  the  effectiveness  of  this  Agreement,  the  outstanding principal balance of the Special Advance shall be reallocated among the Lenders such  that after the Closing Date the portion of the Special Advance held by each Lender shall be equal  to such Lender’s Applicable Percentage thereof.  On the Closing Date, the aggregate principal  amount of the Special Advance is $41,000,000.  The BankNote Property Mortgage shall secure  the  Special  Advance.  All  or any  portion  of  the Special  Advance that is prepaid  may  not  be  reborrowed except as a Committed Loan pursuant to Section 2.01 and subject to the limits of each  Lender’s Commitment and the other terms and conditions hereof applicable to the borrowing of  Committed Loans.         2.05  Prepayments.         (a)   The Borrower may, upon notice to the Administrative Agent pursuant to delivery  to the Administrative Agent of a Notice of Loan Prepayment, at any time or from time to time  voluntarily prepay Loans in whole or in part without premium or penalty; provided that (i) such  notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business  Days prior to any date of prepayment of Eurodollar Rate Loans and (B) on the date of prepayment  of Base Rate Loans or LIBOR Floating Rate Loans; (ii) any prepayment of Eurodollar Rate Loans  shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof;  and (iii) any prepayment of Base Rate Loans or LIBOR Floating Rate Loans shall be in a principal  amount of $1,000,000 or a whole multiple of $500,000 in excess thereof or, in each case, if less,  the entire principal amount thereof then outstanding.  Each such notice shall specify the date and  amount of such prepayment and the Type(s) of Loans to be prepaid and, if Eurodollar Rate Loans  are to be prepaid, the Interest Period(s) of such Loans.  The Administrative Agent will promptly  notify  each  Lender  of  its  receipt  of  each  such  notice,  and  of  the  amount  of  such  Lender’s  Applicable Percentage of such prepayment.  If such notice is given by the Borrower, the Borrower  shall make such prepayment and the payment amount specified in such notice shall be due and  payable on the date specified therein; provided that any such notice of prepayment may state that  such notice is conditioned upon the effectiveness of other credit facilities or the closing of another  transaction, the proceeds of which will be used to prepay any outstanding Loans, in which case  such prepayment may be conditional upon the effectiveness of such other credit facilities or the  closing of such other transaction.  For the avoidance of doubt, any such conditional notice that  does not result in a prepayment on the proposed prepayment date set forth in such notice shall be  subject to the provisions of Section 3.05.  Any prepayment of a Eurodollar Rate Loan shall be  accompanied by all accrued interest on the amount prepaid, together with any additional amounts  required pursuant to Section 3.05.  Subject to Section 2.17, each such prepayment shall be applied  to the Loans of the Lenders in accordance with their respective Applicable Percentages; provided,  that unless otherwise requested by the Borrower, no portion of such prepayment shall be applied  to the Special Advance until all Committed Loans of the Lenders have been paid in full.         (b)   If for any reason Availability is at any time less than zero ($0) (including if due to  the exclusion of a Borrowing Base Asset pursuant to Section 2.18(b), or if due to a change in the  Appraised  Value  of the  Real  Property  Asset  underlying a  Borrowing  Base  Asset  upon  any  reappraisal required or permitted under the Agreement), the Borrower shall within two Business  Days prepay Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal  to such excess; provided, however, that the Borrower shall not be required to (i) Cash Collateralize  the  L/C  Obligations  pursuant  to  this Section 2.05(b) unless  after  the  prepayment  in  full  of all                                          60 





 






   Loans, Availability is less than zero ($0) or (ii) prepay the Special Advance pursuant to this Section  2.05(b) unless after the prepayment in full of all Committed Loans and Cash Collateralization of  all L/C Obligations, Availability is less than zero ($0).         2.06  Termination or Reduction of Commitments.  The Borrower may, upon notice to  the  Administrative  Agent,  terminate  the  Aggregate  Commitments,  or  from  time  to  time  permanently  reduce  the  Aggregate  Commitments; provided, that  (i) any  such  notice  shall  be  received by the Administrative Agent not later than 11:00 a.m. three (3) Business Days prior to  the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount  of $5,000,000 or a whole multiple thereof, (iii) the Borrower shall not terminate or reduce the  Aggregate  Commitments  if,  after  giving  effect  thereto  and  to  any  concurrent  prepayments  hereunder, Availability would be less than zero ($0), and (iv) if, after giving effect to any reduction  of the Aggregate Commitments, the Letter of Credit Sublimit exceeds the amount of the Aggregate  Commitments, the Letter of Credit Sublimit shall be automatically reduced by the amount of such  excess.   The  Administrative  Agent  will  promptly  notify  the  Lenders  of  any  such  notice  of  termination  or  reduction  of  the  Aggregate  Commitments.   Any  reduction  of  the  Aggregate  Commitments shall be applied to the Commitment of each Lender according to its Applicable  Percentage.   All  fees  accrued  until  the  effective  date  of  any  termination  of  the  Aggregate  Commitments shall be paid on the effective date of such termination.         2.07  Repayment of Loans.  The Borrower shall repay to the Lenders on the Maturity  Date the aggregate principal amount of Loans outstanding on such date.         2.08  Interest.         (a)   Subject to the provisions of subsection (b) below, (i) each Eurodollar Rate Loan  shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per  annum equal to the Eurodollar Rate for such Interest Period plus the Applicable Rate; (ii) each  LIBOR Floating Rate Loan shall bear interest on the outstanding principal amount thereof from  the applicable borrowing date at a rate per annum equal to the LIBOR Daily Floating Rate plus  the Applicable Rate 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.         (b)   (i)   If any amount of principal of any Loan is not paid when due (without regard  to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, such  amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to  the Default Rate to the fullest extent permitted by applicable Laws.               (ii)  If any amount (other than principal of any Loan) payable by the Borrower        under any Loan Document is not paid when due (without regard to any applicable grace        periods), whether at stated maturity, by acceleration or otherwise, then upon the request of        the Required Lenders, such amount shall thereafter bear interest at a fluctuating interest        rate per annum at all times equal to the Default Rate to the fullest extent permitted by        applicable Laws.                                          61 





 






               (iii) Upon the request of the Required Lenders, while any Event of Default exists        (other than as set forth in clauses (b)(i) and (b)(ii) above), the Borrower shall pay interest        on the principal amount of all outstanding Obligations hereunder at a fluctuating interest        rate per annum at all times equal to the Default Rate to the fullest extent permitted by        applicable Laws.               (iv)  Accrued and unpaid interest on past due amounts (including interest on past        due interest) shall be due and payable upon demand.         (c)   Interest on each Loan shall be due and payable in arrears on each Interest Payment  Date applicable thereto and at such other times as may be specified herein.  Interest hereunder shall  be due and payable in accordance with the terms hereof before and after judgment, and before and  after the commencement of any proceeding under any Debtor Relief Law.         2.09  Fees.  In addition to certain fees described in subsections (h) and (i) of Section 2.03:         (a)   Revolving Credit Fees.  The Borrower shall pay to the Administrative Agent for  the account of each Lender in accordance with its Applicable Percentage, (i) commencing on the  Closing  Date  until the  Investment  Grade  Pricing  Effective  Date, a  commitment  fee (the  “Commitment Fee”) equal to the Applicable Fee Rate times the actual daily amount by which the  Aggregate Commitments  exceed the sum  of (x) the Outstanding Amount of  Loans  and (y) the  Outstanding Amount of L/C Obligations, subject to adjustment as provided in Section 2.17, and  (ii) at all times on and after the Investment Grade Pricing Effective Date, a facility fee (the “Facility  Fee”) equal to the Applicable Rate times the actual daily amount of the Aggregate Commitments  (or, if the Aggregate Commitments have terminated, on the Outstanding Amount of all Loans and  L/C  Obligations),  regardless  of  usage, subject  to  adjustment  as  provided  in Section 2.17.  The  Commitment Fee or the Facility Fee, as applicable, shall accrue at all times during the Availability  Period (and thereafter so long as any 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  last  Business  Day  of  each March, June, September and  December, commencing with the first such date to occur after the Closing Date, and on the last  day of the Maturity Date (and, if applicable, thereafter on demand).  The Commitment Fee or the  Facility Fee, as applicable, shall be calculated quarterly in arrears, and if there is any change in the  Applicable Fee Rate or the Applicable Rate, as applicable, during any quarter, the actual daily  amount shall be computed and multiplied by the Applicable Fee Rate or the Applicable Rate, as  the case may be, separately for each period during such quarter that such Applicable Fee Rate or  Applicable Rate was in effect.         (b)   Other Fees.  (i) The Borrower shall pay to the Arranger and the Administrative  Agent for their own respective accounts fees in the amounts and at the times specified in the Fee  Letter.  Such fees  shall  be fully earned when paid  and shall not  be refundable for any reason  whatsoever.               (ii)  The  Borrower  shall  pay  to  the  Lenders  such  fees  as  shall  have  been        separately agreed upon in writing in the amounts and at the times so specified.  Such fees        shall be fully earned when paid and shall not be refundable for any reason whatsoever.                                          62 





 






         2.10  Computation of Interest and Fees.  All computations of interest for Base Rate  Loans (including Base Rate Loans determined by reference to the Eurodollar 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 2.12(a), bear interest for one day.  Each determination by the Administrative  Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent  manifest error.         2.11  Evidence of Debt.         (a)   The Credit Extensions made by each Lender shall be evidenced by one or more  accounts or records maintained by such Lender and by the Administrative Agent in the ordinary  course of business.  The accounts or records maintained by the Administrative Agent and each  Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by  the Lenders to the 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.  Until  the  assignment  of  the  BankNote  Property Mortgage Note pursuant to Section 2.19, the BankNote Property Mortgage Note shall  evidence the Special Advance.  The Administrative Agent may attach schedules to the BankNote  Property Mortgage Note and endorse thereon the Type (if applicable) and payments with respect  thereto.  In addition, upon the request of any Lender made through the Administrative Agent, the  Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note,  which shall evidence such Lender’s Committed 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 Committed Loans evidenced thereby and payments with respect thereto.           (b)   In addition to the accounts and records referred to in subsection (a) above, 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.         2.12  Payments Generally; Administrative Agent’s Clawback.         (a)   General.  Except as otherwise expressly provided in Section 3.01, all payments to  be made by the Borrower shall be made free and clear of and without condition or deduction for  any counterclaim, defense, recoupment or setoff.  Except as otherwise expressly provided herein,  all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account  of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in                                          63 





 






   Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein.   The Administrative Agent will promptly distribute to each Lender its Applicable Percentage (or  other  applicable  share  as  provided  herein)  of  such  payment  in  like  funds  as  received  by  wire  transfer to such Lender’s Lending Office.  All payments received by the Administrative Agent  after 2:00 p.m. shall be deemed received on the next succeeding Business Day and any applicable  interest or fee shall continue to accrue.  If any payment to be made by 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.         (b)   (i)   Funding  by  Lenders;  Presumption  by  Administrative  Agent.   Unless  the  Administrative Agent shall have received notice from a Lender prior to the proposed date of any  Committed Loan of Eurodollar Rate Loans (or, in the case of any Committed Loan of Base Rate  Loans or LIBOR Floating Rate Loans, prior to 12:00 noon on the date of such Committed Loan)  that such Lender will not make available to the Administrative Agent such Lender’s share of such  Committed Loan, the Administrative Agent may assume that such Lender has made such share  available on such date in accordance with Section 2.02 (or, in the case of a Committed Loan of  Base Rate Loans or LIBOR Floating Rate Loans, that such Lender has made such share available  in  accordance  with  and  at  the  time  required  by Section 2.02)  and  may,  in  reliance  upon  such  assumption, make available to the Borrower a corresponding amount.  In such event, if a Lender  has not in fact made its share of the applicable Committed Loan available to the Administrative  Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative  Agent  forthwith  on  demand  such  corresponding  amount  in  immediately  available  funds  with  interest thereon, for each day from and including the date such amount is made available to the  Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of  a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined  by the Administrative Agent in accordance with banking industry rules on interbank compensation,  plus  any  administrative,  processing  or  similar  fees  customarily  charged  by  the  Administrative  Agent  in  connection  with  the  foregoing,  and  (B) in  the  case  of  a  payment  to  be  made  by  the  Borrower, the interest rate applicable to Base Rate Loans.  If the Borrower and such Lender shall  pay  such  interest  to  the  Administrative  Agent  for  the  same  or  an  overlapping  period,  the  Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the  Borrower for such period.  If such Lender pays its share of the applicable Committed Loan to the  Administrative Agent, then the amount so paid shall constitute such Lender’s Committed Loan  included in such Committed Loan.  Any payment by the Borrower shall be without prejudice to  any claim the Borrower may have against a Lender that shall have failed to make such payment to  the Administrative Agent.               (ii)  Payments by Borrower; Presumptions by Administrative Agent.  Unless the        Administrative Agent shall have received notice from the Borrower prior to the date on        which any payment is due to the Administrative Agent for the account of the Lenders or        any L/C  Issuer  hereunder  that  the  Borrower  will  not  make  such  payment,  the        Administrative Agent may assume that the Borrower has made such payment on such date        in  accordance  herewith  and  may,  in  reliance  upon  such  assumption,  distribute  to  the        Lenders or the applicable L/C Issuer, as the case may be, the amount due.  In such event,        if  the  Borrower  has  not  in  fact  made  such  payment,  then  each  of  the  Lenders  or  the        applicable L/C Issuer, as the case may be, severally agrees to repay to the Administrative                                          64 





 






         Agent forthwith on demand the amount so distributed to such Lender or such L/C Issuer,        in immediately available funds with interest thereon, for each day from and including the        date  such  amount  is  distributed  to  it  to  but  excluding  the  date  of  payment  to  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.         A notice of the Administrative Agent to any Lender or the Borrower with respect to any  amount owing under this subsection (b) shall be conclusive, absent manifest error.         (c)   Failure  to  Satisfy  Conditions  Precedent.   If  any  Lender  makes  available  to  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 or to fund such  purchase, as the case may be, by the Administrative Agent because the conditions to the applicable  Credit Extension set forth in Article IV, as applicable, are not satisfied or waived in accordance  with the terms hereof, the Administrative Agent shall return such funds (in like funds as received  from such Lender) to such Lender, without interest.         (d)   Obligations of Lenders Several.  The obligations of the Lenders hereunder to make  Committed Loans, to fund participations in Letters of Credit and to make payments pursuant to  Section 10.04(c) are several and not joint.  The failure of any Lender to make any Committed  Loan, to fund any such participation, to make any such purchase or to make any payment under  Section 10.04(c) on  any  date  required  hereunder  shall  not  relieve  any  other  Lender  of  its  corresponding obligation to do so on such date, and no Lender shall be responsible for the failure  of any other Lender to so make its Committed Loan, to purchase its participation, or to make its  payment under Section 10.04(c).         (e)   Funding Source.  Nothing herein shall be deemed to obligate any Lender to obtain  the funds for any Loan in any particular place or manner or to constitute a representation by any  Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.         2.13  Sharing of Payments by Lenders; Sharing of Proceeds from a Foreclosure or  other Exercise of Remedies in respect of the BankNote Property Mortgage.           (a)   Sharing of Payments by Lenders.  If any Lender shall, by exercising any right of  setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on  any of the Loans made by it, or the participations in L/C Obligations held by it resulting in such  Lender’s  receiving  payment  of  a  proportion  of  the  aggregate  amount  of  such  Loans  or  participations and accrued interest thereon greater than its pro rata share thereof as provided herein,  then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such  fact, and (b) purchase (for cash at face value) participations in the Loans and subparticipations in  L/C Obligations of the other Lenders, or make such other adjustments as shall be equitable, so that  the benefit of all such payments shall be shared by the Lenders ratably in accordance with the  aggregate amount of principal of and accrued interest on their respective Loans and other amounts  owing them, provided that:                                          65 





 






               (i)   if any such participations or subparticipations are purchased and all or any        portion  of  the  payment  giving  rise  thereto  is  recovered,  such  participations  or        subparticipations shall be rescinded and the purchase price restored to the extent of such        recovery, without interest; and               (ii)  the  provisions  of  this  Section shall  not  be  construed  to  apply  to  (x) any        payment made by or on behalf of the Borrower pursuant to and in accordance with the        express  terms  of  this  Agreement  (including  the  application  of  funds  arising  from  the        existence of a Defaulting Lender), (y) the application of Cash Collateral provided for in        Section 2.16, or (z) any payment obtained by a Lender as consideration for the assignment        of or sale of a participation in any of its Loans or subparticipations in L/C Obligations to        any  assignee  or  participant,  other  than  an  assignment  to  the  Borrower  or  any Affiliate        thereof (as to which the provisions of this Section shall apply).         Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do  so  under  applicable  law,  that  any  Lender  acquiring  a  participation  pursuant  to  the  foregoing  arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect  to such participation as fully as if such Lender were a direct creditor of such Loan Party in the  amount of such participation.         (b)   Sharing of Proceeds from a Foreclosure or other Exercise of Remedies in respect  of  the BankNote  Property Mortgage.  Notwithstanding  the  fact  that the BankNote  Property  Mortgage only secures the Special Advance (and not any Obligations in respect of any other Loans  or Credit Extensions), each Lender hereby agrees (and directs the Administrative Agent) that in  the  event  of  a  foreclosure  or  other  exercise  of  remedies  in  respect  of the BankNote  Property  Mortgage (whether pursuant to any contract, Law (including any Debtor Relief Law) or otherwise),  all proceeds  received in  respect  thereof shall be applied to  all Obligations  in  accordance with  Section  8.03.   In  furtherance  thereof,  each  Lender  hereby  agrees  that  if,  in  connection  with  a  foreclosure or other exercise of remedies in respect of the BankNote Property Mortgage, such  Lender obtains any payment in respect thereof in excess of its ratable share due to all Lenders  under Section 8.03, then such Lender shall (a) notify the Administrative Agent of such fact, and  (b)  purchase  (for  cash  at  face  value)  participations  in  the  Loans  and  subparticipations  in  L/C  Obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the  benefit of all such payments shall be shared by the Lenders ratably in accordance with Section  8.03, provided that if any such participations or subparticipations are purchased and all or any  portion of the payment giving rise thereto is recovered, such participations or subparticipations  shall be rescinded and the purchase price restored to the extent of such recovery, without interest.         2.14  Extension of Maturity Date.         (a)   Requests for Extension.  The Borrower may, by written notice to the Administrative  Agent (such notice, an “Extension Notice”) (who shall promptly notify the Lenders) not earlier  than ninety (90) days and not later than thirty (30) days prior to (i) the Initial Maturity Date extend  the Maturity  Date  for  an  additional one  year  period from  the Initial Maturity  Date (such  new  Maturity Date, the  “Extended Maturity Date”)  and (ii) the Extended Maturity Date extend the  Maturity Date for an additional one year period from the Extended Maturity Date subject, in each  case, to Sections 2.14(b) and (c).                                          66 





 






         (b)   Conditions  to  Effectiveness  of  Extensions.  As  conditions  precedent  to  the  effectiveness of each such extension of the Maturity Date, each of the following requirements shall  be satisfied or waived on or prior to the Initial Maturity Date or the Extended Maturity Date, as  applicable, as determined in good faith by the Administrative Agent (in each case, the first date on  which such conditions precedent are satisfied or waived, the “Extension Effective Date”):               (i)   The Administrative Agent shall have received an Extension Notice within        the period required under Section 2.14(a) above;               (ii)  On  the  date  of  such  Extension  Notice  and  both  immediately  before  and        immediately after giving effect to such extension of the Maturity Date, no Default shall        have occurred and be continuing;               (iii) The Borrower shall have paid to the Administrative Agent, for the pro rata        benefit of the Lenders based on their respective Applicable Percentages as of such date, an        extension fee in an amount equal to 0.15% multiplied by the Aggregate Commitments as        in effect on the date the proposed extension is to become effective (it being agreed that        such extension fee shall be fully earned when paid and shall not be refundable for any        reason);                (iv)  The Administrative Agent shall have received a certificate of the Borrower        dated as of the applicable Extension Effective Date signed by a Responsible Officer of the        Borrower (i) certifying and attaching the resolutions adopted by each Loan Party approving        or consenting to such extension and (ii) certifying that, before and after giving effect to        such extension, (A) the representations and warranties contained in Article V and the other        Loan  Documents  are  true  and  correct in  all  material  respects (or  if  qualified  by        “materiality,” “material adverse effect” or similar language, in all respects (after giving        effect to such qualification)) on and as of the date the proposed extension is to become        effective, except to the extent that such representations and warranties specifically refer to        an earlier date, in which case they are true and correct in all material respects (or if qualified        by “materiality,” “material adverse effect” or similar language, in all respects (after giving        effect to such qualification)) as of such earlier date, and except that for purposes of this        Section 2.14, the representations  and warranties  contained in subsections (a) and (b) of        Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to        subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; and               (v)   upon the reasonable request of any Lender made at least ten (10) days prior        to  the  applicable  Extension  Effective  Date,  the  Borrower  shall  have  provided  to  such        Lender, and such Lender shall be reasonably satisfied with, the documentation and other        information so requested in connection with applicable “know your customer” rules and        regulations, Anti-Money-Laundering Laws, including, without limitation, the PATRIOT        Act, and the Beneficial Ownership Regulation, in each case at least five (5) days prior to        the applicable Extension Effective Date.          (c)   Reaffirmation  by  Loan  Parties.   If  requested  by  the  Administrative  Agent,  the  Borrower  and  the  other  Loan  Parties  shall  have  delivered  to  the  Administrative  Agent  such  reaffirmations of their respective obligations under the Loan Documents (after giving effect to the                                          67 





 






   extension), and acknowledgments and certifications that they have no claims, offsets or defenses  with  respect  to  the  payment  or  performance  of any  of  the  Obligations,  including,  without  limitation, reaffirmations of the Pledge Agreement and the Guaranty.         (d)   Effectiveness of Extension.  Any such extension of the Maturity Date shall become  effective on the Extension Effective Date.         (e)   Conflicting Provisions.  This Section shall supersede any provisions in Section 2.13  or 10.01 to the contrary.         2.15  Increase in Commitments; Addition of Incremental Term Loan Facilities.         (a)   Request  for  Increase.  Upon  notice  to  the  Administrative  Agent  (which  shall  promptly notify the Lenders), the Borrower may from time to time prior to the then applicable  Maturity  Date,  request  an  increase  in  the  Aggregate  Commitments (each  such  increase,  an  “Incremental  Revolving  Increase”)  or  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”) to an amount (giving  effect to all such Incremental Facilities) not  exceeding $1,000,000,000; provided that (i) there  exists no Default, (ii) each increase must be in a minimum amount of $10,000,000 and in integral  multiples of $5,000,000 in excess thereof (or such other amounts as are agreed to by the Borrower  and the Administrative Agent), and (iii) the conditions to the making of a Credit Extension set  forth in clause (e) of this Section 2.15 shall be satisfied or waived.  At the time of sending such  notice, the Borrower (in consultation with the Administrative Agent) shall specify the Lenders to  be approached to provide all or a portion of such increase (subject in each case to any requisite  consents required under Section 10.06) and the time period within which each such Lender is  requested to respond (which shall in no event be less than ten (10) Business Days from the date of  delivery of such notice to such Lenders).         (b)   Lender  Elections  to  Increase.  Each  applicable  Lender  shall  notify  the  Administrative Agent within the time period for response described in Section 2.15(a) whether or  not it agrees to participate in the requested Incremental Facility and, if so, whether by an amount  equal to, greater than, or less than the portion of the requested Incremental Facility offered to it.   Any Lender not responding within such time period shall be deemed to have declined to participate  in  the  requested  Incremental  Facility.  No  Lender  shall  be  required  to  increase  its  Revolving  Commitment  or  make  term  loans  under  the  Incremental  Term  Loan  Facility,  as  applicable,  to  facilitate such Incremental Facility.         (c)   Notification  by  Administrative  Agent;  Additional  Lenders.   The  Administrative  Agent shall notify the Borrower and each Lender of the Lenders’ responses to each request made  hereunder.  Subject to the approval of the Administrative Agent (which approvals shall not be  unreasonably  withheld, delayed or  conditioned)  and,  in  the  case  of  an  Incremental  Revolving  Increase, each L/C Issuer, the Borrower may also invite additional Eligible Assignees to become  Lenders  pursuant  to  a  joinder  agreement  in  form  and  substance  reasonably  satisfactory  to  the  Administrative Agent and its counsel (a “New Lender Joinder Agreement”).                                          68 





 






         (d)   Effective Date and Allocations.  If the Revolving Commitments are increased or  term loans shall be made under any Incremental Term Loan Facility, as applicable, in accordance  with this Section 2.15, the Administrative Agent and the Borrower shall determine the effective  date (the “Increase Effective Date”) and the final allocation of such Incremental Facility.  The  Administrative Agent shall promptly notify the Borrower and the Lenders of the final allocation  of such Incremental Facility and the Increase Effective Date.         (e)   Conditions to Effectiveness of Incremental Facility.  As conditions precedent to the  effectiveness  of each such  Incremental  Facility, each  of  the  following  requirements  shall  be  satisfied on or prior to the applicable Increase Effective Date:               (i)   the Borrower shall deliver to the Administrative Agent a certificate of the        Borrower dated as of the Increase Effective Date (in sufficient copies for each Lender)        signed by a Responsible Officer of the Borrower:                      (A)   either (1) certifying and attaching the resolutions adopted by each              Loan Party approving or consenting to such Incremental Facility or (2) certifying              that,  as  of  such  Increase  Effective  Date, the  resolutions  delivered  to  the              Administrative  Agent  and  the  Lenders  on  the  Closing  Date  (which  resolutions              include approval to increase the aggregate principal amount of all commitments              and  outstanding  loans  under  this  Agreement to  an  amount  at  least  equal  to              $1,000,000,000) are and remain in full force and effect and have not been modified,              rescinded or superseded since the date of adoption;                      (B)   certifying that, before and after giving effect to such Incremental              Facility, (1) the representations and warranties contained in Article V and the other              Loan Documents are true and correct in all material respects (or if qualified by              “materiality,” “material adverse effect” or similar language, in all respects (after              giving effect to such qualification)) on and as of the Increase Effective Date, except              to the extent that such representations and warranties specifically refer to an earlier              date, in which case they are true and correct in all material respects (or if qualified              by “materiality,” “material adverse effect” or similar language, in all respects (after              giving  effect  to  such  qualification)) as  of  such  earlier  date,  and  except  that  for              purposes  of  this Section 2.15,  the  representations  and  warranties  contained  in              subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent              statements  furnished  pursuant  to subsections (a) and (b),  respectively,  of              Section 6.01, (2) no Default exists, and (3) Availability equals or exceeds zero ($0)              (in the case of an Incremental Term Loan Facility, on a pro forma basis immediately              after giving effect to the closing of such Incremental Term Loan Facility);               (ii)  in the case of an Incremental Term Loan Facility, the Loan Parties will be        in compliance with the provisions of Section 7.11 on a pro forma basis immediately after        giving effect to the closing of such Incremental Term Loan Facility;               (iii) the conditions of the Lenders providing such Incremental Facility shall be        satisfied or waived;                                          69 





 






               (iv)  the  Administrative  Agent  shall  have  received  (x)  a  New  Lender  Joinder        Agreement  duly  executed  by  the  Borrower  and  each  Eligible  Assignee,  if  any,  that  is        becoming  a  Lender  in  connection  with  such  Incremental  Facility,  which  New  Lender        Joinder  Agreement  shall  be  acknowledged  and  consented  to  in  writing  by  the        Administrative Agent and, in the case of an Incremental Revolving Increase, each L/C        Issuer and (y) written confirmation from each existing Lender, if any, participating in such        Incremental Facility of the amount by which its Commitment will be increased, in the case        of  an  Incremental  Revolving  Increase,  which  confirmation  shall  be  acknowledged  and        consented to in writing by each L/C Issuer, or the amount of the term loan to be made by        such Lender, in the case of an Incremental Term Loan Facility;               (v)   if  requested  by  the  Administrative  Agent  or  any  new  Lender  or  Lender        participating in the Incremental Facility, the Administrative Agent shall have received a        favorable  opinion  of  counsel  (which  counsel  shall  be  reasonably  acceptable  to  the        Administrative Agent), addressed to the Administrative Agent and each Lender, as to such        customary matters concerning the Incremental Facility as the Administrative Agent may        reasonably request;               (vi)  the Borrower shall provide a Note to any new Lender joining on the Increase        Effective Date, if requested;                (vii) if the  BankNote Property Mortgage  exists  at  such  time,  then  the        Administrative Agent shall have received evidence, in form and substance satisfactory to        the Administrative Agent, that no Improvements located on the BankNote Property are        located within a Special Flood Hazard Area or, if any are, evidence that the flood insurance        prescribed herein has been obtained;                (viii) upon the reasonable request of any Lender made at least ten (10) days prior        to the applicable Increase Effective Date, the Borrower shall have provided to such Lender,        and  such  Lender  shall  be  reasonably  satisfied  with,  the  documentation  and  other        information so requested in connection with applicable “know your customer” rules and        regulations, Anti-Money-Laundering Laws, including, without limitation, the PATRIOT        Act, and the Beneficial Ownership Regulation, in each case at least five (5) days prior to        the applicable Increase Effective Date; and               (ix)  the Borrower shall have paid to the Bookrunner, for its own account, the fee        required to be paid pursuant to the Fee Letter.         (f)   Settlement  Procedures.   On  each  Increase  Effective  Date,  promptly  following  fulfillment of the conditions set forth in clause (e) of this Section 2.15, the Administrative Agent  shall notify the Lenders of the occurrence of the Incremental Facility effected on such Increase  Effective Date and, in the case of a Revolving Credit Increase, the amount of the Commitments  and the Applicable Percentage of each Lender as a result thereof, and in the case of an Incremental  Term Loan Facility, the allocated portion and applicable percentage of each Lender participating  in such Incremental Term Loan Facility and each such participating Lender shall make a term loan  to the Borrower equal to its allocated portion of such Incremental Term Loan Facility.  In the event  that an Incremental Revolving Increase results in any change to the Applicable Percentage of any                                          70 





 






   Lender, then on the Increase Effective Date, as applicable, (i) the participation interests of the  Lenders in any outstanding Letters of Credit shall be automatically reallocated among the Lenders  in accordance with their respective Applicable Percentages after giving effect to such increase, (ii)  any  new  Lender,  and  any  existing  Lender  whose  Commitment  has  increased,  shall  pay  to  the  Administrative  Agent  such  amounts  as  are  necessary  to  fund  its  new  or  increased  Applicable  Percentage of all existing Committed Loans, (iii) the Administrative Agent will use the proceeds  thereof to pay to all existing Lenders whose Applicable Percentage is decreasing such amounts as  are necessary so that each Lender’s share of all Committed Loans, will be equal to its adjusted  Applicable Percentage, and (iv) the Borrower shall pay any amounts required pursuant to Section  3.05 on account of the payments made pursuant to clause (iii) of this sentence.           (g)   Amendments.  In the case of an Incremental Term Loan Facility, this Agreement  and the other Loan Documents may be amended as necessary or appropriate, in the reasonable  opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15  with the consent of the Administrative Agent, each Lender providing such Incremental Term Loan  Facility and the Borrower, to give effect to or to evidence the terms of such Incremental Term  Loan Facility.         (h)   Conflicting Provisions.  This Section shall supersede any provisions in Section 2.13  or 10.01 to the contrary.         2.16  Cash Collateral.         (a)   Certain Credit Support Events.  If (i) an L/C Issuer has honored any full or partial  drawing request under any Letter of Credit and such drawing has resulted in an L/C Borrowing,  (ii) as  of  the  Letter  of  Credit  Expiration  Date,  any  L/C  Obligation  for  any  reason  remains  outstanding,  (iii) the  Borrower  shall  be  required  to  provide  Cash  Collateral  pursuant  to  Section 8.02(c), or (iv) there shall exist a Defaulting Lender, the Borrower shall immediately (in  the case of clause (iii) above) or within one Business Day (in all other cases) following any request  by the Administrative Agent or the applicable L/C Issuer, either (x) in the case of clause (i) or (ii)  above, repay the subject L/C Borrowing or  L/C  Obligation, if applicable, or (y) provide Cash  Collateral in an amount not less than the applicable Minimum Collateral Amount (determined in  the  case  of  Cash  Collateral  provided  pursuant  to clause (iv) above,  after  giving  effect  to  Section 2.17(a)(iv) and any Cash Collateral provided by the Defaulting Lender).         (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 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 2.16(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 Agent or the  L/C Issuers 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.  All  Cash  Collateral  (other  than  credit  support  not                                          71 





 






   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  Agreement, Cash Collateral provided under any of this Section 2.16 or Sections 2.03, 2.05, 2.17  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 Lender (or, as appropriate, its  assignee  following  compliance  with Section 10.06(b)(vi)))  or  (ii) the  determination  by  the  Administrative  Agent  and  the  L/C  Issuers that  there  exists  excess  Cash  Collateral; provided,  however, (x) Cash Collateral furnished by or on behalf of the Borrower shall not be released during  the continuance of a Default (and following application as provided in this Section 2.16 may be  otherwise applied in accordance with Section 8.03), and (y) the Person providing Cash Collateral  and the L/C Issuers may agree that Cash Collateral shall not be released but instead held to support  future anticipated Fronting Exposure or other obligations.         2.17  Defaulting Lenders.         (a)   Adjustments.   Notwithstanding  anything  to  the  contrary  contained  in  this  Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no  longer a Defaulting Lender, to the extent permitted by applicable Law:               (i)   Waivers and Amendments.  Such Defaulting Lender’s right to approve or        disapprove any amendment,  waiver or consent  with  respect  to  this  Agreement shall be        restricted as set forth in the definition of “Required Lenders” and Section 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  the  L/C  Issuers’ Fronting  Exposure  with  respect  to  such        Defaulting Lender in accordance with Section 2.16; 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                                          72 





 






                Agreement,  as  determined  by  the  Administrative  Agent; fifth,  if  so  determined  by  the  Administrative Agent and the Borrower, to be held in a deposit account and released pro  rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations  with respect to Loans under this Agreement and (y) Cash Collateralize the L/C Issuers’  future Fronting Exposure with respect to such Defaulting Lender with respect to future  Letters of Credit issued under this Agreement, in accordance with Section 2.16; sixth, to  the payment of any amounts owing to the Lenders or the L/C Issuers 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 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 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 2.17(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 2.17(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 Commitment        Fee payable under Section 2.09(a) for any period during which that Lender is a        Defaulting  Lender  (and  the  Borrower  shall  not  be  required  to  pay  any  such        Commitment Fee that otherwise would have been required to have been paid to that        Defaulting Lender).               (B)   Each Defaulting Lender shall be entitled to receive (x) Facility Fees        payable  under Section  2.09(a) for  any  period  during  which  that  Lender  is  a        Defaulting  Lender  only  to  extent  allocable  to  the  sum  of  (1)  the  outstanding        principal amount of the Loans funded by it, and (2) its Applicable Percentage of        the stated amount of Letters of Credit for which it has provided Cash Collateral        pursuant to Section 2.16 and (y) Letter of Credit Fees for any period during which        that Lender is a Defaulting Lender only to the extent allocable to its Applicable        Percentage of the stated amount of Letters of Credit for which it has provided Cash        Collateral pursuant to Section 2.16.                                    73 





 






                     (C)   With respect to any Facility Fee payable under Section 2.09(a) or              any Letter of Credit Fee not required to be paid to any Defaulting Lender pursuant              to clause (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 L/C Issuers 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 Applicable Percentages to Reduce Fronting Exposure.  All        or  any  part  of  such  Defaulting  Lender’s  participation  in  L/C  Obligations  shall  be        reallocated  among  the  Non-Defaulting  Lenders  in  accordance  with  their  respective        Applicable  Percentages  (calculated  without  regard  to  such  Defaulting  Lender’s        Commitment) but only to the extent that such reallocation does not cause the aggregate        Revolving Credit Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting        Lender’s Commitment.  Subject to Section 10.20, no reallocation hereunder shall constitute        a waiver or release of any claim of any party hereunder against a Defaulting Lender arising        from  that  Lender  having  become  a  Defaulting  Lender,  including  any  claim  of  a  Non-       Defaulting  Lender  as  a  result  of  such  Non-Defaulting  Lender’s  increased  exposure        following such reallocation.               (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  the  L/C        Issuers’ Fronting Exposure in accordance with the procedures set forth in Section 2.16.         (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 Applicable Percentages  (without giving effect to Section 2.17(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.         2.18  Inclusions, Exclusions and Removals of Borrowing Base Assets.         (a)   Inclusions of Borrowing Base Assets.  As of the Closing Date, the Borrowing Base  Assets listed on Schedule 2.18 (the “Borrowing Base Assets List”) shall be the initial Borrowing                                          74 





 






