附件10.2
執行版本
信貸協議
日期截至2024年9月30日
其中
CTO Realty Growth，Inc.，
擔保人不時在此雙方，
出借人不時與本合同的當事人簽訂合同，
KeyBank全國協會，
作爲行政代理，
KeyBank資本市場公司，PNC資本市場有限責任公司和地區資本市場，
作爲聯合首席調度員
PNC銀行、國家協會和地區銀行、
作爲辛迪加代理
KeyBank全國協會，
作爲可持續性結構的推動者
KeyBanc資本市場公司，
作爲唯一的圖書管理者
目錄表
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-iii-
第13.3條。只有在全額付款後才能出院;在某些情況下恢復工作104
展品 A—已保留
附件B—借款通知書
附件C—繼續/轉換通知
展品 D—學期筆記
展品 E—合規證書
附件F—轉讓和驗收
展品G—額外擔保補充
展品H—承諾增加請求
展品I—借用基礎證書
進度表 I—承付款
附表1.1—初始屬性
進度表 6.2—附屬公司
進度表 6.6—實質性不良影響
進度表 6.11—訴訟
進度表 6.17—環境問題
附表8.7—現有留置權
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本信貸協定所證明的貸款不以佛羅裡達州不動產的權益為抵押，並已在佛羅裡達州以外的地方執行和交付。因此，就本信貸協定而言，無需支付任何佛羅裡達跟單印花稅。
信貸協議
本信貸協定(以下簡稱《協定》)自2024年9月30日起生效CTO房地產增長公司、馬利蘭公司(“借款人”)，以及作為擔保人的本協定的每一重要附屬公司，作為貸款人的幾家金融機構，以及密鑰庫全國協會，作為管理代理和密鑰庫，作為可持續結構代理，如本文所提供的。此處使用的所有未定義的大寫術語應具有與本合同第5.1節中定義的術語相同的含義。
初步聲明
借款人要求，貸款人同意根據本協定的條款和條件提供某些信貸便利。
因此，現在，考慮到本協定所載的相互協定，以及其他良好和有價值的對價，雙方特此同意如下：
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payment or prepayment of a Loan under Section 1.11 hereof so that the Borrower will have no liability under such Section with respect to such payment.
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provided, however, that in the absence of acceleration, any adjustments pursuant to this Section 1.9 shall be made by the Administrative Agent, acting at the request or with the consent of the Required Lenders, with written notice to the Borrower. While any Event of Default exists or after acceleration, interest shall be paid on the demand of the Administrative Agent at the request or with the consent of the Required Lenders.
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then, upon the demand of such Lender, the Borrower shall pay to such Lender such amount as will reimburse such Lender for such loss, cost or reasonable expense. If any Lender makes such a claim for compensation, it shall provide to the Borrower, with a copy to the Administrative Agent, a certificate setting forth the amount of such loss, cost or reasonable expense in reasonable detail and the amounts shown on such certificate shall be conclusive if reasonably determined absent manifest error.
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amendment or waiver requested under Section 12.13 hereof at a time when the Required Lenders have approved such amendment or waiver (any such Lender referred to in clause (a), (b), (c), or (d) above being hereinafter referred to as an “Affected Lender”), the Borrower may, in addition to any other rights the Borrower may have hereunder or under applicable law, require, at its expense, any such Affected Lender to assign, at par, without recourse (other than with respect to claims or Liens arising by, through or under such Affected Lender), all of its interest, rights, and obligations hereunder (including all of its Commitments, Loans and other amounts at any time owing to it hereunder and the other Loan Documents) to an Eligible Assignee specified by the Borrower, provided that (i) such assignment shall not conflict with or violate any law, rule or regulation or order of any court or other governmental authority, (ii) the Borrower shall have paid to the Affected Lender all monies (together with amounts due such Affected Lender under Section 1.11 hereof as if the Loans owing to it were prepaid rather than assigned) other than such principal owing to it hereunder, and (iii) the assignment is entered into in accordance with, and subject to the consents required by, Section 12.12 hereof (provided any reimbursable expenses due thereunder shall be paid by the Borrower and any assignment fees shall be waived).
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establishment of such Incremental Revolving Commitment providing for the advance of new revolving loans (individually an “Incremental Revolving Loan” and collectively for all the Incremental Revolving Lenders the “Incremental Revolving Loans”) or such Incremental Term Loan Commitment providing for the advance of new term loans (individually an “Incremental Term Loan” and collectively for all the Incremental Term Loan Lenders the “Incremental Term Loans”; each Commitment Amount Increase, Incremental Revolving Commitment, and Incremental Term Loan Commitment, a “Commitment Increase”), identifying one or more additional Lenders (or additional Commitments for existing Lenders, or by a combination of existing Lenders and additional Lenders, and the amount of each such Lender’s additional Commitment or Incremental Term Loan Commitment, as applicable); provided, however, that (i) the aggregate amount of the Commitments shall not be increased to an amount in excess of $400,000,000, (ii) no Default or Event of Default shall have occurred and be continuing at the time of the request or the effective date of the Commitment Increase, (iii) all representations and warranties contained in Section 6 hereof shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) at the time of such request and on the effective date of such Commitment Increase except for representations and warranties that relate to a prior date, which shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) as of the applicable date on which they were made, and (iv) upon the reasonable request of any additional Lender made at least seven (7) days prior to the effective date of such Commitment Increase, the Borrower shall have provided to such additional Lender, and such additional Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Act, in each case at least three (3) days prior to the effective date of such Commitment Increase and, at least three (3) days prior to the effective date of such Commitment Increase, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification. The effective date of the Commitment Increase shall be agreed upon by the Borrower and the Administrative Agent. Upon the effectiveness thereof, the new Lender(s) (or, if applicable, existing Lender(s)) shall advance Loans in an amount sufficient such that after giving effect to its advance each Lender shall have outstanding its Applicable Percentage of Loans. The Borrower agrees to pay any reasonable expenses of the Administrative Agent relating to any Commitment Increase and arrangement fees related thereto as agreed upon in writing between Administrative Agent and the Borrower, if any. Notwithstanding anything herein to the contrary, (x) no Lender shall have any obligation to increase its Commitment and no Lender’s Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to increase its Commitment or to provide any Incremental Commitment, (y) no declining Lender shall have any consent rights with respect to such Commitment Increase, and (z) any new Lender shall be acceptable to the Administrative Agent (to the extent the consent of the Administrative Agent would be required in connection with an assignment to such new Lender under Section 12.12(a)(iii) hereof) with such consent not to be unreasonably withheld or delayed. Upon the effectiveness thereof, Schedule I shall be deemed amended to reflect any Commitment Increase. Subject to Section 7.1 hereof, on the effective date of any new Incremental Term Loan Commitments, any new or existing Lender with an Incremental Term Loan Commitment shall
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advance in a single Borrowing an Incremental Term Loan in the amount of its new Incremental Term Loan Commitment. The Borrower shall deliver or cause to be delivered any documents reasonably requested by the Administrative Agent in connection with any such transaction and consistent with Section 7.2 hereof.
Each request for a new Incremental Commitment may be made hereunder pursuant to an amendment or restatement (each, an “Incremental Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Incremental Lender participating in such tranche and the Administrative Agent. Each Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 1.15. All Incremental Loans (a) shall rank pari passu in right of payment and of security, if any, with all other existing Loans and shall not be guaranteed by any additional Guarantors than the existing Loans, (b) shall be subject to covenants and events of default that are identical to or not materially more restrictive to the Borrower than those in the existing Loans (except to the extent such terms apply only after the latest maturity date of the existing Term Loans), and (c) shall have any mandatory prepayments made pursuant to Section 1.8(b) hereof allocated ratably between the existing Loans and the Incremental Loans (if any). All Incremental Term Loans shall have (i) a final maturity date no earlier than the latest Maturity Date for then-existing Term Loans and (ii) a weighted average life not less than the then remaining weighted average life to maturity of the existing Term Loans. Except as set forth above, the terms and conditions applicable to Incremental Commitments and Incremental Loans (including interest rates and amortization applicable thereto) shall be determined by the Borrower, the Administrative Agent and the Lenders providing such Incremental Commitments or Incremental Loans.
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Anything contained herein to the contrary notwithstanding (including, without limitation, Section 1.8(b) hereof), all payments and collections received in respect of the Obligations by the
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Administrative Agent or any of the Lenders after acceleration or the final maturity of the Obligations or termination of the Commitments as a result of an Event of Default shall be remitted to the Administrative Agent and distributed as follows:
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Administrative Agent, or cause such Material Subsidiary to deliver to the Administrative Agent, at the Borrower’s cost and expense, such other instruments, documents, certificates, and opinions reasonably required by the Administrative Agent in connection therewith.
“1031 Property” means, as of any Borrowing Base Determination Date, any Property owned by a 1031 Property Holder which is intended to qualify for tax treatment under Section 1031 of the Code and which meets all of the requirements of the definition of Eligible Property. For purposes of determining Total Asset Value, such 1031 Property shall be deemed to have been owned or leased by the Borrower or a Guarantor from the date acquired by the 1031 Property Holder that owns such 1031 Property.
“1031 Property Holder” means the “qualified intermediary” or “exchange accommodation titleholder” with respect to a 1031 Property as contemplated under Section 1031 of the Code, the regulations of the U.S. Department of Treasury adopted thereunder and related revenue procedures related thereto.
“2029 Aggregate Term Facility Amount” means $100,000,000.
“2029 Term Credit Facility” means the credit facility for the 2029 Term Loans described in Section 1.2(a) hereof.
“2029 Term Loan” is defined in Section 1.2(a) hereof.
“2029 Term Loan Commitment” means, as to any Lender, the obligation of such Lender to make its 2029 Term Loan on the Closing Date in the principal amount not to exceed the amount set forth opposite such Lender’s name under the heading 2029 Term Loan Commitment on Schedule I attached hereto and made a part hereof.
“2029 Term Loan Lenders” means each Lender hereunder with a 2029 Term Loan Commitment or holding a 2029 Term Loan, including each assignee Lender pursuant to Section 12.12 hereof.
“2029 Term Loan Percentage” means for each 2029 Term Loan Lender, the percentage of the 2029 Term Loan Commitments represented by such 2029 Term Loan Lender’s 2029 Term Loan Commitment, or if the 2029 Term Loan Commitments have been terminated or have expired, the percentage held by such 2029 Term Loan Lender of the aggregate amount of all 2029 Term Loans then outstanding. The initial 2029 Term Loan Percentage of each Lender in respect of the 2029 Term Credit Facility is set forth opposite the name of such Lender on Schedule 1 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.
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“Additional Guarantor Supplement” is defined in Section 4.2 hereof.
“Adjusted Daily Simple SOFR” means with respect to a Daily Simple SOFR Rate Loan, the per annum rate equal to the sum of (a) Daily Simple SOFR and (b) the applicable SOFR Index Adjustment; provided, that if Adjusted Daily Simple SOFR as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for purposes of this Agreement.
“Adjusted EBITDA” means EBITDA minus the Annual Capital Expenditure Reserve.
“Adjusted FFO” means for any period, “funds from operations” as defined in accordance with resolutions adopted by the Board of Governors of the National Association of Real Estate Investment Trusts (NAREIT) as in effect from time to time; provided, that Adjusted FFO shall (i) be based on net income after payment of distributions to holders of preferred partnership units in the Borrower and distributions necessary to pay holders of preferred stock of the Borrower, and (ii) at all times exclude (a) charges for impairment losses from property sales, (b) stock-based compensation, (c) write-offs or reserves of straight-line rent related to sold assets, (d) amortization of debt costs, (e) non-recurring charges, including, without limitation, acquisition expenses, non-cash charges related to the write-off of deferred equity and financing costs and one-time charges related to the transition to self-management and (f) other non-cash items as mutually agreed upon by the Borrower and Administrative Agent. The Borrower’s Ownership Share of Adjusted FFO of its Unconsolidated Affiliates will be included when determining Adjusted FFO of the Borrower and its Subsidiaries, subject to the adjustments set forth in this definition.
“Adjusted Term SOFR” means for any Available Tenor and Interest Period with respect to a Term SOFR Rate Loan, the per annum rate equal to the sum of (a) Term SOFR for such Interest Period and (b) the SOFR Index Adjustment; provided, that if Adjusted Term SOFR as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for purposes of this Agreement.
“Administrative Agent” means KeyBank National Association, in its capacity as Administrative Agent hereunder, and any successor in such capacity pursuant to Section 11.6 hereof.
“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affected Lender” is defined in Section 1.13 hereof.
“Affiliate” means any Person directly or indirectly controlling or controlled by, or under direct or indirect common control with, another Person. A Person shall be deemed to control another Person for purposes of this definition if such Person possesses, directly or indirectly, the power to direct, or cause the direction of, the management and policies of the other Person, whether through the ownership of voting securities, common directors, trustees or officers, by contract or otherwise; provided that, in any event for purposes of this definition, any Person that owns, directly or indirectly, 20% or more of the securities having the ordinary voting power for the election of
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directors or governing body of a corporation or 20% or more of the partnership or other ownership interest of any other Person (other than as a limited partner of such other Person) will be deemed to control such corporation or other Person.
“Agreement” means this Credit Agreement, as the same may be amended, modified, restated or supplemented from time to time pursuant to the terms hereof.
“Alpine” means Alpine Income Property Trust, Inc, a Maryland corporation.
“Annual Capital Expenditure Reserve” means the sum of (a) an amount equal to the product of (i) $0.15 multiplied by (ii) the aggregate gross leasable area, determined on a square footage basis, for retail properties, Retail Mixed-Use Properties and industrial properties, plus (b) an amount equal to the product of (i) $0.50 multiplied by (ii) the aggregate gross leasable area, determined on a square footage basis, for all other properties; provided, however, that this definition of Annual Capital Expenditure Reserve shall not apply to any Land Assets or any Ground Leases so long as the Borrower is not obligated for such Capital Expenditures.
“Anti-Corruption Law” means the FCPA and any law, rule or regulation of any jurisdiction concerning or relating to bribery or corruption that are applicable to the Borrower or any Subsidiary or Affiliate.
“Applicable Margin” means, with respect to the 2029 Term Loans, until the first Pricing Date, the rates shown opposite Level II below, and thereafter, from one Pricing Date to the next the rates per annum determined in accordance with the following schedule:
Level | Total Indebtedness to Total Asset Value Ratio for Such Pricing Date | Applicable Margin for Base Rate Loans shall be: | Applicable Margin for SOFR Rate Loans Shall Be: |
|---|---|---|---|
I | Less than or equal to 0.40 to 1.00 | 0.20% | 1.20% |
II | Less than or equal to 0.45 to 1.00, but greater than 0.40 to 1.00 | 0.30% | 1.30% |
III | Less than or equal to 0.50 to 1.00, but greater than 0.45 to 1.00 | 0.45% | 1.45% |
IV | Less than or equal to 0.55 to 1.00, but greater than 0.50 to 1.00 | 0.60% | 1.60% |
V | Less than or equal to 0.60 to 1.00, but greater than 0.55 to 1.00 | 0.90% | 1.90% |
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Level | Total Indebtedness to Total Asset Value Ratio for Such Pricing Date | Applicable Margin for Base Rate Loans shall be: | Applicable Margin for SOFR Rate Loans Shall Be: |
|---|---|---|---|
VI | Greater than 0.60 to 1.00 | 1.15% | 2.15% |
For purposes hereof, the term “Pricing Date” means, for any fiscal quarter of the Borrower, the last date on which the Borrower’s most recent Compliance Certificate and financial statements (and, in the case of the year-end financial statements, audit report) for the fiscal quarter then ended are due, pursuant to Section 8.5 hereof. The Applicable Margin shall be established based on the Total Indebtedness to Total Asset Value ratio for the most recently completed fiscal quarter and the Applicable Margin established on a Pricing Date shall remain in effect until the next Pricing Date. If the Borrower has not delivered its Compliance Certificate and financial statements by the date the Compliance Certificate and financial statements (and, in the case of the year-end financial statements, audit report) are required to be delivered under Section 8.5 hereof, then until such Compliance Certificate and financial statements and/or audit report are delivered, the Applicable Margin shall be the highest Applicable Margin (i.e., Level VI shall apply). If the Borrower subsequently delivers such Compliance Certificate and financial statements before the next Pricing Date, the Applicable Margin established by such late delivered Compliance Certificate and financial statements shall take effect from the date of delivery until the next Pricing Date. In all other circumstances, the Applicable Margin established by such Compliance Certificate and financial statements shall be in effect from the Pricing Date that occurs immediately after the end of the fiscal quarter covered by such financial statements until the next Pricing Date. The Borrower, Administrative Agent and Lenders understand that the applicable interest rate for the Obligations and certain fees set forth herein may be determined and/or adjusted from time to time based upon certain financial ratios and/or other information to be provided or certified to the Administrative Agent and Lenders by the Borrower (the "Borrower Information"). If it is subsequently determined that any such Borrower Information was incorrect (for whatever reason, including, without limitation, because of a subsequent restatement of earnings by the Borrower) at the time it was delivered to the Administrative Agent, and if the applicable interest rate or fees calculated for any period were lower than they should have been had the correct information been timely provided, then, such interest rate and such fees for such period shall be automatically recalculated using correct Borrower Information; provided that no recalculation shall be done for any period that is more than 2 years earlier than the date of recalculation. The Administrative Agent shall promptly notify the Borrower in writing of any additional interest and fees due because of such recalculation, and the Borrower shall pay such additional interest or fees due to the Administrative Agent, for the account of each Lender, within five (5) Business Days of receipt of such written notice. Any recalculation of interest or fees required by this provision shall survive the termination of this Agreement, and this provision shall not in any way limit any of the Administrative Agent's or any Lender's other rights under this Agreement. Each determination of the Applicable Margin made by the Administrative Agent in accordance with the foregoing shall be conclusive, absent manifest error, and binding on the Borrower and the Lenders if reasonably determined. Any Incremental Revolving Loan and Incremental Term Loan shall bear interest at an “applicable margin” based upon the then determined Applicable Margin set forth in each Incremental Amendment for each Incremental Credit.
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“Applicable Percentage” means, for any Lender, its 2029 Term Loan Percentage, Incremental Revolving Percentage, or Incremental Term Loan Percentage, as applicable; and where the term “Percentage” is applied on an aggregate basis, such aggregate percentage shall be calculated by aggregating the separate components of the 2029 Term Loan Percentage, Incremental Revolving Percentage, or Incremental Term Loan Percentage and expressing such components on a single percentage basis.
