UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): |
(Exact name of Registrant as Specified in Its Charter)
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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
Securities registered pursuant to Section 12(b) of the Act:
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Trading |
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 Entry into a Material Definitive Agreement.
On May 30, 2023, Easterly Government Properties, Inc. (the “Company”), its operating partnership, Easterly Government Properties LP (the “Operating Partnership”), and certain subsidiaries of the Operating Partnership entered into the Third Amendment to Second Amended and Restated Credit Agreement (the “Credit Agreement Amendment”) with Citibank, N.A., as administrative agent, Wells Fargo Bank, N.A. and PNC Bank, National Association, as co-syndication agents, BMO Harris Bank, N.A., Raymond James Bank, Royal Bank of Canada and Truist Bank, as co-documentation agents, and Citibank, N.A., Wells Fargo Securities, LLC and PNC Capital Markets LLC, as joint lead arrangers and joint book running managers, and the other banks, financial institutions and other institutional lenders party thereto as initial lenders and initial issuing banks, which amended certain terms of the Second Amended and Restated Credit Agreement, dated as of July 23, 2021 (as amended, the “Credit Agreement”).
On May 30, 2023, the Company, the Operating Partnership and certain of the Company’s subsidiaries entered into a sixth amendment (the “Term Loan Amendment”) to its senior unsecured term loan agreement, dated as of September 29, 2016, with PNC Bank, National Association, as administrative agent, and certain lenders party thereto from time to time (as amended, the “Term Loan Agreement”).
The Credit Agreement Amendment and the Term Loan Amendment added a daily simple SOFR-based option to the term SOFR-based floating interest rate option as a benchmark rate for borrowings denominated in U.S. dollars for all purposes under the Credit Agreement and the Term Loan Agreement, including, in each case, a credit spread adjustment of 0.10%. Other than the foregoing, the material terms of the Credit Agreement and the Term Loan Agreement remain unchanged.
Certain of the banks and financial institutions that are parties to the Credit Agreement and/or the Term Loan Agreement and their respective affiliates have in the past provided, are currently providing, and in the future may continue to provide investment banking, commercial banking and other financial services to the Company and its affiliates in the ordinary course of business for which they have received and will receive customary compensation.
The foregoing description of the Credit Agreement Amendment and Term Loan Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the Credit Agreement Amendment and Term Loan Amendment, which are filed as Exhibits 10.1 and 10.2 hereto, respectively, and are incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits:
Exhibit Number |
Description |
10.1 |
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10.2 |
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104 |
Cover Page Interactive Data File (embedded within the inline XBRL document.) |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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EASTERLY GOVERNMENT PROPERTIES, INC. |
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Date: |
June 2, 2023 |
By: |
/s/ William C. Trimble, III |
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William C. Trimble, III |
Exhibit 10.1
Execution Version
THIRD AMENDMENT TO
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of May 30, 2023
By and Among
EASTERLY GOVERNMENT PROPERTIES LP,
as Borrower,
EASTERLY GOVERNMENT PROPERTIES, INC.,
as Parent,
THE GUARANTORS NAMED HEREIN,
as Guarantors,
THE INITIAL LENDERS AND THE INITIAL ISSUING BANKS NAMED HEREIN,
as Initial Lenders and Initial Issuing Banks,
and
CITIBANK, N.A.,
as Administrative Agent,
with
WELLS FARGO BANK, N.A.,
and
PNC BANK, NATIONAL ASSOCIATION,
as Co‑Syndication Agents,
BMO HARRIS BANK, N.A., RAYMOND JAMES BANK, ROYAL BANK OF CANADA and TRUIST BANK
as Co-Documentation Agents,
and
CITIBANK, N.A.,
WELLS FARGO SECURITIES, LLC,
and
PNC CAPITAL MARKETS LLC,
as Joint Lead Arrangers and Joint Book Running Managers
THIRD AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This THIRD AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (the “Amendment”) is entered into as of May 30, 2023 among EASTERLY GOVERNMENT PROPERTIES LP, a Delaware limited partnership (the “Borrower”), EASTERLY GOVERNMENT PROPERTIES, INC., a Maryland corporation (the “Parent”), the entities listed on the signature pages hereto as the subsidiary guarantors from time to time (together with any Additional Guarantors from time to time party to the Credit Agreement, the “Subsidiary Guarantors” and, together with the Parent, the “Guarantors”), the banks, financial institutions and other institutional lenders listed on the signature pages hereof as the initial lenders (the “Initial Lenders”), CITIBANK, N.A., Wells Fargo Bank, N.A. (“Wells Fargo”) and PNC Bank, National Association (“PNC”), as the initial issuers of Letters of Credit (the “Initial Issuing Banks”) and CITIBANK, N.A. (“Citi”), as administrative agent (together with any successor administrative agent appointed pursuant to Section 8.06 of the Credit Agreement, the “Administrative Agent”) for the Lender Parties, with WELLS FARGO BANK, N.A. and PNC BANK, NATIONAL ASSOCIATION, as co‑syndication agents (the “Syndication Agents”), BMO HARRIS BANK, N.A., RAYMOND JAMES BANK, ROYAL BANK OF CANADA and TRUIST BANK (as successor by merger to SunTrust Bank), as co-documentation agents (the “Co-Documentation Agents”) and Citi, WELLS FARGO SECURITIES, LLC and PNC CAPITAL MARKETS LLC, as joint lead arrangers and joint book running managers (the “Arrangers”).