   Base  Assets.  Additional  Ground Net  Lease Assets  that qualify  as  Eligible Ground Net  Lease  Assets and additional Loan Assets that qualify as Eligible Loan Assets may be offered by the  Borrower  (each  such  offered  Ground  Net  Lease  Asset  and each  such  offered Loan  Asset,  a  “Nominated  Asset”),  and  shall  be  included  as  Borrowing  Base  Assets  in  accordance  with  the  following  and  any  other  applicable  terms  and  conditions  contained  in  this  Agreement  (or  as  otherwise agreed by the Borrower and Required Lenders):               (i)   Request for Inclusion of Borrowing Base Assets. The Borrower may, upon        notice to the Administrative Agent pursuant to delivery to the Administrative Agent of a        Nominated Asset Notice from time to time request that a Nominated Asset be approved        and included as a Borrowing Base Asset; provided that (A) such notice must be received        by the Administrative Agent at least ten (10) days prior to the date proposed in such notice        for  the  inclusion  of such  Nominated  Asset  as  a  Borrowing  Base  Asset  (such  date,  the        “Proposed Inclusion Date”) and (B) such notice shall be accompanied by copies of (1) all        ground net lease documentation with respect to such Nominated Asset or the underlying        mortgaged Real Property Asset with respect to  such Nominated Asset, (2) a list of the        Subsidiaries comprising the Direct Owner of the Nominated Asset and each Indirect Owner        of  the  Direct  Owner  and  their  U.S.  taxpayer  identification  numbers, and (3) the  street        address(es) and legal description of the Nominated Asset, together with a “Standard Flood        Hazard Determination Form” for such Nominated Asset.  Following receipt of a Nominated        Asset Notice, the Administrative Agent shall promptly notify each Lender of such notice.               (ii)  Diligence of Nominated Asset.  At the time of sending the Nominated Asset        Notice  or  promptly  thereafter,  the  Borrower  shall, at  its  expense, provide  the        Administrative Agent (for distribution to the Lenders) with the following due diligence        materials and information with respect to the applicable Nominated Asset; provided that        the Appraisal may be delivered to the Administrative Agent not later than 90 days after the        initial date of inclusion of such Nominated Asset:                     (A)   either an Appraisal dated no earlier than one hundred twenty (120)              days prior to the Proposed Inclusion Date (or such other date as the Administrative              Agent shall agree in writing) or written notice of the acquisition cost of the Real              Estate Asset underlying such Nominated Asset;                     (B)   an  underwriting  report prepared  by the  Borrower describing  in              reasonable detail the Nominated Asset and the diligence and analysis performed by              the Borrower with respect to such Ground Net Lease Asset or such Loan Asset and              the underlying mortgaged Real Property Asset, including, to the extent applicable              to such type of Nominated Asset, a description of the location, lease terms, tenant              lists, financial and operating results (for the most recent twelve (12) month period)              for the Nominated Asset, loan performance data, information regarding the ground              lessee  and  tenants  and  their  creditworthiness,  and  issues  pertaining  to  the              management  and  operation of  the  Nominated  Asset  and/or  the  underlying              mortgaged Real  Property Asset,  in  each  case, consistent  with  the  underwriting              reports provided by the Borrower with respect to the Initial Borrowing Base Assets              and solely to the extent such information is available to, or expected to be made              available to, a Loan Party and are not subject to confidentiality restrictions limiting                                          75 





 






                the  ability  of  the  Loan  Parties  to  provide  same; setting  forth  in  such  format  as  previously submitted by the Borrower on account of other Borrowing Base Assets  or  otherwise  as  the  Administrative  Agent  may  reasonably  accept  (in  each  case,  solely to  the extent  such information  is  available to,  or is  expected to  be made  available to, a Loan Party)         (C)   a draft Borrowing Base  Certificate with  the information  set  forth  therein being as of the date of delivery of the Nominated Asset Notice and giving  pro forma effect to the inclusion of such Nominated Asset as a Borrowing Base  Asset to the Credit Extension, if any, anticipated to be made contemporaneously  with the inclusion of such Nominated Asset or the proceeds of which are expected  to be used to acquire such Nominated Asset;         (D)   to  the  extent  not  included  in  the  underwriting  report  delivered  pursuant  to  clause  (B)  above, UCC,  judgment,  tax,  bankruptcy  and  litigation  searches with respect to the Subsidiary that is (or will be) the Direct Owner of such  Nominated Asset, each Subsidiary that is (or will be) an Indirect Owner of such  Direct Owner, and, in the case of an asset acquisition, the seller of such Nominated  Asset;         (E)   to  the  extent  not  included  in  the  underwriting  report  delivered  pursuant to clause (B) above, projections of Net Operating Income of all of the  Borrowing Base Assets (including the Nominated Asset) for the twelve (12) full  calendar month period following the date of the Proposed Inclusion Date (in each  case, solely to the extent such information is available to, or is expected to be made  available to, a Loan Party); and         (F)   such  other  items  pertaining  to  such  Nominated Asset and  each  Subsidiary of the Borrower that is the Direct Owner of such Nominated Asset or an  Indirect Owner of such Direct Owner as the Administrative Agent or any Lender  may reasonably request, including all documentation and other information that the  Administrative Agent or any Lender requests in order to comply with its obligations  under applicable  “know  your  customer”  rules  and  regulations,  Anti-Money- Laundering  Laws,  including,  without  limitation,  the  PATRIOT  Act,  and  the  Beneficial  Ownership  Regulation, and  the  results  of  any  such  “know  your  customer” or similar investigation conducted by the Administrative Agent or any  Lender shall be reasonably satisfactory to the Administrative Agent or such Lender  in all respects.   (iii) Approval of Nominated Asset.          (A)   The Administrative Agent shall have the right to accept or reject any  Nominated Asset with (x) in the case of a Ground Net Lease Asset, an Appraised  Value, and (y) in the case of a Loan Asset, a Loan Asset Value, of $25,000,000 or  less; provided that at any time that there are at least four (4) Borrowing Base Assets,  the Administrative Agent shall have the right to accept or reject any Nominated  Asset with (x) in the case of a Ground Net Lease Asset, an Appraised Value, and                              76 





 






                      (y) in the case of a Loan Asset, a Loan Asset Value, of $50,000,000 or less.  The        Administrative Agent and the Required Lenders shall have the right to accept or        reject all other Nominated Assets.                (B)   In the event of a request that is subject to Lender approval, each        Lender  shall  notify  the  Administrative  Agent  not  later  than  ten  (10)  days  after        receipt by such Lender of all of the items set forth in clauses (i) and (ii) above        whether it approves or rejects the applicable Nominated Asset. Any Lender that        fails to notify the Administrative Agent regarding its approval or rejection within        such time period shall be deemed to have approved the inclusion of the Nominated        Asset as a Borrowing Base Asset.  The Administrative Agent shall endeavor to        notify the Borrower in writing not later than the eleventh (11th) day (or, if such day        is not a Business Day, then on the next succeeding Business Day) after receipt by        the Administrative Agent of all of the items set forth in clauses (i) and (ii) above,        whether or not the Administrative Agent and, as applicable, the Required Lenders        elect to approve or reject such Nominated Asset and, if no notice is received by the        Borrower within such  time period,  such  Nominated  Asset  shall  be  deemed        approved.                 (C)   Notwithstanding  anything  in  this  Agreement  to  the  contrary,  the        Administrative  Agent  and  the  Lenders  shall  have  until  ten  (10)  days  following        receipt  of  the  initial  Appraisal  for  a Nominated Asset and  a fully  completed        Borrowing Base Certificate giving pro forma effect to the updated Appraised Value        of such Ground Net Lease Asset as set forth in such Appraisal and (x) any Lender        that  fails  to  notify  the  Administrative  Agent  regarding  its  approval  or  rejection        within such ten (10)-day period shall be deemed to have approved the continued        inclusion  of  the Nominated Asset  as  a  Borrowing  Base  Asset  and  (y) the        Administrative Agent shall endeavor to notify the Borrower in writing whether or        not  the  Administrative  Agent  and,  as  applicable,  the  Required  Lenders  elect  to        approve or reject the continued inclusion of such Nominated Asset and, if no notice        is received by the Borrower within such ten (10)-day period, such Nominated Asset        shall be deemed to continue as a Borrowing Base Asset.         (iv)  Conditions to Nominated Assets Being Included as Borrowing Base Assets.   The inclusion of any Nominated Asset approved by the Administrative Agent or by the  Administrative  Agent  and  the  Required  Lenders  pursuant  to Section  2.18(a)(iii) as  a  Borrowing Base Asset, is subject to satisfaction of the following conditions precedent (and  such Nominated Asset shall be included as a Borrowing Base Asset hereunder commencing  on the date on which all such conditions precedent are satisfied (unless waived in writing  by the Administrative Agent), (such date, the “Inclusion Effective Date”)):               (A)   the  Borrower  shall  deliver,  or  cause  to  be  delivered,  to  the        Administrative  Agent,  at  the  Borrower's  sole  expense,  each  of  which  shall  be        originals, or e-mail (in a .pdf format) or facsimiles (followed promptly by originals)        unless otherwise specified, each of which documents to be signed by any Subsidiary        shall be properly executed by a Responsible Officer of such signing Subsidiary and                                    77 





 






                dated as of the Inclusion Effective Date and each in form and substance satisfactory  to the Administrative Agent and the Required Lenders:                (I)   if  the  Proposed  Inclusion  Date  is  prior  to  the  Investment  Grade Release, a joinder agreement in substantially the form attached hereto as  Exhibit  H,  together  with  all  of the  items  described  in Sections 4.01(a)(iv),  4.01(a)(v) and 4.01(a)(viii) with respect to each Subsidiary of the Borrower that is  the Direct Owner of such Nominated Asset or an Indirect Owner of such Direct  Owner (in each case to the extent not already a Subsidiary Guarantor);               (II)  if  the  Proposed  Inclusion  Date  is  prior  to  the  Investment  Grade Release, a joinder agreement and/or pledge amendment with respect to the  Pledge  Agreement,  in  form  and  substance  reasonably  satisfactory  to the  Administrative Agent, pursuant to which the Equity Interests in the Direct Owner  of such Nominated Asset and the Indirect Owners of such Direct Owner shall be  pledged in favor of the Administrative Agent for the benefit of the Secured Parties  (in each case to the extent not already pledged as Collateral);         (B)   if  the  Proposed  Inclusion  Date  is  prior  to  the  Investment  Grade  Release, the  Administrative  Agent  shall  have  received a  Perfection  Certificate  Supplement and such other agreements and documents, and evidence that all other  actions, recordings and filings have been or will contemporaneously be taken, in  each  case  that  the  Administrative  Agent  may  reasonably  deem  necessary  or  desirable in order to create or perfect the Liens created under the Pledge Agreement  (including the delivery of the certificates representing any Equity Interests in any  Person that have been pledged pursuant  to  the Pledge Agreement together with  undated stock powers or other  appropriate instruments  of transfer executed and  delivered in  blank  by  a  duly  authorized  officer  of  the  holder(s)  of  such  Equity  Interests and the filing of UCC-1 financing statements and/or UCC-3 amendments,  as applicable, in form and substance satisfactory to the Administrative Agent and  the Required Lenders);         (C)   the Administrative Agent shall have received all such termination  statements and other documents as may be necessary to terminate all Liens on such  Nominated Asset and the Collateral, other than Permitted Property Encumbrances  and Permitted Equity Encumbrances;         (D)   the Borrower shall have delivered to the Administrative Agent, if  required by the Administrative Agent, favorable opinions of counsel to the Loan  Parties,  addressed  to  the  Administrative  Agent  and  each  Lender,  in  form  and  substance  reasonably  satisfactory  to  the  Administrative  Agent,  and  as  to  such  matters as the Administrative Agent may reasonably request concerning the Loan  Documents  and  Loan  Parties  executing  Loan  Documents, all  Persons  that  are  becoming Loan Parties in connection with the inclusion of such Nominated Asset  as a Borrowing Base Asset, such Nominated Asset and any Collateral;                              78 





 






                     (E)   the  Borrower  shall  have  delivered  to  the  Administrative  Agent  a              certificate of a Responsible Officer certifying that (1) no Default has occurred and              is  continuing or  would  result  from  the  inclusion  of  such  Nominated  Asset  as  a              Borrowing Base Asset; (2) all financial and operating information delivered to the              Administrative  Agent  pursuant  to Section  2.18(a)(ii), to  the  knowledge  of  the              Borrower, contains no material misstatement of fact or omit to state any material              fact  that  would  make  such  information  not  be  true  and  correct; and (3)  such              property  satisfies (or will  satisfy concurrently  with  such  inclusion  and  the              satisfaction  of  the  conditions precedent  in  this Section  2.18(a)(iv)) each  of  the              criteria set forth in the definition of Eligible Ground Net Lease Asset or Eligible              Loan Asset, as applicable, and would not be required to be excluded as a Borrowing              Base Asset pursuant to Section 2.18(b);                      (F)   the  Borrower  shall  have  delivered  to  the  Administrative  Agent a              fully completed Borrowing Base Certificate with the information set forth therein              being as of the Inclusion Effective Date and giving pro forma effect to the inclusion              of such Nominated Asset as a Borrowing Base Asset to the Credit Extension, if any,              anticipated to be made contemporaneously with the inclusion of such Nominated              Asset or the proceeds of which are expected to be used to acquire such Nominated              Asset;                     (G)   as of the last day of the fiscal quarter of the Borrower most recently              ended prior to the Inclusion Effective Date, giving pro forma effect to the inclusion              of such Nominated Asset as a Borrowing Base Asset and to the Credit Extension,              if  any,  anticipated  to  be  made  contemporaneously  with  the  inclusion of  such              Nominated Asset or the proceeds of which are expected to be used to acquire such              Nominated Asset, the Borrower is in compliance with the covenants set forth in              Section 7.11; and                     (H)   the Borrower shall have delivered to the Administrative Agent an              updated Borrowing Base Assets List.          (b)   Exclusion  of  Borrowing  Base  Assets.  Any of  the  following  shall  result  in the  Appraised Value, in the case of a Ground Net Lease Asset, or the Loan Asset Value, in the case of  a Loan Asset, of the applicable Borrowing Base Asset being deemed to be zero:                (i)   Loss of Eligibility Status.  Immediately, if such Borrowing Base Asset fails        to satisfy any of the criteria set forth in the definition of Eligible Ground Net Lease Asset        or Eligible Loan Asset, as applicable, (unless each such failure is susceptible to cure within        a period of fifteen (15) Business Days and the Loan Parties have undertaken to cure each        such failure within such period, in  which  case the Appraised Value or the  Loan Asset        Value,  as  applicable, of  such  Borrowing  Base  Asset  will remain  at  the  then  existing        Appraised Value or Loan Asset Value, as applicable,  and only be considered to be zero at        the end of such period in the event that such Borrowing Base Asset fails to satisfy all of        the applicable criteria prior thereto).                                          79 





 






               (ii)  Dispositions.  Immediately, upon  a  Disposition  of (whether  in  one        transaction or in a series of transactions or pursuant to a Division) all assets comprising        such Borrowing Base Asset.               (iii) Releases.  Immediately, upon  the  release  of  such  Borrowing  Base  Asset        pursuant to Section 2.18(c).          (c)   Removal of  Borrowing  Base  Assets  and Releases of  Collateral  and  Subsidiary  Guarantors.                 (i)   Upon satisfaction of each of the Release Conditions  with  respect  to  any        proposed Release Transaction, the release contemplated by such Release Transaction shall        be effective automatically and without further action of any Person and:                       (A)   if the proposed Release Transaction involves release of a Subsidiary              Guarantor from its obligations under the Guaranty, the Administrative Agent shall,              at the sole expense of the Borrower, execute and deliver such documents as the              Loan  Parties  may  reasonably  request  as  necessary  or  desirable  to  evidence  the              release  of  the  applicable  Subsidiary  Guarantor  from  its  obligations  under  the              Guaranty;                     (B)   if the proposed Release Transaction involves release of the Lien of              the  Administrative  Agent  on  any  Loan  Asset  or  Ground Net Lease  Asset,  the              Administrative  Agent  shall,  at  the  sole  expense  of  the  Borrower,  execute  and              deliver such documents as the Loan Parties may reasonably request as necessary or              desirable to evidence the release of the Lien of the Administrative Agent on such              Loan Asset or Ground Net Lease Asset; and                     (C)   if the proposed Release Transaction involves release of the Lien of              the  Administrative  Agent  on  any Equity  Interest  in  a  Subsidiary  Guarantor or              owned, directly or indirectly by a Subsidiary Guarantor, the Administrative Agent              shall, at the sole expense of the Borrower, execute and deliver such documents as              the Loan Parties may reasonably request as necessary or desirable to evidence the              release of the Lien of the Administrative Agent on such Equity Interest and/or the              release of the applicable Subsidiary Guarantor from its obligations under the Pledge              Agreement (including, in the case of this clause (C) and clauses (A) and (B) above,              executing documents reasonably in advance to the extent practicable in order to              facilitate releases, including placing documents into escrow on terms acceptable to              the Administrative Agent);               (ii)  For the avoidance of doubt:                     (A)   upon a  release  pursuant  to  a  Release  Transaction  of  the  type              contemplated in either clause (i)(A) or (i)(C) above, all Borrowing Base Assets              owned  or  ground  leased,  directly  or  indirectly,  by  the applicable Subsidiary              Guarantor shall be removed from the calculation of the Borrowing Base Amount;              and                                          80 





 






                     (B)   upon  a  release  pursuant  to  a  Release  Transaction  of  the  type              contemplated in clause (i)(B) above, the Loan Asset or the Ground Net Lease Asset,              as  applicable,  that  is  the  subject  of  the  Lien  release  shall  be  removed  from  the              calculation of the Borrowing Base Amount.                (iii) The Administrative Agent shall promptly notify the Lenders following the        consummation of any proposed Release Transaction.               (iv)  It is understood and agreed that no release pursuant to this Section 2.18(c)        shall impair or otherwise adversely affect the Liens, security interests, guarantees and other        rights of the Administrative Agent or the Secured Parties under the Loan Documents not        being released (or as to the parties to the Loan Documents and the Collateral subject to the        Loan Documents not being released).          2.19  Assignment  of  Assigned  BankNote  Property  Mortgage;  Release  and  Indemnity by Loan Parties; Authorization by Lenders.         (a)   Assignment of the BankNote Property Mortgage in connection with a Replacement  BankNote Property Mortgage Financing.                 (i)   General.  If  at  any  time  the  Borrower  decides  to  obtain  mortgage  debt        financing from a third-party lender with respect  to the BankNote Property or to sell or        otherwise  convey  the  BankNote  Property  to  a  purchaser  or  transferee  that  will  obtain        mortgage debt financing from a third-party lender, which mortgage debt financing will be        effectuated by (x) having such third-party lender purchase the Special Advance in full and        (y) transferring the BankNote Property Mortgage and the BankNote Property Mortgage        Note in their entirety to such third-party lender (such debt third-party debt financing being        referred to herein as the “Replacement BankNote Property Mortgage Financing”), then the        Borrower shall provide the Administrative Agent with written notice thereof (such notice,        a “BankNote Property Mortgage Transfer Notice”) within fifteen (15) Business Days (or        such shorter period of time agreed to by the Administrative Agent in writing) prior to the        consummation  of  the  Replacement  BankNote  Property  Mortgage  Financing,  which        BankNote Property Mortgage Transfer Notice shall contain the following information:                     (A)   The  names  of  the  lender(s)  (or  agent  on  behalf  of  the  lender(s))              (x) providing the Replacement BankNote Property Mortgage Financing that will be              purchasing the Special Advance (and, if there is more than one such lender, the              portion of the Special Advance each such lender will be purchasing) and (y) that              will  be  assigned  the  BankNote  Property  Mortgage and  the  BankNote  Property              Mortgage Note;                      (B)   The  anticipated  date  of  consummation  of  the  Replacement              BankNote Property Mortgage Financing (which date shall be a Business Day); and                      (C)   Any other information reasonably requested by the Administrative              Agent (or any Lender through the Administrative Agent).                                          81 





 






                A  BankNote  Property  Mortgage  Transfer  Notice  provided  by  the  Borrower  to  the  Administrative Agent under this Section 2.19(a) may be revoked by the Borrower at any  time  prior  to  the  consummation  of  the  Replacement  BankNote  Property  Mortgage  Financing; provided that in the case of any such revocation, the Borrower shall pay any  amounts required to be paid under Section 3.05 resulting from such revocation.  The Administrative Agent shall distribute any such BankNote Property Mortgage Transfer  Notice to the Lenders promptly following its receipt thereof.        (ii)  Actions  to  be  taken  by  Administrative  Agent  in  connection  with  the  Replacement BankNote Property Mortgage Financing.  Subject to the satisfaction of the  conditions  precedent  set  forth  in Section  2.19(a)(iii),  the  Administrative  Agent  (or  the  Secured Party(ies) holding the BankNote Property Mortgage Note) shall (at the sole cost  and expense of the Borrower) in connection with any Replacement BankNote Property  Mortgage Financing, for a purchase price equal to the Outstanding Amount of the Special  Advance  plus  all  accrued  and  unpaid  interest  thereon,  assign  the  BankNote  Property  Mortgage  Note  and  the  BankNote  Property  Mortgage  to  the  lender(s)  providing  such  Replacement BankNote Property Mortgage Financing by executing and delivering to such  lender(s) (x) either (A) an allonge to or assignment of the BankNote Property Mortgage  Note, without any representation or warranty by, or recourse to, the Administrative Agent  or any Secured Party, and the original BankNote Property Mortgage Note, or (B) if the  original BankNote Property Mortgage Note shall have been lost, destroyed or mutilated, a  copy of the BankNote Property Mortgage Note and a lost note affidavit and indemnity in  favor of such lender(s), (y) if in the possession of Administrative Agent, all other notes  evidencing the Assigned BankNote Property Mortgage Debt received by Administrative  Agent in connection with the assignment of the Existing BankNote Property Mortgage  Note to Administrative Agent and (z) an assignment of the BankNote Property Mortgage,  without any representation or warranty by, or recourse to, the Administrative Agent or any  Secured Party, and the original BankNote Property Mortgage, if in the possession of the  Administrative Agent.  For the avoidance of doubt, any assignment pursuant to this Section  2.19(a) of  the  BankNote  Property  Mortgage  Note  (and  the  Special  Advance)  to  any  lender(s)  providing  a  Replacement  BankNote  Property  Mortgage  Financing  shall  not  include or result in an assignment of the Commitment of any Lender to such lender(s), nor  shall it result in a reduction in the amount of the Commitment of any Lender.          (iii) Conditions Precedent to Administrative Agent’s Obligations.  As conditions  precedent to the obligation of the Administrative Agent to take any of the actions specified  in Section  2.19(a)(ii) with  respect  to  the  Replacement  BankNote  Property  Mortgage  Financing, each of the following requirements shall be satisfied:               (A)   The Administrative Agent shall have received a BankNote Property        Mortgage Transfer Notice within the time period required under clause (a)(i) above;               (B)   The allonge to or assignment of the BankNote Property Mortgage        Note (or lost note affidavit and indemnity if applicable) and the assignment of the        BankNote Property  Mortgage (such  documentation,  the  “BankNote  Property        Mortgage  Transfer  Documentation”)  shall  be  in  customary  form  and  otherwise        satisfactory to the Administrative Agent in all respects.  Other than the BankNote                                    82 





 






               Property  Mortgage  Transfer  Documentation,  the  original  BankNote  Property              Mortgage  Note  (or  lost  note  affidavit  and  indemnity  if  applicable  as  set  forth              above), any other notes evidencing the BankNote Property Mortgage Debt received              by  Administrative  Agent  in  connection  with  the  assignment  of  the  Existing              BankNote Property Mortgage Note to Administrative Agent if in the possession of              Administrative Agent, and the original Assigned BankNote Property Mortgage (if              within the Administrative Agent’s possession), neither the Administrative Agent              nor  any other  Secured  Party shall  be  required  to  execute or  deliver any other              documents,  agreements,  instruments  or  affidavits in  connection with  the              assignment of the BankNote Property Mortgage Note or the Assigned BankNote              Property Mortgage, including, without limitation, pursuant to Section 255 of the              Tax Law of the State of New York or Section 275 of the Real Property Law of the              State of New York;                     (C)   All Indebtedness and Liens, if any, incurred by any Loan Party in              connection with such Replacement BankNote Property Mortgage Financing shall              be permitted under Sections 7.01 and 7.03;                      (D)   The BankNote Property Mortgage Transfer Documentation and the              applicable transactions set forth in Section 2.19(a)(ii) shall be in accordance with              all applicable Laws, including, without limitation, Section 255 of the Tax Law of              the State of New York and all regulations applicable thereto;                     (E)   Contemporaneously  with  the  effectiveness  of  the  BankNote              Property Mortgage Transfer Documentation, the Administrative Agent, on behalf              of the Lenders, shall have received payment in full of the purchase price payable in              connection with sale or transfer of the BankNote Property Mortgage Note (which              purchase  price  received  by  the  Administrative  Agent  will  be  distributed  by  the              Administrative Agent to each Lender in the amount due to such Lender in respect              of its portion of the Special Advance); and                     (F)   Contemporaneously  with  the  effectiveness  of  the  BankNote              Property Mortgage Transfer Documentation,  the  BankNote  Property  shall  be              removed as a Borrowing Base Asset in accordance with Section 2.18(c).          (b)   Termination  of  the BankNote Property  Mortgage.  Notwithstanding  any  other  provision of this Agreement or any other Loan Document to the contrary, the Administrative Agent  may in its reasonable discretion, and shall at the direction of the Required Lenders acting in their  reasonable  discretion,  terminate  and  release  the BankNote  Property Mortgage  so  long  as  the  Administrative Agent shall have given the Borrower written notice thereof at least fifteen (15)  Business Days prior to any such termination and release; provided, however, that the Administrative  Agent shall not be required to give any such prior notice to the Borrower if the Administrative  Agent, in its reasonable discretion, has determined that delay of such termination and release would  be detrimental to the Administrative Agent, the L/C Issuers or the Lenders.  The Administrative  Agent shall, at the Borrower’s sole cost and expense, enter into such documents and instruments as  are required to effect any such termination and release of the BankNote Property Mortgage, which  documents and instruments shall be in form and substance satisfactory to the Administrative Agent.                                           83 





 






   Notwithstanding  anything  to  the  contrary  contained  in  this  Agreement, the termination and/or  release of the BankNote Property Mortgage shall not constitute a waiver, termination or release of  any of the other rights and remedies of the Administrative Agent or the Lenders under the Loan  Documents.         (c)   Release and Indemnity.  The Borrower and each other Loan Party hereby agrees, on  behalf of itself and its Affiliates, that neither the Administrative Agent nor any Lender shall be  responsible for any losses, costs or expenses incurred by any Loan Party or Affiliate thereof in  connection with the loss of any mortgage recording tax credits pertaining to the BankNote Property  Mortgage.  Furthermore, and without limitation of any of the Borrower’s obligations under Section  10.04(b), the Borrower shall and hereby agrees to indemnify, defend and hold harmless the  Administrative Agent, each Lender and each other Indemnitee from and against any and all losses,  costs, claims, damages, liabilities, deficiencies, judgments or expenses of every kind and nature  (including, without limitation, amounts paid in settlement, court costs and the fees and the  reasonable and documented fees, charges and disbursements of any counsel for any Indemnitee  incurred  in  connection  with  any  litigation,  investigation,  claim  or  proceeding  or  any  advice  rendered  in  connection  therewith) actually incurred by any  Indemnitee or  asserted  against  any  Indemnitee  by  any  Person  (including  the  Borrower  or  any  other  Loan  Party) other  than  such  Indemnitee and its Related Parties in connection with, arising out of, or by reason of, any of the  transactions or arrangements contemplated under this Section 2.19 or any suit, cause of action,  claim, arbitration, investigation or settlement, consent decree, subpoena or other proceeding relating  thereto, including, without limitation, any losses, costs, claims, damages, liabilities, deficiencies,  judgments or expenses resulting from (i) the failure of any Person to pay any mortgage recording  taxes associated with the BankNote Property Mortgage and (ii) the assignment of the BankNote  Property Mortgage  and  any  related  splitting  and/or  assignment  of  any  Indebtedness  under  the  BankNote Property Mortgage Note; provided that such indemnity shall not, as to any Indemnitee,  be available to the extent such losses, claims, damages, liabilities or related expenses (A) result  from a material breach of the Loan Documents by, or the bad faith, gross negligence or willful  misconduct of, any Indemnitee, as determined by a court of competent jurisdiction by final and  nonappealable judgment; or (B) constitute indirect, special, incidental, consequential or punitive  damages (as opposed to direct or actual damages).         (d)   Lender Authorization.  Each Lender hereby grants to the Administrative Agent all  requisite authority to (i) enter into the BankNote Property Mortgage Debt Assignment on behalf of  the Lenders, and accept any promissory note, including the BankNote Property Mortgage Note on  their behalf and (ii) enter into any of the transactions or arrangements contemplated under this  Section  2.19 on  behalf  of the  Lenders,  and to bind the  Lenders by  the  Administrative  Agent’s  entering into or otherwise becoming bound thereby, and no further consent or approval on the part  of any Lender is or will be required in connection with any such actions taken by the Administrative  Agent.                                          84 





 






          ARTICLE III.      TAXES, YIELD PROTECTION AND ILLEGALITY         3.01  Taxes.         (a)   Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.               (i)   Any and all payments by or on account of any obligation of any Loan Party        under any Loan Document shall be made without deduction or withholding for any Taxes,        except as required by applicable Laws.  If any applicable Laws (as determined in the good        faith  discretion  of  the  Administrative  Agent or  a  Loan  Party)  require  the  deduction  or        withholding of any Tax from any such payment by the Administrative Agent or a Loan        Party, then the Administrative Agent or such Loan Party shall be entitled to make such        deduction  or  withholding,  upon  the  basis  of  the  information  and  documentation  to  be        delivered pursuant to subsection (e) below.               (ii)  If any Loan Party or the Administrative Agent shall be required by the Code        to withhold or deduct any Taxes, including both United States Federal backup withholding        and withholding taxes, from any payment, then (A) such Loan Party or the Administrative        Agent shall withhold or make such deductions as are determined by such Loan Party or the        Administrative Agent to be required based upon the information and documentation it has        received  pursuant  to subsection (e) below,  (B) such  Loan  Party  or  the  Administrative        Agent shall timely pay the full amount withheld or deducted to the relevant Governmental        Authority  in  accordance  with  the  Code,  and  (C) to  the  extent  that  the  withholding  or        deduction is made on account of Indemnified Taxes, the sum payable by the applicable        Loan Party shall be increased as necessary so that after any required withholding or the        making  of  all  required  deductions  (including  deductions  applicable  to  additional  sums        payable under this Section 3.01) the applicable Recipient receives an amount equal to the        sum it would have received had no such withholding or deduction been made.               (iii) If any  Loan Party  or the Administrative  Agent  shall be  required by  any        applicable Laws other than the Code to withhold or deduct any Taxes from any payment,        then (A) such Loan Party or the Administrative Agent, as required by such Laws, shall        withhold or make such deductions as are determined by it to be required based upon the        information and documentation it has received pursuant to subsection (e) below, (B) such        Loan Party or the Administrative Agent, to the extent required by such Laws, shall timely        pay  the  full  amount  withheld  or  deducted  to  the  relevant  Governmental  Authority  in        accordance with such Laws, and (C) to the extent that the withholding or deduction is made        on account of Indemnified Taxes, the sum payable by the applicable Loan Party shall be        increased as necessary so that after any required withholding or the making of all required        deductions  (including  deductions  applicable  to  additional  sums  payable  under  this        Section 3.01) the applicable Recipient receives an amount equal to the sum it would have        received had no such withholding or deduction been made.         (b)   Payment  of  Other  Taxes  by  the  Borrower.   Without  limiting  the  provisions  of  subsection (a) above, the Loan 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.                                          85 





 






         (c)   Tax Indemnifications.  (i) Each of the Loan Parties shall, and does hereby, jointly  and severally indemnify each Recipient, and shall make payment in respect thereof 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 penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether  or  not  such  Indemnified  Taxes  were  correctly  or  legally  imposed  or  asserted  by  the  relevant  Governmental Authority.  A certificate as to the amount of such payment or liability delivered to  the Borrower by a Lender or an L/C Issuer (with a copy to the Administrative Agent), or by the  Administrative  Agent  on  its  own  behalf  or  on  behalf  of  a  Lender  or an L/C  Issuer,  shall  be  conclusive absent manifest error.  Each of the Loan Parties shall, and does hereby, jointly and  severally indemnify the Administrative Agent, and shall make payment in respect thereof within  10 days after demand therefor, for any amount which a Lender or an L/C Issuer for any reason  fails to pay indefeasibly to the Administrative Agent as required pursuant to Section 3.01(c)(ii)  below.               (ii)  Each  Lender  and each L/C  Issuer  shall,  and  does  hereby,  severally        indemnify, and shall make payment in respect thereof within 10 days after demand therefor,        (x) the Administrative Agent against any Indemnified Taxes attributable to such Lender or        such L/C Issuer (but only to the extent that any Loan Party has not already indemnified the        Administrative Agent for such Indemnified Taxes and without limiting the obligation of        the Loan Parties to do so), (y) the Administrative Agent and the Loan Parties, as applicable,        against 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  (z) the        Administrative Agent  and the Loan Parties, as applicable, against  any  Excluded Taxes        attributable to such Lender or such L/C Issuer, in each case, that are payable or paid by the        Administrative Agent or a Loan Party in connection with any Loan Document, and any        reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes        were correctly or legally imposed or asserted by the relevant Governmental Authority.  A        certificate as to the amount of such payment or liability delivered to any Lender by the        Administrative Agent shall be conclusive absent manifest error.  Each Lender and each        L/C Issuer hereby authorizes the Administrative Agent to set off and apply any and all        amounts at any time owing to such Lender or such L/C Issuer, as the case may be, under        this Agreement or any other Loan Document against any amount due to the Administrative        Agent under this clause (ii).         (d)   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.         (e)   Status of Lenders; Tax Documentation.               (i)   Any  Lender  that  is  entitled  to  an  exemption  from  or  reduction  of        withholding Tax with respect to payments made under any Loan Document shall deliver                                          86 





 






                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(e)(ii)(A), (ii)(B)  and (ii)(D) below)  shall  not  be  required  if  in  the  Lender’s  reasonable  judgment  such  completion,  execution  or  submission  would  subject  such  Lender  to  any  material  unreimbursed  cost  or  expense  or  would  materially  prejudice  the  legal  or  commercial  position of such Lender.         (ii)  Without  limiting  the  generality  of  the  foregoing,  in  the  event  that  the  Borrower is a U.S. Person,               (A)   any Lender that is a U.S. Person shall deliver to the Borrower and        the Administrative Agent on or prior to the date on which such Lender becomes a        Lender under this Agreement (and from time to time thereafter upon the reasonable        request of the Borrower or the Administrative Agent), executed copies of IRS Form        W-9 certifying that such Lender is exempt from U.S. federal backup withholding        tax;               (B)   any Foreign Lender shall, to the extent it is legally entitled to do so,        deliver to the Borrower and the Administrative Agent (in such number of copies as        shall be requested by the recipient) on or prior to the date on which such Foreign        Lender becomes a Lender under this Agreement (and from time to time thereafter        upon  the  reasonable  request  of  the  Borrower  or  the Administrative  Agent),        whichever of the following is applicable:                     (I)   in the case of a Foreign Lender claiming the benefits of an        income tax treaty to which the United States is a party (x) with respect to payments        of interest under any Loan Document, executed  copies of IRS Form W-8BEN-E        (or W-8BEN, as applicable) establishing an exemption from, or reduction of, U.S.        federal withholding Tax pursuant to the “interest” article of such tax treaty and        (y) with respect to any other applicable payments under any Loan Document, IRS        Form W-8BEN-E (or W-8BEN, as applicable) establishing an exemption from, or        reduction of, U.S. federal withholding Tax pursuant to the “business profits” or        “other income” article of such tax treaty;                     (II)  executed copies of IRS Form W-8ECI;                     (III) in the case of a Foreign Lender claiming the benefits of the        exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate                                    87 





