Exhibit 10.16
SECONDAMENDMENTTOFINANCINGAGREEMENT
This Second Amendment to Financing Agreement (this “Amendment”), dated as of January 31, 2022, is made by and between SE ARAGORN, LLC, a limited liability company organized under the laws of the State of Delaware (the “Borrower”), MUFG BANK, LTD., in its capacity as Administrative Agent (the “Administrative Agent”), and the Lenders party hereto.
WHEREAS,referenceismadetotheFinancingAgreement,datedasofNovember 16, 2020, among the Borrower, the Administrative Agent, the Lenders party thereto or who subsequently become party thereto pursuant to the terms thereof and each other Person that may become party thereto from time to time (as amended, modified and supplemented and in effect from time to time, the “Financing Agreement”);
WHEREAS,theBorrowerwishestoextendtheLoanMaturityDatetoFebruary 18, 2022;
WHEREAS,pursuanttoSection11.2(a)oftheFinancingAgreement,theBorrower shallnotextendthe Loan MaturityDatewithouttheconsentof allaffected Lenders; and
WHEREAS, the Borrower has requested that the Lenders party hereto consent to theextensionoftheLoanMaturityDatetoFebruary18,2022onthetermsandconditionssetforth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Definitions.All capitalized terms used, but not otherwise defined, herein, including in the introductory and recital paragraphs above, shall have the meanings assigned thereto, directlyorbyreference, in Exhibit Ato the FinancingAgreement.The rules of interpretation contained in Exhibit A of the FinancingAgreement shall applyto this Amendment as if set forth in this Amendment.
SECTION2.AmendmentstoFinancingAgreement.Subjecttothesatisfactionof theconditionprecedentspecifiedinSection3below,thepartiesheretoherebyagreetoamendthe Financing Agreement as follows:
(a) The definition of “Loan Maturity Date” in Exhibit A of the Financing Agreement is hereby amended by replacing “January 31, 2022” in clause (d) with “February 18, 2022”.
(b) Section 1.1(b)(iv)of the Financing Agreement is hereby amended by replacing the words “and (D) Borrower may not at any time have outstanding more than three (3) different Interest Periods relating to Construction Loans.” in the proviso thereto with the following:
“(D) Borrower may not at any time have outstanding more than three (3) differentInterestPeriodsrelatingtoConstructionLoans;and(E)Borrowermaynot
selectforanyLIBOLoananyInterestPeriodthatwouldendafterJanuary31,2022, andanyInterestPeriodforanyLIBOLoanthatwouldotherwiseendafterJanuary 31, 2022 shall end on January 31, 2022.”
(c) Section1.1(b)(v)oftheFinancingAgreementisherebyamendedbyadding the following text at the end thereof:
“Notwithstanding anything to the contrary in this Section 1.1(b)(v), after January31,2022,theBorrowershallnothavetherighttoborrowanyConstruction Loan as a LIBO Loan, to Convert any Construction Loan into a LIBO Loan or to Continue any Construction Loan as a LIBO Loan, and all LIBO Loans then outstanding shall be automatically Converted into Base Rate Loans at the end of the Interest Period ending on January 31, 2022.”
SECTION3.ConditionPrecedent.ThisAmendmentshallbecomeeffectiveupon delivery to the Administrative Agent of executed counterparts of this Amendment by the Borrower, the Administrative Agent and each Lender.
SECTION 4.No Default.At the time of and immediately after giving effect to this Amendment, no Default or Event of Default has occurred and is continuing.
SECTION5.Miscellaneous.
5.01 Limited Amendment.Except as expressly provided herein, (i) each Financing Document is and shall remain unchanged and in full force and effect and (ii) nothing contained in this Amendment shall abrogate, prejudice, diminish or otherwise affect anypowers, right, remedies or obligations of any Person arising before the date of this Amendment.
5.02 GOVERNING LAW;WAIVEROFJURYTRIAL.
(a) THIS AMENDMENT SHALLBEGOVERNED BYTHE LAW OFTHE STATE OF NEW YORK.
(b) EACH PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY, ANDINTENTIONALLYWAIVESANYRIGHTSTHEYMAYHAVETOATRIALBYJURY INRESPECTOFANYLITIGATIONBASEDHEREON,ORARISINGOUTOF,UNDER,OR INCONNECTIONWITH,THISAMENDMENTORANYCOURSEOFCONDUCT,COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF SUCH PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR ADMINISTRATIVE AGENT AND THE LENDERS TO ENTER INTO THIS AMENDMENT.