“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.
“Assets Under Development” means any real property under construction (excluding any completed Property under minor renovation) until such property has received a certificate of occupancy.
“Assignment and Acceptance” means an assignment and acceptance entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 12.12 hereof), and accepted by the Administrative Agent, in substantially the form of Exhibit F or any other form approved by the Administrative Agent.
“Authorized Representative” means those persons shown on the list of officers provided by the Borrower pursuant to Section 7.2 hereof or on any update of any such list provided by the Borrower to the Administrative Agent, or any further or different officers of the Borrower so named by any Authorized Representative of the Borrower in a written notice to the Administrative Agent.
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement or (y) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 10.6(d).
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
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“Bankruptcy Event” means, with respect to any Person, any event of the type described in clause (j) or (k) of Section 9.1 hereof with respect to such Person.
“Base Rate” means, for any day, the rate per annum equal to the greatest of: (a) the rate of interest announced or otherwise established by the Administrative Agent from time to time as its prime commercial rate, or its equivalent, for U.S. Dollar loans to borrowers located in the United States as in effect on such day, with any change in the Base Rate resulting from a change in said prime commercial rate to be effective as of the date of the relevant change in said prime commercial rate (it being acknowledged and agreed that such rate may not be the Administrative Agent’s best or lowest rate), (b) the sum of (i) the Federal Funds Rate for such day, plus (ii) 1/2 of 1%, or (c) the sum of (i) Adjusted Term SOFR for a one month tenor in effect on such day plus (ii) 1.0%. Any change in the Base Rate due to a change in the prime rate, the Federal Funds Rate or Term SOFR, as applicable, shall be effective from and including the effective date of the change in such rate. If the Base Rate is being used as an alternative rate of interest pursuant to Section 10.2 or Section 10.6 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; provided, that if the Base Rate as determined above shall ever be less than the Floor, then Base Rate shall be deemed to be the Floor.
“Base Rate Loan” means a Loan bearing interest at the Base Rate.
“Benchmark” means, initially, (a) with respect to Daily Simple SOFR Rate Loans, Daily Simple SOFR and (b), with respect to Term SOFR Rate Loans, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 10.6.
“Benchmark Replacement” means, with respect to any Benchmark Transition Event for the then-current Benchmark, the sum of: (i) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement for such Benchmark giving due consideration to (A) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (B) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for such Benchmark for syndicated credit facilities denominated in U.S. Dollars at such time and (ii) the related Benchmark Replacement Adjustment, if any; provided that, if such Benchmark Replacement as so determined would be less than the Floor, such Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of any then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Available Tenor, the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero), if any, that has been selected by the Administrative Agent and the Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such
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spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for U.S. Dollar denominated syndicated credit facilities at such time.
“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark:
(a)in the case of clause (a) or (b) of the definition of “Benchmark Transition Event”, the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
(b)in the case of clause (c) of the definition of “Benchmark Transition Event”, the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by or on behalf of the administrator of such Benchmark (or such component thereof) or the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative or non-compliant with or non-aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks; provided that such non-representativeness, non-compliance or non-alignment will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.
For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means, with respect to the then-current Benchmark, the occurrence of one or more of the following events with respect to such Benchmark:
(a)a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(b)a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely, provided that, at the time of such statement or publication,
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there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
(c)a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) or the regulatory supervisor for the administrator of such Benchmark (or such component thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Start Date” means, with respect to any Benchmark, in the case of a Benchmark Transition Event, the earlier of (i) the applicable Benchmark Replacement Date and (ii) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication).
“Benchmark Unavailability Period” means, with respect to any then-current Benchmark, the period (if any) (i) beginning at the time that a Benchmark Replacement Date with respect to such Benchmark pursuant to clauses (a) or (b) of that definition has occurred if, at such time, no Benchmark Replacement has replaced such Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 10.6 and (ii) ending at the time that a Benchmark Replacement has replaced such Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 10.6.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Borrower” is defined in the introductory paragraph of this Agreement.
“Borrowing” means the total of Loans of a single type advanced, continued for an additional Interest Period, or converted from a different type into such type by the Lenders on a single date and, in the case of Term SOFR Rate Loans, for a single Interest Period. Borrowings of Loans are made and maintained ratably from each of the Lenders according to their Applicable Percentages. A Borrowing is “advanced” on the day Lenders advance funds comprising such Borrowing to the Borrower, is “continued” on the date a new Interest Period for the same type of Loans commences for such Borrowing, and is “converted” when such Borrowing is changed from one type of Loans to the other, all as determined pursuant to Section 1.6 hereof.
“Borrowing Base” means, at any date of its determination, an amount equal to:
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(x)the lesser of (A) (i) (x) during a Leverage Ratio Increase Period, 65% and (y) at all other times, 60%, multiplied by (ii) the Borrowing Base Value of all Eligible Properties on such date and (B) the Debt Service Coverage Amount of all Eligible Properties on such date, minus
(y)if an Other Guaranty Trigger has occurred (but a Collateral Trigger Event has not occurred), the aggregate amount of Other Unsecured Indebtedness including the Convertible Senior Notes.
“Borrowing Base Certificate” means the certificate in the form of Exhibit I hereto, or in such other form acceptable to the Administrative Agent, to be delivered to the Administrative Agent pursuant to Sections 7.2(i), 7.3 and 8.5(d) hereof.
“Borrowing Base Determination Date” means each date on which the Borrowing Base is certified in writing to the Administrative Agent, as follows:
(a)Quarterly. As of the last day of each Fiscal Quarter.
(b)Property Adjustments. Following each addition or deletion of an Eligible Property, the Borrowing Base Value shall be adjusted accordingly.
“Borrowing Base NOI” means for the most recent Rolling Period, the aggregate Property NOI attributable to the Eligible Properties.
“Borrowing Base Requirements” means with respect to the calculation of the Borrowing Base, collectively that:
(a)at all times such calculation shall be based on no less than fifteen (15) Eligible Properties with a gross leasable area of not less than 25,000 square feet each;
(b)the Borrowing Base Value shall not be less than $400,000,000;
(c)no more than 15% of the Borrowing Base Value may be comprised of Eligible Properties which are not retail properties, Retail Mixed-Use Properties or office properties (for the avoidance of doubt, an Eligible Property that exceeds this sublimit may be included in the calculation of Borrowing Base Value, provided any amount over 15% of the Borrowing Base Value is excluded from the calculation of the Borrowing Base Value);
(d)no more than 20% of the Borrowing Base Value may be comprised of any one Eligible Property (for the avoidance of doubt, an Eligible Property that exceeds this sublimit may be included in the calculation of Borrowing Base Value, provided any amount over 20% of the Borrowing Base Value is excluded from the calculation of the Borrowing Base Value);
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(e)no more than (i) (A) prior to September 30, 2025, 40% and (B) on and after September 30, 2025, 35% of the Borrowing Base Value may be comprised of Eligible Properties which are located in the same Major Target MSA Location and (ii) 25% of the Borrowing Base Value may be comprised of Eligible Properties which are located in the same Non-Major Target MSA Location (for the avoidance of doubt, an Eligible Property that exceeds any of the foregoing sublimits may be included in the calculation of Borrowing Base Value, provided any amount over 40%, 35% or 25%, as applicable, of the Borrowing Base Value is excluded from the calculation of the Borrowing Base Value);
(f)the Eligible Properties must have a weighted average Occupancy Rate of at least 85%; and
(g)no more than 15% of the Borrowing Base Value may be comprised of Eligible Properties constituting Eligible Leasehold Interests (for the avoidance of doubt, an Eligible Property that exceeds this sublimit may be included in the calculation of Borrowing Base Value, provided any amount over 15% of the Borrowing Base Value is excluded from the calculation of the Borrowing Base Value).
“Borrowing Base Value” means an amount equal to the sum of (a) for all Eligible Properties owned for more than twelve (12) months, the quotient of (i) the Borrowing Base NOI divided by (ii) the Capitalization Rate plus (b) for all Eligible Properties owned for twelve (12) months or less, the undepreciated book value (as defined by GAAP) of any such Eligible Property; provided that Borrowing Base Value shall be reduced by excluding a portion of the Property NOI or book value of any Eligible Properties attributable to any Eligible Properties that exceed the concentration limits in the Borrowing Base Requirements; provided, that for any individual Eligible Property, the Borrowing Base Value shall not be less than zero dollars ($0.00).
“Business Day” means (i) any day other than Saturday, Sunday or any other day on which commercial banks in Cleveland, Ohio or New York, New York are authorized or required by law to close and (ii) with respect to any matters relating to SOFR Rate Loans, a SOFR Business Day.
“Capital Expenditures” means, with respect to any Person for any period, the aggregate amount of all expenditures (whether paid in cash or accrued as a liability) by such Person during that period for the acquisition or leasing (pursuant to a Capital Lease) of fixed or capital assets or additions to property, plant, or equipment (including replacements, capitalized repairs, and improvements) which are required to be capitalized on the balance sheet of such Person in accordance with GAAP.
“Capital Lease” means any lease of Property which in accordance with GAAP is required to be capitalized on the balance sheet of the lessee.
“Capitalization Rate” means (i) 6.25% for existing single-tenant Properties occupied by tenants maintaining a (A) BBB- Rating or better from S&P’s or Fitch, or (B) Baa3 Rating or better from Moody’s, (ii) 6.50% for grocery anchored retail properties, (iii) 7.00% for all other retail and Retail Mixed-Use Properties, (iv) 8.00% for all other Properties not covered under the foregoing clauses (i), (ii) or (iii); provided, that for all Properties that are subject to Ground Leases, the
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applicable Capitalization Rate shall be determined as if the Borrower was the owner of the fully-completed building located on such Property.
“Capitalized Lease Obligation” means, for any Person, the amount of the liability shown on the balance sheet of such Person in respect of a Capital Lease determined in accordance with GAAP.
“CBA” means CME Group Benchmark Administration Ltd.
“CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. §§9601 et seq., and any future amendments.
“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, regulations, guidelines or directives thereunder or issued in connection therewith shall be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued 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 any of (a) the acquisition by any “person” or “group” (as such terms are used in sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) at any time that causes such person or group to become the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, as amended) of 51% or more of the outstanding capital stock or other equity interests of the Borrower on a fully-diluted basis, other than acquisitions of such interests by any party who is an officer or director of the Borrower as of the Closing Date or (b) the failure of individuals who are members of the board of directors (or similar governing body) of the Borrower on the Closing Date (together with any new or replacement directors whose initial nomination for election was approved by a majority of the directors who were either directors on the Closing Date or previously so approved) to constitute a majority of the board of directors (or similar governing body) of the Borrower.
“Closing Date” means the date of this Agreement or such later Business Day upon which each condition described in Section 7.2 shall be satisfied or waived in a manner acceptable to the Administrative Agent in its discretion.
“Code” means the Internal Revenue Code of 1986, as amended, and any successor statute thereto.
“Collateral Account” is defined in Section 9.4(b) hereof.
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“Collateral Documents” means the Mortgages, if any, and any other security agreement, pledge agreement or other security document that shall be executed by the Borrower or the Guarantors in favor of the Administrative Agent and the Lenders pursuant to Section 8.24(c) hereunder, as the same may be amended, modified, supplemented or restated from time to time.
“Collateral Trigger Event” is defined in Section 8.24(b) hereof.
“Commitment” means a 2029 Term Loan Commitment, an Incremental Revolving Commitment, or an Incremental Term Loan Commitment, as the context may require.
“Commitment Amount Increase” has the meaning assigned to such term in Section 1.15.
“Commitment Increase” has the meaning assigned to such term in Section 1.15.
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
“Compliance Certificate” is defined in Section 8.5(e) hereof.
“Conforming Changes” means, with respect to either the use or administration of Daily Simple SOFR or Term SOFR, or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “SOFR Business Day,” the definition of “Interest Period” or any similar or analogous definition (or the addition of a concept of “interest period”), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of Section 1.11 and other technical, administrative or operational matters) that the Administrative Agent reasonably decides may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of any such rate exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profit Taxes.
“Controlled Group” means all members of a controlled group of corporations and all trades or businesses (whether or not incorporated) under common control which, together with the Borrower, are treated as a single employer under Section 414 of the Code.
“Convertible Senior Notes” means the Borrower’s 3.875% Convertible Senior Notes due 2025.
“Covered Entity” has the meaning specified in Section 12.29.
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“Daily Simple SOFR” means, for any day (a “SOFR Rate Day”), a rate per annum equal to SOFR for the day (such day, the “SOFR Determination Day”) that is five (5) SOFR Business Days prior to (i) if such SOFR Rate Day is a SOFR Business Day, such SOFR Rate Day or (ii) if such SOFR Rate Day is not a SOFR Business Day, the SOFR Business Day immediately preceding such SOFR Rate Day, in each case, as and when SOFR for such SOFR Rate Day is published by the SOFR Administrator on the SOFR Administrator’s Website. If by 5:00 pm (New York City time) on the second (2nd) SOFR Business Day immediately following any SOFR Determination Day, SOFR in respect of such SOFR Determination Day has not been published on the SOFR Administrator’s Website and a Benchmark Replacement Date with respect to Daily Simple SOFR has not occurred, then SOFR for such SOFR Determination Day will be SOFR as published in respect of the first preceding SOFR Business Day for which such SOFR was published on the SOFR Administrator’s Website; provided, that any SOFR determined pursuant to this sentence shall be utilized for purposes of calculation of Daily Simple SOFR for no more than three (3) consecutive SOFR Rate Days. Any change in Daily Simple SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR without notice to the Borrower.
“Daily Simple SOFR Rate Loan” means a Loan bearing interest at a rate based on Adjusted Daily Simple SOFR.
“Debt Service Coverage Amount” means the principal amount of a loan that would be serviced by the Borrowing Base NOI for the Rolling Period most recently ended for which financial statements have been delivered pursuant to Section 8.5 hereof at a debt service coverage ratio of 1.40 to 1.00 with interest and principal payments (in each case assuming a 30-year amortization) at the greatest of (i) 5.75% per annum, (ii) a Term SOFR Rate Loan with an Interest Period of one (1) month (including the Applicable Margin) as of the last day of the most recent fiscal quarter and (iii) the 10-year treasury rate on the last day of such period plus 2.5%; provided that Borrowing Base NOI shall be reduced by excluding a portion of Property NOI attributable to Eligible Properties that exceed the concentration limits in the Borrowing Base Requirements.
“Debtor Relief Laws” means the Bankruptcy Code of the United States of America, 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 the occurrence of which would, with the passage of time or the giving of notice, or both, constitute an Event of Default.
“Defaulted Loan” is defined in the definition of “Defaulting Lender” in this Section 5.1.
“Defaulting Lender” means any Lender that (a) has failed to fund any portion of the Loans required to be funded by it hereunder (herein, a “Defaulted Loan”) within two (2) Business Days of the date required to be funded by it hereunder unless such failure has been cured, (b) has otherwise failed to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder (except for up to $25,000 in the aggregate from a Lender which is owing for less than five (5) Business Days) within two (2) Business Days of the date when due, unless the subject of a good faith dispute or unless such failure has been cured, (c) has experienced
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a Bankruptcy Event or (d) a receiver or conservator has been appointed for such Lender or (e) has become the subject of a Bail-In Action.
“Defaulting Lender Excess” means, with respect to any Defaulting Lender, the excess, if any, of such Defaulting Lender’s Applicable Percentage of the aggregate outstanding principal amount of Loans of all Lenders (calculated as if all Defaulting Lenders other than such Defaulting Lender had funded all of their respective Defaulted Loans) over the aggregate outstanding principal amount of all Loans of such Defaulting Lender.
“Defaulting Lender Period” means, with respect to any Defaulting Lender, the period commencing on the date upon which such Lender first became a Defaulting Lender and ending on the earliest of the following dates: the date on which (a) such Defaulting Lender is no longer the subject of a Bankruptcy Event or, if applicable, under the direction of a receiver or conservator, (b) the Defaulting Lender Excess with respect to such Defaulting Lender shall have been reduced to zero (whether by the funding by such Defaulting Lender of any Defaulted Loans of such Defaulting Lender or otherwise), and (c) such Defaulting Lender shall have delivered to the Borrower and the Administrative Agent a written reaffirmation of its intention to honor its obligations hereunder.
“Dividends” means any dividend paid (or declared and then payable), as the case may be, in cash on any equity security issued by the Borrower.
“Division” means the division of the assets, liabilities and/or obligations of a Person (the “Dividing Person”) among two or more Persons, whether pursuant to a “plan of division” or similar arrangement pursuant to Section 18-217 of the Delaware Limited Liability Company Act or any similar provision under the laws of any other applicable jurisdiction and pursuant to which the Dividing Person may or may not survive.
“EBITDA” means, for any period, determined on a consolidated basis of the Borrower and its Subsidiaries, in accordance with GAAP, the sum of net income (or loss) plus: (i) depreciation and amortization expense, to the extent included as an expense in the calculation of net income (or loss); (ii) Interest Expense; (iii) income tax expense, to the extent included as an expense in the calculation of net income (or loss); (iv) extraordinary, unrealized or non-recurring losses, including (A) impairment charges and (B) losses from the sale of real property, and (v) non-cash compensation paid to employees of the Borrower in the form of the Borrower’s equity securities, minus: (a) extraordinary, unrealized or non-recurring gains, including (x) the write-up or write-offs of assets and (y) gains (or losses) from the sale of real property, (b) income tax benefits, (c) stock-based compensation and (d) other non-cash items as mutually agreed upon by the Borrower and Administrative Agent. The Borrower’s Ownership Share of the EBITDA of its Unconsolidated Affiliates will be included when determining EBITDA of the Borrower and its Subsidiaries.
“EEA Financial Institution” means (a) any institution established in any EEA Member Country which is subject to the supervision of an applicable 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 institution established in an EEA Member Country which is a
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subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Electronic Copy” has the meaning specified in Section 8.23.
“Electronic Record” has the meaning specified in Section 8.23
“Electronic Signature” has the meaning specified in Section 8.23.
“Eligible Assignee” means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund, and (d) any other Person (other than a natural person) approved by (i) the Administrative Agent, and (ii) unless an Event of Default has occurred and is continuing, the Borrower (each such approval not to be unreasonably withheld or delayed); provided that notwithstanding the foregoing, “Eligible Assignee” shall not include the Borrower or any Guarantor or any of the Borrower’s or such Guarantor’s Affiliates or Subsidiaries.