 






                      substantially in the form of Exhibit G-1 to the effect that such Foreign Lender is        not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent        shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the        Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of        the Code (a “U.S. Tax Compliance Certificate”) and (y) executed  copies of IRS        Form W-8BEN-E (or W-8BEN, as applicable); or                     (IV)  to the extent a Foreign Lender is not the beneficial owner,        executed  copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS        Form W-8BEN-E (or W-8BEN, as applicable), a U.S. Tax Compliance Certificate        substantially  in  the  form  of Exhibit G-2 or Exhibit G-3,  IRS  Form  W-9,  and/or        other certification documents from each beneficial owner, as applicable; provided        that if the Foreign Lender is a partnership and one or more direct or indirect partners        of such Foreign Lender are claiming the portfolio interest exemption, such Foreign        Lender may provide a U.S. Tax Compliance Certificate substantially in the form of        Exhibit G-4 on behalf of each such direct and indirect partner;               (C)   any Foreign Lender shall, to the extent it is legally entitled to do so,        deliver to the Borrower and the Administrative Agent (in such number of copies as        shall be requested by the recipient) on or prior to the date on which such Foreign        Lender becomes a Lender under this Agreement (and from time to time thereafter        upon the reasonable request of the Borrower or the Administrative Agent), executed         copies  of  any  other  form  prescribed  by  applicable  law  as  a  basis  for  claiming        exemption from or a reduction in U.S. federal withholding Tax, duly completed,        together  with  such  supplementary  documentation  as  may  be  prescribed  by        applicable law to permit the Borrower or the Administrative Agent to determine the        withholding or deduction required to be made; and               (D)   if a payment made to a Lender under any Loan Document would be        subject to U.S. federal withholding Tax imposed by FATCA if such Lender were        to fail to comply with the applicable reporting requirements of FATCA (including        those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such        Lender shall deliver to the Borrower and the Administrative Agent at the time or        times  prescribed  by  law  and  at  such  time  or  times  reasonably  requested  by  the        Borrower  or  the  Administrative  Agent  such  documentation  prescribed  by        applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code)        and such additional documentation reasonably requested by the Borrower or the        Administrative Agent as may be necessary for the Borrower and the Administrative        Agent to comply with their obligations under FATCA and to determine that such        Lender has complied with such Lender’s obligations under FATCA or to determine        the amount to deduct and withhold from such payment.  Solely for purposes of this        clause (D), “FATCA” shall include any amendments made to FATCA after the date        of this Agreement.         (iii) Each Lender agrees that if any form or certification it previously delivered  pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it                                    88 





 






         shall  update  such  form  or  certification  or  promptly  notify  the  Borrower  and  the        Administrative Agent in writing of its legal inability to do so.         (f)   Treatment of Certain Refunds.  Unless required by applicable Laws, at no time shall  the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender  or an L/C Issuer, or have any obligation to pay to any Lender or any L/C Issuer, any refund of  Taxes withheld or deducted from funds paid for the account of such Lender or such L/C Issuer, as  the case may be.  If any Recipient determines, in its sole discretion that it has received a refund of  any Taxes as to which it has been indemnified by any Loan Party or with respect to which any  Loan Party has paid additional amounts pursuant to this Section 3.01, it shall pay to the Loan Party  an amount equal to such refund (but only to the extent of indemnity payments made, or additional  amounts paid, a Loan Party under this Section 3.01 with respect to the Taxes giving rise to such  refund),  net  of  all  out-of-pocket  expenses  (including  Taxes)  incurred  by  such  Recipient,  and  without interest (other than any interest paid by the relevant Governmental Authority with respect  to such refund), provided that the Loan Party, upon the request of the Recipient, agrees to repay  the amount paid over to the Loan Party (plus any penalties, interest or other charges imposed by  the relevant Governmental Authority) to the Recipient in the event the Recipient is required to  repay such refund to such Governmental Authority.  Notwithstanding anything to the contrary in  this subsection, in no event will the applicable Recipient be required to pay any amount to the  Loan Party pursuant to this subsection the payment of which would place the Recipient in a less  favorable net after-Tax position than such Recipient would have been in if the Tax subject to  indemnification  and  giving  rise  to  such  refund  had  not  been  deducted,  withheld  or  otherwise  imposed and the indemnification payments or additional amounts with respect to such Tax had  never been paid.  This subsection shall not be construed to require any Recipient to make available  its tax returns (or any other information relating to its taxes that it deems confidential) to any Loan  Party or any other Person.         (g)   Survival.   Each  party’s  obligations  under  this Section 3.01 shall  survive  the  resignation or replacement of the Administrative Agent or any assignment of rights by, or the  replacement of, a Lender or an L/C Issuer, the termination of the Commitments and the repayment,  satisfaction or discharge of all other Obligations.         3.02  Illegality.   If  any  Lender  determines in  good  faith that  any  Law  has  made  it  unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or  its Lending Office to perform any of its obligations hereunder or make, maintain or fund or charge  interest with respect to any Credit Extension or to determine or charge interest rates based upon  the  Eurodollar  Rate or  the  LIBOR  Daily  Floating  Rate,  or  any  Governmental  Authority  has  imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits  of, Dollars in the London interbank market, then, on notice thereof by such Lender to the Borrower  through the Administrative Agent, (i) any obligation of such Lender  to issue, make, maintain,  fund or charge interest with respect to any such Credit Extension or continue Eurodollar Rate  Loans or to maintain LIBOR Floating Rate Loans or to convert Base Rate Loans or LIBOR Daily  Floating Rate Loans to Eurodollar Rate Loans or to convert Eurodollar Rate Loans or Base Rate  Loans  to  LIBOR  Floating  Rate  Loans shall  be  suspended,  and  (ii) if  such  notice  asserts  the  illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is  determined by reference to the Eurodollar Rate component of the Base Rate, the interest rate on  which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined                                          89 





 






   by the Administrative Agent without reference to the Eurodollar Rate component of the Base Rate,  in  each  case  until  such  Lender  notifies  the  Administrative  Agent  and  the  Borrower  that  the  circumstances giving rise to such determination no longer exist.  Upon receipt of such notice,  (x) the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent),  prepay or, if applicable, convert all Eurodollar Rate Loans and/or LIBOR Floating Rate Loans of  such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall,  if necessary to avoid such illegality, be determined by the Administrative Agent without reference  to the Eurodollar Rate component of the Base Rate), in the case of Eurodollar Rate Loans, either  on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain  such Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully continue  to  maintain  such  Eurodollar  Rate  Loans and,  in  the  case  of  LIBOR  Floating  Rate  Loans,  immediately and (y) if such notice asserts the illegality of such Lender determining or charging  interest rates based upon the Eurodollar Rate, the Administrative Agent shall during the period of  such  suspension  compute  the  Base  Rate  applicable  to  such  Lender  without  reference  to  the  Eurodollar Rate component thereof until the Administrative Agent is advised in writing by such  Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon  the  Eurodollar  Rate or  the  LIBOR  Daily  Floating  Rate,  as  the  case  may  be.   Upon  any  such  prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid  or converted.         3.03  Inability to Determine Rates.           (a)   If in connection with any request for a Eurodollar Rate Loan or a LIBOR Floating  Rate  Loan  or  a  conversion  to  a  Eurodollar  Rate  Loan  or  a  LIBOR  Floating  Rate  Loan  or  a  continuation  of  a  Eurodollar  Rate  Loan or  a  conversion  to  or  continuation  thereof,  (a)  the  Administrative Agent  determines  that (i) Dollar  deposits  are not  being offered to  banks  in  the  London interbank  Eurodollar  market  for  the  applicable  amount  and  Interest  Period  of  such  Eurodollar Rate Loan or the applicable term with respect to such LIBOR Floating Rate Loan, or  (ii) adequate  and  reasonable  means  do  not  exist  for  determining  the  Eurodollar  Rate  for any  requested Interest Period with respect to a proposed Eurodollar Rate Loan or in connection with  an existing or proposed Base Rate Loan or for determining the LIBOR Daily Floating Rate in  connection with an existing or proposed LIBOR Floating Rate Loan (in each case with respect to  clause (a)(i) above, “Impacted Loans”), or (b) the Administrative Agent or the Required Lenders  determine that for any reason the Eurodollar Rate for any requested Interest Period with respect to  a proposed Eurodollar Rate Loan or the LIBOR Daily Floating Rate with respect to an existing or  proposed LIBOR Floating Rate Loan does not adequately and fairly reflect the cost to such Lenders  of funding such Eurodollar Rate Loan or LIBOR Floating Rate Loan, as the case may be, then in  each case of each of clause (a) and (b) above, the Administrative Agent will promptly so notify  the Borrower and each Lender.  Thereafter, (x) the obligation of the Lenders to make or maintain  Eurodollar Rate Loans (to the extent of the affected Eurodollar Rate Loans or Interest Periods)  and/or LIBOR Floating Rate Loans shall be suspended, and (y) in the event of a determination  described in the preceding sentence with respect to the Eurodollar Rate component of the Base  Rate,  the  utilization  of  the  Eurodollar  Rate  component  in  determining  the  Base  Rate  shall  be  suspended,  in  each  case  until  the  Administrative  Agent  upon  the  instruction  of  the Required  Lenders revokes such notice.  Upon receipt of such notice, the Borrower may revoke any pending  request for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans (to the extent  of the affected Eurodollar Rate Loans or Interest Periods) or a Borrowing of, or conversion to,                                          90 





 






   LIBOR Floating Rate Loans, as applicable, or, failing that, will be deemed to have converted such  request into a request for a Base Rate Loans in the amount specified therein.         (b)   Notwithstanding  the  foregoing,  if  the  Administrative  Agent  has  made  the  determination described in clause (a) (i) of this section, the Administrative Agent, in consultation  with  the  Borrower  and  the  affected  Lenders,  may  establish  an  alternative  interest  rate  for  the  Impacted Loans, in which case, such alternative rate of interest shall apply with respect to the  Impacted Loans until (1) the Administrative Agent revokes the notice delivered with respect to the  Impacted Loans under clause (a) of the first sentence of this section, (2) the Required Lenders  notify  the  Administrative  Agent  and  the  Borrower  that  such  alternative  interest  rate  does  not  adequately and fairly reflect the cost to such Lenders of funding the Impacted Loans, or (3) any  Lender determines that any Law has made it unlawful, or that any Governmental Authority has  asserted that it is unlawful, for such Lender or its applicable Lending Office to make, maintain or  fund  Loans  whose interest  is determined by  reference to  such alternative rate of interest  or to  determine  or  charge  interest  rates  based  upon  such  rate  or  any  Governmental  Authority  has  imposed  material  restrictions  on  the  authority of  such  Lender  to  do  any  of  the  foregoing  and  provides the Administrative Agent and the Borrower written notice thereof.         (c)   Notwithstanding  anything  to  the  contrary  in  this  Agreement  or  any  other  Loan  Documents,  if  the  Administrative  Agent  determines  (which  determination  shall  be  conclusive  absent manifest error), or the Borrower or Required Lenders notify the Administrative Agent (with,  in the case of the Required Lenders, a copy to Borrower) that the Borrower or Required Lenders  (as applicable) have determined, that:               (i)   adequate and reasonable means do not exist for ascertaining LIBOR for any        requested Interest Period, including, without limitation, because the LIBOR Screen Rate is        not available or published on a current basis and such circumstances are unlikely to be        temporary; or                (ii)  the administrator of the LIBOR Screen Rate or a Governmental Authority        having jurisdiction over the Administrative Agent has made a public statement identifying        a specific date after which LIBOR or the LIBOR Screen Rate shall no longer be made        available, or used for determining the interest rate of loans, provided that, at the time of        such statement, there is no successor administrator that is satisfactory to the Administrative        Agent, that will continue to provide LIBOR after such specific date (such specific date, the        “Scheduled Unavailability Date”); or               (iii) syndicated loans currently being executed, or that include language similar        to that contained in this Section 3.03, are being executed or amended (as applicable) to        incorporate or adopt a new benchmark interest rate to replace LIBOR,   then, reasonably promptly after such determination by the Administrative Agent or receipt by the  Administrative Agent of such notice, as applicable, the Administrative Agent and the Borrower  may amend this Agreement solely for the purpose of replacing LIBOR in accordance with this  Section 3.03 with (x) one or more SOFR-Based Rates or (y) another alternate benchmark rate  giving  due  consideration  to  any  evolving  or  then  existing  convention  for  similar  U.S.  dollar  denominated  syndicated  credit  facilities  for  such  alternative  benchmarks and,  in  each  case,                                          91 





 






   including any mathematical or other adjustments to such benchmark giving due consideration to  any evolving or then existing convention for similar U.S. dollar denominated syndicated credit  facilities for such benchmarks, which adjustment or method for calculating such adjustment shall  be published on an information service as selected by the Administrative Agent from time to time  in  its  reasonable discretion and may be periodically updated (the  “Adjustment;” and any such  proposed rate, a “LIBOR Successor Rate”), and any such amendment shall become effective at  5:00 p.m. on the fifth Business Day after the Administrative Agent shall have posted such proposed  amendment to all Lenders and the Borrower unless, prior to such time, Lenders comprising the  Required Lenders have delivered to the Administrative Agent written notice that such Required  Lenders (A) in the case of an amendment to replace LIBOR with a rate described in clause (x),  object  to  the  Adjustment;  or  (B)  in  the  case  of  an  amendment  to  replace  LIBOR  with  a  rate  described in clause (y), object to such amendment; provided that for the avoidance of doubt, in the  case of clause (A), the Required Lenders shall not be entitled to object to any SOFR-Based Rate  contained in any such amendment.   Such LIBOR Successor Rate shall be applied in a manner  consistent  with  market  practice; provided that  to  the  extent  such  market  practice  is  not  administratively  feasible  for  the  Administrative  Agent,  such  LIBOR  Successor  Rate  shall  be  applied in a manner as otherwise reasonably determined by the Administrative Agent.        If no LIBOR Successor Rate has been determined and the circumstances under clause (i)  above exist or the Scheduled Unavailability Date has occurred (as applicable), the Administrative  Agent will promptly so notify the Borrower and each Lender.  Thereafter, (x) the obligation of the  Lenders to make or maintain Eurodollar Rate Loans (to the extent of the affected Eurodollar Rate  Loans  or  Interest  Periods) and  LIBOR  Floating  Rate  Loans shall  be  suspended,  and  (y) the  Eurodollar Rate component shall no longer be utilized in determining the Base Rate.  Upon receipt  of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to  or continuation of Eurodollar Rate Loans (to the extent of the affected Eurodollar Rate Loans or  Interest Periods) or a Borrowing of, or conversion to, LIBOR Floating Rate Loans, as applicable,  or, failing that, will be deemed to have converted such request into a request for a Committed  Borrowing of Base Rate Loans (subject to the foregoing clause (y)) in the amount specified therein.         Notwithstanding  anything  else  herein,  any  definition  of  LIBOR  Successor  Rate  shall  provide that in no event shall such LIBOR Successor Rate be less than zero for purposes of this  Agreement.         In connection with the implementation of a LIBOR Successor Rate, the Administrative  Agent will have the right to make LIBOR Successor Rate Conforming Changes from time to time  and,  notwithstanding  anything  to  the  contrary  herein  or  in  any  other  Loan  Document,  any  amendments  implementing  such LIBOR  Successor  Rate Conforming  Changes  will  become  effective without any further action or consent of any other party to this Agreement; provided that,  with  respect  to  any  such  amendment  effected,  the  Administrative  Agent  shall  post  each  such  amendment implementing such LIBOR Successor Conforming Changes to the Lenders reasonably  promptly after such amendment becomes effective.         3.04  Increased  Costs;  Reserves  on  Eurodollar  Rate Loans  and  LIBOR  Floating  Rate Loans.         (a)   Increased Costs Generally.  If any Change in Law shall:                                          92 





 






               (i)   impose,  modify  or  deem  applicable  any  reserve,  special  deposit,        compulsory loan, insurance charge or similar requirement against assets of, deposits with        or for the account  of, or credit extended or participated in  by, any  Lender (except  any        reserve requirement contemplated by Section 3.04(e)) or any L/C Issuer;               (ii)  subject  any  Recipient  to  any  Taxes  (other  than  (A) Indemnified  Taxes,        (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and        (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments,        or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;        or               (iii) impose on any Lender or any L/C Issuer or the London interbank market        any other condition, cost or expense affecting this Agreement or Eurodollar Rate Loans or        LIBOR Floating Rate Loans made by such Lender or any Letter of Credit or participation        therein;   and the result of any of the foregoing shall be to increase the cost to such Lender of making,  converting to, continuing or maintaining any Loan (or of maintaining its obligation to make any  such Loan), or to increase the cost to such Lender or such L/C Issuer of participating in, issuing or  maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any  Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or  such L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon request  of such Lender or such L/C Issuer, the Borrower will pay to such Lender or such L/C Issuer, as  the case may be, such additional amount or amounts as will compensate such Lender or such L/C  Issuer, as the case may be, for such additional costs incurred or reduction suffered.         (b)   Capital Requirements.  If any Lender or any L/C Issuer determines that any Change  in Law affecting such Lender or such L/C Issuer or any Lending Office of such Lender or such  Lender’s or such L/C Issuer’s holding company, if any, regarding capital or liquidity requirements  has or would have the effect of reducing the rate of return on such Lender’s or such L/C Issuer’s  capital  or on the  capital of such  Lender’s  or such L/C  Issuer’s holding  company, if  any, as a  consequence  of  this  Agreement,  the  Commitments  of  such  Lender  or  the  Loans  made  by,  or  participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by such L/C  Issuer, to a level below that which such Lender or such L/C Issuer or such Lender’s or such L/C  Issuer’s  holding  company  could  have  achieved  but  for  such  Change  in  Law  (taking  into  consideration such Lender’s or such L/C Issuer’s policies and the policies of such Lender’s or such  L/C Issuer’s holding company with respect to capital adequacy and liquidity), then from time to  time the Borrower will pay to such Lender or such L/C Issuer, as the case may be, such additional  amount or amounts as will compensate such Lender or such L/C Issuer or such Lender’s or such  L/C Issuer’s holding company for any such reduction suffered.         (c)   Certificates for Reimbursement.  A certificate of a Lender or an L/C Issuer setting  forth the amount or amounts necessary to compensate such Lender or such L/C Issuer or its holding  company, as the case may be, as specified in subsection (a) or (b) of this Section and delivered to  the Borrower shall be conclusive absent manifest error.  The Borrower shall pay such Lender or  such L/C Issuer, as the case may be, the amount shown as due on any such certificate within 10  days after receipt thereof.                                          93 





 






         (d)   Delay in Requests.  Failure or delay on the part of any Lender or any L/C Issuer to  demand compensation pursuant to the foregoing provisions of this Section 3.04 shall not constitute  a waiver of such Lender’s or such L/C Issuer’s right to demand such compensation, provided that  the  Borrower  shall  not  be  required  to  compensate  a  Lender  or an L/C  Issuer  pursuant  to  the  foregoing provisions of this Section for any increased costs incurred or reductions suffered more  than nine months prior to the date that such Lender or such L/C Issuer, as the case may be, notifies  the Borrower of the Change in Law giving rise to such increased costs or reductions and of such  Lender’s or such L/C Issuer’s intention to claim compensation therefor (except that, if the Change  in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period  referred to above shall be extended to include the period of retroactive effect thereof).         (e)   Reserves  on  Eurodollar  Rate Loans  and  LIBOR  Floating  Rate Loans.   The  Borrower shall pay to each Lender, as long as such Lender shall be required to maintain reserves  with  respect  to  liabilities  or  assets  consisting  of  or  including  Eurocurrency  funds  or  deposits  (currently known as “Eurocurrency liabilities”), additional interest on the unpaid principal amount  of each Eurodollar Rate Loan and LIBOR Floating Rate Loan equal to the actual costs of such  reserves allocated to such Loan by such Lender (as determined by such Lender in good faith, which  determination shall be conclusive), which shall be due and payable on each date on which interest  is payable on such Loan, provided the Borrower shall have received at least 10 days’ prior notice  (with a copy to the Administrative Agent) of such additional interest from such Lender.  If a Lender  fails to give notice 10 days prior to the relevant Interest Payment Date, such additional interest  shall be due and payable 10 days from receipt of such notice.         3.05  Compensation  for  Losses.   Upon  demand  of  any  Lender  (with  a  copy  to  the  Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender  for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:         (a)   any continuation, conversion, payment or prepayment of any Loan other than a  Base Rate Loan or a LIBOR Floating Rate Loan on a day other than the last day of the Interest  Period  for  such  Loan  (whether  voluntary,  mandatory,  automatic,  by  reason  of  acceleration,  or  otherwise);         (b)   any failure by the Borrower (for a reason other than the failure of such Lender to  make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan or a  LIBOR Floating Rate Loan on the date or in the amount notified by the Borrower; or         (c)   any assignment of a Eurodollar Rate Loan on a day other than the last day of the  Interest Period therefor as a result of a request by the Borrower pursuant to Section 10.13;   including any loss of anticipated profits and any loss or expense arising from the liquidation or  reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the  deposits  from  which  such  funds  were  obtained.   The  Borrower shall  also  pay  any  customary  administrative fees charged by such Lender in connection with the foregoing.   For  purposes  of  calculating  amounts  payable  by  the  Borrower  to  the  Lenders  under  this  Section 3.05, each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it  at the Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London                                          94 





 






   interbank eurodollar market for a comparable amount and for a comparable period, whether or not  such Eurodollar Rate Loan was in fact so funded.         3.06  Mitigation Obligations; Replacement of Lenders.         (a)   Designation of a Different  Lending Office.  Each Lender may make any Credit  Extension to the Borrower through any Lending Office, provided that the exercise of this option  shall not affect the obligation of the Borrower to repay the Credit Extension in accordance with  the terms of this Agreement. If any Lender requests compensation under Section 3.04, or requires  the Borrower to pay any Indemnified Taxes or additional amounts to any Lender, any L/C Issuer,  or  any  Governmental  Authority  for  the  account  of  any  Lender  or any L/C  Issuer  pursuant  to  Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then at the request of the  Borrower such Lender or such L/C Issuer shall, as applicable, use reasonable efforts to designate  a different Lending Office for funding or booking its Loans hereunder or to assign its rights and  obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such  Lender or such L/C Issuer, such designation or assignment (i) would eliminate or reduce amounts  payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, or eliminate the need  for the notice pursuant to Section 3.02, as applicable, and (ii) in each case, would not subject such  Lender or such L/C Issuer, as the case may be, to unreimbursed costs or expense and would not  otherwise  be  disadvantageous  to  such  Lender  or such L/C  Issuer,  as  the  case  may  be.   The  Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender or any  L/C Issuer in connection with any such designation or assignment.         (b)   Replacement of Lenders.  If any Lender requests compensation under Section 3.04,  or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender  or any Governmental Authority for the account of any Lender pursuant to Section 3.01 and, in  each  case,  such  Lender  has  declined  or  is  unable  to  designate  a  different  lending  office  in  accordance  with Section 3.06(a),  the  Borrower  may  replace  such  Lender  in  accordance  with  Section 10.13.         3.07  Survival.  All of the Borrower’s obligations under this Article III shall survive  termination of the Aggregate Commitments, repayment of all other Obligations hereunder, and  resignation of the Administrative Agent.       ARTICLE IV.       CONDITIONS PRECEDENT TO CREDIT EXTENSIONS         4.01  Conditions of Effectiveness.  The effectiveness of this Agreement is subject to  satisfaction of the following conditions precedent:         (a)   The  Administrative  Agent’s  receipt  of  the  following,  each  of  which  shall  be  originals, email (in a .pdf format) or telecopies (followed promptly by originals) unless otherwise  specified, each properly executed (if applicable) by a Responsible Officer of the signing Loan  Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent  date before the Closing Date) and each in form and substance satisfactory to the Administrative  Agent and each of the Lenders:               (i)   executed  counterparts  of  this  Agreement,  sufficient  in  number  for        distribution to the Administrative Agent, each Lender and the Borrower;                                          95 





 






                      (ii)  a Note executed by the Borrower in favor of each Lender requesting a Note;         (iii) in each case, solely with respect to Equity Interests constituting Collateral  required  to  be  granted  on  the  Closing  Date  (and  for  the  avoidance  of  doubt  and  notwithstanding anything to the contrary herein, excluding as Collateral the Equity Interest  of either  of  the  CARET Entities and  any  direct  or  indirect  owner  thereof) a  joinder  agreement and/or pledge amendment with respect to the Pledge Agreement, in form and  substance  reasonably  satisfactory  to  the  Administrative  Agent,  pursuant  to  which  the  Equity Interests in each Direct Owner of each Borrowing Base Asset and each Indirect  Owner of each such Direct Owner shall be pledged in favor of the Administrative Agent  for the benefit of the Secured Parties (in each case to the extent not already pledged as  Collateral), duly executed by the applicable Grantors, together with:               (A)   certificates  or  instruments,  if  any,  representing  the  Collateral        pledged thereunder accompanied by all endorsements and/or powers required by        the Pledge Agreement,               (B)   evidence  that  (x)  all  proper  financing  statements  have  been  or        contemporaneously therewith  will be duly filed  under the Uniform Commercial        Code of all applicable jurisdictions and (y) all applicable perfection requirements        that the Administrative Agent reasonably may deem necessary or desirable in order        to perfect the Liens created under the Pledge Agreement, covering the Collateral        described in the Pledge Agreement,               (C)   completed  requests  for  information listing all  effective  financing        statements filed in the jurisdictions referred to in clause (B) above that name any        Grantor as debtor, together with (x) copies of such other financing statements and        (y) if any such financing statement covers Collateral, termination statements (or        similar documents) for filing in all applicable jurisdictions as may be necessary to        terminate any such effective financing statements (or equivalent filings), and               (D)   [reserved];               (E)   evidence  that  all  other  actions,  recordings  and  filings  that  the        Administrative  Agent  may  deem reasonably necessary  or  desirable  in  order  to        perfect the Liens created under the Pledge Agreement have been taken;         (iv)  such  certificates  of  resolutions  or other  action,  incumbency  certificates  and/or other certificates of Responsible Officers of each Loan Party as the Administrative  Agent  may require evidencing the identity, authority and capacity of each Responsible  Officer  thereof  authorized  to  act  as  a  Responsible  Officer  in  connection  with  this  Agreement and the other Loan Documents to which such Loan Party is a party;         (v)   such  documents  and  certifications  as  the  Administrative  Agent  may  reasonably require to evidence that each Loan Party is duly organized or formed, and that  each Loan Party is validly existing, in good standing and qualified to engage in business in  each jurisdiction where its ownership, lease or operation of properties or the conduct of its                                    96 





 






                business requires such qualification, except to the extent that failure to do so would not,  individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;         (vi)  a favorable opinion of Clifford Chance US LLP, counsel to the Loan Parties,  and  Venable  LLP,  special  Maryland  counsel  to  the  Borrower, addressed  to  the  Administrative Agent and each Lender, as to such matters concerning the Loan Parties and  the Loan Documents as the Required Lenders may reasonably request;         (vii) a certificate of a Responsible Officer of each Loan Party either (A) attaching  copies of all consents, licenses and approvals required in connection with the execution,  delivery and performance by such Loan Party and the validity against such Loan Party of  the Loan Documents to which it is a party, and such consents, licenses and approvals shall  be in full force and effect, or (B) stating that no such consents, licenses or approvals are so  required;         (viii) a certificate signed by a Responsible Officer of the Borrower (x) certifying  that (1) the conditions specified in Sections 4.02(a) and (b) have been satisfied, (2) there  has been no event or circumstance since the date of the Audited Financial Statements that  has had or would reasonably be expected to have, either individually or in the aggregate, a  Material  Adverse  Effect,  (3) no Loan  Party is  subject  to  any  present  or  contingent  Environmental Claim which, if adversely determined, would reasonably be expected to  have  a  Material  Adverse  Effect, and  (4)  no  action,  suit,  investigation  or  proceeding  is  pending or, to the knowledge of any Loan Party, threatened in any court or before any  arbitrator or Governmental Authority that (A) relates to this Agreement or any other Loan  Document,  or  any  of  the  transactions  contemplated  hereby  or  thereby,  or  (B) would  reasonably be expected, either individually or in the aggregate, to have a Material Adverse  Effect  and  (y)  attaching  copies  of  the  Organization  Documents  of  each  Person  whose  Equity Interests are included in the Collateral, if any, which Organization Documents shall  (1) in the reasonable opinion of the Administrative Agent, permit the Administrative Agent  to realize on such Collateral upon the occurrence and during the continuance of an Event  of  Default  and  (2)  otherwise  be  in  form  and  substance  reasonably  satisfactory  to  the  Administrative Agent;         (ix)  the Audited Financial Statements and the unaudited financial statements of  the Borrower referred to in Section 5.05(a) and (b);         (x)   a fully  completed Compliance Certificate as  of the last  day of the fiscal  quarter  of  the  Borrower  most  recently  ended as  of  the  Closing  Date  ended  for  which  financial  statements  of  the  Borrower  are  available,  giving  pro  forma  effect  to  the  transactions  to  occur  on  the  Closing  Date  (including,  without  limitation,  all  Credit  Extensions to occur on the Closing Date) and including in reasonable detail the calculations  required to establish compliance with the covenants set forth in Section 7.11;         (xi)  such  other  assurances,  certificates,  documents and consents  as  the  Administrative Agent, any L/C Issuer or the Required Lenders reasonably may require.   (b)   Any fees required to be paid on or before the Closing Date shall have been paid.                                    97 





 






         (c)   Unless waived by the Administrative Agent, the Borrower shall have paid all fees,  charges  and disbursements of counsel to the Administrative Agent (directly to such counsel if  requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus  such additional amounts of such fees, charges and disbursements as shall constitute its reasonable  estimate  of  such  fees,  charges  and  disbursements  incurred  or  to  be  incurred  by  it  through  the  closing proceedings (provided that such estimate shall not thereafter preclude a final settling of  accounts between the Borrower and the Administrative Agent).         (d)   All  accrued  and  unpaid  interest  and  fees  with  respect  to  the  Commitments  and  Loans under the Existing Credit Agreement as of (and immediately prior to giving effect to) the  Closing Date shall have been, or concurrently with the extensions of credit being made hereunder  on the Closing Date will be, paid in full.         (e)   Upon the reasonable request of any Lender made at least ten (10) days prior to the  Closing Date,  the  Borrower  shall  have  provided  to  such  Lender,  and  such  Lender  shall  be  reasonably satisfied with, the documentation and other information so requested in connection  with  applicable  “know  your  customer”  rules  and  regulations,  Anti-Money-Laundering  Laws,  including, without limitation, the PATRIOT Act, in each case at least five (5) days prior to the  Closing Date.         Without limiting the generality of the provisions of the last paragraph of Section 9.03, for  purposes of determining compliance with the conditions specified in this Section 4.01, each Lender  that has signed this Agreement shall be deemed to have consented to, approved or accepted or to  be satisfied with, each document or other matter required thereunder to be consented to or approved  by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received  notice from such Lender prior to the proposed Closing Date specifying its objection thereto.         4.02  Conditions to Credit Extensions.  The obligation of each Lender to honor any  Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion  of Loans to another Type, or a continuation of Eurodollar Rate Loans, which, in either case, shall  be subject only to the condition precedent set forth in clause (e) below) is subject to the following  conditions precedent:         (a)   The  representations  and  warranties  of  the  Borrower  and  each  other  Loan  Party  contained in Article V or any other Loan Document, or which are contained in  any document  furnished at any time under or in connection herewith or therewith, shall be true and correct in all  material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in  all  respects  (after  giving  effect  to  such  qualification)) on  and  as  of  the  date  of  such  Credit  Extension, except to the extent that such representations and warranties specifically refer to an  earlier date, in which case they shall be true and correct in all material respects (or if qualified by  “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to  such qualification)) as of such earlier date, and except that for purposes of this Section 4.02, the  representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed  to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively,  of Section 6.01.                                          98 





 






         (b)   No  Default  shall be  continuing,  or  would  result  from  such  proposed  Credit  Extension or from the application of the proceeds thereof.         (c)   The Administrative Agent and, if applicable, an L/C Issuer shall have received a  Request for Credit Extension in accordance with the requirements hereof.         (d)   The Administrative Agent shall have received a Borrowing Base Certificate from  the Borrower with the information set forth therein being as of the date of such requested Credit  Extension (and giving pro forma effect thereto).         (e)   After giving effect to the proposed Credit Extension, Availability equals or exceeds  zero ($0).         Each Request for Credit Extension submitted by the Borrower shall be deemed to be a  representation and warranty that the conditions specified in Sections 4.02(a), (b) and (e) have been  satisfied on and as of the date of the applicable Credit Extension (except that a Committed Loan  Notice requesting only a conversion of Loans to another Type or a continuation of Eurodollar Rate  Loans shall be deemed to be a representation that the condition precedent set forth in clause (e)  above has been satisfied on and as of the date of the applicable Credit Extension).                ARTICLE V. REPRESENTATIONS AND WARRANTIES         The Borrower represents and warrants to the Administrative Agent and the Lenders that:         5.01  Existence,  Qualification  and  Power.   Each  Loan  Party  and  each  Subsidiary  thereof (a) is duly organized or formed, validly existing and, as applicable, in good standing under  the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and  authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own  or lease its assets and carry on its business and (ii) execute, deliver and perform its obligations  under the Loan Documents to which it is a party, and (c) is duly qualified and is licensed and, as  applicable, in good standing under the Laws of each jurisdiction where its ownership, lease or  operation of properties or the conduct of its business requires such qualification or license; except  in  each  case  referred  to  in clause (b)(i) or (c),  to  the  extent  that  failure  to  do  so would  not,  individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.         5.02  Authorization; No Contravention.  The execution, delivery and performance by  each Loan Party of each Loan Document to which such Person is party, have been duly authorized  by all necessary corporate or other organizational action, and do not and will not (a) contravene  the terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach  or contravention of, or the creation of any Lien (other than Liens created under the Collateral  Documents) under, or require any payment to be made under (i) any Contractual Obligation to  which such Person is a party or affecting such Person or the properties of such Person or any of its  Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any  arbitral award to which such Person or its property is subject; or (c) violate any Law, except, in  each case under clauses (b)(ii) and (c) with respect to any such contravention, violation or conflict  that would not reasonably be expected to have a Material Adverse Effect.                                          99 





 






         5.03  Governmental  Authorization;  Other  Consents.   No  approval,  consent,  exemption, authorization, or other action by, or notice to, or filing, recording or registration with,  or exemption by, any Governmental Authority or any other Person is necessary or required in  connection with (a) the execution, delivery or performance by, or enforcement against, any Loan  Party of this Agreement or any other Loan Document to which it is a party or the consummation  of any of the transactions contemplated thereby, (b) the grant by any Loan Party of the Liens  granted by it pursuant to the Collateral Documents, (c) the perfection or maintenance of the Liens  created  under  the  Collateral  Documents  (including  the  first  priority  nature  thereof)  or  (d) the  exercise by the Administrative Agent or any Lender of its rights under the Loan Documents or the  remedies in respect of the Collateral pursuant to the Collateral Documents, other than approvals,  consents,  exemptions,  authorizations,  actions,  notices,  filings  recordings  and  registrations that  have already been duly made or obtained and remain in full force and effect.         5.04  Binding Effect.  This Agreement has been, and each other Loan Document, when  delivered hereunder, will have been, duly executed and delivered by each Loan Party that is party  thereto.   This  Agreement  constitutes,  and  each  other  Loan Document  when  so  delivered  will  constitute, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan  Party that is party thereto in accordance with its terms, except as enforceability may be limited by  applicable insolvency, bankruptcy or other similar laws  affecting  creditors rights  generally, or  general principles of equity, whether such enforceability is considered in a proceeding in equity or  at law.         5.05  Financial Statements; No Material Adverse Effect.         (a)   The  Audited  Financial Statements  (i) were  prepared  in  accordance  with  GAAP  consistently applied throughout the period covered thereby, except as otherwise expressly noted  therein; (ii) fairly present the financial condition of the Borrower and its Subsidiaries as of the date  thereof and their results of operations for the period covered thereby in accordance with GAAP  consistently applied throughout the period covered thereby, except as otherwise expressly noted  therein;  and  (iii) show  all  material Indebtedness  and (to  the  extent  required  by  GAAP) other  liabilities, direct or contingent, of the Borrower and its Subsidiaries as of the date thereof.         (b)   The  unaudited  consolidated  balance  sheet  of  the  Borrower  and  its  Subsidiaries  dated September 30,  2019,  and  the  related  consolidated statements  of  income  or  operations,  shareholders’ equity and cash flows for the fiscal quarter ended on that date (i) were prepared in  accordance  with  GAAP  consistently  applied  throughout  the  period  covered  thereby,  except  as  otherwise expressly noted therein, and (ii) fairly present the financial condition of the Borrower  and its Subsidiaries as of the date thereof and their results of operations for the period covered  thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal year- end audit adjustments.         (c)   Since  the  date  of  the  Audited  Financial  Statements,  there  has  been  no  event  or  circumstance, either individually or in the aggregate, that has had or could reasonably be expected  to have a Material Adverse Effect.         (d)   The consolidated forecasted balance sheet and statements of income and cash flows  of the Borrower and its Subsidiaries delivered pursuant to Section 6.01(c) were prepared in good                                         100 





