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Exhibit 10.7.1
ExecutionVersion
FIRST AMENDMENT TO REVOLVING
CREDITAGREEMENT
ThisFirstAmendmenttoRevolvingCreditAgreement(this“Amendment”),ismadeasof
January 24, 2023, by and among CIM GROUP MANAGEMENT, LLC, a Delaware limited liability
company(“Borrower”),TRUISTBANK(“Truist”),astheAdditionalLender(asdefined below),the
otherLenderspartyhereto,andCITYNATIONALBANK,asadministrativeagentfor the Lenders (in
such capacity, the “Agent”) and as the Swing Line Lender.
Factual Background
A.Pursuant to that certain Revolving Credit Agreement, dated as of December 30, 2022
(amended,restated,amendedandrestated,supplementedorotherwisemodifiedfromtimeto time
through the date hereof, the “Credit Agreement”), by and among Borrower, the financial institutions
fromtimetotimepartytheretoaslenders(collectively,the“Lenders”)andtheAgent, the Lenders
agreed to provide an unsecured revolving credit facility (the “Facility”) available to Borrower.
Capitalizedtermsusedhereinwithoutdefinitionhavethemeaningsascribedtothemin the Credit
Agreement.
B.Borrower has requested that (a) the Revolving Credit Aggregate Commitment be
increasedby$75,000,000.00(the“NewRevolvingCreditCommitment”),toatotalof
$150,000,000.00,and(b)certainmodificationsbemadetotheCreditAgreementasforthherein.
C.Truist, as a new Lender under the Credit Agreement (in such capacity, the
“AdditionalLender”),iswillingtoprovidetheNewRevolvingCreditCommitment,andtheAgent
andtheotherLenderspartyhereto(collectivelyconstitutingtheMajorityLendersundertheCredit
Agreement) are willing to make such other modifications to the Credit Agreement, on the terms and
subject to the conditions more particularly set forth herein.
Agreement
Therefore,Borrower,theAgent andthe Lendersagree asfollows:
1.Recitals. The recitals set forth above in the Factual Background are true, accurate and
correct.
2.NewRevolvingCreditCommitment.
(a)JoinderandAssumptionbyTruistBank.
(i)Joinder and Assumption. Effective as of the First Amendment
EffectiveDate(asdefinedbelow),Truist(i)shallbedeemedautomaticallytohavebecomeaparty to
theCreditAgreementandtheotherLoanDocumentsasa“Lender”thereunder,tohaveassumed allof
theobligationsofa“Lender”thereundertotheextentofTruist’sinterestthereinasdescribed in this
Amendment, and to have all the rights and obligations of a Lender party to the Credit Agreementand
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theotherLoanDocuments,asifitwereanoriginalsignatorytheretototheextent ofTruist’sinterest
thereinasdescribedinthisAmendment;and(ii)agreestobeboundbythe termsandconditions
setforthintheCreditAgreementandtheotherLoanDocumentsasifitwere an original signatory
thereto.
(ii)New Revolving Credit Commitment. Without limiting the generality
ofclause(i)above,TruistseverallyandforitselfaloneagreestomakeAdvancesofthe Revolving
CreditinDollarstoBorrowerfromtimetotimeonanyBusinessDayduringtheperiod fromtheFirst
AmendmentEffectiveDateuntil(butexcluding)theMaturityDateinanaggregate amount not to
exceed at any one time outstanding Truist’s Revolving Credit Percentage of the Revolving Credit
Aggregate Commitment (as increased hereby).
(iii)Representations and Warranties by Truist. Truist hereby confirms that
it has received a copy of the Credit Agreement and the exhibits and schedules referred to therein, and
all other Loan Documents which it considers necessary, together with copies of the other documents
which were required to be delivered under the Credit Agreement as a condition to the making of
loans thereunder. Truist acknowledges and agrees that it: (a) has made and will continuetomake
suchinquiriesandhas taken and will take suchcare onits own behalf as would have been the case
had its Percentage been granted and its loans been made directly by Truist to Borrower without the
intervention of the Agent or any other Lender; and (b) has made and will continue to make,
independently and without reliance upon the Agent or any other Lender, and based on such
documents and information as it has deemed appropriate, its own credit analysis anddecisions
relatingtotheCreditAgreement.Truistfurtheracknowledgesandagreesthatneither the Agent nor
any other Lender has made any representations or warranties about the creditworthinessofBorrower
oranyotherpartytotheCreditAgreementoranyotheroftheLoan Documents, or with respect to
the legality, validity, sufficiency or enforceability of the Credit Agreement or any other of the Loan
Documents.
(b)Acknowledgment of the New Revolving Credit Commitment. Each of the
undersigned hereby (i) acknowledges and agrees that the New Revolving Credit Commitment
provided by Truist pursuant to this Amendment is one of the Revolving Credit Commitments
contemplated by the Credit Agreement and that, following the First Amendment Effective Date and
the consummation of the transactions contemplated hereby, the amount of the “Revolving Credit
Aggregate Commitment” shall be $150,000,000.00, subject to reduction or termination under
Section 2.10of the Credit Agreement and (ii) acknowledges and agrees that (A) Borrower has
directed Agent to offer the New Revolving Credit Commitment to Truist and (B) Truist has agreedto
providetheNewRevolvingCreditCommitmentandwillbeaRevolvingCreditLender under the
Credit Agreement and the other Loan Documents from and after the First Amendment Effective
Date.
3.ModificationstoCreditAgreement.
(a)Amendment to Credit Agreement. The Credit Agreement (but not the
Exhibits, Annexes and Schedules thereto, other than as set forth in clauses (a), (b) and (c) below) is
hereby amended by deleting the stricken text (indicated textually in the same manner as the
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followingexample:strickentext)andaddingthedouble-underlinedtext(indicatedtextuallyinthe
same manner as the following example: double-underlined text) as set forth in Exhibit Ahereto.
(b)Annex III. Annex III of the Credit Agreement is hereby amended and restated
in its entirety as set forth in Exhibit Battached hereto.
(c)Schedule5.5.Schedule5.5oftheCreditAgreementisherebyamendedand
restated in its entirety as set forth in Exhibit Cattached hereto.
(d)DefinitionofCreditAgreement.ExceptasprovidedinthisAmendment,all
referencesintheCreditAgreementandintheotherLoanDocumentstotheCreditAgreementshall
mean the Credit Agreement as amended by this Amendment (the Credit Agreement, as amended
hereby, the “Amended Credit Agreement”).
(e)No Other Modifications. Except as expressly set forth in this Amendment, the
Credit Agreement and the other Loan Documents shall be and remain unmodified and in full force
and effect.
4.Conditions Precedent. This Amendment shall become effective on and as of the first
date on whichall of the following conditions shall have been satisfied (or waived by the Agent and
the Lenders in their sole discretion, as evidenced by the release of their respective signature pages
hereto):
(a)The Agent shall have received counterparts of this Amendment (including the
Consent of Guarantors attached hereto) duly executed by each party hereto.
(b)The Agent shall have received (A) customary legal opinions addressed to the
Lenders, board resolutions and officers’ certificates consistent with those delivered on the Closing
Date and (B) such other documents as may be reasonably requested by the Agent.
(c)NoDefaultorEventofDefaultexistsorwillexistontheFirstAmendment
Effective Date immediately before and immediately after giving effect to effectiveness of this
Amendmentandthetransactionscontemplatedhereby,includingprovisionoftheNewRevolving
Credit Commitment.
(d)EachoftherepresentationsandwarrantiesmadebytheLoanPartiesinthe
AmendedCreditAgreementandineachoftheotherLoanDocumentsshallbetrueandcorrectin all
material respects as of the First Amendment Effective Date as if made on and as of such date (other
than any representation or warranty that expressly speaks as of a different date, in which case such
representation and warranty shall be true and correct in all material respects as of such different
date); provided that any such representations and warranties which are qualified by materiality,
Material Adverse Effect or similar language shall be true and correct in all respects.
(e)Since the Closing Date, nothing has occurred which has had, or could
reasonably be expected to have, a Material Adverse Effect.
(f)Borrower shall have paid all fees that are due and payable to the Lead
Arrangers and the Additional Lender pursuant to the Fee Letter.
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(g)The Agent shall have received reimbursement, in immediately available funds,
ofallactual,out-of-pocketcostsandexpensesincurredbytheAgentandforwhichan
invoice has been submitted in connection with this Amendment, including the legal fees, charges and
expenses of the Agent’s counsel.
Except as set forth in any closing condition letter between Borrower and the Agent, by releasing its
signature page to this Amendment the Agent and each Lender shall be deemed to have consentedto,
approvedoracceptedassatisfactoryeachdocumentorothermatterrequiredbythis Section4tobe
consentedto,approvedoracceptedassatisfactorybytheAgentorsuchLender,as the case may be.
5.Representations and Warranties. Each of Borrower and, by its execution of the
ConsentofGuarantorattachedhereto,eachoftheotherLoanParties,representsandwarrantsthat
each of the representations and warranties made by the Loan Parties in the Amended Credit
AgreementandineachoftheotherLoanDocumentsistrueandcorrectinallmaterialrespectsas of
the First Amendment Effective Date as if made on and as of such date (other than any representation
or warranty that expressly speaks as of a different date, in which case such representation and
warranty is true and correct in all material respects as of such different date); providedthatanysuch
representationsandwarrantieswhicharequalifiedbymateriality,Material Adverse Effect or similar
language shall be true and correct in all respects.
6.ReimbursementofExpenses.Withoutduplicationofanyamountspaidpursuantto
Section4(i)ofthisAmendment,BorrowershallpayorreimbursetheAgentforallactual,out-of-
pocket costs and expenses incurred by the Agent in connection with this Amendment, including the
legalfees,chargesandexpensesoftheAgent’scounselinaccordancewithSection11.5ofthe Credit
Agreement.
7.Integration. The Loan Documents, includingthis Amendment: (a) integrate all the
terms and conditions mentioned in or incidental to the Loan Documents; (b) supersede all oral
negotiationsandpriorandotherwritingswithrespecttotheirsubjectmatter;and(c)areintended by
thepartiesasthefinalexpressionoftheagreementwithrespecttothetermsandconditionsset forth
in those documents and as the complete and exclusive statement of the terms agreed to by theparties.
Ifthereisanyconflictbetweentheterms,conditionsandprovisionsofthisAmendment and those of
any other agreement or instrument in effect as of the date of this Amendment, including any of the
other Loan Documents, the terms, conditions and provisions of this Amendment shall prevail.
8.Severability. In case any provision in or obligation hereunder or under any other Loan
Documentshallbeinvalid,illegalorunenforceableinanyjurisdiction,thevalidity,legality and
enforceabilityoftheremainingprovisionsorobligations,orofsuchprovisionorobligationin any
other jurisdiction, shall not in any way be affected or impaired thereby.
9.Designation as Loan Document. This Amendment shall constitute a Commitment
Increase Amendment and a Loan Document under the Amended Credit Agreement.
10.Miscellaneous. This Amendment and any attached consents or exhibits requiring
signatures may be executed in counterparts, and all counterparts shall constitute but one and the
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same document. If any court of competent jurisdiction determines any provision of this Amendment
oranyoftheotherLoanDocumentstobeinvalid,illegalorunenforceable,that
portionshallbedeemedseveredfromtherest,whichshallremaininfullforceandeffectasthough the
invalid, illegal or unenforceable portion had never been a part of the Loan Documents. This
AmendmentshallbegovernedbythelawsoftheStateofNewYork,withoutregardtothechoice of
law rules of that State that would require application of the laws of any other jurisdiction. As used
here,theword“include(s)”means“includes(s),withoutlimitation,”andtheword“including” means
“including, but not limited to.”
[Signaturesonfollowingpage]
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IN WITNESSWHEREOF, the parties have executed thisAmendment asofthedatefirst set forth
above.
Borrower:
CIMGROUPMANAGEMENT,LLC,
aDelaware limited liabilitycompany
By: /s/ David Thompson
Name:DavidThompson
Its:ChiefFinancialOfficer
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Agent:
CITYNATIONAL BANK,
asAgent,a Lender andthe SwingLineLender
By: /s/ Stephanie Leimbach
Name:StephanieLeimbach
Title:Vice President
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AdditionalLender:
TRUISTBANK, asAdditional Lender
By: /s/ Andrew Silsbee
Name:Andrew Silsbee
Title: Vice President
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CONSENTOFGUARANTORS
Theundersigned,havingreadandunderstoodtheforegoingFirstAmendmenttoRevolving
Credit Agreement (the “First Amendment”), each hereby (i) consents to all of the terms, conditions
and provisions of the First Amendment and the transactions contemplated by the First Amendment,
(ii)agreesthattheFirstAmendmentdoesnotterminateanyoftheobligationsofthe undersignedto
Agentunder(A)thatcertainGuarantyAgreement,datedasofDecember30,2022, executed by the
undersigned in favor of Agent (the “Guaranty”), (iii) reaffirms its obligations undertheGuaranty
AgreementinlightoftheFirstAmendment,and(iv)agreesthatitsobligations under the Guaranty
Agreement are separate and distinct from those of Borrower with respect to theFacility.Eachofthe
undersigned,havingrereadtheGuarantyAgreement,andwiththeadvice of its own counsel, hereby
reaffirms and restates all waivers, authorizations, agreements and understandingssetforthinthe
GuarantyAgreement,asthoughsetforthinfullherein.Capitalized termsusedinthisconsentbutnot
otherwisedefinedshallhavethemeaningsascribedtosuchterms in the First Amendment.
DatedasofJanuary24,2023.
[Signaturesbeginonfollowingpage]
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CONSENTOFGUARANTORS
INWITNESSWHEREOF,eachoftheundersignedGuarantorshasexecutedthis Consent
of Guarantors as of the date above written.
CIMCapital,LLC,
aDelaware limitedliability company
By: CIM Group Management, LLC,
aDelawarelimitedliability company,
its sole equity member
By: /s/ David Thompson
Name:DavidThompson
Its:ChiefFinancialOfficer
CCOGroup,LLC,
aDelawarelimitedliability company
By: CIM Group Management, LLC,
aDelawarelimitedliabilitycompany,
its managing member
By: /s/ David Thompson
Name:DavidThompson
Its:ChiefFinancialOfficer
[Signature page to Consent of Guarantors]
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CIMGroup,L.P.,
aDelawarelimitedpartnership
By:CIMManagement,Inc.
a California corporation,
its general partner
By: /s/ David Thompson
Name:DavidThompson
Its:ChiefFinancialOfficer
CIMSMAISponsor,LLC.,
aCalifornia limitedliabilitycompany
By:CIMSMAIMLP,LLC,
ADelawarelimitedliability company, its managing
member
By: /s/ David Thompson
Name:DavidThompson
Its:ChiefFinancialOfficer
By: CIM Group Management, LLC,
aDelawarelimitedliabilitycompany,
its managing member
CIMAtlantaManager,LLC,
aDelawarelimitedliabilitycompany
By: CIM Group Management, LLC,a
Delawarelimitedliabilitycompany,
By: /s/ David Thompson
Name:DavidThompson
Its:ChiefFinancialOfficer
CIMServiceProvider,LLC,
aDelawarelimitedliabilitycompany
By: CIM Group Management, LLC,a
Delawarelimitedliabilitycompany, its sole
equity member
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By: /s/ David Thompson
Name:DavidThompson
Its:ChiefFinancialOfficer
CIMCapitalSAManagement,LLC,
aDelawarelimitedliabilitycompany
By: CIM Group Management, LLC,a
Delawarelimitedliabilitycompany,
By: /s/ David Thompson
Name:DavidThompson
Its:ChiefFinancialOfficer
CIMUrbanIncomeInvestmentsGP,LLC,a Delaware
limited liability company
By: CIM Group Management, LLC,a
Delawarelimitedliabilitycompany,
By: /s/ David Thompson
Name:DavidThompson
Its:ChiefFinancialOfficer
S-9thAvenueCo-InvestorManager,LLC,
aDelawarelimitedliabilitycompany
By:S-MWCCo-InvestorManager,LLC,
aDelawarelimited liabilitycompany,its
sole equity member
By: /s/ David Thompson
Name:DavidThompson
Its:ChiefFinancialOfficer
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By: CIM Group Management, LLC,a
Delawarelimitedliabilitycompany,
By: /s/ David Thompson
Name:DavidThompson
Its:ChiefFinancialOfficer
CIMCapitalControlledCompanyManagement, LLC
aDelawarelimitedliabilitycompany
By:CIMCapital,LLC,
aDelawarelimitedliabilitycompany, its
sole equity member
By: CIM Group Management, LLC,a
Delawarelimitedliabilitycompany, its sole
equity member
CIMCapitalREDebtManagement,LLC
aDelawarelimitedliabilitycompany
By:CIMCapital,LLC,
aDelawarelimitedliabilitycompany, its sole
equity member
By: CIM Group Management, LLC,a
Delawarelimitedliabilitycompany,
By: /s/ David Thompson
Name:DavidThompson
Its:ChiefFinancialOfficer
CIMCapitalSecuritiesManagement,LLC
aDelawarelimitedliabilitycompany
By:CIMCapital,LLC,
aDelawarelimitedliabilitycompany, its
sole equity member
By: CIM Group Management, LLC,a
Delawarelimitedliabilitycompany,
By: /s/ David Thompson
Name:DavidThompson
Its:ChiefFinancialOfficer
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CIMCapitalRealPropertyManagement,LLC
aDelawarelimitedliabilitycompany
By:CIMCapital,LLC,
aDelawarelimitedliabilitycompany, its
sole equity member
By: CIM Group Management, LLC,a
Delawarelimitedliabilitycompany,
By: /s/ David Thompson
Name:DavidThompson
Its:ChiefFinancialOfficer
CIMCapitalICManagement,LLC,
aDelawarelimitedliabilitycompany
By:CIMGroupManagement,LLC,a
Delaware limited liability company, its
soleequity
By: /s/ David Thompson
Name:DavidThompson
Its:ChiefFinancialOfficer
CIMLending Services,LLC,
aDelawarelimitedliabilitycompany
By: CIM Group Management, LLC,a
Delawarelimitedliabilitycompany,
By: /s/ David Thompson
Name:DavidThompson
Its:ChiefFinancialOfficer
L-55HawthorneCo-InvestorManager,LLC,
aDelawarelimitedliabilitycompany
By: CIM Group Management, LLC,a
Delawarelimitedliabilitycompany,
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By: /s/ David Thompson
Name:DavidThompson
Its:ChiefFinancialOfficer
H-55HawthorneREITManager,LLC,a
Delawarelimitedliabilitycompany
By: CIM Group Management, LLC,a
Delawarelimitedliabilitycompany,
By: /s/ David Thompson
Name:DavidThompson
Its:ChiefFinancialOfficer
CIMControlledCompanyManagement,LLC,
aDelawarelimitedliabilitycompany
By: CIM Group Management, LLC, a
Delawarelimitedliabilitycompany,
By: /s/ David Thompson
Name:DavidThompson
Its:ChiefFinancialOfficer
CIMREDebtManagement,LLC,
aDelawarelimitedliabilitycompany
By: CIM Group Management, LLC,a
Delawarelimited liabilitycompany,
7
By: /s/ David Thompson
Name:DavidThompson
Its:ChiefFinancialOfficer
CIMEPIC IIQOFSLP,LLC,
aDelawarelimitedliabilitycompany
By: CIM Group Management, LLC,a
Delawarelimitedliabilitycompany,
By: /s/ David Thompson
Name:DavidThompson
Its:ChiefFinancialOfficer
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CIMManagement,Inc.,
By: /s/ David Thompson
Name:DavidThompson
Its:ChiefFinancialOfficer
H-TurtleCreekVillageCo-InvestorManager, LLC,
aDelawarelimitedliabilitycompany
By: CIM Group Management, LLC,a
Delawarelimitedliabilitycompany,
By: /s/ David Thompson
Name:DavidThompson
Its:ChiefFinancialOfficer
CMMT SLP,LLC,
aDelawarelimitedliabilitycompany
By: Cil\1Group Management, LLC, a
Delawarelimitedliabilitycompany, its sole
equity member
By: /s/ David Thompson
Name:DavidThompson
Its:ChiefFinancialOfficer
CIMInfrastructureSLP,LLC,
aCalifornialimitedliabilitycompany
By: Cil\1Group Management, LLC, a
Delawarelimitedliabilitycompany, its
managing member
By: /s/ David Thompson
Name:DavidThompson
Its:ChiefFinancialOfficer
CIMInfrastructureIISLP,LLC,
aDelawarelimitedliabilitycompany
By: CIM Group Management, LLC,a
Delawarelimitedliabilitycompany,
By: /s/ David Thompson
Name:DavidThompson
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Its:ChiefFinancialOfficer
CIMInfrastructureIIISLP,LLC,
aDelawarelimitedliabilitycompany
By:CIMInfrastructureIIISLPHoldings,L.P. a
Delaware limited liability company,
itssoleequitymember
By:CIMFundSLPGP,LLC,
ADelawarelimitedliabilitycompany, its
general partner
By:CIMGroupManagement,LLC,a Delaware
limited liability company,
By: /s/ David Thompson
Name:DavidThompson
Its:ChiefFinancialOfficer
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CIMFundIXSLP,LLC,
aDelawarelimitedliabilitycompany
By: CIM Group Management, LLC,a
Delawarelimitedliabilitycompany,
By: /s/ David Thompson
Name:DavidThompson
Its:ChiefFinancialOfficer
CIMOpportunityZoneFundSLP,LLC,
aDelaware limitedliabilitycompany
By:CIMGroupManagement,LLC,a
Delaware limited liability company, its
sole equity member
By: /s/ David Thompson
Name:DavidThompson
Its:ChiefFinancialOfficer
CIMRealEstateFinanceManagement,LLC,
aDelawarelimitedliabilitycompany
By:CCOGroup,LLC,
aDelawarelimitedliabilitycompany, its
sole equity member
By: CIM Group Management, LLC,a
Delawarelimitedliabilitycompany, its
managing member
By: /s/ David Thompson
Name:DavidThompson
Its:ChiefFinancialOfficer
CREIAdvisors,LLC,
anArizonalimitedliabilitycompany
By:
Name:Christina Mayo
Its:Manager
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CIMRealEstateFinanceManagement,LLC,
aDelawarelimitedliabilitycompany
By:CCOGroup,LLC,
aDelawarelimitedliabilitycompany, its sole
equity member
By: CIM Group Management, LLC,a
Delawarelimited liabilitycompany, its
managing member
By:
Name:DavidThompson
Its:ChiefFinancialOfficer
CREIAdvisors,LLC,
anArizonalimitedliabilitycompany
By:
Name: Christina Mayo
Its: Manager
CIMIncomeNAVManagement,LLC,
aDelawarelimitedliabilitycompany
By:CCO Group,LLC,
aDelawarelimitedliabilitycompany, its
sole equity member
By: CIM Group Management, LLC,a
Delawarelimitedliabilitycompany,
By: /s/ David Thompson
Name:DavidThompson
Its:ChiefFinancialOfficer
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CIMSBAStaffing,LLC,
aDelawarelimitedliabilitycompany
By:CIMGroup,L.P.,
aDelawarelimitedpartnership, its
sole equity member
By: CIM Management, Inc.,a
California corporation, its
general partner
By: /s/ David Thompson
Name:DavidThompson
Its:ChiefFinancialOfficer
246SpringStreet(NY)Manager,LLC,
aDelawarelimitedliabilitycompany
By:CIMGroup,L.P.,
aDelaware limitedpartnership, its sole
equity member
By:CIMManagement,Inc., a
California corporation,
itsgeneral partner
By: /s/ David Thompson
Name:DavidThompson
Its:ChiefFinancialOfficer
432ParkManagement, LLC,
aDelawarelimitedliabilitycompany
By:CIMGroup,L.P.,
aDelawarelimitedpartnership, its
sole equity member
By:CIMManagement,Inc., a
California corporation,
itsgeneral partner
By: /s/ David Thompson
Name:DavidThompson
Its:ChiefFinancialOfficer
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CIMGroup Hotel,LLC,
aCalifornialimitedliabilitycompany
By:CIMGroup,L.P.,
aDelaware limited partnership, its
sole equity member
By:CIMManagement,Inc., a
California corporation,
itsgeneral partner
By: /s/ David Thompson
Name:DavidThompson
Its:ChiefFinancialOfficer
CIMRealEstateServices,LLC,
aDelawarelimitedliabilitycompany
By:
Name:Sara L. Martens
Its:Manager
CIMGroupHotel,LLC,
aCalifornialimitedliabilitycompany
By:CIMGroup.L.P..
aDelawarelimited partnership, its sole
equitymember
By:CJMManagement. Inc., a
California corporation,
itsgeneralpartner
By: /s/ David Thompson
Name:DavidThompson
Its:ChiefFinancialOfficer
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CIMRealEstateServices, LLC,
aDelawarelimitedliabilitycompany
By:
Name:SaraL.Martens Its:
Manager
CIMNYManagement,LLC,
aNewYorklimitedliabilitycompany
By:CIMGroup,L.P,
aDelawarelimitedpartnership,
its sole equity member
By:CIMManagement,Inc., a
California corporation,
By: /s/ David Thompson
Name:DavidThompson
Its:ChiefFinancialOfficer
CIMTXManagement,LLC,
aDelawarelimitedliabilitycompany
By:CIMGroup,L.P.,
aDelawarelimitedpartnership,
its managing member
By:CIMManagement,Inc., a
California corporation,
By: /s/ David Thompson
Name:DavidThompson
Its:ChiefFinancialOfficer
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Exhibit A
[See attached]
ExecutionVersion
ExhibitAtoFirst
Amendment
CONFIDENTIAL
REVOLVINGCREDITAGREEMENT
among
CIMGROUPMANAGEMENT,LLC,
asBorrower
THE LENDERS FROM TIME
TO TIME PARTY HERETO
and
CITYNATIONALBANK,
asAgentandLeadArranger
CITYNATIONALBANK
and
TRUISTSECURITIES,INC.,
asLeadArrangersand
TRUISTBANK,
asSyndicationAgent
DATEDASOFDECEMBERDatedasofDecember30,2022,
asamendedbytheFirstAmendmenttoCreditAgreementdatedasofJanuary24,2023
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TABLEOFCONTENTS
Page
1.DEFINITIONS1
1.1CertainDefinedTerms1
1.2InterpretiveProvisions30
1.3AccountingTerms;Divisions3031
1.4Rates3132
1.5ProFormaCalculations32
2.REVOLVINGCREDIT3233
2.1Commitment3233
2.2AccrualofInterestandMaturity;EvidenceofObligations33
2.3RequestsforandRefundingsandConversionsofAdvances3334
2.4DisbursementofAdvances35
2.5SwingLine36
2.6InterestPayments;DefaultInterest3940
2.7OptionalPrepayments4041
2.8BaseRateAdvanceinAbsenceofElectionorUponDefault4041
2.9RevolvingCreditFacilityFee41
2.10MandatoryRepayment ofRevolvingCreditAdvances41
2.11[Reserved]4243
2.12ExtensionofMaturityDate4243
2.13CommitmentIncrease43
3.YIELDPROTECTION;INCREASEDCOSTS;MARGINADJUSTMENTS;
TAXES4445
3.1ReimbursementofPrepayment Costs4445
3.2SuspensionofTermSOFRAdvances45
3.3[Reserved]4546
3.4[Reserved].4546
3.5IncreasedCosts4546
3.6Capital AdequacyandOtherIncreasedCosts4647
3.7RightofLenderstoFundthroughBranchesandAffiliates47
3.8MarginAdjustment47
3.9DelayinRequests48
3.10Taxes48
3.11BenchmarkReplacementSetting.4950
4.CONDITIONS5152
4.1ConditionsofInitialAdvances5152
4.2ContinuingConditions54
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i
5.REPRESENTATIONSANDWARRANTIES5455
5.1Organization;PowerandAuthority55
5.2Authorization,Etc55
5.3Disclosure55
5.4OrganizationandOwnershipofSharesofSubsidiaries;Affiliates5556
5.5FinancialStatements;MaterialLiabilities56
5.6CompliancewithLaws,Other Instruments,Etc.5657
5.7GovernmentalAuthorizations,Etc.5657
5.8Litigation;ObservationofStatuesandOrders57
5.9Taxes57
5.10TitletoProperty;Leases5758
5.11Licenses,Permits,Etc.5758
5.12Compliancewith EmployeeBenefitPlans5758
5.13[Reserved]5859
5.14UseofProceeds;MarginRegulations5859
5.15ExistingIndebtedness59
5.16ForeignAssetsControlRegulations,Etc.5960
5.17StatusunderCertainStatutes60
5.18Solvency6061
5.19EEAFinancialInstitution6061
5.20BeneficialOwnership Certification6061
6.AFFIRMATIVECOVENANTS6061
6.1FinancialandBusinessInformation61
6.2Officer’sCertificate6364
6.3InspectionofProperty;BooksandRecords,Discussions6465
6.4CompliancewithLaws65
6.5Insurance65
6.6MaintenanceofProperties65
6.7PaymentofTaxes6566
6.8Existence,Etc.6566
6.9BooksandRecords66
6.10SubsidiaryGuarantors66
6.11EligibleRevenues67
6.12RegisteredInvestment Adviser6768
6.13PrivateDebtRating6768
6.14MostFavoredLender68
6.15UseofProceeds6970
7.NEGATIVECOVENANTS6970
7.1TransactionswithAffiliates6970
7.2Mergers,Consolidation,Etc70
7.3LineofBusiness71
| US-DOCS\138548577.7 |
7.4EconomicSanctions,Etc.7172
7.5Liens7172
7.6Indebtedness7374
7.7RestrictedPayments75
7.8FinancialCovenants7576
7.9AmendmentstoEligibleRevenueAgreements7677
7.10SaleofAssets7677
7.11ModificationofCertainAgreements;CertainPayments77
7.12FiscalYear7778
8.DEFAULTS7778
8.1EventsofDefault7778
8.2Acceleration80
8.3[Reserved]8081
8.4RightsCumulative8081
8.5WaiverbyBorrowerofCertainLaws8081
8.6WaiverofDefaults8081
8.7SetOff81
9.PAYMENTS,RECOVERIESANDCOLLECTIONS8182
9.1PaymentProcedure8182
9.2[Reserved]82
9.3Pro-rataRecovery8283
9.4TreatmentofaDefaultingLender;ReallocationofDefaultingLender’s
Fronting Exposure8283
10.AGENT84
10.1AppointmentoftheAgent84
10.2DepositAccountwiththeAgentoranyLender8485
10.3ScopeoftheAgent’sDuties8485
10.4Successor Agent85
10.5CreditDecisions86
10.6AuthorityoftheAgenttoEnforceThisAgreement86
10.7IndemnificationoftheAgent86
10.8KnowledgeofDefault87
10.9TheAgent’sAuthorization;ActionbyLenders87
10.10EnforcementActionsbytheAgent8788
10.11[Reserved]8788
10.12TheAgentsintheirIndividualCapacities8788
10.13TheAgent’sFees88
10.14DocumentationAgentorotherTitles88
10.15ObligationsinrespectofLenderProductsandHedgingAgreements88
10.16NoRelianceontheAgent’sCustomerIdentificationProgram8889
10.17CertainERISAMatters89
11.MISCELLANEOUS90
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11.1[Reserved]90
11.2ConsenttoJurisdiction90
11.3GoverningLaw9091
11.4Interest9091
11.5ClosingCostsandOtherCosts;Indemnification91
11.6Notices9293
11.7[Reserved]9394
11.8SuccessorsandAssigns;Participations;Assignments9394
11.9Counterparts97
11.10AmendmentandWaiver97
11.11Confidentiality100
11.12SubstitutionorRemovalofLenders101
11.13WithholdingTaxes102103
11.14WAIVEROFJURYTRIAL105
11.15USAPatriotActandBeneficialOwnershipNotice105
11.16CompleteAgreement;Conflicts105
11.17Severability105106
11.18TableofContentsandHeadings105106
11.19ConstructionofCertainProvisions106
11.20IndependenceofCovenants106
11.21ElectronicTransmissions106
11.22RelianceonandSurvivalofProvisions106107
11.23AcknowledgmentandConsenttoBail-InofAffectedFinancialInstitutions107
11.24Acknowledgment RegardingAnySupportedQFCs107108
EXHIBITS
AFORMOFREQUESTFORREVOLVINGCREDITADVANCE
BFORMOFREQUESTFORSWINGLINEADVANCE
CFORMOFREVOLVINGCREDITNOTE
DFORMOFSWINGLINENOTE
EFORMOFSWINGLINEPARTICIPATIONCERTIFICATE
F[RESERVED]
GFORMOFSUBSIDIARYGUARANTY
H[RESERVED]
IFORMOFCOMPLIANCECERTIFICATE
JFORMOFASSIGNMENTAGREEMENT
KFORMSOFU.S.TAXCOMPLIANCECERTIFICATE
LFORMOFQUALIFIEDPURCHASERCERTIFICATE
ANNEXES
IApplicableMarginGrid
IIOriginalSubsidiaryGuarantors
IIIPercentagesandAllocations
| US-DOCS\138548577.7 |
IVNotices
SCHEDULES
1.1DisqualifiedInstitutions
4.1(b)JurisdictionsinwhichLoanPartiesareformedororganized
1.3DisclosureMaterials
1.4MaterialSubsidiaries
1.5FinancialStatements
5.15ExistingIndebtedness
| US-DOCS\138548577.7 |
v
REVOLVINGCREDITAGREEMENT
ThisRevolvingCreditAgreement(this“Agreement”)ismadeasofDecember30,2022,
by and among CIM GROUP MANAGEMENT, LLC, a Delaware limited liability company
(“Borrower”), the financial institutions from time to time signatory hereto (individually a
“Lender,” and any and all such financial institutions, collectively, the “Lenders”), and CITY
NATIONALBANK,astheadministrativeagentfortheLenders(insuchcapacity,the“Agent”)
andassole leadarranger andsole bookrunner (each ofCITY NATIONAL BANK and
TRUISTSECURITIES,INC.,asjointleadarrangersandjointbookrunners(collectively
in such capacities, the “Lead Arrangers” and each a “LeadArranger”).