Recitals
The Borrower, the Parent, the Guarantors, the Initial Lenders, the Initial Issuing Banks, the Administrative Agent, the Syndication Agents, the Co-Documentation Agents, and the Arrangers are parties to that certain Second Amended and Restated Credit Agreement dated as of July 23, 2021, as amended by that certain First Amendment to Second Amended and Restated Credit Agreement dated as of July 22, 2022 and that certain Second Amendment to Second Amended and Restated Credit Agreement dated as of November 23, 2022 (as amended, restated, modified or supplemented from time to time, the “Credit Agreement”). Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Credit Agreement. The Borrower has requested that the Lenders amend certain provisions of the Credit Agreement to permit the Borrower to select Daily Simple SOFR as the Benchmark and the Lenders are willing to make such amendments to the Credit Agreement in accordance with and subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the agreements hereinafter set forth, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
Article I
AMENDMENTS TO CREDIT AGREEMENT
The Credit Agreement (other than the schedules and exhibits attached thereto) is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: strickentext) and to add the underlined text (indicated textually in the same manner as the following example: underlined text) as set forth on Annex A.
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Article II
CONDITIONS TO EFFECTIVENESS
2.1 Closing Conditions.
(a) This Amendment shall become effective on the date (the “Amendment Effective Date”) that is the later of (1) the date hereof and (2) the first date on which, and only if, each of the following conditions precedent shall have been satisfied:
(i) The Administrative Agent shall have received counterparts of this Amendment executed by the Borrower and the Guarantors;
(ii) The Administrative Agent shall have received counterparts of this Amendment executed by each of the Lenders; and
(iii) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(b) The effectiveness of this Amendment is further conditioned upon the accuracy of the factual matters described herein.
Article III
MISCELLANEOUS
3.1 Amended Terms. On and after the Amendment Effective Date, all references to the Credit Agreement in each of the Loan Documents shall hereafter mean the Credit Agreement as amended and modified by this Amendment. Except as specifically amended and modified hereby, the Credit Agreement and each of the other Loan Documents are hereby ratified and confirmed by the Loan Parties and shall remain in full force and effect according to their respective terms.
3.2 Representations and Warranties of Loan Parties. Each of the Loan Parties represents and warrants as follows:
(a) It has taken all necessary action to authorize the execution, delivery and performance of this Amendment.
(b) This Amendment has been duly executed and delivered by such Person and constitutes such Person’s legal, valid and binding obligation, enforceable in accordance with its terms, except as such enforceability may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).
(c) No consent, approval, authorization or order of, or filing, registration or qualification with, any court or governmental authority or third party is required in connection with the execution, delivery or performance by such Person of this Amendment.
(d) After giving effect to this Amendment, the representations and warranties set forth in Article IV of the Credit Agreement are true and correct in all material respects (unless qualified as to materiality or Material Adverse Effect, in which case such representations and warranties shall be true and correct in all respects and except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct on and as of such earlier date, and except further to the extent any such representations and warranties
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that are no longer true and correct as a result of factual changes since the Closing Date that are permitted under the Credit Agreement) as of the date hereof (except for those which expressly relate to an earlier date, in which case such representations and warranties shall be true and correct as of such earlier date).
(e) After giving effect to this Amendment, there exists no Default or Event of Default under any of the Loan Documents.
(f) The Obligations are not subject to any offsets, defenses or counterclaims.
3.3 Reaffirmation of Obligations. Except as specifically amended or modified hereby, each Loan Party hereby ratifies the Credit Agreement and the other Loan Documents and acknowledges and reaffirms (a) that it is bound by all terms of the Credit Agreement applicable to it and (b) that it is responsible for the observance and full performance of the Obligations.
3.4 Loan Document. This Amendment shall constitute a Loan Document under the terms of the Credit Agreement. On and after the effectiveness of this Amendment, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Credit Agreement, and each reference in the other Loan Documents to “the Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement, as amended and modified by this Amendment. No amendment, modification, or waiver of any of the provisions of this Amendment by any party hereto shall be deemed to be made unless the same shall be in writing signed on behalf of each party hereto.
3.5 Expenses. Each Loan Party agrees jointly and severally to pay, in accordance with Section 9.04 of the Credit Agreement, all reasonable and documented out-of-pocket costs and expenses of the Administrative Agent in connection with the preparation, execution and delivery of this Amendment, including without limitation, the reasonable and documented fees and expenses of Shearman & Sterling LLP, counsel for the Administrative Agent.
3.6 Further Assurances. The Loan Parties agree to promptly take such action, upon the request of the Administrative Agent, as is necessary to carry out the intent of this Amendment.
3.7 Entirety. This Amendment and the other Loan Documents embody the entire agreement among the parties hereto and supersede all prior agreements and understandings, oral or written, if any, relating to the subject matter hereof.