 






   faith on the basis of the assumptions stated therein, which assumptions were fair in light of the  conditions  existing  at  the  time  of  delivery  of  such  forecasts,  and  represented,  at  the  time  of  delivery, the Borrower’s best estimate of its future financial condition and performance.         5.06  Litigation.  There are no actions, suits, proceedings, claims or disputes pending or,  to the knowledge of the Borrower after due and diligent investigation, threatened in writing or  contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against  the Borrower or any of its Subsidiaries or against any of their properties or revenues that (a) purport  to affect or pertain to this Agreement or any other Loan Document, or any of the transactions  contemplated hereby, or (b) in which there is a reasonable possibility of an adverse decision which,  if adversely decided, would, either individually or in the aggregate, reasonably be expected to have  a Material Adverse Effect.         5.07  No Default.  Neither any Loan Party nor any Subsidiary thereof is in default beyond  any applicable grace period under or with respect to any Contractual Obligation that would, either  individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.  No  Default has occurred and is continuing or would result from the consummation of the transactions  contemplated by this Agreement or any other Loan Document.  To the best of the Borrower’s  knowledge  after  due  inquiry,  no  Material  Event  in  respect  of  any  Borrowing  Base  Asset  has  occurred.         5.08  Ownership of Property; Liens.           (a)   Each of the Borrower and each Subsidiary has good record and marketable title in  fee simple to, or valid leasehold interests in, all real property necessary or used in the ordinary  conduct  of  its  business,  except  for  such  defects  in  title  as would  not,  individually  or  in  the  aggregate, reasonably be expected to have a Material Adverse Effect.           (b)   The Borrowing  Base  Assets,  the  Equity  Interests  in each Direct  Owner  of  a  Borrowing Base Asset and each Indirect Owner of each such Direct Owner, and the right to any  income  from  any  of  the foregoing, are subject  to  no  Liens  other  than  Liens  permitted  by  Section 7.01.         5.09  Environmental Compliance.  Except with respect to any matters that, individually  or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, neither  the Borrower nor any of its Restricted Subsidiaries (a) has failed to comply with any applicable  Environmental Laws, (b) has incurred any Environmental Liability, (c) has received notice of any  claim with respect to any Environmental Liability or (d) knows of any facts or conditions that  would reasonably be expected to result in any Environmental Liability.         5.10  Insurance.           (a)   The Loan Parties are in compliance with the requirements of Section 6.07, and no  Loan Party, nor, to any Loan Party’s knowledge, any other Person, has done, by act or omission,  anything which would materially and adversely impair the coverage of any such policy.                                         101 





 






         (b)   No portion of any Collateral is, under the FDPA, in a Special Flood Hazard Area,  or within a Flood Zone designated A or V in a participating community, or, if in such an area or  zone, flood insurance is maintained therefor in full compliance with the provisions of Section 6.07.         5.11  Taxes.  The Borrower and its Subsidiaries have filed all U.S. federal income tax  returns and all other material tax returns which are required to be filed by them and have paid all  taxes due pursuant to such returns or pursuant to any assessment received by the Borrower or any  Subsidiary,  except  (i)  such  taxes,  if  any,  as  are  being  contested  in  good  faith  by  appropriate  proceedings and are reserved against in accordance with GAAP or (ii) such tax returns or such  taxes,  the  failure  to  file  when  due  or  to  make  payment  when  due  and  payable would  not,  individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The  charges, accruals and reserves on the books of the Borrower and its Subsidiaries in respect of taxes  or other governmental charges are, in the opinion of the Borrower, adequate. There is no proposed  tax  assessment  against  the  Borrower  or  any  Subsidiary  that  would,  if  made,  have  a  Material  Adverse Effect.  Neither the Borrower nor any Subsidiary is party to any tax sharing agreement.          5.12  Compliance with ERISA.         (a)   Except as set forth on Schedule 5.12, neither the Borrower nor any other Loan Party  is a member of or has entered into, maintained, contributed to, or been required to contribute to,  or may incur any liability with respect to any Plan or Multiemployer Plan.  There are no pending  or, to the best knowledge of the Borrower, threatened claims, actions or  lawsuits, or action by any  Governmental Authority, with respect to any Plan that  could reasonably be expected to have a  Material Adverse Effect.  There has been no prohibited transaction or violation of the fiduciary  responsibility rules with respect to any Plan that has resulted or could reasonably be expected to  result in a Material Adverse Effect.  No Termination Event has occurred, and neither the Borrower  nor  any  member  of  the  ERISA  Group  is  aware  of  any  fact,  event or  circumstance  that  could  reasonably be expected to constitute or result in a Termination Event with respect to any Plan, in  each case that could reasonably be expected to have a Material Adverse Effect.  Except as could  not be reasonably expected to have a Material Adverse Effect individually or in the aggregate (i)  there has  been no  filing pursuant  to  Section 412 of the Code or Section 302 of ERISA of  an  application for a waiver of the minimum funding standards with respect to any Plan; (ii) there has  been no failure to make by its due date any required installment under Section 430(j) of the Code  with respect to any Plan nor a failure by the Borrower nor any member of the ERISA Group to  make any required contribution to a Multiemployer Plan; (iii) there has been no determination that  any Plan is or is expected to be in “at risk” status (within the meaning of Section 430 of the Code  or  Section  303  of  ERISA);  (iv) the  present  value  of  all  accrued  benefits  under  each  Plan  (determined based on the assumptions used by such Plans pursuant to Section 430(h) of the Code)  did not, as of the last annual valuation date prior to the date on which this representation is made  or deemed made, exceed by more than an immaterial amount the value of the assets of such Plan  (as determined pursuant to Section 430(g) of the Code) allocable to such accrued benefits, and the  present  value  of  all  accumulated  benefit  obligations  of  all  underfunded  Plans  (based  on  the  assumptions used for purposes of ASC Topic 715-30) did not, as of the date of the most recent  financial statements reflecting such amounts, exceed by more than an immaterial amount the fair  market  value  of  the  assets  of  all  such  underfunded  Plans;  (v)  each  employee  benefit  plan  maintained by the Borrower or any of its Subsidiaries or any Plan which is intended to qualify  under Section 401(a) of the Internal Revenue Code has received a favorable determination letter                                         102 





 






   from  the  Internal  Revenue  Service  indicating  that  such  employee  benefit  plan  or  Plan  is  so  qualified and the trust related thereto has been determined by the Internal Revenue Service to be  exempt from federal income tax under Section 501(a) of the Code or an application for such a  letter is currently pending before the Internal Revenue Service and, to the knowledge of Borrower,  nothing has occurred subsequent to the issuance of the determination letter which would cause  such employee benefit plan or Plan to lose its qualified status; and (vi) no liability to the PBGC  (other  than  required  premium  payments),  the  Internal  Revenue  Service,  any  Plan  or  any  trust  established under Title IV of ERISA has been or is expected to be incurred by any member of the  ERISA  Group  other  than  in  the  ordinary  course.  The  Borrower  and  its  Subsidiaries  have  no  contingent liabilities with respect to any post-retirement benefits under a Welfare Plan, other than  liability for continuation coverage described in article 6 of Title 1 of ERISA, and except as would  not be reasonably expected to have a Material Adverse Effect.  In the event that at any time after  the Closing Date, the Borrower or any other Loan Party shall sponsor or contribute to any other  material Plan or Multiemployer Plan, the Borrower promptly shall notify the Administrative Agent  thereof (and from and after such notice, Schedule 5.12 shall be deemed modified thereby).         (b)   No assets of the Borrower or any other Loan Party constitute “assets” (within the  meaning of ERISA or Section 4975 of the Code, including, but not limited to, 29 C.F.R. § 2510.3- 101 or any successor regulation thereto) of an “employee benefit plan” within the meaning of  Section 3(3) of ERISA that is subject to Title I of ERISA or a “plan” within the meaning of, and  subject  to,  Section  4975(e)(1)  of  the  Code.  In  addition  to  the  prohibitions  set  forth  in  this  Agreement and the other Loan Documents, and not in limitation thereof, the Borrower covenants  and agrees that the Borrower shall not, and shall not permit any other Loan Party to, use any  “assets” (within the meaning of ERISA or Section 4975 of the Code, including but not limited to  29 C.F.R. § 2510.3101) of an “employee benefit  plan” within the meaning of Section 3(3) of  ERISA that is subject to Title I of ERISA or a “plan” within the meaning of, and subject to, Section  4975(e)(1) of the Code to repay or secure any Note, the BankNote Property Mortgage Note, the  Loans, or the Obligations.         (c)   As of the Closing Date neither the Borrower nor any Loan Party will be (1) an  employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975  of the Code; or (3) a “governmental plan” within the meaning of ERISA.         5.13  Subsidiaries;  Equity  Interests.   As  of  the  Closing  Date,  the Borrower  has  no  Subsidiaries other than those specifically disclosed in Schedule 5.13, and all of the outstanding  Equity Interests in such Subsidiaries have been validly issued, are fully paid and nonassessable  and are owned, directly or indirectly, by a Loan Party in the amounts specified on Schedule 5.13.   All of the outstanding Equity Interests in each Loan Party are owned, directly or indirectly, by the  Borrower free  and  clear  of  all  Liens other  than  Permitted  Equity  Encumbrances.   All  of  the  outstanding  Equity  Interests  in  the  Borrower  have  been  validly  issued and  are  fully  paid  and  nonassessable.         5.14  Margin Regulations; Investment Company Act.         (a)   The  Borrower  is  not  engaged  and  will  not  engage,  principally  or  as  one  of  its  important activities, in the business of purchasing or carrying margin stock (within the meaning of  Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying                                         103 





 






   margin stock. All proceeds of the Loans will be used by the Borrower only in accordance with the  provisions hereof. Neither the making of any Loan nor the use of the proceeds thereof will violate  or be inconsistent with the provisions of regulations T, U, or X of the Federal Reserve Board.         (b)   None of the Borrower, any Person Controlling the Borrower, or any Subsidiary is  (x) an “investment company” or a company “controlled” by an “investment company”, within the  meaning of the Investment Company Act of 1940, as amended, or (y) subject to any other federal  or state law or regulation which purports to restrict or regulate its ability to borrow money.         5.15  Disclosure.  All information heretofore furnished by the Borrower or any other  Consolidated Party to the Administrative Agent or any Lender for purposes of or in connection  with this Agreement or any transaction contemplated hereby or thereby is true and accurate in all  material respects on the date as of which such information is stated or certified; provided that, with  respect to projected financial information, the Borrower represents and warrants only that such  information  represents  the  Borrower’s  expectations  regarding  future  performance,  based  upon  historical  information  and reasonable  assumptions,  it  being  understood,  however,  that  actual  results may differ from the projected results described in the financial projections and was prepared  in good faith based upon assumptions believed to be reasonable at the time.         5.16  Compliance  with  Laws.  The  Borrower and  each  Subsidiary  thereof  is  in  compliance  with  the  requirements  of  all  Laws  and  all  orders,  writs,  injunctions  and  decrees  applicable to it or to its properties, except in such instances in which (a) such requirement of Law  or order, writ, injunction or decree is being contested in good faith by appropriate proceedings  diligently conducted or (b) the failure to comply therewith, either individually or in the aggregate,  would not reasonably be expected to have a Material Adverse Effect.         5.17  Taxpayer  Identification  Number.  Each  Loan  Party’s true  and  correct  U.S.  taxpayer identification number is set forth on Schedule 10.02.         5.18  Anti-Corruption Laws and Sanctions; Anti-Money Laundering.           (a)   Each Loan Party and Subsidiary thereof has implemented and maintains in effect  policies  and  procedures  designed  to  ensure  compliance  by such  Person and  their respective  directors, officers and employees with Anti-Corruption Laws and applicable Sanctions, and the  Loan Parties, their respective Subsidiaries and their respective directors, officers and employees,  and to the knowledge of each Loan Party and Subsidiary thereof its agents, are in compliance with  Anti-Corruption Laws and applicable Sanctions in all material respects and are not knowingly  engaged in  any  activity  that  would  reasonably  be  expected  to  result  in  the  Borrower  being  designated as a Sanctioned Person.  None of the Loan Parties, any of their respective Subsidiaries,  nor, to the knowledge of any Loan Party and its Subsidiaries, any director, officer, employee, or  affiliate thereof, is a Sanctioned Person.  No Credit Extension, use of proceeds or other transaction  contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.         (b)   No Loan Party or any Subsidiaries thereof, nor, to the knowledge of any Loan Party,  any of its Affiliates or respective officers, directors, or employees (i) has violated or is in violation  of any applicable Anti-Money Laundering Laws or (ii) has engaged or engages in any transaction,  investment, undertaking or activity that conceals the identity, source or destination of the proceeds                                         104 





 






   from  any  category  of  offenses  designated  in  any  applicable  law,  regulation  or  other  binding  measure  implementing  the  “Forty  Recommendations”  and  “Nine  Special  Recommendations”  published by the Organisation for Economic Cooperation and Development’s Financial Action  Task Force on Money Laundering.         5.19  Solvency.  The  Borrower,  together  with  its  Subsidiaries,  taken  as  a  whole, is  Solvent.         5.20  Principal Offices.  As of the Closing Date, the principal office, chief executive  office and principal place of business of each Loan Party is 1114 Avenue of the Americas, New  York, NY 10036.         5.21  REIT Status  and  Stock  Exchange  Listing.  The  Borrower  is  organized  and  operated in a manner that allows it to qualify as a REIT.  Each class of the Borrower’s common  Equity Interests is listed on the New York Stock Exchange.         5.22  No  Burdensome  Agreements.   Except  as  may  have  been  disclosed  by  the  Borrower in writing to the Lenders prior to the Closing Date or that would otherwise be permitted  under  the  Loan  Documents,  neither  the  Borrower  nor  any  other Loan Party  is  a  party  to  any  agreement  or  instrument  or  subject  to  any  other  obligation  or  any  charter  or  corporate  or  partnership  restriction,  as  the  case may  be,  which,  individually  or  in  the  aggregate, would  reasonably be expected to have a Material Adverse Effect.         5.23  Collateral Documents.  The provisions of the Collateral Documents are effective  to create in favor of the Administrative Agent for the benefit of the Secured Parties a legal, valid  and enforceable first priority Lien (subject to Permitted Property Encumbrances and Permitted  Equity Encumbrances, as applicable) on all right, title and interest of the respective Grantors in  the Collateral described therein.  Except as contemplated by the Collateral Documents, no filing  or other action will be necessary to perfect or protect such Liens.         5.24  Organization  Documents.    The   documents  delivered  pursuant  to  Section 4.01(a)(v) constitute, as of the Closing Date, all of the organizational documents (together  with  all  amendments  and  modifications  thereof)  of  the  Borrower  and  each Loan Party.  The  Borrower represents that it has delivered to the Administrative Agent true, correct and complete  copies of each such document.         5.25  Borrowing Base Assets.  Each Loan Asset and Ground Net Lease Asset included  in any calculation of Borrowing Base Amount, at the time of such calculation, satisfied each of the  criteria set forth in the definition of Eligible Loan Asset or Eligible Ground Net Lease Asset, as  applicable.         5.26  EEA Financial Institutions.  No Loan Party is an EEA Financial Institution.                                              105 





 






                   ARTICLE VI.       AFFIRMATIVE COVENANTS         So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation  hereunder shall remain unpaid or unsatisfied (in each case, other than contingent indemnification  and reimbursement obligations for which no claim has been asserted), or any Letter of Credit shall  remain outstanding (that has not been Cash Collateralized):         6.01  Financial Statements.  The Borrower shall deliver to the Administrative Agent for  further distribution to each Lender:         (a)   as soon as available, but in any event within 95 days after the end of each fiscal  year of the Borrower (or, if earlier, 5 days after the date required to be filed with the SEC (without  giving effect to any extension permitted by the SEC)), a consolidated balance sheet of the Borrower  and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of  income or operations, changes in shareholders’ equity, and cash flows for such fiscal year, setting  forth in each case in comparative form the figures for the previous fiscal year, all in reasonable  detail and prepared in accordance with GAAP, audited and accompanied by a report and opinion  of Deloitte or another independent certified public accountant of nationally recognized standing  reasonably acceptable to  the Required Lenders,  which report and opinion shall be prepared in  accordance  with  generally  accepted  auditing  standards  and  shall  not  be  subject  to  any  “going  concern” or like qualification or exception or any qualification or exception as to the scope of such  audit;          (b)   as soon as available, but in any event within 50 days after the end of each of the  first three fiscal quarters of each fiscal year of the Borrower (or, if earlier, 5 days after the date  required to be filed with the SEC (without giving effect to any extension permitted by the SEC))  (commencing with the fiscal quarter ended March 31, 2020), a consolidated balance sheet of the  Borrower  and  its  Subsidiaries  as  at  the  end  of  such  fiscal  quarter,  the  related  consolidated  statements of income or operations for such fiscal quarter and for the portion of the Borrower’s  fiscal year then ended, and the related consolidated statements of changes in shareholders’ equity,  and cash flows for the portion of the Borrower’s fiscal year then ended, in each case setting forth  in comparative form, as applicable, the figures for the corresponding fiscal quarter of the previous  fiscal  year  and  the  corresponding  portion  of  the  previous  fiscal  year,  all  in  reasonable  detail,  certified  by  the  chief  executive  officer,  chief  financial  officer,  treasurer  or  controller  of  the  Borrower as fairly presenting the financial condition, results of operations, shareholders’ equity  and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject only to  normal year-end audit adjustments and the absence of footnotes; and   As to any information contained in materials furnished pursuant to Section 6.02(d), the Borrower  shall not be separately required to furnish such information under subsection (a) or (b) above, but  the foregoing shall not be in derogation of the obligation of the Borrower to furnish the information  and materials described in subsections (a) and (b) above at the times specified therein.         6.02  Certificates;  Other  Information.  The  Borrower  shall  deliver  to  the  Administrative Agent for further distribution to each Lender:                                         106 





 






         (a)   concurrently  with  the  delivery  of  the  financial  statements  referred  to  in  Sections 6.01(a) and (b) (commencing with the delivery of the financial statements for the fiscal  year ended December 31, 2019), a duly completed Compliance Certificate (which delivery may,  unless  the  Administrative  Agent,  or  a  Lender  requests  executed  originals,  be  by  electronic  communication including fax or email and shall be deemed to be an original authentic counterpart  thereof for all purposes), including a calculation, in form and substance reasonably satisfactory to  the Administrative Agent, of Availability as of the last day of the fiscal period covered by such  Compliance Certificate;         (b)   on a quarterly basis (and in any case within 15 Business Days after the last day of  each quarter), or more frequently if requested by the Administrative Agent upon the occurrence  and during the continuance of a Default or a Material Event, a Borrowing Base Certificate;         (c)   promptly  after  the  same  are  available,  copies  of  each  annual  report,  proxy  or  financial statement or other report or communication sent to the stockholders of the Borrower, and  copies of all annual, regular, periodic and special reports and registration statements which the  Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities  Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent  pursuant hereto;          (d)   promptly after the furnishing thereof, copies of any material statement or report  furnished to any holder of debt securities of any Loan Party or any Subsidiary thereof pursuant to  the terms of any material indenture, loan or credit or similar agreement and not otherwise required  to be furnished to the Lenders pursuant to Section 6.01 or any other clause of this Section 6.02;          (e)   promptly, and in any event within five (5) Business Days after receipt thereof by  the Borrower or any Subsidiary thereof, copies of each notice or other correspondence received  from  the  SEC  (or  comparable  agency  in  any  applicable  non-U.S.  jurisdiction)  concerning  any  investigation or possible investigation or other inquiry by such agency regarding financial or other  operational results of the Borrower or any Subsidiary thereof;          (f)   promptly, and in any event, within five (5) Business Days after receipt thereof by a  Loan Party, any material amendments, consents or waivers with respect to any Eligible Loan Asset  or Eligible Ground Net Lease Asset and entered into or delivered on or after the Closing Date;          (g)   promptly following any request therefor, provide information and documentation  reasonably requested by the Administrative Agent or any Lender for purposes of compliance with  applicable “know your customer” rules and regulations, Anti-Money-Laundering Laws, including,  without limitation, the PATRIOT Act, and the Beneficial Ownership Regulation; and         (h)   promptly, such additional information regarding the business, financial or corporate  affairs of the Borrower or any Subsidiary, compliance with the terms of the Loan Documents, or  with respect to any Eligible Loan Asset, Eligible Ground Net Lease or Collateral, in each case, as  the Administrative Agent or any Lender may from time to time reasonably request.         Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(c)  or (d) (to the extent any such documents are included in materials otherwise filed with the SEC)  may be delivered electronically and if so delivered, shall be deemed to have been delivered on the                                         107 





 






   date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s  website  on  the  Internet  at  the  website  address  listed  on Schedule 10.02;  or  (ii) on  which  such  documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which  each Lender and the Administrative Agent have access (whether a commercial, third-party website  or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver  paper copies of such documents to the Administrative Agent or any Lender upon its request to the  Borrower to deliver such paper copies until a written request to cease delivering paper copies is  given  by  the  Administrative  Agent  or  such  Lender  and  (ii) the  Borrower  shall  notify  the  Administrative Agent and each Lender (by facsimile or electronic mail) of the posting of any such  documents and provide to the Administrative Agent by electronic mail electronic versions (i.e.,  soft copies) of such documents.  The Administrative Agent shall have no obligation to request the  delivery of or to maintain paper copies of the documents referred to above, and in any event shall  have no responsibility to monitor compliance by the Borrower with any such request by a Lender  for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining  its copies of such documents.         The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger  may, but shall not be obligated to, make available to the Lenders and the L/C Issuers materials  and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower  Materials”)  by  posting  the  Borrower  Materials  on   IntraLinks,  Syndtrak,  ClearPar,  or   a  substantially similar electronic transmission system (the “Platform”) and (b) certain of the Lenders  (each, a “Public Lender”) may have personnel who do not wish to receive material non-public  information with respect to the Borrower or its Affiliates, or the respective securities of any of the  foregoing, and who may be engaged in investment and other market-related activities with respect  to such Persons’ securities.  The Borrower hereby agrees that (w) all Borrower Materials that are  requested on not less than three (3) Business Days’ notice to be made available to Public Lenders  shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the  word  “PUBLIC”  shall  appear  prominently  on  the  first  page  thereof;  (x) by  marking  Borrower  Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent,  the Arranger, the L/C Issuers and the Lenders to treat such Borrower Materials as not containing  any material non-public information with respect to the Borrower or its securities for purposes of  United  States  Federal  and  state  securities  laws  (provided, however,  that  to  the  extent  such  Borrower Materials constitute Information, they shall be treated as set forth in Section 10.07);  (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion  of the Platform designated “Public Side Information;” and (z) the Administrative Agent and the  Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being  suitable only for posting on a portion of the Platform not designated “Public Side Information.”         6.03  Notices.  The Borrower shall promptly (and in any event within five (5) Business  Days after any officer of any Loan Party obtains knowledge thereof) notify the Administrative  Agent and each Lender:         (a)   of the occurrence of any Default;         (b)   of  any  matter  that  has  resulted  or  could  reasonably  be  expected  to  result  in  a  Material Adverse Effect;                                         108 





 






         (c)   and in any event notify the Administrative Agent and each Lender within thirty (30)  days, if and when any member of the ERISA Group (i) gives or is required to give notice to the  PBGC of any “reportable event” (as defined in Section 4043 of ERISA) with respect to any Plan  which might reasonably constitute grounds for a termination of such Plan under Title IV of ERISA,  or knows that the plan administrator of any Plan has given or is required to give notice of any such  reportable event, a copy of the notice of such reportable event given or required to be given to the  PBGC; (ii) receives notice of complete or partial withdrawal liability under Title IV of ERISA or  notice that any Multiemployer Plan is in Insolvency or has been terminated, a copy of such notice;  (iii) receives notice from the PBGC under Title IV of ERISA of an intent to terminate, impose  liability (other than for premiums under Section 4007 of ERISA) in respect of, or appoint a trustee  to administer any Plan, a copy of such notice; (iv) applies for a waiver of the minimum funding  standard under Section 412 of the Code, a copy of such application; (v) gives notice of intent to  terminate any Plan under Section 4041(c) of ERISA, a copy of such notice and other information  filed with the PBGC; (vi) gives notice of withdrawal from any Plan pursuant to Section 4063 of  ERISA, a copy of such notice; or (vii) fails to make any payment or contribution to any Plan or  Multiemployer Plan or makes any amendment to any Plan which has resulted or could result in the  imposition of a Lien or the posting of a bond or other security, and, in the case of any occurrence  covered by any of clauses (i) through (vii) above, which occurrence would reasonably be expected  to result in a Material Adverse Effect;         (d)   (i)  the receipt  by  the  Borrower,  or  any  of  the  Environmental  Affiliates  of  any  communication  (written  or  oral),  whether  from  a Governmental  Authority,  citizens  group,  employee or otherwise, that alleges that the Borrower, or any of the Environmental Affiliates, is  not  in  compliance  with  applicable  Environmental  Laws,  and  such  noncompliance  would  reasonably be expected to have a Material Adverse Effect, (ii) the existence of any Environmental  Claim  pending  against  the  Borrower  or  any  Environmental  Affiliate  and  such  Environmental  Claim  would  reasonably  be  expected  to  have  a  Material  Adverse  Effect  or  (iii) any  release,  emission, discharge or disposal of any Hazardous Material that would reasonably be expected to  form the basis of any Environmental Claim against the Borrower or any Environmental Affiliate  or would reasonably be expected to interfere with the Borrower’s Business or the fair saleable  value or use of any of its Properties, which in any such event would reasonably be expected to  have a Material Adverse Effect;         (e)   the  occurrence  of  any  Material  Event  with  respect  to,  or  any material event  of  default under or related to, any Borrowing Base Asset;         (f)   of any material change in accounting policies or financial reporting practices by the  Borrower or any Subsidiary; and         (g)   of any announcement by Moody’s, S&P or Fitch of any change or possible change  in a Debt Rating; provided, that the provisions of this clause (g) shall not apply until the Investment  Grade Pricing Effective Date.         Each notice pursuant to this Section 6.03 (other than Section 6.03(g)) shall be accompanied  by a statement of a Responsible Officer of the Borrower setting forth details of the occurrence  referred to therein and stating what action the Borrower has taken and proposes to take with respect                                         109 





 






   thereto.  Each  notice  pursuant  to Section 6.03(a) shall  describe  with  particularity  any  and  all  provisions of this Agreement and any other Loan Document that have been breached.         6.04  Payment of Obligations.  The Borrower shall, and shall cause each Subsidiary to,  pay and discharge as the same shall become due and payable, all its obligations and liabilities,  including (a) all federal and state and other tax liabilities, assessments and governmental charges  or levies upon it or its properties or assets, unless the same are being contested in good faith by  appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are  being maintained by the Borrower or such Subsidiary or the failure to pay or discharge would not  reasonably be expected to result in a Material Adverse Effect and (b) all lawful claims which, if  unpaid, would by law become a Lien upon any Borrowing Base Asset or any Collateral (in each  case, other  than  Permitted  Equity  Encumbrances and Permitted  Property  Encumbrances,  as  applicable).         6.05  Preservation  of  Existence,  Etc.  (a) The  Borrower  shall,  and  shall  cause  each  Subsidiary to, preserve, renew and maintain in full force and effect its legal existence and good  standing under the Laws of the jurisdiction of its organization except (i) in a transaction permitted  by Section 7.04 or 7.05 or (ii) solely in the case of a Subsidiary that is not a Loan Party, to the  extent that the failure to do so could not reasonably be expected to have a Material Adverse Effect  and (b) take all reasonable action to maintain all rights, privileges, permits, licenses and franchises  necessary or desirable in the normal conduct of its business, except to the extent that failure to do  so would not reasonably be expected to have a Material Adverse Effect.         6.06  Maintenance of Properties.  The Borrower shall or shall cause (a) all properties  of the Consolidated Group (including each of their respective Real Property Assets and equipment  necessary  in  the  operation  of  its  business)  to  be maintained,  preserved and  protected in  good  working order and condition, ordinary wear and tear and casualty and condemnation excepted and  (b) to be made all necessary repairs thereto and renewals and replacements thereof except, in each  case  under clauses  (a) and (b), where  the  failure  to  do  so would  not,  individually  or  in  the  aggregate, reasonably be expected to have a Material Adverse Effect.         6.07  Maintenance of Insurance.           (a)   Subject  to  the  requirements  of Section  6.07(b) with  respect  to  Collateral, the  Borrower shall maintain or cause to be maintained, with financially sound and reputable insurance  companies not Affiliates of the Borrower, insurance with respect to properties of the Consolidated  Parties and businesses against loss or damage of the kinds customarily insured against by Persons  engaged in  the same or  similar business  and owning similar properties  in localities  where the  Borrower or the applicable Consolidated Party operates, of such types and covering such risks,  and  in  such  amounts  and  with  such  deductibles,  as  are  customarily carried  under  similar  circumstances by such other Persons.  Upon the reasonable request of the Administrative Agent  from time to time the Borrower shall furnish or cause to be furnished to the Administrative Agent  certificates of insurance evidencing the insurance carried on the properties of the Consolidated  Parties.          (b)   With respect to each Real Property Asset that constitutes Collateral, the Borrower  shall, and shall cause each Subsidiary to, or shall cause the lessee or mortgagor with respect to                                         110 





 






   such Real Property Asset to, maintain: (i) property insurance with respect to all Improvements and  other insurable components of such Real Property Asset (excluding anything not owned by the  applicable Direct Owner), against loss or damage by fire, lightning, windstorm, explosion, hail,  tornado and such additional hazards as are presently included in “Special Form” (also known as  “all-risk”) coverage and against any and all acts of terrorism and such other insurable hazards as  the Administrative Agent may require, in an amount not less than 100% of the full replacement  cost, including the cost of debris removal, without deduction for depreciation and sufficient to  prevent any Consolidated Party and the Administrative Agent from becoming a coinsurer, such  insurance to be in “builder’s risk” completed value (non reporting) form during and with respect  to  any  construction  on  such  Real  Property  Asset;  (ii)  if  and  to  the  extent  any  portion  of  the  Improvements on such Real Property Asset is, under the FDPA, in a Special Flood Hazard Area,  within a Flood Zone designated A or V in a participating community, a flood insurance policy in  form, substance and amount sufficient to meet the requirements of applicable Law and the FDPA,  as confirmed by each of the Lenders, as such requirements may from time to time be in effect;  (iii) general  liability  insurance,  on  an  “occurrence”  basis,  against  claims  for  “personal  injury”  liability,  including  bodily  injury,  death  or  property  damage  liability,  for  the  benefit  of  the  applicable Direct Owner as named insured and the Administrative Agent as additional insured;  (iv) statutory workers’ compensation insurance with respect to any work on or about such Real  Property Asset (including employer’s liability insurance, if required by the Administrative Agent),  covering  all  employees  of  each  Subsidiary  Guarantor  (if  any);  (v) business  interruption for  Landlord’s rental income in an amount not less than the amount of gross rents payable in a 12  month period and which shall provide an extended period of indemnity endorsement for 360 days  on an actual loss sustained basis; and (vi) such other insurance on such Real Property Asset and  endorsements  as  may  from  time  to  time  be  required  by  the  Administrative  Agent  (including  automobile  liability  insurance,  boiler  and  machinery  insurance,  earthquake  insurance,  wind  insurance, sinkhole coverage, and/or permit to occupy endorsement) and against other insurable  hazards or casualties which at  the time are commonly insured against in  the case of premises  similarly situated,  due  regard  being  given  to  the  height,  type,  construction,  location,  use  and  occupancy of buildings and improvements.  All insurance policies shall be issued and maintained  by  insurers,  in  amounts,  with  deductibles,  limits  and  retentions,  and  in  forms reasonably  satisfactory to the Administrative Agent, and shall require not less than thirty (30) days’ prior  notice to the Administrative Agent of termination, lapse or cancellation of such insurance.  All  insurance companies must be licensed to do business in the state in which such Real Property Asset  is located and must have an A.M. Best Company financial and performance ratings of A-:IX or  better.  All such insurance policies, except for general liability insurance, shall provide that each  such policy shall be primary without right of contribution from any other insurance that may be  carried by the Borrower, any of its Subsidiaries or the Administrative Agent and that all of the  provisions thereof, except the limits of liability, shall operate in the same manner as if there were  a separate policy covering each insured.  If any insurer which has issued a policy of title, hazard,  liability  or  other  insurance  required  pursuant  to  this  Agreement  or  any  other  Loan  Document  becomes insolvent or the subject of any petition, case, proceeding or other action pursuant to any  Debtor  Relief  Law,  or  if  in  the  Administrative  Agent’s  reasonable  opinion  the  financial  responsibility  of  such  insurer  is  or  becomes  inadequate,  the  Borrower  shall,  in  each  instance  promptly  upon  its  discovery  thereof  or  upon  the  written  request  of  the  Administrative  Agent  therefor, and at the Borrower’s expense, promptly obtain and deliver to the Administrative Agent  a like policy (or, if and to the extent permitted by the Administrative Agent, acceptable evidence                                         111 





 






   of insurance) issued by another insurer, which insurer and policy meet the requirements of this  Agreement or such other Loan Document, as the case may be.  Without limiting the discretion of  the Administrative Agent with respect to required endorsements to insurance policies, all such  policies for loss of or damage to such Real Property Asset (including business interruption and  delayed rental insurance) shall contain a standard mortgagee clause (without contribution) naming  the  Administrative  Agent  as  mortgagee  and  loss  payee  with  loss  proceeds  payable  to  the  Administrative Agent notwithstanding (w) any act, failure to act or negligence of or violation of  any warranty, declaration or condition contained in any such policy by any named or additional  insured; (x) the occupation or use of such Real Property Asset for purposes more hazardous than  permitted by the terms of any such policy; (y) any foreclosure or other action by the Administrative  Agent under the Loan Documents; or (z) any change in title to or ownership of such Real Property  Asset or any portion thereof, such proceeds to be held for application as provided in the Loan  Documents.   The  Borrower  shall  pay  or  cause  to  be  paid all  premiums  on  policies  required  hereunder as they become due and payable.  If any loss occurs at any time when the Borrower has  failed to perform the Borrower’s covenants and agreements in this Section 6.07(b) with respect to  any insurance payable because of loss sustained to any part of such Real Property Asset whether  or not such insurance is required by the Administrative Agent, the Administrative Agent shall  nevertheless be entitled to the benefit of all insurance covering the loss and held by or for any  Consolidated Party to the same extent as if it had been made payable to the Administrative Agent.         (c)   The  Borrower  shall  (i)  deliver  to  the  Administrative  Agent  the certificates  evidencing each renewal or substitute insurance policy required pursuant to Section 6.07(b) (or to  the extent permitted by the Administrative Agent, a copy of the original policy and such evidence  of insurance acceptable to the Administrative Agent), with all premiums fully paid current, at least  ten (10) days before the termination of the policy it renews or replaces and (ii) promptly deliver to  the Administrative Agent evidence satisfactory to the Administrative Agent of the timely payment  of all premiums on the policies required pursuant to Section 6.07(b).         (d)   The  Borrower  shall,  and  shall  cause  each  Subsidiary  to,  comply or  cause  compliance with the requirements of the insurance policies required hereunder and of the issuers  of such policies and of any board of fire underwriters or similar body as applicable to or affecting  any Real Property Asset constituting Collateral.         (e)   The  Administrative  Agent  may  retain,  at  the  Borrower’s  sole  expense,  an  independent insurance consultant to evaluate the sufficiency of the insurance to be carried pursuant  to Section 6.07(b) and to advise the Administrative Agent with respect to such other insurance as  may  be  necessary  and  prudent  to  protect  the  Secured  Parties’  security  for  repayment  of  the  Obligations; provided, however, that, so long as no Event of Default shall have occurred and be  continuing, the Borrower shall only be obligated to pay for such independent evaluation one (1)  time per calendar year.         (f)   Upon any foreclosure of any Mortgage or transfer of title to any Real Property Asset  in extinguishment of the whole or any part of the Obligations, all of the Loan Parties’ right, title  and  interest  in and  to  the  insurance  policies  referred  to  in Section  6.07 (including  unearned  premiums) and all Insurance Proceeds payable thereunder shall thereupon vest in the purchaser at  foreclosure  or  other  such  transferee,  to  the  extent  permissible  under  such  policies.   Upon  the  occurrence and during the continuance of an Event of Default, the Administrative Agent shall have                                         112 