RECITALS
A.Borrower has requested that the Agent and the Lenders provide a senior
unsecured revolving credit facility.
B.TheAgentandtheLendersarepreparedtomakesuchseniorunsecuredrevolving
credit facility available to Borrower on the terms and subject to the conditions set forth in this
Agreement.
NOW THEREFORE, in consideration of the covenants contained herein, Borrower, the
Lenders and the Agent agree as follows:
1.DEFINITIONS.
1.1CertainDefinedTerms.ForpurposesofthisAgreementthefollowingtermswill
have the following meanings:
“AcceptableRatingAgency”meansFitch,Moody’s,S&P,DBRS,orKroll,solongas,in
each case, anysuch credit rating agencycontinues to be a nationallyrecognized statistical rating
organization recognized by the SEC and is approved as a “Credit Rating Provider” (or other
similar designation) by the NAIC.
“Account” means any account or account receivable as defined under the UCC,
including, with respect to any Person, any right of such Person to payment for goods sold or
leased or for services rendered.
“Additional Funded Indebtedness” means, with respect to any Person at any time,
without duplication, (a) all obligations of such Person evidenced by bonds, debentures, notes,
loan agreements or other similar instruments and (b) all Guaranties with respect to Indebtedness
of the type specified in the foregoing clause(a) of another Person; provided that, Additional
Funded Indebtedness (and Additional Senior Indebtedness) shall not include (1) the Obligations
hereunder,(2)intercompanyindebtedness,(3)purchasemoneyindebtedness(includingassumed
indebtedness), (4) Indebtedness arising under anyhedging or netting arrangement, (5) operating
leases and trade liabilities incurred in the ordinarycourse of business and payable in accordance
withcustomaryorpastpractices,(6)prepaidordeferredrevenuearisingintheordinarycourseof
| US-DOCS\138548577.7 |
business, (7) Indebtedness incurred for the purposes of financing warehoused investments,
which,ifsecured,shallbesecuredsolelybyLiensassumedorincurredinrelianceuponSections
7.5(j)or (k)and (8) refinancing Indebtedness in respect of any of the foregoing Indebtedness
solelytotheextentsuchrefinancingIndebtednessisofthetypeofIndebtednessdescribedinthe
foregoing clauses (1) through (7).
“AdditionalProvision” has the meaning set forth in Section 6.14(a)hereof.
“AdditionalSeniorIndebtedness”hasthemeaningsetforthinSection7.6(a)hereof.
“AdditionalSeniorNotes”hasthemeaningsetforthinSection7.6(a)hereof.
“Advance” means, as the context mayindicate, a borrowingrequestedbyBorrowerand
made by the Revolving Credit Lenders under Section2.1or by the Swing Line Lender under
Section2.5, including any re-advance, refunding or conversion of such borrowing pursuant to
Section2.3or Section2.5and, subject to the terms hereof, may be a Base Rate Advance or a
Term SOFR Advance.
“AffectedFinancialInstitution”means(a)anyEEAFinancialInstitution,or(b)anyUK
Financial Institution.
“AffectedLender”hasthemeaningsetforthinSection11.12hereof.
“Affiliate” means, at any time, and with respect to any Person, any other Person that at
suchtimedirectlyorindirectlythroughoneormoreintermediariesControls,orisControlledby,
or is under common Control with, such first Person. Unless the context otherwise clearly
requires, anyreference to an “Affiliate” is a reference to an Affiliate of Borrower.
“Agent” has the meaning set forth in the preamble hereof, and includes any successor
agents appointed in accordance with Section 10.4hereof.
“Agent’sOffice”meanstheAgent’saddressand,asappropriate,account,assetforthon
Annex IV,orsuchotheraddressoraccountastheAgentmayfromtimetotimenotifyBorrower
and the Lenders.
“Agent-Related Persons” means, collectively, the Agent and its Affiliates and its and
theirrespectiveemployees,agents,officers,directors,attorneys-in-factandotherrepresentatives;
and“AgentRelatedPerson”meansanyoftheforegoing.
“Agreement”hasthemeaningsetforthinthepreamblehereof.
“Anti-Corruption Laws” means any law or regulation in a U.S. or any non-U.S.
jurisdiction regarding bribery or any other corrupt activity, including the U.S. Foreign Corrupt
Practices Act and the U.K. Bribery Act 2010.
“Anti-MoneyLaunderingLaws”meansanylaworregulationinaU.S.oranynon-U.S.
jurisdiction regarding money laundering, drug trafficking, terrorist-related activities or other
| US-DOCS\138548577.7 |
moneylaunderingpredicate crimes,includingtheCurrencyandForeignTransactionsReporting
Act of 1970 (otherwise known as the Bank SecrecyAct) and the USA PATRIOT Act.
“ApplicableFeePercentage”means,withrespecttotheRevolvingCreditFacilityFee
payable hereunder in respect of any calendar quarter, the applicable percentage per annum set
forth below that corresponds to the average daily utilization of Revolving Credit Commitments
forsuchcalendarquarter(disregardingtheamountofoutstandingSwingLineAdvancesforsuch
purpose):
| Utilization | ApplicableFeePercentage |
| >35% | 0.20% |
| <35% | 0.40% |
“ApplicableFloor”meanszeropercent(0.0%)perannum.
“ApplicableInterestRate” means, (i) with respect to each Revolving Credit Advance,
Term SOFR or the Base Rate, as applicable, plus, in each case, the Applicable Margin, and (ii)
with respect to each Swing Line Advance, the Base Rate, plus the Applicable Margin.
“Applicable Margin” means, as of any date of determination thereof, the applicable
interest rate margin, determined by reference to the appropriate row and column in the pricing
matrix attached to this Agreement as Annex I, such Applicable Margin to be adjusted solely as
specified in Section 3.8hereof.
“AssignmentAgreement”meansanAssignmentAgreementsubstantiallyintheformof
Exhibit J.
“Bail-In Action” means the exercise of anyWrite-Down and Conversion Powers bythe
applicable Resolution Authorityin respect of anyliabilityof an Affected Financial Institution.
“Bail-InLegislation”means(a)withrespecttoanyEEAMemberCountryimplementing
Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the
European Union, the implementing law, rule, regulation or requirement for such EEA Member
Country from time to time which is described in the EU Bail-In Legislation Schedule, and (b)
with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as
amended from time to time) and anyother law, rule, regulation or requirement applicable in the
UnitedKingdom relatingtotheresolutionofunsoundorfailingbanks,investmentfirmsorother
financial institutions or their affiliates (other than through liquidation, administration or other
insolvency proceedings).
“BankruptcyCode”meansTitle11oftheUnitedStatesCodeandtherulespromulgated
thereunder.
“BaseRate”means,foranyday,theperannumrateofinterestthatisequaltothegreater
of(a)thePrimeRateforsuchdayand(b)theFederalFundsRateineffectonsuchday,plusone
halfpercent (0.50%)perannum. AnychangeintheBaseRateduetoachangeinthePrimeRate
| US-DOCS\138548577.7 |
ortheFederalFundsRateshallbeeffectivefromandincludingtheeffectivedateofsuchchange
in the Prime Rate or the Federal Funds Rate, as applicable.
“BaseRateTermSOFRDeterminationDay” has themeaningspecified in thedefinition
of the term “Term SOFR”.
“BaseRateAdvance”meansanAdvancethatbearsinterestattheBaseRate.
“Benchmark” has the meaning set forth in Section 3.11(b)hereof.
“BenchmarkReplacement”hasthemeaningsetforthinSection3.11(a)hereof.
“BenchmarkReplacementDate”hasthemeaningsetforthinSection3.11(a)hereof.
“BenchmarkTransitionEvent”hasthemeaningsetforthinSection3.11(b)hereof.
“Beneficial Ownership Certification” means a certification regarding beneficial
ownership as required by the Beneficial Ownership Regulation in a form as agreed to by the
Agent.
“BeneficialOwnershipRegulation”means31C.F.R.§1010.230,asamendedfromtime
to time.
“Blocked Person” means (a) a Person whose name appears on the list of Specially
Designated Nationals and Blocked Persons published by OFAC, (b) a Person, entity,
organization, countryor regime that is blocked or a target of Sanctions or (c) a Person that is an
agent, department or instrumentality of, or is otherwise beneficially owned by, controlled by or
acting on behalf of, directly or indirectly, any Person, entity, organization, country or regime
described in clause (a) or (b).
“Borrower”hasthemeaningsetforthinthepreamblehereof.
“BusinessDay”meansanydayotherthanaSaturdayoraSundayonwhichcommercial
banks in the State of New York are authorized or required bylaw to close; providedthat, when
used in connection with a Term SOFR Advance, or any other calculation or determination
involving SOFR, the term “Business Day” means any such day that is also a U.S. Government
Securities Business Day.
“CapitalLease” means, at anytime, aleasewithrespect towhichthelesseeisrequired
concurrently to recognize the acquisition of an asset and the incurrence of a liability in
accordance with GAAP.
“CEA” has the meaning assigned to such term in the definition of “Excluded Swap
Obligations”.
“ChangeinLaw”meanstheoccurrence,aftertheClosingDate,ofanyofthefollowing:
(i) the adoption or implementation of, or any change in, any applicable law, treaty, rule or
regulation(whetherdomesticorforeign)noworhereafterineffectandwhetherornotapplicable
| US-DOCS\138548577.7 |
to any Lender or the Agent on such date, (ii) any change in the interpretation, administration or
implementationofanysuchlaw,treaty,ruleorregulationbyanyGovernmentalAuthority,or
(iii)theissuance,makingorimplementationbyanyGovernmentalAuthorityofanyregulation,
interpretation, guideline, directive or request (whether or not having the force oflaw), including
any risk-based capital guidelines.For purposes of this definition, (x) anychange in law, treaty,
rule, regulation, interpretation, administration or implementation made by, or which becomes
effective on the basis of, a law, treaty, rule, regulation, interpretation administration or
implementation then in force, the effective date of which change is delayed bythe terms of such
law,treaty,rule,regulation,interpretation,administrationorimplementation,(y)theDodd-Frank
Wall Street Reform and Consumer Protection Act (Pub.L. 111-203, H.R. 4173) and all rules,
regulations, interpretations, guidelines, directives or requests promulgated thereunder or issued
inconnectiontherewithshallbedeemedtobea“ChangeinLaw”regardlessofthedateenacted,
adopted,issued,promulgatedorimplemented,and(z)allrules,guidelines,directivesorrequests
promulgated by the Bank for International Settlements, the Basel Committee on Banking
Supervision (oranysuccessororsimilarauthority)ortheUnited States regulatoryauthorities,in
each case pursuant to Basel III, shall each be deemed to be a “Change in Law” regardless ofthe
date enacted, adopted, issued, promulgated or implemented.
“ChangeofControl”meansanyofthefollowingevents:
(a)at any time prior to the creation of a Public Market, Permitted Investors
shall cease to Control Borrower; or
(b)any time on or after the creation of a Public Market, any “person” or
“group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) other
thanaPermittedInvestororanyemployeebenefitplanorpersonactinginitscapacityas
trustee, agent or other fiduciary or administrator of such plan, shall become the
“beneficial owner” (as defined in Rules 13d-3 and 13d-5 of Exchange Act), directly or
indirectly, of morethan 50.0%oftheoutstandingvotingEquityInterestsofBorroweron
a fully diluted basis.
“CIM Founding Principal” means any of Shaul Kuba, Richard Ressler or Avraham
Shemesh.
“CIM Fund” means (a) any single-investor or commingled investment vehicle, fund,
partnership, limited liabilitycompanyor account that is sponsored, managedand/orserviced(or
co-sponsored, co-managed and/or co-serviced), directly or indirectly, by a Loan Partyor anyof
itsSubsidiariesor(b)anyentitythat,uponaLoanParty’soraLoanParty’sSubsidiary’smaking
an investment therein or acquiring management rights with respect thereto, would constitute an
entity described in clause (a) of this definition.
“ClosingDate”meanstheearliestdateonwhichalltheconditionsprecedentsetforthin
Sections 4.1and 4.2were satisfied, which was December 30, 2022.
“Code” means the Internal Revenue Code of 1986, as amended, and the rules and
regulations promulgated thereunder from time to time.
| US-DOCS\138548577.7 |
“CommitmentIncrease”hasthemeaningsetforthinSection2.13hereof.
“CommitmentIncreaseAmendment”hasthemeaningsetforthinSection2.13hereof.
“CommitmentIncreaseEffectiveDate”hasthemeaningsetforthinSection2.13hereof.
“Compliance Certificate” means a certificate of a Senior Financial Officer of by
Borrower delivered to the Agent pursuant to Section6.2, substantially in the form attached
hereto as Exhibit I.
“ConformingChanges”means,withrespecttoeithertheuseoradministrationofTerm
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 “U.S. Government Securities
BusinessDay,”thedefinitionof“InterestPeriod,”timingandfrequencyofdeterminingratesand
making payments of interest, timing of borrowing requests or prepayment, conversion or
continuation notices, length of lookback periods, the applicability of breakage provisions, and
other technical, administrative or operational matters) to this Agreement and the other Loan
Documents that the Agent decides (in the case of anysuch changes made in connection with the
use or administration of Term SOFR, in consultation with Borrower) may be appropriate to
reflecttheadoptionandimplementationofanysuchrateandtopermittheadministrationthereof
byAgent in a manner substantiallyconsistent with market practice that Agent determines (in the
case of any such changes made in connection with the use or administration of Term SOFR, in
consultation with Borrower) in connection with the administration of this Agreement and,
notwithstandinganythingtothecontraryhereinorinanyotherLoanDocument,anyamendments
implementing such changes will become effective without any further action or consent of
Borrower.
“Consolidated” (or “consolidated”) means, when used with reference to anyfinancial
term in this Agreement, the aggregate for two or more Persons of the amounts signified bysuch
termforallsuchPersons,determinedonaconsolidatedbasisinaccordancewithGAAP.Unless
otherwise specified herein, “Consolidated” shall refer to Borrower and its Subsidiaries,
determined on a Consolidated basis.
“Consolidated Adjusted EBITDA” means, for any period, for Borrower and its
Subsidiaries on a consolidated basis, an amount equal to (a) Consolidated EBITDA for such
period, minus(b) to the extent included in calculating Consolidated EBITDA for such period,
any unpaid Eligible Revenues accrued during such period that have been extended and/or
deferred beyond their original stated due date with the approval and/or agreement of the payee
(including any such Eligible Revenues that have been subordinated as permitted under this
Agreement), providedthat if anyEligible Revenues are excluded in anygiven period due to the
fact that it was extended and/or deferred under clause (b), such Eligible Revenues shall be
included in Consolidated Adjusted EBITDA in the period in which it is paid.
“ConsolidatedEBITDA” means, for anyperiod, for Borrower and its Subsidiaries on a
consolidated basis, without duplication, an amount equal to the sum of (a) Consolidated Net
| US-DOCS\138548577.7 |
Income for such period, plus(b) the following to the extent deducted in calculating such
Consolidated Net Incomefor such period: (i) Consolidated Interest Charges for such period; (ii)
the provision for federal, state, local and foreign income taxes (or similar taxes imposed in lieu
of income tax) payable for such period; (iii) the amount of depreciation and amortization
expense for such period; (iv) amortization of intangibles (including goodwill) and organization
costs; (v)anyextraordinary, non-recurring, unusual or exceptional losses, charges and expenses
forsuchperiod,includingwithout limitation,non-recurringseverancepayments,salesofassets,
early extinguishment or restructuring of indebtedness (including prepayment premiums),
acquisitions costs, reorganizations costs, write-offs, forgiveness of debt, placement fees, fund
organizational expenses; (vi) non-cash charges for such period, including amortization or other
expenses for stock options and other equitycompensation and impairment charges or expenses;
and (vii) net unrealized losses (gains), including unrealized performance allocation or incentive
fee expense (revenue).
“Consolidated Funded Indebtedness” means, as of any date of determination with
respect to Borrower and its Subsidiaries at such date, determined on a consolidated basis in
accordance with GAAP, without duplication, the sum of: (i)theoutstandingprincipal amount of
all obligations for borrowed money (including the Obligations hereunder) and all obligations
evidenced by bonds, debentures, notes, loan agreements or other similar instruments; (ii) the
maximum amount availabletobedrawnunderissuedandoutstandinglettersofcredit(including
standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar
instruments; (iii) all obligations in respect of the deferred purchase price of propertyor services
(other than trade accounts payable in the ordinary course of business) to the extent if and when
suchobligationsarerecognizedasaliabilityunderGAAP;(iv)allpurchasemoneyindebtedness;
(v) all attributable Indebtedness; (vi) all Disqualified Stock; (vii) all Guaranties with respect to
Indebtedness of the types specified in clauses(i) through (vi) of another Person to the extent of
the reasonablyestimated liabilityof Borrower and its Subsidiaries; and (viii) all Indebtedness of
the types referred to in clauses(i) through (vii) of any partnership in which Borrower or any of
itsSubsidiariesisageneralpartner,excepttotheextentthatIndebtednessisexpresslymadenon-
recourse to such Person; provided that Consolidated Funded Indebtedness shall not include (1)
any guaranteed Indebtedness for which recourse to such borrower is contractually limited to
liability for customary recourse exceptions; (2) anyso-called carryor completion guarantee; (3)
any Indebtedness arising under any hedging or netting arrangement prior to the occurrence of a
termination event with respect thereto; (4) operating leases and trade liabilities incurred in the
ordinary course of business and payable in accordance with customary or past practices; (5)
prepaid or deferred revenue arising in the ordinarycourse of business and not overdue for more
than60days;(6)purchasepriceholdbacksarisingintheordinarycourseofbusiness;(7)
earn-out obligations until such obligations become a liabilityin accordance with GAAP; (8) any
IndebtednessofemployeesofBorroweroranyofitsSubsidiariesthatisguaranteedbyBorrower
or any Subsidiary for the benefit of such employees to invest in Borrower, its Subsidiaries or a
CIM Fund, as part of an employee investment plan; and (9) any obligations incurred under
ERISA in the ordinary course of business.
“Consolidated Interest Charges” means, for any period, for Borrower and its
Subsidiaries on a consolidated basis, the sum of (a) all interest, premium payments, debt
discount, fees, charges and related expenses in respect of Indebtedness (including dividends on
| US-DOCS\138548577.7 |
Disqualified Stock), in each case to the extent treated as interest in accordance with GAAP, (b)
the portion of rent expense with respect to such period under Capital Leases that is treated as
interest in accordance with GAAP, (c) the implied interest component of synthetic lease
obligations with respect to such period and (d) net losses on hedge agreements or other
derivative instruments entered into for the purpose of hedging interest rate risk.
“ConsolidatedNetIncome”means,foranyperiod,forBorroweranditsSubsidiarieson
aconsolidatedbasis,thenetincome(excludingextraordinarygainsandlosses)forthatperiodas
determined in accordance with GAAP.
“ConsolidatedNetFundedIndebtedness”means,asofanydateofdeterminationwith
respect to Borrower and its Subsidiaries at such date, determined on a consolidated basis in
accordance with GAAP,without duplication,thesum of(a)ConsolidatedFundedIndebtedness,
less(b) the sum of unrestricted cash and cash equivalents free and clear of all Liens (other than
(x) Liens in favor of the Administrative Agent or holders of other Indebtedness secured equally
and ratably with or on a junior basis to the Obligations and (y) Liens (not securing any
Indebtedness) in favor of depositoryinstitutions or other customaryliensarisingbyoperationof
law) as of the date of determination.
“ConsolidatedLeverageRatio”means,asofanydateofdetermination,theratioof(a)
Consolidated Funded Debt as of such date to (b) Consolidated Adjusted EBITDA for the period
of four consecutive fiscal quarters most recently ended on such date for which financial
statements have been (or were required to have been) delivered under Section 6.1(a)or (b).
“Consolidated NetLeverage Ratio”hasthemeaningsetforthinSection7.8(a)hereof.
“Control”meansthebeneficialownership,directorindirect,ofmorethan50%ofthe
outstandingvotingEquityInterestsofaPersononafully-dilutedbasisandthepowerto appoint a
majority of the board of directors or other most senior governing board ofsuchPerson,whether
throughtheownershipofvotingsecurities,bycontractorotherwise;and the terms
“Controlled” and “Controlling” shall have meanings correlative to theforegoing.
“CoveredParty”hasthemeaningsetforthinSection11.24(a)hereof.
“CureExpirationDate”hasthemeaningsetforthinSection7.8(a)hereof.
“DBRS” means DBRS, Inc., and any successor thereto.
“Debt Rating”meansthedebtratingwithrespecttoeachseriesofSeniorNotesand
Additional Senior Notes as determined from time to time byanyAcceptable Rating Agency.
“DebtorReliefLaws”means,collectively,theBankruptcyCodeandallotherbankruptcy,
insolvency, assignmentforthebenefitofcreditors,moratorium,rearrangement,conservatorship,
receivership, liquidation, reorganization or similar debtor relief laws of the United States or any
other applicable jurisdictions, in each case as in effect from time to time.
“Default”meansaneventorconditiontheoccurrenceorexistenceofwhichwould,with
the lapse of time or the giving of notice or both, become an Event of Default.
| US-DOCS\138548577.7 |
“DefaultingLender”meansanyLenderthat(a)hasfailedto(i)fundalloranyportionof
its Revolving Credit Percentage of any Advance within one (1) Business Day of the date such
Advance was required to be funded hereunder, unless such Lender notifies the Agent and
Borrower in writing that such failureis theresult ofsuch Lender’s good faith determination that
one or moreconditions precedent to funding(each of which conditions precedent, together with
anyapplicable default, shall be specificallyidentified in such writing) has not been satisfied, or
(ii)paytotheAgent,theSwingLineLenderoranyotherLenderanyotheramountrequiredtobe
paidbyithereunder(includinginrespectofitsparticipationinSwingLineAdvances)withinone
(1) Business Day of the date when due, (b) has notified Borrower, the Agent or the Swing Line
Lenderinwritingthatitdoesnotintendtocomplywithitsfundingobligationshereunder,orhas
made a public statement to that effect, unless such writing or public statement is based on such
Lender’s good faith determination that one or more conditions precedent to funding (each of
which conditions precedent, togetherwithanyapplicabledefault,shall bespecificallyidentified
in such writing or public statement) has not been satisfied, (c) has failed, within three (3)
BusinessDaysafterwrittenrequestbytheAgentorBorrower,toconfirminwritingtotheAgent
and Borrower that it will comply with its prospective funding obligations hereunder (provided
thatsuchLendershallceasetobeaDefaultingLenderpursuanttothisclause(c)uponreceiptof
such written confirmation by the Agent and Borrower), or (d) has, or has a direct or indirect
parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law,
(ii)hadappointedforitareceiver,custodian,conservator,trustee,administrator,assigneeforthe
benefitofcreditorsorsimilarPersonchargedwithliquidationorreorganizationorofitsbusiness
or assets, including the Federal Deposit Insurance Corporation or any other federal or state
regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-In Action;
provided, however, that a Lender shall not be a Defaulting Lender solely by virtue of a
GovernmentalAuthority’sownershiporacquisitionofanyEquityInterestinsuchLender,orany
direct or indirect parent company thereof, so long as such ownership interest does not result in,
orprovidesuchLenderwith,immunityfromthejurisdictionofcourtswithintheUnitedStatesor
from the enforcement of judgments or writs of attachment on its assets, or permit such Lender
(or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or
agreements made with such Lender.Any determination by the Agent that a Lender is a
Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive
and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender
upondeliverybytheAgentofwrittennoticeofsuchdeterminationtoBorrower,eachLenderand
the Swing Line Lender.
“DefaultRate” means, with respect to (a) outstandingprincipal, the Applicable Interest
Rate plus two percent (2.00%) per annum, and (b) withrespecttoallotherObligationsaccruing
interest at the Default Rate pursuant to the terms of this Agreement, the Base Rate plus two
percent (2.00%) per annum.
“DisclosureDocuments”has themeaningsetforth in Section 5.3hereof.
“Disposition”meansthesale,transfer,license,leaseorotherdispositionofanyproperty
by any Loan Party or anySubsidiary, including anysale, assignment, transfer or other disposal,
withorwithoutrecourse,ofanynotesoraccountsreceivableoranyrightsandclaimsassociated
therewith.
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“DisqualifiedInstitution”means(i)anyPersonlistedonSchedule1.1attachedhereto,
(ii) with the approval of the Agent (such approval not to be unreasonablywithheld, conditioned
or delayed), anyother Person that Borrower identifies to the Agent from time to time in writing
as acompetitorofBorroweroritsSubsidiaries,and(iii)anyAffiliateofanyPersondescribedin
clause(i)orclause(ii)thatisidentifiedbyBorrowertotheAgentfromtimetotimeinwritingor
is readily identifiable by name.
“DisqualifiedStock” means, anyEquityInterest in Borrower or its Subsidiaries that (a)
matures or is mandatorily redeemable, other than an EquityInterest which is redeemable solely
in exchange for other Equity Interests; (b) is convertible into or exchange or exercisable for
ConsolidatedNetFundedIndebtedness;or(c)isredeemableattheoptionofitsholder,inwhole
or in part, other than EquityInterests which are redeemable solelyin exchange for other Equity
Interests which are not “Disqualified Stock”, in each case on or prior to the MaturityDate.
“DividingPerson”hasthemeaningassignedtosuchterminthedefinitionof“Division”.
“Division” meansthedivisionoftheassets,liabilitiesand/orobligationsofaPerson(the
“Dividing Person”) among two or more Persons (whether pursuant to a “plan of division” or
similar arrangement), which mayor maynot include the DividingPerson and pursuantto which
the Dividing Person may or may not survive.