3.8 Counterparts; Telecopy. This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. Delivery of an executed counterpart to this Amendment by telecopy or other electronic means (e.g., PDF by e-mail) shall be effective as an original and shall constitute a representation that an original will be delivered. Copies of originals, including copies delivered by facsimile, .pdf, or other electronic means, shall have the same import and effect as original counterparts and shall be valid, enforceable and binding for the purposes of this Agreement and each other Loan Document. The words “execution,” “signed,” “signature,” and words of like import in this Amendment shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act. Notwithstanding anything contained herein to the contrary, the Administrative Agent is under no obligation to accept an electronic signature in any form or in any format unless expressly agreed to by the Administrative Agent pursuant to procedures approved by it. Without limitation of the foregoing, (a) to the extent the Administrative Agent has agreed to accept such electronic signature, the Administrative Agent and each of the Lenders shall be entitled to rely on any such electronic signature
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purportedly given by or on behalf of any Loan Party or any other party hereto without further verification and regardless of the appearance or form of such electronic signature and (b) upon the request of the Administrative Agent or any Lender, any electronic signature shall be promptly followed by a manually executed counterpart. Each Loan Party hereby waives (i) any argument, defense or right to contest the legal effect, validity or enforceability of this Amendment and/or any other Loan Document based solely on the lack of paper original copies of this Amendment and/or such other Loan Document and (ii) any claim against the Administrative Agent, each Lender for any liabilities arising solely from such Person’s reliance on or use of electronic signatures, including any liabilities arising as a result of the failure of the Loan Parties to use any available security measures in connection with the execution, delivery or transmission of any electronic signature.
3.9 No Actions, Claims, Etc. As of the date hereof, each of the Loan Parties hereby acknowledges and confirms that it has no knowledge of any actions, causes of action, claims, demands, damages and liabilities of whatever kind or nature, in law or in equity, against the Administrative Agent, the Lender Parties, or the Administrative Agent’s or the Lender Parties’ respective officers, employees, representatives, agents, counsel or directors arising from any action by such Persons, or failure of such Persons to act under the Credit Agreement on or prior to the date hereof.
3.10 GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
3.11 Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
3.12 Consent to Jurisdiction; Service of Process; Waiver of Jury Trial. The jurisdiction, service of process and waiver of jury trial provisions set forth in Sections 9.16 and 9.18 of the Credit Agreement are hereby incorporated by reference, mutatis mutandis.
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IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to Second Amended and Restated Credit Agreement to be duly executed as of the date first set forth above.
BORROWER: |
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EASTERLY GOVERNMENT PROPERTIES LP, |
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a Delaware limited partnership |
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By: |
EASTERLY GOVERNMENT PROPERTIES, |
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INC., a Maryland corporation, |
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its sole General Partner |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Executive Vice President, Chief |
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Financial Officer and Chief Operating Officer |
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PARENT: |
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EASTERLY GOVERNMENT PROPERTIES, INC., a Maryland corporation |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Executive Vice President, Chief Financial Officer and Chief Operating Officer
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[Signatures continue]
SUBSIDIARY GUARANTORS: |
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USGP ALBANY DEA, LLC, a Delaware limited |
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liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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USGP DALLAS DEA LP, a Delaware limited |
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partnership |
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By: USGP DALLAS 1 G.P., LLC, its general partner |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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USGP DEL RIO CH LP, a Delaware limited |
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partnership |
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By: USGP DEL RIO 1 G.P., LLC, its general partner |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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USGP FRESNO IRS, LLC, a Delaware limited |
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liability company |
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By: USGP FRESNO IRS MEMBER LLC, its sole |
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member |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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[Signature Page to Third Amendment to Second A&R Credit Agreement]
USGP SAN ANTONIO LP, a Delaware limited |
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partnership |
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By: USGP SAN ANTONIO GP, LLC, its general |
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partner |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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USGP ALBUQUERQUE USFS I, LLC, a Delaware limited liability company |
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By: USGP ALBUQUERQUE USFS I MEMBER, LLC, its sole member |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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USGP II ARLINGTON PTO LP, a Delaware |
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limited partnership |
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By: USGP II ARLINGTON PTO GENERAL PARTNER LLC, |
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its general partner |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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USGP II LITTLE ROCK FBI LP, a Delaware limited partnership
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By: USGP II LITTLE ROCK FBI GENERAL PARTNER LLC, its general partner |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
[Signature Page to Third Amendment to Second A&R Credit Agreement]
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Title: Chief Financial and Operating Officer |
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USGP II MARTINSBURG USCG LP, a Delaware limited partnership |
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By: USGP II MARTINSBURG USCG GENERAL PARTNER LLC, its general partner |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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USGP II OMAHA FBI LP, a Delaware limited partnership |
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By: USGP II OMAHA FBI GENERAL PARTNER LLC,its general partner |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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EGP CH EL CENTRO LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier Title: Chief Financial and Operating Officer |
EGP DEA NORTH HIGHLANDS LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier Title: Chief Financial and Operating Officer |
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[Signature Page to Third Amendment to Second A&R Credit Agreement]
EGP DEA RIVERSIDE LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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EGP DEA SANTA ANA LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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EGP DEA VISTA LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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EGP DEA WH SAN DIEGO LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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EGP SSA SAN DIEGO LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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[Signature Page to Third Amendment to Second A&R Credit Agreement]
EGP HUNTER LUBBOCK LP, a Delaware limited partnership |
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By: EGP LUBBOCK GP LLC, its general partner |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
USGP II LAKEWOOD WAPA LP, a Delaware limited partnership |
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By: USGP II LAKEWOOD WAPA GENERAL PARTNER LLC,its general partner |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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EGP CH ABERDEEN LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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[Signature Page to Third Amendment to Second A&R Credit Agreement]
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EGP 2297 OTAY LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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EGP USCIS LINCOLN LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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EGP DEA Lab Dallas LP, a Delaware limited partnership
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By: EGP DEA LAB DALLAS GENERAL PARTNER LLC, its general partner |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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EGP 1970 RICHMOND LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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EGP 5441 ALBUQUERQUE LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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[Signature Page to Third Amendment to Second A&R Credit Agreement]