 






   the right (but not the obligation) to make proof of loss for, settle and adjust any claim under, and  receive all  Insurance Proceeds  for loss of or damage to  each Real  Property Asset  constituting  Collateral, regardless of whether or not any insurance policies are required by the Administrative  Agent, and the expenses incurred by the Administrative Agent, including reasonable attorneys’  fees, in the adjustment and collection of insurance proceeds shall be a part of the Obligations and  shall be due and payable to the Administrative Agent on demand.  The Administrative Agent shall  not be, under any circumstances, liable or responsible for failure to collect or exercise diligence in  the  collection  of  any  of  such  proceeds  or  for  the  obtaining,  maintaining  or  adequacy  of  any  insurance or for failure to see to the proper application of any amount paid over to any Loan Party  unless determined by a court of competent jurisdiction by a final and nonappealable judgment to  arise from the bad faith, gross negligence or willful misconduct of the Administrative Agent.  Upon  the occurrence and during the continuance of an Event of Default, any Insurance Proceeds received  by  the  Administrative  Agent  shall,  after  deduction  therefrom  of  all  expenses  incurred  by  the  Administrative Agent, including reasonable attorneys’ fees, at the Administrative Agent’s option  be (i) released to the Borrower, (ii) applied (upon compliance with such terms and conditions as  may be required by the Administrative Agent) to the restoration, either partly or entirely, of the  Real Property Asset so damaged, or (iii) applied to the payment of the Obligations in such order  and manner as the Administrative Agent, in its sole discretion, may elect, whether or not due.  In  any  event,  the  unpaid  portion  of  the  Obligations  shall  remain  in  full  force  and  effect  and  the  payment thereof shall not be excused.         6.08  Compliance with Laws.  The Borrower shall, and shall cause each Subsidiary to,  comply  with all  Laws  and requirements  of Governmental  Authorities (including, without  limitation, Environmental Laws and all zoning and building codes with respect to its Real Property  Assets and ERISA and the rules and regulations thereunder and all federal securities laws) except  where (i) the  necessity  of  compliance  therewith  is  contested  in  good  faith  by  appropriate  proceedings or (ii) the  failure  to  do  so would not reasonably  be  expected  to have  a  Material  Adverse Effect or expose the Administrative Agent or Lenders to any material liability therefor.          6.09  Books  and  Records.   The  Borrower  shall,  and  shall  cause  each  Subsidiary  to,  maintain proper books of record and account, in which full, true and correct entries in conformity  with GAAP consistently applied shall be made of all financial transactions and matters involving  the assets and business of the Borrower or such Subsidiary, as the case may be.         6.10  Inspection Rights.  The Borrower shall, and shall cause each Subsidiary to, permit  representatives and independent contractors of the Administrative Agent and each Lender on five  (5) Business Days' advance notice to the Borrower, to visit and inspect, subject to the rights of the  lessees under Ground Net Leases, any of its properties, to examine its corporate, financial and  operating  records,  and  make  copies  thereof  or  abstracts  therefrom,  and  to  discuss  its  affairs,  finances and accounts with its directors, officers, and independent public accountants, in the case  of Real Estate Assets subject to a Ground Net Lease, subject, except with respect to examining its  corporate, financial and  operating records, to  the rights  of the lessees  under such  Ground Net  Leases, all at the expense of the Borrower and at such reasonable times during normal business  hours,  upon  reasonable  advance  notice  to  the  Borrower (and  with  the  Borrower  and  its  representatives  in  attendance); provided,  that  unless  an  Event  of  Default  has  occurred  and  is  continuing, such visits shall be limited to once in any calendar year and only one such visit by the  Administrative Agent per calendar year shall be at the expense of the Borrower; provided further,                                         113 





 






   the Administrative Agent, the Lenders and their representatives shall use commercially reasonable  efforts to minimize disruption with the business of the lessees under the Ground Net Leases and  disturbance of such lessees in violation of the applicable Ground Net Leases.         6.11  Use of Proceeds.  The Borrower shall, and shall cause each Subsidiary to, use the  proceeds of the Credit Extensions for general corporate purposes not in contravention of any Law  or of any Loan Document.         6.12  Additional Subsidiary Guarantors.  If any Subsidiary of CARET that is not a  Subsidiary  Guarantor  becomes  a  borrower  or  a  guarantor  of,  or  otherwise incurs  a  payment  obligation in respect of, any Unsecured Debt (each such Subsidiary being referred to as a “New  Subsidiary Guarantor”), then:         (a)   within five (5) Business Days (or such longer period as the Administrative Agent  shall agree) of such event, the Borrower shall:               (i)   notify the Administrative Agent in writing of such event and the name of        such New Subsidiary Guarantor;               (ii)  provide the Administrative Agent with the U.S. taxpayer identification for        such New Subsidiary Guarantor; and               (iii) provide the Administrative Agent and each Lender with all documentation        and other information that the Administrative Agent or any Lender requests in order to        comply with its obligations under applicable “know your customer” rules and regulations,        Anti-Money-Laundering Laws, including, without limitation, the PATRIOT Act, and the        Beneficial Ownership Regulation; and         (b)   within 30 days (or such longer period as the Administrative Agent shall agree) of  such event, the Borrower shall deliver, or cause to be delivered, to the Administrative Agent, at  the  Borrower's  sole  expense,  each  of  which  shall  be  originals,  or  e-mail  (in  a  .pdf  format)  or  facsimiles (followed promptly by originals) unless otherwise specified, each of which documents  to be signed by any New Subsidiary Guarantor shall be properly executed by a Responsible Officer  of such signing New Subsidiary Guarantor and each in form  and substance satisfactory to the  Administrative Agent and the Required Lenders:               (i)   a joinder agreement in substantially the form attached hereto as Exhibit H,        together with all of the items described in Sections 4.01(a)(iv), 4.01(a)(v) and 4.01(a)(viii)        with respect to each New Subsidiary Guarantor (in each case to the extent not already a        Subsidiary Guarantor); and                (ii)  if required by the Administrative Agent, favorable opinions of counsel to        the Loan Parties, addressed to the Administrative Agent and each Lender as to such matters        as  the  Administrative  Agent  may  reasonably  request  concerning  such  New  Subsidiary        Guarantor and the Loan Documents to which such New Subsidiary Guarantor is a party.         (c)   Notwithstanding anything to the contrary contained in this Agreement, in the event  that  the  results  of  any  such  “know  your  customer”  or  similar  investigation  conducted  by  the                                         114 





 






   Administrative  Agent  with  respect  to  any  New  Subsidiary  Guarantor  are  not  reasonably  satisfactory to the Administrative Agent, such New Subsidiary Guarantor shall not be permitted to  become a Guarantor, and for the avoidance of doubt no Default shall occur as a result thereof.         6.13  Anti-Corruption Laws.  The Borrower shall, and shall cause each Subsidiary to,  conduct its businesses in compliance with the United States Foreign Corrupt Practices Act of 1977,  the UK Bribery Act 2010, and other similar anti-corruption legislation in other jurisdictions and  maintain policies and procedures designed to promote and achieve compliance with such laws, in  each case, in all material respects.         6.14  Information Regarding Collateral.  The  Borrower shall, and shall cause each  Grantor to, provide the Administrative Agent not less than ten Business Days’ prior written notice  (in the form of certificate signed by a Responsible Officer), or such lesser notice period agreed to  by the Administrative Agent, before effecting any change (i) in any Grantor’s legal name, (ii) in  the location of any Grantor’s chief executive office, (iii) in any Grantor’s identity or organizational  structure, (iv) in any Grantor’s U.S. taxpayer identification number or organizational identification  number, if any, or (v) in any Grantor’s jurisdiction of organization or incorporation (in each case,  including  by  merging  with  or  into  any  other  entity,  reorganizing,  dissolving,  liquidating,  reorganizing  or  organizing  in  any  other  jurisdiction).   Such  notice  shall  clearly  describe  such  change and provide such other information in connection therewith as the Administrative Agent  may reasonably request.  In addition, prior to any such change, the Borrower shall, and shall cause  each Grantor to, take all action reasonably satisfactory to the Administrative Agent to maintain the  perfection and priority of the security interest of the Administrative Agent for the benefit of the  Secured Parties in the Collateral, if applicable.  The Grantors hereby agree to promptly provide  the Administrative Agent with certified Organization Documents reflecting any of the changes  described  in  the  preceding  sentence.   Notwithstanding  the  foregoing  or  anything  else  to  the  contrary contained herein or in any other Loan Document, the Borrower agrees that it will, and  will cause each other Grantor to, at all times maintain its jurisdiction of organization as Delaware  or one of the other States within the United States of America.         6.15  Maintenance of REIT Status; Stock Exchange Listing.  The Borrower shall, at  all times continue to (a) be organized and operated in a manner that will allow the Borrower to  qualify as a REIT and (b) remain publicly traded with each class of its common Equity Interests  listed on the New York Stock Exchange.         6.16  [Intentionally Omitted].           6.17  Further Assurances.  The Borrower shall, and shall cause each Loan Party to,  promptly upon the reasonable request by the Administrative Agent, or any Lender through the  Administrative Agent, do, execute, acknowledge, deliver, record, re-record, file, re-file, register  and re-register any and all such further acts, deeds, certificates, assurances and other instruments  as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably  require  from  time  to  time  in  order  to  (i)  carry  out  more  effectively  the  purposes  of  the  Loan  Documents, (ii) to the full extent permitted by applicable Law, subject any Loan Party’s properties,  assets,  rights  or  interests  to  the  Liens  now  or  hereafter  intended  to  be  covered  by  any  of  the  Collateral Documents, (iii) perfect and maintain the validity, effectiveness and priority of any of  the Collateral Documents and any of the Liens intended to be created thereunder and (iv) assure,                                         115 





 






   convey, grant, assign, transfer, preserve, protect and confirm more effectively unto the Secured  Parties the rights granted or now or hereafter intended to be granted to the Secured Parties under  any  Loan  Document  or  under  any  other  instrument  executed  in  connection  with  any  Loan  Document to which any Loan Party is or is to be a party.                     ARTICLE VII.      NEGATIVE COVENANTS         So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation  hereunder shall remain unpaid or unsatisfied (in each case, other than contingent indemnification  and reimbursement obligations for which no claim has been asserted), or any Letter of Credit shall  remain outstanding (that has not been Cash Collateralized):         7.01  Liens.  The Borrower shall not, nor shall it permit any Subsidiary to, directly or  indirectly, create, incur, assume or suffer to exist any Lien on:          (a)   any Borrowing Base Asset that is not Collateral (or any income from or proceeds  of any thereof), other than Permitted Property Encumbrances;          (b)   any Equity Interest in the Direct Owner of any Borrowing Base Asset if such Equity  Interest is not Collateral (or any income from or proceeds of any thereof), other than Permitted  Equity Encumbrances;         (c)   any Equity Interest in any Indirect Owner of the Direct Owner of any Borrowing  Base Asset if such Equity Interest is not Collateral (or any income from or proceeds of any thereof),  other than Permitted Equity Encumbrances; or          (d)   any Collateral, other than (i) Liens pursuant to any Loan Document, (ii) Liens that  secure Secured Pari Passu Obligations, (iii) solely in the case of Collateral constituting Equity  Interests, Permitted Equity Encumbrances and (iv) solely in the case of Collateral other than Equity  Interests, Permitted Property Encumbrances;    or sign, file or authorize under the Uniform Commercial Code of any jurisdiction  a financing  statement that includes in its collateral description any portion of any Collateral, any Borrowing  Base Asset, any Equity Interest in the Direct Owner of any Borrowing Base Asset, any Equity  Interest in any Indirect Owner of the Direct Owner of any Borrowing Base Asset, or any income  from or proceeds of any of the foregoing, except in each case, to perfect a Lien permitted pursuant  to this Section 7.01.         7.02  Investments.  The Borrower shall not, nor shall it permit any Subsidiary to, directly  or indirectly, make or hold any Investments, except:         (a)   Investments held in the form of cash or Cash Equivalents;         (b)   intercompany loans and advances among Consolidated Parties;         (c)   Investments  in  Ground  Net  Leases  (including  through  the  purchase  or  other  acquisition of all of the Equity Interests of any Person that owns a Ground Net Lease);                                          116 





 






         (d)   Investments in unimproved land holdings (including through the purchase or other  acquisition of all of the Equity Interests of any Person that owns unimproved land holdings);          (e)   Investments  consisting  of  commercial  mortgage  or  mezzanine  loans  (whether  originated or acquired by a Consolidated Party);          (f)   Investments  in  Investment  Affiliates  (including  through  the  purchase  or  other  acquisition of Equity Interests in any Investment Affiliate);          (g)   Loans and advances to officers and employees for moving, entertainment, travel  and other similar expenses in the ordinary course of business;          (h)   Guarantees permitted by Section 7.03; and         (i)   Investments in Swap Contracts to the extent resulting in Indebtedness permitted  under Section 7.03.   provided that (i) the aggregate amount of all Investments of the type described in clause (d) of this  Section 7.02 shall not at any time exceed 10% of Total Asset Value and (ii) the aggregate amount  of all Investments of the type described in clauses (d), (e) and (f) of this Section 7.02 shall not at  any time exceed 25% of Total Asset Value;   provided, further, that notwithstanding the foregoing, in no event shall any Investment of the types  described in Section 7.02(c) through (e) be consummated if, (i) immediately before or immediately  after giving effect thereto, an Event of Default shall have occurred and be continuing or would  result therefrom (except with respect to the performance of any acquisition agreement entered into  prior to the occurrence of any Default hereunder that results in an Investment of not more than  $25,000,000) or (ii) the Loan Parties would not be in compliance, on a pro forma basis, with the  provisions of Section 7.11.   For purposes of this Section 7.02, determinations of whether an Investment is permitted will be  made after giving effect to such Investment.         7.03  Indebtedness.   The  Borrower  shall  not,  nor  shall  it  permit  any  Subsidiary  to,  directly or indirectly, create, incur, assume or suffer to exist any Indebtedness, except:         (a)   Indebtedness under the Loan Documents;         (b)   prior to the occurrence of the Investment Grade Release, Indebtedness arising under  or in connection with any Swap Contract that is entered into in order to protect the Borrower and  its Subsidiaries from fluctuations in interest rates on, or currency values with respect to, Qualified  Debt (including any anticipated refinancing thereof); provided that (i) prior to entering into such  Swap Contract the Borrower has identified to the Administrative Agent in a written notice (each,  a “Qualified Debt Notice”) the aggregate principal amount of all Qualified Debt immediately after  giving effect to such Swap Contract becoming effective (which notice shall include a listing of  each  such  Qualified Debt) and (ii) at  the  time  such  Swap  Contract  becomes  effective  and  immediately after giving effect thereto, (A) the notional amount of such Swap Contract, when  taken together with the aggregate notional amount of all other then outstanding Swap Contracts                                         117 





 






   entered into in reliance on this clause (b), does not exceed the then aggregate principal balance of  Qualified Debt, (B) no Event of Default has occurred and is continuing or would result therefrom,  (C) Availability equals or exceeds zero ($0) and (D) the Loan Parties are in compliance, on a pro  forma basis, with the provisions of Section 7.11;         (c)   Unsecured Debt of the Borrower or the Operating Partnership arising under or in  connection with senior unsecured convertible or exchangeable notes so long as the Borrower or  the Operating Partnership is required to or may, in its sole discretion, satisfy its obligations upon  conversion or exchange of such Unsecured Debt by delivering common Equity Interests in the  Borrower; provided that at the time of the incurrence of such Unsecured Debt and immediately  after giving effect thereto (i) no Event of Default has occurred and is continuing or would result  therefrom, (ii) Availability equals or exceeds zero ($0) and (iii) the Loan Parties are in compliance,  on a pro forma basis, with the provisions of Section 7.11;         (d)   after the occurrence of the Investment Grade Release, Unsecured Debt and Secured  Debt that constitutes Secured Pari Passu Obligations; provided that at the time of the incurrence  of such Unsecured Debt or Secured Debt, as the case may be, and immediately after giving effect  thereto (i) no  Event of  Default  has  occurred  and  is  continuing  or  would  result  therefrom,  (ii) Availability equals or exceeds zero ($0) and (iii) the Loan Parties are in compliance, on a pro  forma basis, with the provisions of Section 7.11; and         (e)   Secured Debt that does not constitute Secured Pari Passu Obligations; provided that  at the time of the incurrence of such Secured Debt (including any Liens associated therewith) and  immediately after giving effect thereto (i) no Event of Default has occurred and is continuing or  would result therefrom and (ii) the Loan Parties are in compliance, on a pro forma basis, with the  provisions of Section 7.11.         7.04  Fundamental Changes.  The Borrower shall not, nor shall it permit any Subsidiary  to, directly or indirectly, merge, dissolve, liquidate, consolidate with or into another Person or  reorganize itself in any non-U.S. jurisdiction, or Dispose of (whether in one transaction or in a  series  of  transactions)  all  or  substantially  all  of  its  assets  (whether  now  owned  or  hereafter  acquired) to or in favor of any Person (including, in each case, pursuant to a Division), except that,  so long as no Default exists or would result therefrom:         (a)   any Subsidiary may merge or consolidate with (i) the Borrower, provided that the  Borrower shall be the continuing or surviving Person or (ii) any one or more other Subsidiaries,  provided, that when any Grantor or Subsidiary Guarantor is merging with another Subsidiary, a  Grantor or Subsidiary Guarantor, as applicable, shall be the continuing or surviving Person;         (b)   any Subsidiary of the Borrower may Dispose of all or substantially all of its assets  (upon voluntary liquidation or otherwise) to the Borrower or another Subsidiary; provided that (i)  if the transferor in such a transaction is a Grantor or Subsidiary Guarantor, then the transferee must  be a Grantor  or  a  Subsidiary  Guarantor, as  applicable, (ii)  if  the  property  subject  to  such  Disposition includes any Borrowing Base Asset, then, upon consummation of such Disposition  such  property  shall  either  continue  to  qualify  as a  Borrowing  Base  Asset  or  shall  have  been  removed as a Borrowing Base Asset pursuant to a Release Transaction in accordance with the  provisions of Section 2.18(c), and (iii) if the property subject to such Disposition includes any                                         118 





 






   Collateral, then, upon consummation of such Disposition such property shall either continue to  constitute Collateral or the Borrowing Base Asset constituting or related to such Collateral shall  have been removed as a Borrowing Base Asset pursuant to a Release Transaction in accordance  with the provisions of Section 2.18(c);         (c)   Dispositions  that  are  permitted  under Section  7.05,  and  Investments  that  are  permitted under Section 7.02, shall be permitted under this Section 7.04; provided, that in the case  of any Disposition made in connection with a merger or consolidation, such transaction must also  be permitted pursuant to Section 7.04(a) or 7.04(d), as applicable; and         (d)   Any Subsidiary may merge or consolidate with any Person that is not a Subsidiary  in connection with an Investment permitted under Section 7.02 or a Disposition permitted under  Section 7.05; provided that (i) in the case of a merger or consolidation involving the Borrower, the  Borrower  shall  be  the  continuing  or  surviving  Person  and  (ii)  in  the  case  of  any  merger  or  consolidation involving a Grantor or a Subsidiary Guarantor and not involving the Borrower, either  (x)  the continuing  or surviving  Person  shall  cease  to  be  a  Subsidiary  or  (y)  the  continuing or  surviving Person must be a Grantor or a Subsidiary Guarantor, as applicable (or become a Grantor  or a Subsidiary Guarantor, as applicable, upon the consummation thereof)         7.05  Dispositions.  The Borrower shall not, nor shall it permit any Subsidiary to, directly  or indirectly, make any Disposition (whether in one transaction or in a series of transactions or  pursuant  to  a  Division) or,  in  the  case  of  any  Subsidiary,  issue,  sell  or  otherwise  Dispose  of  (whether in one transaction or in a series of transactions or pursuant to a Division) any of such  Subsidiary’s Equity Interests to any Person, except that, so long as no Default exists or would  result therefrom:         (a)   Dispositions permitted by Section 7.03 and 7.04 and, notwithstanding anything in  this Section 7.05 to the contrary, Dispositions permitted by Section 7.06;         (b)   Dispositions among the  Borrower  and  its Subsidiaries; provided that  (i)  if  the  transferor  is  a  Grantor  or  a  Subsidiary  Guarantor,  then  the  transferee  must  be  a Grantor or  a  Subsidiary Guarantor, as applicable, (ii) if the property subject to such Disposition includes any  Borrowing Base Asset, then, upon consummation of such Disposition such property shall either  continue to qualify as a Borrowing Base Asset or shall have been removed as a Borrowing Base  Asset pursuant to a Release Transaction in accordance with the provisions of Section 2.18(c) and  (iii) if the property subject to such Disposition includes any Collateral, then, upon consummation  of such Disposition such property shall either continue to constitute Collateral or the Borrowing  Base Asset constituting or related to such Collateral shall have been removed as a Borrowing Base  Asset pursuant to a Release Transaction in accordance with the provisions of Section 2.18(c);         (c)   the  issuance,  sale  or  other  Disposition  of  limited  partnership  interests  of  the  Operating Partnership and/or membership interests in the CARET Entities, but solely to the extent  that, after giving effect thereto, a Change of Control has not occurred;         (d)   the Disposition of any property (including Equity  Interests in  Subsidiaries) that  does  not  constitute  a Borrowing  Base  Asset  or  Collateral,  so  long as  the  Loan  Parties are in                                         119 





 






   compliance with the provisions of Section 7.11 on a pro forma basis immediately after giving  effect to the consummation of such Disposition; and         (e)   the Disposition of any property constituting a Borrowing Base Asset or Collateral  so  long  as contemporaneously  with  the  consummation  of  such  Disposition  such  property  is  released pursuant to Section 2.18(c).         7.06  Restricted Payments.  The Borrower shall not, nor shall it permit any Subsidiary  to, directly or indirectly, declare or make, directly or indirectly, any Restricted Payment; provided,  that:          (a)   each  Subsidiary  of  the  Borrower  (other  than  the  Operating  Partnership and the  CARET  Entities)  may  declare  and  make  Restricted  Payments  ratably  to  the  holders  of  such  Subsidiary’s Equity Interests according to their respective holdings of the type of Equity Interest  in respect of which such Restricted Payment is being made;         (b)   the Borrower  and its Subsidiaries may declare and make, directly or indirectly,  Restricted Payments (including, for the avoidance of doubt, the purchase, redemption, retirement,  acquisition, cancelation or termination its Equity Interests) so long as (i) no Event of Default shall  have  occurred  and  is  continuing  or  would  result  therefrom,  and  (ii) the  Loan  Parties  are  in  compliance with the provisions of Section 7.11 on a pro forma basis immediately after giving  effect to the making of such Restricted Payment;          (c)   if an Event of Default has occurred and is continuing or would result therefrom, the  Borrower and its Subsidiaries may declare and make, directly or indirectly, Restricted Payments  in an aggregate amount equal to the amount required to be paid by the Borrower to its equity  holders in order for the Borrower to (i) maintain its qualification as a REIT and (ii) avoid the  payment of federal or state income or excise tax; provided, however, no Restricted Payments shall  be permitted under this clause (c) following an acceleration of the Obligations pursuant to Section  8.02 or during the continuance of an Event of Default under Section 8.01(a), (f) or (g); and         (d)   the Borrower  and its Subsidiaries may declare and make, directly or indirectly,  dividend payments or other distributions payable solely in the common stock or other common  Equity Interests in such Person.         7.07  Change in Nature of Business.  The Borrower shall not, nor shall it permit any  Subsidiary to, directly or indirectly, engage in any material line of business substantially different  from those lines of business conducted by the Borrower and its Subsidiaries on the Closing Date  and any business substantially related, incidental, ancillary or complimentary thereto.         7.08  Transactions  with  Affiliates.   The  Borrower  shall  not,  nor  shall  it  permit  any  Subsidiary to, directly or indirectly, enter into any transaction of any kind with any Affiliate of the  Borrower, whether or not in the ordinary course of business, other than on fair and reasonable  terms substantially as favorable to the Borrower or such Subsidiary as would be obtainable by such  Person at the time in a comparable arm’s length transaction with a Person other than an Affiliate  of the Borrower; provided that the foregoing restriction shall not apply to (a) Investments and  Restricted Payments expressly permitted hereunder, (b) payment of customary fees, indemnities  and  reasonable  out  of  pocket  expenses  to  directors,  officers,  managers  and  employees  in  the                                         120 





 






   ordinary course of business, (c) employment and severance arrangements in the ordinary course  of  business,  (d) transactions  by  and  among  the  Loan  Parties  or  (e)  transactions  and  payments  pursuant to the Management Agreement.         7.09  Burdensome  Agreements.   The  Borrower  shall  not,  nor  shall  it  permit  any  Subsidiary  to,  directly  or  indirectly,  enter  into  any  Contractual  Obligation  (other  than  this  Agreement or any other Loan Document and Permitted Pari Passu Provisions) that limits the ability  of (a) any  Subsidiary  to  make  Restricted  Payments  to the  Borrower  or  a Loan  Party,  (b) any  Subsidiary  to Guarantee  the  Obligations,  (c) the  Borrower  or  any Subsidiary  to  create,  incur,  assume or suffer to exist Liens on any Borrowing Base Assets or any Collateral or (d) the Borrower  or any Subsidiary to otherwise transfer (including by way of a pledge) property to the Borrower  or a Loan Party, provided, that (i) clauses (a) and (d) above shall not prohibit any Negative Pledge  incurred or provided in favor of any holder of Secured Debt or the lessor of a Capital Lease, in  each case, with respect to any Real Property Asset or other asset that is neither Collateral nor a  Borrowing Base Asset solely to the extent any such Negative Pledge relates to the Real Property  Asset or other asset financed by or the subject of such Secured Debt or Capital Lease, as applicable,  or  securing  such  Indebtedness, (ii) clause  (d) above  shall  not  prohibit  any  agreement  that  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 so long as such conditions are no  more restrictive than the conditions in this Agreement, (iii) clause (d) above shall not prohibit any  Negative Pledge contained in any agreement in connection with a Disposition not prohibited by  this Agreement (provided that such limitation shall only be effective against the assets or property  that are the subject of Disposition), (iv) clauses (a) and (d) above shall not apply to customary  limitations on Restricted Payments contained in  the constituent documents of, or joint venture  agreements or other similar agreements entered into in the ordinary course of business that are  applicable solely to Subsidiaries that are not Wholly-Owned Subsidiaries, and (v) clauses (a) and  (d) above  shall  not  apply  to  any  encumbrance  or  restriction  consisting  of  customary  non- assignment provisions in agreements entered into in the ordinary course, other than any agreement  affecting,  relating  to,  or  entered  into  in  connection  with,  any  Borrowing  Base  Asset  or  any  Collateral.          7.10  Use of Proceeds.  The Borrower shall not, nor shall it permit any Subsidiary to,  directly or indirectly, use the proceeds of any Credit Extension, whether directly or indirectly, and  whether immediately, incidentally or ultimately, to purchase or carry margin stock (within the  meaning of Regulation U of the FRB) or to extend credit to others for the purpose of purchasing  or carrying margin stock or to refund indebtedness originally incurred for such purpose.         7.11  Financial Covenants.  The Borrower shall not, nor shall it permit any Subsidiary  to:         (a)   Total Leverage Ratio.  Permit the Total Leverage Ratio to be greater than 70% as  of any date.  Notwithstanding the foregoing, the Loan Parties shall be permitted to increase the  maximum  Total  Leverage  Ratio  to 75%  for  any period  not  to  exceed  180 consecutive days;  provided that in no event may such ratio exceed 70% for more than 180 consecutive days in any  360 consecutive day period.                                         121 





 






         (b)   Fixed Charge Coverage Ratio.  Permit the ratio of Consolidated EBITDA to Fixed  Charges to be less than 1.40:1.00 as of the last day of any fiscal quarter of the Borrower for the  period of four fiscal quarters ended on such date.         (c)   Consolidated Tangible Net Worth.  Permit Consolidated Tangible Net Worth on  any date to be less than the sum of (i) $632,827,000, and (ii) an amount equal to 75% of the Net  Proceeds of all Equity Issuances effected by the Borrower after the date of the most recent financial  statements  of the Borrower that  are  available as of the Closing  Date, excluding  any such Net  Proceeds that are applied to purchase, redeem or otherwise acquire Equity Interests issued by the  Borrower within 90 days of receipt of such Net Proceeds.         (d)   Secured Leverage Ratio.  Permit the Secured Leverage Ratio to be greater than  70% as of any date.  Notwithstanding the foregoing, the Loan Parties shall be permitted to increase  the maximum Secured Leverage Ratio to 75% for any period not to exceed 180 consecutive days;  provided that in no event may such ratio exceed 70% for more than 180 consecutive days in any  360 consecutive day period.         (e)   Maximum Secured Recourse Debt.  Permit Total Secured Debt that is Recourse  Debt to exceed 5% of Total Asset Value as of any date.         7.12  Sanctions.  The Borrower shall not, nor shall it permit any Subsidiary to, directly  or knowingly indirectly, use the proceeds of any Credit Extension, or lend, contribute or otherwise  make available such proceeds to any Subsidiary, joint venture partner or other individual or entity,  to fund any activities of or business with any individual or entity, or in any Sanctioned Country,  that, at the time of such funding, is the subject of Sanctions, or in any other manner that will result  in a violation by any individual or entity (including any individual or entity participating in the  transaction,  whether  as  Lender,  Arranger,  Administrative  Agent,  L/C  Issuer  or  otherwise)  of  Sanctions.         7.13  Anti-Corruption Laws; Anti-Money Laundering.           (a)   The Borrower shall not, nor shall it permit any Subsidiary to, directly or indirectly,  use the proceeds of any Credit Extension for any purpose which would breach the United States  Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and other similar anti-corruption  legislation in other jurisdictions.         (b)   The Borrower shall not, nor shall it permit any Subsidiary to, directly or indirectly,  knowingly engage in any transaction, investment, undertaking or activity that conceals the identity,  source or destination of the proceeds from any category of prohibited offenses designated in any  applicable law, regulation or other binding measure by the Organisation for Economic Cooperation  and Development’s Financial Action Task Force on Money Laundering or violate these laws or  any other applicable anti-money laundering law or engage in these actions.         7.14  Amendments,  Waivers  and  Terminations  of  Certain  Agreements.  The  Borrower shall not, nor shall it permit any Subsidiary to, directly or indirectly, amend, modify,  supplement or otherwise change, cancel, terminate or waive in any respect:                                         122 





 






         (a)   the terms of any of its Organization Documents without, in each case, the express  prior written consent or approval of the Administrative Agent, if such changes (i) would materially  impair the rights or interests of the Administrative Agent or any Lender in any Collateral or (ii)  would adversely affect in any material respect any other rights or interests of the Administrative  Agent, any of the L/C Issuers or any of the Lenders hereunder or under any of the other Loan  Documents; or         (b)   the terms or provisions of any agreement constituting or related to  any Eligible  Loan Asset or Eligible Ground Net Lease Asset that is included in the calculation of the Borrowing  Base Amount, other than amendments and modifications that could not reasonably be expected to  have a material adverse effect on the ability of any Loan Party to perform its obligations under any  Loan  Document  to  which  it  is  a  party  and  are  not  adverse  in  any  material  respect  to  the  Administrative Agent or the Lenders.         7.15  Accounting Changes; Fiscal Year.  The Borrower shall not, nor shall it permit  any Subsidiary to, directly or indirectly, make any change in its (a) accounting policies or reporting  practices except as required or permitted by GAAP or (b) fiscal year.              ARTICLE VIII.     EVENTS OF DEFAULT AND REMEDIES         8.01  Events of Default.  Any of the following shall constitute an Event of Default:         (a)   Non-Payment.  The Borrower or any other Loan Party fails to pay (i) when and as  required  to  be  paid  herein,  any  amount  of  principal  of  any  Loan  or  any  L/C  Obligation,  or  (ii) within five (5) Days after the same becomes due, any other amount payable hereunder or under  any other Loan Document; or         (b)   Specific  Covenants.  (i) The  Borrower  fails  to  perform  or  observe  any  term,  covenant or agreement contained in any of Section 6.01, 6.02, 6.03, 6.05, 6.07, 6.10, 6.11, 6.12,  6.13, 6.14, 6.15, 6.16 or Section 10.21 or Article VII, (ii) any Guarantor fails to perform or observe  any term, covenant or agreement contained in the Guaranty or (iii) any Grantor fails to perform or  observe any term, covenant or agreement contained in any Collateral Document to which it is a  party; or         (c)   Other Defaults.  Any Loan Party fails to perform or observe any other covenant or  agreement (not specified in subsection (a) or (b) above) contained in any Loan Document on its  part to be performed or observed and such failure continues for thirty (30) days (or if such default  is of such a nature that it cannot with reasonable effort be completely remedied within said period  of thirty (30) days, such additional period of time as may be reasonably necessary to cure same,  not to exceed sixty (60) days); or         (d)   Representations  and  Warranties.  Any  representation,  warranty,  certification  or  statement of fact made or deemed made by or on behalf of the Borrower or any other Loan Party  herein,  in  any other  Loan Document, or in  any  document delivered in  connection herewith  or  therewith shall be incorrect or misleading in any material respect when made or deemed made or  any representation or warranty that is already by its terms qualified as to “materiality”, “Material  Adverse Effect” or similar language shall be incorrect or misleading in any respect after giving  effect to such qualification when made or deemed made; or                                         123 





 






         (e)   Cross-Default.  (i) The Borrower or any Significant Subsidiary (A) fails to make  any  payment  when  due  (whether  by  scheduled  maturity,  required  prepayment,  acceleration,  demand, or otherwise) and such failure continues beyond the applicable grace period, if any, in  respect  of  any Recourse Indebtedness  or  Guarantee of  Recourse  Indebtedness (other  than  Indebtedness arising under the Loan Documents and Indebtedness under Swap Contracts), having  an  aggregate  principal  amount, individually  or  in  the  aggregate  with  all  other  Recourse  Indebtedness as to which such a failure exists, of more than $60,000,000, or (B) fails to observe  or perform any other agreement or condition relating to such Recourse Indebtedness or Guarantee  of Recourse Indebtedness or contained in any instrument or agreement evidencing, securing or  relating thereto, or any other event occurs, the effect of which default or other event is to cause, or  to permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such  Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries)  to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due  or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to  repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity,  or  such  Guarantee  to  become  payable  or  cash  collateral  in  respect  thereof  to  be  demanded;  provided that this clause (B) shall not apply to any Indebtedness that becomes due as a result of  customary  non-default  mandatory  prepayments  resulting  from  asset  sales,  casualty  or  condemnation  events,  the  incurrence  of  Indebtedness  or  issuances  of  Equity  Interests; (ii) the  Borrower or any Significant Subsidiary (A) fails to make any payment when due (whether by  scheduled maturity, required prepayment, acceleration, demand, or otherwise) and such failure  continues beyond the applicable grace period, if any, in respect of any Non-Recourse Indebtedness  or  Guarantee  of  Non-Recourse  Indebtedness  (other  than  Indebtedness  arising  under  the  Loan  Documents  and  Indebtedness  under  Swap  Contracts),  having  an  aggregate  principal  amount,  individually or in  the aggregate with  all other Non-Recourse  Indebtedness  as  to  which such a  failure exists, of more than $125,000,000, or (B) fails to observe or perform any other agreement  or  condition  relating  to  such  Non-Recourse  Indebtedness  or  Guarantee  of  Non-Recourse  Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto,  or any other event occurs, the effect of which default or other event is to cause, or to permit the  holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a  trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with  the giving of notice if required, such Indebtedness to be demanded or to become due or to be  repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase,  prepay, defease or  redeem  such  Indebtedness  to  be made, prior to  its  stated maturity, or such  Guarantee to become payable or cash collateral in respect thereof to be demanded; provided that  this clause (B) shall not apply to any Indebtedness that becomes due as a result of customary non- default mandatory prepayments resulting from asset sales, casualty or condemnation events, the  incurrence of Indebtedness or issuances of Equity Interests; or (iii) there occurs under any Swap  Contract an Early Termination Date (as defined in such Swap Contract) resulting from (A) any  event of default under such Swap Contract as to which the Borrower or any Significant Subsidiary  is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as so  defined) under such Swap Contract as to which the Borrower or any Significant Subsidiary is an  Affected Party (as  so  defined) and, in  either event,  the Swap Termination Value owed by the  Borrower or such Significant Subsidiary as a result thereof is greater than $60,000,000; or         (f)   Insolvency  Proceedings,  Etc.  Any  Loan  Party  or  any Significant Subsidiary  institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes                                         124 





 






   an assignment for the benefit of creditors; or applies for or consents to the appointment of any  receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all  or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator,  rehabilitator or similar officer is appointed without the application or consent of such Person and  the appointment continues undischarged or unstayed for 60 calendar days; or any proceeding under  any Debtor Relief Law relating to any such Person or to all or any material part of its property is  instituted  without  the  consent  of  such  Person  and  continues  undismissed  or  unstayed  for  60  calendar days, or an order for relief is entered in any such proceeding; or         (g)   Inability to Pay Debts; Attachment.  (i) The Borrower or any Significant Subsidiary  becomes unable or admits in writing its inability or fails generally to pay its debts as they become  due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied  against all or any material part of the property of any such Person and is not released, vacated or  fully bonded within 60 days after its issue or levy; or         (h)   Judgments.  There is entered against the Borrower or any Significant Subsidiary  (i) one or more final judgments or orders for the payment of money in an aggregate amount (as to  all such judgments or orders) exceeding $60,000,000 (to the extent not covered by independent  third-party insurance as to which the insurer does not dispute coverage), or (ii) any one or more  non-monetary final judgments that have, or could reasonably be expected to have, individually or  in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are  commenced by any creditor upon such judgment or order, or (B) there is a period of 90 consecutive  days during which such judgment is not discharged or dismissed or a stay of enforcement of such  judgment, by reason of a pending appeal or otherwise, is not in effect; or         (i)   ERISA.                 (i)   A  Termination  Event  occurs which  the  Required  Banks  reasonably        determine will have a Material Adverse Effect; or               (ii)  any assets of the Borrower shall constitute “assets” (within the meaning of        ERISA or Section 4975 of the Code, including but not limited to 29 C.F.R. § 2510.3-101        or any successor regulation thereto) of an “employee benefit plan” within the meaning of        Section 3(3) of ERISA or a “plan” within the meaning of Section 4975(e)(1) of the Code;        or         (j)   Invalidity of Loan Documents.  Any material provision of any Loan Document, at  any time after its execution and delivery and for any reason other than as expressly permitted  hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force and  effect;  or  any Consolidated Party  contests  in  any  manner  the  validity  or  enforceability  of  any  material provision of any Loan Document; or any Loan Party denies that it has any or further  liability or obligation under any Loan Document, or purports to revoke, terminate or rescind any  material provision of any Loan Document; or         (k)   Collateral Documents.  Any Collateral Document after delivery thereof shall for  any reason cease to create a valid and perfected first priority Lien (subject to Permitted Property                                         125 