“DivisionSuccessor”meansanyPersonthat,upontheconsummationofaDivisionofa
Dividing Person, holds all or any portion of the assets, liabilities and/or obligations previously
held by such Dividing Person immediately prior to the consummation of such Division. A
Dividing Person which retains any of its assets, liabilities and/or obligations after a Division
shall be deemed a Division Successor upon the occurrence of such Division.
“Dollars” and the sign “$” means the lawful money of the United States of America.
“DomesticSubsidiary”shallmeananySubsidiaryofBorrowerincorporatedororganized
underthelawsoftheUnitedStatesofAmericaoranystateorotherpoliticalsubdivisionthereof,
orwhichisconsideredtobea“disregardedentity”forUnitedStatesfederalincometaxpurposes
and is not a “controlled foreign corporation” as defined under Section957 of the Code, in each
case provided such Subsidiaryis owned byBorrower and/or one ormoreDomesticSubsidiaries
of Borrower, and “Domestic Subsidiaries” shall mean any or all of them as the context shall
indicate.
“EDGAR” means the SEC’s Electronic Data Gathering, Analysis and Retrieval System
or any successor SEC electronic filing system for such purposes.
“EEA Financial Institution” means (a) any credit institution or investment firm
established in any EEA Member Country which is subject to the supervision of an EEA
ResolutionAuthority,(b)anyentityestablishedinanEEAMemberCountrywhichisaparentof
an institution described in clause(a)ofthisdefinition,or(c)anyfinancialinstitutionestablished
inanEEAMemberCountrywhichisasubsidiaryofaninstitutiondescribedinclauses(a)or(b)
of this definition and is subject to consolidated supervision with its parent.
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“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 Transmission” shall mean each document, instruction, authorization, file,
informationorothercommunicationtransmitted,postedorotherwisemadeorcommunicatedby
e-mail or E-Fax, or otherwise to or from an E-System or other equivalent system or service.
“EligibleAssignee”meansaQualifiedPurchaserthatis(a)aLender,(b)anAffiliateofa
Lender, (c) anyPerson (other than a natural person) that is or will be engaged in the business of
making,purchasing,holdingorotherwiseinvestingincommercialloansorsimilarextensionsof
credit in the ordinary course of its business, provided that such Person is administered or
managed by a Lender, an Affiliate of a Lender, or an entity or Affiliate of an entity that
administers ormanages aLender, or(d)anyotherPerson (otherthan anatural person)approved
by (i) the Agent and the Swing Line Lender and (ii) unless an Event of Default under Section
8.1(a), (b), (g)or (h)has occurred and is continuing, Borrower (each such approval not to be
unreasonably withheld or delayed); provided, that Borrower shall be deemed to have consented
to any such assignee unless it gives written notice of its objection to the Agent within five (5)
Business Days after its receipt of notice thereof; and providedfurther, that notwithstanding the
foregoing, (x) no Disqualified Institution may be an “Eligible Assignee”, (y) neither Borrower
nor any of Borrower’s Affiliates or Subsidiaries may be an “Eligible Assignee”; and (z) no
assignment shall be made to a Defaulting Lender (or any Person who would be a Defaulting
Lender if such Person were a Lender hereunder) without the prior consent of the Agent and the
Swing Line Lender.
“EligibleRevenuePercentage” means (a) at anytimeFeeEarningEquityOwnedand
Operatedislessthan$13,271,126,000,80%ofEligibleRevenuesand(b)atallothertimes,70%
of Eligible Revenues.
“EligibleRevenues”meansManagementFees,reimbursements,realizedincentivefees,
and realized performance allocations paid or payable to Borrower or anyof its Subsidiaries.
“Equity Interest” means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity ownership
interests in a Person, and any warrants, options or other rights entitling the holder thereof to
purchaseoracquireanysuchEquityInterest.AsusedinthisAgreement,“EquityInterests”shall
not include convertible Indebtedness unless and until such Indebtedness has been converted to
capital stock.
“ERISA”meanstheEmployeeRetirementIncomeSecurityActof1974andtherulesand
regulations promulgated thereunder from time to time in effect.
“ERISA Affiliate” means any trade or business (whether or not incorporated) that is
treated as a single employer together with Borrower under section 414 of the Code.
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“Estate Planning Entity” means with respect to any individual, (a) any trust, the
beneficiaries of which are primarily such individual and/or any Immediate Family Relative, or
(b)anycorporation,partnership,limitedliabilitycompanyorotherentitythatisprimarily
owned and controlled, directlyor indirectly, bysuch individual, anyImmediate FamilyRelative
and/or any of the persons described in clause (a).
“EUBail-InLegislationSchedule”meanstheEUBail-InLegislation Schedule
published bythe Loan Market Association (oranysuccessorperson),asineffectfrom time to
time.
“EventofDefault”hasthemeaningsetforthinSection8.1hereof.
“ExchangeAct” means the Securities Exchange Act of 1934.
“ExcludedTaxes”shallmeananyofthefollowingTaxesimposedonorwithrespecttoa
Recipient or required to be withheld or deducted from a payment to a Recipient: (a) Taxes
imposed on or measured by net or gross income (however denominated), franchise Taxes and
branch profits Taxes, in each case that are (i) imposed as a result of such Recipient’s 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) 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 Borrower under Section11.12) or (ii) such Lender changes its
lending office, except in each case to the extent that amounts with respect to such Taxes were
payable either to such Lender’s assignor immediatelybefore such Lender became a partyhereto
ortosuchLenderimmediatelybeforeitchangeditslendingoffice,(c)Taxesattributabletosuch
Recipient’s failure to comply with Section11.13, and (d) any U.S. federal withholding Taxes
imposed under FATCA.
“ExcludedSwapObligation”shallmeananyobligationofaLoanPartytotheAgentora
Lender with respect to a “swap” (as defined in Section 1a(47) of the CommodityExchange Act
(“CEA”)) if and to the extent that such Loan Party’s guarantee of such swap obligation is or
becomes illegal under the CEA, or any rule, regulation or order of the Commodity Futures
Trading Commission (or any successor or other agency at any time exercising its powers under
the CEA), or the application or official interpretation of any thereof, by virtue of such Loan
Party’s failure for any reason to constitute an “eligible contract participant” (as defined in
Section 1a(18) of the CEA and the regulations thereunder) at the time such guarantee becomes
effective with respect to such swap obligation. Ifanysuchswapobligationarises underamaster
agreementgoverningmorethanoneswap,theforegoingexclusionshallapplyonlytothoseswap
obligations that are attributable to swaps in respect of which such Loan Party’s guarantee is or
becomes illegal.
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“ExtendingLenders”hasthemeaningsetforthinSection2.12(a)hereof.
“Extension” has the meaning set forth in Section 2.12hereof.
“ExtensionFee”hasthemeaningassignedtosuchtermintheFeeLetter.
“E-System”meansanyelectronicsystemorotherInternetorextranet-basedsite,whether
suchelectronicsystemisowned,operated,hostedorutilizedbytheAgent,anyofitsAffiliatesor
anyother Person, providing for access to data protected bypasscodes or other securitysystem.
“FATCA” shall mean (i) Sections1471 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), and any current or future regulations or official
interpretations thereof, (ii) any agreement entered into pursuant to Section1471(b)(1) of the
Code,(iii)anyintergovernmental agreemententeredintoinconnectionwiththeimplementation
of Sections1471 through 1474 of the Code, and (iv) any legislation, rules or practices adopted
pursuant to, or otherwise relating to, any such intergovernmental agreement.
“FederalFundsRate”means,foranyday,afluctuatingperannuminterestrateequalto
the weighted average of the rates on overnight Federal funds transactions with members of the
Federal Reserve Systemarranged by Federal funds brokers, as published for such day (or, if
such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve
Bank of New York or, if such rate is not so published for anydaywhich is a Business Day, the
average of the quotations for such day on such transactions received by the Agent from three
Federal funds brokers of recognized standing selected by the Agent, all as conclusively
determined by the Agent, such sum to be rounded upward, if necessary, in the discretion of the
Agent,tothenearestwholemultipleof1/100thof1%;providedthatiftheFederalFundsRateas
so determined would be less than 0%, such rate shall be deemed to be 0% for purposes of this
Agreement.
“FederalReserveBoard”meanstheBoardofGovernorsoftheFederalReserveSystem.
“Fee Earning Equity Owned and Operated” means, at any time, the sum of (a) the
aggregatenetassetvaluebeforeincentivefeeallocationsofallCIMFundsthatgenerate(directly
and/or through investments) any Eligible Revenues for Borrower and/or any of its Subsidiaries
and/or any entities jointly owned with a co-sponsor, co-manager or co-servicer based upon the
sponsorship, management and/or servicing by Borrower or any Subsidiary, as most recently
reportedbyBorroweroranyAffiliateofBorrower(and/or,inthecaseofany co-sponsored,
co-managed or co-serviced CIM Fund, by any co-sponsor, co-manager or co-servicer) to the
investors in such CIM Funds, plus(b) the aggregate amount, at the applicable report date(s), of
unfunded commitments to all CIM Funds; provided that with respect to any CIM Fund that is
cosponsored,co-managedand/orco-servicedbyapersonthatisnotanAffiliateofBorrower,the
Fee Earning Equity Owned and Operated of such CIM Fund shall at any time be equal to the
Loan Parties’ pro rata share of such CIM Fund’s net asset value before incentive fee allocations
and unfunded commitments (as determined by Borrower in good faith based on the relative
amountofassetmanagementfeesandothersimilarfeesthenbeingearnedbytheLoanPartiesor
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their subsidiaries and by the other co-sponsor, co-manager and/or co-servicer of such CIM
Fund).
“FeeLetter”shallmeantheamendedandrestatedfeeletter,datedasofDecember30,
2022, by and betweenthe First Amendment Effective Date, by and amongBorrowerandCity
NationalBank,theAgentandtheLeadArrangersandrelatingtotheRevolvingCredit,
as amended, restated, amended and restated, supplemented or otherwise modified from time to
time.
“Fees”meanstheRevolvingCreditFacilityFeeandtheotherfeesandcharges(including
any agency fees) payable by Borrower to the Lenders or the Agent hereunder or under the Fee
Letter.
“Financial Covenant” means any covenant (whether set forth as a covenant,
undertaking, event of default, restriction or other provision, including in related definitions and
anyprovision related to thetreatment ofoperatingleases in connection with such covenant)that
requires Borrower or any Subsidiary to achieve or maintain a stated level of financial condition
or performance and includes, without limitation, any requirement that Borrower or any
Subsidiary:
(a)maintain a specified level of net worth, shareholders’ equity, total assets,
cash flow or net income;
(b)maintain anyrelationship of anycomponent of its capital structure to any
other component thereof (including, without limitation, the relationship of indebtedness,
senior indebtedness or subordinated indebtedness to total capitalization or to net worth);
and
(c)maintain any measure of its ability to service its indebtedness (including,
without limitation, exceedinganyspecified ratio of revenues,cashflowornetincometo
indebtedness, interest expense, rental expense, capital expenditures and/or scheduled
payments of indebtedness).
“First Amendment” means that certain First Amendment to Revolving Credit
Agreement, dated as of the First Amendment Effective Date, by and among Borrower, the
Additional Lender party thereto, the other Lenders party thereto and the Agent.
“FirstAmendmentEffectiveDate”hasthemeaningsetforthintheFirst
Amendment.
“Fitch” means Fitch, Inc., and any successor thereto.
“ForeignLender”meansanyLenderthatisnotaU.S.Person.
“Form10-K”hasthemeaningsetforthinSection6.1(b)hereof.
“Form10-Q”hasthemeaningsetforthinSection6.1(a)hereof.
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“Fronting Exposure” shall mean, at any time there is a Defaulting Lender, such
DefaultingLender’sRevolvingCreditPercentageofoutstandingSwingLineAdvancesmadeby
the Swing Line Lender.
“GAAP” means (a) generally accepted accounting principles as in effect from time to
timeintheUnitedStatesofAmericaand(b)forpurposesofSection6.9,withrespecttoany
Subsidiary,generallyacceptedaccountingprinciples(includingInternationalFinancialReporting
Standards, asapplicable)asineffectfromtimetotimeinthejurisdictionoforganizationofsuch
Subsidiary.
“GAAPChangeEvent”hasthemeaningsetforthinSection1.3hereof.
“Governmental Authority” means
(a)thegovernmentof
(i)the United States of America or any state or other political
subdivision thereof, or
(ii)any other jurisdiction in which Borrower or any Subsidiary
conducts all or any part of its business, or which asserts jurisdiction over any
properties of Borrower or any Subsidiary, or
(b)any entity exercising executive, legislative, judicial, regulatory or
administrative functions of, or pertaining to, any such government; or
(c)anygrouporbodychargedwithsettingfinancialaccountingorregulatory
capitalrulesorstandards(includingtheFinancialAccountingStandardsBoard,theBank
for International Settlements or the Basel Committee on Banking Supervision or any
successor or similar authority to any of the foregoing).
“GovernmentalOfficial”meansanygovernmentalofficialoremployee,employeeofany
government-owned or government-controlled entity, political party, any official of a political
party, candidate for political office, official of any public international organization or anyone
else acting in an official capacity.
“Guarantor Supplement” has the meaning set forth in Section 6.10(a)(i)hereof.
“Guaranty”means,withrespecttoanyPerson,anyobligation(excepttheendorsementin
theordinarycourseofbusinessofnegotiableinstrumentsfordepositorcollection)ofsuch
Person guaranteeing or in effect guaranteeing any indebtedness, dividend or other obligation of
any other Person in any manner, whether directly or indirectly, including obligations incurred
through an agreement, contingent or otherwise, by such Person:
(a)to purchase such indebtedness or obligation or any property constituting
security therefor;
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(b)to advance or supply funds (i) for the purchase or payment of such
indebtedness or obligation, or (ii) to maintain anyworkingcapital or other balance sheet
conditionoranyincomestatementconditionofanyotherPersonorotherwisetoadvance
or make available funds for the purchase or payment of such indebtedness or obligation;
(c)to lease properties or to purchase properties or services primarily for the
purpose of assuring the owner of such indebtedness or obligation of the ability of any
other Person to make payment of the indebtedness or obligation; or
(d)otherwise to assure the owner of such indebtedness or obligation against
loss in respect thereof.
InanycomputationoftheindebtednessorotherliabilitiesoftheobligorunderanyGuaranty,the
indebtedness or other obligations that are the subject of such Guaranty shall be assumed to be
direct obligations of such obligor.
“HazardousMaterial” means anyand all pollutants, toxicorhazardous wastes orother
substances that might pose a hazard to health and safety, the removal of which maybe required
or the generation, manufacture, refining, production, processing, treatment, storage, handling,
transportation, transfer, use, disposal, release, discharge, spillage, seepage or filtration of which
is or shall be restricted, prohibited or penalized by any applicable law, including asbestos, urea
formaldehyde foam insulation, polychlorinated biphenyls, petroleum, petroleum products, lead
based paint, radon gas or similar restricted, prohibited or penalized substances.
“Hedging Agreement” shall mean any agreement relating to an interest rate swap
transaction, basis swap transaction, forward rate transaction, equity swap transaction, equity
index transaction, foreign exchange transaction, cap transaction or floor transaction, anyoption
with respect to anyof the foregoingtransactions, or anycombination of anyof the foregoing, in
each case, entered into byBorrower or anyof its Subsidiaries with the Agent or anyLender (or
their respective Affiliates), in each case as amended, restated, supplemented or otherwise
modified from time to time.
“ImmediateFamilyRelative” means an individual’s lineal descendants (including any
such descendants by adoption), siblings, parents, spouse, former spouses, current civil union
partner, former civil union partners and the estates, guardians, custodians or other legal
representatives of any of the foregoing.
“Indebtedness”means,withrespecttoanyPersonatanytime,withoutduplication,
(a)itsliabilitiesforborrowedmoneyanditsredemptionobligationsinrespect
of mandatorily redeemable Preferred Stock;
(b)its liabilities for the deferred purchase price of property acquired by such
Person (excluding accounts payable arising in the ordinary course of business but
includingallliabilitiescreatedorarisingunderanyconditionalsaleorothertitleretention
agreement with respect to any such property);
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(c)(i) all liabilities appearing on its balance sheet in accordance with GAAP
inrespectofCapitalLeasesand(ii)allliabilitieswhichwouldappearonitsbalancesheet
inaccordancewithGAAPinrespectofSyntheticLeasesassumingsuchSyntheticLeases
were accounted for as Capital Leases;
(d)all liabilitiesforborrowedmoneysecuredbyanyLienwithrespecttoany
property owned by such Person (whether or not it has assumed or otherwise become
liable for such liabilities);
(e)all its liabilities in respect of letters of credit or instruments serving a
similar function issued or accepted for its account by banks and other financial
institutions (whether or not representing obligations for borrowed money);
(f)the aggregate Swap Termination Value of all Swap Contracts of such
Person; and
(g)anyGuarantyof such Person with respecttoliabilitiesofatypedescribed
in any of clauses (a) through (f) hereof.
IndebtednessofanyPersonshallincludeallobligationsofsuchPersonofthecharacterdescribed
in clauses (a) through (g) to the extent such Person remains legally liable in respect thereof
notwithstanding that anysuch obligation is deemed to be extinguished under GAAP.
“IndemnifiedTaxes” means (a) Taxes, other than Excluded Taxes, imposed on or with
respect to any payment made by or on account of any obligation of any Loan Party under any
Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
“Indemnitee”hasthemeaningsetforthinSection11.5(b)hereof.
“Information” has the meaningset forth in Section 11.11hereof.
“Interest Period” means, with respect to a Term SOFR Advance, an interest period of
one (1), three (3) or six (6) months (in each case subject to availability thereof) as selected by
Borrower, in any request for, conversion to, or continuation of such Term SOFR Advance;
provided,howeverthat(i)anyInterestPeriodwhichwouldotherwiseendonadaywhichisnota
Business Dayshall endonthenext succeedingBusinessDay,exceptthatastoanInterestPeriod
in respect of a Term SOFR Advance, if the next succeeding Business Day falls in another
calendar month, such Interest Period shall end on the next precedingBusiness Day, (ii) when an
Interest Period in respect of a Term SOFR Advance begins on the last Business Day of a
calendar month or on a day which has no numerically corresponding day in the calendar month
duringwhichsuchInterestPeriodistoend,itshallendonthelastBusinessDayofsuchcalendar
month, (iii) no Interest Period in respect of any Advance shall extend beyond the Revolving
Credit Maturity Date, and (iv) no tenor that has been removed from this definition pursuant to
Section 3.11shall be available for election in any Request for Advance.
“InvestmentAdvisersAct”meanstheInvestmentAdvisersActof1940,asamendedand
therulesandregulationsoftheSECthereunder,asmodifiedorinterpretedbyordersoftheSEC,
orotherinterpretativereleasesorlettersissuedbytheSECoritsstaff,allasfromtimetotimein
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effect,oranysuccessorlaw,rulesorregulations,andanyreferencetoanystatutoryorregulatory
provision shall be deemed to be a reference to anysuccessor statutoryor regulatoryprovision.
“Investment Grade” has the meaning set forth in the definition of “Investment Grade
Rating”.
“Investment Grade Rating” means a Debt Rating assigned to the Senior Notes or
Additional Senior Notes from at least one Acceptable RatingAgencyequal toorhigherthan(a)
BBB- (or the equivalent) byFitch, S&P, Kroll or DBRS, or (b) Baa3 byMoody’s (such ratings
underclause(a)andclause(b)being“InvestmentGrade”);provided,that:
(i)if at any time there are two Debt Ratings assigned to the Senior Notes or
AdditionalSeniorNotesfromAcceptableRatingAgencies,andthelowerofsuch
Debt Ratings that is in full force and effect (not having been withdrawn) is less
than Investment Grade, then the Senior Notes or Additional Senior Notes, as
applicable, shall be deemed not to have an “Investment Grade Rating”;
(ii)ifatanytimetherearethreeormoreDebtRatingsassignedtotheSeniorNotesor
Additional Senior Notes from Acceptable Rating Agencies, and the then second
lowest of such Debt Ratings that is in full force and effect (not having been
withdrawn) is less than Investment Grade, then the Senior Notes or Additional
Senior Notes, as applicable, shall be deemed not to have an “Investment Grade
Rating” (provided, for the avoidance of doubt, if two or more of such Debt
Ratings are equal or equivalent as the lowest such Debt Rating, then one of such
equal or equivalent Debt Ratings will be deemed to be the second lowest Debt
Rating for purposes of such determination); and
(iii)if Borrower shall have failed to maintain a Debt Rating or receive and deliver to
the Agent aPrivateRatingLetterfromatleastoneAcceptableRatingAgency,in
each case as required pursuant to Section 6.13, then the Senior Notes and/or
Additional Senior Notes shall be deemed not to have an “Investment Grade
Rating”.
“KeyEmployees”meansanyofBethanyChang,JeffColumbus,JordanDembo,Robert
Dupree, Jennifer Gandin, Adam Gibbons, Ryan Harter, Michael Hoverman, Nick Morosoff,
Mukya Porter Jason Schreiber, JollySingh, David Thompson, EmilyVande Krol and anyother
employee of Borrower or anyof its Subsidiaries that is promoted to or designated a “Principal.”
“Kroll”meansKrollBondRatingAgency,LLC,andanysuccessorthereto.
“Lender Products” shall mean any one or more of the following types of services or
facilities extended to any of the Loan Parties by any Lender: (i) credit cards, (ii) credit card
processing services, (iii) debit cards, (iv) purchasecards, (v) Automated ClearingHouse(ACH)
transactions, (vi) cash management, including controlled disbursement services, and (vii)
establishing and maintaining deposit accounts.
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“Lenders” has the meaning set forth in the preamble hereof, and shall include the
Revolving Credit Lenders, the Swing Line Lender and any assignee that becomes a Lender
pursuant to Section 11.8hereof.
“Lien”means,withrespecttoanyproperty,anymortgage,lien,pledge,charge,security
interest or other similar encumbrance on such property, or any interest or title of any vendor,
lessor, lender or other secured party to or of such property under any conditional sale or other
title retention agreement or Capital Lease, upon or with respect to such property.
“Loan Documents” means, collectively, this Agreement, the Notes (if issued), each
SubsidiaryGuaranty,eachGuarantorSupplement,andanyotheragreement,certificateand/or
instrument executed and/or delivered in connection therewith, each as may be amended,
restated or otherwise modified from time to time.
“Loan Parties” shall mean, collectively, Borrower and each SubsidiaryGuarantor, and
“LoanParty” shall mean anyone of them, as the context shall indicate.
“MajorityLenders” shall mean at any time, Lenders holding more than 50.0% of the
Revolving Credit Aggregate Commitment (or, if the Revolving Credit Aggregate
Commitment has been terminated (whether by maturity, acceleration or otherwise), the
aggregate principal amount outstanding under the Revolving Credit); provided, however, that
for purposes of determining Majority Lenders the principal amount outstanding under the
Swing Line shall be allocated among the Revolving Credit Lenders based on their respective
Revolving Credit Percentages; and providedfurther, that if there are (x) fewer than three (3)
Lenders (consideringanyLenderanditsAffiliatesasasingleLender),MajorityLendersshall
mean all Lenders andor(y) there three (3) or more Lenders (considering any Lender and its
Affiliates as a single Lender), Majority Lenders shall include at least two (2) Lenders.The
RevolvingCreditCommitmentAmountsof,andportionoftheObligationsattributableto,any
Defaulting Lender shall be excluded for purposes of making a determination of Majority
Lenders; provided, however, that the amount of anyparticipation in anySwingLine Advance
that a Defaulting Lender has failed to fund that has not been reallocated to and funded by
another Lender shall be deemed to be held by the Lender that is the Swing Line Lender in
making a determination under this definition.
“ManagementFees” means anyfundmanagementfees,propertymanagementfees,
development fees, leasing or sales commissions or any other similar fees (but for the
avoidance ofdoubt excludinganyincentivefees,performanceallocations,orcarriedinterest)
paid or payable to Borrower or any Subsidiary.
“Material”meansmaterialinrelationtothebusiness,operations,affairs,financial
condition, assets or properties of Borrower and its Subsidiaries taken as a whole.
“Material Adverse Effect” means a material adverse effect on (a) the business,
operations, affairs, financial condition, assets or properties of Borrower and its Subsidiaries
taken as a whole, (b) the ability of Borrower or any other Loan Party, taken as a whole to
perform their respective obligations under this Agreement or Borrower or any other Loan
Documentor(c)thevalidityorenforceabilityofthisAgreementoranyotherLoanDocument.
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“Material Credit Facility” means, as to Borrower and its Subsidiaries, any
agreement(s) creating or evidencing Indebtedness for borrowed money entered into by
BorroweroranySubsidiary,orinrespectofwhichBorroweroranySubsidiaryisaobligoror
otherwise provides a guarantee or other credit support, in a principal amount outstanding or
availableforborrowingequaltoorgreaterthan$50,000,000(ortheequivalentofsuchamount
in the relevant currency of payment, determined as of the date of the closing of such facility
based on the exchange rate of such other currency.
“Maturity Date” means the earlier to occur of (i) December30, 2025 (subject to
Borrower’s extension thereof pursuant to Section 2.12), and (ii) the date on which the
RevolvingCreditAggregateCommitmentterminatesinaccordancewiththeprovisionsofthis
Agreement.
“MultiemployerPlan”meansanyPlanthatisa“multiemployerplan”(assuchtermis
defined in section 4001(a)(3) of ERISA).
“Non-DefaultingLender”means,atanytime,aLenderthatisnotaDefaultingLender
at such time.
“Non-U.S.Plan”meansanyplan,fundorothersimilarprogramthat(a)isestablished
or maintained outside the United States of America byBorrower or anySubsidiaryprimarily
for the benefit of employees of Borrower or one or more Subsidiaries residing outside the
United States of America, which plan, fund or other similar program provides, or results in,
retirement income, a deferral of income in contemplation of retirement or payments to be
made upon termination of employment, and (b) is not subject to ERISA or the Code.
“Notes” means, collectively, the Revolving Credit Notes and the Swing Line Note.
“Obligations”shallmeantheunpaidprincipalofandintereston(including,without
limitation,interestaccruingafterthematurityoftheAdvancesandinterestaccruingafterthe
filing of any petition in bankruptcy, or the commencement of any proceeding under any
DebtorReliefLaw,relatingtoBorroweroranySubsidiary,whetherornotaclaimfor
post-filing or post-petition interest is allowed in such proceeding) the Advances and all other
obligations and liabilities owed by Borrower or any Subsidiary to the Agent, theanyLead
Arranger, any Lender or the Swing Line Lender, whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred, which may arise
under, out of, or in connection with,thisAgreement,anyotherLoanDocument,anyHedging
Agreement, any Lender Products or any other document made, delivered or given in
connection herewith or therewith, whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses (including, without limitation, all fees, charges
and disbursements of counsel to the Lead ArrangerArrangers, the Agent or any Lender that
are required to be paid by Borrower pursuant hereto) or otherwise. Notwithstanding the
foregoing, the term “Obligations” shall be deemed not to include any Excluded Swap
Obligations.
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“OFAC”meanstheOfficeofForeignAssetsControloftheUnitedStatesDepartment
of the Treasury.
“OFAC Sanctions Program” means any economic or trade sanction that OFAC is
responsible for administering and enforcing. A list of OFAC Sanctions Programs may be
found at http://www.treasury.gov/resource center/sanctions/Programs/Pages/Programs.aspx.
“Officer’sCertificate”meansacertificateofaSeniorFinancialOfficerorofanyother
officer of Borrower whose responsibilities extend to the subject matter of such certificate.
“Original Subsidiary Guarantors” means, collectively, each of the Subsidiaries of
Borrower set forth on Annex IIhereof.
“OtherConnectionTaxes”means,withrespecttoanyRecipient,Taxesimposedasa
resultofapresentorformerconnectionbetweensuchRecipientandthejurisdictionimposing
such Tax (other than connections arising from such Recipient’s 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
anyLoan Document, or sold or assigned an interest in anyAdvance or Loan Document).
“Other Taxes” means all present or future stamp, court or documentary, intangible,
recording, filing or similar Taxes that arise from the execution, delivery, performance,
enforcementorregistrationof,fromthereceiptorperfectionofasecurityinterestunder,from
anypayment made under, or otherwise with respect to, anyLoan Document, except anysuch
Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an
assignment made pursuant to Section 11.12).
“ParticipantRegister”hasthemeaningsetforthinSection11.8(f)hereof.
“PBGC” means the Pension Benefit GuarantyCorporation referred to and defined in
ERISA.
“Percentage”means,asapplicable,theRevolvingCreditPercentageortheWeighted
Percentage.
“PeriodicTermSOFRDeterminationDay”hasthemeaningspecifiedinthedefinition
of “Term SOFR”.
“Permitted Dispositions” means (a) Dispositions of assets in the ordinary course of
business on fair and reasonable terms, (b) Dispositions of propertybya Loan Partyto anyother
Loan Partyor to aWholly-Owned Subsidiary, (c) Dispositions byanySubsidiarywhich is not a
Loan Party to another Subsidiary, (d) Dispositions of obsolete, damaged, uneconomic or worn
out assets, orassets no longerused orusefulintheconductoftheLoanParties’businessand(e)
Dispositions consisting of Restricted Payments permitted in accordance with Section 7.7.
“PermittedInvestors”means(a)anyoftheCIMFoundingPrincipals,(b)anyoftheKey
Employees (excluding any such Key Employees who were not Key Employees at least twelve
| US-DOCS\138548577.7 |
(12) months prior to obtaining a majority or more of the outstanding Equity Interests of
Borrower); (c) any Immediate Family Relative of any of the CIM Founding Principals or Key
Employees;(d)any EstatePlanningEntity forthebenefitofanyperson(s)describedinclauses
(a)through(c),(e)anyfamilycharitablefoundationoverwhichanyperson(s)describedin
subclauses (a) through (c) has direction, (f) Mitsui & Co., Ltd. and its controlled affiliates, (g)
SabreInvestmentsLLCanditscontrolledaffiliatesand(h)anygroup(asdefinedinsection13(d)
of the Exchange Act) containing any of the foregoing “Permitted Investors” so long as such
members of such group own and control legal and beneficiallyat least 50.1% of the outstanding
voting Equity Interests of the group.