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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EGP 601 OMAHA LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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EGP 920 BIRMINGHAM LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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EGP 300 KANSAS CITY LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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EGP 1000 BIRMINGHAM LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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EGP 200 ALBANY LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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[Signature Page to Third Amendment to Second A&R Credit Agreement]
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Title: Chief Financial and Operating Officer |
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EGP 401 SOUTH BEND LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier Title: Chief Financial and Operating Officer |
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EGP 5425 SALT LAKE LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier Title: Chief Financial Officer and Operating Officer |
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EGP 1201 ALAMEDA LLC, a Delaware limited liability company
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Operating Officer |
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EGP 10749 LENEXA LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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EGP 1547 TRACY LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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[Signature Page to Third Amendment to Second A&R Credit Agreement]
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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EGP 5855 SAN JOSE LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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EGP 10824 DALLAS LP, a Delaware limited partnership |
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By: EGP 10824 DALLAS GENERAL PARTNER LLC, its |
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general partner |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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EGP 130 BUFFALO LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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EGP 320 CLARKSBURG LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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[Signature Page to Third Amendment to Second A&R Credit Agreement]
EGP 320 PARKERSBURG LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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EGP 500 CHARLESTON LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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EGP 2300 DES PLAINES LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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EGP 3311 PITTSBURGH LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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EGP 85 CHARLESTON LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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[Signature Page to Third Amendment to Second A&R Credit Agreement]
EGP 7400 BAKERSFIELD LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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EGP 1440 UPPER MARLBORO LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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EGP 836 BIRMINGHAM LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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EGP 22624 STERLING LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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EGP 1201 PORTLAND LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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[Signature Page to Third Amendment to Second A&R Credit Agreement]
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EGP 116 SUFFOLK LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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EGP 2901 NEW ORLEANS LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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EGP 11201 LENEXA LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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EGP 14101 TUSTIN LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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ORANGE VA LLC, a Delaware limited liability company |
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By: EGP WEST HAVEN LLC, its sole member |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
[Signature Page to Third Amendment to Second A&R Credit Agreement]
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Title: Chief Financial and Operating Officer |
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EGP 660 EL PASO LP, a Delaware limited partnership
By: EGP 660 EL PASO GENERAL PARTNER LLC, its general member |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
EGP 4444 MOBILE LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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EGP CHICO LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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EGP 200 MOBILE LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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EGP 4136 NORTH CHARLESTON LLC, a Delaware limited liability company |
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[Signature Page to Third Amendment to Second A&R Credit Agreement]
By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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EGP DEA PLEASANTON LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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PHOENIX VA LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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EGP 111 JACKSON LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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EGP 654 LOUISVILLE LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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EGP 717 LOUISVILLE LLC, a Delaware limited |
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[Signature Page to Third Amendment to Second A&R Credit Agreement]
liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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EGP 1501 KNOXVILLE LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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EGP 318 SPRINGFIELD LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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EGP 7220 KANSAS CITY LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer
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EGP 925 Brooklyn Heights LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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West Indy VA LLC, a Delaware limited |
|
[Signature Page to Third Amendment to Second A&R Credit Agreement]
liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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EGP 17101 Broomfield LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer
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LUBBOCK VA LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer
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JOHNSON COUNTY VA LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
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Chattanooga VA LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer |
SAN ANTONIO VA LLC, a Delaware limited liability company |
[Signature Page to Third Amendment to Second A&R Credit Agreement]
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer
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BIRMINGHAM VA LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier Title: Chief Financial and Operating Officer |
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COBB COUNTY VA LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer
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COLUMBUS VA LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier |
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Title: Chief Financial and Operating Officer
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EGP 5525 Tampa LLC, a Delaware limited liability company |
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By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier Title: Chief Financial and Operating Officer |
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[Signature Page to Third Amendment to Second A&R Credit Agreement]
EGP 2146 COUNCIL BLUFFS LLC, a Delaware limited liability company |
By: |
/s/ Meghan Baivier |
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Name: Meghan Baivier Title: Chief Financial and Operating Officer |
CITIBANK, N.A., as an Initial Lender
By: /s/ David Bouton
Name: David Bouton
Title: Authorized Signatory
[Signature Page to Third Amendment to Second A&R Credit Agreement]
PNC BANK, NATIONAL ASSOCIATION, as an Initial Lender
By: /s/ Shari L. Reams-Henofer
Name: Shari L. Reams-Henofer
Title: Senior Vice President
[Signature Page to Third Amendment to Second A&R Credit Agreement]
WELLS FARGO BANK, N.A., as an Initial Lender
By: /s/ Scott S. Solis
Name: Scott S. Solis
Title: Managing Director
[Signature Page to Third Amendment to Second A&R Credit Agreement]
BMO HARRIS BANK N.A., as an Initial Lender
By: /s/ Darin Mainquist
Name: Darin Mainquist
Title: Director
[Signature Page to Third Amendment to Second A&R Credit Agreement]
RAYMOND JAMES BANK, as an Initial Lender
By: /s/ Alexander Sierra
Name: Alexander Sierra
Title: Vice President
[Signature Page to Third Amendment to Second A&R Credit Agreement]
ROYAL BANK OF CANADA, as an Initial Lender
By: /s/ Jake Sigmund
Name: Jake Sigmund
Title: Authorized Signatory
[Signature Page to Third Amendment to Second A&R Credit Agreement]
TRUIST BANK, as an Initial Lender
By: /s/ C. Vincent Hughes, Jr.