“Eligible Leasehold Interest” means a leasehold interest where the Borrower or its Subsidiary is the lessee thereunder containing (a) the following terms and conditions: (i) a remaining term (inclusive of any unexercised extension options exercisable at lessee’s sole option) of thirty (30) years or more from the Closing Date or, with respect to any applicable Eligible Leasehold Interests, as previously approved by the Lenders prior to the Closing Date; (ii) the right of the lessee to mortgage and encumber its interest in the leased property without the consent of the lessor; (iii) the obligation of the lessor to give the holder of any mortgage Lien on such leased property written notice of any defaults on the part of the lessee and agreement of such lessor that such lease will not be terminated until such holder has had a reasonable opportunity to cure or complete foreclosure, and fails to do so; (iv) transferability and/or assignment of the lessee’s interest under such lease, including the ability to sublease, without consent; (v) such other rights customarily required by mortgagees making a loan secured by the interest of the holder of the leasehold estate demised pursuant to a ground lease; and (vi) in the event that such lease is terminated, such holder shall have the option to enter into a new lease having terms substantially identical to those contained in the terminated lease; or (b) terms and conditions otherwise reasonably acceptable to the Administrative Agent.
“Eligible Property” means, as of any Borrowing Base Determination Date, any Property owned by the Borrower, a Guarantor or a 1031 Property Holder which satisfies the following conditions:
(a)Is real property one hundred percent (100%) owned in fee simple, individually or collectively, by the Borrower, any Guarantor or any 1031 Property Holder, or is leased pursuant to an Eligible Leasehold Interest;
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(b)Is a Property located in the contiguous United States;
(c)If such Property is owned by the Borrower, (i) neither the Borrower’s beneficial ownership interest in such Property nor the Property is subject to any Lien (other than Permitted Liens or Liens in favor of the Administrative Agent) or to any negative pledge and (ii) the Borrower has the unilateral right (including the absence of any restrictions in an Eligible Leasehold Interest) to sell, transfer or otherwise dispose of such Property and to create a Lien on such Property as security for Indebtedness for Borrowed Money;
(d)If such Property is owned by a Material Subsidiary, (i) neither the Borrower’s beneficial ownership interest in such Material Subsidiary nor the Property is subject to any Liens (other than Permitted Liens or Liens in favor of the Administrative Agent) or any negative pledge, (ii) the Material Subsidiary has the unilateral right (including the absence of any restrictions in an Eligible Leasehold Interest) to sell, transfer or otherwise dispose of such Property and to create a Lien on such Property as security for Indebtedness for Borrowed Money, and (iii) the Material Subsidiary has provided an Additional Guarantor Supplement or other Guaranty to the Administrative Agent pursuant to Section 4.2 hereof;
(e)If such Property is owned by a 1031 Property Holder, (i) neither the Borrower’s beneficial ownership in the Property nor the Property itself is subject to (x) any Liens (other than Permitted Liens or Liens in favor of the Administrative Agent), or (y) any negative pledge, (ii) the 1031 Property Holder has the unilateral right (including the absence of any restrictions in an Eligible Leasehold Interest) to sell, transfer or otherwise dispose of such Property and to create a Lien on such Property as security for Indebtedness for Borrowed Money;
(f)The Administrative Agent shall have received to the extent requested historic operating statements for such Property for the previous three (3) years, if available, and historic rent rolls for such Property for the previous three (3) years, if available;
(g)That such Property, based on the Borrower’s or any Material Subsidiary’s actual knowledge, is free of all material structural defects or major architectural deficiencies, material title defects (other than Permitted Liens), material environmental conditions or other adverse matters which, individually or collectively, materially impair the value of such Property and, if the Property has an underground storage tank located thereon or any other material environmental concern as determined by the Administrative Agent, then the Administrative Agent shall have received satisfactory environmental assessments, including, to the extent requested, Phase I and Phase II reports, the results of which disclose environmental conditions which are satisfactory to the Administrative Agent in its sole discretion;
(h)With respect to such Property, any Tenant under a Significant Lease is not more than 60 days past due with respect to any monthly rent payment obligations under such Lease;
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(i)For each such Property, the Borrower, to the extent not previously provided, shall have delivered to the Administrative Agent a copy, certified as true and correct by the Borrower, of each of the following: if the Property Owner is not the Borrower, the Property Owner’s articles of incorporation, by-laws, partnership agreements, operating agreements, as applicable, and certificates of existence, good standing and authority to do business from each appropriate state authority, and partnership, corporate or limited liability company, as applicable, authorizations authorizing the execution, delivery and performance of the Additional Guarantor Supplement all certified to be true and complete by a duly authorized officer of such Property Owner; and
(j)The Property is not an Asset Under Development or a Land Asset.
“Environmental Claim” means any investigation, notice, violation, demand, allegation, action, suit, injunction, judgment, order, consent decree, penalty, fine, lien, proceeding or claim (whether administrative, judicial or private in nature) arising (a) pursuant to, or in connection with an actual or alleged violation of, any Environmental Law, (b) in connection with any Hazardous Material, (c) from any abatement, removal, remedial, corrective or response action in connection with a Hazardous Material, Environmental Law or order of a governmental authority or (d) from any actual or alleged damage, injury, threat or harm to health, safety, natural resources or the environment.
“Environmental Law” means any current or future Legal Requirement pertaining to (a) the protection of health, safety and the indoor or outdoor environment, (b) the conservation, management or use of natural resources and wildlife, (c) the protection or use of surface water or groundwater, (d) the management, manufacture, possession, presence, use, generation, transportation, treatment, storage, disposal, Release, threatened Release, abatement, removal, remediation or handling of, or exposure to, any Hazardous Material or (e) pollution (including any Release to air, land, surface water or groundwater), and any amendment, rule, regulation, order or directive issued thereunder.
“Equity Interests” means with respect to any Person, any share of capital stock of (or other ownership or profit interests in) such Person, any warrant, option or other right for the purchase or other acquisition from such Person of any share of capital stock of (or other ownership or profit interests in) such Person whether or not certificated, any security convertible into or exchangeable for any share of capital stock of (or other ownership or profit interests in) such Person or warrant, right or option for the purchase or other acquisition from such Person of such shares (or such other interests), and any other ownership or profit interest in such Person (including, without limitation, partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such share, warrant, option, right or other interest is authorized or otherwise existing on any date of determination.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, or any successor statute thereto.
“ESG” is defined in Section 1.18 hereof.
“ESG Amendment” is defined in Section 1.18 hereof.
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“ESG Pricing Provisions” is defined in Section 1.18 hereof.
“Erroneous Payment” has the meaning assigned to such term in Section 12.30.
“Erroneous Payment Deficiency Assignment” has the meaning assigned to such term in Section 12.30.
“Erroneous Payment Impacted Class” has the meaning assigned to such term in Section 12.30(d).
“Erroneous Payment Return Deficiency” has the meaning assigned to such term in Section 12.30(d).
“Erroneous Payment Subrogation Rights” has the meaning assigned to such term in Section 12.30(d).
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
“Event of Default” means any event or condition identified as such in Section 9.1 hereof.
“Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason not to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the guarantee of such Guarantor or the grant of such security interest becomes effective with respect to such related Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such guarantee or security interest is or becomes illegal.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or 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 1.13 hereof) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 12.1 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
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to comply with Section 12.1(b) or Section 12.1(d), and (d) any U.S. federal withholding Taxes imposed under FATCA.
“Facility” means the 2029 Term Credit Facility, any Incremental Revolving Credit Facility, or any Incremental Term Credit Facility, as the context may require.
“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.
“FCPA” means the Foreign Corrupt Practices Act, 15 U.S.C. §§78dd-1, et seq.
“Federal Funds Rate” means, for any day, the rate per annum (rounded upward to the nearest one one-hundredth of one percent (1/100 of 1%)) announced by the Federal Reserve Bank of Cleveland on such day as being the weighted average of the rates on overnight federal funds transactions arranged by federal funds brokers on the previous trading day; 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 the Administrative Agent on such day on such transactions as determined by the Administrative Agent; provided that in no event shall the Federal Funds Rate be less than 0.00%.
“Federal Reserve Bank of New York’s Website” means the website of the Federal Reserve Bank of New York at http://www.newyorkfed.org, or any successor source.
“Fee Letters” means, (i) the letter agreement, dated August 29, 2024, among the Borrower, KBCM and KeyBank, (ii) the fee letter dated September 26, 2024 by and among the Borrower, PNC Bank, National Association and PNC Capital Markets LLC, and (iii) the letter agreement, dated September 19, 2024, among the Borrower, Regions Bank, and Regions Capital Markets.
“Fiscal Quarter” means each of the three-month periods ending on March 31, June 30, September 30 and December 31.
“Fiscal Year” means the twelve-month period ending on December 31.
“Fitch” means Fitch Ratings, or any successor thereto.
“Fixed Charges” means, for any Rolling Period, (a) Interest Expense, plus (b) scheduled principal amortization paid on Total Indebtedness (exclusive of any balloon payments or prepayments of principal paid on such Total Indebtedness), plus (c) Dividends and required distributions on the Borrower’s preferred equity securities for such Rolling Period, plus (d) all income taxes (federal, state and local) paid by the Borrower in cash during such Rolling Period, plus (e) cash payments of base rent under Eligible Leasehold Interests made or to be made during such period, unless such payments are deducted from the calculation of Property NOI and EBITDA; provided, that for purposes of calculating income taxes under clause (d) for any Rolling
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Period, such amount shall not include any income taxes paid from and in connection with any extraordinary gain (or loss) for such Rolling Period. The Borrower’s Ownership Share of the Fixed Charges of its Unconsolidated Affiliates will be included when determining Fixed Charges of the Borrower and its Subsidiaries.
“Floor” means the rate per annum of interest equal to 0.00%.
“FRB” means the Board of Governors of the Federal Reserve System of the United States.
“Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.
“Funds Transfer and Deposit Account Liability” means the liability of the Borrower, or any Subsidiary owing to any of the Lenders, or any Affiliates of such Lenders, arising out of (a) the execution or processing of electronic transfers of funds by automatic clearing house transfer, wire transfer or otherwise to or from deposit accounts of the Borrower and/or any Subsidiary now or hereafter maintained with any of the Lenders or their Affiliates, (b) the acceptance for deposit or the honoring for payment of any check, draft or other item with respect to any such deposit accounts, and (c) any other deposit, disbursement, and cash management services afforded to the Borrower or any Subsidiary by any of such Lenders or their Affiliates.
“GAAP” means generally accepted accounting principles set forth from time to time 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 agencies with similar functions of comparable stature and authority within the U.S. accounting profession), which are applicable to the circumstances as of the date of determination.
“Governmental Authority” means the government of the United States of America 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).
“Ground Lease” means a long term lease of real Property granted by the fee owner of the real Property with the Borrower or any Subsidiary as lessor and Tenant as lessee.
“Guarantor” and “Guarantors” are defined in Section 4.1 hereof.
“Guaranty” and “Guaranties” are defined in Section 4.1 hereof.
“Hazardous Material” means any substance, chemical, compound, product, solid, gas, liquid, waste, byproduct, pollutant, contaminant or material which is hazardous or toxic, and includes, without limitation, (a) asbestos, polychlorinated biphenyls and petroleum (including crude oil or any fraction thereof) and (b) any material classified or regulated as “hazardous” or “toxic” or words of like import pursuant to an Environmental Law.
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“Hazardous Material Activity” means any activity, event or occurrence involving a Hazardous Material, including, without limitation, the manufacture, possession, presence, use, generation, transportation, treatment, storage, disposal, Release, threatened Release, abatement, removal, remediation, handling of or corrective or response action to any Hazardous Material other than any activity, event or occurrence performed in compliance with or allowed under applicable law.
“Hedging Agreement” means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of Borrower or any Subsidiary shall be a Hedging Agreement.
“Hedging Counterparty” means any Person that, (a) at the time it enters into a Hedging Agreement with the Borrower or any Subsidiary is a Lender, an Affiliate of a Lender, the Administrative Agent or an Affiliate of the Administrative Agent or (b) at the time it (or its Affiliate) becomes a Lender or the Administrative Agent (including on the Closing Date or any amendment date), is a party to a Hedging Agreement with the Borrower or any Subsidiary, in each case whether or not such Person remains a Lender or the Administrative Agent (or an Affiliate of either).
“Hedging Liability” means the liability of the Borrower or any Subsidiary to any Hedging Counterparty in respect of any Hedging Agreement as the Borrower or such Subsidiary, as the case may be, may from time to time enter into with any one or more Hedging Counterparties.
“Incremental Amendment” has the meaning assigned to such term in Section 1.15.
“Incremental Commitment” has the meaning assigned to such term in Section 1.15.
“Incremental Credit” means each Incremental Revolving Credit Facility or Incremental Term Credit Facility.
“Incremental Lender” means each Incremental Revolving Lender or Incremental Term Loan Lender.
“Incremental Loan” means each Incremental Revolving Loan or Incremental Term Loan.
“Incremental Revolving Credit Facility” means the credit facility for Incremental Revolving Loans established in accordance with Section 1.15. Unless otherwise specified herein, each tranche of Incremental Revolving Commitments or Incremental Revolving Loans shall constitute a separate Incremental Revolving Credit Facility.
“Incremental Revolving Commitment” has the meaning assigned to such term in Section 1.15.
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“Incremental Revolving Lender” means, at any time, any Lender that has an Incremental Term Loan Commitment or holds Incremental Term Loans at such time, including each assignee Lender pursuant to Section 12.12 hereof.
“Incremental Revolving Loan” has the meaning assigned to such term in Section 1.15.
“Incremental Revolving Percentage” means for each Incremental Revolving Lender and each Incremental Revolving Credit Facility, the percentage of the aggregate Incremental Revolving Commitments represented by such Lender’s portion thereof or, if such Incremental Revolving Commitments have been terminated, the percentage held by such Lender of the aggregate principal amount of all Incremental Revolving then outstanding.
“Incremental Term Credit Facility” means each credit facility for Incremental Term Loans established in accordance with Section 1.15. Unless otherwise specified herein, each tranche of Incremental Term Loan Commitments or Incremental Term Loans shall constitute a separate Incremental Term Credit Facility.
“Incremental Term Loan” has the meaning assigned to such term in Section 1.15.
“Incremental Term Loan Commitment” has the meaning assigned to such term in Section 1.15.
“Incremental Term Loan Lender” means, at any time, any Lender that has an Incremental Term Loan Commitment or holds Incremental Term Loans at such time, including each assignee Lender pursuant to Section 12.12 hereof.
“Incremental Term Loan Percentage” means for each Incremental Term Loan Lender and each Incremental Term Credit Facility, the percentage of the aggregate Incremental Term Loan Commitments represented by such Lender’s portion thereof or, if such Incremental Term Loan Commitments have been terminated, the percentage held by such Lender of the aggregate principal amount of all Incremental Term Loans then outstanding.
“Indebtedness for Borrowed Money” means for any Person (without duplication) (a) all indebtedness created, assumed or incurred in any manner by such Person representing money borrowed (including by the issuance of debt securities), (b) all indebtedness for the deferred purchase price of property or services (other than trade accounts payable arising in the ordinary course of business), (c) all indebtedness secured by any Lien upon Property of such Person, whether or not such Person has assumed or become liable for the payment of such indebtedness, (d) all Capitalized Lease Obligations of such Person, (e) all obligations of such Person on or with respect to letters of credit, bankers’ acceptances and other extensions of credit whether or not representing obligations for borrowed money and (f) all net obligations of such Person under any interest rate, foreign currency, and/or commodity swap, exchange, cap, collar, floor, forward, future or option agreement, or any similar interest rate, currency or commodity hedging arrangement.
“Indemnified Taxes” means (a) all Taxes other than Excluded Taxes and (b) to the extent not otherwise described in (a), Other Taxes.
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“Initial Properties” means collectively the Properties listed on Schedule 1.1 and “Initial Property” means any of such Properties.
“Interest Expense” means, with respect to a Person for any period of time, the interest expense whether paid, accrued or capitalized (without deduction of consolidated interest income) of such Person for such period. Interest Expense shall exclude any amortization of (i) deferred financing fees, including the write-off such fees relating to the early retirement of such related Indebtedness for Borrowed Money, and (ii) debt discounts (but only to the extent such discounts do not exceed 3.0% of the initial face principal amount of such debt). The Borrower’s Ownership Share of the Interest Expense of its Unconsolidated Affiliates will be included when determining Interest Expense of the Borrower and its Subsidiaries.
“Interest Payment Date” means (a) with respect to any Term SOFR Rate Loan, the last day of each Interest Period with respect to such Term SOFR Rate Loan and, if the applicable Interest Period is longer than (1) one month, on each day occurring every three (3) months after the commencement of such Interest Period, (b) with respect to any Daily Simple SOFR Rate Loan, the last day of every calendar month, (c) with respect to any Base Rate Loan, the last day of every calendar month, and (d) with respect to any Term SOFR Rate Loan, Daily Simple SOFR Rate Loan, or Base Rate Loan, the Maturity Date.
“Interest Period” means the period commencing on the date a Borrowing of Term SOFR Rate Loans is advanced, continued, or created by conversion and ending one (1), three (3), or six (6) months thereafter, provided, however, that:
(i)no Interest Period shall extend beyond the Maturity Date, as applicable;
(ii)no Interest Period with respect to any portion of the Loans shall extend beyond a date on which the Borrower is required to make a scheduled payment of principal on the Loans, unless the sum of (a) the aggregate principal amount of Loans that are Base Rate Loans plus (b) the aggregate principal amount of Loans that are Term SOFR Rate Loans with Interest Periods expiring on or before such date equals or exceeds the principal amount to be paid on the Loans on such payment date;
(iii)whenever the last day of any Interest Period would otherwise be a day that is not a Business Day, the last day of such Interest Period shall be extended to the next succeeding Business Day; provided that, if such extension would cause the last day of an Interest Period for a Borrowing of Term SOFR Rate Loans to occur in the following calendar month, the last day of such Interest Period shall be the immediately preceding Business Day;
(iv)for purposes of determining an Interest Period for a Borrowing of Term SOFR Rate Loans, a month means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month; provided, that if there is no numerically corresponding day in the month in which such an Interest Period is to end or if such an Interest Period begins on the last Business Day of a calendar month, then such Interest Period shall end on the last Business Day of the calendar month in which such Interest Period is to end; and
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(v)no tenor that has been removed from this definition pursuant to Section 10.6 (or the availability of which has been temporarily suspended pursuant to Section 10.2) below shall be available for specification in such Borrowing Request or Notice of Continuation/Conversion.