 






   Encumbrances or Permitted Equity Encumbrances, as applicable) on the Collateral purported to  be covered thereby; or         (l)   Change of Control.  There occurs any Change of Control.         8.02  Remedies  Upon  Event  of  Default.   If  any  Event  of  Default  occurs  and  is  continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the  Required Lenders, take any or all of the following actions:         (a)   declare the commitment of each Lender to make Loans and any obligation of each  L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such commitments and  obligation shall be terminated;         (b)   declare the unpaid principal amount of all outstanding Loans, all interest accrued  and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan  Document  to  be  immediately  due  and  payable,  without  presentment,  demand,  protest  or  other  notice of any kind, all of which are hereby expressly waived by the Borrower;         (c)   require that the Borrower Cash Collateralize the L/C Obligations (in an amount  equal to the Minimum Collateral Amount with respect thereto); and         (d)   exercise on behalf of itself, the Lenders and the L/C Issuers all rights and remedies  available to it, the Lenders and the L/C Issuers under the Loan Documents;   provided, however, that upon 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, the obligation of  each Lender to make Loans and the obligation of each L/C Issuer to make L/C Credit Extensions  shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest  and other amounts as aforesaid shall automatically become due and payable, and the obligation of  the Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically become  effective, in each case without further act of the Administrative Agent, any L/C Issuer or any  Lender.         8.03  Application of Funds.  After the exercise of remedies provided for in Section 8.02  (or  after  the  Loans  have  automatically  become  immediately  due  and  payable  and  the  L/C  Obligations have automatically been required to be Cash Collateralized as set forth in the proviso  to Section 8.02),  any  amounts  received  on  account  of  the  Obligations (including  any  amounts  received  in  respect  of  a  foreclosure  or  other  exercise  of  remedies  in  respect  of the BankNote  Property Mortgage) shall, subject to the provisions of Sections 2.16 and 2.17, be applied by the  Administrative Agent in the following order:         First, to payment of that portion of the Obligations constituting fees, indemnities, expenses  and other amounts (including fees, charges and disbursements of counsel to the Administrative  Agent and amounts payable under Article III) payable to the Administrative Agent in its capacity  as such;         Second, to payment of that portion of the Obligations constituting fees, indemnities and  other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders and                                         126 





 






   the L/C Issuers (including fees, charges and disbursements of counsel to the respective Lenders  and the L/C Issuers and amounts payable under Article III), ratably among them in proportion to  the respective amounts described in this clause Second payable to them;         Third, to payment of that portion of the Obligations constituting accrued and unpaid Letter  of Credit Fees and interest on the Loans, L/C Borrowings and other Obligations, ratably among  the Lenders and the L/C Issuers in proportion to the respective amounts described in this clause  Third payable to them;         Fourth, to payment of that portion of the Obligations constituting unpaid principal of the  Loans and L/C Borrowings, ratably among the Lenders and the L/C Issuers in proportion to the  respective amounts described in this clause Fourth held by them;         Fifth, to the Administrative Agent for the account of the L/C Issuers, to Cash Collateralize  that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit  to the extent not otherwise Cash Collateralized by the Borrower pursuant to Sections 2.03 and  2.16; and         Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to  the Borrower or as otherwise required by Law.   Subject to Sections 2.03(c) and 2.16, amounts used to Cash Collateralize the aggregate undrawn  amount of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings  under such Letters of Credit as they occur.  If any amount remains on deposit as Cash Collateral  after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be  applied to the other Obligations, if any, in the order set forth above.                    ARTICLE IX.       ADMINISTRATIVE AGENT         9.01  Appointment  and  Authority.   Each  of  the  Lenders  and  L/C  Issuers hereby  irrevocably appoints Bank of America to act on its behalf as the Administrative Agent hereunder  and under the other Loan Documents and authorizes the Administrative Agent to take such actions  on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms  hereof or thereof, together with such actions and powers as are reasonably incidental thereto.  The  provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and  the L/C Issuers, and neither the Borrower nor any other Loan Party shall have rights as a third  party beneficiary of any of such provisions.  It is understood and agreed that the use of the term  “agent” herein or in any other Loan Documents (or any other similar term) with reference to the  Administrative  Agent  is  not  intended  to  connote  any  fiduciary  or  other  implied  (or  express)  obligations arising under agency doctrine of any applicable Law. Instead such term is used as a  matter of market custom, and is intended to create or reflect only an administrative relationship  between contracting parties.         The  Administrative  Agent  shall  also  act  as  the  “collateral  agent”  under  the  Loan  Documents,  and  each  of  the  Lenders and  the  L/C  Issuers hereby  irrevocably  appoints  and  authorizes the Administrative Agent to act as the agent of such Lender and such L/C Issuer for  purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the  Loan Parties to secure any of the Obligations, together with such powers and discretion as are                                         127 





 






   reasonably incidental thereto.  In this connection, the Administrative Agent, as “collateral agent”  and  any  co-agents,  sub-agents  and  attorneys-in-fact  appointed  by  the  Administrative  Agent  pursuant to Section 9.05 for purposes of holding or enforcing any Lien on the Collateral (or any  portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies  thereunder at  the direction of the Administrative Agent,  shall be entitled to  the benefits  of all  provisions of this Article IX and Article X (including Section 10.04(c), as though such co-agents,  sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set  forth in full herein with respect thereto.         9.02  Rights as a Lender.  The Person serving as the Administrative Agent hereunder  shall have the same rights and powers in its capacity as a Lender as any other Lender and may  exercise  the  same  as  though  it  were  not  the  Administrative  Agent  and  the  term  “Lender”  or  “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires,  include the Person serving as the Administrative Agent hereunder in its individual capacity.  Such  Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the  financial advisor or in any other advisory capacity for and generally engage in any kind of business  with  the Borrower or  any  Subsidiary or other Affiliate thereof as  if such Person were not  the  Administrative Agent hereunder and without any duty to account therefor to the Lenders.         9.03  Exculpatory Provisions.  The Administrative Agent shall not have any duties or  obligations except those expressly set forth herein and in the other Loan Documents, and its duties  hereunder shall be administrative in nature.  Without limiting the generality of the foregoing, the  Administrative Agent:               (a)   shall not be subject to any fiduciary or other implied duties, regardless of        whether a Default has occurred and is continuing;               (b)   shall  not  have  any  duty  to  take  any  discretionary  action  or  exercise  any        discretionary  powers,  except  discretionary  rights  and  powers  expressly  contemplated        hereby  or  by  the  other  Loan  Documents  that  the  Administrative  Agent  is required  to        exercise  as  directed  in  writing  by  the  Required  Lenders  (or  such  other  number  or        percentage of the Lenders as shall be expressly provided for herein or in the other Loan        Documents), provided that the Administrative Agent shall not be required to take any        action that, in its opinion or the opinion of its counsel, may expose the Administrative        Agent to liability or that is contrary to any Loan Document or applicable law, including        for the avoidance of doubt any action that may be in violation of the automatic stay under        any  Debtor Relief  Law  or that may  effect  a forfeiture, modification or termination of        property of a Defaulting Lender in violation of any Debtor Relief Law;                (c)   shall  not,  except  as  expressly  set  forth  herein  and  in  the  other  Loan        Documents, have any duty to disclose, and shall not be liable for the failure to disclose,        any information relating to the Borrower or any of its Affiliates that is communicated to        or obtained by the Person serving as the Administrative Agent or any of its Affiliates in        any capacity;          The Administrative Agent shall not be liable for any action taken or not taken by it (i) with  the consent or at the request of the Required Lenders or the Super Majority Lenders (or such other                                         128 





 






   number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall  believe in good faith shall be necessary, under the circumstances as provided in Sections 10.01  and 8.02) or (ii) in the absence of its own gross negligence or willful misconduct as determined by  a court of competent jurisdiction by final and nonappealable judgment.  The Administrative Agent  shall be deemed not to have knowledge of any Default unless and until notice describing such  Default is given in writing to the Administrative Agent by the Borrower, a Lender or an L/C Issuer.         The Administrative Agent shall not be responsible for or have any duty to ascertain or  inquire  into  (i)  any  statement,  warranty  or  representation  made  in  or  in  connection  with  this  Agreement  or  any  other  Loan  Document,  (ii) the  contents  of  any  certificate,  report  or  other  document  delivered  hereunder  or  thereunder  or  in  connection  herewith  or  therewith,  (iii) the  performance or observance of any of the covenants, agreements or other terms or conditions set  forth  herein  or  therein  or  the  occurrence  of  any  Default,  (iv)  the  validity,  enforceability,  effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement,  instrument or document, or the creation, perfection or priority of any Lien purported to be created  by  the  Collateral  Documents,  (v)  the  value  or  the  sufficiency  of  any  Collateral,  or  (v)  the  satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm  receipt of items expressly required to be delivered to the Administrative Agent.         9.04  Reliance by Administrative Agent.  The Administrative Agent shall be entitled to  rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent,  statement, instrument, document or other writing (including any electronic message, Internet or  intranet website posting or other distribution) believed by it to be genuine and to have been signed,  sent or otherwise authenticated by the proper Person.  The Administrative Agent also may rely  upon any statement made to it orally or by telephone and believed by it to have been made by the  proper Person, and shall not incur any liability for relying thereon.  In determining compliance  with  any condition  hereunder to  the making of a  Loan, or the issuance, extension,  renewal  or  increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or  an L/C Issuer, the Administrative Agent may presume that such condition is satisfactory to such  Lender  or such L/C  Issuer  unless  the  Administrative  Agent  shall  have  received  notice  to  the  contrary from such Lender or such L/C Issuer prior to the making of such Loan or the issuance of  such Letter of Credit.  The Administrative Agent may consult with legal counsel (who may be  counsel for the Borrower), independent accountants and other experts selected by it, and shall not  be liable for any action taken or not taken by it in accordance with the advice of any such counsel,  accountants or experts.         9.05  Delegation of Duties.  The Administrative Agent may perform any and all of its  duties  and exercise its  rights  and powers hereunder or under  any other  Loan  Document by or  through any one or more sub agents appointed by the Administrative Agent.  The Administrative  Agent and any such sub agent may perform any and all of its duties and exercise its rights and  powers by or through their respective Related Parties.  The exculpatory provisions of this Article  shall apply to any such sub agent and to the Related Parties of the Administrative Agent and any  such sub agent, and shall apply to their respective activities in connection with the syndication of  the  credit  facilities  provided  for  herein  as  well  as  activities  as  Administrative  Agent.   The  Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents  except to the extent that a court of competent jurisdiction determines in a final and nonappealable                                         129 





 






   judgment that the Administrative Agent acted with gross negligence or willful misconduct in the  selection of such sub-agents.         9.06  Resignation of Administrative Agent.         (a)   The Administrative Agent  may  at  any time  give notice of its  resignation to  the  Lenders, the L/C Issuers and the Borrower.  Upon receipt of any such notice of resignation, the  Required Lenders shall have the right, subject to the approval (not to be unreasonably withheld,  delayed  or  conditioned)  of  the  Borrower  (unless  an  Event  of  Default  has  occurred  and  is  continuing), to appoint a successor, which shall be a bank with an office in the United States, or  an Affiliate of any such bank with an office in the United States.  If no such successor shall have  been so appointed by the Required Lenders and shall have accepted such appointment within 30  days after the retiring Administrative Agent gives notice of its resignation (or such earlier day as  shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then the retiring  Administrative Agent may (but shall not be obligated to) on behalf of the Lenders and the L/C  Issuers,  appoint  a  successor  Administrative  Agent  meeting  the  qualifications  set  forth  above,  provided that in no event shall any such successor Administrative Agent be a Defaulting Lender.   Whether  or  not  a  successor  has  been  appointed,  such  resignation  shall  become  effective  in  accordance with such notice on the Resignation Effective Date.         (b)   If the Person serving as Administrative Agent is a Defaulting Lender pursuant to  clause (d) of  the  definition  thereof,  the  Required  Lenders  may,  to  the  extent  permitted  by  applicable  law,  by  notice in  writing  to  the  Borrower  and  such  Person  remove  such  Person  as  Administrative Agent and, with the consent of the Borrower so long as no Event of Default has  occurred and is continuing (such consent not to be unreasonably withheld, delayed or conditioned,  appoint a successor. If no such successor shall have been so appointed by the Required Lenders  and shall have accepted such appointment within thirty (30) days (or such earlier day as shall be  agreed  by  the  Required  Lenders)  (the  “Removal  Effective  Date”),  then  such  removal  shall  nonetheless become effective in accordance with such notice on the Removal Effective Date.         (c)   With effect from the Resignation Effective Date or the Removal Effective Date (as  applicable) (1) the retiring or removed Administrative Agent shall be discharged from its duties  and obligations hereunder and under the other Loan Documents (except that in the case of any  Collateral held by the Administrative Agent on behalf of the Lenders or the L/C Issuers under any  of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such  Collateral until such time as a successor Administrative Agent is appointed) and (2) except for any  indemnity payments or other amounts then owed to the retiring or removed Administrative Agent,  all  payments,  communications  and  determinations  provided  to  be  made  by,  to  or  through  the  Administrative Agent shall instead be made by or to each Lender and each L/C Issuer directly,  until  such  time,  if  any,  as  the  Required  Lenders  appoint  a  successor  Administrative  Agent  as  provided for above.  Upon the acceptance of a successor’s appointment as Administrative Agent  hereunder,  such  successor  shall  succeed  to  and  become  vested  with  all  of  the  rights,  powers,  privileges and duties of the retiring (or removed) Administrative Agent (other than as provided in  Section 3.01(g) and other than any rights to indemnity payments or other amounts owed to the  retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal  Effective Date,  as  applicable),  and  the  retiring  or  removed  Administrative  Agent  shall  be  discharged from all of its duties and obligations hereunder or under the other Loan Documents (if                                         130 





 






   not already discharged therefrom as provided above in this Section).  The fees payable by the  Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor  unless otherwise agreed between the Borrower and such successor.  After the retiring or removed  Administrative Agent’s resignation or removal hereunder and under the other Loan Documents,  the provisions of this Article and Section 10.04 shall continue in effect for the benefit of such  retiring or removed Administrative Agent, its sub agents and their respective Related Parties in  respect of any actions taken or omitted to be taken by any of them (i) while the retiring or removed  Administrative  Agent  was  acting  as  Administrative  Agent  and  (ii) after  such  resignation  or  removal for as long as any of them continues to act in any capacity hereunder or under the other  Loan Documents, including (a) acting as collateral agent or otherwise holding any Collateral on  behalf of any of the Secured Parties and (b) in respect of any actions taken in connection with  transferring the agency to any successor Administrative Agent.         (d)   Any  resignation  by,  or  removal  of, Bank  of  America  as  Administrative  Agent  pursuant to this Section shall also constitute its resignation as an L/C Issuer.  If Bank of America  resigns as an L/C Issuer, it shall retain all the rights, powers, privileges and duties of an L/C Issuer  hereunder with respect to all Letters of Credit issued by it and outstanding as of the effective date  of its resignation as an L/C Issuer and all L/C Obligations with respect thereto, including the right  to  require  the  Lenders  to  make  Base  Rate  Loans  or  fund  risk  participations  in  Unreimbursed  Amounts pursuant to Section 2.03(c).  Upon the appointment by the Borrower of a successor L/C  Issuer hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender),  (a) such successor shall succeed to and become vested with all of the rights, powers, privileges  and duties of the retiring L/C Issuer, (b) the retiring L/C Issuer shall be discharged from all of their  respective  duties  and  obligations  hereunder  or  under  the  other  Loan  Documents,  and  (c) the  successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any,  outstanding at the time of such succession or make other arrangements satisfactory to Bank of  America to effectively assume the obligations of Bank of America  with respect to such Letters of  Credit.         9.07  Non-Reliance on Administrative Agent and Other Lenders.  Each Lender and  each L/C  Issuer  acknowledges  that  it  has,  independently  and  without  reliance upon  the  Administrative  Agent  or  any  other  Lender  or  any  of  their  Related  Parties  and  based  on  such  documents and information as it has deemed appropriate, made its own credit analysis and decision  to enter into this Agreement.  Each Lender and each L/C Issuer also acknowledges that it will,  independently and without reliance upon the Administrative Agent or any other Lender or any of  their Related Parties and based on such documents and information as it shall from time to time  deem appropriate, continue to make its own decisions in taking or not taking action under or based  upon  this  Agreement,  any  other  Loan  Document  or  any  related  agreement  or  any  document  furnished hereunder or thereunder.         9.08  No Other Duties, Etc.  Anything herein to the contrary notwithstanding, none of  the  Bookrunner, any Arranger or  any  Syndication  Agent shall  have  any  powers,  duties  or  responsibilities under this Agreement or any of the other Loan Documents, except in its capacity,  as applicable, as the Administrative Agent, a Lender or an L/C Issuer hereunder.         9.09  Administrative Agent May File Proofs of Claim; Credit Bidding.  In case of the  pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative                                         131 





 






   to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan or  L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise  and  irrespective  of  whether  the  Administrative  Agent  shall  have  made  any  demand  on  the  Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise               (a)   to file and prove a claim for the whole amount of the principal and interest        owing and unpaid in respect of the Loans, L/C Obligations and all other Obligations that        are owing and unpaid and to file such other documents as may be necessary or advisable        in order to have the claims of the Lenders, the L/C Issuers and the Administrative Agent        (including  any  claim  for  the  reasonable  compensation,  expenses,  disbursements  and        advances of the Lenders, the L/C Issuers and the Administrative Agent and their respective        agents  and  counsel  and  all  other  amounts  due  the  Lenders,  the  L/C  Issuers and  the        Administrative  Agent  under Sections  2.03(i) and (j), 2.09 and 10.04)  allowed  in  such        judicial proceeding; and               (b)   to collect and receive any monies or other property payable or deliverable        on any such claims and to distribute the same;   and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in  any such judicial proceeding is hereby authorized by each Lender and each L/C Issuer to make  such payments to the Administrative Agent and, in the event that the Administrative Agent shall  consent to the making of such payments directly to the Lenders and the L/C Issuers, to pay to the  Administrative Agent any amount due for the reasonable compensation, expenses, disbursements  and advances of the Administrative Agent and its agents and counsel, and any other amounts due  the Administrative Agent under Sections 2.09 and 10.04.         Nothing  contained  herein  shall  be  deemed  to  authorize  the  Administrative  Agent  to  authorize or consent to or accept or adopt on behalf of any Lender or any L/C Issuer any plan of  reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of  any Lender or any L/C Issuer to authorize the Administrative Agent to vote in respect of the claim  of any Lender or any L/C Issuer in any such proceeding.         The Secured Parties hereby irrevocably authorize the Administrative Agent, at the direction  of the Required Lenders, to credit bid all or any portion of the Obligations (including accepting  some or all of the Collateral in satisfaction of some or all of the Secured Obligations pursuant to a  deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly or through  one  or  more  acquisition  vehicles)  all  or  any  portion  of  the  Collateral  (a) at  any  sale  thereof  conducted under the provisions  of the Bankruptcy  Code of the United States, including under  Sections 363, 1123 or 1129 of the Bankruptcy Code of the United States, or any similar Laws in  any other jurisdictions to which a Loan Party is subject, (b) at any other sale or foreclosure or  acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) the  Administrative Agent (whether by judicial action or otherwise) in accordance with any applicable  Law.  In connection with any such credit bid and purchase, the Obligations owed to the Secured  Parties shall be entitled to be, and shall be, credit bid on a ratable basis (with Obligations with  respect to contingent or unliquidated claims receiving contingent interests in the acquired assets  on a ratable basis that would vest upon the liquidation of such claims in an amount proportional to  the liquidated portion of the contingent claim amount used in allocating the contingent interests)                                         132 





 






   in the asset or assets so purchased (or in the Equity Interests or debt instruments of the acquisition  vehicle or vehicles that are used to consummate such purchase).  In connection with any such bid  (i) the Administrative Agent shall be authorized to form one or more acquisition vehicles to make  a bid, (ii) to adopt documents providing for the governance of the acquisition vehicle or vehicles  (provided that any actions by the Administrative Agent with respect to such acquisition vehicle or  vehicles,  including any  disposition  of the assets  or Equity  Interests thereof shall be  governed,  directly or indirectly, by the vote of the Required Lenders, irrespective of the termination of this  Agreement  and  without  giving  effect  to  the  limitations  on  actions  by  the  Required  Lenders  contained in clauses (a) through (h) of Section 10.01 of this Agreement, (iii) the Administrative  Agent shall be authorized to assign the relevant Obligations to any such acquisition vehicle pro  rata by the Lenders, as a result of which each of the Lenders shall be deemed to have received a  pro rata portion  of any  Equity  Interests and/or  debt  instruments  issued by such an  acquisition  vehicle on account of the assignment of the Obligations to be credit bid, all without the need for  any Secured Party or acquisition vehicle to  take any further  action, and  (iv) to  the extent that  Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any  reason  (as  a  result  of  another  bid  being  higher  or  better,  because  the  amount  of  Obligations  assigned to the acquisition vehicle exceeds the amount of debt credit bid by the acquisition vehicle  or otherwise), such Obligations shall automatically be reassigned to the Lenders pro rata and the  Equity  Interests  and/or  debt  instruments  issued  by  any  acquisition  vehicle  on  account  of  the  Obligations that had been assigned to the acquisition vehicle shall automatically be cancelled,  without the need for any Secured Party or any acquisition vehicle to take any further action.         9.10  Collateral  and  Guaranty  Matters.  Without  limiting  the  provisions  of  Section 9.09, the Lenders and the L/C Issuers irrevocably authorize the Administrative Agent, at  its option and in its discretion,               (a)   to release any Lien on any property granted to or held by the Administrative        Agent under any Loan Document (i) upon termination of the Aggregate Commitments and        payment  in  full  of  all  Obligations  (other  than  contingent  indemnification and        reimbursement obligations) and the expiration or termination of all Letters of Credit (other        than Letters of Credit as to which other arrangements satisfactory to the Administrative        Agent and the applicable L/C Issuer shall have been made), (ii) that is sold or otherwise        disposed of, or to be sold or otherwise disposed of, as part of or in connection with any sale        or other disposition permitted hereunder or under any other Loan Document, (iii) upon        consummation  of  a  Release  Transaction  relating  to  such  property  in  accordance  with        Section 2.18(c), (iv) upon the occurrence of the Investment Grade Release or (v) subject to        Section 10.01, if approved, authorized or ratified in writing by the Required Lenders; and               (b)   to release any Subsidiary Guarantor from its obligations under the Guaranty        if such Person is not required to be a Subsidiary Guarantor pursuant to the terms hereof.         Upon request by the Administrative Agent at any time, the Required Lenders will confirm  in writing the Administrative Agent’s authority to release its interest in particular types or items  of  property,  or  to  release  any Subsidiary Guarantor  from  its  obligations  under  the  Guaranty  pursuant to this Section 9.10.                                         133 





 






         The Administrative Agent shall not be responsible for or have a duty to ascertain or inquire  into any representation or warranty regarding the existence, value or collectability of the Collateral,  the existence, priority or perfection of the Administrative Agent’s Lien thereon, or any certificate  prepared  by  any  Loan  Party  in  connection  therewith,  nor  shall  the  Administrative  Agent  be  responsible  or  liable  to  the  Lenders  for  any  failure  to  monitor  or  maintain  any  portion  of  the  Collateral.         9.11  Certain ERISA Matters.           (a)   Each  Lender  (x)  represents  and  warrants,  as  of  the date  such  Person  became  a  Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto  to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative  Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan  Party, that at least one of the following is and will be true:                (i)   such Lender is not using “plan assets” (within the meaning of Section 3(42)        of  ERISA  or  otherwise)  of  one  or  more  Benefit  Plans  with respect  to  such  Lender’s        entrance into, participation in, administration of and performance of the Loans, the Letters        of Credit, the Commitments or this Agreement,               (ii)  the transaction exemption set forth in one or more PTEs, such as PTE 84-       14  (a  class exemption  for  certain  transactions  determined  by  independent  qualified        professional  asset  managers),  PTE  95-60  (a  class  exemption  for  certain  transactions        involving insurance company general accounts), PTE 90-1 (a class exemption for certain        transactions involving insurance company pooled separate accounts), PTE 91-38 (a class        exemption for certain transactions involving bank collective investment funds) or PTE 96-       23 (a class exemption for certain transactions determined by in-house asset managers), is        applicable with respect to such Lender’s entrance into, participation in, administration of        and performance of the Loans, the Letters of Credit, the Commitments and this Agreement,               (iii)  (A)  such  Lender  is  an  investment  fund  managed  by  a  “Qualified        Professional  Asset  Manager”  (within  the  meaning  of  Part  VI  of  PTE  84-14),  (B)  such        Qualified Professional  Asset Manager made the  investment  decision on  behalf of such        Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit,        the  Commitments  and  this  Agreement,  (C)  the  entrance  into,  participation  in,        administration of and performance of the Loans, the Letters of Credit, the Commitments        and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of        PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection        (a)  of  Part  I  of  PTE  84-14  are  satisfied  with  respect  to  such  Lender’s  entrance  into,        participation in, administration of and performance of the Loans, the Letters of Credit, the        Commitments and this Agreement, or                (iv)  such  other  representation,  warranty  and  covenant  as  may  be  agreed  in        writing between the Administrative Agent, in its sole discretion, and such Lender.         (b)   In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a)  is true with respect to a Lender or (2) a Lender has provided another representation, warranty and                                         134 





 






   covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender  further (x) represents and warrants, as of the date such Person became a Lender party hereto, to,  and (y) covenants, from the date such Person became a Lender party hereto to the date such Person  ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the  avoidance  of  doubt,  to  or  for  the  benefit  of  the  Borrower  or  any  other  Loan  Party,  that  the  Administrative Agent is not a fiduciary with respect to the assets of such Lender involved in such  Lender’s  entrance  into,  participation  in,  administration  of  and  performance  of the  Loans,  the  Letters  of  Credit,  the  Commitments  and  this  Agreement  (including  in  connection  with  the  reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan  Document or any documents related hereto or thereto).                             ARTICLE X. MISCELLANEOUS         10.01 Amendments, Etc.  No amendment or waiver of any provision of this Agreement  or any other Loan Document, and no consent to any departure by the Borrower or any other Loan  Party therefrom, shall be effective unless in writing signed by the Required Lenders (or such other  number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan  Documents) and the Borrower or the applicable Loan Party, as the case may be, and acknowledged  by the Administrative Agent, and each such waiver or consent shall be effective only in the specific  instance and for the specific purpose for which given; provided, however, that no such amendment,  waiver or consent shall:         (a)   waive any condition set forth in Section 4.01(a) without the written consent of each  Lender;         (b)   extend or increase the Commitment of any Lender (or reinstate any Commitment  terminated pursuant to Section 8.02) without the written consent of such Lender;         (c)   postpone any date fixed by this Agreement or any other Loan Document for any  payment of principal, interest, fees or other amounts due to the Lenders (or any of them) hereunder  or under any other Loan Document without the written consent of each Lender directly affected  thereby;         (d)   reduce the principal of, or the rate of interest specified herein on, any Loan or L/C  Borrowing, or (subject to clause (iii) of the second proviso to this Section 10.01) any fees or other  amounts payable hereunder or under any other Loan Document without the written consent of each  Lender directly affected thereby; provided, however, that only the consent of the Required Lenders  shall be necessary to amend the definition of “Default Rate” or to waive any obligation of the  Borrower to pay interest or Letter of Credit Fees at the Default Rate;         (e)   change Section 8.03 in a manner that would alter the pro rata sharing of payments  required thereby without the written consent of each Lender directly and adversely affected;          (f)   change any provision of this Section or the definitions of “Required Lenders” or  “Super Majority Lenders” or any other provision hereof specifying the number or percentage of  Lenders  required  to  amend,  waive  or  otherwise  modify  any  rights  hereunder  or  make  any  determination or grant any consent hereunder, without the written consent of each Lender;                                         135 





 






         (g)   release (i) all or substantially all of the value of the Guaranty (excluding, for the  avoidance of doubt, a release of applicable Subsidiary Guarantors made pursuant to the Investment  Grade  Release) or (ii) the  Operating  Partnership,  SIGOP or the CARET Entities from  the  Guaranty, in each case, without the written consent of each Lender; or          (h)   release all or substantially all of the Collateral in any transaction or series of related  transactions, without the written consent of each Lender;   and, provided further, that (i) no amendment, waiver or consent shall, unless in writing and signed  by an L/C Issuer in addition to the Lenders required above, affect the rights or duties of such L/C  Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued or to  be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by the  Administrative Agent in addition to the Lenders required above, (x) affect the rights or duties of  the Administrative Agent under this Agreement or any other Loan Document or (y) amend, or  waive  or  consent  to  any  departure  from,  the  definitions  of “LIBOR”, “LIBOR  Daily  Floating  Rate”, “LIBOR Screen Rate”, “LIBOR Successor Rate”, “LIBOR Successor Rate Conforming  Changes” or “Scheduled Unavailability Date” or the provisions of Section 3.03(c); and (iii) the  Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only  by the parties thereto.     Notwithstanding anything to the contrary herein,               (i)   no Defaulting  Lender shall have any right to approve or disapprove any        amendment, waiver or consent hereunder (and any amendment, waiver or consent which        by its terms requires the consent of all Lenders or each affected Lender may be effected        with  the consent  of the  applicable  Lenders other than Defaulting  Lenders), except  that        (x) the Commitment of any Defaulting Lender may not be increased or extended without        the consent of such Lender and (y) any waiver, amendment or modification requiring the        consent of all Lenders or each affected Lender that by its terms affects any Defaulting        Lender disproportionately  adversely relative to  other affected  Lenders shall require the        consent of such Defaulting Lender;               (ii)  the Administrative Agent and the Borrower may, with the consent of the        other  (but  without  the  consent  of  any  Lender  or  other  Loan  Party),  amend,  modify  or        supplement this Agreement and any other Loan Document:                     (A)   to  cure  any  ambiguity,  omission,  typographical  error,  mistake,              defect or inconsistency if such amendment, modification or supplement does not              adversely affect the rights of the Administrative Agent or any Lender; provided that              the  Administrative  Agent  shall  promptly  give  the  Lenders  notice  of  any  such              amendment, modification or supplement, or                     (B)   to add a “Subsidiary Guarantor” in accordance with the applicable              provisions of this Agreement and the other Loan Documents.         Notwithstanding any provision herein to the contrary, this Agreement may be amended  with the written consent of the Lenders participating in any Incremental Revolving Increase or  Incremental Term Loan Facility, the Administrative Agent and the Borrower (i) to add one or more                                         136 





 






   additional revolving credit or term loan facilities to this Agreement , in each case subject to the  limitations in Section 2.15, and to permit the extensions of credit and all related obligations and  liabilities arising in connection therewith from time to time outstanding to share ratably (or on a  basis subordinated to the existing facilities hereunder) in the benefits of this Agreement and the  other Loan Documents with the obligations and liabilities from time to time outstanding in respect  of the existing facilities hereunder, and (ii) in connection with the foregoing, to permit, as deemed  appropriate by the Administrative Agent and approved by the Lenders providing such additional  credit facilities to participate in any required vote or action required to be approved by the Required  Lenders or by any other number, percentage or class of Lenders hereunder.         10.02 Notices; Effectiveness; Electronic Communication.         (a)   Notices  Generally.   Except  in  the  case  of  notices  and  other  communications  expressly permitted to be given by telephone (and except as provided in subsection (b) below), all  notices and other communications provided for herein shall be in writing and shall be delivered by  hand or overnight courier service, mailed by certified or registered mail or sent by facsimile as  follows, and all notices and other communications expressly permitted hereunder to be given by  telephone shall be made to the applicable telephone number, as follows:               (i)   if to the Borrower or any other Loan Party, the Administrative Agent or any        L/C Issuer, to the address, facsimile number, electronic mail address or telephone number        specified for such Person on Schedule 10.02; and               (ii)  if to any other Lender, to the address, facsimile number, electronic mail        address or telephone number specified in its Administrative Questionnaire (including, as        appropriate,  notices  delivered  solely  to  the  Person  designated  by  a  Lender  on  its        Administrative Questionnaire then in effect for the delivery of notices that may contain        material non-public information relating to the Borrower).   Notices and other communications sent by hand or overnight courier service, or mailed by certified  or  registered  mail,  shall  be  deemed  to  have  been  given  when  received;  notices  and  other  communications sent by facsimile shall be deemed to have been given when sent (except that, if  not given during normal business hours for the recipient, shall be deemed to have been given at  the  opening  of  business  on  the  next  Business  Day  for  the  recipient).   Notices  and  other  communications  delivered  through  electronic  communications  to  the  extent  provided  in  subsection (b) below, shall be effective as provided in such subsection (b).         (b)   Electronic Communications.  Notices and other communications to the Lenders and  the L/C Issuers hereunder may be delivered or furnished by electronic communication (including  e-mail, FpML (financial products Markup Language) messaging, and Internet or intranet websites)  pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall  not apply to notices to any Lender or any L/C Issuer pursuant to Article II if such Lender or such  L/C Issuer, as applicable, has notified the Administrative Agent that it is incapable of receiving  notices  under  such  Article  by  electronic  communication.   The  Administrative  Agent, any L/C  Issuer  or  the  Borrower  may  each,  in  its  discretion,  agree  to  accept  notices  and  other  communications to it hereunder by electronic communications pursuant to procedures approved                                         137 





 






   by  it, provided that  approval  of  such  procedures  may  be  limited  to  particular  notices  or  communications.         Unless  the  Administrative  Agent  otherwise  prescribes,  (i) notices  and  other  communications sent to an e-mail address shall be deemed received upon the sender’s receipt of  an  acknowledgement  from  the  intended  recipient  (such  as  by  the  “return  receipt  requested”  function,  as  available,  return  e-mail  or  other  written  acknowledgement),  and  (ii) notices  or  communications  posted  to  an  Internet  or  intranet  website  shall  be  deemed  received  upon  the  deemed  receipt  by  the  intended  recipient  at  its  e-mail  address  as  described  in  the  foregoing  clause (i) of notification that such notice or communication is available and identifying the website  address  therefor;  provided  that,  for  both clauses (i) and (ii),  if  such  notice,  email  or  other  communication is not sent during the normal business hours of the recipient, such notice, email or  communication shall be deemed to have been sent at the opening of business on the next business  day for the recipient.         (c)   The  Platform.   THE  PLATFORM  IS  PROVIDED  “AS  IS”  AND  “AS  AVAILABLE.”  THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE  ACCURACY  OR  COMPLETENESS  OF  THE  BORROWER  MATERIALS  OR  THE  ADEQUACY  OF  THE  PLATFORM,  AND  EXPRESSLY  DISCLAIM  LIABILITY  FOR  ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS.  NO WARRANTY OF  ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF  MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT  OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS,  IS  MADE  BY  ANY  AGENT  PARTY  IN  CONNECTION  WITH  THE  BORROWER  MATERIALS OR THE PLATFORM.  In no event shall the Administrative Agent or any of its  Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any Lender,  any L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of any kind  (whether in tort, contract or otherwise) arising out of the Borrower’s, any  Loan Party’s or the  Administrative Agent’s transmission of Borrower Materials or notices through the Platform, any  other electronic platform or electronic messaging service, or through the Internet, except to the  extent  that  such  losses,  claims,  damages,  liabilities  or  expenses  are  determined  by  a  court  of  competent jurisdiction by a final and nonappealable judgment to have resulted from the bad faith,  willful misconduct or gross negligence of such Agent Party; provided, however, that in no event  shall any Agent Party have any liability to any Loan Party, any Lender, any L/C Issuer or any other  Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or  actual damages).         (d)   Change of Address, Etc.  Each of the Borrower, the Administrative Agent and each  of the L/C Issuers may change its address, facsimile or telephone number for notices and other  communications hereunder by notice to the other parties hereto.  Each other Lender may change  its address, facsimile or telephone number for notices and other communications hereunder by  notice to the Borrower, the Administrative Agent and the L/C Issuers.  In addition, each Lender  agrees to notify the Administrative Agent from time to time to ensure that the Administrative  Agent has on record (i) an effective address, contact name, telephone number, facsimile number  and  electronic  mail  address  to  which  notices  and  other  communications  may  be  sent  and  (ii) accurate wire instructions for such Lender.  Furthermore, each Public Lender agrees to cause  at least one individual at or on behalf of such Public Lender to at all times have selected the “Private                                         138 