“Permitted Tax Distribution” means, for each taxable year (or portion thereof) of
Borrower for which Borrower is treated as a disregarded entity or partnership for U.S. federal,
state and/or local income taxpurposes, distributions to Borrower’s direct owner(s) to fund the
U.S. federal, state and/or local income tax liability of such owner(s) (or, if a direct owner is a
disregarded entity or partnership for U.S. federal, state and/or local income tax purposes, of
Borrower’s ultimate indirect owner(s)) for such taxable year (or portion thereof) attributable to
the operations and activities of Borrower (and those of any Subsidiaries that are treated as
disregarded entities or partnerships for U.S. federal, state and/or local income tax purposes), in
an amount not to exceed the product of (a) the amount of net taxable income (for the avoidance
of doubt, calculated in accordance with the assumptions and limitations set forth in this
definition) of Borrower (and Borrower’s allocable share of the net taxable income of any
Subsidiaries that are treated as disregarded entities or partnerships for U.S. federal, state and/or
localincometaxpurposes)forsuchtaxableyear(orportionthereof),reducedbynettaxableloss
or tax credit of Borrower (and Borrower’s allocable share of the net taxable loss or tax credit of
any Subsidiaries that are treated as disregarded entities or partnerships for U.S. federal, state
and/or local income tax purposes) with respect to the current taxable year and all prior taxable
years(orportionsthereof)totheextentdeductibleorcreditableagainstsuchtaxableincomeand
to the extent such loss or credit has not previouslybeen applied to reduce taxable income under
this clause (a), times (b) the maximum combined U.S. federal, state and local income tax rates
applicable to such income for such taxable year (or portion thereof) applicable to an individual
residing in New York City, taking into account the character of Borrower’s income, the
deductibility (and any limitations thereon) of state and local income taxes and the deductibility
(and any limitations thereon) of expenses.
“Person” means an individual, partnership, corporation, limited liability company,
association, trust, unincorporated organization, business entity or governmental authority.
“Plan” means an “employee benefit plan” (as defined in section 3(3) of ERISA) subject
to Title I of ERISA that is or, within the preceding five years, has been established or
maintained,ortowhichcontributionsareor,withintheprecedingfiveyears,havebeenmadeor
required to be made, byBorrower or anyERISA Affiliate or with respect to which Borrower or
any ERISA Affiliate may have any liability.
“PrimeRate” means the per annum rate of interest announced bythe Agent, at its main
office, from time to time as its “prime rate” (it being acknowledged that such announced rate
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may not necessarily be the lowest rate charged by the Agent to any of its customers), which
Prime Rate shall change simultaneouslywith anychange in such announced rate.
“Private Rating Letter” means a letter issued by an Acceptable Rating Agency in
connection with any private debt rating for a series of the Senior Notes or Additional Senior
Notes, which (a) sets forth the Debt Rating for such series of Senior Notes or Additional Senior
Notes, as applicable, (b) refers to the Private Placement Number issued by Standard & Poor’s
CUSIP Bureau Service in respect of such series of Senior Notes or Additional Senior Notes, as
applicable, (c) addresses the likelihood of payment of both principal and interest on the Senior
Notes or Additional Senior Notes, as applicable (which requirement shall be deemedsatisfiedif
either (x) such letter includes confirmation that the rating reflects the Acceptable Rating
Agency’s assessment of Borrower’s abilityto make timelypayment of principal and interest on
the Senior Notes or Additional Senior Notes, as applicable, or a similar statement or (y) such
letter is silent as to the Acceptable Rating Agency’s assessment of the likelihood of payment of
bothprincipalandinterestanddoesnotincludeanyindicationtothecontrary),(d)includessuch
other information describing the relevant terms of the Senior Notes or Additional Senior Notes,
as applicable, as may be required from time to time by the SVO or any other Governmental
AuthorityhavingjurisdictionoveranyholderoftheSeniorNotesorAdditionalSeniorNotes,as
applicable, and (e) shall not be subject to confidentiality provisions or other restrictions which
would prevent or limit the letter from being shared with the SVO or any other Governmental
AuthorityhavingjurisdictionoveranyholderoftheSeniorNotesorAdditionalSeniorNotes,as
applicable.
“PrivateRatingRationaleReport” means, with respect to anyPrivate Rating Letter, a
report issued by the Acceptable Rating Agency in connection with such Private Rating Letter
setting forth an analytical review of the Senior Notes or Additional Senior Notes explaining the
transaction structure, methodologyrelied upon, and, as appropriate, analysis of the credit, legal,
and operational risks and mitigants supporting the assigned Private Rating for the Senior Notes
or Additional Senior Notes, as applicable, in each case, on the letterhead of the Acceptable
Rating Agency or its controlled website and generally consistent with the work product that an
Acceptable Rating Agency would produce for a similar publicly rated securityand otherwise in
form and substance generallyrequired bythe SVO or anyother Governmental Authorityhaving
jurisdictionoveranyholderofSeniorNotesorAdditionalSeniorNotes,asapplicable,fromtime
to time. Such report shall not be subject to confidentialityprovisions or other restrictions which
would prevent or limit the report from being shared with the SVO or any other Governmental
Authorityhaving jurisdiction over anyholder of Senior Notes or Additional Senior Notes.
“PreferredStock”meansanyclassofcapitalstockofaPersonthatispreferredoverany
other class of capital stock (or similar equity interests) of such Person as to the payment of
dividends or the payment of anyamount upon liquidation or dissolution of such Person.
“property”or“properties”means,unlessotherwisespecificallylimited,realorpersonal
property of any kind, tangible or intangible, choate or inchoate.
“PublicMarket”means(a)aPublicOfferinghasbeenconsummatedor(b)Borrowerhas
a class of EquityInterests registered under Section 12(b) or 12(g) of the Exchange Act.
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“Public Offering” means a public offering of the Equity Interests of Borrower in an
underwritten primary public offering (other than a public offering pursuant to a registration
statement on Form S-8 (or successor form)) or a direct listing, in each case, pursuant to an
effective registration statement filed with the SEC in accordance with the Securities Act
(whether alone or in connection with a secondary public offering).
“Purchases”hasthemeaningsetforthinSection7.5hereof.
“PurchasingLender”hasthemeaningsetforthinSection11.12(a)hereof.
“QFCCreditSupport” has themeaningset forth in Section 11.24hereof.
“Qualified Purchaser” hasthe meaning set forth in Section2(a)(51)(A) of the
Investment Company Act of 1940, as amended, and the rules and regulations promulgated
thereunder, and includes any “qualified institutional buyer” as contemplated by Rule 2a51-1(g)
issued pursuant to the Investment Company Act of 1940, as amended.
“QualifiedPurchaserCertificate”meansacertificatedeliveredbyaQualifiedPurchaser
substantially in the form of Exhibit L.
“Recipient” means (a) the Agent or (b) any Lender.
“Register”hasthemeaningsetforthinSection11.8(h)hereof.
“Refinancing” means the repayment in full of all Indebtedness and other obligations
under that certain Amended and Restated Revolving Credit Agreement, dated as of December
17, 2019, by and among CIM Group, LLC, as borrower, the lenders from time to time party
theretoandComericaBank,asadministrativeagent,asamended,restated,amendedandrestated,
supplemented or otherwise modified from time to time prior to the date hereof, and the
termination of all commitments to provide financial accommodations, and all Guaranties and
Liens granted, thereunder.
“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, in each case, any successor
thereto.
“Representative”hasthemeaningsetforthinSection11.11hereof.
“RequestforAdvance”meansaRequestforRevolvingCreditAdvanceoraRequestfor
Swing Line Advance, as the context may indicate or otherwise require.
“Request for Extension” means a written request for an Extension made by Borrower
and delivered to the Agent under Section 2.12(e).
“RequestforRevolvingCreditAdvance” means a written request foraRevolvingCredit
Advance made by Borrower under Section2.3substantially in the form attached hereto as
Exhibit A(or such other form to which the Agent and Borrower mayagree from time to time).
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“RequestforSwingLineAdvance”meansawrittenrequestforaSwingLineAdvance
madebyBorrowerunderSection2.5(c)substantiallyintheformattachedheretoasExhibitB(or
such other form to which the Agent and Borrower mayagree from time to time).
“Requirement of Law” means, as to any Person, the certificate of incorporation or
formationandthebylaws,partnershipagreementorotherorganizationalorgoverningdocuments
of such Person, and anylaw, treaty, rule or regulation or determination of an arbitration, a court
or other Governmental Authority, in each case applicable to or bindingupon such Person or any
of its propertyor to which such Person or anyof its propertyis subject.
“ResolutionAuthority”meansanEEAResolutionAuthorityor,withrespecttoanyUK
Financial Institution, a UK Resolution Authority.
“Responsible Officer” means any Senior Financial Officer and any other officer of
Borrower with responsibilityfor the administration of the relevant portion of this Agreement.
“Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests of any Person, or any payment
(whether in cash, securities or other property), including anysinking fund or similar deposit, on
account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or
termination of any such Equity Interests or on account of any return of capital to such Person’s
stockholders, partners or members (or the equivalent Person thereof), or any option, warrant or
other right to acquire anysuch dividend or other distribution or payment.
“Revolving Credit” means the revolving credit made available to Borrower by the
Revolving Credit Lenders pursuant to Article2hereof, in an aggregate amount (subject to the
terms hereof) not to exceed, at any one time outstanding, the Revolving Credit Aggregate
Commitment.
“RevolvingCreditAdvance”meansanAdvancerequestedbyBorrowerandmadebythe
RevolvingCredit Lenders under Section 2.1, includinganyre-advance, refundingorconversion
of such Advance pursuant to Section 2.3, and, subject to the terms hereof, may be a Base Rate
Advance or a Term SOFR Advance.
“Revolving Credit Aggregate Commitment” means, initially, Seventy-Fiveas of the
First Amendment Effective Date, One Hundred FiftyMillion Dollars
($75,000,000.00150,000,000.00), as adjusted from time to time in accordance with the terms
hereof.
“RevolvingCreditCommitmentAmount”means,astoanyRevolvingCreditLender,(i)
if the Revolving Credit Aggregate Commitment has not been terminated, the amount specified
opposite such Revolving Credit Lender’s name in the column entitled “Revolving Credit
CommitmentAmount”onAnnexIII,asadjustedfromtimetotimeinaccordancewiththeterms
hereof;and(ii)iftheRevolvingCreditAggregateCommitmenthasbeenterminated(whetherby
maturity, acceleration or otherwise), an amount equal to its Revolving Credit Percentage of the
aggregate principal amount outstanding under the Revolving Credit (including any outstanding
Swing Line Advances).
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“RevolvingCredit FacilityFee” means the fee payable to the Agent for distribution to
the Revolving Credit Lenders in accordance with Section 2.9.
“Revolving Credit Lenders” means the financial institutions from time to time parties
hereto as lenders under the Revolving Credit.
“RevolvingCreditNotes”meanstherevolvingcreditnotesdescribedinSection2.2,each
made by Borrower to the order of a Revolving Credit Lender in the form attached hereto as
ExhibitC, as such notes may be amended or supplemented from time to time, and any other
notes issued in substitution, replacement or renewal thereof from time to time.
“Revolving Credit Percentage” means, as to any Revolving Credit Lender, the
percentage specified opposite such Revolving Credit Lender’s name in the column entitled
“Revolving Credit Percentage” on Annex III, as adjusted from time to time in accordance with
the terms hereof.
“S&P” means Standard & Poor’s Rating Services, a Standard & Poor’s Financial
Services LLC business, and any successor thereto.
“Sanctions” means any economic or financial sanctions programs or embargoes
administered or enforced by the United States Government (including OFAC), the United
NationsSecurityCouncil,theEuropeanUnion,HerMajesty’sTreasuryorotherauthorityhaving
jurisdiction over any Loan Party or its Subsidiaries.
“SEC”meanstheSecuritiesandExchangeCommissionoftheUnitedStatesofAmerica.
“SecuritiesAct”meanstheSecuritiesActof1933andtherulesandregulations
promulgatedthereunderfromtimetotimeineffect.
“Senior Financial Officer” means the chief financial officer, principal accounting
officer, treasurer or comptroller of Borrower.
“Senior Notes” means, collectively, the 6.42% Series A Senior Notes due August 30,
2029, the 6.50% Series B Senior Notes due August 30, 2032 and the 6.75% Series C Senior
Notes due August 30, 2034, in each case issued by Borrower pursuant to the Senior Notes
Purchase Agreement.
“Senior Notes Purchase Agreement” means that certain Senior Notes Purchase
Agreement, dated as of August 30, 2022, by and among Borrower and the purchasers party
thereto, as amended, restated, amended and restated, supplemented or otherwise modified from
time to time in a manner not prohibited hereby.
“Significant Subsidiary” means, at any time, any Subsidiary that would at such time
constitute a “significant subsidiary” (as such term is defined in Regulation S-XoftheSEC as in
effect on the Closing Date) of Borrower.
“SOFR” means a rate per annum equal to the secured overnight financing rate as
administered by the SOFR Administrator.
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“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor
administrator of the secured overnight financing rate).
“Solvent” means that, as of any date of determination with respect to Borrower and its
Subsidiaries (determined on a Consolidated basis), (i) the aggregate amount of such Persons’
Indebtedness as at such date does not exceed the present fair saleable value of their assets on a
going-concernbasisasatsuchdate,(ii)suchPersons’capitalasofsuchdateisnotunreasonably
small in relation to their business as contemplated on such date, (iii) such Persons have not
incurred, anddonot intendtoincurorbelieve(norshouldtheyreasonablybelieve)thattheywill
incur, debts beyond their ability to pay as they become due (whether at maturity or otherwise),
and (iv) such Persons are “solvent” within the meaning given that term and similar terms under
any applicable Debtor Relief Law and applicable laws relating to fraudulent or avoidable
transfersandconveyances.Forpurposesofthisdefinition,theamountofanycontingentliability
at any time shall be the amount that could reasonably be expected to become an actual and
matured liability.
“Specified Equity Contribution” has the meaning set forth in Section 7.8(a)hereof.
“SpecifiedNote”meansthatcertainPromissoryNoted,datedMarch25,2022,madeby
BorrowerinfavorofCIMGroupInvestments,LLC,aDelawarelimitedliabilitycompany,inthe
originalaggregateprincipalamountof$66,000,000.
“Specified Transaction” shall mean any (i) material acquisition or investment, (ii)
material sale or transfer of assets or property or other asset disposition (including any disposal,
abandonment or discontinuance of operations), (iii) incurrence, repayment or refinancing of
Consolidated Funded Indebtedness,or (iv) other transaction, election or other event for which
thisAgreementrequiresproformacompliancewithatestorcovenanthereunderorrequiressuch
test or covenant to be calculated on a pro forma basis.
“StateSanctionsList”meansalistthatisadoptedbyanystateGovernmentalAuthority
pertaining to Persons that engage in investment or other commercial activities in Iran or any
other country that is a target of any Sanctions.
“Subsidiary”means,astoanyPerson,anyotherPersoninwhichsuchfirstPersonorone
or more of its Subsidiaries or such first Person and one or more of its Subsidiaries owns
sufficientequityorvotingintereststoenableitorthem(asagroup)ordinarily,intheabsenceof
contingencies, to elect a majority of the directors (or Persons performing similar functions) of
such second Person, and any partnership or joint venture if more than a 50% interest in the
profits orcapital thereofis owned bysuch first Person oroneormoreofitsSubsidiariesorsuch
first Person and oneormoreofits Subsidiaries (unless suchpartnershiporjointventurecanand
does ordinarily take major business actions without the prior approval of such Person or one or
more of its Subsidiaries). Unless the context otherwise clearly requires, any reference to a
“Subsidiary” is a reference to a Subsidiary of Borrower.
“SubsidiaryGuarantor” means, collectively, theOriginal SubsidiaryGuarantors and any
other Subsidiary of Borrower that may from time to time guaranty the Obligations of Borrower
pursuant to the Subsidiary Guaranty.
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“Subsidiary Guaranty” means the Subsidiary Guaranty, substantially in the form set
forth on Exhibit Ghereto, dated as of the Closing Date, pursuant to which the Subsidiary
Guarantors shall jointly and severally guaranty the Obligations of Borrower, as amended,
restated, amended and restated, supplemented or otherwise modified from time to time
(including by the Guarantor Supplements).
“SupportedQFC”hasthemeaningsetforthinSection11.24hereof.
“SVO” means the Securities Valuation Office of the NAIC.
“Swap Contract” means (a) any and all interest rate swap transactions, basis swap
transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward foreign exchange
transactions, cap transactions, floor transactions, currency options, spot contracts or any other
similar transactions or any of the foregoing (including any options to enter into any of the
foregoing),and(b)anyandalltransactionsofanykind,andtherelatedconfirmations,whichare
subject to the terms and conditions of, or governed by, anyform of master agreement published
by the International Swaps and Derivatives Association, Inc. or any International Foreign
Exchange Master Agreement.
“SwapTerminationValue” means, in respect ofanyoneormoreSwapContracts,after
takingintoaccount theeffect ofanylegallyenforceablenettingagreement relatingtosuchSwap
Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination value(s), and (b) for
anydatepriortothedatereferencedinclause(a),theamounts(s)determinedasthe
mark-to-marketvalues(s)forsuchSwapContracts,asdeterminedbasedupononeormore
mid-marketorotherreadilyavailablequotationsprovidedbyanyrecognizeddealerinsuchSwap
Contracts.
“SwingLine”meanstherevolvingcreditmadeavailabletoBorrowerbytheSwingLine
Lender pursuant to Section2.5, in an aggregate amount (subject to the terms hereof) not to
exceed, at any one time outstanding, the Swing Line Maximum Amount.
“Swing Line Advance” means an Advance requested by Borrower and made by the
Swing Line Lender pursuant to Section 2.5, which shall be a Base Rate Advance.
“SwingLineLender”meansCityNationalBankinitscapacityaslenderofSwingLine
Advances under Section 2.5, or its successor as subsequentlydesignated hereunder.
“Swing Line Maximum Amount” means, initially, Twenty-Eightas of the First
AmendmentEffectiveDate,Fifty-SixMillionOneTwoHundredTwenty-FiveFiftyThousand
Dollars ($28,125,00056,250,000), as adjusted from time to time in accordance with the terms
hereof.
“Swing Line Note” means the swing line note which may be executed by Borrower
payable to the order of the Swing Line Lender pursuant to Section2.5(b)(ii)hereof in the form
| US-DOCS\138548577.7 |
attached hereto as ExhibitD, as such note maybe amended or supplemented from time to time,
and anynote or notes issued in substitution, replacement or renewal thereof from time to time.
“Swing Line Participation Certificate” means the Swing Line Participation Certificate
deliveredbytheAgenttoeachRevolvingCreditLenderpursuanttoSection2.5(e)(ii)intheform
attached hereto as Exhibit E.
“Syndication Agent” means Truist Bank, in its capacity as the syndication agent
hereunder.
“SyntheticLease” means,atanytime,anylease(includingleasesthatmaybeterminated
by the lessee at any time) of any property (a) that is accounted for as an operating lease under
GAAP and (b) in respect of which the lessee retains or obtains ownership of the property so
leased for U.S. federal income tax purposes, other than anysuch lease under which such Person
is the lessor.
“Taxes” means, all present or future taxes, levies, imposts, duties, deductions,
withholdings(includingbackupwithholding),assessments,feesorotherchargesimposedbyany
Governmental Authority, including anyinterest, additions to tax or penalties applicable thereto.
“TermSOFR”means
(a)for any calculation with respect to a Term SOFR Advance, the Term
SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such
day,the“PeriodicTermSOFRDeterminationDay”)thatistwo(2)U.S.GovernmentSecurities
Business Days priortothefirst dayofsuchInterestPeriod,assuchrateispublishedbytheTerm
SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any
Periodic Term SOFR Determination 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
theTermSOFRReferenceRateforsuchtenoraspublishedbytheTermSOFRAdministratoron
the first preceding U.S. Government Securities 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 U.S. Government Securities Business Day is not more than three (3) U.S.
Government Securities Business Days prior to such Periodic Term SOFR Determination Day,
and
(b)for any calculation with respect to a Base Rate Advance on any day, the
TermSOFRReferenceRateforatenorofonemonthontheday(suchday,the“BaseRateTerm
SOFRDeterminationDay”)thatistwo(2)U.S.GovernmentSecuritiesBusinessDayspriorto
such day, as such rate is published bytheTerm SOFR Administrator; provided, however, that if
asof5:00p.m.(NewYorkCitytime)onanyBaseRateTermSOFRDeterminationDaythe
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
aspublishedbytheTermSOFRAdministratoronthefirstprecedingU.S.GovernmentSecurities
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Business Day for which such Term SOFR Reference Rate for such tenor was published by the
Term SOFR Administrator so longas such first precedingU.S. Government Securities Business
Day is not more than three (3) U.S. Government Securities Business Days prior to such Base
Rate Term SOFR Determination Day;
provided, further, that if Term SOFR determined as provided above (including pursuant
to the proviso under clause (a) or clause (b) above) shall ever be less than the Applicable Floor,
then Term SOFR shall be deemed to be the Applicable Floor.
“Term SOFR Administrator” means the CME Group Benchmark Administration
Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected bythe
Agent in its reasonable discretion).
“Term SOFR Advance” means any Advance which bears interest at Term SOFR.
“TermSOFRReferenceRate”meanstheforward-lookingtermratebasedonSOFR.
“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
PrudentialRegulationAuthority)oranyPersonsubjecttoIFPRU11.6oftheFCAHandbook(as
amended from time to time) promulgated bythe United Kingdom Financial Conduct Authority,
which includes certain credit institutions and investment firms, and certain affiliates of such
credit institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public
administrative authorityhavingresponsibilityfor the resolution of anyUK Financial Institution.
“Uniform Commercial Code” or “UCC” means the Uniform Commercial Code as in
effect from time to time in anyapplicable jurisdiction; providedthat, unless otherwise specified
or the context otherwise requires, such terms shall refer to the Uniform Commercial Code as in
effect from time to time in the State of New York.
“USA Patriot Act” means United States Public Law 107 56, Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA
PATRIOTACT)Actof2001andtherulesandregulationspromulgatedthereunderfromtimeto
time in effect.
“U.S. Person”meansanyPersonthatisa“UnitedStatesPerson”asdefinedin
Section 7701(a)(30) of the Code.
“U.S.SpecialResolutionRegimes” hasthemeaningsetforthinSection11.24hereof.
“U.S.TaxComplianceCertificate”hasthemeaningsetforthinSection11.13hereof.
“WeightedPercentage”means,withrespecttoanyLender,itsweightedpercentage
calculatedbydividing(i)itsRevolvingCreditCommitmentAmount,by(ii)theRevolving
CreditAggregate Commitment(or, if the Revolving Credit Aggregate Commitment has been
| US-DOCS\138548577.7 |
terminated(whetherbymaturity,accelerationorotherwise),theaggregateprincipalamount
outstandingundertheRevolvingCredit,includinganyoutstandingSwingLineAdvances.
Annex IIIreflects each Lender’s Weighted Percentage, and may be revised by the Agent from
time to time to reflect changes in the Weighted Percentages of the Lenders.
“Wholly-Owned Subsidiary” means, at any time, any Subsidiary all of the equity
interests (except directors’ qualifying shares, employee and profit-sharing interests) and voting
interestsofwhichareownedbyanyoneormoreofBorrowerandBorrower’sother
Wholly-Owned Subsidiaries at such time.
“WithdrawalLiability” meansliabilitytoaMultiemployerPlanasaresultofacomplete
or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.
“WithholdingAgent”meansanyLoanPartyandtheAgent.
“Write-DownandConversionPowers” means(a)withrespecttoanyEEAResolution
Authority, the write-down and conversion powers of such EEA Resolution Authorityfrom time
totimeundertheBail-InLegislationfortheapplicableEEAMemberCountry,whichwrite-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 anycontract or instrument under which that liabilityarises, to convert all
or part of that liabilityinto shares, securities or obligations of that person or anyother 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 ancillaryto anyof those powers.
1.2InterpretiveProvisions.ForpurposesofthisAgreement:
(a)The meanings of defined terms are equally applicable to the singular and
plural forms of the defined terms.
(b)References herein to “sections,” “subsections,” “clauses,” “paragraphs,”
“subparagraphs,” “exhibits,” “annexes” and “schedules” shall be to sections, subsections,
clauses, paragraphs, subparagraphs, exhibits, annexes and schedules, respectively, of this
Agreement unless otherwise specified or unless the context otherwise clearlyindicates.
(c)Theterms“including”and“include”arenotlimiting,andmean“including
or include without limitation.”
(d)Theterms “hereof”, “hereto”, “hereunder” andsimilartermsshallreferto
this Agreement and not to anyparticular paragraph or provision of this Agreement.
(e)In computing periods of time from a specified date to a later specified
date,theword“from”means“fromandincluding”;thewords“to”and“until”eachmean“tobut
excluding”; and the word “through” means “to and including.”
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(f)Unless otherwise expressly provided herein, (i) references to agreements
(including this Agreement and the other Loan Documents) and other contractual instruments
shall be deemed to include all subsequent amendments, restatements, supplements and other
modifications thereto, but only to the extent such amendments, restatements, supplements and
othermodificationsarenotprohibitedbythetermsofanyLoanDocument,and(ii)referencesto
any statute or regulation shall be construed as including all statutory and regulatory provisions
amending, replacing, supplementing or interpreting such statute or regulation.
(g)References to the “ordinary course” refer to the ordinary course of
business of Borrower and its Subsidiaries, taken as a whole, unless otherwise specified.
(h)This Agreement and the other Loan Documents are the result of
negotiationsamongandhavebeenreviewedbycounseltotheAgent,theLenders,Borrowerand
the other parties thereto and are the products of all parties.Accordingly, they shall not be
construed against the Agent or a Lender merely because of the Agent’s or such Lender’s
involvement in their preparation.
1.3AccountingTerms;Divisions.
(a)Except as otherwise expressly provided herein, all accounting terms not
otherwisedefinedhereinshallhavethemeaningsassignedtotheminconformitywithGAAP.If
at any time any change in GAAP would affect the computation of any financial ratio or other
requirementsetforthinanyLoanDocument(a“GAAPChangeEvent”),atBorrower’srequest
the Agent and Borrower shall negotiate in good faith to amend such ratio or requirement to
preserve the original intent thereof in light of such change in GAAP; provided, that until so
amended, each such ratio or requirement shall continue to be computed in conformity with
GAAP as in effect immediatelyprior to such change.Following anyGAAP Change Event, and
until such ratio or requirement is so amended, Borrower shall provide with any financial
statements delivered under Sections6.1(a)and 6.1(d)an internally-prepared reconciliation
betweensuchfinancialstatementsandanyfinancialinformationrequiredforthecomputationof
such ratio or requirement in accordance with GAAP as in effect prior to such GAAP Change
Event.
(b)Notwithstanding anything to the contrary in Section1.3(a)or in the
definition of “Capitalized Lease,” any change in accounting for leases pursuant to GAAP
resulting from the adoption of Financial Accounting Standards Board Accounting Standards
Update No. 2016-02, Leases (Topic 842) (“FAS 842”), to the extent such adoption would
require treating anylease (or similar arrangement conveying the right to use) as a capital lease
wheresuchlease(orsimilararrangement)wouldnothavebeenrequiredtobesotreatedunder
GAAP as in effect on December31, 2015, such lease shall not be considered a capital lease,
any lease that would have been treated as an operating lease under GAAP as in effect on
December31, 2015 shall continueto beconsideredanoperatinglease,andallcalculationsand
deliverables under this Agreement or anyother Loan Document shall bemadeor delivered, as
applicable, in accordance therewith.
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(c)For all purposes under the Loan Documents, in connection with any
Division, (a) if anyasset, right, obligation or liabilityofanyDividingPerson becomes theasset,
right, obligation or liability of a Division Successor, then it shall be deemed to have been
transferred from the Dividing Person to the Division Successor, and (b) anyDivision Successor
shall be deemed to have been organized on the first date of its existence by the holders of its
Equity Interests at such time.
1.4Rates.TheAgentdoesnotwarrantoracceptresponsibilityfor,andshallnothave
anyliabilitywith respect to (a) the continuation of, administration of, submission of, calculation
of or anyother matter related to the Base Rate, the Term SOFR Reference Rate or Term SOFR,
or any component definition thereof or rates referred to in the definition thereof, or any
alternative, successor or replacement rate thereto (including any Benchmark Replacement),
including whether the composition or characteristics of any such alternative, successor or
replacementrate(includinganyBenchmarkReplacement)willbesimilarto,orproducethesame
value or economic equivalence of, or have the same volume or liquidity as, the Base Rate, the
Term SOFR Reference Rate, Term SOFR or anyother Benchmark prior to its discontinuance or
unavailability,or(b)theeffect,implementationorcompositionofanyConformingChanges.The
Agent may select information sources or services in its reasonable discretion to ascertain the
Base Rate, Term SOFR Reference Rate, Term SOFR or any component thereof or any other
Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to
Borrower or any other Person or entity for damages of any kind, including direct or indirect,
special, punitive, incidental or consequentialdamages,costs,lossesorexpenses(whetherintort,
contract or otherwise and whether at law or in equity), for any error or calculation of any such
rate (or component thereof) provided by any such information source or service.In connection
with the use or administration of any Benchmark, the Agent will have the right to make
Conforming Changes from time to time and, notwithstanding anything to the contraryherein or
in any other Loan Document, any amendments implementing such Conforming Changes will
become effective without any further action or consent of any other party to this Agreement or
any other Loan Document.The Agent will promptly notify Borrower and the Lenders of the
effectiveness of any Conforming Changes.