“KBCM” means, KeyBanc Capital Markets Inc. and its successors.
“KeyBank” means, KeyBank National Association and its successors.
“KPIs” is defined in Section 1.18 hereof.
“Land Assets” means any real property which is not an Asset Under Development and on which no significant improvements have been constructed; provided, that real property that is adjacent to an Eligible Property but is undeveloped shall not constitute “Land Assets”.
“Lease” means each existing or future lease, sublease, license, or other agreement under the terms of which any Person has or acquires any right to occupy or use any Property of the Borrower or any Subsidiary, or any part thereof, or interest therein, as the same may be amended, supplemented or modified.
“Legal Requirement” means any treaty, convention, statute, law, regulation, ordinance, license, permit, governmental approval, injunction, judgment, order, consent decree or other requirement of any governmental authority, whether federal, state, or local.
“Lenders” means and includes KeyBank and the other financial institutions from time to time party to this Agreement, including each assignee Lender pursuant to Section 12.12 hereof and each Incremental Lender.
“Lending Office” is defined in Section 10.4 hereof.
“Leverage Ratio Increase Period” means, so long as no Default or Event of Default has then occurred and is continuing, a period commencing on, (i) the first day of the Fiscal Quarter in which the Borrower notifies Administrative Agent in writing that a Material Acquisition has occurred and ending (ii) on the last day of the third (3rd) full Fiscal Quarter after such Material Acquisition; provided, that (x) there shall not be more than two (2) Leverage Ratio Increase Periods during the term of the 2029 Credit Facility and (y) there shall not be two consecutive Leverage Ratio Increase Periods.
“Lien” means any mortgage, lien, security interest, pledge, charge or encumbrance of any kind in respect of any Property, including the interests of a vendor or lessor under any conditional sale, Capital Lease or other title retention arrangement.
“Loan” means any 2029 Term Loan, Incremental Revolving Loan, or Incremental Term Loan, whether outstanding as a Base Rate Loan, Daily Simple SOFR Rate Loan or Term SOFR Rate Loan or otherwise, each of which is a “type” of Loan hereunder.
“Loan Documents” means this Agreement, the Notes (if any), the Guaranties, if any, each Incremental Amendment, the Collateral Documents, if any, and each other instrument or document
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to be delivered hereunder or thereunder or otherwise in connection therewith. Deposit account agreements, cash management agreements and other documents executed in connection with Funds Transfer and Deposit Account Liability (other than deposit account control agreements, if any) are not Loan Documents hereunder.
“Major Target MSA Location” means each of the following MSAs: Atlanta, GA; Las Vegas, NV; Denver, CO; Phoenix, AZ; Austin, TX; Houston, TX; Dallas, TX; Nashville, TN; Tampa, FL; Orlando, FL; Miami, FL; Charlotte, NC; Raleigh, NC; and Washington, DC.
“Material Acquisition” means any single transaction or series of related transactions for the purpose of, or resulting, directly or indirectly, in, the acquisition (including, without limitation, a merger or consolidation or any other combination with another Person) of a Person or assets by the Parent (directly or indirectly) that has a gross purchase price equal to or greater than ten percent (10.0%) of the then current Total Asset Value (without giving effect to such transactions).
“Material Adverse Effect” means (a) a material adverse change in, or material adverse effect upon, the operations, business, Property, or financial condition of the Borrower or of the Borrower and its Subsidiaries taken as a whole, (b) a material impairment of the ability of the Borrower or any Subsidiary to perform its obligations under any Loan Document or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower or any Subsidiary of any Loan Document or the rights and remedies of the Administrative Agent and the Lenders thereunder.
“Material Subsidiary” means, each Subsidiary that owns an Eligible Property included in the Borrowing Base Value.
“Maturity Date” means the earlier of (i) (a) with respect to the 2029 Term Credit Facility, September 30, 2029, and (b) with respect to any Incremental Credit Facility, the maturity date for such Incremental Credit Facility as set forth in the applicable Incremental Amendment and (ii) the date on which the principal amount of the Loans has been declared or automatically has become due and payable (whether by acceleration or otherwise); provided, however, that, in each case, if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.
“Moody’s” means Moody’s Investors Service, Inc., or any successor thereof.
“Mortgages” means, collectively, each mortgage and deed of trust delivered to the Administrative Agent pursuant to Section 8.24(c) hereunder, as the same may be amended, modified, supplemented or restated from time to time.
“MSA” means any major metropolitan area of the United States of America that has a population size that is in the fifty (50) largest metropolitan areas of the United States of America.
“Non-Major Target MSA Location” means any MSA other than a Major Target MSA Location.
“Note” and “Notes” are defined in Section 1.10(d) hereof.
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“Obligations” means all obligations of the Borrower to pay principal and interest on the Loans, all fees and charges payable hereunder, all other payment obligations of the Borrower or any of its Subsidiaries arising under or in relation to any Loan Document and all Hedging Liability, in each case whether now existing or hereafter arising, due or to become due, direct or indirect, absolute or contingent, and howsoever evidenced, held or acquired. For the avoidance of doubt, Obligations shall not include any Funds Transfer and Deposit Account Liability.
“Occupancy Rate” means for any Property, the percentage of the rentable square footage of such Property occupied by bona fide Tenants of such Property or leased by such Tenants pursuant to bona fide Tenant Leases (including upon Tenant Lease execution but prior to occupancy), in each case, which (a) with respect to Significant Leases, are not more than 60 days in arrears on base rental or other similar payments due under the Significant Leases and (b) Tenants are not subject to a then continuing Bankruptcy Event, or if subject to a then continuing Bankruptcy Event (i) the trustee in bankruptcy of such tenant shall have accepted and assumed such Lease or the Tenant shall be in compliance with the rental payments described above in clause (a); (ii) to the extent that the Tenant shall have filed and the bankruptcy court shall have approved the Tenant’s plan for reorganization, the Tenant shall be performing its obligations pursuant to the approved plan of reorganization; or (iii) is otherwise reasonably acceptable to the Administrative Agent.
“OFAC” means the United States Department of Treasury Office of Foreign Assets Control.
“OFAC Event” means the event specified in Section 8.13(c) hereof.
“OFAC Sanctions Programs” means all laws, regulations, and Executive Orders administered by OFAC, including without limitation, the Bank Secrecy Act, anti-money laundering laws (including, without limitation, the Patriot Act), and all economic and trade sanction programs administered by OFAC, any and all similar United States federal laws, regulations or Executive Orders (whether administered by OFAC or otherwise), and any similar laws, regulators or orders adopted by any State within the United States.
“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Guaranty Trigger” is defined in Section 8.24(b) hereof.
“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 1.13 hereof).
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“Other Unsecured Indebtedness” means any Unsecured Indebtedness (other than the Obligations) that is pari passu with or structurally senior to the Obligations and is recourse to the Borrower, including, without limitation, the Convertible Senior Notes.
“Ownership Share” means with respect to any Subsidiary of a Person (other than a Wholly Owned Subsidiary) or any Unconsolidated Affiliate of a Person, the greater of (a) such Person’s relative nominal direct and indirect ownership interest (expressed as a percentage) in such Subsidiary or Unconsolidated Affiliate or (b) such Person’s relative direct and indirect economic interest (calculated as a percentage) in such Subsidiary or Unconsolidated Affiliate determined in accordance with the applicable provisions of the declaration of trust, articles or certificate of incorporation, articles of organization, partnership agreement, joint venture agreement or other applicable organizational document of such Subsidiary or Unconsolidated Affiliate.
“Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56.
“Payment Recipient” has the meaning assigned to such term in Section 12.30(a).
“PBGC” means the Pension Benefit Guaranty Corporation or any Person succeeding to any or all of its functions under ERISA.
“Permitted Liens” means each of the following: (a) Liens for taxes, assessments and governmental charges or levies to the extent not required to be paid under Section 8.3; (b) Liens imposed by law, such as materialmen’s, mechanics’, carriers’, workmen’s and repairmen’s Liens and other similar Liens arising in the ordinary course of business securing obligations that are not overdue or that are being contested in good faith and by proper proceedings and as to which appropriate reserves are being maintained; (c) pledges or deposits to secure obligations under workers’ compensation laws or similar legislation or to secure public or statutory obligations; (d) easements, zoning restrictions, rights of way and other encumbrances on title to real property that, in the aggregate, do not materially and adversely affect the value of such property or the use of such property for its present purposes; (e) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of like nature incurred in the ordinary course of business; (f) Liens in favor of the United States of America for amounts paid to the Borrower or any Subsidiary as progress payments under government contracts entered into by it; (g) attachment, judgment and other similar Liens arising in connection with court, reference or arbitration proceedings, provided that the same have been in existence less than twenty (20) days, that the same have been discharged or that execution or enforcement thereof has been stayed pending appeal; (h) the rights of tenants or lessees under leases or subleases not interfering with the ordinary conduct of business of such Person; (i) Liens in favor of the Administrative Agent for its benefit and the benefit of the Lenders; (j) Liens in favor of the Borrower or a Guarantor securing obligations owing by a Subsidiary to the Borrower or a Guarantor, which obligations have been subordinated to the obligations owing by the Borrower and the Guarantors under the Loan Documents on terms satisfactory to the Administrative Agent; (k) Liens in existence as of the Closing Date and set forth in Schedule 8.7, (l) Liens on Properties that are not Eligible Properties and whose Borrowing Base Values are not included in the calculation of the Borrowing Base and (m) Liens on the Equity Interest in any direct Material Subsidiary securing Other Unsecured
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Indebtedness (which Other Unsecured Indebtedness will be subtracted under clause (y) of each Borrowing Base calculation), provided, that prior to the grant of any such Lien securing Other Unsecured Indebtedness, the Administrative Agent and the holders of such Other Unsecured Indebtedness have entered into an intercreditor agreement on terms reasonably acceptable to the Administrative Agent.
“Person” means an individual, partnership, corporation, limited liability company, association, trust, unincorporated organization or any other entity or organization, including a government or agency or political subdivision thereof.
“Plan” means any employee pension benefit plan covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Code that either (a) is maintained by a member of the Controlled Group for employees of a member of the Controlled Group or (b) is maintained pursuant to a collective bargaining agreement or any other arrangement under which more than one employer makes contributions and to which a member of the Controlled Group is then making or accruing an obligation to make contributions or has within the preceding five plan years made contributions.
“Property” or “Properties” means, as to any Person, all types of real, personal, tangible, intangible or mixed property, including property encumbered by Ground Leases or owned pursuant to Eligible Leasehold Interests, owned by such Person whether or not included in the most recent balance sheet of such Person and its subsidiaries under GAAP, including any Eligible Property owned by the Borrower or any of its Subsidiaries.
“Property Expenses” means the costs (including, but not limited to, payroll, taxes, assessments, insurance, utilities, landscaping and other similar charges) of operating and maintaining any real Property, which are the responsibility of the Borrower and its Subsidiaries that are not paid directly by the tenant, including without limitation, the Annual Capital Expenditure Reserve and the greater of (a) 3% of rents and (b) actual management fees paid in cash, but excluding depreciation, amortization and interest costs. The Borrower’s Ownership Share of assets held by Unconsolidated Affiliates shall be included when determining Property Expenses shall be included when determining Property Income of the Borrower and its Subsidiaries, subject to the adjustments set forth in this definition
“Property Income” means cash rents (excluding non-cash straight-line rent) and other cash revenues received by the Borrower and its Subsidiaries in the ordinary course for any real property, but excluding security deposits and prepaid rent except to the extent applied in satisfaction of tenants’ obligations for rent. The Borrower’s Ownership Share of assets held by Unconsolidated Affiliates shall be included when determining Property Income of the Borrower and its Subsidiaries, subject to the adjustments set forth in this definition.
“Property Net Operating Income” or “Property NOI” means, with respect to any Property for any Rolling Period (without duplication), the aggregate amount of (i) Property Income for such period minus (ii) Property Expenses for such period. The Borrower’s Ownership Share of assets held by Unconsolidated Affiliates shall be included when determining Property Net Operating Income of the Borrower and its Subsidiaries, subject to the adjustments set forth in this definition.
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“Property Owner” means the Person who owns fee title interest in and to a Property.
“Qualified ECP Guarantor” means, in respect of any Swap Obligation, each Guarantor that has total assets exceeding $10,000,000 at the time the relevant guarantee or grant of the relevant security interest becomes effective with respect to such Swap Obligation or such other person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
“Rating” means the debt rating provided by S&P, Moody’s or Fitch with respect to the unsecured senior long-term non-credit enhanced debt of a Person.
“RCRA” means the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 and Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. §§6901 et seq., and any future amendments.
“Recipient” means (a) the Administrative Agent and (b) any Lender, as applicable.
“REIT” means a “real estate investment trust” in accordance with Section 856 et. seq. of the Code.
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.
“Release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, migration, dumping, or disposing into the indoor or outdoor environment, including, without limitation, the abandonment or discarding of barrels, drums, containers, tanks or other receptacles containing or previously containing any Hazardous Material.
“Relevant Governmental Body” means the Federal Reserve Board or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board or the Federal Reserve Bank of New York, or any successor thereto.
“Required Lenders” means, as of the date of determination thereof, (i) at any time in which there are only two Lenders, both Lenders and (ii) at any other time Lenders whose outstanding Loans constitute more than 50% of the sum of the Total Outstandings. The outstanding Loans of any Defaulting Lender shall be disregarded in determining Required Lenders at any time.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” means, with respect to the Borrower or any of its Subsidiaries, the chief executive officer, the chief financial officer, chief accounting officer, chief legal officer or the chief operating officer of the Borrower or such Subsidiary.
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“Restricted Payments” means dividends on or other distributions in respect of any class or series of Stock, Stock Equivalents or other Equity Interests of the Borrower or its Subsidiaries or the direct or indirect purchase, redemption, acquisition, or retirement of any of the Borrower’s or a Subsidiaries’ Stock, Stock Equivalents or other Equity Interest.
“Retail Mixed-Use Properties” means real property with not less than 20% of gross leasable area occupied by Tenants utilizing such property for retail space.
“Rolling Period” means, as of any date, the four Fiscal Quarters ending on or immediately preceding such date.
“S&P” means S&P Global, Inc. or any successor thereof.
“Secured Indebtedness” means all Indebtedness for Borrowed Money of the Borrower and its Subsidiaries, that is secured by a Lien, other than the Obligations. The Borrower’s Ownership Share of Secured Indebtedness held by Unconsolidated Affiliates shall be included when determining Secured Indebtedness of the Borrower and its Subsidiaries.
“Secured Recourse Indebtedness” means Secured Indebtedness for which recourse for payment (except for customary exceptions for fraud, misapplication of funds, environmental indemnities and other similar exceptions to recourse liability) is to the Borrower or any Guarantor, other than the Obligations.
“Significant Lease” means, as to any particular Property, each Lease which constitutes 20% or more of all base rent revenue of such Property.
“SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“SOFR Administrator’s Website” means the website of the Federal Reserve Bank of New York, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.
“SOFR Business Day” means any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
“SOFR Determination Day” has the meaning specified in the definition of “Daily Simple SOFR”.
“SOFR Index Adjustment” means for any calculation with respect to a Base Rate Loan, a Daily Simple SOFR Rate Loan or a Term SOFR Rate Loan, a percentage per annum as set forth below for the applicable Type of such Loan:
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Daily Simple SOFR Rate Loans: 0.10%
Term SOFR Rate Loans (for all Interest Periods): 0.10%
“SOFR Rate Loan” means each Daily Simple SOFR Rate Loan and each Term SOFR Rate Loan.
“SOFR Rate Day” has the meaning specified in the definition of “Daily Simple SOFR”.
“Stock” means shares of capital stock, beneficial or partnership interests, participations or other equivalents (regardless of how designated) of or in a corporation or equivalent entity, whether voting or non-voting, and includes, without limitation, common stock.
“Stock Equivalents” means all securities (other than Stock) convertible into or exchangeable for Stock at the option of the holder, and all warrants, options or other rights to purchase or subscribe for any stock, whether or not presently convertible, exchangeable or exercisable.
“Subsidiary” means, as to any particular parent corporation or organization, any other corporation or organization more than 50% of the outstanding Voting Stock of which is at the time directly or indirectly owned by such parent corporation or organization or by any one or more other entities which are themselves subsidiaries of such parent corporation or organization. Unless otherwise expressly noted herein, the term “Subsidiary” means a Subsidiary of the Borrower or of any of its direct or indirect Subsidiaries.
“Sustainability Structuring Agent” means KeyBank National Association, as sustainability structuring agent under the terms of this Agreement, and any of its successors.
“Sustainability Linked Loan Principles” means the Sustainability Linked Loan Principles (as published in February 2023 and updated on April 20, 2023 by the Loan Market Association, Asia Pacific Loan Market Association and Loan Syndications & Trading Association) or such other principles and metrics mutually agreed to by the Borrower and the Sustainability Structuring Agent (each acting reasonably).
“Swap Obligation” means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“Tangible Net Worth” means for each applicable period, total shareholder’s equity on the Borrower’s consolidated balance sheet as reported in its Form 10-K or 10-Q for such period, plus (i) accumulated depreciation and amortization and (ii) unrealized losses related to marketable securities, minus, to the extent included when determining stockholders’ equity, (x) all unrealized gains related to marketable securities and (y) all amounts appearing on the assets side of the Borrower’s consolidated balance sheet representing an intangible asset under GAAP (other than lease intangibles, net of lease liabilities) net of all amounts appearing on the liabilities side of its consolidated balance sheet representing an intangible liability under GAAP, in each case as determined on a consolidated basis in accordance with GAAP.
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“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including back up withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Tenant” means any Person leasing, subleasing or otherwise occupying any portion of a Property under a Lease or other occupancy agreement with the Borrower or a Subsidiary that is the direct owner or lessor of such Property.
“Term Lender” means (a) on the Closing Date, any Lender that has a 2029 Term Loan Commitment at such time and (b) at any time after the Closing Date, any Lender that has a Term Loan Commitment or holds Term Loans at such time.
“Term Loan” means the 2029 Term Loans and any other Incremental Term Loans made pursuant to Section 1.15 hereof.
“Term SOFR” means,
(a) for any calculation with respect to a Term SOFR Rate Loan, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the “Term SOFR Lookback Day”) that is two SOFR Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Term SOFR Lookback Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding SOFR Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding SOFR Business Day is not more than three SOFR Business Days prior to such Term SOFR Lookback Day, and
(b) for any calculation with respect to a Base Rate Loan on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day, the “Base Rate Term SOFR Lookback Day”) that is two SOFR Business Days prior to such day, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Base Rate Term SOFR Lookback Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding SOFR Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding SOFR Business Day is not more than three SOFR Business Days prior to such Base Rate Term SOFR Lookback Day.