 






   Side Information” or similar designation on the content declaration screen of the Platform in order  to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance  procedures and applicable Law, including United States Federal and state securities Laws, to make  reference to Borrower Materials that are not made available through the “Public Side Information”  portion of the Platform and that may contain material non-public information with respect to the  Borrower or its securities for purposes of United States Federal or state securities laws.         (e)   Reliance by Administrative Agent, L/C Issuers and Lenders.  The Administrative  Agent, the L/C Issuers and the Lenders shall be entitled to rely and act upon any notices (including  telephonic notices, Committed Loan Notices, and Letter of Credit Applications) purportedly given  by or on behalf of the Borrower even if (i) such notices were not made in a manner specified  herein, were incomplete or were not preceded or followed by any other form of notice specified  herein,  or  (ii) the  terms  thereof,  as  understood  by  the  recipient,  varied  from  any  confirmation  thereof.  The Loan Parties shall indemnify, jointly and severally, the Administrative Agent, each  L/C Issuer, each Lender and the Related Parties of each of them from all losses, costs, expenses  and liabilities resulting from the reliance by such Person on each notice purportedly given by or  on behalf of the Borrower, except to the extent that such losses, costs, expenses or liabilities are  determined by a court of competent jurisdiction by a final and nonappealable judgment to have  resulted from the bad faith, willful misconduct or gross negligence of such Person.  All telephonic  notices to and other telephonic communications with the Administrative Agent may be recorded  by the Administrative Agent, and each of the parties hereto hereby consents to such recording.         10.03 No Waiver; Cumulative Remedies; Enforcement.  No failure by any Lender, any  L/C Issuer or the Administrative Agent to exercise, and no delay by any such Person in exercising,  any right, remedy, power or privilege hereunder or under any other Loan Document shall operate  as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege  hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy,  power or privilege.  The rights, remedies, powers and privileges herein provided, and provided  under each other Loan Document, are cumulative and not exclusive of any rights, remedies, powers  and privileges provided by law.         Notwithstanding anything to the contrary contained herein or in any other Loan Document,  the authority to enforce rights and remedies hereunder and under the other Loan Documents against  the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at  law in connection with such enforcement shall be instituted and maintained exclusively by, the  Administrative Agent in accordance with Section 8.02 for the benefit of all the Lenders and the  L/C Issuers; provided, however, that the foregoing shall not prohibit (a) the Administrative Agent  from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its  capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) any L/C  Issuer from exercising the rights and remedies that inure to its benefit (solely in its capacity as an  L/C Issuer) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff  rights in accordance with Section 10.08 (subject to the terms of Section 2.13), or (d) any Lender  from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency  of a proceeding relative to any Loan Party under any Debtor Relief Law; and provided, further,  that if at any time there is no Person acting as Administrative Agent hereunder and under the other  Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the  Administrative  Agent  pursuant  to Section 8.02 and  (ii) in  addition  to  the  matters  set  forth  in                                         139 





 






   clauses (b), (c) and (d) of the preceding proviso and subject to Section 2.13, any Lender may, with  the  consent  of  the  Required  Lenders,  enforce  any  rights  and  remedies  available  to  it  and  as  authorized by the Required Lenders.         10.04 Expenses; Indemnity; Damage Waiver.         (a)   Costs and Expenses.  Without limiting any other Loan Document, the Borrower  shall pay (i) all reasonable and documented out-of-pocket expenses incurred by the Administrative  Agent and its Affiliates (including the reasonable and documented out-of-pocket fees, charges and  disbursements  of one counsel,  taken  as  a  whole,  and,  if  applicable,  one  local  counsel  in  each  material  jurisdiction,  for  the  Administrative  Agent),  in  connection  with  the  syndication  of  the  credit  facilities  provided  for  herein,  the  preparation,  negotiation,  execution,  delivery  and  administration  of  this  Agreement  and  the  other  Loan  Documents  or  any  amendments,  modifications  or  waivers  of  the  provisions  hereof  or  thereof  (whether  or  not  the  transactions  contemplated hereby or thereby shall be consummated), (ii) all reasonable and documented out- of-pocket expenses  incurred  by any L/C  Issuer  in  connection  with  the  issuance,  amendment,  renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all  documented out-of-pocket expenses incurred by the Administrative Agent, any Lender or any L/C  Issuer (including the fees, charges and disbursements of one counsel for the Administrative Agent,  the Lenders and the L/C Issuers, taken as a whole, and, if applicable, one local counsel in each  material  jurisdiction),  in  connection  with  the  enforcement  or  protection  of  its  rights  (A) in  connection with this Agreement and the other Loan Documents, including its rights under this  Section, or (B) in connection with the Loans made or Letters of Credit issued hereunder, including  all  such  out-of-pocket  expenses  incurred  during  any  workout,  restructuring  or  negotiations  in  respect of such Loans or Letters of Credit and including, in each case under clauses (i) through  (iii) above, as applicable, (1) appraisal and re-appraisal costs, to the extent required to be paid by  the  Borrower,  and  survey  costs;  (2)  title  insurance  charges  and  premiums;  (3)  title  search  or  examination  costs,  including  abstracts,  abstractors’  certificates  and  uniform  commercial  code  searches; (4) judgment and tax lien searches; (5) escrow fees; (6) fees and costs of environmental  investigations,  site  assessments  and  remediations;  (7)  recordation  taxes,  documentary  taxes,  transfer taxes and mortgage taxes; (8) filing and recording fees; (9) loan brokerage fees; (10) actual  and reasonable fees and costs in connection with the addition or release of any Real Property Asset  as a Borrowing Base Asset; and (11) actual and reasonable fees and costs in connection with any  Mortgage with respect to such Borrowing Base Asset.         (b)   Indemnification  by  the  Borrower.   The  Borrower  shall  indemnify  the  Administrative Agent (and any sub-agent thereof), each Lender and each L/C Issuer, and each  Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”)  against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities  and related expenses (including the reasonable and documented fees, charges and disbursements  of any counsel for any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee  by any Person (including the Borrower or any other Loan Party) other than such Indemnitee and  its Related Parties arising out of, in connection with, or as a result of (i) the execution or delivery  of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby  or  thereby,  the  performance  by  the  parties  hereto  of  their  respective  obligations  hereunder  or  thereunder, the consummation of the transactions contemplated hereby or thereby, or, in the case  of  the  Administrative  Agent  (and  any  sub-agent  thereof)  and  its  Related  Parties  only,  the                                         140 





 






   administration  of  this  Agreement  and  the  other  Loan  Documents  (including  in  respect  of  any  matters addressed in Section 3.01), (ii) any Loan or Letter of Credit or the use or proposed use of  the proceeds therefrom (including any refusal by any L/C Issuer to honor a demand for payment  under a Letter of Credit if the documents presented in connection with such demand do not strictly  comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of  Hazardous  Materials  on  or  from  any  property  owned  or  operated  by  the  Borrower  or  any  Environmental  Affiliate, any  violation  by  the  Borrower  or  an  Environmental  Affiliate  of  any  applicable Environmental Law, the breach of any environmental representation or warranty set  forth herein or any Environmental Claim related in any way to the Borrower or any Environmental  Affiliate, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to  any of the foregoing, whether based on contract, tort or any other theory, whether brought by a  third party or by the Borrower or any other Loan Party, and regardless of whether any Indemnitee  is a party thereto, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN  WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE  NEGLIGENCE OF THE INDEMNITEE;        provided that such indemnity shall not, as to any  Indemnitee,  be  available  to  the  extent  that  such  losses,  claims,  damages,  liabilities  or  related  expenses (i) are determined  by  a  court  of  competent  jurisdiction  by  final  and  nonappealable  judgment  to  have  resulted  from  the material  breach,  bad  faith, gross  negligence  or  willful  misconduct  of  such  Indemnitee,  if  the  Borrower  or  such  Loan  Party  has  obtained  a  final  and  nonappealable  judgment  in  its  favor  on  such  claim  as  determined  by  a  court  of  competent  jurisdiction or (ii) result from a dispute solely among Indemnitees and not involving any act or  omission of the Borrower or any of its Affiliates (other than, with respect to the Administrative  Agent, any of the Arrangers or any other agent or arranger under this Agreement, any dispute  involving  such  Person  in  its  capacity  or  in  fulfilling  its  role  as  such).   Without  limiting  the  provisions of Section 3.01(c), this Section 10.4(b) shall not apply with respect to Taxes other than  any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.         (c)   Reimbursement by Lenders.  To the extent that the Borrower for any reason fails to  indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it to  the Administrative Agent (or any sub-agent thereof), any L/C Issuer or any Related Party of any  of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such  sub-agent), such L/C Issuer or such Related Party, as the case may be, such Lender’s pro rata share  (determined  as  of the time that the applicable unreimbursed expense or  indemnity payment is  sought based on each Lender’s share of the Total Credit Exposure at such time) of such unpaid  amount (including any such unpaid amount in respect of a claim asserted by such Lender), such  payment  to  be  made  severally  among  them  based  on  such  Lenders’  Applicable  Percentage  (determined  as  of the time that the applicable unreimbursed expense or  indemnity payment is  sought), provided, further that, the unreimbursed expense or indemnified loss, claim,  damage,  liability  or  related  expense,  as  the  case  may  be,  was incurred  by  or  asserted  against  the  Administrative Agent (or any such sub-agent), any L/C Issuer in its capacity as such, or against  any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub- agent) or such L/C Issuer in connection with such capacity.  The obligations of the Lenders under  this subsection (c) are subject to the provisions of Section 2.12(d).         (d)   Waiver  of  Consequential  Damages,  Etc.  To  the  fullest  extent  permitted  by  applicable law, none of the Borrower, the Arrangers, the Lenders or the Administrative Agent shall  assert,  and each hereby  waives, and acknowledges  that no other Person  shall have,  any  claim                                         141 





 






   against any of the Borrower, the Arrangers, the Lenders or the Administrative Agent, on any theory  of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual  damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan  Document or any agreement or instrument contemplated hereby, the transactions contemplated  hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof.  No Indemnitee  referred  to  in subsection (b) above  shall  be  liable  for  any  damages  arising  from  the  use  by  unintended  recipients  of  any  information or  other  materials  distributed  to  such  unintended  recipients  by  such  Indemnitee  through  telecommunications,  electronic  or  other  information  transmission  systems  in  connection  with  this  Agreement  or  the  other  Loan  Documents  or  the  transactions contemplated hereby or thereby other than for direct or actual damages resulting from  the bad faith, willful misconduct or gross negligence of such Indemnitee as determined by a final  and nonappealable judgment of a court of competent jurisdiction.         (e)   Payments.  All amounts due under this Section shall be payable not later than ten  Business Days after demand therefor.         (f)   Survival.   The  agreements  in  this  Section and  the  indemnity  provisions  of  Section 10.02(e) shall survive the resignation of the Administrative Agent and any L/C Issuer, the  replacement of any Lender, the termination of the Aggregate Commitments and the repayment,  satisfaction or discharge of all the other Obligations.         10.05 Payments  Set  Aside.   To  the  extent  that  any  payment  by  or  on  behalf  of  the  Borrower is made to the Administrative Agent, any L/C Issuer or any Lender, or the Administrative  Agent, any L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds  of  such  setoff  or  any  part  thereof  is  subsequently  invalidated,  declared  to  be  fraudulent  or  preferential,  set  aside  or  required  (including  pursuant  to  any  settlement  entered  into  by  the  Administrative Agent, such L/C Issuer or such Lender in its discretion) to be repaid to a trustee,  receiver or any other party, in connection with any proceeding under any Debtor Relief Law or  otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended  to be satisfied shall be revived and continued in full force and effect as if such payment had not  been made or such setoff had not occurred, and (b) each Lender and each L/C Issuer severally  agrees to pay to the Administrative Agent upon demand its applicable share (without duplication)  of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from  the date of such demand to the date such payment is made at a rate per annum equal to the Federal  Funds Rate from time to time in effect.  The obligations of the Lenders and the L/C Issuers under  clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the  termination of this Agreement.         10.06 Successors and Assigns.         (a)   Successors  and  Assigns  Generally.   The  provisions  of  this  Agreement  shall  be  binding upon and inure to the benefit of the parties hereto and their respective successors and  assigns permitted hereby, except that neither the Borrower nor any other Loan Party may assign  or otherwise transfer any of its rights or obligations hereunder without the prior written consent of  the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of  its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of  subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of                                         142 





 






   subsection (d) of this Section, or (iii) by way of pledge or assignment of a security interest subject  to the restrictions of subsection (e) of this Section (and any other attempted assignment or transfer  by any party hereto shall be null and void).  Nothing in this Agreement, expressed or implied, shall  be construed to confer upon any Person (other than the parties hereto, their respective successors  and  assigns  permitted  hereby,  Participants  to  the  extent  provided  in subsection (d) of  this  Section and,  to  the  extent  expressly  contemplated  hereby,  the  Related  Parties  of  each  of  the  Administrative Agent, the L/C Issuers and the Lenders) any legal or equitable right, remedy or  claim under or by reason of this Agreement.         (b)   Assignments  by  Lenders.  Any  Lender  may  at  any  time  assign  to  one  or  more  assignees all or a portion of its rights and obligations under this Agreement (including all or a  portion  of  its  Commitment  and  the  Loans  (including  for  purposes  of  this subsection (b),  participations in L/C Obligations) at the time owing to it); provided that any such assignment shall  be subject to the following conditions:               (i)   Minimum Amounts.                     (A)   in the case of an assignment of the entire remaining amount of the              assigning  Lender’s  Commitment  and/or  the  Loans  at the  time  owing  to  it  or              contemporaneous assignments to related Approved Funds (determined after giving              effect  to  such  Assignments)  that  equal  at  least  the  amount  specified  in              paragraph (b)(i)(B) of this Section in the aggregate or in the case of an assignment              to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount              need be assigned; and                     (B)   in any case not described in subsection (b)(i)(A) of this Section, the              aggregate  amount  of  the  Commitment  (which  for  this  purpose  includes  Loans              outstanding thereunder) or, if the Commitment is not then in effect, the principal              outstanding  balance  of  the  Loans  of  the  assigning  Lender  subject  to  each  such              assignment, determined as of the date the Assignment and Assumption with respect              to such assignment is delivered to the Administrative Agent or, if “Trade Date” is              specified in the Assignment and Assumption, as of the Trade Date, shall not be less              than $5,000,000 unless each of the Administrative Agent and, so long as no Event              of Default has occurred and is continuing, the Borrower otherwise consents (each              such consent not to be unreasonably withheld, delayed or conditioned).               (ii)  Proportionate  Amounts.   Each  partial  assignment  shall  be  made  as  an        assignment of a proportionate part of all the assigning Lender’s rights and obligations under        this Agreement with respect to the Loans or the Commitment assigned;               (iii) Required Consents.  No consent shall be required for any assignment except        to the extent required by subsection (b)(i)(B) of this Section and, in addition:                     (A)   the consent of the Borrower (such consent not to be unreasonably              withheld, delayed or conditioned) shall be required unless (1) an Event of Default              has  occurred  and  is  continuing  at  the  time  of  such  assignment  or  (2) such              assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; provided                                         143 





 






               that the Borrower shall be deemed to have consented to any such assignment unless              it shall object thereto by written notice to the Administrative Agent within ten (10)              Business Days after having received notice thereof;                     (B)   the  consent  of  the  Administrative  Agent  (such  consent  not  to  be              unreasonably  withheld  or  delayed)  shall  be  required  if  such  assignment  is  to  a              Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with              respect to such Lender; and                     (C)   the consent of each L/C Issuer shall be required for any assignment.               (iv)  Assignment and Assumption.  The parties to each assignment shall execute        and deliver to the Administrative Agent an Assignment and Assumption, together with a        processing  and  recordation  fee  in  the  amount  of  $3,500; provided, however,  that  the        Administrative  Agent  may,  in  its  sole  discretion,  elect  to  waive  such  processing  and        recordation fee in the case of any assignment.  The assignee, if it is not a Lender, shall        deliver to the Administrative Agent an Administrative Questionnaire.               (v)   No  Assignment  to  Certain  Persons.   No  such  assignment  shall  be  made        (A) to  the  Borrower  or  any  of  the  Borrower’s  Affiliates  or  Subsidiaries,  (B) to  any        Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender        hereunder, would constitute any of the foregoing Persons described in this clause (B), or        (C) to a natural Person (or a holding company, investment vehicle or trust for, or owned        and operated for the primary benefit of a natural Person).               (vi)  Certain Additional Payments.  In connection with any assignment of rights        and obligations of any Defaulting Lender hereunder, no such assignment shall be effective        unless and until, in addition to the other conditions thereto set forth herein, the parties to        the assignment shall make such additional payments to the Administrative Agent in an        aggregate  amount  sufficient,  upon  distribution  thereof  as  appropriate  (which  may  be        outright payment, purchases by the assignee of participations or subparticipations, or other        compensating  actions,  including  funding,  with  the  consent  of  the  Borrower  and  the        Administrative Agent, the applicable pro rata share of Loans previously requested but not        funded by the Defaulting Lender, to each of which the applicable assignee and assignor        hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed        by such Defaulting Lender to the Administrative Agent, any L/C Issuer or any Lender        hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full        pro rata share of all Loans and participations in Letters of Credit in accordance with its        Applicable Percentage.  Notwithstanding the foregoing, in the event that any assignment        of rights and obligations of any Defaulting Lender hereunder shall become effective under        applicable Law without compliance with the provisions of this paragraph, then the assignee        of  such  interest  shall  be  deemed  to  be  a  Defaulting  Lender  for  all  purposes  of  this        Agreement until such compliance occurs.   Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection  (c) of this Section, from and after the effective date specified in each Assignment and Assumption,  the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned                                         144 





 






   by  such  Assignment  and  Assumption,  have  the  rights  and  obligations  of  a  Lender  under  this  Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by  such Assignment and Assumption, be released from its obligations under this Agreement (and, in  the  case  of  an  Assignment  and  Assumption  covering  all  of  the  assigning  Lender’s  rights  and  obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue  to  be entitled to  the benefits  of Sections  3.01, 3.04, 3.05, and 10.04 with respect  to  facts  and  circumstances occurring prior to the effective date of such assignment; provided, that except to the  extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender  will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s  having been a Defaulting Lender.  Upon request, the Borrower (at its expense) shall execute and  deliver a  Note  to  the  assignee  Lender.   Any  assignment  or  transfer  by  a  Lender  of  rights  or  obligations under this Agreement that does not comply with this subsection shall be treated for  purposes  of  this  Agreement  as  a  sale  by  such  Lender  of  a  participation  in  such  rights  and  obligations in accordance with subsection (d) of this Section.         (c)   Register.   The  Administrative  Agent,  acting  solely  for  this  purpose  as  a non- fiduciary agent of the Borrower (and such agency being solely for tax purposes), shall maintain at  the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it (or  the  equivalent  thereof  in  electronic  form)  and  a  register  for  the  recordation  of  the  names  and  addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of  the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to  time (the “Register”).  The entries in the Register shall be conclusive absent manifest error, and  the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is  recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this  Agreement.  Upon the written request of the Borrower, the Administrative Agent shall provide  copies of the Register to the Borrower, and the Register shall be available for inspection by the  Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior  notice.         (d)   Participations.  Any Lender may at any time, without the consent of, or notice to,  the Borrower, the Administrative Agent or any L/C Issuer, sell participations to any Person (other  than a natural Person, or a holding company, investment vehicle or trust for, or owned and operated  for the primary benefit of a natural Person, a Defaulting Lender or the Borrower or any of the  Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s  rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or  the Loans (including such Lender’s participations in L/C Obligations) owing to it); provided that  (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall  remain solely responsible to the other parties hereto for the performance of such obligations and  (iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuers shall continue to  deal solely and directly with such Lender in connection with such Lender’s rights and obligations  under  this  Agreement.   For  the  avoidance  of  doubt,  each  Lender  shall  be  responsible  for  the  indemnity under Section 10.04(c) without regard to the existence of any participation.         Any agreement or instrument pursuant to which a Lender sells such a participation shall  provide that such Lender shall retain the sole right to enforce this Agreement and to approve any  amendment,  modification  or  waiver  of  any   provision  of  this  Agreement;  provided  that  such  agreement  or  instrument  may  provide  that  such  Lender  will  not,  without  the  consent  of  the                                         145 





 






   Participant, agree to any amendment, waiver or other modification described in the first proviso to  Section 10.01 that affects such Participant.  The Borrower agrees that each Participant shall be  entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and  had  acquired  its  interest  by  assignment  pursuant  to subsection  (b) of  this  Section (it  being  understood that the documentation required under Section 3.01(e) shall be delivered to the Lender  who sells the participation) to the same extent as if it were a Lender and had acquired its interest  by assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees  to be subject to the provisions of Sections 3.06 and 10.13 as if it were an assignee under paragraph  (b) of this Section and (B) shall not be entitled to receive any greater payment under Sections 3.01  or 3.04, with respect to any participation, than the Lender from whom it acquired the applicable  participation would have been entitled to receive, except to the extent such entitlement to receive  a greater payment results from a Change in  Law that occurs after the Participant acquired the  applicable participation.  Each Lender that sells a participation agrees, at the Borrower's request  and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions  of Section 3.06 with respect to any Participant.  To the extent permitted by law, each Participant  also shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided that  such Participant agrees to be subject to Section 2.13 as though it were a Lender.  Each Lender that  sells a participation shall, acting solely for this purpose as  a non-fiduciary agent of the Borrower,  maintain a register on which it enters the name and address of each Participant and the principal  amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under  the  Loan  Documents  (the  “Participant  Register”); provided that  no  Lender  shall  have  any  obligation to disclose all or any portion of the Participant Register (including the identity of any  Participant or any information relating to a Participant's interest in any commitments, loans, letters  of credit or its other obligations under any Loan Document) to any Person except to the extent that  such  disclosure  is  necessary  to  establish  that  such  commitment,  loan,  letter  of  credit  or  other  obligation  is  in  registered  form  under  Section 5f.103-1(c)  of  the  United  States  Treasury  Regulations.  The entries in the Participant Register shall be conclusive absent manifest error, and  such Lender shall treat each Person whose name is recorded in the Participant Register as the  owner of such participation for all purposes of this Agreement notwithstanding any notice to the  contrary.  For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative  Agent) shall have no responsibility for maintaining a Participant Register.         (e)   Certain Pledges.  Any Lender may at any time pledge or assign a security interest  in all or any portion of its rights under this Agreement (including under its Note, if any) to secure  obligations of such Lender, including any pledge or assignment to secure obligations to a Federal  Reserve Bank or any other central bank; provided that no such pledge or assignment shall release  such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for  such Lender as a party hereto.         (f)   Resignation  as  L/C  Issuer  after  Assignment.   Notwithstanding  anything  to  the  contrary  contained  herein,  if  at  any  time a  Lender  that  is  an  L/C  Issuer assigns  all  of  its  Commitment and Loans pursuant to subsection (b) above, such Lender may, upon 30 days’ notice  to the Borrower and the Lenders, resign as an L/C Issuer.  In the event of any such resignation as  an L/C Issuer, the Borrower shall be entitled to appoint from among the Lenders a successor L/C  Issuer hereunder; provided, however, that no failure by the Borrower to appoint any such successor  shall affect the resignation of such Lender as an L/C Issuer.  If any Lender resigns as an L/C Issuer,  it shall retain all the rights, powers, privileges and duties of an L/C Issuer hereunder with respect                                         146 





 






   to all Letters of Credit issued by it and outstanding as of the effective date of its resignation as an  L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders  to  make  Base  Rate  Committed  Loans  or  fund  risk  participations  in  Unreimbursed  Amounts  pursuant to Section 2.03(c)).  Upon the appointment of a successor L/C Issuer, (a) such successor  shall succeed to and become vested with all of the rights, powers, privileges and duties of the  resigning L/C Issuer and (b) the successor L/C Issuer shall issue letters of credit in substitution for  the Letters of Credit, if any, issued by the resigning L/C Issuer and outstanding at the time of such  succession  or  make  other  arrangements  satisfactory  to the  resigning  L/C  Issuer to  effectively  assume the obligations of the resigning L/C Issuer with respect to such Letters of Credit.         10.07 Treatment of Certain Information; Confidentiality.  Each of the Administrative  Agent, the Lenders and the L/C Issuer agrees to maintain the confidentiality of the Information (as  defined below), except that Information may be disclosed (a) to its Affiliates, its auditors and its  Related Parties (it being understood that the Persons to whom such disclosure is made will be  informed of the confidential nature of such Information and instructed to keep such Information  confidential), (b) to the extent required or requested by any regulatory authority purporting to have  jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such  as the National Association of Insurance Commissioners), (c) to the extent required by applicable  laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in  connection with the exercise of any remedies hereunder or under any other Loan Document or any  action or proceeding relating to this Agreement or any other Loan Document or the enforcement  of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially  the  same  as  those  of  this  Section,  to  (i) any  assignee  of  or  Participant  in,  or  any  prospective  assignee of or Participant in, any of its rights and obligations under this Agreement or any Eligible  Assignee invited to be a Lender pursuant to Section 2.15(c) or Section 10.01 or (ii) any actual or  prospective party (or its Related Parties) to any swap, derivative or other transaction under which  payments  are to  be made by  reference to  the  Borrower and its  obligations,  this  Agreement or  payments hereunder, (g) on a confidential basis to (i)  any rating agency in connection with rating  the  Borrower  or  its  Subsidiaries  or  the  credit  facilities  provided  hereunder  or  (ii) the  CUSIP  Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP  numbers or other market identifiers with respect to the credit facilities provided hereunder, (h) with  the consent of the Borrower or (i) to the extent such Information (x) becomes publicly available  other than as a result of a breach of this Section or (y) becomes available to the Administrative  Agent, any Lender, any L/C Issuer or any of their respective Affiliates on a nonconfidential basis  from a source other than the Borrower.  In addition, the Administrative Agent and the Lenders  may disclose the existence of this Agreement and information about this Agreement to market data  collectors, similar service providers to the lending industry and service providers to the Agents  and  the  Lenders  in  connection  with  the  administration  of  this  Agreement,  the  other  Loan  Documents, and the Commitments.   For purposes of this Section, “Information” means all information received from the Borrower or  any Subsidiary relating to the Borrower or any Subsidiary or any of their respective businesses,  other than any such information that is available to the Administrative Agent, any Lender or any  L/C  Issuer  on  a  nonconfidential  basis  prior  to  disclosure  by  the  Borrower  or  any  Subsidiary,  provided that, in the case of information received from the Borrower or any Subsidiary after the  date hereof, such information is clearly identified at the time of delivery as confidential.  Any  Person required to maintain the confidentiality of Information as provided in this Section shall be                                         147 





 






   considered to have complied with its obligation to do so if such Person has exercised the same  degree of care to maintain the confidentiality of such Information as such Person would accord to  its own confidential information.         Each  of  the  Administrative  Agent,  the  Lenders  and  the  L/C  Issuers acknowledges  that  (a) the Information may include material non-public information concerning the Borrower or a  Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of  material  non-public information  and (c) it will handle such material  non-public information  in  accordance with applicable Law, including United States Federal and state securities Laws.         10.08 Right of Setoff.  If an Event of Default shall have occurred and be continuing, each  Lender, each L/C Issuer and each of their respective Affiliates is hereby authorized at any time  and from time to time, after obtaining the prior written consent of the Administrative Agent, to the  fullest extent permitted by applicable law, to set off and apply any and all deposits (general or  special, time or demand, provisional or final, in whatever currency) at any time held and other  obligations (in whatever currency) at any time owing by such Lender, such L/C Issuer or any such  Affiliate to or for the credit or the account of the Borrower or any other Loan Party (in each case,  other than the accounts pledged to secure the CMBS Financing pursuant to the documents related  thereto and any other account held for the benefit of another Person) against any and all of the  obligations of the Borrower or such Loan Party now or hereafter existing under this Agreement or  any  other  Loan  Document  to  such  Lender  or such L/C  Issuer  or  their  respective  Affiliates,  irrespective of whether or not such Lender, L/C Issuer or Affiliate shall have made any demand  under this Agreement or any other Loan Document and although such obligations of the Borrower  or such Loan Party may be contingent or unmatured or are owed to a branch, office or Affiliate of  such Lender or such L/C Issuer different from the branch, office or Affiliate holding such deposit  or obligated on such indebtedness; provided, that in the event that any Defaulting Lender shall  exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the  Administrative Agent for further application in accordance with the provisions of Section 2.17  and, pending such payment, shall be segregated by such Defaulting Lender from its other funds  and deemed held  in  trust  for the benefit  of the Administrative Agent,  the  L/C  Issuers and the  Lenders,  and  (y) the  Defaulting  Lender  shall  provide promptly  to  the  Administrative  Agent  a  statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to  which it exercised such  right  of setoff.  The rights  of each  Lender, each L/C  Issuer  and their  respective Affiliates under this Section are in addition to other rights and remedies (including other  rights of setoff) that such Lender, such L/C Issuer or their respective Affiliates may have.  Each  Lender and each L/C Issuer agrees to notify the Borrower and the Administrative Agent promptly  after any such setoff and application, provided that the failure to give such notice shall not affect  the validity of such setoff and application.         10.09 Interest Rate Limitation.  Notwithstanding anything to the contrary contained in  any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not  exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum  Rate”).  If the Administrative Agent or any Lender shall receive interest in an amount that exceeds  the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds  such unpaid principal, refunded to the Borrower.  In determining whether the interest contracted  for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate,  such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is                                         148 





 






   not  principal  as  an  expense,  fee,  or  premium  rather  than  interest,  (b) exclude  voluntary  prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or  unequal parts the total amount of interest throughout the contemplated term of the Obligations  hereunder.         10.10 Counterparts; Integration; Effectiveness.  This Agreement may be executed in  counterparts  (and  by  different  parties  hereto  in  different  counterparts),  each  of  which  shall  constitute an original, but all of which when taken together shall constitute a single contract.  This  Agreement, the other Loan Documents, and any separate letter agreements with respect to fees  payable to the Administrative Agent or the L/C Issuers, constitute the entire contract among the  parties relating to the subject matter hereof and supersede any and all previous agreements and  understandings,  oral  or  written,  relating  to  the  subject  matter  hereof.   Except  as  provided  in  Section 4.01,  this  Agreement  shall  become  effective  when  it  shall  have  been  executed  by  the  Administrative Agent and when the Administrative Agent shall have received counterparts hereof  that, when taken together, bear the signatures of each of the other parties hereto.  Delivery of an  executed  counterpart  of  a  signature  page  of  this  Agreement  by  facsimile  or  other  electronic  imaging  means  (e.g.  “pdf”  or  “tif”)  shall  be  effective  as  delivery  of  a  manually  executed  counterpart of this Agreement.         10.11 Survival of Representations and Warranties.  All representations and warranties  made hereunder and in any other Loan Document or other document delivered pursuant hereto or  thereto or in connection herewith or therewith shall survive the execution and delivery hereof and  thereof.   Such  representations  and  warranties  have  been  or  will  be  relied  upon  by  the  Administrative Agent and each Lender, regardless of any investigation made by the Administrative  Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any  Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and  shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall  remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.         10.12 Severability.  If any provision of this Agreement or the other Loan Documents is  held  to  be  illegal,  invalid  or  unenforceable,  (a) the legality,  validity  and  enforceability  of  the  remaining provisions of this Agreement and the other Loan Documents shall not be affected or  impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal,  invalid or unenforceable provisions with valid provisions the economic effect of which comes as  close as possible to that of the illegal, invalid or unenforceable provisions.  The invalidity of a  provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in  any other jurisdiction.  Without limiting the foregoing provisions of this Section 10.12, if and to  the  extent  that  the  enforceability  of  any  provisions  in  this  Agreement  relating  to  Defaulting  Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Administrative  Agent or any L/C Issuer, as applicable, then such provisions shall be deemed to be in effect only  to the extent not so limited.         10.13 Replacement of Lenders.  If the Borrower is entitled to replace a Lender pursuant  to the provisions of Section 3.06, or if any Lender is a Defaulting Lender or a Non-Consenting  Lender or if any other circumstances exist hereunder that gives the Borrower the rights to replace  a Lender as a party hereto, then the Borrower may, at its sole expense and effort, upon notice to  such Lender and the Administrative Agent, require such Lender to assign and delegate, without                                         149 





 






   recourse (in accordance with and subject to the restrictions contained in, and consents required by,  Section 10.06), all of its interests, rights (other than its existing rights to payments pursuant to  Sections 3.01 and 3.04) and obligations under this Agreement and the related Loan Documents to  an Eligible Assignee that shall assume such obligations (which assignee may be another Lender,  if a Lender accepts such assignment); provided, that:         (a)   the Administrative Agent shall have received the assignment fee (if any) specified  in Section 10.06(b);         (b)   such Lender shall have received payment of an amount equal to the outstanding  principal  of  its  Loans  and  L/C  Advances,  accrued  interest  thereon,  accrued  fees  and  all  other  amounts payable to it hereunder and under the other Loan Documents (including any amounts  under Section 3.05) from the assignee (to the extent of such outstanding principal and accrued  interest and fees) or the Borrower (in the case of all other amounts);         (c)   in the case of any such assignment resulting from a claim for compensation under  Section 3.04 or payments required to be made pursuant to Section 3.01, such assignment will result  in a reduction in such compensation or payments thereafter;         (d)   such assignment does not conflict with applicable Laws; and         (e)   in the case of an assignment resulting from a Lender becoming a Non-Consenting  Lender,  the  applicable  assignee shall  have  consented  to  the  applicable  amendment,  waiver  or  consent, which vote shall count  towards the approval  of the applicable amendment,  waiver or  consent.         A Lender shall not be required to make any such assignment or delegation if, prior thereto,  as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to  require such assignment and delegation cease to apply.         10.14 Governing Law; Jurisdiction; Etc.         (a)   GOVERNING  LAW.   THIS  AGREEMENT  AND  THE  OTHER  LOAN  DOCUMENTS AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION  (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT  OF  OR  RELATING  TO  THIS  AGREEMENT  OR  ANY  OTHER  LOAN  DOCUMENT  (EXCEPT,  AS  TO  ANY  OTHER  LOAN  DOCUMENT,  AS  EXPRESSLY  SET  FORTH  THEREIN)  AND  THE  TRANSACTIONS  CONTEMPLATED  HEREBY  AND  THEREBY  SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF  THE STATE OF NEW YORK     WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF  LAWS  THEREOF  (OTHER  THAN  SECTIONS  5-1401  AND  5-1402  OF  THE  GENERAL  OBLIGATIONS LAW OF THE STATE OF NEW YORK).         (b)   SUBMISSION TO JURISDICTION.  THE BORROWER AND EACH OTHER  LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT  COMMENCE  ANY  ACTION,  LITIGATION  OR  PROCEEDING  OF  ANY  KIND  OR  DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT  OR OTHERWISE, AGAINST THE ADMINISTRATIVE AGENT, ANY LENDER,          ANY L/C                                         150 





 






   ISSUER, OR ANY RELATED PARTY OF THE FOREGOING IN ANY WAY RELATING TO  THIS  AGREEMENT  OR  ANY  OTHER  LOAN  DOCUMENT  OR  THE  TRANSACTIONS  RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF  THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED  STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY  APPELLATE  COURT  FROM  ANY  THEREOF,  AND  EACH  OF  THE  PARTIES  HERETO  IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH  COURTS   AND  AGREES  THAT  ALL  CLAIMS  IN  RESPECT  OF  ANY  SUCH  ACTION,  LITIGATION  OR  PROCEEDING MAY  BE HEARD AND DETERMINED  IN SUCH NEW  YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE  LAW, IN SUCH FEDERAL COURT.  EACH OF THE PARTIES HERETO AGREES THAT A  FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE  CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE  JUDGMENT OR  IN ANY OTHER MANNER PROVIDED  BY  LAW.  NOTHING          IN THIS  AGREEMENT  OR  IN  ANY  OTHER  LOAN  DOCUMENT  SHALL  AFFECT  ANY  RIGHT  THAT  THE  ADMINISTRATIVE  AGENT,  ANY  LENDER  OR     ANY   L/C  ISSUER  MAY  OTHERWISE HAVE TO BRING ANY ACTION OR  PROCEEDING  RELATING TO THIS  AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ANY  OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.         (c)   WAIVER OF VENUE.  THE BORROWER AND EACH OTHER LOAN PARTY  IRREVOCABLY  AND  UNCONDITIONALLY  WAIVES,  TO  THE  FULLEST  EXTENT  PERMITTED  BY  APPLICABLE  LAW,  ANY  OBJECTION  THAT  IT  MAY  NOW  OR  HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING  ARISING  OUT  OF  OR  RELATING  TO  THIS  AGREEMENT  OR  ANY  OTHER  LOAN  DOCUMENT IN ANY COURT REFERRED TO IN        PARAGRAPH (B)   OF THIS SECTION.   EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST  EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT  FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH  COURT.         (d)   SERVICE  OF  PROCESS.   EACH  PARTY  HERETO  IRREVOCABLY  CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN  SECTION 10.02.  NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY  PARTY  HERETO  TO  SERVE  PROCESS  IN  ANY  OTHER  MANNER  PERMITTED  BY  APPLICABLE LAW.         10.15 Waiver  of  Jury  Trial.   EACH  PARTY  HERETO  HEREBY  IRREVOCABLY  WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT  IT MAY HAVE TO A TRIAL  BY JURY  IN ANY  LEGAL PROCEEDING DIRECTLY OR  INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER  LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY  (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY  HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY  OTHER  PERSON  HAS  REPRESENTED,  EXPRESSLY  OR  OTHERWISE,  THAT  SUCH  OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE  THE  FOREGOING  WAIVER  AND  (B) ACKNOWLEDGES  THAT  IT  AND  THE  OTHER                                         151 