1.5ProFormaCalculations.Fortheavoidanceofdoubt:
(a)For purposes of determining compliance with any provision of this
Agreement that refers to “pro forma compliance”, “pro forma effect” or to any determination
being made on a “pro forma basis” or words of similar effect, any Specified Transaction
occurringsincethefirstdayofthemostrecentlyendedperiodoffourconsecutivefiscalquarters
for which financial statements have been (or were required to have been) delivered pursuant to
Section 6.1(a)orSection 6.1(b) shall be deemed to have occurred as of, and pro forma
adjustments arising out of events attributable to such Specified Transaction shall be made from
andafter,thefirstdayofsuchfourfiscalquartermeasurementperiodandcontinuingthroughthe
last day of such four fiscal quarter measurement period.
(b)Upon giving effect to a transaction on a “pro forma” basis, (i) any
Indebtedness incurred by Borrower or any of its Subsidiaries in connection with such Specified
Transaction shall be deemed to be Indebtedness on the last day of such four fiscal quarter
measurement period, (ii) income statement items (whether positive or negative) and
| US-DOCS\138548577.7 |
Consolidated Adjusted EBITDA attributable to all property acquired in such Specified
Transaction, orto theinvestment constitutingsuchSpecifiedTransaction,asapplicable,shallbe
included as if such Specified Transaction had occurred as of the first day of such four fiscal
quarter measurement period, and (iii) income statement items (whether positive or negative)
attributable to all propertydisposed of in anySpecified Transaction shall be excluded as if such
Specified Transaction had occurred as of the first day of such four fiscal quarter measurement
period.
(c)WheneverproformaeffectistobegiventoanySpecifiedTransaction,the
pro forma calculations shall be made in good faith bya Responsible Officer of Borrower.
(d)Wheneverafinancial ratio ortest is to becalculated on aproformabasis,
the relevant measurement period for purposes of calculating such financial ratio or test shall be
themostrecentlyendedfourfiscalquarterperiodforwhichthefinancialstatementsofBorrower
and its Subsidiaries have been (or were required to have been) delivered pursuant to Section
6.1(a)or Section 6.1(b), and such calculation shall be based on such financial statements.
2.REVOLVINGCREDIT.
2.1Commitment.Subject to the terms and conditions of this Agreement (including
Section2.3), each Revolving Credit Lender severally and for itself alone agrees to make
AdvancesoftheRevolvingCreditinDollarstoBorrowerfromtimetotimeonanyBusinessDay
during the period from the Closing Date until (but excluding) the MaturityDate in an aggregate
amount not toexceedat anyonetimeoutstandingsuchLender’sRevolvingCreditPercentageof
the Revolving Credit Aggregate Commitment.Subject to the terms and conditions set forth
herein, advances, repayments and re-advances maybe made under the Revolving Credit.
2.2AccrualofInterestandMaturity;EvidenceofObligations.
(a)Borrower hereby unconditionally promises to pay to the Agent for the
account of each Revolving Credit Lender the then unpaid principal amount of each Revolving
Credit Advance (plus all accrued and unpaid interest) of such Revolving Credit Lender to
Borrower on the Maturity Date and on such other dates and in such other amounts as may be
required from time to time pursuant to this Agreement.Subject to the terms and conditions
hereof, each Revolving Credit Advance shall, from time to time from and after the date of such
Advance (until paid), bear interest at its Applicable Interest Rate.
(b)EachRevolvingCredit Lendershallmaintaininaccordancewithitsusual
practice an account or accounts evidencing the indebtedness of Borrower to the appropriate
lending office of such Revolving Credit Lender resulting from each Revolving Credit Advance
made by such lending office of such Revolving Credit Lender from time to time, including the
amountsofprincipalandinterestpayablethereonandpaidtosuchRevolvingCreditLenderfrom
time to time under this Agreement.
(c)The Agent shall maintain the Register pursuant to Section11.8(h), and a
subaccount therein for each Revolving Credit Lender, in which Registerand subaccounts (taken
together) shall be recorded (i) the amount of each Revolving Credit Advance made hereunder,
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thetypethereofandeachInterestPeriodapplicabletoanyTermSOFRAdvance,(ii)theamount
ofanyprincipalorinterestdueandpayableortobecomedueandpayablefromBorrowertoeach
Revolving Credit Lender hereunder in respect of the Revolving Credit Advances and (iii) both
the amount of any sum received by the Agent hereunder from Borrower in respect of the
Revolving Credit Advances and each Revolving Credit Lender’s share thereof.
(d)TheentriesmadeintheRegistermaintainedpursuanttoSection2.2(c)and
Section11.8(h)shall, absent manifest error, to the extent permitted by applicable law, be prima
facie evidence of the existence and amounts of the obligations of Borrower therein recorded;
provided, however, that the failure of anyRevolving Credit Lender or the Agent to maintain the
Register or any account, as applicable, or any error therein, shall not in any manner affect the
obligation of Borrower to repay the Revolving Credit Advances (and all other amounts owing
with respect thereto) made to Borrower bythe Revolving Credit Lenders in accordance with the
terms of this Agreement.
(e)Borroweragreesthat,uponwrittenrequesttotheAgentbyanyRevolving
Credit Lender, Borrower will execute and deliver, to such Revolving Credit Lender, at
Borrower’s ownexpense,aRevolvingCreditNoteevidencingtheoutstandingRevolvingCredit
Advances owing to such Revolving Credit Lender.
2.3Requests for and Refundings and Conversions of Advances.Borrower may
request an Advance (other thanaSwingLineAdvance,whichshallbegovernedbySection2.5)
oftheRevolvingCredit,arefundofanyRevolvingCreditAdvanceinthesametypeofAdvance
ortoconvertanyRevolvingCreditAdvancetoanyothertypeofRevolvingCreditAdvanceonly
bydeliveryto the Agent of a Request for Revolving Credit Advance executed bya Responsible
Officer of Borrower, subject to the following:
(a)each such Request for Revolving Credit Advance shall set forth the
information required on the Request for Revolving Credit Advance, including:
(i)the proposed date of such Revolving Credit Advance (or the
refunding or conversion of an outstanding Revolving Credit Advance), which must be a
Business Day;
(ii)whether such Advance is a new Revolving Credit Advance or a
refunding or conversion of an outstanding Revolving Credit Advance; and
(iii)whether such Revolving Credit Advance is to be a Base Rate
Advance or a Term SOFR Advance,and,withrespecttoeachTermSOFRAdvance,the
firstInterestPeriodapplicablethereto;provided,however,thattheinitialRevolving
Credit Advance made under this Agreement shall be a Base Rate Advance, which may
then be converted into a Term SOFR Advance in compliance with this Agreement.
(b)each such Request for RevolvingCredit Advance shall be delivered to the
Agentby11:00a.m.(LosAngelestime)three(3)BusinessDayspriortotheproposeddateofthe
RevolvingCreditAdvance,exceptinthecaseofaBaseRateAdvance,forwhichtheRequestfor
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RevolvingCredit Advancemust bedeliveredby11:00a.m.(LosAngelestime)one(1)Business
Day prior to the proposed date for such Revolving Credit Advance;
(c)on the proposed date of such Revolving Credit Advance, the aggregate
principal amount of all Revolving Credit Advances and Swing Line Advances outstanding on
such date, after giving effect to all outstanding requests for Revolving Credit Advances and
Swing Line Advances, shall not exceed the Revolving Credit Aggregate Commitment;
(d)in the case of a Base Rate Advance, the principal amount of the initial
fundingofsuchAdvance,asopposedtoany refundingorconversionthereof,shallbeatleast
$1,000,000(oralargerintegralmultipleof$100,000)ortheremainderavailableunderthe
Revolving Credit Aggregate Commitment if less than $1,000,000;
(e)in the case of a Term SOFR Advance, the principal amount of such
Advance, plus the amount of any other outstanding Revolving Credit Advance to be then
combined therewith having the same Interest Period, if any, shall be at least $2,000,000 (or a
larger integral multiple of $100,000) or the remainder available under the Revolving Credit
Aggregate Commitment if less than $2,000,000, and at any one time there shall not be in effect
more than five (5) different Interest Periods; and
(f)a Request for Revolving Credit Advance, once delivered to the Agent,
shall not be revocable by Borrower.
The Agent, actingon behalfoftheRevolvingCredit Lenders, mayalso, at its option, lend under
thisSection2.3uponthetelephoneoremailrequestofaResponsibleOfficerofBorrowerto
makesuchrequestsand,intheeventtheAgent,actingonbehalfoftheRevolvingCredit
Lenders, makes any such Advance upon a telephone or email request, a Responsible Officer of
Borrower shall fax or deliver byelectronic file to the Agent, on the same dayas such telephone
oremailrequest,anexecutedRequestforRevolvingCreditAdvance.Borrowerhereby
authorizes the Agent to disburse Advances under this Section2.3pursuant to the telephone or
emailinstructionsofanypersonpurportingtobeaResponsibleOfficerofBorrower.
Notwithstandingthe foregoing, Borrower acknowledges that Borrowershall bearall riskofloss
resultingfromdisbursementsmadeuponany telephoneoremailrequest.Eachtelephoneor
emailrequestforanAdvancefromaResponsibleOfficerofBorrowershallconstitutea
certification of the matters set forth in theRequest forRevolvingCredit Advanceform as ofthe
date of such requested Advance.
2.4DisbursementofAdvances.
(a)UponreceivinganyRequestforRevolvingCreditAdvancefromBorrower
under Section2.3, the Agent shall promptly notify each Revolving Credit Lender by wire, telex
or telephone (confirmed by wire, telecopy or telex) of the amount of such Advance being
requested and the date such Revolving Credit Advance is to be made byeach Revolving Credit
Lender in an amount equal to its Revolving Credit Percentage of such Advance.Unless such
Revolving Credit Lender’s commitment to make Revolving Credit Advances hereunder shall
have been suspended or terminated in accordance with this Agreement, each such Revolving
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Credit Lender shall make available the amount of its Revolving Credit Percentage of each
RevolvingCreditAdvanceinimmediatelyavailablefundstotheAgentbynolaterthan8:00
a.m. (Los Angeles time) on the date specified in the related Request for Revolving Credit
Advance.
(b)Subject to the fulfillment of all applicable conditions set forth herein, the
Agent shall make available to Borrower the aggregate of the amounts so received byit from the
Revolving Credit Lenders in like funds and currencies byno later than 10:00 a.m. (Los Angeles
time)onthedatespecifiedintherelatedRequestforRevolvingCreditAdvance,bywire-transfer
of such proceeds to the account specified in the related Request for Revolving Credit Advance.
(c)The Agent shall deliver the documents and papers received by it for the
account of each Revolving Credit Lender to such Revolving Credit Lender.Unless the Agent
shall have been notified by any Revolving Credit Lender prior to the date of any proposed
RevolvingCredit Advance that such RevolvingCredit Lender does not intend to makeavailable
to the Agent such Revolving Credit Lender’s Percentage of such Advance, the Agent may
assumethatsuchRevolvingCreditLenderhasmadesuchamountavailabletotheAgentonsuch
date,asaforesaid.TheAgentmay,butshallnotbeobligatedto,makeavailabletoBorrowerthe
amount of such payment in reliance on such assumption.If such amount is not in fact made
availabletotheAgentbysuchRevolvingCreditLender,asaforesaid,theAgentshallbeentitled
to recover such amount on demand from such Revolving Credit Lender.If such Revolving
Credit Lender does not pay such amount forthwith upon the Agent’s demand therefor and the
Agent has in fact madeacorrespondingamountavailabletoBorrower,theAgentshallpromptly
notifyBorrower and Borrower shall paysuch amount to the Agent, if such notice is delivered to
Borrower prior to 12:00 p.m. (Los Angeles time) on a Business Day, on the day such notice is
received, and otherwise on the next Business Day, and such amount paid by Borrower shall be
applied as a prepayment of the Revolving Credit (without any corresponding reduction in the
Revolving Credit Aggregate Commitment), reimbursing the Agent for having funded said
amountsonbehalfofsuchRevolvingCreditLender.Borrowershallretainitsclaimagainstsuch
Revolving Credit Lender with respect to the amounts repaid by it to the Agent and, if such
Revolving Credit Lender subsequently makes such amounts available to the Agent, the Agent
shall promptly make such amounts available to Borrower as a Revolving Credit Advance.The
Agent shall also be entitled to recover from such Revolving Credit Lender or Borrower, as the
case may be, but without duplication, interest on such amount in respect of each day from the
date such amount was made available by the Agent to Borrower, to the date such amount is
recovered by the Agent, at a rate per annum equal to:
(i)in the case of such Revolving Credit Lender, for the first two (2)
Business Days such amount remains unpaid, the Federal Funds Effective Rate, and
thereafter,attherateofinterestthenapplicabletosuchRevolvingCreditAdvances(plus
any administrative, processing or similar fees assessed by Agent in connection with the
foregoing); and
(ii)inthecaseofBorrower,therateofinterestthenapplicabletosuch
Advance of the Revolving Credit.
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Until such Revolving Credit Lender has paid the Agent such amount, such Revolving Credit
Lender shall have no interest in or rights with respect to such Advance for any purpose
whatsoever.The obligation of any Revolving Credit Lender to make any Revolving Credit
Advance hereunder shall not be affected bythe failure of anyother Revolving Credit Lender to
make any Advance hereunder, and no Revolving Credit Lender shall have any liability to
Borrower or anyof its Subsidiaries, the Agent, anyother Revolving Credit Lender, or anyother
partyfor another Revolving Credit Lender’s failure to make anyloan or Advance hereunder.
2.5SwingLine.
(a)Swing Line Advances.The Swing Line Lender may, on the terms and
subject to the conditions hereinafter set forth (including in Section2.5(c)), but shall not be
requiredto,makeoneormoreAdvances(eachsuchadvancebeinga“SwingLineAdvance”)to
Borrower from time to time on anyBusiness Dayduring the period from the Closing Date until
(but excluding) the Maturity Date in an aggregate amount not to exceed at any one time
outstanding the Swing Line Maximum Amount.On the terms and subject to the conditions set
forth herein, advances, repayments and re-advances maybe made under the Swing Line.
(b)AccrualofInterestandMaturity;EvidenceofObligations.
(i)TheSwingLineLendershallmaintaininaccordancewithitsusual
practice an account or accounts evidencing the indebtedness of Borrower to the Swing
Line Lender resulting from each Swing Line Advance from time to time, including the
amount and date of each Swing Line Advance, its Applicable Interest Rate, its Interest
Period, if any, and the amount and date of any repayment made on such Swing Line
Advance from time to time.The entries made in the Swing Line Lender’s account or
accounts shall be prima facie evidence, absent manifest error, of the existence and
amounts of Borrower’s obligations therein recorded; provided, however, that the Swing
Line Lender’s failure to maintain any such account or accounts, as applicable, or any
error therein, shall not in any manner affect Borrower’s obligation to repay the Swing
LineAdvances(andallotheramountsowingwithrespectthereto)inaccordancewiththe
terms of this Agreement.
(ii)Borrower agrees that, upon Swing Line Lender’s written request,
Borrower will execute and deliver to the Swing Line Lender a Swing Line Note.
(iii)Borrower unconditionally promises to pay to the Swing Line
Lender the then unpaid principal amount of any Swing Line Advances (plus all accrued
and unpaid interest) on the Maturity Date and on such other dates and in such other
amountsasmayberequiredfromtimetotimepursuanttothisAgreement.Subjecttothe
terms and conditions hereof, each SwingLine Advance shall,fromtimetotimeafterthe
date of such Advance (until paid), bear interest at its Applicable Interest Rate.
(c)Requests for Swing Line Advances.Borrower mayrequest a SwingLine
AdvancebydeliveringtotheSwingLineLenderaRequestforSwingLineAdvanceexecutedby
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a Responsible Officer of Borrower.The Swing Line Lender’s obligation to make the requested
Swing Line Advance shall be subject to satisfaction of all of the following conditions:
(i)such Request for Swing Line Advance shall set forth the
informationrequiredontheRequestforSwingLineAdvance,including(A)theproposed
date of such Swing Line Advance, which must be a Business Day and (B) any other
information required on the Request for Swing Line Advance;
(ii)on the proposed date of such Swing Line Advance, after giving
effect to alloutstandingrequestsforSwingLineAdvancesmadebyBorrowerasofsuch
date, the aggregate principal amount of all outstanding Swing Line Advances shall not
exceed the Swing Line Maximum Amount;
(iii)on the proposed date of such Swing Line Advance, after giving
effect to all outstanding requests for Revolving Credit Advances and Swing Line
Advances made by Borrower as of such date, the aggregate principal amount of all
outstanding Revolving Credit Advances and Swing Line Advances shall not exceed the
Revolving Credit Aggregate Commitment;
(iv)theprincipalamountoftherequestedSwingLineAdvanceshallbe
at least Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00), or such lesser
amount to which the Swing Line Lender may agree;
(v)each such Request for Swing Line Advance shall be delivered to
theSwingLineLendernotlaterthan10:00a.m.(LosAngelestime)ontheproposeddate
of such Swing Line Advance; and
(vi)each Request for Swing Line Advance, once delivered to the
Swing Line Lender, shall be irrevocable.
Unless sooner paid pursuant to the provisions hereof, the principal amount of the Swing Line
Advancesshallbepaidinfull,togetherwithaccruedinterestthereon,ontheMaturityDate.The
Agent may, at its option, also elect to make Swing Line Advances upon Borrower’s telephone
requests on the basis set forth in the last paragraph of Section2.3, provided that Borrower
complies with the provisions of this Section 2.5.
(d)Disbursements of Swing Line Advances.Upon receiving any executed
Request for Swing Line Advance from Borrower and the satisfaction of the conditions set forth
in Section2.5(c), the Swing Line Lender shall, at its option, make the requested amount
available to Borrower in Dollars not later than 2:00 p.m. (Los Angeles time)on thedateofsuch
Swing Line Advance, bycredit to an account of Borrower maintained with the Agent or to such
other account or third party as Borrower mayreasonablydirect in writing, subject to applicable
law, provided such direction is timely given.The Swing Line Lender shall promptlynotifythe
Agent of any Swing Line Advance by telephone, telex or telecopier.
(e)RefundingoforParticipationInterestinSwingLineAdvances.
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(i)The Agent, at any time in its sole and absolute discretion, may, in
eachcaseonbehalfofBorrower(whichherebyirrevocablydirectstheAgenttoactonits
behalf), request each of the Revolving Credit Lenders (including the Swing Line Lender
initscapacityasaRevolvingCreditLender)tomakeanAdvanceoftheRevolving
Credit to Borrower, in an amount equal to such Revolving Credit Lender’s Revolving
CreditPercentageoftheaggregateprincipalamountoftheSwingLineAdvances
outstanding on the date such notice is given (the “Refunded Swing Line Advances”).
TheapplicableRevolvingCreditAdvancesusedtorefundany SwingLineAdvances
shallbeBaseRateAdvances.InconnectionwiththemakingofanysuchRefunded
SwingLine Advances or the purchaseofaparticipationinterest inSwingLineAdvances
underSection2.5(e)(ii),theSwingLineLendershallretainitsclaimagainstBorrowerfor
anyunpaidinterestorfeesinrespectthereofaccruedtothedateofsuchrefunding.
UnlessanyoftheeventsdescribedinSection8.1(g)orSection8.1(h)shallhaveoccurred
(inwhicheventtheproceduresofSection2.5(e)(ii)shallapply)andregardlessofwhether
the conditions precedent set forth in this Agreement to the making of a Revolving Credit
Advancearethensatisfied(butsubjecttoSection2.5(e)(iii)),eachRevolvingCredit
Lender shall make the proceeds of its Revolving Credit Advance available to the Agent
forthebenefitoftheSwingLineLenderattheofficeoftheAgentspecifiedin
Section2.4(a)priorto8:00a.m.(LosAngelestime)ontheBusinessDaynextsucceeding
thedatesuchnoticeisgiven,inimmediatelyavailablefunds.Theproceedsofsuch
Revolving Credit Advances shall be immediately applied to repay the Refunded Swing
Line Advances, subject to the provisions of Section 3.1.
(ii)If, prior to the making of an Advance of the Revolving Credit
pursuanttoSection2.5(e)(i),oneoftheeventsdescribedinSection8.1(g)or
Section8.1(h)shall have occurred, each Revolving Credit Lender will, on the date such
Advance of the RevolvingCredit was tohavebeenmade,purchasefromtheSwingLine
Lender an undivided participating interest in each SwingLine Advance that was to have
beenrefundedinanamountequaltoitsRevolvingCreditPercentageofsuchSwingLine
Advance. EachRevolvingCreditLenderwithinthetimeperiodsspecifiedin
Section2.5(e)(i),asapplicable,shallimmediatelytransfertotheAgent,forthebenefitof
theSwingLineLender,inimmediatelyavailablefunds,anamountequaltoitsRevolving
Credit Percentage of the aggregate principal amount of all Swing Line Advances
outstanding as of such date.Upon receipt thereof, the Agent will deliver to such
Revolving Credit Lender a Swing Line Participation Certificate evidencing such
participation.
(iii)Each Revolving Credit Lender’s obligation to make Revolving
CreditAdvancestorefundSwingLineAdvances,andtopurchaseparticipationinterests,
in accordance with Sections2.5(e)(i)and 2.5(e)(ii), respectively, shall be absolute and
unconditional and shall not be affected by any circumstance, including (A) any set-off,
counterclaim,recoupment, defense or other right which such Revolving Credit Lender
may have against Swing Line Lender, Borrower or any other Person for any reason
whatsoever; (B) the occurrence or continuance of any Default or Event of Default; (C)
any adverse change in the condition (financial or otherwise) of Borrower or any other
Person; (D) any breach of this Agreement or any other Loan Document by Borrower or
| US-DOCS\138548577.7 |
any other Person; (E) any inability of Borrower to satisfy the conditions precedent to
borrowing set forth in this Agreement on the date upon which such Revolving Credit
Advance is to be made or such participating interest is to be purchased; (F) the
termination of the RevolvingCredit Aggregate Commitment hereunder; or (G) anyother
circumstance, happening or event whatsoever, whether or not similar to any of the
foregoing.If any Revolving Credit Lender does not make available to the Agent the
amountrequiredpursuanttoSections2.5(e)(i)or2.5(e)(ii),asthecasemaybe,theAgent
on behalf of the Swing Line Lender, shall be entitled to recover such amount on demand
from such Revolving Credit Lender, together with interest thereon for each dayfrom the
date of non-payment until such amount is paid in full (x) for the first two (2) Business
Dayssuchamountremainsunpaid,attheFederalFundsEffectiveRateand(y)thereafter,
at the rate of interest then applicable to such Swing Line Advances.The obligation of
any Revolving Credit Lender to make available its pro rata portion of the amounts
required pursuant to Sections2.5(e)(i)or 2.5(e)(ii)shall not be affected bythe failure of
any other Revolving Credit Lender to make such amounts available, and no Revolving
Credit Lender shall have any liability to any Loan Party, the Agent, the Swing Line
Lender, or any other Revolving Credit Lender or any other party for another Revolving
CreditLender’sfailuretomakeavailabletheamountsrequiredunderSections2.5(e)(i)or
2.5(e)(ii).
(iv)Notwithstanding the foregoing, no Revolving Credit Lender shall
berequiredtomakeanyRevolvingCreditAdvancetorefundaSwingLineAdvanceorto
purchase a participation in a Swing Line Advance if at least two (2) Business Days prior
to the makingofsuchSwingLineAdvancebytheSwingLineLender, theofficers ofthe
SwingLine Lender immediatelyresponsible for matters concerningthis Agreement shall
have received written notice from the Agent or any Lender that Swing Line Advances
should be suspended based on the occurrence and continuance of a Default or Event of
Default and stating that such notice is a “notice of default”; provided, however that the
obligation of the Revolving Credit Lenders to make or refund such SwingLine Advance
orpurchaseaparticipationinsuchSwingLineAdvance)shallbereinstateduponthedate
on which such Default or Event of Default has been waived bythe requisite Lenders.
2.6InterestPayments;DefaultInterest.
(a)Subjecttoclause(e)ofthisSection2.6,allAdvanceshereundershallbear
interest at a per annum interest rate equal to the Applicable Interest Rate for such Advances.
(b)Accrued interest on (x) each Base Rate Advance of the Revolving Credit
andSwingLineAdvanceshallbepayableinimmediatelyavailablefundsquarterlyinarrearson
the first Business Day of each calendar quarter (in respect of the prior calendar quarter or any
portion thereof), and (y) each Term SOFR Advance of the Revolving Credit shall be payable in
immediatelyavailable funds on the last dayof the Interest Period applicable thereto (and, if any
InterestPeriodshallexceedthreemonths,thenonthelastBusinessDay ofthethirdmonthof
suchInterestPeriod,andatthreemonthintervalsthereafter),andineachcaseatsuchothertimes
as may be specified herein; providedthat (i) interest accrued pursuant to clause (e) of this
Section2.6shallbepayableondemand,(ii)intheeventofanyrepaymentorprepaymentofany
| US-DOCS\138548577.7 |
Revolving Credit Advance or Swing Line Advance (other than a prepayment of a Base Rate
Advance prior to the Maturity Date), accrued interest on the principal amount repaid or prepaid
shall be payable on the date of such repayment or prepayment, and (iii) in the event of any
conversion of anyTerm SOFR Advance prior to the end of the Interest Period therefor, accrued
interest on such Advance shall be payable on the effective date of such conversion.
(c)InterestaccruinginrespectofanyAdvanceshallbecomputedonthebasis
ofa360-dayyear(otherthantotheextentbearinginterestbasedonclause(a)ofthedefinitionof
Base Rate, which shall be based on the basis of a 365-day year) and assessed for the actual
number of days elapsed.
(d)Notwithstanding anything to the contrary in the preceding sections, all
accruedandunpaidinterestonanyRevolvingCreditAdvancerefundedorconvertedpursuantto
Section2.3and any Swing Line Advance refunded pursuant to Section2.5(e), shall be due and
payable in full on the date such Advance is refunded or converted.
(e)Upon the occurrence and during the continuance of any Default or Event
of Default, all Obligations shall bear interest, after as well as before judgment, at the Default
Rate, and all accrued and unpaid interest all Revolving Credit Advances and Swing Line
Advances shall be payable on demand.
2.7OptionalPrepayments.
(a)(i) Borrower may prepay all or part of the outstanding principal of any
Base Rate Advance of the Revolving Credit at any time (subject to delivery of written notice
thereoftotheAgentbynolaterthan11:00a.m.(LosAngelestime)one(1)BusinessDaypriorto
thedateofsuchprepayment),and(ii)subjecttoSection2.10(d),Borrowermayprepayallorpart
of the outstanding principal of any Term SOFR Advance of the Revolving Credit at any time
(subject to delivery of written notice thereof to the Agent by no later than 11:00 a.m. (Los
Angeles time) three (3) Business Days prior to the date of such prepayment ).
(b)BorrowermayprepayallorpartoftheoutstandingprincipalofanySwing
LineAdvancecarriedattheBaseRateatanytime(subjecttodeliveryofwrittennoticethereofto
the Agent byno later than 11:00 a.m. (Los Angeles time) on the date of such prepayment).
(c)Any prepayment of a Base Rate Advance made in accordance with this
Section 2.7shall be without premium or penalty, and any prepayment of any other type of
Advance shall be subject to the provisions of Section3.1, but otherwise without premium or
penalty.
2.8BaseRateAdvanceinAbsenceofElectionorUponDefault.If,ifonthelastday
of the applicable Interest Period a Default or an Event of Default shall have occurred and be
continuing, then, on the last day of the applicable Interest Period the principal amount of any
TermSOFRAdvancewhichhasnotbeenprepaidshall,absentacontraryelectionofthe
Majority Lenders, be converted automatically to a Base Rate Advance and the Agent shall
thereafterpromptlynotifyBorrowerinwritingofsaidaction.Allaccruedandunpaidintereston
| US-DOCS\138548577.7 |
anyAdvance converted to a Base Rate Advance under this Section2.8shall be due and payable
in full on the date such Advance is converted.
2.9RevolvingCreditFacilityFee.BorrowershallpaytotheAgentfordistributionto
the Revolving Credit Lenders pro-rata in accordance with their respective Revolving Credit
Percentages,aRevolvingCreditFacilityFee,whichshallaccruequarterlyfromtheClosingDate
and be payable in arrears on the first Business Day of each calendar quarter (in respect of the
prior calendar quarter or anyportion thereof), commencingJanuary2, 2023 and on the Maturity
Date.The Revolving Credit Facility Fee payable to the Revolving Credit Lenders shall be
determinedbymultiplyingtheApplicableFeePercentagebytheaveragedailyunusedamountof
the Revolving Credit Aggregate Commitment then in effect; provided that the amount of
outstanding Swing Line Advances shall not be considered usage of the Revolving Credit
Aggregate Commitment for the purpose of calculating the Revolving Credit Facility Fee.The
RevolvingCreditFacilityFeeshallbecomputedonthebasisofayearofthreehundredsixty
(360) days and assessed for the actual number of days elapsed.Upon its receipt of each such
payment, theAgent shall makeprompt payment to each RevolvingCredit Lender of its shareof
the Revolving Credit Facility Fee based upon its respective Revolving Credit Percentage.It is
expressly understood that the Revolving Credit Facility Fee payments described in this Section
2.9arenotrefundable.
2.10MandatoryRepayment ofRevolvingCreditAdvances.
(a)If at any time and for any reason that the aggregate outstanding principal
amount of Revolving Credit Advances plus Swing Line Advances exceeds the RevolvingCredit
Aggregate Commitment, Borrower shall immediately repay Revolving Credit Advances and
SwingLineAdvancesinanamountequaltotheamountofsuchexcess.Borroweracknowledges
that, in connection with any repayment required hereunder, it shall also be responsible for the
reimbursement of anyprepayment or other costs required under Section 3.1.