Name: C. Vincent Hughes, Jr.
Title: Director
[Signature Page to Third Amendment to Second A&R Credit Agreement]
CAPITAL ONE, NATIONAL ASSOCIATION, as an Initial Lender
By: /s/ Jessica W. Phillips
Name: Jessica W. Phillips
Title: Authorized Signatory
[Signature Page to Third Amendment to Second A&R Credit Agreement]
U.S. BANK NATIONAL ASSOCIATION, as an Initial Lender
By: /s/ Timothy J. Tillman
Name: Timothy J. Tillman
Title: Senior Vice President
[Signature Page to Third Amendment to Second A&R Credit Agreement]
ANNEX A
[Attached.]
Execution Version
CONFORMED COPY REFLECTING
FIRST AMENDMENT DATED AS OF JULY 22, 2022 AND,
SECOND AMENDMENT DATED AS OF NOVEMBER 23, 2022 AND
THIRD AMENDMENT DATED AS OF MAY 30, 2023
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of July 23, 2021
among
EASTERLY GOVERNMENT PROPERTIES LP,
as Borrower,
EASTERLY GOVERNMENT PROPERTIES, INC.,
as Parent,
THE GUARANTORS NAMED HEREIN,
as Guarantors,
THE INITIAL LENDERS AND THE INITIAL ISSUING BANKS NAMED HEREIN,
as Initial Lenders and Initial Issuing Banks,
and
CITIBANK, N.A.,
as Administrative Agent,
with
WELLS FARGO BANK, N.A.,
and
PNC BANK, NATIONAL ASSOCIATION,
as Co‑Syndication Agents,
BMO HARRIS BANK, N.A., RAYMOND JAMES BANK, ROYAL BANK OF CANADA and TRUIST BANK
as Co-Documentation Agents,
and
CITIBANK, N.A.,
WELLS FARGO SECURITIES, LLC,
and
PNC CAPITAL MARKETS LLC,
as Joint Lead Arrangers and Joint Book Running Managers
TABLE OF CONTENTS
Section Page
Article I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01 Certain Defined Terms 1
Section 1.02 Computation of Time Periods; Other Definitional Provisions 3735
Section 1.03 Accounting Terms 3735
Section 1.04 Divisions 3735
Article II
AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF CREDIT
Section 2.01 The Advances and the Letters of Credit 3736
Section 2.02 Making the Advances 3937
Section 2.03 Issuance of and Drawings and Reimbursement Under Letters of Credit 4341
Section 2.04 Repayment of Advances 4644
Section 2.05 Termination or Reduction of the Commitments 4745
Section 2.06 Prepayments 4745
Section 2.07 Interest 4846
Section 2.08 Fees 51
Section 2.09 Conversion of Advances 5253
Section 2.10 Increased Costs, Etc. 53
Section 2.11 Payments and Computations 5455
Section 2.12 Taxes 5657
Section 2.13 Sharing of Payments, Etc. 6061
Section 2.14 Use of Proceeds 61
Section 2.15 Evidence of Debt 6162
Section 2.16 Extensions of RC Maturity Date 6162
Section 2.17 Increase in the Aggregate Revolving Credit Commitments 6263
Section 2.18 Defaulting Lenders 6364
Section 2.19 Cash Collateral Account 6566
Section 2.20 Replacement of Lenders 6768
i
Section 2.21 Reallocation of Lender Pro Rata Shares; No Novation 68
Article III
CONDITIONS OF LENDING AND ISSUANCES OF LETTERS OF CREDIT
Section 3.01 Conditions Precedent to Initial Extension of Credit 6970
Section 3.02 Conditions Precedent to Each Borrowing, Issuance and Renewal, Extension and Increase 72
Section 3.03 Conditions Precedent to Each Competitive Bid Advance 7374
Section 3.04 Determinations Under Sections 3.01, 3.02 and 3.03 74
Article IV
REPRESENTATIONS AND WARRANTIES
Section 4.01 Representations and Warranties of the Loan Parties 7475
Article V
COVENANTS OF THE LOAN PARTIES
Section 5.01 Affirmative Covenants 8081
Section 5.02 Negative Covenants 85
Section 5.03 Reporting Requirements 8990
Section 5.04 Financial Covenants 9293
Article VI
EVENTS OF DEFAULT
Section 6.01 Events of Default 9394
Section 6.02 Actions in Respect of the Letters of Credit upon Default 9697
Article VII
GUARANTY
Section 7.01 Guaranty; Limitation of Liability 9697
Section 7.02 Guaranty Absolute 9798
Section 7.03 Waivers and Acknowledgments 9899
Section 7.04 Subrogation 99
Section 7.05 Guaranty Supplements 99100
Section 7.06 Indemnification by Guarantors 99100
Section 7.07 Subordination 100101
Section 7.08 Continuing Guaranty; Effect of Release 101
Section 7.09 Keepwell 101102
ii
Article VIII
THE ADMINISTRATIVE AGENT
Section 8.01 Authorization and Action 101102
Section 8.02 The Administrative Agent’s Reliance, Etc. 102
Section 8.03 Citibank and Affiliates 102103
Section 8.04 Lender Party Credit Decision 102103
Section 8.05 Indemnification by Lender Parties 103
Section 8.06 Successor Agents 104