5.03 Counterparts;ElectronicSignatures.ThisAmendmentmaybeexecutedin anynumberofcounterparts,allofwhichtakentogethershallconstituteoneandthesamecontract and anypartyto this Amendment mayexecute this Amendment bysigning anysuch counterpart; signature pages may be detached from multiple separate counterparts and attached to a single counterpartsothat allsignatures arephysicallyattached tothesamecounterpart.Thedeliveryof
anexecutedcounterpartofasignaturepageofthisAmendmentbyelectronicmeans,includingby facsimile or by “.pdf” attachment to email, shall be effective as valid delivery of a manually executedcounterpartofthisAmendment.Thewords“execution,”“signed,”“signature,”and words of like import in this Amendment shall be deemed to include electronic signatures or electronic records, 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 record keeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures inGlobaland National CommerceAct,theNewYorkStateElectronicSignatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
5.04 SuccessorsandAssigns.ThisAmendmentshallbebindinguponandinure to the benefit of the Borrower, Lenders and the Agents and their respective successors and permitted assigns.
5.05 FinancingDocument.ThisAmendmentshallbeaFinancingDocumentfor purposes of the Financing Agreement.
5.06 LenderInstruction.Bytheirsignaturesbelow,eachLenderhereby instructs each Agent to execute and deliver this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be dulyexecutedanddeliveredbytheirrespectiveproperandduly authorizedofficers, representatives or authorized persons as of the day and year first above written.
| SEARAGORN,LLC,astheBorrower | |||||||||||
| By: | /s/ Abhijeet Sathe | ||||||||||
| Name: Abhijeet Sathe | |||||||||||
| Title: Manager |
[Signature Page to Second Amendment to Aragorn Financing Agreement – Maturity Date]
| MUFG BANK, LTD.,as Administrative Agent | ||||||||||||||
| By | /s/ Lawrence Blat | |||||||||||||
| Name: | Lawrence Blat | |||||||||||||
| Title: | Authorized Signatory |
| By | ||||||||||||||
| Name: | ||||||||||||||
| Title: |
[Signature Page to Second Amendment to Aragorn Financing Agreement – Maturity Date]
| DEUTSCHE BANK TRUST COMPANY AMERICAS,as Collateral Agent | ||||||||||||||
| By | /s/ Randy Kahn | |||||||||||||
| Name: | Randy Kahn | |||||||||||||
| Title: | Vice President | |||||||||||||
| By | /s/ James Briggs | |||||||||||||
| Name: | James Briggs | |||||||||||||
| Title: | Vice President |
[Signature Page to Second Amendment to Aragorn Financing Agreement – Maturity Date]
| ACKNOWLEDGED AND AGREED: | |||||||||||
| COBANK, ACB,as Lender | |||||||||||
| By | /s/ Chris J. Schneider | ||||||||||
| Name: | Chris J. Schneider | ||||||||||
| Title: | Vice President |
[Signature Page to Second Amendment to Aragorn Financing Agreement – Maturity Date]
| MUFG UNION BANK, N.A.,as Lender | |||||||||||
| By | /s/ Tufan Demir | ||||||||||
| Name: | Tufan Demir | ||||||||||
| Title: | Vice President |
[Signature Page to Second Amendment to Aragorn Financing Agreement – Maturity Date]
| SOCIÉTÉ GÉNÉRALE,as Lender, | |||||||||||
| By | /s/ Emmanuel CHESNEAU | ||||||||||
| Name: | Emmanuel CHESNEAU | ||||||||||
| Title: | Managing Director |
[Signature Page to Second Amendment to Aragorn Financing Agreement – Maturity Date]
| BAYERISCHE LANDESBANK, NEW YORK BRANCH,as Lender | |||||||||||
| By | /s/ Andrew Kjoller | ||||||||||
| Name: | |||||||||||
| Title | |||||||||||
| By | /s/ Mark Gurfinkel | ||||||||||
| Name: | |||||||||||
| Title: |
[Signature Page to Second Amendment to Aragorn Financing Agreement – Maturity Date]
| ING CAPITAL LLC,as Lender | |||||||||||
| By | /s/ Thomas Cantello | ||||||||||
| Name: | |||||||||||
| Title | |||||||||||
| By | /s/ Scott Hancock | ||||||||||
| Name: | |||||||||||
| Title: |
[Signature Page to Second Amendment to Aragorn Financing Agreement – Maturity Date]
| SUMITOMO MITSUI BANKING CORPORATION,as Lender | |||||||||||
| By | /s/ Carl Morales | ||||||||||
| Name: | Carl Morales | ||||||||||
| Title | Managing Director | ||||||||||
| By | |||||||||||
| Name: | |||||||||||
| Title: |
[Signature Page to Second Amendment to Aragorn Financing Agreement – Maturity Date]
| COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH,as Lender | |||||||||||
| By | /s/ Hemani Jadhav | ||||||||||
| Name: | Hemani Jadhav | ||||||||||
| Title | ED | ||||||||||
| By | /s/ Wayne Hu | ||||||||||
| Name: | Wayne Hu | ||||||||||
| Title: | Vice President |
[Signature Page to Second Amendment to Aragorn Financing Agreement – Maturity Date]