(b)Within ten (10) Business Days following the first date any series of the
Senior Notes or Additional Senior Notes fails to have an Investment Grade Rating (a “Below
Investment Grade Rating Event”), Borrower shall give written notice of such event (a “Below
Investment Grade Rating Notice”) to the Agent, which Below Investment Grade Rating Notice
shalldescribethefactsandcircumstancesofsuchratingsdowngradeinreasonabledetail.OnBy
no later than the date that is ten (10) Business Days prior to (x)any Below Investment Grade
Rating Prepayment Date (as defined in the Senior Notes Purchase Agreement) or (y) such other
date on which Borrower is required to redeem anySeniorNotes orAdditional SeniorNotes as a
result of a Below Investment Grade Rating Event, Borrower shallalso, by written notice to the
Agent for distribution to the Lenders, offer (each such offer, a “Commitment Termination
Offer”)topermanentlyreducetheRevolvingCreditAggregateCommitmentbyanamountequal
to the result of (i) the aggregate principal amount of Senior Notes and Additional Senior Notes
so redeemed byBorrower divided by(ii) the aggregate principal amount of all then outstanding
Senior Notes and Additional Senior Notes at the time of such Commitment Termination Offer
multiplied by (iii) the then-outstanding Revolving Credit Aggregate Commitment at the time of
suchCommitmentTerminationOffer.ToacceptaCommitmentTerminationOffer,aLenderor
| US-DOCS\138548577.7 |
the Swing Line Lender, as the case may be, shall deliver a written notice of such acceptance
(each such acceptance, a “Commitment Termination Acceptance”) to the Agent and Borrower
withinten(10)BusinessDaysofBorrower’sdeliveryofsuchCommitmentTerminationOfferto
Agent. If any Lender or the Swing Line Lender does not deliver a Commitment Termination
Acceptance to the Agent and Borrower within such ten (10) Business Day period, then such
Lender or the Swing Line Lender, as the case may be, shall be deemed to have rejected such
Commitment Termination Offer.If at any time following the receipt of any Commitment
Termination Acceptance the aggregate outstanding principal amount of Revolving Credit
Advances and Swing Line Advances exceeds the Revolving Credit Aggregate Commitment after
givingeffecttosuchCommitmentTerminationAcceptance,Borrowershallimmediately
repayRevolvingCreditAdvancesandSwingLineAdvancesinanamountequaltotheamountof
such excess.If less than all Lenders and the Swing Line Lender, collectively, deliver a
Commitment Termination Acceptance within such ten (10) Business Day period, then the
amount of such commitment reduction shall be applied to the Revolving Credit Commitment
AmountofthePersonsthatdeliveredaCommitmentTerminationAcceptance(totheextentsuch
person had elected) notwithstanding any pro rata sharing provisions otherwise set forth in this
Agreement.Suchcommitmentreductionshallbecomeeffective onthe BelowInvestment
GradeRatingPrepaymentDate(asdefinedintheSeniorNotesPurchaseAgreement)or
suchotherdateonwhichBorrowerisrequiredtoredeem anySeniorNotesorAdditional
Senior Notes as a result of a Below Investment Grade Rating Event; provided, that, if the
aggregateoutstandingprincipalamountofRevolvingCreditAdvancesandSwingLineAdvances
exceeds the Revolving Credit Aggregate Commitment after giving effect to such commitment
reduction, Borrower shall, concurrently with such commitment reduction, repay Revolving
Credit Advances and Swing Line Advances in an amount equal to the amount of such excess.
Nothing in this Section 2.10(b) shall be construed to limit the rights or remedies of the Agent or
the Lenders following a Default or Event of Default.
(c)Subject to the provisions of Section9.2, any payments made pursuant to
this Section 2.10shall be applied first to outstanding Base Rate Advances under the Revolving
Credit, next to Swing Line Advances, and then to Term SOFR Advances under the Revolving
Credit.
(d)To the extent that, on the date anymandatoryrepayment of theRevolving
Credit Advances under this Section2.10or payment pursuant to the terms of any of the Loan
Documents is due, the Obligations under the Revolving Credit or any other Obligations to be
prepaid is being carried, in whole or in part, at Term SOFR and no Default or Event of Default
hasoccurredandiscontinuing,Borrowermaydeposittheamountofsuchmandatoryprepayment
in a cash collateral account to be held by the Agent, for and on behalf of the Revolving Credit
Lenders, on such terms and conditions as are reasonablyacceptable to the Agent and upon such
deposit the obligation of Borrower to make such mandatory prepayment shall be deemed
satisfied.Subject to the terms and conditions of said cash collateral account, sums on deposit in
said cash collateral account shall be applied (until exhausted) to reduce the principal balance of
the Revolving Credit on the last day of each Interest Period attributable to the Term SOFR
Advances of such Revolving Credit, thereby avoiding breakage costs under Section3.1;
provided, however, that if a Default or Event of Default shall have occurred at any time while
| US-DOCS\138548577.7 |
sums are on deposit in the cash collateral account, the Agent may, in its sole discretion, elect to
apply such sums to reduce the principal balance of such Term SOFR Advances prior to the last
dayoftheapplicableInterestPeriod,andBorrowerwillbeobligatedtopayanyresulting
breakage costs under Section 3.1.
2.11[Reserved].
2.12ExtensionofMaturityDate.BorrowershallhaveanoptiontoextendtheMaturity
Date then in effect for up to two (2) additional terms following the Closing Date (each, an
“Extension”), each not longer than twelve (12) months, subject to satisfaction of the following
conditions precedent:
(a)eachoftheextendingLenders(suchLenders,the“ExtendingLenders”),
theSwingLineLenderandtheAgentinitssolediscretionshallhaveconsentedto,andobtained
credit approval for, such Extension;
(b)as of the effective date of such Extension and immediately after giving
effect thereto, the representations and warranties set forth herein and in the other Loan
Documents are true andcorrect inall material respects withthesameforceandeffect as ifmade
on and as of such date (other than any representation or warranty that expressly speaks as of a
different date, in which case such representation and warranty shall be true and correct in all
materialrespectsasofsuchdifferentdate);providedthatanysuchrepresentationsandwarranties
which are qualified bymateriality, Material Adverse Effect or similar language shall be trueand
correct in all respects;
(c)Borrower shall have paid the Extension Fee to the Agent for the ratable
benefit of the Extending Lenders consenting to such Extension;
(d)no Event of Default shall have occurred and be continuing on the date on
whichnoticeisgiveninaccordancewiththefollowingclause(e)orontheeffectivedateofsuch
Extension; and
(e)Borrower shall have delivered, byno later than the date that is thirty(30)
days prior to the Maturity Date subject to Extension, a Request for Extension to the Agent
(which shall be promptly forwarded by the Agent to each Lender).
2.13CommitmentIncrease.
(a)Borrowermay,ononeoccasion,bywrittennoticetotheAgent,requestan
increase to the Revolving Credit Aggregate Commitment (a “CommitmentIncrease”; and the
effectivedateofsuchCommitmentIncrease,the“CommitmentIncreaseEffectiveDate”),inan
aggregate amount not to exceed$125,000,000, from and after the First Amendment Effective
Date, $50,000,000.Such Commitment Increase may only be provided by an Eligible Assignee
(any such Eligible Assignee, an “Additional Lender”); provided, that, in no event shall any
existing Lender be obligated to provide any such Commitment Increase.
| US-DOCS\138548577.7 |
(b)SuchCommitmentIncreaseshallbecomeeffective,asoftheCommitment
Increase Effective Date, so long as:
(i)the conditions set forth in Section 4.2shall have be satisfied as of
the Commitment Increase Effective Date, mutatis mutandis; provided, that,
satisfaction of the conditions set forth in clauses (c), and (d)of such Section 4.2
shall only be required to the extent that any Advances are made on such
Commitment Increase Effective Date;
(ii)such Commitment Increase shall be in an aggregate principal
amount that is not less than $100,000 and increments of $100,000 in excess
thereof;
(iii)the Agent shall have received (A) customary legal opinions
addressed to the LenderLenders, board resolutions and officers’ certificates
consistentwiththosedeliveredontheClosingDateand(B)suchotherdocuments
as may be reasonably requested by the Agent; and
(iv)Borrower shall have paid any fees that are payable to the Agent
and the Additional Lenders as mutually agreed and shall have reimbursed the
Agent for all costs and expenses of the Lender in connection therewith that are
reimbursable by Borrower pursuant to the terms of this Agreement.
(c)Any Commitment Increase shall be deemed for all purposes of this
Agreement and the other Loan Documents as an increase to the Revolving Credit Aggregate
Commitment, having the same terms and conditions applicable thereto as are applicable to the
commitments provided to Borrower on the Closing Date.Such Commitment Increase shall be
effectedbyanamendmenttothisAgreement(a“CommitmentIncreaseAmendment”)executed
by Borrower, the Agent, the Swing Line Lender and the Additional Lenders, in form and
substance reasonably satisfactory to each of them, which shall include an amendment to Annex
III hereto to give effect to such Commitment Increase.The Commitment Increase Amendment
may,withouttheconsentofanyotherPerson,effectsuchamendmentstothisAgreementandthe
other Loan Documents as may be necessary or appropriate (which may be in the form of an
amendment and restatement of this Agreement), in the opinion of the Agent and Borrower, to
effect the provisions of this Section 2.13.
(d)Upon the effectiveness of the Commitment Increase, (i) the Swing Line
MaximumAmountshallalsobeincreasedonaratablebasis(itbeingunderstoodandagreedthat
in no event shall the Swing Line Maximum Amount exceed Seventy-Five Million Dollars
($75,000,000)), (ii) each Lender immediately prior to such Commitment Increase will
automaticallyandwithoutfurtheractbedeemedtohaveassignedtoeachAdditionalLender,and
eachAdditional Lenderwill automaticallyandwithout furtheractbedeemedtohaveassumed,a
portionofsuchLender’sparticipationshereunderinanyoutstandingSwingLineAdvances,such
that, after giving effect to each deemed assignment and assumption of participations, all of the
Lenders’ (including each such Additional Lender’s) participations hereunder in outstanding
SwingLineAdvancesshallbeheldbasedontheirRevolvingCreditPercentage(determinedafter
givingeffect tosuchCommitment Increase)and(iii)theexistingLenders will automaticallyand
| US-DOCS\138548577.7 |
without further act be deemed to have assigned outstanding Revolving Credit Advances to the
other Lenders (including the Additional Lenders), and such other Lenders (including the
AdditionalLenders)willautomaticallyandwithoutfurtheractbedeemedtohavepurchased
such Revolving Credit Advances, in each case, to the extent necessaryso that all oftheLenders
participate in each outstanding borrowing of Revolving Credit Advances based on their
RevolvingCreditPercentage(determinedaftergivingeffecttoanysuchCommitmentIncrease);
it being understood and agreed that the minimum borrowing, pro rata borrowing and pro rata
payment requirements contained elsewherein this Agreement shall not applyto thetransactions
effected pursuant to this Section 2.13(d).
3.YIELDPROTECTION;INCREASEDCOSTS;MARGINADJUSTMENTS;
TAXES.
3.1Reimbursement of Prepayment Costs.In the event of (a) the payment of any
principal of any Term SOFR Advance other than on the last day of the Interest Period
applicablethereto(includingasaresultofanEventofDefault),(b)theconversionofanyTerm
SOFRAdvanceotherthanonthelastdayoftheInterestPeriodapplicablethereto(includingas
aresultofanEventofDefault),(c)thefailuretoborrow,convert,continueorprepayanyTerm
SOFR Advance on the date specified in any notice delivered pursuant hereto, or (d) the
assignment of any Term SOFR Advance other than on the last day of the Interest Period
applicable thereto as a result of a request by Borrower pursuant to Section 11.12, then, in any
such event, Borrower shall compensate each Lender for any funding or other loss, cost and
expense attributable to such event, including any loss, cost or expense arising from the
liquidation or redeployment of funds. A certificate of any Lender setting forth any amount or
amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to
Borrower and shall be conclusive absent manifest error. Borrower shall pay such Lender the
amount shown as due on anysuch certificate within 10 days after receipt thereof.
3.2SuspensionofTermSOFRAdvances.EachTermSOFRAdvanceshallbe
subject to the following:
(a)if the Agent is unable to determine the Term SOFR Reference Rate
applicable for a new, continued or converted Term SOFR Advance for any reason, or any law,
regulation or governmental order, rule or determination makes it unlawful for anyLender or its
lending office to fund or maintain such Term SOFR Advance or to continue such funding or
maintaining, the Agent or such Lender, as applicable, shall give notice of such changed
circumstances to Borrower and, in the case of a notice delivered by a Lender, the Agent and (i)
all applicable Term SOFR Advances shall be converted to Base Rate Advances on the date
specified in the Agent’s or such Lender’s notice, as applicable, and (ii) Borrower shall not be
entitled to elect Term SOFR (whether at the time when the applicable Advance was made or
upon conversion from a Base Rate Advance to such Advance or continuation of such Advance)
until the Agent determines that it would no longer be unable, or such Lender determines that it
would no longer be unlawful, to do so, as applicable; and
(b)if at any time the Agent shall notifyBorrower that Term SOFR in respect
of a Term SOFR Advance will not adequately reflect the cost to the Agent and the Lenders of
| US-DOCS\138548577.7 |
making, maintaining or continuing such Advance, (i) all applicable Term SOFR Advances shall
beconvertedtoBaseRateAdvancesonthedatespecifiedintheAgent’snoticeand(ii)Borrower
shall not be entitled to elect Term SOFR (whether at the time when the applicable Advance was
madeor upon conversion froma Base Rate Advance to such Advance or continuation of such
Advance) until the Agent determines that the circumstances causing such suspension no longer
exist. Upon any such conversion, Borrower shall also pay any additional amounts required
pursuant to Section 3.1, if applicable.
3.3[Reserved].
3.4[Reserved].
3.5IncreasedCosts.IfanyChangeinLawshall:
(a)subject any of the Lenders to any Taxes (except for (A) Excluded Taxes
and (B) any Indemnified Taxes) on the Advances, loan principal, commitments, or other
obligations, or its deposits, reserves other liabilities or capital attributable thereto; or
(b)impose, modify or deem applicable any reserve (including pursuant to
regulationsissuedfromtimetotimebytheFederalReserveBoardfordeterminingthemaximum
reserve requirements (includinganyemergency, special, supplemental or other marginal reserve
requirement), special deposit, liquidity, compulsory loan, insurance charge or similar
requirement against assets of, deposits with or for the account of, or credit extended by, any of
the Lenders); or;
(c)impose on anyLenderortheforeignexchangeandinterbankmarketsany
other condition, cost or expense (other than Taxes) affecting any Advance;
and the result of any of the foregoing matters is to increase the costs to any of the Lenders of
making,convertingto,continuingormaintaininganyAdvanceorofmaintainingitsobligationto
make any such Advance, or to increase the cost to any Lender, or to reduce the amount of any
sum received or receivable by any Lender (whether of principal, interest or any other amount),
then such Lender shall promptlynotifythe Agent, and theAgentshallpromptlynotifyBorrower
of such fact and demand compensation therefor and, within ten (10) Business Days after such
notice, Borrower agree to pay to such Lender or Lenders such additional amount or amounts as
willcompensatesuchLenderorLendersforsuchincreasedcostorreduction,providedthateach
Lenderagreestotakeanyreasonableaction,totheextentsuchactioncouldbetakenwithoutcost
or unreasonable (as determined solely by such Lender) administrative or other burden or
restriction to such Lender, to mitigate or eliminate such cost or reduction, within a reasonable
timeafterbecomingawareoftheforegoingmatters.TheAgentwillpromptlynotifyBorrowerof
anyevent ofwhichit has knowledgewhichwill entitleLenders tocompensationpursuanttothis
Section, or which will cause Borrower to incur additional liability under Section 3.1, provided
that the Agent shall incur no liabilitywhatsoever to the Lenders or Borrower in the event it fails
to do so. A certificate of the Agent (or such Lender, if applicable) setting forth the basis for
determiningsuchadditionalamountoramountsnecessarytocompensatesuchLenderorLenders
| US-DOCS\138548577.7 |
shall accompanysuch demand and shall be conclusivelypresumed to be correct absent manifest
error.
3.6Capital Adequacy and Other Increased Costs.If any Change in Law affects or
would affect the capital or liquidity requirements of a Lender or the Agent (or any corporation
controllingsuchLenderortheAgent)andsuchLenderortheAgent,asthecasemaybe,
determines that the amount of required capital is increased by, or based upon the existence of
such Lender’s or the Agent’s obligations or Advances hereunder, the effect of such Change in
Lawistoresultinsuchanincrease,andsuchincreasehastheeffectofreducingtherateofreturn
on such Lender’s or the Agent’s (or such controlling corporation’s) capital as a consequence of
suchobligationsorAdvanceshereundertoalevelbelowthatwhichsuchLenderortheAgent(or
such controlling corporation) could have achieved but for such circumstances (taking into
consideration its policies with respect to capital adequacyor liquidity) byan amount deemed by
such Lender or the Agent to be material, then the Agent or such Lender shall notify Borrower,
andthereafterBorrowershallpay tosuchLenderortheAgent,asthecasemay be,withinten
(10) Business Days of written demand therefor from such Lender or the Agent, additional
amounts sufficient to compensate such LenderortheAgent(orsuchcontrollingcorporation)for
anysuchreductionwhichsuchLenderortheAgentdeterminestobeallocabletotheexistenceof
such Lender’s or the Agent’s obligations or Advances hereunder.A statement setting forth the
amount of such compensation, the methodology for the calculation and the calculation thereof
which shall also be prepared in good faith and in reasonable detail bysuch Lender or the Agent,
as the case may be, shall be submitted by such Lender or bythe Agent to Borrower, reasonably
promptly after becoming aware of any event described in this Section3.6and shall be
conclusively presumed to be correct, absent manifest error.
3.7Right of Lenders to Fund through Branches and Affiliates.Each Lender
(includingthe SwingLine Lender) may, if it so elects, fulfill its commitment as toanyAdvance
hereunder bydesignating a branch or Affiliate of such Lender to make such Advance; provided
that (a) such Lender shall remain solely responsible for the performances of its obligations
hereunderand(b)nosuchdesignationshallresultinanymaterialincreasedcoststoBorroweror
the Agent.
3.8Margin Adjustment.Adjustments to the Applicable Margin based on Annex I,
shall be implemented on a quarterly basis as follows:
(a)Such adjustments shall begivenprospectiveeffectonly,effectiveastoall
Advancesoutstandinghereunder,onthefirstdayofthemonthimmediatelyfollowingthedateof
delivery (or required delivery) of the financial statements under Sections6.1(a)and 6.1(d)
hereunder and the Compliance Certificate under Section6.2hereof (any such day, a “Pricing
AdjustmentDate”), in each case establishing applicabilityoftheappropriateadjustment and in
each case with no retroactivity or claw-back.In the event Borrower shall fail timely to deliver
such financial statements or the related Compliance Certificate and such failure continues for
three(3)days,then(butwithoutaffectingtheEventofDefaultresultingtherefrom)fromthedate
deliveryof such financial statements and report was required until such financial statements and
report are delivered, the Applicable Margins shall be at the highest level on the pricing matrix
attached to this Agreement as Annex I.
| US-DOCS\138548577.7 |
(b)From the Closing Date until the first Pricing Adjustment Date occurring
thereafter, the Applicable Margins shall be those set forth under the Level I column of the
pricing matrix attached to this Agreement as Annex I.Thereafter, Applicable Margins shall be
determinedbaseduponthecertifiedcalculationoftheConsolidatedNetLeverageRatiosetforth
inthequarterly orannualfinancialstatementsandrelatedComplianceCertificate,subjectto
recalculation as provided in clauses (a)above and (c)below.
(c)Notwithstanding the foregoing, if, prior to the payment and discharge in
full (in cash) of all Obligations and the termination of anyand all commitments hereunder, as a
result of anyrestatement of or adjustment to the financial statements of Borrower and anyof its
Subsidiaries (relating to the current or anyprior fiscal period)orforanyotherreason, theAgent
determines that the Applicable Margin as calculated by Borrower as of any applicable date of
determination were inaccurate in any respect and a proper calculation thereof would have
resultedindifferentpricingforanyfiscalperiod,then(x)ifthepropercalculationthereofwould
have resulted in higher pricing for any such period, Borrower shall automatically and
retroactively be obligated to pay to the Agent, promptly upon demand by the Agent or the
Majority Lenders, an amount equal to the excess of the amount of interest and fees that should
havebeen paidforsuchperiodovertheamountofinterestandfeesactuallypaidforsuchperiod
and, if the current fiscal period is affected thereby, the Applicable Margin for the current period
shall be adjusted based on such recalculation; and (y) if the proper calculation thereof would
haveresultedinlowerpricingforsuchperiod,theAgentandLendersshallhavenoobligationto
recalculate such interest or fees or to repayanyinterest or fees to Borrower.
3.9Delay in Requests.Failure or delay on the part of any Lender to demand
compensationpursuanttotheforegoingprovisionsofthisArticleIIIshallnotconstituteawaiver
of such Lender’s right to demand such compensation, providedthat Borrower shall not be
required to compensate a Lender pursuant to Sections3.4, 3.5or 3.6for any increased costs
incurred or reductions suffered more than 180 days prior to the date that such Lender notifies
Borrower of the Change in Law (provided that this provision will not apply to any Change in
Law of the type referred to in clauses (x), (y) or (z) of the definition thereof) giving rise to such
increased costs or reductions and of such Lender’s intention to claim compensation therefor
(exceptthat,iftheChangeinLawgivingrisetosuchincreasedcostsorreductionsisretroactive,
then the 180 day period referred to above shall be extended to include the period of retroactive
effect thereof).
3.10Taxes.
(a)Any and all payments by or on account of any obligation of any Loan
Partyunder anyLoan Document shall be madewithoutdeductionorwithholdingforanyTaxes,
except as required by applicable law.If any applicable law (as determined in the good faith
discretionofanapplicableWithholdingAgent)requiresthedeductionorwithholdingofanyTax
fromanysuchpaymentbyaWithholdingAgent,thentheapplicableWithholdingAgentshallbe
entitled to makesuch deduction orwithholdingand shall timelypaythefullamountdeductedor
withheld to the relevant Governmental Authorityin accordance with applicable law and, if such
TaxisanIndemnifiedTax,thenthesumpayablebytheapplicableLoanPartyshallbeincreased
as necessary so that after such deduction or withholding has been made (including such
| US-DOCS\138548577.7 |
deductions and withholdings applicable to additional sums payable under this Section) the
applicable Recipient receives an amount equal to the sum it would have received had no such
deduction or withholding been made.
(b)TheLoanPartiesshall timelypaytotherelevantGovernmentalAuthority
in accordance with applicable law, or at the option of the Agent, timely reimburse it for the
payment of, any Other Taxes.
(c)AssoonaspracticableafteranypaymentofTaxesbyanyLoanPartytoa
Governmental Authority pursuant to this Section3.10, such Loan Party shall deliver to the
Agent the original or a certified copy of a receipt issued by such Governmental Authority
evidencingsuchpayment,acopyofthereturnreportingsuchpaymentorotherevidenceofsuch
payment reasonably satisfactory to the Agent.
(d)Ifanypartydetermines,initssolediscretionexercisedingoodfaith,thatit
hasreceivedarefundofanyTaxesastowhichithasbeenindemnifiedpursuanttothis
Section3.10, (includingbypaymentofadditionalamountspursuanttothisSection3.10),itshall
payto the indemnifyingpartyan amount equaltosuchrefundorindemnification(butonlytothe
extent of additional amounts or indemnification paid under this Section3.10with respect to the
Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such
indemnifiedpartyandwithoutinterest(otherthananyinterestpaidbytherelevantGovernmental
Authoritywithrespecttosuchrefund).Suchindemnifyingparty,upontherequestofsuch
indemnified party, shall repay to such indemnified party the amount paid over pursuant to this
paragraph(d)(plusanypenalties,interestorotherchargesimposedbytherelevant
GovernmentalAuthority)intheeventthatsuchindemnifiedpartyisrequiredtorepaysuch
refundtosuchGovernmentalAuthority.Notwithstandinganythingtothecontraryinthis
paragraph(d),innoeventwilltheindemnifiedpartyberequiredtopayanyamounttoan
indemnifyingpartypursuanttothisparagraph(d)thepaymentofwhichwouldplacethe
indemnified party in a less favorable net after-Tax position than the indemnified party would
have been in if the Tax subject to indemnification and giving rise to such refund had not been
deducted or withheld and the additional amounts with respect to such Tax had never been paid.
This paragraph shall not be construed to require anyindemnified partyto make available its Tax
returns(oranyotherinformationrelatingtoitsTaxesthatitdeemsconfidential)tothe
indemnifying party or any other Person.
(e)Borrower shall indemnifyeach Lender, within ten (10) days after demand
therefor,forthefullamountofanyIndemnifiedTaxes(includingIndemnifiedTaxesimposedor
assertedonorattributabletoamountspayableunderthisSection)payableorpaidbysuchPerson
or required to be withheld or deducted from a payment to such Person and any reasonable
expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were
correctlyorlegallyimposedorassertedbytherelevantGovernmentalAuthority.Acertificateas
to the amount ofsuchpaymentorliabilitydeliveredtoBorrowerbyaLender(withacopytothe
Agent) or by the Agent on its own behalf or on behalf of a Lender, shall be conclusive absent
manifest error.
(f)Each Lender shall severally indemnify and hold the Agent harmless
against (i) anyIndemnified Taxes attributable to such Lender (but onlyto the extent Borrower
| US-DOCS\138548577.7 |
has not already indemnified the Agent for such Indemnified Taxes and without limiting the
obligationofBorrowertodoso),(ii)anyTaxesattributabletosuchLender’sfailuretocomply
withtheprovisionsofSection11.8relatingtothemaintenanceofaParticipantRegisterand
(iii)anyExcludedTaxesattributabletosuchLender,ineachcase,thatarepayableor paidby
the Agent in connection with any Loan Document, and any reasonable expenses arising
therefromorwithrespectthereto,whetherornotsuchTaxeswerecorrectlyorlegallyimposed
or asserted by the relevant Governmental Authority.A certificate as to the amount of such
payment or liability delivered to anyLender bythe Agent shall be conclusive absent manifest
error.EachLenderherebyauthorizestheAgenttosetoffandapplyanyandallamountsatany
timeowingtosuchLenderunderanyLoanDocumentorotherwisepayablebytheAgenttothe
Lender from any other source against any amount due to the Agent under this paragraph (f).
EachLenderagreestomakeallsuchpaymentstotheAgentrequiredhereunderwithinten(10)
days after demand therefor.
(g)ForpurposesofthisSection3.10,theterm“applicablelaw”includes
FATCA.
(h)Eachparty’sobligationsunderthisSection3.10shallsurvivethe
resignation or replacement of the Agent or anyassignment of rights by, or the replacement of a
Lender, the termination of the Revolving Credit Aggregate Commitment and the repayment,
satisfaction or discharge of all obligations under any Loan Document.
3.11BenchmarkReplacementSetting.
(a)Notwithstanding anything to the contrary herein or in any other Loan
Document (including Section 3.2), upon the occurrence of a Benchmark Transition Event, the
Agent may at any time thereafter amend this Agreement to replace the then current Benchmark
with an alternate benchmark rate selected bythe Agent and Borrower, together with anyspread
or other adjustment to be applied to such alternate benchmark rate (including anymathematical
or other adjustments to the benchmark), giving due consideration to any evolving or then
existing convention for determining a rate of interest as a replacement to such current
Benchmark for Dollar denominated bank-originated or syndicated loans in the U.S. market (the
“Benchmark Replacement”). If the Benchmark Replacement as so determined would be less
than the Applicable Floor, the Benchmark Replacement will be deemed to be the Applicable
Floor for the purposes of this Agreement.Any such amendment will become effective at 5:00
p.m. on the effective date specified in such amendment (such date, the “Benchmark
ReplacementDate”)withoutanyfurtheractionorconsentofBorrowerortheLenders,solong
as the Agent has not received, by the fifteenth (15th) calendar day after the Agent has provided
such proposed amendment to Borrower and the Lenders, written notice of objection to such
amendment from Borrower or from the Lenders comprising the MajorityLenders.If Borrower
or the Majority Lenders object to such amendment to implement the Benchmark Replacement,
then the Benchmark Replacement will not be effective hereunder, but from and after the
occurrence of the Benchmark Replacement Date, Borrower shall not beentitled to elect that the
interest rate on Advances be based upon the then current Benchmark (whether at the time when
made, upon conversion from aBaseRateAdvance,oruponcontinuationofanAdvancebearing
interestbaseduponsuchBenchmark)andatsuchtimeastheAgentelects,allAdvancesbearing
| US-DOCS\138548577.7 |
interest based upon the then current Benchmark shall be converted into Base Rate Advances at
the end of the applicable Interest Period therefor or sooner if the Lenders cannot continue to
maintainsuchAdvanceatthecurrentBenchmark(subjecttoBorrower’srighttohaveAdvances
bear interest based upon the Benchmark Replacement once such rate is implemented hereunder
in accordance with the terms of this Section 3.11).