“Term SOFR Administrator” means CBA (or a successor administrator of the Term SOFR Reference Rate, as selected by the Administrative Agent in its reasonable discretion).
“Term SOFR Rate Loan” means each Loan bearing interest at a rate based upon Adjusted Term SOFR (other than pursuant to clause (iii) of the definition of Base Rate).
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“Term SOFR Reference Rate” means the forward-looking term rate based on SOFR.
“Total Asset Value” means, as of the end of any Rolling Period, an amount equal to the sum of (a) for all Properties owned by the Borrower and its Subsidiaries for more than twelve (12) months, the quotient of (i) the Property NOI from such Properties divided by (ii) the Capitalization Rate, plus (b) for all Properties owned by the Borrower and its Subsidiaries for twelve (12) months or less, the undepreciated book value (as defined in GAAP) of any such property, plus (c) the aggregate book value of all unimproved land holdings, land-related assets, mortgage or mezzanine loans, notes receivable and/or construction in progress owned by the Borrower and its Subsidiaries plus (d) cash, cash equivalents and marketable securities owned by the Borrower and its Subsidiaries that are not then being held in or subject to escrow in connection with funding commitments of the Borrower or such Subsidiary. Other than with respect to assets of the type described in the immediately preceding clause (d), the Borrower’s or Subsidiaries’ Ownership Share of any Properties held by Unconsolidated Affiliates shall be included when determining Total Asset Value of the Borrower and its Subsidiaries, subject to the adjustments set forth in this definition. For purposes of determining Total Asset Value: (u) to the extent the amount of Total Asset Value attributable to non-Wholly Owned Subsidiaries and Unconsolidated Affiliates would exceed 15% of Total Asset Value, such excess shall be excluded; (v) to the extent the amount of Total Asset Value attributable to Assets Under Development would exceed 10% of Total Asset Value, such excess shall be excluded; (w) to the extent the amount of Total Asset Value attributable to mortgages, deeds of trust, deeds to secure debt or similar instruments that are a lien upon Property, mezzanine loans, notes receivable, and investments in preferred equity securities would exceed 15% of Total Asset Value, such excess shall be excluded; (x) to the extent the amount of Total Asset Value attributable to Land Assets and Land Assets contributed to joint ventures would exceed 10% of Total Asset Value, such excess shall be excluded, (y) to the extent the amount of Total Asset Value attributable to Eligible Leasehold Interests would exceed 15% of Total Asset Value, such excess shall be excluded and (z) to the extent the amount of Total Asset Value attributable to the items outlined in clauses (u), (v), (w), (x) and (y) of this sentence would exceed 30% of Total Asset Value, such excess shall be excluded.
“Total Indebtedness” means, as of a given date, all liabilities of the Borrower and its Subsidiaries which would, in conformity with GAAP, be properly classified as a liability on a consolidated balance sheet of the Borrower and its Subsidiaries as of such date, excluding any amounts categorized as accrued expenses, accrued dividends, deposits held, deferred revenues, minority interests and other liabilities not directly associated with the borrowing of money. The Borrower’s Ownership Share of Total Indebtedness held by Unconsolidated Affiliates shall be included when determining Total Indebtedness of the Borrower and its Subsidiaries.
“Total Outstandings” means the aggregate Outstanding Amount of all Loans for all Facilities.
“UCC” means the Uniform Commercial Code as in effect in the State of New York.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which
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includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“Unfunded Vested Liabilities” means, for any Plan at any time, the amount (if any) by which the present value of all vested nonforfeitable accrued benefits under such Plan exceeds the fair market value of all Plan assets allocable to such benefits, all determined as of the then most recent valuation date for such Plan, but only to the extent that such excess represents a potential liability of a member of the Controlled Group to the PBGC or the Plan under Title IV of ERISA.
“Unconsolidated Affiliate” means with respect to any Person, any other Person in whom such Person holds an investment, which investment is accounted for in the financial statements of such Person on an equity basis of accounting and whose financial results would not be consolidated under GAAP with the financial results of such Person on the consolidated financial statements of such Person. For the avoidance of doubt, Alpine shall not be deemed to constitute an Unconsolidated Affiliate of the Borrower for purposes of calculating the financial covenants set forth in this Agreement.
“Unsecured Indebtedness” means Total Indebtedness minus Secured Indebtedness, provided, that so long as an Other Guaranty Trigger has not occurred, the calculation of Unsecured Indebtedness shall not include Convertible Senior Notes.
“Unsecured Interest Expense” means, with respect to a Person, for any Rolling Period (without duplication), the aggregate amount of Interest Expense attributable to Unsecured Indebtedness during such Rolling Period calculated at an implied rate equal to the greatest of (i) Adjusted Term SOFR for an Interest Period of one (1) month as of the last day of such Rolling Period plus the Applicable Margin, (ii) 5.75% and (ii) the 10-year treasury rate on the last day of such period plus 1.75%.
“U.S. Dollars” and “$” each means the lawful currency of the United States of America.
“Voting Stock” of any Person means capital stock or other equity interests of any class or classes (however designated) having ordinary power for the election of directors or other similar governing body of such Person, other than stock or other equity interests having such power only by reason of the happening of a contingency.
“Welfare Plan” means a “welfare plan” as defined in Section 3(1) of ERISA.
“Wholly-owned Subsidiary” means a Subsidiary of which all of the issued and outstanding shares of capital stock (other than directors’ qualifying shares as required by law) or other equity interests are owned by the Borrower and/or one or more Wholly-owned Subsidiaries within the meaning of this definition.
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“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
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into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its equity interests at such time.
The Borrower represents and warrants to the Administrative Agent and the Lenders as follows:
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conducted, and is duly licensed or qualified and in good standing in each jurisdiction in which the nature of the business conducted by it or the nature of the Property owned or leased by it requires such licensing or qualifying and where the failure to be so qualified could reasonably be expected to have, in each instance, a Material Adverse Effect.
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Material Adverse Effect, or (c) result in the creation or imposition of any Lien on any Property of the Borrower or any Material Subsidiary (other than in favor of the Administrative Agent for its benefit and the benefit of the Lenders).
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Lenders, the Borrower only represents that the same were prepared on the basis of information and estimates the Borrower believed to be reasonable and (b) the financial information provided to the Administrative Agent and the Lenders is governed by Section 6.5 hereof. As of the Closing Date, the information included in the Beneficial Ownership Certification is true and correct in all respects.
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Subsidiaries, is a person, that is, or is owned or controlled by Persons that are (i) the target of any OFAC Sanctions Programs or (ii) located, organized or resident in a country or territory that is, or whose government is, the subject of any OFAC Sanctions Programs.
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associated with such Property that could reasonably be expected to have a Material Adverse Effect; provided that the Administrative Agent shall be entitled to make only one (1) such request with respect to each Property during the term of this Agreement unless an Event of Default has occurred and is continuing.
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Each request for a Borrowing hereunder shall be deemed to be a representation and warranty by the Borrower on the date of such Borrowing as to the facts specified in subsections (a) through (c), inclusive, of this Section 7.1; provided, however, that the Lenders may advance a Loan, in the sole discretion of the Lenders with Commitments, notwithstanding the failure of the Borrower to satisfy one or more of the conditions set forth above and any such advances so made shall not be deemed a waiver of any Default or Event of Default or other condition set forth above that may then exist.
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Upon not less than ten (10) Business Days prior written notice from the Borrower to the Administrative Agent, the Borrower can designate that a Property be added (subject to the other requirements for a Property qualifying as an Eligible Property) or deleted as an Eligible Property included in calculating the Borrowing Base. Such notice shall be accompanied by a Borrowing Base Certificate setting forth the components of the Borrowing Base as of the addition or deletion of the designated Property as an Eligible Property, and with respect to a deletion, the Borrower’s certification in such detail as reasonably required by the Administrative Agent that no Default or Event of Default exists under this Agreement and such deletion shall not (A) cause the Eligible Properties to violate the Borrowing Base Requirements, (B) cause a Default, or (C) cause or result in the Borrower failing to comply with any of the financial covenants contained in Section 8.20 hereof. Each addition with respect to Eligible Properties shall be an Eligible Property in a
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minimum amount equal to $500,000 Borrowing Base Value or $500,000 Debt Service Coverage Amount, or shall be comprised of more than one qualifying Eligible Properties that in the aggregate have a minimum amount equal to $1,000,000 Borrowing Base Value or $1,000,000 Debt Service Coverage Amount, and all such additions shall be subject to reasonable approval by the Administrative Agent.
If no Default exists at the time of any deletion of a Property from qualifying as an Eligible Property included in calculating the Borrowing Base, any Material Subsidiary which owned such Property, but that does not otherwise own any other Eligible Property, shall be released from its obligations under its Guaranty.
The Borrower agrees that, so long as any credit is available to or in use by the Borrower hereunder, except to the extent compliance in any case or cases is cured or waived in writing pursuant to the terms of Section 12.13 hereof:
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charges upon or against it or its Property, in each case before the same become delinquent and before penalties accrue thereon, unless and to the extent that the same are being contested in good faith and by appropriate proceedings which prevent enforcement of the matter under contest and adequate reserves are provided therefor.
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provided, however, to the extent such items set forth above are filed with the Securities and Exchange Commission or otherwise are publicly available, the Borrower shall be deemed to have satisfied this covenant once it provides notice to the Administrative Agent of such availability.
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shall be subject to the confidentiality requirements of Section 12.25 hereof), and to discuss its affairs, finances, and accounts with, and to be advised as to the same by, its officers, employees (in the presence of a Responsible Officer) and independent public accountants (and by this provision the Borrower hereby authorizes such accountants with the Borrower present to discuss with the Administrative Agent and such Lenders the finances and affairs of the Borrower and its Subsidiaries) at such reasonable times and intervals as the Administrative Agent or any such Lender may designate and, so long as no Default or Event of Default exists, with reasonable prior notice to the Borrower. The Administrative Agent and Lenders shall use reasonable efforts to coordinate inspections undertaken in accordance with this Section 8.6 to reduce the administrative burden of such inspections on the Borrower and their Subsidiaries.
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In determining the amount of investments, acquisitions, loans, and advances permitted under this Section, investments and acquisitions shall always be taken at the book value (as defined in GAAP) thereof, and loans and advances shall be taken at the principal amount thereof then remaining unpaid.
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pursuant to the definition thereof or (B) the Required Lenders determine that for any reason in connection with any request for a SOFR Rate Loan or a conversion thereto or a continuation thereof that Adjusted Daily Simple SOFR or Adjusted Term SOFR for any requested Interest Period with respect to a proposed SOFR Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, and the Required Lenders have provided notice of such determination to the Administrative Agent, in each case of (A) and (B) with respect to a Term SOFR Rate Loan, on or prior to the first day of any Interest Period, the Administrative Agent will promptly so notify the Borrower and each Lender. Upon notice thereof by the Administrative Agent to the Borrower, (i) any obligation of the Lenders to make or continue the applicable SOFR Rate Loans or to convert Base Rate Loans to SOFR Rate Loans shall be suspended (to the extent of the affected Interest Periods) until the Administrative Agent revokes such notice and (ii) if such determination affects the calculation of the Base Rate, the Administrative Agent shall during the period of such suspension compute the Base Rate without reference to clause (c) of the definition of “Base Rate” until the Administrative Agent revokes such notice. Upon receipt of such notice, (i) the Borrower may revoke any pending request for a borrowing of, conversion to or continuation of any applicable SOFR Rate Loans (to the extent of the affected SOFR Rate Loans or affected Interest Periods) or, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans in the amount specified therein and (ii) any outstanding affected SOFR Rate Loans will be deemed to have been converted into Base Rate Loans at the end of the applicable Interest Period, in respect of Term SOFR Rate Loans, or immediately in respect of Daily Simple SOFR Rate Loans. Upon any such conversion, the Borrower shall also pay accrued interest on the amount so converted, together with any additional amounts required pursuant to Section 1.11. If the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that “Adjusted Term SOFR” cannot be determined pursuant to the definition thereof on any given day, the interest rate on Base Rate Loans shall be determined by the Administrative Agent without reference to clause (c) of the definition of “Base Rate” until the Administrative Agent revokes such determination. The Administrative Agent shall promptly revoke any such determination promptly upon the circumstances leading to such determination ceasing to exist.
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and the result of any of the foregoing is to increase the cost to such Lender (or its Lending Office) or to reduce the amount of any sum received or receivable by such Lender (or its Lending Office) or under any other Loan Document with respect thereto, by an amount deemed by such Lender to be material, then, within 15 days after demand by such Lender (with a copy to the Administrative Agent), the Borrower shall be obligated to pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction.
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or any part of its Loans in any manner it sees fit, it being understood, however, that for the purposes of this Agreement all determinations hereunder with respect to Term SOFR Rate Loans shall be made as if each Lender had actually funded and maintained each Term SOFR Rate Loan through the purchase of deposits in the applicable interbank market having a maturity corresponding to such Loan’s Interest Period, and bearing an interest rate equal to Term SOFR for any applicable Interest Period.
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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.
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the United States of America. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its resignation or after removal by the Required Lenders (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, appoint a successor Administrative Agent meeting the qualifications set forth above. Whether or not a successor has been appointed, such resignation or removal shall become effective in accordance with such notice on the Resignation Effective Date.
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laws), (iii) it has, independently and without reliance upon the Administrative Agent, any Arranger, any Syndication Agent, any documentation agent or any other Lender, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement as a Lender, and to make, acquire or hold Loans hereunder and (iv) it is sophisticated with respect to decisions to make, acquire and/or hold commercial loans and to provide other facilities set forth herein, as may be applicable to such Lender, and either it, or the Person exercising discretion in making its decision to make, acquire and/or hold such commercial loans or to provide such other facilities, is experienced in making, acquiring or holding such commercial loans or providing such other facilities.
Upon a Lender’s written request, the Administrative Agent agrees to forward to such Lender, when complete, copies of any field audit, examination, or appraisal report prepared by or for the Administrative Agent with respect to the Borrower or any Material Subsidiary or the Collateral (herein, “Reports”). Each Lender hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrower and the other Material Subsidiaries and will rely significantly upon the books and records of the Borrower and the other Material Subsidiaries, as well as on representations of personnel of the Borrower and the other Material Subsidiaries, and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, not share the Report with any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender.
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Liability or Funds Transfer and Deposit Account Liability unless such Lender has notified the Administrative Agent in writing of the amount of any such liability owed to it or its Affiliate prior to such distribution or payment or release of Guaranties and Liens. Without limiting the generality of the foregoing, (i) each such Affiliate shall, for the avoidance of doubt, be deemed to have agreed to the provisions of Section 3.1(c) and (ii) no such Affiliate shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral). Notwithstanding any other provision of this Section 11.9 to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to Hedging Liability or Funds Transfer and Deposit Account Liability unless the Administrative Agent has received written notice of such Hedging Liability or Funds Transfer and Deposit Account Liability, together with such supporting documentation as the Administrative Agent may request, from the applicable Lender or Affiliate. For the avoidance of doubt, all references in this Section 11.9 to any Lender or Affiliate of a Lender shall include or be deemed to include each Hedging Counterparty, even if such Hedging Counterparty or any Person affiliated with such Hedging Counterparty shall cease to be a Lender hereunder, such that any such Hedging Counterparty shall continue to be entitled to all of the rights and benefits otherwise afforded to such Hedging Counterparty hereunder (including without limitation the Guaranties provided under Section 13).
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, 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 2.1 and 12.15. 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 any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.
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succeeding Business Day on which date such payment shall be due and payable. In the case of any payment of principal falling due on a day which is not a Business Day, interest on such principal amount shall continue to accrue during such extension at the rate per annum then in effect, which accrued amount shall be due and payable on the next scheduled date for the payment of interest.
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to the Borrower: CTO Realty Growth, Inc. 369 N. New York Ave., Suite 201 Winter Park, Florida 32789 Attention:Philip Mays Telephone:407-904-3324 Email:pmays@ctoreit.com CTO Realty Growth, Inc. 1140 Williamson Boulevard Suite 140 Daytona Beach, Florida 32114 Attention:Lisa M. Vorakoun Telephone:386-944-5641 Email:lvorakoun@ctoreit.com With copy to: Vinson & Elkins LLP 845 Texas Ave., Suite 4700 Houston, TX 77002 Attention:Noelle Alix Telephone:713-758-1124 Email:nalix@velaw.com | to the Administrative Agent: KeyBank National Association 4910 Tiedeman Rd., 3rd Floor Mail Code OH-01-51-0311 Brooklyn, Ohio 44144 Attn: Real Estate Capital Servicing Reference: CTO Realty Growth, Inc. & Loan No. 10257243 And KeyBank National Association 1200 Abernathy Road NE, Suite 1550 Atlanta, GA 30328 Attention: Tom Schmitt Telephone:770-510-2109 Email: tom_schmitt@keybank.com With a copy to: Riemer & Braunstein LP 100 Cambridge Street Boston, MA 02114 Attention: Saúl De La Guardia Email: sdelaguardia@riemerlaw.com Telephone: 617-880-3533 |
Each such notice, request or other communication shall be effective (i) if given by telecopier, when such telecopy is delivered to the telecopier number specified in this Section 12.8 or in the relevant Administrative Questionnaire and a confirmation of such telecopy has been received by the sender, (ii) if given by mail, upon receipt or first refusal of delivery or (iii) if given by any other means, when delivered at the addresses specified in this Section 12.8 or in the relevant Administrative Questionnaire; provided that any notice given pursuant to Section 1 hereof shall be effective only upon receipt.
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Commerce Act, the New York State Electronic Signatures and Records Act and any other similar applicable state laws based on the Uniform Electronic Transactions Act.
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Subject to acceptance and recording thereof by the Administrative Agent pursuant to Section 12.12(b) hereof, from and after the effective date specified in each Assignment and Acceptance, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Acceptance, 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 Acceptance, be released from its obligations under this Agreement (and, in
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the case of an Assignment and Acceptance 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 12.6 and 12.15 with respect to facts and circumstances occurring prior to the effective date of such assignment. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 12.11 hereof.