Section 8.07 Relationship of Administrative Agent and Lenders 104105
Section 8.08 Certain ERISA Matters 104105
Section 8.09 Payments in Error 106107
Section 8.10 Sustainability 108
Article IX
MISCELLANEOUS
Section 9.01 Amendments, Etc. 108109
Section 9.02 Notices, Etc. 110111
Section 9.03 No Waiver; Remedies 112113
Section 9.04 Costs and Expenses 112113
Section 9.05 Right of Set‑off 114
Section 9.06 Binding Effect 114115
Section 9.07 Assignments and Participations; Replacement Notes 114115
Section 9.08 Execution in Counterparts 118
Section 9.09 Severability 118119
Section 9.10 Survival of Representations 119
Section 9.11 Usury Not Intended 119
Section 9.12 No Liability of Issuing Bank 119120
Section 9.13 Confidentiality 120
Section 9.14 Release of Guarantors 122123
Section 9.15 Patriot Act Notification; Anti-Money Laundering Act; Beneficial Ownership 124
Section 9.16 Jurisdiction, Etc. 124
iii
Section 9.17 Governing Law 124125
Section 9.18 WAIVER OF JURY TRIAL 124125
Section 9.19 No Fiduciary Duties 124125
Section 9.20 Acknowledgement and Consent to Bail-In of Affected Financial Institutions 125
Section 9.21 Acknowledgement Regarding Any Supported QFCs 125126
iv
SCHEDULES
Schedule I |
‑ |
Commitments and Applicable Lending Offices |
Schedule II |
‑ |
Unencumbered Assets |
Schedule III |
|
Rollover Borrowings |
Schedule 4.01(b) |
‑ |
Subsidiaries |
Schedule 4.01(f) |
‑ |
Material Litigation |
Schedule 4.01(o) |
‑ |
Existing Liens |
Schedule 4.01(p) |
‑ |
Real Property |
Part I |
‑ |
Owned Assets |
Part II |
‑ |
Leased Assets |
Schedule 4.01(q) |
‑ |
Environmental Concerns |
Schedule 4.01(w) |
‑ |
Plans and Welfare Plans |
EXHIBITS
Exhibit A-1 |
‑ |
Form of Revolving Credit Note |
Exhibit A-2 |
|
Form of Term Loan Note |
Exhibit B |
‑ |
Form of Notice of Borrowing |
Exhibit C |
‑ |
Form of Guaranty Supplement |
Exhibit D |
‑ |
Form of Assignment and Acceptance |
Exhibit E |
‑ |
Form of Notice of Competitive Bid Borrowing |
Exhibit F |
‑ |
Form of Availability Certificate |
Exhibit G‑1 |
‑ |
Form of Section 2.12(g) U.S. Tax Compliance Certificate |
|
|
(For Foreign Lender Parties That Are Not Partnerships For U.S. Federal Income Tax Purposes) |
Exhibit G‑2 |
|
Form of Section 2.12(g) U.S. Tax Compliance Certificate |
|
|
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes) |
Exhibit G‑3 |
|
Form of Section 2.12(g) U.S. Tax Compliance Certificate |
|
|
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes) |
Exhibit G‑4 |
|
Form of Section 2.12(g) U.S. Tax Compliance Certificate |
|
|
(For Foreign Lender Parties That Are Partnerships For U.S. Federal Income Tax Purposes) |
v
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of July 23, 2021 (this “Agreement”) among EASTERLY GOVERNMENT PROPERTIES LP, a Delaware limited partnership (the “Borrower”), EASTERLY GOVERNMENT PROPERTIES, INC., a Maryland corporation (the “Parent”), the entities listed on the signature pages hereof as the subsidiary guarantors from time to time (together with any Additional Guarantors (as hereinafter defined) acceding hereto pursuant to Section 5.01(j) or 7.05, from time to time, the “Subsidiary Guarantors” and, together with the Parent, the “Guarantors”), the banks, financial institutions and other institutional lenders listed on the signature pages hereof as the initial lenders (the “Initial Lenders”), CITIBANK, N.A., Wells Fargo Bank, N.A. (“Wells Fargo”) and PNC Bank, National Association (“PNC”), as the initial issuers of Letters of Credit (as hereinafter defined) (the “Initial Issuing Banks”) and CITIBANK, N.A. (“Citibank”), as administrative agent (together with any successor administrative agent appointed pursuant to Section 8.06, the “Administrative Agent”) for the Lender Parties (as hereinafter defined), with WELLS FARGO BANK, N.A. and PNC BANK, NATIONAL ASSOCIATION, as co‑syndication agents (the “Syndication Agents”), BMO HARRIS BANK, N.A., RAYMOND JAMES BANK, ROYAL BANK OF CANADA and TRUIST BANK (as successor by merger to SunTrust Bank), as co-documentation agents (the “Co-Documentation Agents”) and CITIBANK, N.A., WELLS FARGO SECURITIES, LLC and PNC CAPITAL MARKETS LLC, as joint lead arrangers and joint book running managers (the “Arrangers”).