(b)As used in this Section 3.11: (i) “Benchmark” means, initially, the Term
SOFR Reference Rate; providedthat if a Benchmark Replacement Date has occurred with
respect to the Term SOFR Reference Rate or any then current Benchmark, then “Benchmark”
means the applicable Benchmark Replacement to the extent that such Benchmark Replacement
has become effective pursuant to this Section 3.11; and (ii)“Benchmark Transition Event”
means the occurrence of one or more of the following events with respect to a then current
Benchmark: (A) a public statement or publication of information by or on behalf of the
administrator of the Benchmark (or the published component used in the calculation thereof)
announcingthat suchadministratorhas ceasedorwillceasetoprovidesuchBenchmark(orsuch
component thereof), permanently or indefinitely; providedthat, at the time of such statement or
publication,thereisnosuccessoradministratorthatwillcontinuetoprovidesuchBenchmark(or
suchcomponentthereof);(B)apublicstatementorpublicationofinformationbyagovernmental
authority having jurisdiction over the Agent or the Lenders, 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 insolvencyofficial 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 entitywith similar insolvencyor resolution authorityover the administrator for such
Benchmark(orsuchcomponent),whichstatesthattheadministratorofsuchBenchmark(orsuch
component) has ceased or will cease to provide such Benchmark (or such component thereof)
permanently or indefinitely; providedthat, at the time of such statement or publication, there is
no successor administrator that will continue to provide such Benchmark (or such component
thereof);(C)apublicstatementorpublicationofinformationbyagovernmentalauthorityhaving
jurisdiction over the Agent or the Lenders or the regulatory supervisor for the administrator of
such Benchmark (or the published component used in the calculation thereof) announcing that
such Benchmark is no longer, or as ofaspecifiedfuturedatewill nolongerbe, representativeor
is not in compliance or aligned, or as a specified future date will be in compliance or aligned,
with theInternational OrganizationofSecuritiesCommissions(IOSCO)PrinciplesforFinancial
Benchmarks; or (D) the circumstances set forth in Section 3.2have arisen and such
circumstances are unlikely to be temporary.
(c)In connection with the implementation of a Benchmark Replacement, the
Agent will have the right from time to time to make Conforming Changes.The Agent will
promptlynotifyBorrower and the Lenders of the implementation of anyConforming Changes.
(d)Anydetermination,decisionorelectionthatmaybemadebytheAgentor
anyLenderpursuanttothisSection3.11includinganydeterminationwithrespecttoatenor,rate
or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any
decisiontotakeorrefrainfromtakinganyaction,willbeconclusiveandbindingabsentmanifest
| US-DOCS\138548577.7 |
errorandmaybemadeintheAgent’sorsuchLender’ssolediscretionandwithoutconsentfrom
Borrower, except, in each case, as expresslyrequired pursuant to this Section 3.11.
(e)Notwithstanding anything to the contrary herein or in any other Loan
Document,atanytime(includinginconnectionwiththeimplementationofaBenchmark
Replacement), (i) if the then current Benchmark is a term rate and either (A) the tenor for such
Benchmark is not displayed on a screen or other information service that publishes such rate
from time to time as selected by the Agent in its reasonable discretion or (B) the regulatory
supervisor for the administrator of such Benchmark has provided a public statement or
publication of information announcingthat thetenorforsuch Benchmark isorwill beno longer
representative, or is not or will no longer be in compliance or aligned with the International
OrganizationofSecuritiesCommissions(IOSCO)PrinciplesforFinancialBenchmarks,thenthe
Agent may modify the definition of “Interest Period” (or any similar or analogous definition, if
any)foranyBenchmarksettingsatoraftersuchtimetoremovesuchunavailableor
non-representativetenorand(ii)ifthetenorthatwasremovedpursuanttoclause(i)aboveeither
(A)is subsequently displayed on a screen or information service for a Benchmark (including a
Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or
will no longer be representative for a Benchmark (including a Benchmark Replacement), then
theAgentmaymodifythedefinitionof“InterestPeriod”(oranysimilaroranalogousdefinition,
if any) for all Benchmark settings at or after such time to reinstate such previously removed
tenor.
4.CONDITIONS.
TheobligationsoftheLenderstomakeAdvancespursuanttothisAgreementaresubject
to the following conditions:
4.1Conditions of Initial Advances.Theobligation of each Lender tomakeitsinitial
Advance on the Closing Date is subject to the satisfaction of all of the following conditions:
(a)Notes, this Agreement and the other Loan Documents.(i)Borrowershall
have executed and delivered to the Agent (x) this Agreement, (y) for the benefit of each Lender
requesting a Revolving Credit Note or the Swing Line Note, as applicable, and (z) each other
LoanDocumenttowhichitisrequiredtobeaparty,ineachcasetogetherwithallschedulesand
other documents to be delivered in connection therewith; (ii) each other Loan Party shall have
executed and delivered to the Agent (x) the SubsidiaryGuarantyand (y) each of the other Loan
Documents to which it is required to be a party, in each case, together with all schedules and
otherdocumentstobedeliveredinconnectiontherewith;and(iii)allsuchLoanDocumentsshall
be in full force and effect.
(b)Authority Documents.The Agent shall have received a certificate of the
SecretaryorAssistantSecretaryofBorrower,informandsubstancesatisfactorytotheAgentand
dated as of the Closing Date, attaching for each Loan Party:
| US-DOCS\138548577.7 |
(i)copies of such Loan Party’s articles or certificate of incorporation
and bylaws, articles or certificate of formation and operating agreement, or other
constitutional documents, in each case as in effect on the Closing Date;
(ii)a certificate of good standing or continued existence (or the
equivalent thereof) from the state of its incorporation or formation, which jurisdictions
are listed on Schedule 4.1(b)attached hereto;
(iii)resolutions of such Loan Party’s directors, managers, general
partners or their equivalent authorizing the transactions contemplated bythis Agreement
and the other Loan Documents, approving this Agreement and the other Loan
Documents, and authorizing such Loan Party to execute, deliver and perform its
obligations under each of the Loan Documents to which it is a party, and in the case of
BorrowerauthorizingtheexecutionanddeliveryofRequestsforAdvancehereunder;and
(iv)evidence of the incumbency and signature of the Responsible
Officers of such Loan Party or other persons authorized to execute and deliver on its
behalf the Loan Documents to which it is a party, and in the case of Borrower the
Responsible Officers authorized to execute any Requests for Advance.
(c)Opinions of Counsel.Borrower shall have delivered to the Agent
opinionsofcounseltotheLoanParties,includingopinionsoflocalcounseltotheextentdeemed
necessarybytheAgent, in each casein form and substancereasonablysatisfactorytotheAgent,
dated the Closing Date and coveringsuch matters as the Agent and the Lenders mayreasonably
require.
(d)No Material Adverse Change.Since September30, 2022, nothing has
occurred which has had, or could reasonablybe expected to have, a Material Adverse Effect.
(e)Insurance.TheAgentshallhavereceivedreasonablysatisfactoryevidence
that the Loan Parties have obtained the insurance policies required by Section6.5and that such
insurance policies are in full force and effect.
(f)Payment of Fees.Borrower shall have paid to the Agent (for itself or on
behalf of the Lenders) anyfees due on the Closing Date under the Fee Letter, together with any
otherfees,costsorexpensesdueandpayabletotheAgent(foritselforonbehalfoftheLenders)
as of the Closing Date to the extent such other fees, costs or expenses are documented and
invoiced two (2) Business Days prior to the Closing Date (or such later date as Borrower may
agreetoinitsdiscretion)(includingreasonablefees,disbursementsandotherchargesofcounsel
to the Agent).
(g)FinancialStatements.BorrowershallhavedeliveredtotheAgentandthe
Lenders, in form and substance satisfactory to the Agent, the unaudited consolidated quarterly
balancesheetandconsolidatedincomestatementforBorroweranditsSubsidiariesforthefiscal
quarter ended September 30, 2022.
| US-DOCS\138548577.7 |
(h)Due Diligence.The Agent and the Lenders shall have received, in each
case in form and substance satisfactory to the Agent, such due diligence materials as the Agent
and the Majority Lenders have reasonably requested.
(i)Solvency Certificate.The Agent shall have received a certificate of a
Responsible Officer of Borrower certifying that on the Closing Date, after effect to the
transactions contemplated by this Agreement and the other Loan Documents, Borrower and its
Subsidiaries (on a Consolidated basis) will be Solvent.
(j)LienSearches.TheAgentshallhavereceivedresultsofsearchesorother
evidence reasonablysatisfactoryto the Agent (in each case dated as of a recent date) indicating
the absence of Liens on the assets of Borrower and its Subsidiaries, except for Liens permitted
hereunder.
(k)Closing Certificate.The Agent shall have received a certificate of a
Responsible Officer of Borrower dated as of the Closing Date and certifying that (i) the
conditions set forth in clauses (d), (l)and (m)of this Section 4.1have been satisfied as of the
ClosingDateand(ii)BorrowerisinproformacompliancewiththeFinancialCovenantsetforth
inSection7.8(a)forthefourconsecutivefiscalquarterperiodmostrecentlyended,calculatedon
a pro forma basis after giving effect to such Advance and the use of proceeds thereof, but
without netting the proceeds thereof.
(l)No Default.No Default or Event of Default shall exist as of the Closing
Date immediately before and immediately after giving effect to this Agreement and the
transactions contemplated hereby.
(m)Accuracy of Reps and Warranties.Each of the representations and
warrantiesmadebytheLoanPartiesinthisAgreementandineachoftheotherLoanDocuments
shall be true and correct in all material respects as of the Closing Date (other than any
representation or warranty that expressly speaks as of a different date, in which case such
representation and warrantyshall be true and correct in all material respects as of such different
date); provided that any such representations and warranties which are qualified by materiality,
Material Adverse Effect or similar language shall be true and correct in all respects.
(n)Refinancing.The Refinancing shall have been, or substantially
concurrentlywith the fundingof the initial RevolvingCredit Advance hereunder on the Closing
Date, shall be consummated.
(o)KYC.BorrowershallhaveprovidedtotheAgentandtheLendersatleast
three (3) Business Days prior to the Closing Date, (i) an executed Certificate of Beneficial
Ownership (to the extent required under the Beneficial Ownership Regulation) and (ii) such
otherdocumentationandotherinformationreasonablyrequestedbytheAgentandanyLenderin
ordertocomplywiththerequirementsoftheUSAPATRIOTActandall“knowyourcustomer”
requirements.
(p)FundingNotice.TheAgentshallhavereceivedadulyexecutedRequest
forAdvance.
| US-DOCS\138548577.7 |
Except as set forth in anyclosingcondition letter between Borrower and the Agent, byreleasing
its signature page to this Agreement the Agent and each Lender shall be deemed to have
consentedto,approvedoracceptedassatisfactoryeachdocumentorothermatterrequiredbythis
Section4.1tobeconsentedto,approvedoracceptedassatisfactorybytheAgentorsuchLender,
as the case may be.
4.2Continuing Conditions.The obligation of each Lender to make any Advance
(other than any continuation, conversion or refunding) after the Closing Date, is subject to the
satisfaction of all of the following conditions:
(a)NoDefaultorEventofDefaultshallexistasofthedateoftheAdvance.
(b)Each of the representations and warranties made by the Loan Parties in
thisAgreementandineachoftheotherLoanDocumentsshallbetrueandcorrectinallmaterial
respects as of the date of the Advance as if made on and as of such date (other than any
representation or warranty that expressly speaks as of a different date, in which case such
representation and warrantyshall be true and correct in all material respects as of such different
date); provided that any such representations and warranties which are qualified by materiality,
Material Adverse Effect or similar language shall be true and correct in all respects.
(c)The Agent shall have received a duly executed Request for Advance,
which shall includeacertificationbyaResponsibleOfficerthat,asofthedateofsuchAdvance,
Borrower shall be in pro forma compliance with the Financial Covenant set forth in Section
7.8(a)for the four consecutive fiscal quarter period most recently ended for which financial
statements have been (or were required to have been) delivered, calculated on a pro forma basis
after giving effect to such Advance and the use of proceeds thereof, but without netting the
proceeds thereof.
(d)The proceedsofsuchAdvance shallbeusedinaccordancewith Sections
5.14and6.15hereof.
(e)Since the Closing Date, nothing has occurred which has had, or could
reasonably be expected to have, a Material Adverse Effect..
5.REPRESENTATIONSANDWARRANTIES.
Borrower represents and warrants to the Agent, the Lenders and the Swing Line
Lender, on the Closing Date and on each other date on which such representations and
warranties are required to be made, as follows:
5.1Organization; Power and Authority.Each Loan Party is a limited liability
company, corporation, limited partnership or other legal entity duly organized, validly existing
and in good standing under the laws of its jurisdiction of organization and is dulyqualified as a
foreignlimitedliabilitycompanyorotherlegalentityandisingoodstandingineachjurisdiction
in which such qualification is required by law, other than those jurisdictions as to which the
failure to be so qualified or in good standing would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. Each Loan Party has the limited
liabilitycompany,corporate,limitedpartnershiporotherlegalentitypowerandauthoritytoown
| US-DOCS\138548577.7 |
or hold under lease the properties it purports to own or hold under lease, to transactthebusiness
it transacts and proposes to transact, to execute and deliver the Loan Documents to which it is a
party and to perform the provisions hereof and thereof.
5.2Authorization, Etc..Each of the Loan Documents to which each Loan Partyis a
partyhasbeendulyauthorizedbyallnecessarylimitedliabilitycompany,corporate,limited
partnership or equivalent action on the part of such Loan Party, and each such Loan Document
constitutes a legal, valid and binding obligation of each Loan Party, as the case may be,
enforceable against such Loan Party in accordance with its terms, except as such enforceability
may be limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium or other
similarlawsaffectingtheenforcementofcreditors’rightsgenerallyand(b)generalprinciplesof
equity (regardless of whether such enforceability is considered in a proceeding in equity or at
law).
5.3Disclosure.As of the Closing Date, this Agreement, the other Loan Documents,
the financial statements listed in Schedule5.5and the documents, certificates or other writings
delivered to the Lenders by or on behalf of Borrower in connection with the transactions
contemplatedherebyandidentifiedinSchedule5.3(thisAgreement,theotherLoanDocuments
and such documents, certificates or other writings and such financial statements delivered to
each Purchaser being referred to, collectively, as the “Disclosure Documents”), taken as a
whole, do not contain any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading in light of the circumstances under
which they were made. Except as disclosed in the Disclosure Documents, since December 31,
2021, there has been no change in the financial condition, operations, business or properties of
Borrower or any Subsidiary except changes that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
5.4OrganizationandOwnershipofSharesofSubsidiaries;Affiliates.
(a)Schedule5.4contains (except as noted therein) complete and correct lists
of Borrower’s Material Subsidiaries as of the Closing Date, showing, as to each such Material
Subsidiary,thenamethereof,thejurisdictionofitsorganization,thepercentageofsharesofeach
class of its capital stock or similar equity interests outstanding owned by Borrower and each
other Subsidiary and whether such Material Subsidiary is a Subsidiary Guarantor.
(b)As of the Closing Date, all of the outstanding shares of capital stock or
similar equity interests of each Material Subsidiary shown in Schedule5.4as being owned by
Borrower and its Subsidiaries have been validly issued, are fully paid and non-assessable (in
each case, to the extent applicable) and are owned by Borrower or another Subsidiary free and
clear of any Lien that is prohibited by this Agreement.
(c)Each Material Subsidiary is a limited liability company, corporation,
limitedpartnershiporotherlegalentitydulyorganized,validlyexistingand,whereapplicable,in
goodstandingunderthelawsofitsjurisdictionoforganization,andisdulyqualifiedasaforeign
limited liability company, corporation, limited partnership or other legal entity and, where
applicable,isingoodstandingineachjurisdictioninwhichsuchqualificationisrequiredbylaw,
| US-DOCS\138548577.7 |
except for any failures to be so qualified or in good standing that would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect. Each such Material
Subsidiary has the limited liability company, corporate, limited partnership or other power and
authorityto own or hold under lease the properties it purports to own or hold under lease and to
transactthebusinessittransactsandproposestotransact,exceptforanyfailurestobeso
qualifiedoringoodstandingthatwouldnot,individuallyorintheaggregate,reasonablybe
expected to have a Material Adverse Effect.
5.5FinancialStatements;MaterialLiabilities.BorrowerhasdeliveredtoeachLender
copies of the financial statements of BorrowerCIM Group, LLCand its Subsidiaries or CIM
GroupManagement,LLCanditsSubsidiaries,asapplicable, listedonSchedule 5.5.Allof
such financial statements (including in each case the related schedules and notes) fairly present
inallmaterialrespectstheconsolidatedfinancialpositionofBorrowerCIMGroup,LLCand
its Subsidiaries as of the respective dates specified in such Schedule 5.5and the consolidated
results of their operations and cash flows for the respective periods so specified and have been
prepared in accordance with GAAP consistentlyapplied throughout the periods involved except
assetforthinthenotesthereto(subject,inthecaseofanyinterimfinancialstatements,tonormal
year-endadjustments).BorroweranditsSubsidiariesdonothaveanyMaterialliabilitiesthatare
not disclosed in the Disclosure Documents.
5.6Compliance with Laws, Other Instruments, Etc..The execution, delivery and
performancebyeachLoanPartyoftheLoanDocumentstowhichsuchLoanPartyisapartywill
not (a) contravene, result in anybreach of, or constitute a default under, or result in the creation
of any Lien in respect of any property of Borrower or any Subsidiary under, any indenture,
mortgage, deed of trust, loan, purchase or credit agreement, lease, operating agreement,
corporate charter, regulations or by-laws, shareholders agreement or any other agreement or
instrument to which Borrower or any Subsidiary is bound or by which Borrower or any
Subsidiary or any of their respective properties may be bound or affected, (b) conflict with or
result in abreach ofanyoftheterms, conditions orprovisions ofanyorder, judgment, decreeor
ruling of any court, arbitrator or Governmental Authority applicable to Borrower or any
Subsidiary or (c) violate any provision of any statute or other rule or regulation of any
Governmental Authority applicable to Borrower or any Subsidiary.
5.7Governmental Authorizations, Etc..No consent, approval or authorization of, or
registration, filing or declaration with, any Governmental Authority is required in connection
with the execution, deliveryorperformancebyanyLoanPartyoftheLoanDocumentstowhich
such Loan Party is a party.
5.8Litigation;ObservationofStatuesandOrders.
(a)There are no actions, suits, investigations or proceedings pending or, to
the best knowledge of Borrower, threatened against or affecting Borrower or any Subsidiary or
any property of Borrower or any Subsidiary in any court or before any arbitrator of any kind or
beforeorbyanyGovernmentalAuthoritythatwould,individuallyorintheaggregate,reasonably
be expected to have a Material Adverse Effect.
| US-DOCS\138548577.7 |
(b)Neither Borrower nor any Subsidiary is (i) in violation of any order,
judgment, decree or ruling of any court, any arbitrator of any kind or any Governmental
Authority or (ii) in violation of any applicable law, ordinance, rule or regulation of any
Governmental Authority(including Environmental Laws, the USA PATRIOT Act or anyof the
otherlawsandregulationsthatarereferredtoinSection5.16),whichviolationwould,
individuallyor in the aggregate, reasonablybe expected to have a Material Adverse Effect.
5.9Taxes.Borrower and its Subsidiaries have filed all Tax returns that are required
to have been filed in any jurisdiction, and have paid all Taxes shown to be due and payable on
such returns and all other Taxes and assessments payable bythem, to the extent such Taxes and
assessments have become due and payable and before they have become delinquent, except
where failure to file such Tax returns or pay any such Tax or assessment would not have a
Material Adverse Effect, and except for any Taxes and assessments (a) the amount of which,
individually or in the aggregate, is not Material or (b) the amount, applicability or validity of
which is currently being contested in good faith by appropriate proceedings and with respect to
which Borrower or a Subsidiary, as the case may be, has established adequate reserves in
accordance with GAAP. The charges, accruals and reserves on the books of Borrower and its
Subsidiaries in respect of U.S. federal, state or other Taxes for all fiscal periods are adequate,
except for defects therein that would not have a Material Adverse Effect. The U.S. federal
incomeTaxliabilitiesofBorroweranditsSubsidiarieshavebeenfinallydetermined(whetherby
reason of completed audits or the statute of limitations having run) for all fiscal years up to and
including the fiscal year ended December 31, 2020, except where any defects in such
determination that, individuallyor in the aggregate, would not have a Material Adverse Effect.
5.10TitletoProperty;Leases.BorroweranditsSubsidiarieshavegoodandsufficient
titletotheirrespectiveMaterialproperties,ineachcasefreeandclearofLiensprohibitedbythis
Agreement, except for those defects in title and Liens that, individually or in the aggregate,
wouldnothaveaMaterialAdverseEffect.AllMaterialleasesarevalidandsubsistingandarein
full force and effect except for defects in Material leases that, individually or in the aggregate,
would not have a Material Adverse Effect.
5.11Licenses, Permits, Etc..Borrower and its Subsidiaries own or possess all
licenses, permits, franchises, authorizations, patents, copyrights, proprietary software, service
marks, trademarks and trade names, or rights thereto, that individually or in the aggregate are
Material,withoutknownconflictwiththerightsofothers,exceptforfailurestoownorconflicts
that, individuallyor in the aggregate, would not have a Material Adverse Effect.
5.12Compliancewith EmployeeBenefitPlans.
(a)Each Loan Party and each ERISA Affiliate have operated and
administered each Plan in compliance with all applicable laws except for such instances of
noncomplianceashavenotresultedinandcouldnot,individuallyorintheaggregate,reasonably
be expected to result in a Material Adverse Effect. No Loan Party nor any ERISA Affiliate has
incurredanyliabilitypursuanttoTitleIorIVofERISAorthepenaltyorexcisetaxprovisionsof
the Code relating to employee benefit plans (as defined in section 3 of ERISA), and no event,
transaction or condition has occurred or exists that would, individually or in the aggregate,
| US-DOCS\138548577.7 |
reasonablybe expected to result in the incurrence of anysuch liabilitybyanyLoan Partyor any
ERISAAffiliate, orintheimpositionofanyLienonanyoftherights,propertiesorassetsofany
LoanPartyoranyERISAAffiliate,ineithercasepursuanttoTitleIorIVofERISAortosection
430(k) of the Codeortoanysuchpenaltyorexcisetax provisions undertheCodeorfederal law
orsection4068ofERISAorbythegrantingofasecurityinterestinconnectionwiththe
amendment of a Plan, other than such liabilities or Liens as would not be individually or in the
aggregate Material.
(b)The present value of the aggregate benefit liabilities under each of the
Plans (other than Multiemployer Plans), determined as of the end of such Plan’s most recently
ended plan year on the basis of the actuarial assumptions s The present value of the aggregate
benefitliabilitiesundereachofthePlans(otherthanMultiemployerPlans),determinedasofthe
end of such Plan’s most recently ended plan year on the basis of the actuarial assumptions
specified for funding purposes in such Plan’s most recent actuarial valuation report, did not
exceed theaggregatecurrent valueoftheassets ofsuch Plan allocabletosuchbenefitliabilities.
The term “benefitliabilities” has themeaningspecified in section 4001 ofERISAand theterms
“current value” and “present value” have the meaning specified in section 3 of ERISA.
(c)No Loan Party nor any of its ERISA Affiliates has incurred withdrawal
liabilities(andarenotsubjecttocontingentwithdrawalliabilities)undersection4201or4204of
ERISA in respect of Multiemployer Plans that individuallyor in the aggregate are Material.
(d)The expected postretirement benefit obligation (determined as of the last
day of Borrower’s most recently ended fiscal year in accordance with Financial Accounting
Standards Board Accounting Standards Codification Topic 715-60, without regard to liabilities
attributable to continuation coverage mandated bysection 4980B of the Code) of Borrower and
its Subsidiaries is not Material.
(e)The execution and delivery of this Agreement and transactions
contemplated hereunder will not involve any transaction that is subject to the prohibitions of
section 406 of ERISA or in connection with which a tax could be imposed pursuant to section
4975(c)(1)(A)-(D) of the Code.
(a)NeitherBorrowernoranySubsidiaryofBorrowermaintainsorcontributes
to (or has an obligation to contribute to, or anyliabilityto) anyNon-U.S. Plan.
5.13[Reserved].
5.14Use of Proceeds; Margin Regulations.Borrower will use the proceeds of the
Advances hereunder (x) to consummate the Refinancing and (y) for (a) permitted investments,
(b)the payment of fees and expenses incurred in connection with this Agreement and the
transactions contemplated hereby, (c) the payment of dividends and other distributions, (d)
capital contributions to any CIM Fund or Affiliate, (e) seed capital for new platforms, (f)
financing for new acquisitions and (g) other working capital or general corporate purposes;
provided, that (i) in no event shall the proceeds of anyAdvances hereunder be used to repayall
oranyportionofprincipalinrespectoftheSeniorNotesoranyAdditionalSeniorIndebtedness,
| US-DOCS\138548577.7 |
and (ii) in no event shall the proceeds of any Advances hereunder be used to repay all or any
portion of principal in respect of the Specified Note to the extent that at the time of such
repaymentanEventofDefaultunderSection8.1(a),(b),(c)(solelytotheextentresultingfroma
breach of a Financial Covenant or any Additional Provision), (g)or (h)has occurred and is
continuing or would result therefrom.Borrower is not engaged principally, or as one of its
importantactivities,inthebusinessofextendingcreditforthepurpose,whetherimmediate,
incidental or ultimate, of buying or carrying margin stock, and no part of the proceeds of the
Advanceshereunderwillbeused,directlyorindirectly,forthepurposeofbuyingorcarryingany
marginstockinviolationofRegulationUoftheFederalReserveBoard(12CFR221),orforthe
purposeofbuyingorcarryingortradinginanysecuritiesundersuchcircumstancesastoinvolve
Borrower in a violation of Regulation X of said Board (12 CFR 224)ortoinvolveanybrokeror
dealer in a violation of Regulation T of said Board (12 CFR 220). Margin stock does not
constitutemorethan25%ofthevalueoftheconsolidatedassetsofBorroweranditsSubsidiaries
and Borrower does not have any present intention that margin stock will constitute more than
25% of the value of such assets. As used in this Section 5.14, the terms “margin stock” and
“purpose of buying or carrying” shall have the meanings assigned to them in said Regulation U.
5.15Existing Indebtedness. Except as described therein, Schedule5.15sets forth a
complete and correct list of all outstanding Indebtedness of Borrower and its Subsidiaries, the
outstanding principal amount of which individuallyexceeds $2,500,000, as of the Closing Date
(including descriptions of the obligors and obligees, principal amounts outstanding, any
collateralthereforandanyGuarantythereof);providedthattheaggregateprincipalamountofall
outstanding Indebtedness of Borrower and its Subsidiaries as of such date that is not listed on
such Schedule5.15does not exceed $10,000,000. As of the ClosingDate, neither Borrower nor
anySubsidiaryisindefaultandnowaiverofdefaultiscurrentlyineffect,inthepaymentofany
principal or interest on any Indebtedness of Borrower or such Subsidiary and no event or
condition exists with respect to anyIndebtedness of BorroweroranySubsidiarytheoutstanding
principal amount of which exceeds $10,000,000 that would permit (or that with notice or the
lapseoftime,orboth,wouldpermit)oneormorePersonstocausesuchIndebtednesstobecome
due and payable before its stated maturityor before its regularlyscheduled dates of payment.
5.16ForeignAssetsControlRegulations,Etc..
(a)No Loan Party nor any Controlled Entity (i) is a Blocked Person, (ii) has
beennotifiedthatitsnameappearsormayinthefutureappearonaStateSanctionsListor(iii)is
a target of Sanctions.
(b)No Loan Party nor any Controlled Entity (i) has violated, been found in
violation of, or been charged or convicted under, any applicableSanctions, Anti-Money
Laundering Laws or Anti-Corruption Laws or (ii) to Borrower’s knowledge, is under
investigationbyanyGovernmentalAuthorityforpossibleviolationofanySanctions,
Anti-Money Laundering Laws or Anti-Corruption Laws.
(c)NopartoftheproceedsoftheAdvanceshereunder:
| US-DOCS\138548577.7 |
(i)constitutes or will constitute funds obtained on behalf of any
Blocked Person or will otherwise be used any Loan Party or any Controlled Entity,
directly or indirectly, (A) in connection with any investment in, or any transactions or
dealings with, any Blocked Person, (B) for any purpose that would cause any Lender to
be in violation of anySanctions or (C) otherwise in violation of anySanctions;
(ii)will be used, directly or indirectly, in violation of, or cause any
Lender to be in violation of, anyapplicable Anti-MoneyLaundering Laws; or
(iii)will be used, directly or indirectly, for the purpose of making any
improper payments, including bribes, to any Governmental Official or commercial
counterparty in order to obtain, retain or direct business or obtain any improper
advantage, in each case which would be in violation of, or cause any Lender to be in
violation of, any applicable Anti-Corruption Laws.
(d)Each Loan Party has established procedures and controls which it
reasonably believes are adequate (and otherwise comply with applicable law) to ensure that
BorrowerandeachControlledEntityisandwillcontinuetobeincompliancewithallapplicable
Sanctions, Anti-Money Laundering Laws and Anti-Corruption Laws.
5.17Status under Certain Statutes.Neither Borrower nor anySubsidiaryis subject to
regulation under the Public Utility Holding Company Act of 2005, the ICC Termination Act of
1995,ortheFederalPowerAct.NeitherBorrowernoranySubsidiaryisorisrequiredtoregister
as an “investment company” under the Investment CompanyAct of 1940, as amended.
5.18Solvency.On the Closing Date, and after giving effect to the consummation of
the transactions contemplated by this Agreement and other Loan Documents, Borrower and its
Subsidiaries (on a Consolidated basis) will be Solvent.This Agreement is being executed and
delivered by Borrower to the Agent and the Lenders in good faith and in exchange for fair,
equivalent consideration.The Loan Parties do not intend to nor does management of the Loan
Parties believe the Loan Parties will incur debts beyond their abilityto payas theymature.The
Loan Parties do not contemplate filing a petition in bankruptcy or for an arrangement or
reorganizationundertheBankruptcyCodeoranysimilarlawofanyjurisdictionnoworhereafter
in effect relating to any Loan Party, nor does any Loan Party have any knowledge of any
threatened bankruptcy or insolvency proceedings against a Loan Party.
5.19EEA Financial Institution.Neither Borrower nor anySubsidiaryGuarantor is an
EEA Financial Institution.
5.20Beneficial Ownership Certification.The information included in the Beneficial
OwnershipCertificationdeliveredbyBorrowertotheAgentistrueandcorrectinallrespectsas
of the Closing Date or as of the date of delivery of the most recent Beneficial Ownership
Certification delivered by Borrower to the Agent, as the case may be.