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against all losses, claims, damages, penalties, judgments, liabilities and expenses (including, without limitation, all reasonable fees and disbursements of counsel for any such Indemnitee and all reasonable expenses of litigation or preparation therefor, whether or not the Indemnitee is a party thereto, or any settlement arrangement arising from or relating to any such litigation) which any of them may pay or incur arising out of or relating to any Loan Document or any of the transactions contemplated thereby or the direct or indirect application or proposed application of the proceeds of any Loan, other than those which arise from the gross negligence or willful misconduct of the party claiming indemnification. The Borrower, upon demand by the Administrative Agent, or a Lender at any time, shall reimburse the Administrative Agent such Lender for any reasonable legal or other expenses (including, without limitation, all reasonable fees and disbursements of counsel for any such Indemnitee) incurred in connection with investigating or defending against any of the foregoing (including any settlement costs relating to the foregoing) except to the extent the same is due to the gross negligence or willful misconduct of the party to be indemnified. To the extent permitted by applicable law, the parties hereto shall not assert, and each hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or the other Loan Documents or any agreement or instrument contemplated hereby or thereby, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof. The obligations of the parties under this Section 12.15 shall survive the termination of this Agreement.
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hereby authorized by the Borrower and each Guarantor at any time or from time to time, without notice to the Borrower or such Guarantor or to any other Person, any such notice being hereby expressly waived, to set-off and to appropriate and to apply any and all deposits (general or special, including, but not limited to, indebtedness evidenced by certificates of deposit, whether matured or unmatured, and in whatever currency denominated, but not including trust accounts) and any other indebtedness at any time held or owing by that Lender, subsequent holder, or affiliate, to or for the credit or the account of the Borrower or such Guarantor, whether or not matured, against and on account of the Obligations then due of the Borrower or such Guarantor to that Lender, or subsequent holder under the Loan Documents, including, but not limited to, all claims of any nature or description arising out of or connected with the Loan Documents, irrespective of whether or not that Lender, or subsequent holder shall have made any demand hereunder.
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Borrower nor any guarantor or endorser shall have any action against the Administrative Agent or any Lender for any damages whatsoever arising out of the payment or collection of any Excess Interest. Notwithstanding the foregoing, if for any period of time interest on any of the Borrower’s Obligations is calculated at the Maximum Rate rather than the applicable rate under this Agreement, and thereafter such applicable rate becomes less than the Maximum Rate, the rate of interest payable on the Borrower’s Obligations shall remain at the Maximum Rate until the Lenders have received the amount of interest which such Lenders would have received during such period on the Borrower’s Obligations had the rate of interest not been limited to the Maximum Rate during such period.
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any regulatory authority (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, provided that to the extent practicable and permitted by applicable law, the party requested to disclose any information will provide prompt written notice of such request to the Borrower, will allow the Borrower a reasonable opportunity to seek appropriate protective measures prior to disclosure and will disclose the minimum amount of information required to comply with such applicable law, regulation, subpoena or legal process, (d) to any other party hereto, (e) to the extent reasonably necessary after consultation with counsel, in connection with the exercise of any remedies hereunder or under any other Loan Document or any suit, action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, provided that, to the extent reasonably practicable, the party requested to disclose any such information will provide prompt written notice of such request to the Borrower and will allow the Borrower a reasonable opportunity to seek appropriate protective measures prior to such disclosure, (f) subject to an agreement containing provisions substantially the same as those of this Section 12.25, to (A) any assignee of or participant in, or any prospective assignee of or participant in, any of its rights or obligations under this Agreement or (B) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower or any Subsidiary and its obligations, (g) with the prior written consent of the Borrower, (h) to the extent such Information (A) becomes publicly available other than as a result of a breach of this Section 12.25 or (B) becomes available to the Administrative Agent, any Lender on a non-confidential basis from a source other than the Borrower or any Subsidiary or any of their directors, officers, employees or agents, including accountants, legal counsel and other advisors; provided that the Administrative Agent, any Lender may use such Information as permitted by clause (a) above, but the Administrative Agent, any Lender shall not otherwise disclose such Information except as permitted by clauses (b) - (g), (i), (j) or (k) of this Section 12.25, (i) to rating agencies if requested or required by such agencies in connection with a rating relating to the Loans or the Commitments hereunder, (j) to Gold Sheets and other similar bank trade publications (such information to consist of deal terms and other information regarding the credit facilities evidenced by this Agreement customarily found in such publications), or (k) to entities which compile and publish information about the syndicated loan market, provided that only basic information about the pricing and structure of the transaction evidenced hereby may be disclosed pursuant to this subsection (j). For purposes of this Section 12.25, “Information” means all information received from the Borrower or any of the Subsidiaries or from any other Person on behalf of 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 on a non-confidential basis prior to disclosure by the Borrower or any of its Subsidiaries or from any other Person on behalf of the Borrower or any of the Subsidiaries. Each of the Administrative Agent, the Lenders specifically acknowledges that the common stock of the Borrower is traded on the NYSE American Exchange under the trading symbol “CTO.” Each of the Administrative Agent, the Lenders further expressly acknowledges that it is aware that the securities laws of the United States prohibit any person who has received from an issuer material, non-public information, including information concerning the matters that are the subject of this Agreement, from purchasing or selling securities of such issuer on the basis of material, non-public information concerning the issuer of such securities or, subject to certain limited exceptions, from communicating such information to any other Person.
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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):
“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:
“Default Rights” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§252.81, 47.2 or 382.1, as applicable.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
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For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 12.30(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 12.30(b) or on whether or not an Erroneous Payment has been made.
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lowest amount which would render such Guarantor’s obligations under this Section 13 void or voidable under applicable law, including, without limitation, fraudulent conveyance law.
[Signature Pages to Follow]
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This Credit Agreement is entered into between us for the uses and purposes hereinabove set forth as of the date first above written.
“Borrower”
CTO Realty Growth, Inc., a Maryland corporation
By | /s/ Daniel E. Smith |
Name: Daniel E. Smith
Title: SVP, General Counsel and Corporate Secretary; Director
[Signature Page Credit Agreement]
“Administrative Agent”
KeyBank National Association, as Administrative Agent
By | /s/ Tom Schmitt |
Name: Tom Schmitt
Title: Senior Vice President
“Lenders”
KeyBank National Association, as a Lender
By | /s/ Tom Schmitt |
Name: Tom Schmitt
Title: Senior Vice President
[Signature Page Credit Agreement]
PNC Bank, National Association, as a Lender
By | /s/ Andrew T. White |
Name: Andrew T. White
Title: Senior Vice President
[Signature Page Credit Agreement]
Raymond James Bank, as a Lender
By | /s/ Alexander Sierra |
Name: Alexander Sierra
Title: SVP
[Signature Page Credit Agreement]
Regions Bank, as a Lender
By | /s/ Ghi Gavin |
Name: Ghi Gavin
Title: Senior Vice President
[Signature Page Credit Agreement]
Indigo Group Inc., a Florida corporation
By: /s/ Daniel E. Smith
Name: Daniel E. Smith
Title: SVP, General Counsel and Corporate Secretary; Director
CTO18 Albuquerque NM LLC, a Delaware limited liability company
By: CTO Realty Growth, Inc., a Maryland corporation, its sole member
By: /s/ Daniel E. Smith
Name: Daniel E. Smith
Title: SVP, General Counsel and Corporate Secretary; Director
Indigo Group Ltd., a Florida limited partnership
By: | Indigo Group, Inc., a Florida corporation, its General Partner |
By: /s/ Daniel E. Smith
Name: Daniel E. Smith
Title: SVP, General Counsel and Corporate Secretary; Director
[Signature Page Credit Agreement]
CTO19 STRAND JAX LLC, a Delaware limited liability company
By: | CTO Realty Growth, Inc., a Maryland corporation, its sole member |
By: /s/ Daniel E. Smith
Name: Daniel E. Smith
Title: SVP, General Counsel and Corporate Secretary; Director
Daytona JV LLC, a Florida limited liability company
By: | LHC15 Atlantic DB JV LLC, a Delaware limited liability company, its sole manager |
By: | CTO Realty Growth, Inc., a Maryland corporation, its sole member |
By: /s/ Daniel E. Smith
Name: Daniel E. Smith
Title: SVP, General Counsel and Corporate Secretary; Director
CTO20 Crossroads AZ LLC, a Delaware limited liability company
By: | CTO Realty Growth, Inc., a Maryland corporation, its sole member |
By: /s/ Daniel E. Smith
Name: Daniel E. Smith
Title: SVP, General Counsel and Corporate Secretary; Director
[Signature Page Credit Agreement]
IGI20 Crossroads AZ LLC, a Delaware limited liability company
By: | Indigo Group Inc., a Florida corporation, its sole member |
By: /s/ Daniel E. Smith
Name: Daniel E. Smith
Title: SVP, General Counsel and Corporate Secretary; Director
CTO20 Perimeter LLC, a Delaware limited liability company
By: CTO Realty Growth, Inc., a Maryland corporation, its sole member
By: /s/ Daniel E. Smith
Name: Daniel E. Smith
Title: SVP, General Counsel and Corporate Secretary; Director
CTO20 Perimeter II LLC, a Delaware limited liability company
By: CTO Realty Growth, Inc., a Maryland corporation, its sole member
By: /s/ Daniel E. Smith
Name: Daniel E. Smith
Title: SVP, General Counsel and Corporate Secretary; Director
[Signature Page Credit Agreement]
CTO21 Acquisitions II LLC, a Delaware limited liability company
By: CTO Realty Growth, Inc., a Maryland corporation, its sole member
By: /s/ Daniel E. Smith
Name: Daniel E. Smith
Title: SVP, General Counsel and Corporate Secretary; Director
CTO21 AL Outparcel LLC, a Delaware limited liability company
By: CTO Realty Growth, Inc., a Maryland corporation, its sole member
By: /s/ Daniel E. Smith
Name: Daniel E. Smith
Title: SVP, General Counsel and Corporate Secretary; Director
CTO21 Apex LLC, a Delaware limited liability company
By: CTO Realty Growth, Inc., a Maryland corporation, its sole member
By: /s/ Daniel E. Smith
Name: Daniel E. Smith
Title: SVP, General Counsel and Corporate Secretary; Director
[Signature Page Credit Agreement]
CTO21 Buford 1 LLC, a Delaware limited liability company
By: CTO Realty Growth, Inc., a Maryland corporation, its sole member
By: /s/ Daniel E. Smith
Name: Daniel E. Smith
Title: SVP, General Counsel and Corporate Secretary; Director
CTO22 Madison Yards LLC, a Delaware limited liability company
By: CTO Realty Growth, Inc., a Maryland corporation, its sole member
By: /s/ Daniel E. Smith
Name: Daniel E. Smith
Title: SVP, General Counsel and Corporate Secretary; Director
CTO23 Rockwall LLC, a Delaware limited liability company
By: | CTO Realty Growth, Inc., a Maryland corporation, its sole member |
By: /s/ Daniel E. Smith
Name: Daniel E. Smith
Title: SVP, General Counsel and Corporate Secretary; Director
[Signature Page Credit Agreement]
CTO22 Short Pump LLC, a Delaware limited liability company
By: | CTO Realty Growth, Inc., a Maryland corporation, its sole member |
By: /s/ Daniel E. Smith
Name: Daniel E. Smith
Title: SVP, General Counsel and Corporate Secretary; Director
CTO22 Forsyth LLC, a Delaware limited liability company
By: | CTO Realty Growth, Inc., a Maryland corporation, its sole member |
By: /s/ Daniel E. Smith
Name: Daniel E. Smith
Title: SVP, General Counsel and Corporate Secretary; Director
DB Main Street LLC, a Delaware limited liability company
By: | CTO Realty Growth, Inc., a Maryland corporation, its sole member |
By: /s/ Daniel E. Smith
Name: Daniel E. Smith
Title: SVP, General Counsel and Corporate Secretary; Director
[Signature Page Credit Agreement]
CTO24 MSTC LLC, a Delaware limited liability company
By: | CTO Realty Growth, Inc., a Maryland corporation, its sole member |
By: /s/ Daniel E. Smith
Name: Daniel E. Smith
Title: SVP, General Counsel and Corporate Secretary; Director
[Signature Page Credit Agreement]
Exhibit A
Reserved.
Exhibit B
Notice of Borrowing
To: | KeyBank National Association, as Administrative Agent for the Lenders from time to time parties to the Credit Agreement dated as of September 30, 2024 (as extended, renewed, amended or restated from time to time, the “Credit Agreement”), among CTO Realty Growth, Inc., certain Guarantors which are signatories thereto, certain Lenders which are from time to time parties thereto, and KeyBank National Association, as Administrative Agent |
Ladies and Gentlemen:
The undersigned, CTO Realty Growth, Inc. (the “Borrower”), refers to the Credit Agreement, the terms defined therein being used herein as therein defined, and hereby gives you notice irrevocably, pursuant to Section 1.6 of the Credit Agreement, of the Borrowing specified below:
1.The Business Day of the proposed Borrowing is ___________, ____.
2.The aggregate amount of the proposed Borrowing is $______________.
3.The Borrowing is being advanced as a[n] [2029][Incremental] Term Loan [Incremental Revolving Loan].
4.The Borrowing is to be comprised of $___________ of [Base Rate] [Daily Simple SOFR][Term SOFR] Loans.
[5.The duration of the Interest Period for the Term SOFR Rate Loans included in the Borrowing shall be ____________ months.]
The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the date of the proposed Borrowing, before and after giving effect thereto and to the application of the proceeds therefrom:
(a)the representations and warranties of the Borrower contained in Section 6 of the Credit Agreement are true and correct as though made on and as of such date (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date); and
(b)no Default or Event of Default has occurred and is continuing or would result from such proposed Borrowing.
CTO Realty Growth, Inc.
By:
Name:
Title:
[Notice of Borrowing]
Exhibit C
Notice of Continuation/Conversion
Date: ____________, ____
To:KeyBank National Association, as Administrative Agent for the Lenders from time to time parties to the Credit Agreement dated as of September 30, 2024 (as extended, renewed, amended or restated from time to time, the “Credit Agreement”) among CTO Realty Growth, Inc., certain Guarantors which are from time to time signatories thereto, certain Lenders which are from time to time parties thereto, and KeyBank National Association, as Administrative Agent
Ladies and Gentlemen:
The undersigned, CTO Realty Growth, Inc. (the “Borrower”), refers to the Credit Agreement, the terms defined therein being used herein as therein defined, and hereby gives you notice irrevocably, pursuant to Section 1.6 of the Credit Agreement, of the [conversion] [continuation] of the Loans specified herein, that:
1.The conversion/continuation Date is __________, ____.
2.The aggregate amount of the [2029][Incremental] Term Loans [Incremental Revolving Loans] to be [converted] [continued] is $______________.
3.The Term Loans are to be [converted into] [continued as] [Daily Simple SOFR] [Term SOFR]] [Base] Loans.
4.[If applicable:] The duration of the Interest Period for the Term Loans included in the [conversion] [continuation] shall be _________ months.
The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the proposed conversion/continuation date, before and after giving effect thereto and to the application of the proceeds therefrom:
(a)the representations and warranties of the Borrower contained in Section 6 of the Credit Agreement are true and correct as though made on and as of such date (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date); provided, however, that this condition shall not apply to the conversion of an outstanding Term SOFR Rate Loan to a Base Rate Loan or a Daily Simple SOFR Rate Loan to a Base Rate Loan; and
(b)no Default or Event of Default has occurred and is continuing, or would result from such proposed [conversion] [continuation].
CTO Realty Growth, Inc.
By:
Name:
Title:
[Notice of Continuation/Conversion]
Exhibit D
[2029][Incremental] Term Note
For Value Received, the undersigned, CTO Realty Growth, Inc., a Maryland corporation (the “Borrower”), hereby promises to pay to ____________________ (the “Lender”) or its permitted assigns on the Maturity Date of the hereinafter defined Credit Agreement, at the principal office of the Administrative Agent in New York, New York (or such other location as the Administrative Agent may designate to the Borrower), in immediately available funds, the principal sum of ___________________ Dollars ($__________) or, if less, the aggregate unpaid principal amount of all [2029][Incremental] Term Loans made by the Lender to the Borrower pursuant to the Credit Agreement, together with interest on the principal amount of each [2029][Incremental] Term Loan from time to time outstanding hereunder at the rates, and payable in the manner and on the dates, specified in the Credit Agreement.
This Note is one of the [2029][Incremental] Term Notes referred to in the Credit Agreement dated as of September 30, 2024, among the Borrower, the Guarantors party thereto, the Lenders parties thereto, and KeyBank National Association, as Administrative Agent (as extended, renewed, amended or restated from time to time, the “Credit Agreement”), and this Note and the holder hereof are entitled to all the benefits provided for thereby or referred to therein, to which Credit Agreement reference is hereby made for a statement thereof. All defined terms used in this Note, except terms otherwise defined herein, shall have the same meaning as in the Credit Agreement. This Note shall be governed by and construed in accordance with the internal laws of the State of New York.
Voluntary prepayments may be made hereon, certain prepayments are required to be made hereon, and this Note may be declared due prior to the expressed maturity hereof, all in the events, on the terms and in the manner as provided for in the Credit Agreement.
The Borrower hereby waives demand, presentment, protest or notice of any kind hereunder.
CTO Realty Growth, Inc.
By:
Name:
Title:
Exhibit E
Compliance Certificate
To: | KeyBank National Association, as Administrative Agent under, and the Lenders party to, the Credit Agreement described below |
This Compliance Certificate is furnished to the Administrative Agent and the Lenders pursuant to that certain Credit Agreement dated as of September 30, 2024, as amended, among CTO Realty Growth, Inc. (the “Borrower”), the Guarantors signatory thereto, the Administrative Agent and the Lenders party thereto (the “Credit Agreement”). Unless otherwise defined herein, the terms used in this Compliance Certificate have the meanings ascribed thereto in the Credit Agreement.
The Undersigned hereby certifies that:
1.I am the duly elected ____________ of CTO Realty Growth, Inc.;
2.I have reviewed the terms of the Credit Agreement and I have made, or have caused to be made under my supervision, a detailed review of the transactions and conditions of the Borrower and its Subsidiaries during the accounting period covered by the attached financial statements;
3.The examinations described in paragraph 2 did not disclose, and I have no knowledge of, the existence of any condition or the occurrence of any event which constitutes a Default or Event of Default during or at the end of the accounting period covered by the attached financial statements or as of the date of this Compliance Certificate, except as set forth below;
4.The financial statements required by Section 8.5 of the Credit Agreement and being furnished to you concurrently with this Compliance Certificate are true, correct and complete as of the date and for the periods covered thereby; and
5.The Schedule I hereto sets forth financial data and computations evidencing the Borrower’s compliance with certain covenants of the Credit Agreement, all of which data and computations are, to the best of my knowledge, true, complete and correct and have been made in accordance with the relevant Sections of the Credit Agreement.