W I T N E S S E T H:
WHEREAS, the Borrower, the Parent, the subsidiary guarantors party thereto, the Administrative Agent and the lenders party thereto are parties to that certain Amended and Restated Credit Agreement dated as of June 18, 2018 (as amended and in effect immediately prior to the effectiveness of this Agreement, the “Existing Credit Agreement”), pursuant to which, inter alia, such lenders agreed to extend certain commitments to make certain extensions of credit available to the Borrower;
WHEREAS, this Agreement and the other Loan Documents, taken as whole, constitute an amendment and restatement of the Existing Credit Agreement and an amendment of the other loan documents thereunder and not a novation, and the parties intend that all Advances outstanding and as defined thereunder shall continue to be Advances as defined hereunder until repaid; and
WHEREAS, the Borrower has requested that the Administrative Agent and the Lenders enter into this Agreement to amend and restate the Existing Credit Agreement to, inter alia, (i) increase the aggregate amount of the Term Loan Commitments from $150,000,000 to $200,000,000, (ii) extend the RC Maturity Date to July 23, 2025, (iii) extend the TL Maturity Date to July 23, 2026 and (iv) modify certain of the other terms thereof. The Administrative Agent and those existing and new Lenders executing this Agreement have agreed to do so on the terms set forth herein.
NOW, THEREFORE, in consideration of the recitals set forth above, which by this reference are incorporated into the operative provisions of this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree that the Existing Credit Agreement is amended and restated in its entirety as follows:
DEFINITIONS AND ACCOUNTING TERMS
“Acceding Lender” has the meaning specified in Section 2.17(d).
“Accession Agreement” has the meaning specified in Section 2.17(d)(i).
1
“Additional Guarantor” has the meaning specified in Section 7.05.
“Adjusted Daily Simple SOFR” means, for any Daily RFR Business Day, an interest rate per annum equal to (a) Daily Simple SOFR for such Daily RFR Business Day, plus (b) 0.10% (10 basis points); provided, however, that in no event shall Adjusted Daily Simple SOFR be less than the Floor.
“Adjusted DSS Advance” means an Advance that bears interest at a rate based on Adjusted Daily Simple SOFR.
“Adjusted EBITDA” means an amount equal to (a) EBITDA for the fiscal quarter of the Parent most recently ended for which financial statements are required to be delivered to the Lender Parties pursuant to Section 5.03(b) or (c), as the case may be, multiplied by four, less (b) the Capital Expenditure Reserve for all Assets for such fiscal quarter, other than any Asset owned by an Unrestricted Subsidiary.
“Adjusted Net Operating Income” means, with respect to any Asset, (a) Net Operating Income attributable to such Asset multiplied by four less (b) the Management Fee Adjustment for such Asset less (c) the Capital Expenditure Reserve for such Asset, in each case for the fiscal quarter most recently ended for which financial statements are required to be delivered to the Lender Parties pursuant to Section 5.03(b) or (c), as the case may be. In no event shall the Adjusted Net Operating Income for any Asset be less than zero.
“Adjusted Term SOFR” means, for any Interest Period, an interest rate per annum equal to (a) Term SOFR for such Interest Period, plus (b) 0.10% (10 basis points) (the “Term SOFR Adjustment”); provided, however, that in no event shall Adjusted Term SOFR be less than the Floor.
“Adjusted Term SOFR Advance” means an Advance that bears interest at a rate based on Adjusted Term SOFR (other than pursuant to clause (c) of the definition of Base Rate).
“Administrative Agent” has the meaning specified in the recital of parties to this Agreement.
“Administrative Agent’s Account” means the account of the Administrative Agent maintained by the Administrative Agent with Citibank, at its office at 1615 Brett Road, OPS III, New Castle, Delaware 19720, ABA No. 021000089, Account No. 36852248, Account Name: Agency/Medium Term Finance, Reference: Easterly Partners Financing, Attention: Global Loans/Agency, or such other account as the Administrative Agent shall specify in writing to the Borrower and the Lender Parties.
“Advance” means a Revolving Credit Advance, a Term Loan Advance, a Competitive Bid Advance or a Letter of Credit Advance.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” means, as to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person. For purposes of this definition, the term “control” (including the terms “controlling”, “controlled by” and “under common control with”) of a Person means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of Voting Interests, by contract or otherwise.
“Agreement” has the meaning specified in the recital of parties to this Agreement.
“Agreement Value” means, the net amount in respect of all Hedge Agreements, determined, with respect to each Hedge Agreement, on any date of determination, reasonably and in good faith by the Administrative Agent equal to: (a) in the case of a Hedge Agreement documented pursuant to the Master Agreement (Multicurrency‑Cross Border) published by the International Swap and Derivatives Association, Inc. (the “Master Agreement”), the amount, if any, that would be payable by or to any Loan Party or any of its Subsidiaries to or by its counterparty to such Hedge Agreement, as if (i) such Hedge Agreement was being
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terminated early on such date of determination, (ii) such Loan Party or Subsidiary was the sole “Affected Party”, and (iii) the Administrative Agent was the sole party determining such payment amount (with the Administrative Agent making such determination reasonably and in good faith pursuant to the provisions of the form of Master Agreement); or (b) in the case of a Hedge Agreement traded on an exchange, the mark‑to‑market value of such Hedge Agreement, which will be the unrealized loss or unrealized profit on such Hedge Agreement to the Loan Party or Subsidiary of a Loan Party to such Hedge Agreement determined reasonably and in good faith by the Administrative Agent based on the settlement price of such Hedge Agreement on such date of determination; or (c) in all other cases, the mark‑to‑market value of such Hedge Agreement, which will be the unrealized loss or unrealized profit on such Hedge Agreement to the Loan Party or Subsidiary of a Loan Party to such Hedge Agreement determined reasonably and in good faith by the Administrative Agent as the amount, if any, by which (i) the present value of the future cash flows to be paid by such Loan Party or Subsidiary exceeds (or is less than, as applicable) (ii) the present value of the future cash flows to be received by such Loan Party or Subsidiary pursuant to such Hedge Agreement; capitalized terms used and not otherwise defined in this definition shall have the respective meanings set forth in the above described Master Agreement.