 






   PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND  THE  OTHER  LOAN  DOCUMENTS  BY,  AMONG  OTHER  THINGS,  THE  MUTUAL  WAIVERS AND CERTIFICATIONS IN THIS SECTION.         10.16 No Advisory or Fiduciary Responsibility.  In connection with all aspects of each  transaction contemplated hereby (including in connection with any amendment, amendment and  restatement, waiver or other modification hereof or of any other Loan Document), the Borrower  and  each other  Loan  Party  acknowledges  and  agrees,  and  acknowledges  its  Affiliates’  understanding, that: (i) (A) the arranging and other services regarding this Agreement provided by  the  Administrative  Agent,  the  Arrangers,  the Bookrunner and  the  Lenders  are  arm’s-length  commercial  transactions  between  the  Borrower,  each  other  Loan  Party  and their  respective  Affiliates, on the one hand, and the Administrative Agent, the Arrangers, the Bookrunner and the  Lenders, on the other hand, (B) each of the Borrower and the other Loan Parties has consulted its  own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and  (C) the Borrower and each other Loan Party is capable of evaluating, and understands and accepts,  the terms, risks and conditions of the transactions contemplated hereby and by the other Loan  Documents; (ii) (A) the Administrative Agent, the Arrangers, the Bookrunner and each Lender is  and has been acting solely as a principal and, except as expressly agreed in writing by the relevant  parties,  has  not  been,  is  not,  and  will  not  be  acting  as  an  advisor,  agent  or  fiduciary  for  the  Borrower,  any other  Loan Party or  any of their respective Affiliates,  or any other Person and  (B) neither  the  Administrative  Agent, any  Arranger, the  Bookrunner nor  any  Lender  has  any  obligation to the Borrower, any other Loan Party or any of their respective Affiliates with respect  to the transactions contemplated hereby except those obligations expressly set forth herein and in  the other Loan Documents; and (iii) the Administrative Agent, the Arrangers, the Bookrunner and  the Lenders and their respective Affiliates may be engaged in a broad range of transactions that  involve interests that differ from those of the Borrower, the other Loan Parties and their respective  Affiliates, and neither the Administrative Agent, any Arranger, the Bookrunner nor any Lender  has any obligation to disclose any of such interests to the Borrower, any other Loan Party or any  of  their  respective Affiliates.  Each  Loan  Party  agrees  it  will  not  claim  that  any  of  the  Administrative Agent, any Arranger, the Bookrunner or any Lender has rendered advisory services  of any nature or respect or owes a fiduciary or similar duty to such Loan Party, in connection with  any transactions contemplated hereby.         10.17 Electronic  Execution  of  Assignments  and  Certain  Other  Documents.   The  words “execute,” “execution,” “signed,” “signature,” and words of like import in or related to any  document  to  be  signed  in  connection  with  this  Agreement  and  the  transactions  contemplated  hereby (including without limitation Assignment and Assumptions, amendments, amendments and  restatements or  other  modifications,  Committed  Loan  Notices,  waivers  and  consents)  shall  be  deemed to include electronic signatures, the electronic matching of assignment terms and contract  formations  on  electronic  platforms  approved  by  the  Administrative  Agent,  or  the  keeping  of  records in electronic form, each of which shall be of the same legal effect, validity or enforceability  as a manually executed signature or the use of a paper-based recordkeeping system, as the case  may be, to the extent and as provided for in any applicable law, including the Federal Electronic  Signatures in Global and National Commerce Act, the New York State Electronic Signatures and  Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act;  provided that notwithstanding anything contained herein to the contrary the Administrative Agent                                         152 





 






   is under no obligation to agree to accept electronic signatures in any form or in any format unless  expressly agreed to by the Administrative Agent pursuant to procedures approved by it.         10.18 USA PATRIOT Act.  (a)  Each Lender that is subject to the PATRIOT Act and  the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower  that pursuant to the requirements of the PATRIOT Act, it is required to obtain, verify and record  information that identifies the Borrower, which information includes the name and address of the  Borrower  and  other  information  that  will  allow  such  Lender  or  the  Administrative  Agent,  as  applicable, to identify the Borrower in accordance with the PATRIOT Act.           (b)   The Borrower shall, promptly following a request by the Administrative Agent or  any Lender, provide all documentation and other information that the Administrative Agent or  such Lender requests in order to comply with its ongoing obligations under applicable “know your  customer” rules and regulations, Anti-Money-Laundering Laws, including, without limitation, the  PATRIOT Act, and the Beneficial Ownership Regulation.         10.19 ENTIRE AGREEMENT.  THIS AGREEMENT AND THE OTHER LOAN  DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND  MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS,  OR  SUBSEQUENT  ORAL  AGREEMENTS  OF  THE  PARTIES.   THERE  ARE  NO  UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.         10.20 Acknowledgement  and  Consent  to  Bail-In  of  EEA  Financial  Institutions.   Solely to the extent any Lender or any L/C Issuer that is an EEA Financial Institution is a party to  this Agreement and notwithstanding anything to the contrary in any Loan Document or in any  other  agreement,  arrangement  or  understanding  among  any  such  parties,  each  party  hereto  acknowledges that any liability of any Lender or any L/C Issuer that is an EEA Financial Institution  arising under any Loan Document, to the extent such liability is unsecured, may be subject to the  write-down and conversion powers of an EEA Resolution Authority and agrees and consents to,  and acknowledges and agrees to be bound by:         (a)   the application of any Write-Down and Conversion Powers by an EEA Resolution  Authority to any such liabilities arising hereunder which may be payable to it by any Lender or  any L/C Issuer that is an EEA Financial Institution; and         (b)   the effects of any Bail-In Action on any such liability, including, if applicable:               (i)   a reduction in full or in part or cancellation of any such liability;               (ii)  a  conversion  of  all,  or  a  portion  of,  such  liability  into  shares  or  other        instruments of ownership in such EEA Financial Institution, its parent undertaking, or a        bridge institution that may be issued to it or otherwise conferred on it, and that such shares        or other instruments of ownership will be accepted by it in lieu of any rights with respect        to any such liability under this Agreement or any other Loan Document; or               (iii) the variation of the terms of such liability in connection with the exercise of        the write-down and conversion powers of any EEA Resolution Authority.                                         153 





 






         10.21 No Novation.           (a)   This Agreement amends, restates and supersedes the Existing Credit Agreement in  its entirety and is not intended to be or operate as a novation or an accord and satisfaction of the  Existing  Credit  Agreement  or  the  obligations  evidenced  thereby  or  provided  for  thereunder.  Without  limiting  the  generality  of  the  foregoing  (i)  all  “Loans”  under  (and  as  defined  in)  the  Existing Credit Agreement (including, for the avoidance of doubt, the “Special Advance” under  (and  as  defined  in)  the  Existing  Credit  Agreement) shall  on  the  Closing  Date  become  Loans  hereunder and (ii) all other “Obligations” (under and as defined in the Existing Credit Agreement)  that remain outstanding on the Closing Date shall be Obligations under this Agreement.         (b)   On  the  Closing  Date,  the  Existing  Notes,  if  any,  held  by  each  Lender  shall  be  deemed to be cancelled and, if such Lender has requested a Note hereunder, amended and restated  by the Note delivered hereunder on or about the Closing Date (regardless of whether any Lender  shall have delivered to the Borrower for cancellation any Existing Note held by it).  Each Lender,  whether or not requesting a Note hereunder, shall use its commercially reasonable efforts to deliver  the Existing Note held by it to the Borrower for cancellation and/or amendment and restatement.   All amounts owing under, and evidenced by, the Existing Note of any Lender as of the Closing  Date shall continue to be outstanding hereunder, and shall from and after the Closing Date be  evidenced by the Notes (if any) received by such Lender pursuant to this Agreement, and shall in  any event be evidenced by, and governed by the terms of, this Agreement.  Each Lender hereby  agrees to indemnify and hold harmless the Borrower from and against any and all liabilities, losses,  damages, actions or claims that may be imposed on, incurred by or asserted against the Borrower  arising out of such Lender’s failure to deliver the Existing Note held by it to the Borrower for  cancellation, subject to the condition that the Borrower shall not make any payment to any Person  claiming to be the holder of any such Existing Note unless such Lender is first notified of such  claim and is given the opportunity, at such Lender’s sole cost and expense, to assert any defenses  to such payment.         (c)   Each Grantor party to the Pledge Agreement hereby agrees and affirms that (i) its  grant of a security interest and Lien in the Collateral under the Pledge Agreement, and all of its  obligations under the Pledge Agreement, shall continue to exist under and be evidenced by the  Pledge Agreement  and  (ii)  the  Pledge  Agreement  is  ratified  and  confirmed  as  remaining  unmodified and in full force and effect.         10.22 Acknowledgement  Regarding  Any  Supported  QFCs.  To  the  extent  that  the  Loan Documents provide support, through a guarantee or otherwise, for any Swap Contract or any  other agreement or instrument that is a QFC (such support, “QFC Credit Support”, and each such  QFC,  a  “Supported  QFC”),  the  parties  acknowledge  and  agree  as  follows  with  respect  to  the  resolution  power  of  the  Federal  Deposit  Insurance  Corporation  under the  Federal  Deposit  Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act  (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in  respect of such Supported QFC and QFC Credit Support (with the provisions below applicable  notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be  governed by the laws of the State of New York and/or of the United States or any other state of  the United States):                                         154 





 






         (a)   In the event a Covered Entity that is party to a Supported QFC (each, a “Covered  Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of  such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation  in or under such Supported QFC and such QFC Credit Support, and any rights in property securing  such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to  the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the  Supported QFC and such QFC Credit Support (and any such interest,  obligation and rights  in  property) were governed by the laws of the United States or a state of the United States. In the  event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding  under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might  otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against  such Covered Party are permitted to be exercised to no greater extent than such Default Rights  could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan  Documents were governed by the laws of the United States or a state of the United States. Without  limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with  respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect  to a Supported QFC or any QFC Credit Support.          (b)   As used in this Section 10.22, the following terms have the following meanings:              “BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under,        and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.             “Covered Entity” means any of the following:  (i) a “covered entity” as that term is        defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank”        as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii)        a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R.        § 382.2(b).             “Default Right” has the meaning assigned to that term in, and shall be interpreted in        accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.             “QFC” has the meaning assigned to the term “qualified financial contract” in, and        shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).                           ARTICLE XI.       GUARANTY         11.01 Guaranty.  Each  Guarantor  hereby  absolutely  and  unconditionally  guarantees,  jointly and severally, as a guaranty of payment and performance and not merely as a guaranty of  collection, prompt payment when due, whether at stated maturity, by required prepayment, upon  acceleration, demand or otherwise, and at all times thereafter, of any and all of the Obligations,  whether  for  principal,  interest,  premiums,  fees,  indemnities,  damages,  costs,  expenses  or  otherwise, of the Borrower to the Secured Parties, and whether arising hereunder or under any  other Loan Document (including all renewals, extensions, amendments, refinancings and other  modifications thereof and all costs, attorneys’ fees and expenses incurred by the Secured Parties  in connection with the collection or enforcement thereof).  The Administrative Agent’s books and  records showing the amount of the Obligations shall be admissible in evidence in any action or                                         155 





 






   proceeding,  and  shall  be  binding  upon  each  Guarantor,  and  conclusive  for  the  purpose  of  establishing the amount of the Obligations absent demonstrable error.  This Guaranty shall not be  affected  by  the  genuineness,  validity,  regularity  or  enforceability  of  the  Obligations  or  any  instrument or agreement evidencing any Obligations, or by the existence, validity, enforceability,  perfection,  non-perfection  or  extent  of  any  collateral  therefor,  or  by  any  fact  or  circumstance  relating to the Obligations which might otherwise constitute a defense to the obligations of any  Guarantor under this Guaranty, and each Guarantor hereby irrevocably waives any defenses it may  now have or hereafter acquire in any way relating to any or all of the foregoing.         Anything contained in this Guaranty to the contrary notwithstanding, it is the intention of  each Guarantor and the Secured Parties that the obligations of each Guarantor hereunder at any  time shall be limited to an aggregate amount equal to the largest amount that would not render its  obligations hereunder subject to avoidance as a fraudulent transfer or conveyance under Section  548 of the Bankruptcy Code of the United States (Title 11, United States Code) or any comparable  provisions of any similar federal or state law.  To that end, but only in the event and to the extent  that  after  giving  effect  to Section  11.11,  such  Guarantor’s  obligations  with  respect  to  the  Obligations or any payment made pursuant to such Obligations would, but for the operation of the  first sentence of this paragraph, be subject to avoidance or recovery in any such proceeding under  applicable Debtor Relief Laws after giving effect to Section 11.11, the amount of such Guarantor’s  obligations with respect to the Obligations shall be limited to the largest amount which, after giving  effect  thereto,  would  not,  under  applicable  Debtor  Relief  Laws,  render  such  Guarantor’s  obligations  with  respect  to  the Obligations  unenforceable or avoidable or otherwise subject  to  recovery under applicable Debtor Relief Laws.  To the extent any payment actually made pursuant  to the Obligations exceeds the limitation of the first sentence of this paragraph and is otherwise  subject to avoidance and recovery in any such proceeding under applicable Debtor Relief Laws,  the amount subject to avoidance shall in all events be limited to the amount by which such actual  payment  exceeds  such  limitation,  and  the  Obligations  as  limited  by  the  first  sentence of  this  paragraph shall in all events remain in full force and effect and be fully enforceable against such  Guarantor.  The first sentence of this paragraph is intended solely to preserve the rights of the  Secured  Parties  hereunder  against  such  Guarantor  in  such  proceeding  to  the  maximum  extent  permitted by applicable Debtor Relief Laws and neither such Guarantor, the Borrower, any other  Guarantor nor any other Person shall have any right or claim under such sentence that would not  otherwise be available under applicable Debtor Relief Laws in such proceeding.         11.02 Rights of Lenders.  Each Guarantor consents and agrees that the Secured Parties  may,  at  any time and  from  time to  time, without  notice or demand,  and without affecting the  enforceability or continuing effectiveness hereof (in each case, to the extent permitted hereunder):  (a)  amend, amend  and  restate, extend,  renew,  compromise,  discharge,  accelerate  or  otherwise  change the time for payment or the terms of the Obligations or any part thereof; (b) take, hold,  exchange, enforce, waive, release, fail to perfect, sell, or otherwise dispose of any security for the  payment of this Guaranty or any Obligations; (c) apply such security and direct the order or manner  of sale thereof as the Administrative Agent and the Lenders in their sole discretion may determine;  and  (d)  release  or  substitute  one  or  more  of  any  endorsers  or  other  guarantors  of  any  of  the  Obligations.  Without limiting the generality of the foregoing, each Guarantor consents  to  the  taking of, or failure to take, any action which might in any manner or to any extent vary the risks  of such Guarantor under this Guaranty or which, but for this provision, might operate as a discharge  of such Guarantor.                                         156 





 






         11.03 Certain Waivers.  Each Guarantor waives to the fullest extent permitted by Law  (a) any defense arising by reason of any disability or other defense of the Borrower or any other  guarantor,  or  the  cessation  from  any  cause  whatsoever  (including  any  act  or  omission  of  any  Secured  Party,  but  excluding  satisfaction  thereof  by  way  of  payment)  of  the  liability  of  the  Borrower; (b) any defense based on any claim that such Guarantor’s obligations exceed or are  more burdensome than those of the Borrower; (c) the benefit of any statute of limitations affecting  such  Guarantor’s  liability  hereunder;  (d)  any  right  to  proceed  against  the  Borrower,  proceed  against or exhaust any security for the Obligations, or pursue any other remedy in the power of  any Secured Party whatsoever; (e) any benefit of and any right to participate in any security now  or hereafter held by any Secured Party; and (f) to the fullest extent permitted by law, any and all  other defenses or benefits that may be derived from or afforded by applicable law limiting the  liability of or exonerating guarantors or sureties (in each case, other than a defense relating to  indefeasible payment in full of the Obligations).  Each Guarantor expressly waives all setoffs and  counterclaims and all presentments, demands for payment or performance, notices of nonpayment  or nonperformance,  protests,  notices  of  protest,  notices  of  dishonor  and  all  other  notices  or  demands  of  any  kind  or  nature  whatsoever  with  respect  to  the  Obligations,  and  all  notices  of  acceptance  of  this  Guaranty  or  of  the  existence,  creation  or  incurrence of  new  or  additional  Obligations.         11.04 Obligations Independent.  The obligations of each Guarantor hereunder are those  of a primary obligor, and not merely as surety, and are independent of the Obligations and the  obligations of any other guarantor, and a separate action may be brought against each Guarantor  to enforce this Guaranty whether or not the Borrower or any other Person or entity is joined as a  party.         11.05 Subrogation.  Each  Guarantor  shall  not  exercise  any  right  of  subrogation,  contribution, indemnity, reimbursement or similar rights with respect to any payments it makes  under this Guaranty until all Commitments have been terminated and all of the Obligations and  any amounts payable under this Guaranty (in each case, other than contingent indemnification and  expense reimbursement obligations to the extent no claim has been asserted therefor) have been  paid in full.  If any amounts are paid to any Guarantor in violation of the foregoing limitation, then  such amounts shall be held in trust for the benefit of the Secured Parties and shall forthwith be  paid to the Secured Parties to reduce the amount of the Obligations, whether matured or unmatured.         11.06 Termination;  Reinstatement.  This  Guaranty  is  a  continuing  and  irrevocable  guaranty of all Obligations now or hereafter existing and shall remain in full force and effect until  all Commitments are terminated and all Obligations and any other amounts payable under this  Guaranty  (in  each  case,  other  than  contingent  indemnification  and  expense  reimbursement  obligations  to  the  extent  no  claim  has  been  asserted  therefor)  have  been  paid  in  full  in  cash.   Notwithstanding the foregoing, this Guaranty shall continue in full force and effect or be revived,  as the case may be, if any payment by or on behalf of the Borrower or any other Guarantor is made,  or any of the Secured Parties exercises its right of setoff, in respect of the Obligations and such  payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to  be fraudulent or preferential, set aside or required (including pursuant to any settlement entered  into by any of the Secured Parties in their discretion) to be repaid to a trustee, receiver or any other  party, in connection with any proceeding under any Debtor Relief Laws or otherwise, all as if such  payment had not been made or such setoff had not occurred and whether or not the Secured Parties                                         157 





 






   are  in  possession  of  or  have  released  this  Guaranty  and  regardless  of  any  prior  revocation,  rescission, termination or reduction.  The obligations of the Guarantors under this paragraph shall  survive termination of this Guaranty.         11.07 Subordination.  Each  Guarantor  hereby  subordinates  the  payment  of  all  obligations and indebtedness of the Borrower owing to such Guarantor, whether now existing or  hereafter arising, including but not limited to any obligation of the Borrower to such Guarantor as  subrogee  of  the  Secured  Parties  or  resulting  from  such  Guarantor’s  performance  under  this  Guaranty, to the payment in full in cash of all Obligations.  If the Secured Parties so request during  the continuance of an Event of Default, any such obligation or indebtedness of the Borrower to  such Guarantor shall be enforced and performance received by such Guarantor as trustee for the  Secured Parties and the proceeds thereof shall be paid over to the Secured Parties on account of  the Obligations, but without reducing or affecting in any manner the liability of any Guarantor  under this Guaranty.         11.08 Stay  of  Acceleration.  If  acceleration  of  the  time  for  payment  of  any of  the  Obligations is stayed, in connection with any case commenced by or against the Borrower or any  Guarantor under any Debtor Relief  Laws, or otherwise, all such amounts  shall nonetheless  be  payable by a Guarantor not subject to such stay immediately upon demand by the Secured Parties.         11.09 Condition of the Borrower.  Each Guarantor acknowledges and agrees that it has  the sole responsibility for, and has adequate means of, obtaining from the Borrower and any other  guarantor  such  information  concerning  the  financial  condition,  business  and  operations  of the  Borrower and any such other guarantor as such Guarantor requires, and that none of the Secured  Parties has any duty, and such Guarantor is not relying on the Secured Parties at any time, to  disclose  to  such Guarantor  any  information  relating  to  the  business,  operations  or  financial  condition of the Borrower or any other guarantor (each Guarantor waiving any duty on the part of  the Secured Parties to disclose such information and any defense relating to the failure to provide  the same).         11.10 Limitations on Enforcement.  If, in any action to enforce this Guaranty or any  proceeding to allow or adjudicate a claim under this Guaranty, a court of competent jurisdiction  determines that enforcement of this Guaranty against any Guarantor for the full amount of the  Obligations  is  not  lawful  under,  or  would  be  subject  to  avoidance  under,  Section  548  of  the  Bankruptcy  Code  or  any  applicable  provision  of  comparable  state  law,  the  liability  of  such  Guarantor under this Guaranty shall be limited to the maximum amount lawful and not subject to  avoidance under such law.         11.11 Contribution.  At any time a payment in respect of the Obligations is made under  this Guaranty, the right of contribution of each Guarantor against each other Guarantor shall be  determined as provided in the immediately following sentence, with the right of contribution of  each  Guarantor  to  be  revised  and  restated  as  of  each  date  on  which  a  payment  (a  “Relevant  Payment”) is made on the Obligations under this Guaranty.  At any time that a Relevant Payment  is made by a Guarantor that results in the aggregate payments made by such Guarantor in respect  of the Obligations to and including the date of the Relevant Payment exceeding such Guarantor’s  Contribution Percentage (as defined below) of the aggregate payments made by all Guarantors in  respect of the Obligations to and including the date of the Relevant Payment (such excess, the                                         158 





 






   “Aggregate Excess Amount”), each such Guarantor shall have a right of contribution against each  other Guarantor who either has not made any payments or has made payments in respect of the  Obligations to and including the date of the Relevant Payment in an aggregate amount less than  such other Guarantor’s Contribution Percentage of the aggregate payments made to and including  the date of the Relevant Payment by all Guarantors in respect of the Obligations (the aggregate  amount of such deficit, the “Aggregate Deficit Amount”) in an amount equal to (x) a fraction the  numerator of which is the Aggregate Excess Amount of such Guarantor and the denominator of  which is the Aggregate Excess Amount of all Guarantors multiplied by (y) the Aggregate Deficit  Amount of such other Guarantor.  A Guarantor’s right of contribution pursuant to the preceding  sentences shall arise at the time of each computation, subject to adjustment at the time of each  computation; provided, that no Guarantor may take any action to enforce such right until all of the  Obligations and any amounts payable under this Guaranty (other than, in each case, contingent  indemnification and expense reimbursement obligations to the extent no claim has been asserted  therefor) have been paid in full in cash and all Commitments are terminated, it being expressly  recognized  and  agreed  by  all  parties hereto  that  any  Guarantor’s  right  of  contribution  arising  pursuant  to  this Section  11.11 against  any  other  Guarantor  shall  be  expressly  junior  and  subordinate to such other Guarantor’s obligations and liabilities in respect of the Obligations and  any  other  obligations  owing  under  this  Guaranty.   As  used  in  this Section  11.11,  (i)  each  Guarantor’s “Contribution Percentage” shall mean the percentage obtained by dividing (x) the  Adjusted Net Worth (as defined below) of such Guarantor by (y) the aggregate Adjusted Net Worth  of all Guarantors; (ii) the “Adjusted Net Worth” of each Guarantor shall mean the greater of (x)  the Net Worth (as defined below) of such Guarantor and (y) zero; and (iii) the “Net Worth” of each  Guarantor shall mean the amount by which the fair saleable value of such Guarantor’s assets on  the  date  of  any  Relevant  Payment  exceeds  its  existing  debts  and  other  liabilities  (including  contingent liabilities, but without giving effect to any Obligations arising under this Guaranty) on  such date.  All parties hereto recognize and agree that, except for any right of contribution arising  pursuant  to  this Section  11.11,  each  Guarantor  who  makes  any  payment  in  respect  of  the  Obligations  shall  have  no  right  of  contribution  or  subrogation  against  any  other  Guarantor  in  respect  of  such  payment  until  all  of  the  Obligations  (other  than,  in  each  case,  contingent  indemnification and expense reimbursement obligations to the extent no claim has been asserted  therefor)  have  been  paid  in  full  in  cash  and  all  Commitments  are  terminated.   Each  of  the  Guarantors recognizes and acknowledges that the rights to contribution arising hereunder shall  constitute an asset in favor of the party entitled to such contribution.  In this connection, each  Guarantor has the right to waive its contribution right against any Guarantor to the extent that after  giving effect to such waiver such Guarantor would remain solvent, in the determination of the  Majority Lenders.         11.12 Investment Grade Release.           (a)   If  at  any  time  the  Investment  Grade  Ratings  Criteria  is  satisfied, subject  to  paragraph (c) of this Section, the Administrative Agent shall promptly release all of the Subsidiary  Guarantors  from  their  obligations  under  the  Guaranty  (the  “Investment  Grade  Release”) and  release all Equity Interests and other Collateral pledged pursuant to the Pledge Agreement or any  other Collateral Documents, subject to satisfaction of the following conditions:               (i)   The Borrower shall have delivered to the Administrative Agent, on or prior        to the date that is ten (10) Business Days (or such shorter period of time as agreed to by                                         159 





 






         the Administrative Agent) before the date on which the Investment Grade Release is to be        effected, written notice that it is requesting the Investment Grade Release, which notice        shall identify the Subsidiary Guarantors to be released and the proposed effective date for        the Investment Grade Release; and               (ii)  On  the  date  the  Investment  Grade  Release  is  to  become  effective,  the        Administrative Agent shall have received a certificate signed by a Responsible Officer,        certifying that,                     (A)   the  Investment  Grade  Ratings  Criteria  have  been  satisfied  and              setting forth the Debt Rating(s) as in effect, if any, from each of S&P, Moody’s and              Fitch as of such date, and                     (B)   certifying that no Subsidiary Guarantor requested to be released is a              borrower or guarantor of, or otherwise has a payment obligation in respect of, any              Unsecured Debt or any Secured Pari Passu Obligations (other than Unsecured Debt              and Secured Pari Passu Obligations in respect of which such Subsidiary Guarantor              shall  be  released  as  a  borrower  or  guarantor  or  other  obligor  substantially              concurrently with the release hereunder); and                     (C)   immediately  before  and  immediately  after  giving  effect  to  the              Investment  Grade Release, no Default has  occurred and is  continuing or would              result therefrom.         (b)   Subject to paragraph (c) of this Section, upon the release of any Person pursuant to  this Section 11.12, the Administrative Agent shall (to the extent applicable) return any Collateral  in its possession and deliver to the Borrower, upon the Borrower’s request and at the Borrower’s  expense, such documentation as is reasonably satisfactory to the Borrower and the Administrative  Agent and necessary to evidence the release of such Person from its obligations under the Loan  Documents and (to the extent applicable) the discharge, release and termination of the security  interests created by the Pledge Agreement and the other Collateral Documents.         (c)   The  provisions  of  this Section  11.12 shall  not  apply  to  any  Direct  Owner  of  a  Borrowing Base Asset or any Indirect Owner of such Direct Owner in each case that is a borrower  or  guarantor  of,  or  otherwise has  a  payment obligation in  respect  of,  any  Unsecured  Debt  or  Secured Pari Passu Obligations (other than any Unsecured Debt or Secured Pari Passu Obligations  in respect of which such Subsidiary Guarantor shall be released as a borrower or guarantor or other  obligor substantially concurrently with the Investment Grade Release).                           [signature pages immediately follow]                                             160 





 






         IN  WITNESS  WHEREOF,  the  parties  hereto  have  caused  this  Agreement  to  be  duly  executed as of the date first above written.                                             SAFEHOLD INC., as Borrower                                             By:  /s/ Brett Asnas                                                              Name:  Brett Asnas                                               Title:    Senior Vice President                                                                                         SAFEHOLD OPERATING                                            PARTNERSHIP LP, as a Guarantor                                             By:   Safehold OP Gen Par LLC, its                                                  general partner                                             By:   Safehold Inc., the sole member of its                                                  general partner                                             By:  /s/ Brett Asnas                                                              Name:  Brett Asnas                                               Title:    Senior Vice President                                                                                         SAFEHOLD OP GENPAR LLC, as a                                            Guarantor                                             By:   Safehold Inc., its sole member                                             By:  /s/ Brett Asnas                                                              Name:  Brett Asnas                                               Title:    Senior Vice President                           [Signature Page to Safehold Credit Agreement] 





 






                                   CARET VENTURES LLC, as a Guarantor                      By:   Safehold Operating Partnership LP,                           its managing member                      By:   Safehold OP GenPar LLC, the                           general partner of its managing                           member                      By:   Safehold Inc., the sole member of                           Safehold OP GenPar LLC                      By:  /s/ Brett Asnas                                       Name:  Brett Asnas                        Title:    Senior Vice President                                           CARET MANAGEMENT HOLDINGS                     LLC, as a Guarantor                      By:   Safehold Operating Partnership LP,                           its managing member                      By:   Safehold OP GenPar LLC, the                           general partner of its managing                           member                      By:   Safehold Inc., the sole member of                           Safehold OP GenPar LLC                      By:  /s/ Brett Asnas                                       Name:  Brett Asnas                        Title:    Senior Vice President    [Signature Page to Safehold Credit Agreement] 





 






                                   3333 OLD MILTON ALPHARETTA                     LLC, as a Guarantor                      By:   CARET VENTURES LLC, its sole                           member                      By:   Safehold Operating Partnership LP,                           the managing member of its sole                           member                      By:   Safehold OP GenPar LLC, the                           general partner of Safehold                           Operating Partnership LP                      By:   Safehold Inc., the sole member of                           Safehold OP GenPar LLC                      By:  /s/ Brett Asnas                                       Name:  Brett Asnas                        Title:    Senior Vice President                                           MADISON ARIZONA GROUND                     OWNER LLC, as a Guarantor                      By:   CARET VENTURES LLC, its sole                           member                      By:   Safehold Operating Partnership LP,                           the managing member of its sole                           member                      By:   Safehold OP GenPar LLC, the                           general partner of Safehold                           Operating Partnership LP                      By:   Safehold Inc., the sole member of                           Safehold OP GenPar LLC                      By:  /s/ Brett Asnas                                       Name:  Brett Asnas                        Title:    Senior Vice President                          [Signature Page to Safehold Credit Agreement] 





 






                                   LIGHTHOUSE GENPAR LLC, as a                     Guarantor                      By:   CARET VENTURES LLC, its sole                           member                      By:   Safehold Operating Partnership LP,                           the managing member of its sole                           member                      By:   Safehold OP GenPar LLC, the                           general partner of Safehold                           Operating Partnership LP                      By:   Safehold Inc., the sole member of                           Safehold OP GenPar LLC                      By:  /s/ Brett Asnas                                       Name:  Brett Asnas                        Title:    Senior Vice President                                           LIGHTHOUSE GROUND OWNER LP,                     as a Guarantor                      By:   Lighthouse GenPar LLC, its general                           partner                      By:   CARET VENTURES LLC, the sole                           member of its general partner                      By:   Safehold Operating Partnership LP,                           the managing member of its sole                           member                      By:   Safehold OP GenPar LLC, the                           general partner of Safehold                           Operating Partnership LP                      By:   Safehold Inc., the sole member of                           Safehold OP GenPar LLC                      By:  /s/ Brett Asnas                                       Name:  Brett Asnas                        Title:    Senior Vice President    [Signature Page to Safehold Credit Agreement] 





 






                                   1325 WILSON GROUND OWNER LLC,                     as a Guarantor                      By:   CARET VENTURES LLC, its sole                           member                      By:   Safehold Operating Partnership LP,                           the managing member of its sole                           member                      By:   Safehold OP GenPar LLC, the                           general partner of Safehold                           Operating Partnership LP                      By:   Safehold Inc., the sole member of                           Safehold OP GenPar LLC                      By:  /s/ Brett Asnas                                       Name:  Brett Asnas                        Title:    Senior Vice President                                           1201-31 LAFAYETTE GROUND                     OWNER LLC, as a Guarantor                      By:   CARET VENTURES LLC, its sole                           member                      By:   Safehold Operating Partnership LP,                           the managing member of its sole                           member                      By:   Safehold OP GenPar LLC, the                           general partner of Safehold                           Operating Partnership LP                      By:   Safehold Inc., the sole member of                           Safehold OP GenPar LLC                      By:  /s/ Brett Asnas                                       Name:  Brett Asnas                        Title:    Senior Vice President                          [Signature Page to Safehold Credit Agreement] 





 






                                   920 S TERRACE ROAD GROUND                     OWNER LLC, as a Guarantor                      By:   CARET VENTURES LLC, its sole                           member                      By:   Safehold Operating Partnership LP,                           the managing member of its sole                           member                      By:   Safehold OP GenPar LLC, the                           general partner of Safehold                           Operating Partnership LP                      By:   Safehold Inc., the sole member of                           Safehold OP GenPar LLC                      By:  /s/ Brett Asnas                                       Name:  Brett Asnas                        Title:    Senior Vice President                                           3549 IOWA AVE GROUND OWNER                     LLC, as a Guarantor                      By:   CARET VENTURES LLC, its sole                           member                      By:   Safehold Operating Partnership LP,                           the managing member of its sole                           member                      By:   Safehold OP GenPar LLC, the                           general partner of Safehold                           Operating Partnership LP                      By:   Safehold Inc., the sole member of                           Safehold OP GenPar LLC                      By:  /s/ Brett Asnas                                       Name:  Brett Asnas                        Title:    Senior Vice President                          [Signature Page to Safehold Credit Agreement] 





 






                                   ONE PALM APARTMENT OWNER                     LLC, as a Guarantor                      By:   CARET VENTURES LLC, its sole                           member                      By:   Safehold Operating Partnership LP,                           the managing member of its sole                           member                      By:   Safehold OP GenPar LLC, the                           general partner of Safehold                           Operating Partnership LP                      By:   Safehold Inc., the sole member of                           Safehold OP GenPar LLC                      By:  /s/ Brett Asnas                                       Name:  Brett Asnas                        Title:    Senior Vice President                                     [Signature Page to Safehold Credit Agreement] 





 






                                   BANK OF AMERICA, N.A., as                     Administrative Agent                      By:  /x/ Denise Jones                                      Name:  Denise Jones                        Title:    Vice President                             [Signature Page to Safehold Credit Agreement] 





 






                                   BANK OF AMERICA, N.A., as a Lender                     and an L/C Issuer                      By:  /x/ Michael J. Kauffman                               Name:  Michael J. Kauffman                        Title:    Vice President                             [Signature Page to Safehold Credit Agreement] 





 






                                   JPMORGAN CHASE BANK, N.A., as a                     Lender and an L/C Issuer                      By:  /x/ Brian Smolowitz                                   Name:  Brian Smolowitz                        Title:    Vice President                             [Signature Page to Safehold Credit Agreement] 





 






                                   BARCLAYS BANK PLC, as a Lender and                     an L/C Issuer                      By:  /x/ Craig Malloy                                      Name:  Craig Malloy                        Title:    Director    [Signature Page to Safehold Credit Agreement] 





 






                                   SUNTRUST BANK, as a Lender                      By:  /x/ Nick Preston                                      Name:  Nick Preston                        Title:    Director    [Signature Page to Safehold Credit Agreement] 





 






                                   GOLDMAN SACHS BANK USA, as a                     Lender                      By:  /x/ Annie Carr                                        Name:  Annie Carr                        Title:    Authorized Signatory    [Signature Page to Safehold Credit Agreement] 





 






                                   MIZUHO BANK, LTD., as a Lender                      By:  /x/ Donna DeMagistris                                 Name:  Donna DeMagistris                        Title:    Authorized Signatory    [Signature Page to Safehold Credit Agreement] 





 






                                   CITIBANK, N.A., as a Lender                      By:  /x/ Chris Albano                                      Name:  Chris Albano                        Title:    Authorized Signatory    [Signature Page to Safehold Credit Agreement] 





 






                                   RAYMOND JAMES BANK, N.A., as a                     Lender                      By:  /x/ Matt Stein                                        Name:  Matt Stein                        Title:    Senior Vice President                                                                                                                                 [Signature Page to Safehold Credit Agreement]