Described below are the exceptions, if any, to paragraph 3 by listing, in detail, the nature of the condition or event, the period during which it has existed and the action which the Borrower has taken, is taking, or proposes to take with respect to each such condition or event:
The foregoing certifications, together with the computations set forth in Schedule I hereto and the financial statements delivered with this Certificate in support hereof, are made and delivered this ______ day of __________________ 20___.
CTO Realty Growth, Inc.
By:
Name:
Title:
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Schedule I
to Compliance Certificate
_________________________________________________
Compliance Calculations
for Credit Agreement
dated as of September 30, 2024, as amended
Calculations as of _____________, _______
A. Maximum Total Indebtedness to Total Asset Value Ratio (Section 8.20(a)) | |
1. Total Indebtedness | $___________ |
2. Total Asset Value as calculated on Exhibit A hereto | ___________ |
3. Ratio of Line A1 to A2 | ____:1.0 |
4. Line A3 must not exceed | [0.60:1.0] [0.65:1.0]1 |
5. The Borrower is in compliance (circle yes or no) | yes/no |
B. Maximum Unsecured Indebtedness to Borrowing Base Value Ratio (Section 8.20(b)) | |
1. Unsecured Indebtedness | $___________ |
2. Borrowing Base Value as calculated on Exhibit B hereto | ___________ |
3. Ratio of Line B1 to B2 | ____:1.0 |
4. Line B3 must not exceed | [0.60:1.0] [0.65:1.0]2 |
5. The Borrower is in compliance (circle yes or no) | yes/no |
C. Maximum Secured Indebtedness to Total Asset Value Ratio (Section 8.20(c)) | |
1. Secured Indebtedness | $___________ |
2. Total Asset Value as calculated on Exhibit B hereto | ___________ |
1 Leverage Ratio Increase Period.
2 Leverage Ratio Increase Period.
3. Ratio of Line C1 to C2 | ____:1.0 |
4. Line C3 must not exceed | 0.40:1.0 |
5. The Borrower is in compliance (circle yes or no) | yes/no |
D. Minimum Adjusted EBITDA to Fixed Charges Ratio (Section 8.20(d)) | |
1. Net Income | $___________ |
2. Depreciation and amortization expense | ___________ |
3. Interest Expense | ___________ |
4. Income tax expense | ___________ |
5. Extraordinary, unrealized or non-recurring losses | ___________ |
6. Non-cash compensation paid in equity securities | ___________ |
7. Extraordinary, unrealized or non-recurring gains | ___________ |
8. Income tax benefits | ___________ |
9. Stock-based compensation | ___________ |
10. Other non-cash items as mutually agreed | ___________ |
11. Sum of Lines D2, D3, D4, D5 and D6 | ___________ |
12. Sum of Lines D7, D8, D9 and D10 | ___________ |
13. Line D1 plus Line D11 minus Line D12 (“EBITDA”) | ___________ |
14. Annual Capital Expenditure Reserve | ___________ |
15. Line D13 minus Line D14 (“Adjusted EBITDA”) | ___________ |
16. Interest Expense | ___________ |
17. Principal amortization payments | ___________ |
18. Dividends | ___________ |
19. Income taxes paid | ___________ |
20. Cash payments of base rent under Eligible Leasehold Interests | ___________ |
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21. Sum of Lines D16, D17, D18, D19 and D20 (“Fixed Charges”) | ___________ |
22. Ratio of Line D15 to Line D21 | __:1.0 |
23. Line D22 shall not be less than | 1.50:1.0 |
24. The Borrower is in compliance (circle yes or no) | yes/no |
E. Maximum Secured Recourse Indebtedness to Total Asset Value Ratio (Section 8.20(e)) | |
1. Secured Recourse Indebtedness | $___________ |
2. Total Asset Value as calculated on Exhibit A hereto | ___________ |
3. Ratio of Line E1 to Line E2 | ____:1.0 |
4. Line E3 shall not exceed | 0.05:1.0 |
5. The Borrower is in compliance (circle yes or no) | yes/no |
F. Tangible Net Worth (Section 8.20(f)) | |
1. Tangible Net Worth | $___________ |
2. Aggregate net proceeds of Stock and Stock Equivalent offerings after September 30, 2024 | ___________ |
3. 75% of Line F2 | ___________ |
4. $465,259,119 plus Line F3 | ___________ |
5. Line F1 shall not be less than Line F4 | |
6. The Borrower is in compliance (circle yes or no) | yes/no |
G. Minimum Unsecured Coverage Ratio (Section 8.20(g)) | |
1. Borrowing Base NOI as calculated on Exhibit C hereto | $___________ |
2. Unsecured Interest Expense | $___________ |
3. Ratio of Line G1 to G2 | ____:1.00 |
4. Line G3 ratio shall not be less than | 1.50:1.00 |
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5. The Borrower is in compliance (circle yes or no) | yes/no |
H. Restricted Payments (Section 8.29(a)) | |
1. Aggregate amount of cash distributions made by the Borrower to its equity holders during such period | $___________ |
2. The Borrower’s Adjusted FFO for such period | ____________ |
3. 95% of Line H2 | ____________ |
4. Amount necessary for the Borrower to be able to make distributions required to maintain its status as a REIT (i.e., to satisfy the distribution requirements set forth in Section 4981 of the Code) | ____________ |
5. Greater of Line H3 and Line H4 | ____________ |
6. Line H1 shall not exceed Line H5 | |
7. The Borrower is in compliance (circle yes or no) | yes/no |
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Exhibit A to Schedule I
to Compliance Certificate
of CTO Realty Growth, Inc.
This Exhibit A, with a calculation date of __________,______, is attached to Schedule I to the Compliance Certificate of CTO Realty Growth, Inc. dated _______________, 20__ , as amended, and delivered to KeyBank National Association, as Administrative Agent, and the Lenders party to the Credit Agreement, as amended, referred to therein. The undersigned hereby certifies that the following is a true, correct and complete calculation of Total Asset Value for the Rolling Period most recently ended:
[Insert Calculation]
CTO Realty Growth, Inc.
By:
Name:
Title:
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Exhibit B to Schedule I
to Compliance Certificate
of CTO Realty Growth, Inc.
This Exhibit B, with a calculation date of __________,______, is attached to Schedule I to the Compliance Certificate of CTO Realty Growth, Inc. dated _______________, 20__ , as amended, and delivered to KeyBank National Association, as Administrative Agent, and the Lenders party to the Credit Agreement, as amended, referred to therein. The undersigned hereby certifies that the following is a true, correct and complete calculation of Borrowing Base Value for the Rolling Period most recently ended:
[Insert Calculation]
CTO Realty Growth, Inc.
By:
Name:
Title:
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Exhibit C to Schedule I
to Compliance Certificate
of CTO Realty Growth, Inc.
This Exhibit B, with a calculation date of _______________, 20___, is attached to Schedule I to the Compliance Certificate of CTO Realty Growth, Inc. dated _______________, 20__ , as amended, and delivered to KeyBank National Association, as Administrative Agent, and the Lenders party to the Credit Agreement, as amended, referred to therein. The undersigned hereby certifies that the following is a true, correct and complete calculation of Borrowing Base NOI for all Eligible Properties for the Rolling Period most recently ended:
Eligible Property | Property Income | Minus | Property Expenses (without Cap. Ex. Reserve or Management Fees) | Minus | Annual Capital Expenditure Reserve | Minus | Greater of 3% of rents or actual management fees | equals | Property NOI |
| $________ | - | $___________ | | | | | = | $________ |
| $________ | - | $___________ | | | | | = | $________ |
| $________ | - | $___________ | | | | | = | $________ |
| $_______ | - | $___________ | | | | | = | $________ |
Total Borrowing Base NOI for all Eligible Properties:$_____________
CTO Realty Growth, Inc.
By:
Name:
Title:
Exhibit F
Assignment and Acceptance
Dated _____________, _______
Reference is made to the Credit Agreement dated as of September 30, 2024 (as extended, renewed, amended or restated from time to time, the “Credit Agreement”) among CTO Realty Growth, Inc., the Guarantors from time to time party thereto, the Lenders parties thereto, and KeyBank National Association, as Administrative Agent (the “Administrative Agent”). Terms defined in the Credit Agreement are used herein with the same meaning.
______________________________________________________ (the “Assignor”) and _________________________ (the “Assignee”) agree as follows:
1.The Assignor hereby sells and assigns to the Assignee, and the Assignee hereby purchases and assumes from the Assignor, the amount and specified percentage interest shown on Annex I hereto of the Assignor’s rights and obligations under the Credit Agreement as of the Effective Date (as defined below), including, without limitation, the Assignor’s [2029][Incremental] Term Loan Commitments as in effect on the Effective Date and the Loans, if any, owing to the Assignor on the Effective Date.
2.The Assignor (i) represents and warrants that it is the legal and beneficial owner of the interest being assigned by it hereunder and that such interest is free and clear of any adverse claim, lien, or encumbrance of any kind; (ii) makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with the Credit Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement or any other instrument or document furnished pursuant thereto; and (iii) makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or any Subsidiary or the performance or observance by the Borrower or any Subsidiary of any of their respective obligations under the Credit Agreement or any other instrument or document furnished pursuant thereto.
3.The Assignee (i) confirms that it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered to the Lenders pursuant to Section 8.5(b) and (c) thereof and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Acceptance; (ii) agrees that it will, independently and without reliance upon the Administrative Agent, the Assignor or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement; (iii) appoints and authorizes the Administrative Agent to take such action as Administrative Agent on its behalf and to exercise such powers under the Credit Agreement and the other Loan Documents as are delegated to the Administrative Agent by the terms thereof, together with such powers as are reasonably incidental thereto; (iv) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement are required to be performed by it as a Lender; and (v) specifies as its
lending office (and address for notices) the offices set forth on its Administrative Questionnaire.
4.As consideration for the assignment and sale contemplated in Annex I hereof, the Assignee shall pay to the Assignor on the Effective Date in Federal funds the amount agreed upon between them. Each of the Assignor and the Assignee hereby agrees that if it receives any amount under the Credit Agreement which is for the account of the other party hereto, it shall receive the same for the account of such other party to the extent of such other party’s interest therein and shall promptly pay the same to such other party.
5.The effective date for this Assignment and Acceptance shall be ___________ (the “Effective Date”). Following the execution of this Assignment and Acceptance, it will be delivered to the Administrative Agent for acceptance and recording by the Administrative Agent and, if required, the Borrower.
6.Upon such acceptance and recording, as of the Effective Date, (i) the Assignee shall be a party to the Credit Agreement and, to the extent provided in this Assignment and Acceptance, have the rights and obligations of a Lender thereunder and (ii) the Assignor shall, to the extent provided in this Assignment and Acceptance, relinquish its rights and be released from its obligations under the Credit Agreement.
7.Upon such acceptance and recording, from and after the Effective Date, the Administrative Agent shall make all payments under the Credit Agreement in respect of the interest assigned hereby (including, without limitation, all payments of principal and interest with respect thereto) to the Assignee. The Assignor and Assignee shall make all appropriate adjustments in payments under the Credit Agreement for periods prior to the Effective Date directly between themselves.
-2-
8.This Assignment and Acceptance shall be governed by, and construed in accordance with, the internal laws of the State of New York.
[Assignor Lender]
By___________________________
Name_____________________
Title_____________________
[Assignee Lender]
By_____________________________
Name____________________________
Title____________________________
Accepted and consented this
____ day of _____________
CTO Realty Growth, Inc.
By_____________________________
Name
Title
Accepted and consented to by the Administrative Agent this ___ day of _________
KeyBank National Association, as Administrative Agent
By_____________________________
Name
Title
-3-
Annex I
to Assignment and Acceptance
The assignee hereby purchases and assumes from the assignor the following interest in and to all of the Assignor’s rights and obligations under the Credit Agreement as of the effective date.
Facility Assigned | Aggregate | Amount of | Percentage Assigned |
$____________ | $____________ | $____________ |
-4-
Exhibit G
Additional Guarantor Supplement
______________, ___
KeyBank National Association, as Administrative Agent for the Lenders named in the Credit Agreement dated as of September 30, 2024, among CTO Realty Growth, Inc., as the Borrower, the Guarantors signatories thereto, the Lenders from time to time party thereto, and the Administrative Agent (the “Credit Agreement”)
Ladies and Gentlemen:
Reference is made to the Credit Agreement described above. Terms not defined herein which are defined in the Credit Agreement shall have for the purposes hereof the meaning provided therein.
The undersigned, [name of Subsidiary Guarantor], a [jurisdiction of incorporation or organization] hereby elects to be a “Guarantor” for all purposes of the Credit Agreement, effective from the date hereof. The undersigned confirms that the representations and warranties set forth in Section 6 of the Credit Agreement are true and correct as to the undersigned as of the date hereof and the undersigned shall comply with each of the covenants set forth in Section 8 of the Credit Agreement applicable to it.
Without limiting the generality of the foregoing, the undersigned hereby agrees to perform all the obligations of a Guarantor under, and to be bound in all respects by the terms of, the Credit Agreement, including, without limitation, Section 13 thereof, to the same extent and with the same force and effect as if the undersigned were a signatory party thereto.
The undersigned acknowledges that this Agreement shall be effective upon its execution and delivery by the undersigned to the Administrative Agent, and it shall not be necessary for the Administrative Agent or any Lender, or any of their Affiliates entitled to the benefits hereof, to execute this Agreement or any other acceptance hereof. This Agreement shall be construed in accordance with and governed by the internal laws of the State of New York.
Very truly yours,
[Name of Subsidiary Guarantor]
By___________________________
Name________________________
Title________________________
Exhibit H
Commitment Increase Request
_______________, ____
To: | KeyBank National Association, as Administrative Agent for the Lenders parties to the Credit Agreement dated as of September 30, 2024 (as extended, renewed, amended or restated from time to time, the “Credit Agreement”), among CTO Realty Growth, Inc., the Guarantors which are signatories thereto, certain Lenders parties thereto, and KeyBank National Association, as Administrative Agent |
Ladies and Gentlemen:
The undersigned, CTO Realty Growth, Inc. (the “Borrower”) hereby refers to the Credit Agreement and requests that the Administrative Agent consent to an increase in the aggregate Commitments (the “Commitment Increase”), in accordance with Section 1.15 of the Credit Agreement, to be effected by [an increase in the Commitment of [name of existing Lender]] [the addition of [name of new Lender] (the “New Lender”) as a Lender under the terms of the Credit Agreement]. Capitalized terms used herein without definition shall have the same meanings herein as such terms have in the Credit Agreement.
After giving effect to such Commitment Increase, the Commitment of the [Lender] [New Lender] shall be $_____________.
[Include paragraphs 1-4 for a New Lender]
1.The New Lender hereby confirms that it has received a copy of the Loan Documents and the exhibits related thereto, together with copies of the documents which were required to be delivered under the Credit Agreement as a condition to the making of the Term Loans and other extensions of credit thereunder. The New Lender acknowledges and agrees that it has made and will continue to make, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, its own credit analysis and decisions relating to the Credit Agreement. The New Lender further acknowledges and agrees that the Administrative Agent has not made any representations or warranties about the credit worthiness of the Borrower or any other party to the Credit Agreement or any other Loan Document or with respect to the legality, validity, sufficiency or enforceability of the Credit Agreement or any other Loan Document or the value of any security therefor.
2.Except as otherwise provided in the Credit Agreement, effective as of the date of acceptance hereof by the Administrative Agent, the New Lender (i) shall be deemed automatically to have become a party to the Credit Agreement and have all the rights and obligations of a “Lender” under the Credit Agreement as if it were an original signatory thereto and (ii) agrees to
be bound by the terms and conditions set forth in the Credit Agreement as if it were an original signatory thereto.
3.The New Lender shall deliver to the Administrative Agent an Administrative Questionnaire and shall have executed an Incremental Amendment.
[4.The New Lender has delivered, if appropriate, to the Borrower and the Administrative Agent (or is delivering to the Borrower and the Administrative Agent concurrently herewith) the tax forms referred to in [Section 12.1] of the Credit Agreement.]*
This Agreement shall be deemed to be a contractual obligation under, and shall be governed by and construed in accordance with, the internal laws of the state of New York.
The Commitment Increase shall be effective when the executed (x) Incremental Amendment, (y) consent of the Administrative Agent is received or otherwise in accordance with Section 1.15 of the Credit Agreement, but not in any case prior to ___________________, ____. It shall be a condition to the effectiveness of the Commitment Increase that all expenses referred to in Section 1.15 of the Credit Agreement shall have been paid.
The Borrower hereby certifies that no Default or Event of Default has occurred and is continuing.
* Insert bracketed paragraph if New Lender is organized under the law of a jurisdiction other than the United States of America or a state thereof.
-2-
Please indicate the Administrative Agent’s consent to such Commitment Increase by signing the enclosed copy of this letter in the space provided below.
Very truly yours,
CTO Realty Growth, Inc.
By:
Name:
Title:
[New or existing Lender Increasing Commitments]
By:
Name:
Title:
The undersigned hereby consents on this __ day of _____________, _____ to the above-requested Commitment Increase.
KeyBank National Association,
as Administrative Agent
By
Name
Title
-3-
Exhibit I
Borrowing Base Certificate
To: | KeyBank National Association, as Administrative Agent under, and the Lenders party to, the Credit Agreement described below. |
Pursuant to the terms of the Credit Agreement dated as of September 30, 2024, as amended, among us (the “Credit Agreement”), we submit this Borrowing Base Certificate to you and certify that the calculation of the Borrowing Base set forth below and on any Exhibits to this Certificate is true, correct and complete as of the Borrowing Base Determination Date.
A.Borrowing Base Determination Date: __________________ ____, 20___.
B.The Borrowing Base and compliance as of the Borrowing Base Determination Date is calculated as:
1.[60%][65%]3 of the Borrowing Base Value as calculated on Exhibit A hereto | $_________________ |
2.Debt Service Coverage Amount as calculated on Exhibit B hereto | $_________________ |
3.The lesser of Line 1 and Line 2 | $_________________ |
4.Other Unsecured Indebtedness (other than the Obligations and including the Convertible Senior Notes) | $_________________ |
5.Line 3 minus Line 4 (the “Borrowing Base”) | $_________________ |
6.Aggregate Obligations outstanding | $_________________ |
The foregoing certifications, together with the computations set forth in Schedule I hereto are made and delivered this ______ day of __________________ 20___.