“Anti‑Corruption Laws” shall mean all laws, rules, and regulations of any jurisdiction applicable to the Borrower, the Parent or their Subsidiaries from time to time concerning or relating to bribery, corruption or money laundering including, without limitation, the United States Foreign Corrupt Practices Act of 1977, as amended.
“Applicable Lending Office” means, with respect to each Lender Party, such Lender Party’s Domestic Lending Office in the case of a Base Rate Advance and such Lender Party’s SOFR Lending Office in the case of an Adjusted Term SOFR Advance or Adjusted DSS Advance. Further, in the case of a Competitive Bid Advance, the office of the Lender Party identified as its Applicable Lending Office in a notice by such Lender Party to the Administrative Agent with respect to such Competitive Bid Advance shall constitute such Lender Party’s Applicable Lending Office for such purpose.
“Applicable Margin” means, at any date of determination, (a)(i) except in the case of a Competitive Bid Advance which consists of Adjusted Term SOFR Advances or Adjusted DSS Advances, a percentage per annum determined by reference to the Leverage Ratio as set forth below, but subject to clause (ii) below:
Pricing Level |
Leverage Ratio |
Applicable Margin for Revolving Credit Facility Adjusted Term SOFR and Adjusted DSS Advances |
Applicable Margin for Revolving Credit Facility Base Rate Advances |
I |
< 35% |
1.20% |
0.20% |
II |
≥ 35% but < 40% |
1.25% |
0.25% |
III |
≥ 40% but < 45% |
1.35% |
0.35% |
IV |
≥ 45% but < 50% |
1.45% |
0.45% |
V |
≥ 50% but < 55% |
1.60% |
0.60% |
VI |
≥ 55% |
1.80% |
0.80% |
Pricing Level |
Leverage Ratio |
Applicable Margin for Term Loan Facility Adjusted Term SOFR Advances and Adjusted DSS Advances |
Applicable Margin for Term Loan Facility Base Rate Advances |
I |
< 35% |
1.20% |
0.20% |
II |
≥ 35% but < 40% |
1.20% |
0.20% |
III |
≥ 40% but < 45% |
1.30% |
0.30% |
IV |
≥ 45% but < 50% |
1.40% |
0.40% |
V |
≥ 50% but < 55% |
1.50% |
0.50% |
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VI |
≥ 55% |
1.70% |
0.70% |
The Applicable Margin for each Base Rate Advance shall be determined by reference to the Leverage Ratio in effect from time to time and, the Applicable Margin for any Interest Period for all Adjusted Term SOFR Advances comprising part of the same Borrowing shall be determined by reference to the Leverage Ratio in effect on the first day of such Interest Period and the Applicable Margin for all Adjusted DSS Advances comprising part of the same Borrowing shall be determined by reference to the Leverage Ratio in effect on the applicable Daily RFR Rate Day; provided, however, that (x) the Applicable Margin shall initially be at Pricing Level II on the Closing Date, (y) no change in the Applicable Margin resulting from the Leverage Ratio shall be effective until the first Business Day after the date on which the Administrative Agent receives (1) the financial statements required to be delivered pursuant to Section 5.03(b) or (c), as the case may be, and (2) a certificate of the Chief Financial Officer (or other Responsible Officer performing similar functions) of the Borrower demonstrating the Leverage Ratio, and (z) the Applicable Margin shall be at Pricing Level VI for so long as the Borrower has not submitted to the Administrative Agent as and when required under Section 5.03(b) or (c), as applicable, the information described in clause (y) of this proviso and shall continue to apply until the first Business Day after the date on which the information described in clause (y) of this proviso is delivered. If as a result of a restatement of the Borrower’s financial statements or other recomputation of the Leverage Ratio on which the Applicable Margin is based, the interest paid or accrued hereunder was paid or accrued at a rate lower than the interest that would have been payable had such Leverage Ratio been correctly computed, the Borrower shall pay to the Administrative Agent for the account of the Lenders promptly following demand therefor the difference between the amount that should have been paid or accrued and the amount actually paid or accrued.
(ii) In the event that the Borrower or the Parent achieves an Investment Grade Rating, the Borrower may, upon written notice to the Administrative Agent, make an irrevocable one‑time written election (setting forth the date for such election to be effective) to exclusively use the ratings‑based pricing grid set forth below (a “Ratings Grid Election”), in which case the Applicable Margin for Adjusted Term SOFR Advances, Adjusted DSS Advances and Base Rate Advances will be determined, as per the pricing grid below, on the basis of the Debt Rating of the Borrower or the Parent (as applicable), as set forth below, notwithstanding any failure of the Borrower or the Parent (as applicable) to maintain an Investment Grade Rating:
Debt Rating of Borrower or Parent |
Applicable Margin for Revolving Credit Facility Adjusted Term SOFR Advances and Adjusted DSS Advances |
Applicable Margin for Revolving Credit Facility Base Rate Advances |
Facility Fee |
≥ A‑/A3 |
0.725% |
0.00% |
0.125% |
BBB+/Baa1 |
0.775% |
0.00% |
0.150% |
BBB/Baa2 |
0.850% |