3 Leverage Ratio Increase Period.
CTO Realty Growth, Inc.
By:
Name:
Title:
-2-
Exhibit A to Borrowing Base Certificate
of CTO Realty Growth, Inc.
This Exhibit A is attached to the Borrowing Base Certificate of CTO Realty Growth, Inc. for the Borrowing Base Determination Date of ___________ ____, 20___ and delivered to KeyBank National Association, as Administrative Agent, and the Lenders party to the Credit Agreement dated September 30, 2024, as amended, referred to therein. The undersigned hereby certifies that the following is a true, correct and complete calculation of Borrowing Base Value as of the Borrowing Base Determination Date set forth above:
[Insert Calculation or attach Schedule with exclusions for concentration limits]
Borrowing Base Value of all Eligible Properties:$__________
Borrowing Base Requirements:
A. Number of Properties | |
1. The number of Eligible Properties with leaseable area of not less than 25,000 sq ft each | ___________ |
2. Line A1 shall not be less than 15 | |
3. The Borrower is in compliance (circle yes or no) | yes/no |
B. Borrowing Base Value | |
1. Borrowing Base Value | $___________ |
2. Line B1 shall not be less than $400,000,000 | |
3. The Borrower is in compliance (circle yes or no) | yes/no |
C. Non-Retail Properties | |
1. Percent of Borrowing Base Value attributable to properties that are not retail, Retail Mixed-Use Properties or office properties | ___________% |
2. Line C1 shall not be greater than 15% | |
3. The Borrower is in compliance (circle yes or no) | yes/no |
D. Individual Eligible Property Value | |
1. The Percentage of Borrowing Base Value of each Eligible Property is set forth [above or on the attached Schedule] and the largest Borrowing Base Value or any Eligible Property is $___________ for the ___________ Eligible Property. | |
-3-
2. No Eligible Property comprises more than 20% of Borrowing Base Value | |
3. The Borrower is in compliance (circle yes or no) | yes/no4 |
| |
1. Weighted average Occupancy Rate of Eligible Properties | __% |
2. Line E1 shall not be less than 85% | |
3. The Borrower is in compliance (circle yes or no) | yes/no |
F. Major Target MSA | |
1. Percentage of the Borrowing Base Value comprised of Eligible Properties located in the same Major Target MSA | __% |
2. Line F1 shall be not greater than [35%][40%]5 | |
3. The Borrower is in compliance (circle yes or no) | yes/no |
G. Non-Major MSA | |
1. Percentage of the Borrowing Base Value comprised of Eligible Properties located in the same Non-Major Target MSA | __% |
2. Line G1 shall be not greater than 25% | |
3. The Borrower is in compliance (circle yes or no) | yes/no |
H. Leasehold Interests | |
1. Percentage of the Borrowing Base Value comprised of Eligible Properties constituting Eligible Leasehold Interests | __% |
2. Line H1 shall be not greater than 15% | |
3. The Borrower is in compliance (circle yes or no) | yes/no |
| |
4 If applicable, the calculation of Borrowing Base Value includes an adjustment to exclude that portion of the Property NOI or book value of any Eligible Properties attributable to any Eligible Properties to the extent it exceeds the 20% concentration limit.
540% reduces to 35% as of 9/30/25.
-4-
Exhibit B to Borrowing Base Certificate
of CTO Realty Growth, Inc.
This Exhibit B is attached to the Borrowing Base Certificate of CTO Realty Growth, Inc. for the Borrowing Base Determination Date of __________ ___, 20__ and delivered to KeyBank National Association, as Administrative Agent, and the Lenders party to the Credit Agreement dated September 30, 2024, as amended, referred to therein. The undersigned hereby certifies that the following is a true, correct and complete calculation of Debt Service Coverage Amount as of the Borrowing Base Determination Date set forth above:
Eligible Properties | Debt Service Coverage Amount as Calculated on Annex I to this Exhibit B |
| $__________ |
| $__________ |
| $__________ |
| $__________ |
Total Debt Service Coverage Amount of all Eligible Properties:$__________
-5-
Annex I to Exhibit B to Borrowing Base Certificate
of CTO Realty Growth, Inc.
[The Borrower to Insert Calculation of Debt Service Coverage Amount for each Eligible Property with concentration limit exclusions]
-6-
Schedule I
Commitments
as of Closing Date
Name of Lender | 2029 Term Loan Commitment |
KeyBank National Association | $30,000,000 |
PNC Bank, National Association | $25,000,000 |
Regions Bank | $25,000,000 |
Raymond James Bank | $20,000,000 |
Total | $100,000,000 |
Schedule 1.1
Initial Properties
Property or Tenant DBA | City, State | Square Feet |
|---|---|---|
Crabby’s Oceanside | Daytona Beach, Florida | 5,780 |
LandShark Bar & Grill | Daytona Beach, Florida | 6,264 |
Fidelity | Albuquerque, New Mexico | 210,067 |
The Strand | Jacksonville, Florida | 204,573 |
Crossroads Town Center | Chandler, Arizona | 217,312 |
Village Inn | Chandler, Arizona | 4,500 |
Party City | Chandler, Arizona | 12,000 |
Jimmy Johns & BBQ Galore | Chandler, Arizona | 8,000 |
Ashford Lane | Atlanta, Georgia | 277,408 |
The Shops at Legacy | Plano, Texas | 237,572 |
Beaver Creek Crossing | Apex, North Carolina | 322,113 |
369 N. New York Ave | Winter Park, Florida | 27,948 |
The Exchange at Gwinnett | Buford, Georgia | 93,366 |
Madison Yards | Atlanta, Georgia | 162,521 |
West Broad Village | Richmond, Virginia | 392,227 |
The Collection at Forsyth | Cumming, Georgia | 560,434 |
Stroud’s Barbeque & Grill | Daytona Beach, Florida | 3,381 |
Main Street Hospitality | Daytona Beach, Florida | 26,002 |
Plaza at Rockwall | Rockwall, Texas | 446,521 |
Schedule 1.1 - 1
Property or Tenant DBA | City, State | Square Feet |
|---|---|---|
Marketplace at Seminole | Sanford, Florida | 318,649 |
Carolina Pavilion* | Charlotte, North Carolina | 690,877 |
Millenia Crossing* | Orlando, Florida | 100,385 |
Lake Brandon Village* | Brandon, Florida | 102,022 |
Total | 23 Properties | 4,429,922 |
* Denotes 1031 Property.
Schedule 1.1 - 2
Schedule 6.2
Subsidiaries
ALPINE INCOME PRPERTY MANAGER, LLC (limited liability company)
Date of Formation:August 16, 2019
State of Formation:Delaware
Member:CTO Realty Growth, Inc. 100%
CTO TRS Crisp 39 LLC (limited liability company)
Date of Formation:October 17, 2019
State of Formation:Delaware
Member:CTO Realty Growth, Inc. 100%
CTO TRS CW LLC (limited liability company)
Date of Formation:March 5, 2020
State of Formation:Delaware
Member:CTO TRS CRISP39 LLC 100%
CTO TRS MITIGATION LLC (limited liability company)
Date of Formation:March 5, 2020
State of Formation:Delaware
Member:CTO TRS CRISP39 LLC 100%
CTO16 ATLANTIC LLC (limited liability company)
Date of Formation:November 9, 2016
State of Formation:Delaware
Member:CTO Realty Growth, Inc. 100% Managing Member
CTO16 PETERSON LLC (limited liability company)
Date of Formation:October 11, 2016
State of Formation:Delaware
Member:CTO Realty Growth, Inc. (100%)
CTO17 WESTCLIFF TX LLC (limited liability company)
Date of Formation:January 10, 2017
State of Formation:Delaware
Member:CTO Realty Growth, Inc. 100% Managing Member
CTO18 ALBUQUERQUE NM LLC (limited liability company)
Date of Formation:August 8, 2018
State of Formation:Delaware
Member:CTO Realty Growth, Inc. 100%
Schedule 6.2 - 1
CTO18 JACKSONVILLE FL LLC (limited liability company)
Date of Formation:September 13, 2018
State of Formation:Delaware
Member:CTO Realty Growth, Inc. 100%
CTO19 OCEANSIDE NY LLC (limited liability company)
Date of Formation:August 20, 2019
State of Formation:Delaware
Member:CTO Realty Growth, Inc. 100%
CTO19 RESTON VA LLC (limited liability company)
Date of Formation:June 28, 2019
State of Formation:Delaware
Member:CTO Realty Growth, Inc. 100%
CTO19 Strand JAX LLC (limited liability company)
Date of Formation:December 2, 2019
State of Formation:Delaware
Member:CTO Realty Growth, Inc. 100%
CTO20 CROSSROADS AZ LLC (limited liability company)
Date of Formation:December 16, 2019
State of Formation:Delaware
Member:CTO Realty Growth, Inc. 100%
CTO21 APEX LLC (limited liability company)
(Name changed from CTO20 FALLS CENTRE LLC, effective November 17, 2021)
Date of Formation:January 16, 2020
State of Formation:Delaware
Member:CTO Realty Growth, Inc. 100%
CTO20 HIALEAH LLC (limited liability company)
Date of Formation:September 11, 2020
State of Formation:Delaware
Member:CTO Realty Growth, Inc. 100%
CTO20 PERIMETER II LLC (limited liability company)
Date of Formation:February 18, 2020
State of Formation:Delaware
Member:CTO Realty Growth, Inc. (100%)
CTO20 PERIMETER LLC (limited liability company)
Date of Formation:February 18, 2020
State of Formation:Delaware
Member:CTO Realty Growth, Inc. 100%
Schedule 6.2 - 2
CTO24 HYUPOLUXO LLC (limited liability company)
Date of Formation:January 16, 2020
State of Formation:Delaware
Member:CTO Realty Growth, Inc. 100%
CTO20 TAMPA LLC (limited liability company)
Date of Formation:August 14, 2020
State of Formation:Delaware
Member:CTO Realty Growth, Inc. 100%
CTO21 ACQUISITIONS LLC (limited liability company)
Date of Formation:March 3, 2021
State of Formation:Delaware
Member:CTO Realty Growth, Inc. 100%
CTO21 ACQUISITIONS II LLC (limited liability company)
Date of Formation:May 28, 2021
State of Formation:Delaware
Member:CTO Realty Growth, Inc. 100%
DAYTONA JV LLC (limited liability company)
Date of Formation:August 5, 2015
State of Formation:Florida
Members: | LHC15 Atlantic DB JV LLC (50%, managing member) and CTO16 Atlantic LLC (50% managing member) |
DB BEACH LAND LLC (limited liability company)
Date of Formation:July 14, 2017
State of Formation:Delaware
Member:CTO Realty Growth, Inc., 100% Managing Member
DB MAIN STREET LLC (limited liability company)
Date of Formation:March 13, 2019
State of Formation:Delaware
Member:CTO Realty Growth, Inc. 100%
DB MAINLAND LLC (limited liability company)
Date of Formation:May 11, 2017; Name Change Amendment 7/14/2017
State of Formation:Delaware
Member:CTO Realty Growth, Inc., 100% Managing Member
DB MAINLAND TWO LLC (limited liability company)
Date of Formation:April 23, 2018
State of Formation:Delaware
Member:Indigo Group Inc. 100%
Schedule 6.2 - 3
IGI16 PETERSON LLC (limited liability company)
Date of Formation:October 12, 2016
State of Formation:Delaware
Member:Indigo Group Inc 100%
IGI18 Back 40 LLC (limited liability company)
Date of Formation:February 23, 2018
State of Formation:Delaware
Member:Indigo Group Inc 100%
IGI20 CROSSROADS AZ LLC (limited liability company)
Date of Formation:January 16, 2020
State of Formation:Delaware
Member:Indigo Group Inc. (100%)
IGI20 TAMPA LLC (limited liability company)
Date of Formation:August 19, 2020
State of Formation:Delaware
Member:Indigo Group, Inc. 100%
IGL20 TAMPA LLC (limited liability company)
Date of Formation:August 19, 2020
State of Formation:Delaware
Member:Indigo Group Ltd. 100%
INDIGO DEVELOPMENT LLC (limited liability company)
Date of Formation: January 13, 2009
State of Formation: Florida
Member: CTO Realty Growth, Inc., 100% Managing Member
INDIGO GROUP INC. (corporation)
Date of Incorporation: | September 27, 1984, name change amendments 4/7/1987 and 7/23/1991 |
State of Incorporation: | Florida |
Shareholder: CTO Realty Growth, Inc.
INDIGO GROUP LTD (limited partnership)
Date of Formation: | April 30, 1987, name change amendment 8/1/1991 |
State of Formation: | Florida |
Partners:
Indigo Group Inc.
(Managing General Partner) 1.460%
Palms Del Mar Inc. 5.065%
(Limited Partner)
CTO Realty Growth, Inc. 93.475%
Schedule 6.2 - 4
LHC15 ATLANTIC DB JV LLC (limited liability company)
Date of Formation:August 3, 2015
State of Formation:Delaware
Member:CTO Realty Growth, Inc., 100% Managing Member
LHC15 RIVERSIDE FL LLC (limited liability company)
Date of Formation:June 30, 2015
State of Formation:Delaware
Member:CTO Realty Growth, Inc., 100% Managing Member
PALMS DEL MAR INC. (corporation)
Date of formation: May 12, 1978 (Acquired by CTO Realty Growth, Inc., The Predecessor
State of formation: Florida
Sole Shareholder: CTO Realty Growth, Inc.
CTO21 AL OUTPARCEL LLC (limited liability company)
Date of Formation:December 23, 2021
State of Formation:Delaware
Member:CTO Realty Growth, Inc., 100%
CTO21 EXCHANGE LLC (limited liability company)
Date of Formation:December 14, 2021
State of Formation:Delaware
Member:CTO Realty Growth, Inc., 100%
CTO21 SANTA FE LLC (limited liability company)
Date of Formation:November 19, 2021
State of Formation:Delaware
Member:CTO Realty Growth, Inc., 100%
CTO21 BUFORD 1 LLC (limited liability company)
Date of Formation:December 9, 2021
State of Formation:Delaware
Member:CTO Realty Growth, Inc., 100%
IGI21 KATY LLC (limited liability company)
Date of Formation:December 14, 2021
State of Formation:Delaware
Member:Indigo Group Inc., 100%
CTO22 WATERSTAR LLC (limited liability company)
Date of Formation:March 9, 2022
State of Formation:Delaware
Member:CTO Realty Growth, Inc., 100%
Schedule 6.2 - 5
CTO22 WATTERS CREEK LLC (limited liability company)
Date of Formation:March 15, 2022
State of Formation:Delaware
Member:CTO Realty Growth, Inc., 100%
CTO22 SHORT PUMP LLC (limited liability company)
Date of Formation:August 15, 2022
State of Formation:Delaware
Member:CTO Realty Growth, Inc., 100%
CTO22 MADISON YARDS LLC (limited liability company)
Date of Formation:June 14, 2022
State of Formation:Delaware
Member:CTO Realty Growth, Inc., 100%
CTO21 WINTER PARK LLC (limited liability company)
Date of Formation:November 29, 2021
State of Formation:Delaware
Member:CTO Realty Growth, Inc., 100%
CTO21 Carolina LLC (limited liability company)
Date of Formation:July 16, 2024
State of Formation:Delaware
Member: CTO Realty Growth, Inc., 100%
CTO24 Brandon LLC (limited liability company)
Date of Formation:July 16, 2024
State of Formation:Delaware
Member: CTO Realty Growth, Inc., 100%
CTO24 Millenia LLC (limited liability company)
Date of Formation:July 16, 2024
State of Formation:Delaware
Member: CTO Realty Growth, Inc., 100%
CTO23 Rockwall LLC (limited liability company)
Date of Formation:May 4, 2023
State of Formation:Delaware
Member: CTO Realty Growth, Inc., 100%
CTO24 MSTC LLC (limited liability company)
Date of Formation:February 15, 2024
State of Formation:Delaware
Member: CTO Realty Growth, Inc., 100%
Schedule 6.2 - 6
CTO23 Founders DAL LLC (limited liability company)
Date of Formation:January 5, 2023
State of Formation:Delaware
Member: CTO Realty Growth, Inc., 100%
CTO23 Forsyth Land LLC (limited liability company)
Date of Formation:August 22, 2023
State of Formation:Delaware
Member: CTO Realty Growth, Inc., 100%
CTO22 Forsyth LLC (limited liability company)
Date of Formation:September 15, 2022
State of Formation:Delaware
Member: CTO Realty Growth, Inc., 100%
Schedule 6.2 - 7
Schedule 6.6
Material Adverse Change
NONE.
Schedule 6.11
Litigation
This Schedule 6.11 is qualified in its entirety by reference to specific provisions of the Credit Agreement to which it relates, and to the extent such provisions contain representations and warranties, this Schedule 6.11 is intended to only qualify and shall not be deemed to expand in any way the scope or effect of any such representations and warranties. Capitalized terms used herein but not defined herein shall have the meanings ascribed to them in the Credit Agreement. Inclusion of information herein shall not be construed as an admission that such information is material to the Borrower or to any of the Subsidiaries. Matters reflected in this Schedule are not necessarily limited to matters required by the Credit Agreement to be reflected herein. Any such additional matters are included herein for informational purposes and do not necessarily include other matters of similar nature. Headings have been inserted herein for convenience of reference only and shall to no extent have the effect of amending or changing the express description of this Schedule in the Credit Agreement.
NONE.
Schedule 6.17
Environmental Issues
This Schedule 6.17 is qualified in its entirety by reference to specific provisions of the Credit Agreement to which it relates, and to the extent such provisions contain representations and warranties, this Schedule 6.17 is intended to only qualify and shall not be deemed to expand in any way the scope or effect of any such representations and warranties. Capitalized terms used herein but not defined herein shall have the meanings ascribed to them in the Credit Agreement. Inclusion of information herein shall not be construed as an admission that such information is material to the Borrower or to any of the Subsidiaries. Matters reflected in this Schedule are not necessarily limited to matters required by the Credit Agreement to be reflected herein. Any such additional matters are included herein for informational purposes and do not necessarily include other matters of similar nature. Headings have been inserted herein for convenience of reference only and shall to no extent have the effect of amending or changing the express description of this Schedule in the Credit Agreement.
NONE.
Schedule 8.7
Existing Liens
NONE.