6.AFFIRMATIVECOVENANTS.
| US-DOCS\138548577.7 |
Borrower covenants and agrees that so long as any Lender has any commitment to
extend credit hereunder or anyObligations remain outstandingand unpaid (otherthanamounts
in respect of indemnification, expense reimbursement, yield protection or tax gross-up, and
other contingent obligations with respect to which no claim has been made) that:
6.1Financial and Business Information.Borrower will, and will cause each of its
Subsidiaries to, deliver to the Agent for distribution to each Lender the following:
(a)Quarterly Statements — within 75 days (or such shorter period as is the
date bywhich such financial statements are requiredtobedeliveredunderanyMaterialCredit
Facility or the date on which such corresponding financial statements are delivered under any
Material Credit Facility if such delivery occurs earlier than such required delivery date) after
the end of each quarterly fiscal period in each fiscal year of Borrower (other than the last
quarterlyfiscal period of each such fiscal year), duplicate copies of:
(i)aconsolidatedbalancesheetofBorroweranditsSubsidiariesasat
the end of such quarter, and
(ii)consolidatedstatementsofincome,changesinshareholders’equity
and cash flows of Borrower and its Subsidiaries, for such quarter and (in the case of the
second and third quarters) for the portion of the fiscal year ending with such quarter,
setting forth in each case in comparative form the figures for the corresponding periods in the
previous fiscal year, all in reasonable detail, prepared in accordance with GAAP applicable to
quarterly financial statements generally, and certified by a Senior Financial Officer as fairly
presenting,inallmaterialrespects,thefinancialpositionofthecompaniesbeingreportedonand
their results of operations and cash flows, subject to changes resulting from year-end
adjustments;
(b)Annual Statements — within 120 days (or such shorter period as is the
date bywhich such financial statements are required to bedelivered underanyMaterial Credit
Facility or the date on which such corresponding financial statements are delivered under any
Material Credit Facility if such delivery occurs earlier than such required delivery date) after
the end of each fiscal year of Borrower, duplicate copies of:
(i)aconsolidatedbalancesheetofBorroweranditsSubsidiariesasat
the end of such year, and
(ii)consolidatedstatementsofincome,changesinshareholders’equity
and cash flows of Borrower and its Subsidiaries for such year,
setting forth in each case in comparative form the figures for the previous fiscal year, all in
reasonable detail, prepared in accordance with GAAP, and accompanied by an opinion thereon
(withouta“goingconcern”orsimilarqualificationorexceptionandwithoutanyqualificationor
exception as to the scope of the audit on which such opinion is based, in each case, other than
any such qualification or exception arising from or relating to (1) an anticipated breach of a
Financial Covenant under this Agreement, or (2) an upcoming maturity date under any
| US-DOCS\138548577.7 |
Indebtedness)ofindependentpublicaccountantsofrecognizednationalstanding,whichopinion
shall state that such financial statements present fairly, in all material respects, the financial
positionofthecompaniesbeingreporteduponandtheirresultsofoperationsandcashflowsand
have been prepared in conformity with GAAP, and that the examination of such accountants in
connection with such financial statements has been made in accordance with generallyaccepted
auditing standards, and that such audit provides a reasonable basis for such opinion in the
circumstances;providedthat,ifsuchfinancialstatementsaredeliveredwiththequalificationset
forthinclause(1)above,upontherequestofanyLender,Borrowerwillpromptlyarrangea
telephoneconferencecallforallLendersforconsultationbysuchLendersregardingsuch
anticipated breach and qualification;
(c)SECandOtherReports—promptlyupontheirbecomingavailable,one
copy of (i) each financial statement, report, notices of default, or similar document sent by
Borrower or any Subsidiary to its creditors under any Material Credit Facility (excluding
information sent to such creditors in the ordinary course of administration of a credit facility,
such as information relating to pricing and borrowing availability) and (ii) each regular or
periodic report, each registration statement (without exhibits except as expresslyrequested by
such holder), and each prospectus and all amendments thereto filed by Borrower or any
Subsidiary with the SEC;
(d)NoticeofDefaultorEventofDefault—promptly,andinanyeventwithin
five (5) Business Days after a Responsible Officer becoming aware of the existence of any
DefaultorEventofDefault,awrittennoticespecifyingthenatureandperiodofexistencethereof
and what action Borrower is taking or proposes to take with respect thereto;
(e)Employee Benefits Matters — promptly, and in any event within five (5)
daysafteraResponsibleOfficerbecomingawareofanyofthefollowing,awrittennoticesetting
forth the nature thereof and the action, if any, that Borrower or an ERISA Affiliate proposes to
take with respect thereto:
(i)withrespecttoanyPlan,anyreportableevent,asdefinedinsection
4043(c) of ERISA and the regulations thereunder, for which notice thereof has not been
waived pursuant to such regulations as in effect on the date hereof;
(ii)the taking by the PBGC of steps to institute, or the threatening by
the PBGC of the institution of, proceedings under section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Plan, or the receipt by
BorroweroranyERISAAffiliateofanoticefromaMultiemployerPlanthatsuchaction
has been taken by the PBGC with respect to such Multiemployer Plan;
(iii)any event, transaction or condition that could result in the
incurrenceofanyliabilitybyBorroweroranyERISAAffiliatepursuanttoTitleIorIVof
ERISA or the penalty or excise tax provisions of the Code relating to employee benefit
plans, or in the imposition of any Lien on any of the rights, properties or assets of
Borrower or any ERISA Affiliate pursuant to Title I or IV of ERISA or such penalty or
excise tax provisions, if such liability or Lien, taken together with any other such
| US-DOCS\138548577.7 |
liabilities or Liens then existing, would reasonably be expected to have a Material
Adverse Effect; or
(iv)receipt of notice of the imposition of a Material financial penalty
(which for this purpose shall mean any tax, penaltyor other liability, whether bywayof
indemnity or otherwise) with respect to one or more Non-U.S. Plans;
(f)ResignationorReplacementofAuditors—withinten(10)daysfollowing
the date on which Borrower’s auditors resign or Borrower elects to change auditors, as the case
maybe,notificationthereof,togetherwithsuchfurtherinformationastheMajorityLendersmay
request;
(g)Financial Projections — within 120 days (orsuchshorterperiodasisthe
date by which such financial statements are required to be delivered under any Material Credit
Facility or the date on which such corresponding financial statements are delivered under any
MaterialCreditFacilityifsuchdeliveryoccursearlierthansuchrequireddeliverydate)afterthe
endofeachfiscalyearofBorrower,financialprojectionsforBorroweranditsSubsidiaries(ona
consolidated basis) for thethen-current fiscal yearsubstantiallyintheformpreviouslydelivered
to the Agent;
(h)Debt Rating — promptly following the occurrence thereof, notice of any
change in the Debt Rating for any series of Senior Notes or Additional Senior Notes (to the
extent such Debt Rating is not a public rating);
(i)NoticeofCertainChangestoBeneficialOwnershipCertification—With
respect to any Loan Party that is a “legal entity customer” under the Beneficial Ownership
Regulation, if there has been any change in the information provided in any Beneficial
Ownership Certification that would result in a change to the list of beneficial owners identified
therein since the delivery of the last Compliance Certificate pursuant to Section 6.2, then
simultaneously with the delivery of the next Compliance Certificate, deliver an updated
Beneficial Ownership Certifications to the Lenders; and
(j)Requested Information — with reasonable promptness, such other data
and information relating to the business, operations, affairs, financial condition, assets or
properties of Borrower or any of its Subsidiaries (including actual copies of Borrower’s Form
10-Q and Form 10-K) or relating to the abilityof Borrower to perform its obligations hereunder
and under the other Loan Documents as from time to time may be reasonably requested by any
such Lender, to the extent such other data and information can be reasonably provided.
Notwithstanding anything to the contrary contained herein, Borrower shall not be required to
discloseanydocument,informationorothermatter(i)thatconstitutestradesecretsorproprietary
information,(ii)inrespectofwhichdisclosuretoanyLenderisprohibitedbyanyapplicableLaw
or any binding agreement with a third party (so long as such agreement is not entered into in
contemplation of this Agreement) or (iii) that is subject to attorney-client privilege or similar
privilege which could reasonablybe expected to be lost or forfeited if disclosed to the Lenders.
| US-DOCS\138548577.7 |
6.2Officer’s Certificate.Concurrentlywith the deliveryof, and accompanying each
set of financial statements delivered pursuant to Section6.1(a)or Section6.1(b), deliver a
certificate of a Senior Financial Officer:
(a)Covenant Compliance — setting forth (i) the information from such
financial statements that is required in order to establish whether Borrower was in compliance
with the requirements of Section7and the Additional Provisions, if any, during the quarterlyor
annual period covered by the financial statements then being furnished, (including with respect
to each such provision that involves mathematical calculations, the information from such
financial statements that is required to perform such calculations) and reasonably detailed
calculationsofthemaximumorminimumamount,ratioorpercentage,asthecasemaybe,
permissible under the terms of such Section, and the calculation of the amount, ratio or
percentage then in existence and (ii) a reconciliation of the treatment of leases which would be
deemed by GAAP as in effect prior to December 31, 2018 to be treated as operating leases, in
form reasonably satisfactory to the Agent;
(b)Defaults and Events of Default — certifying that such Senior Financial
Officerhas reviewed therelevant termshereofandhasmade,orcausedtobemade,underhisor
her supervision, a review of the transactions and conditions of Borrower and its Subsidiaries
from the beginning of the quarterly or annual period covered by the statements then being
furnishedtothedateofthecertificateandthatsuchreviewshallnothavedisclosedtheexistence
duringsuch period ofanyconditionoreventthatconstitutesaDefaultoranEventofDefaultor,
if any such condition or event existed or exists, specifying the nature and period of existence
thereof and what action Borrower shall have taken or proposes to take with respect thereto; and
(c)Subsidiary Guarantors - setting forth a list of all Subsidiaries that are
Subsidiary Guarantors and certifying that each Subsidiary that is required to be a Subsidiary
GuarantorpursuanttoSection6.10isaSubsidiaryGuarantor,ineachcase,asofthedateofsuch
certificate of Senior Financial Officer.
6.3InspectionofProperty;BooksandRecords,Discussions.Borrowerwill,andwill
cause each of its Subsidiaries to, permit theAgent (onits owninitiativeorat thedirectionofthe
Majority Lenders), directly or through its authorized attorneys, accountants or other
representatives (which can include one or more of the Lenders), at all reasonable times during
normal business hours, upon the Agent’s reasonable advance request, to (a) visit the offices of
anyoftheLoan Parties, discuss anyLoan Party’s respectivefinancial matters with its respective
officers, and examine each Loan Party’s books, accounts, records, ledgers and assets and
properties; and (b) after the occurrence and during the continuance of an Event of Default,
discuss any Loan Party’s respective financial matters with its independent certified or chartered
public accountants, examine any of such Loan Party’s books, reports or records held by such
accountants (and Borrower hereby authorizes, and will cause each of its respective Subsidiaries
toauthorize,itsindependentcertifiedorcharteredpublicaccountantstodiscussthefinancesand
affairs of any Loan Party with the Agent’s representatives), and at Borrower’s expense conduct
fullorpartialauditsoftheLoanPartiesfromtimetotime;providedthatsolongasnoDefaultor
Event of Default exists and is continuing, (i) the Agent and its auditors or consultants shall not
bepermittedtomakemorethanone(1)suchexaminationunderclause(a)duringanyfiscalyear
| US-DOCS\138548577.7 |
ofBorrower,and(ii)BorrowershallnotberequiredtoreimbursetheAgentforotherthanactual,
reasonable and documented out-of-pocket costs of more than one (1) such examination under
clause (a) during any fiscal year of Borrower.
6.4Compliance with Laws.Without limiting Section7.4, Borrower will, and will
cause each of its Subsidiaries to, comply with all laws, ordinances or governmental rules or
regulations to which each of them is subject (including ERISA, Environmental Laws, the USA
PATRIOT Act and the other laws and regulations that are referred to in Section5.16) and will
obtainandmaintainineffectalllicenses,certificates,permits,franchisesandothergovernmental
authorizationsnecessarytotheownershipoftheirrespectivepropertiesortotheconductoftheir
respective businesses, in each case to the extent necessary to ensure that non-compliance with
suchlaws,ordinancesor governmentalrulesor regulationsor failures to obtain or maintain in
effect such licenses, certificates, permits, franchises and other governmental authorizations
would not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
6.5Insurance.Borrower will, and will cause each of its Subsidiaries to, maintain,
with financially sound and reputable insurers, insurance with respect to their respective
propertiesandbusinessesagainstsuchcasualtiesandcontingencies,ofsuchtypes,onsuchterms
andinsuchamounts(includingdeductibles,co-insuranceandself-insurance,ifadequatereserves
are maintained with respect thereto) as is customary in the case of entities of established
reputationsengagedinthesameorasimilarbusinessandsimilarly situated,exceptforany
non-maintenancethatwouldnot,individuallyorintheaggregate,reasonablybeexpectedtohave
a Material Adverse Effect.
6.6MaintenanceofProperties.Borrowerwill,andwillcauseeachofitsSubsidiaries
to, maintain and keep, or cause to be maintained and kept, their respective properties in good
repair, working order and condition (other than ordinary wear and tear), so that the business
carried on in connection therewith may be properly conducted at all times, provided that this
Section6.6 shall not prevent Borrower or any Subsidiary from discontinuing the operation and
the maintenance of any of its properties if such discontinuance is desirable in the conduct of its
business and Borrower has concluded that such discontinuance would not,individuallyorinthe
aggregate, reasonably be expected to have a Material Adverse Effect.
6.7Payment of Taxes.Borrower will, and will cause each of its Subsidiaries to, file
all Tax returns required to be filed in anyjurisdiction and to payand discharge all Taxes shown
tobedueandpayableonsuchreturnsandallotherTaxes,assessments,governmentalchargesor
levies payable by any of them, to the extent the same have become due and payable and before
they have become delinquent, provided that neither Borrower nor any Subsidiary need pay any
such Tax, assessment, charge or levy if (i) the amount, applicability or validity thereof is
contested by Borrower or such Subsidiary on a timely basis in good faith and in appropriate
proceedings, and Borrower or a Subsidiary has established adequate reserves therefor in
accordance with GAAP on the books of Borrowerorsuch Subsidiaryor(ii)thefailureto so file
or non-payment of all such Taxes, assessments, charges and levies would not, individuallyor in
the aggregate, reasonablybe expected to have a Material Adverse Effect.
| US-DOCS\138548577.7 |
6.8Existence, Etc..Subject to Section7.2, Borrower will at all times preserve and
keep its limited liability company existence in full force and effect. Subject to Sections 7.2 and
7.10, Borrower will at all times preserve and keep in full force and effect the limited liability
company, corporate, limited partnership or other legal entity, as applicable, existenceof each of
itsSubsidiaries(unlessmergedintoBorroweroraWholly-OwnedSubsidiary)andallrightsand
franchises of Borrower and its Subsidiaries unless, in the good faith judgment of Borrower, the
termination of or failure to preserve and keep in full force and effect such limited liability
company, corporate, limited partnership or other legal entity existence, as applicable, right or
franchise would not, individuallyor in the aggregate, have a Material Adverse Effect.
6.9Books and Records.Borrower will, and will cause each of its Subsidiaries to,
maintain proper books of record and account in conformity with GAAP in all material respects
andallapplicablerequirementsofanyGovernmentalAuthorityhavinglegalorregulatory
jurisdiction over Borrower or such Subsidiary, as the case maybe, in all material respects.
6.10SubsidiaryGuarantors.
(a)Borrower (x) may at any time cause any of its Subsidiaries which is not
already a Subsidiary Guarantor at such time to become a Subsidiary Guarantor by causing such
Subsidiary to, and (y) will cause each of its Subsidiaries that guarantees or otherwise becomes
liable at anytime, whether as a borrower or an additional or co-borrower or otherwise, for or in
respect of any Indebtedness under the Senior Notes, the Additional Senior Indebtedness or any
Material Credit Facilityto concurrentlytherewith, in each case under clauses (x) or (y):
(i)enterintoaGuarantorSupplementsubstantiallyintheformof
ExhibitAattachedtotheformofSubsidiaryGuaranty(a“GuarantorSupplement”);
(ii)deliverthefollowingtotheAgent:
(A)anexecutedGuarantorSupplement;
(B)a certificate signed by an authorized responsible officer of
such Subsidiary containing representations and warranties on behalf of such
Subsidiary to the same effect, mutatis mutandis, as those contained in Sections
5.1, 5.2, 5.6, 5.7, 5.8, 5.9, 5.10, 5.11, 5.12, 5.16, 5.17and 5.19ofthis Agreement
(but with respect to such Subsidiary, such Guarantor Supplement and such
Subsidiary Guaranty rather than Borrower);
(C)alldocumentsasmaybereasonablyrequestedbytheAgent
to evidence the due organization, continuing existence and, where applicable,
good standingof such Subsidiaryandthedueauthorizationbyallrequisiteaction
on the part of such Subsidiary of the execution and delivery of the Guarantor
Supplement to which it is a party and the performance by such Subsidiary of its
obligations thereunder and under the Subsidiary Guaranty; provided that
documents delivered under this Section6.10(a)(ii)(C)reasonably equivalent to
those provided on the Closing Date shall be acceptable to the Agent; and
| US-DOCS\138548577.7 |
(D)an opinion of counsel reasonably satisfactory to the Agent
covering such matters relating to such Subsidiary, such Guarantor Supplement
andsuchSubsidiaryGuarantyastheAgentmayreasonablyrequest;providedthat
an opinion of counsel delivered under this Section6.10(a)(ii)(D)reasonably
equivalent to the opinion of counsel provided on the Closing Date shall be
acceptable to the Agent.
(b)At the election of Borrower and by written notice to the Agent, any
Subsidiary Guarantor that has provided a Subsidiary Guaranty under subparagraph (a) of this
Section6.10may be discharged from all of its obligations and liabilities under its Subsidiary
Guarantyandshallbeautomaticallyreleasedfromitsobligationsthereunderwithouttheneedfor
the execution or delivery of any other document by the Agent, provided that (i) if such
Subsidiary Guarantor is a guarantor or is otherwise liable for or in respect of the Senior Notes,
any Additional Senior Indebtedness or any Material Credit Facility, then such Subsidiary
Guarantor has been released and discharged (or will be released and discharged concurrently
with the release of such SubsidiaryGuarantor under its SubsidiaryGuaranty) under such Senior
Notes, Additional Senior Indebtedness or Material Credit Facility, as applicable, (ii) at the time
of, and aftergivingeffect to, such releaseand discharge, no Default orEvent ofDefaultshallbe
existing, (iii) no amount is then due and payable under such Subsidiary Guaranty, (iv) if in
connection with such Subsidiary Guarantor being released and discharged under the Senior
Notes,anyAdditionalSeniorIndebtednessoranyMaterialCreditFacility,anyfeeorotherform
of consideration is given to any holder of Indebtedness under such Senior Notes, Additional
SeniorIndebtednessorMaterialCreditFacility,asapplicable,forsuchrelease,theLendersshall
receive equivalent consideration substantially concurrently therewith and (v) the Agent shall
have received a certificate of a Responsible Officer certifying as to the matters set forth in
clauses (i) through (iv). In the event of any such release, for purposes of Section7.6, all
Indebtedness of such Subsidiary shall be deemed to have been incurred concurrently with such
release.
6.11EligibleRevenues.BorrowerwillcauseEligibleRevenuesreceiveddirectlyby
Borrower or a SubsidiaryGuarantor to be no less than the Eligible Revenue Percentage at any
time. If an Event of Default shall have occurred and be continuing, the Loan Parties will
enforce their respective rights at law and in equity to receive such Eligible Revenues in
accordance with the terms of the Eligible Revenue agreements and/or other management
agreements to which the Loan Parties are party.
6.12Registered Investment Adviser.Borrower and each of its Subsidiaries that is
required to register as an investment adviser with the SEC under the Investment Advisers Act
willmaintainitsstatusasaregisteredinvestmentadviserundertheInvestmentAdvisersActand
will remain in compliance with all of the requirements of the Investment Advisers Act that are
applicable to it, except to the extent failure to maintain such status would not, individuallyor in
the aggregate, reasonablybe expected to have a Material Adverse Effect.
6.13PrivateDebtRating.
| US-DOCS\138548577.7 |
(a)Borrower will at all times maintain a Debt Rating (at no particular rating
category) with respect to each series of Senior Notes and Additional Senior Notes from an
Acceptable Rating Agency.
(b)At anytime that anyDebt Rating maintained pursuant to clause(a) above
is not a public rating, Borrower will provide to the Agent (for distribution to the Lenders) (i) at
least annually (on or before each anniversary of the Closing Date) and (ii) promptly upon any
change in such Debt Rating, an updated Private RatingLetter evidencingeach such Debt Rating
and an updated Private Rating Rationale Report with respect to each such Debt Rating.
6.14MostFavoredLender.
(a)IfatanytimetheSeniorNotes,anyAdditionalSeniorIndebtednessorany
Material Credit Facility includes any Financial Covenant (whether included as a new
provisioninsuchneworexistingSeniorNotes,AdditionalSeniorIndebtednessor
Material Credit Facility, as applicable, or bywayofamendmentorothermodificationof
anexistingprovisionoranydefinedtermusedtherein)notincludedinthisAgreementor
that would be more beneficial to the Agent or the Lenders than anyanalogous provision
included in this Agreement (any such Financial Covenant, an “Additional Provision”),
then Borrower will, within five (5) Business Days after the inclusion of such Additional
Provision in such Senior Notes, Additional Senior Indebtedness or Material Credit
Facility, as applicable, deliver written notice thereof to the Agent. Such notice shall be
signed byaResponsibleOfficerand shall referto theprovisions ofthis Section6.14and
shall set forth a verbatim statement of such Additional Provision and any defined terms
used therein, and related explanatory calculations, as applicable. Thereupon, unless
waivedinwritingbytheAgentwithinfive(5)BusinessDaysafterreceiptofsuchnotice
by the Agent, such Additional Provision (and any related definitions) will be deemed
automatically incorporated by reference into this Agreement, mutatis mutandis, as if set
forthfullyherein,withoutanyfurtheractionrequiredonthepartofanyPerson,effective
as of the date that such Additional Provision became effective under such Senior Notes,
Additional Senior Indebtedness or Material Credit Facility, as applicable. Thereafter,
upon the request of the Agent, Borrower will, at its expense, enter into any additional
agreement or amendment to this Agreement reasonably requested by the Agent
evidencing any of the foregoing.
(b)SolongasnoDefaultorEventofDefaulthasoccurredandiscontinuing:
(i)if any Additional Provision incorporated into this Agreement
pursuant to this Section6.14is amended or otherwise modified (if relevant) in
each of the Senior Notes, the Additional Senior Indebtedness and each Material
Credit Facility with the effect that such Additional Provision is made less
restrictive or otherwise less onerous on Borrower and its Subsidiaries, then such
Additional Provision will bedeemed so amended in this Agreement, without any
further action required on the part of any Person, effective as of the date of such
amendment or modification (if relevant) in each of the Senior Notes, the
Additional Senior Indebtedness and each Material Credit Facility,
| US-DOCS\138548577.7 |
(ii)if any Additional Provision incorporated into this Agreement
pursuant to this Section6.14is removed (if relevant) from each of the Senior
Notes,theAdditionalSeniorIndebtednessandeachMaterialCreditFacility,then
suchAdditionalProvisionwillbedeemedremovedfromthisAgreement,without
any further action required on the part of any Person, effective as of the date of
such removal (if relevant) from each of the Senior Notes, the Additional Senior
Indebtedness and each Material Credit Facility, and
(iii)ifeachoftheSeniorNotes,theAdditionalSeniorIndebtednessand
each Material Credit Facilityincluding an Additional Provision incorporated into
this Agreement pursuant to this Section6.14(if relevant) is terminated and no
amounts are outstanding thereunder, then such Additional Provision will be
deemedremovedfrom this Agreement, without anyfurtheractionrequiredonthe
part of any Person, effective as of the date of such termination,
provided that (x) except as provided in Section11.10, this Agreement shall not be
amended to remove any covenant, undertaking, event of default, restriction or other
provision included in this Agreement (other than any Additional Provision included in
this Agreement by operation of Section6.14(a)) or to make any such provision less
restrictive on Borrower and its Subsidiaries, and (y) if any creditor or agent under the
Senior Notes, the Additional Senior Indebtedness or any Material Credit Facility is
provided any consideration for the amendment or other modification of such Senior
Notes, Additional Senior Indebtedness or Material Credit Facility, as applicable, thenthe
Lenders and/or the Agent shall (concurrently with the provision of such consideration to
such creditor or agent) be provided with equivalent consideration on a pro rata basis, and
nosuchamendment,modificationorremovalofsuchAdditionalProvisioninorfromthis
Agreementshallbeeffectiveunlessanduntilsuchequivalentconsiderationisprovidedto
the Lenders and/or the Agent.
For the avoidance of doubt, (1) the covenants set forth in Section7.8constitute Financial
Covenantsand(2)eachoftheFinancialCovenantssetforthinSection7.8asoftheClosingDate
(as they may be amended from time to time pursuant to Section11.10) shall remain in this
Agreement regardless of anysuch amendment or modification of anyAdditional Provision in or
any such removal of any Additional Provision from the Senior Notes, any Additional Senior
Indebtedness or any Material Credit Facility, or any such termination of the Senior Notes, any
Additional Senior Indebtedness or any Material Credit Facility.
6.15UseofProceeds.UseallRevolvingCreditAdvancesassetforthinSection5.14.
Borrower shall not use any portion of the proceeds of anysuch Advances (a) for the purpose of
purchasing or carrying any “margin stock” (as defined in Regulation U of the Federal Reserve
Board) in any manner which violates the provisions of Regulations T, U or X of said Federal
Reserve Board) for any other purpose that would violate any applicable statute, rule or
regulation,or(c)tofundanyoperationsin,financeanyinvestmentsoractivitiesin,ormakeany
payments to, a Blocked Person in violation of any Anti-Terrorism LawSanctions.
7.NEGATIVECOVENANTS.
| US-DOCS\138548577.7 |
Borrower covenants and agrees that so long as any Lender has any commitment to
extend credit hereunder or any Obligations remain outstanding and unpaid (other than
amountsinrespectofindemnification,expense reimbursement,yieldprotectionortax
gross-up, and other contingent obligations with respect to which no claim has been made)
that:
7.1Transactions with Affiliates.Borrower will not, and will not permit any
Subsidiary to, enter into any Material transaction or Material group of related transactions
(includingthepurchase, lease, saleorexchangeofpropertiesofanykindortherenderingofany
service) with any Affiliate (other than with any Loan Party or another Subsidiary), except upon
fair and reasonable terms that are not, taken as a whole, less favorable to Borrower or such
Subsidiarythan would beobtainablein acomparablearm’s-length transaction with aPerson not
an Affiliate.
7.2Mergers, Consolidation, Etc..Borrower will not, and will not permit any
SubsidiaryGuarantor to, consolidate with or merge with anyother Person or convey, transfer or
lease all or substantially all of its assets in a single transaction or series of transactions to any
Person unless:
(a)in the case of any such transaction involving Borrower, the successor
formed by such consolidation or the survivor of such merger or the Person that acquires
by conveyance, transfer or lease all or substantially all of the assets of Borrower as an
entirety, as the case may be, shall be a solvent corporation, limited liability company,
limited partnership or other legal entity organized and existing under the laws of the
United States or any state thereof (including the District of Columbia), and, if Borrower
is not such corporation, limited liability company, limited partnership or other legal
entity, (i) such corporation, limited liability company, limited partnership or other legal
entity,asapplicable,shallhaveexecutedanddeliveredtotheAgentitsassumptionofthe
due and punctual performance and observance of each covenant and condition of the
Loan Documents to which Borrower is a partyand (ii) such corporation, limited liability
company, limited partnership or other legal entity, as applicable, shall have caused to be
delivered to the Agent an opinion ofnationallyrecognized independent counsel, orother
independentcounselreasonablysatisfactorytotheAgent,totheeffectthatallagreements
or instruments effecting such assumption are enforceable in accordance with their terms
and comply with the terms hereof; provided that an opinion substantially in the form
delivered pursuant to Section4.1(c)of this Agreement on the Closing Date shall be
deemed satisfactory to the Agent;
(b)in the case of any such transaction involving a Subsidiary Guarantor, the
successorformedbysuchconsolidationorthesurvivorofsuchmergerorthePersonthat
acquires by conveyance, transfer or lease all or substantially all of the assets of such
Subsidiary Guarantor as an entirety, as the case may be, shall be (i) Borrower, such
SubsidiaryGuarantororanotherSubsidiaryGuarantor; (ii)asolventcorporation,limited
liability company, limited partnership or other legal entity, as applicable, (other than
Borrower or another SubsidiaryGuarantor) that is organized and existingunder the laws
of theUnited States oranystatethereof(includingtheDistrict ofColumbia)and, ifsuch
Subsidiary Guarantor is not such corporation, limited liability company or limited
| US-DOCS\138548577.7 |
partnership, as applicable, (1) such corporation, limited liability company, limited
partnership or other legal entity, as applicable, shall have executed and delivered to the
Agent its assumption of the due and punctual performance and observance of each
covenant and condition of theSubsidiaryGuarantyof suchSubsidiaryGuarantorand(2)
Borrower shall have caused to be delivered to the Agent an opinion of nationally
recognized independent counsel, or other independent counsel reasonablysatisfactoryto
the Agent, to the effect that all agreements or instruments effecting such assumption are
enforceable in accordance with their terms and comply with the terms hereof; provided
that an opinion substantially in the form delivered pursuant to Section4.1(c)of this
Agreement on the Closing Date shall be deemed satisfactory to the Agent; or (iii) any
other Person so long as the transaction is treated as a disposition of all of the assets of
such Subsidiary Guarantor for purposes of Section7.10and, based on such
characterization, would be permitted pursuant to Section 7.10;
(c)in thecaseof anysuch merger, consolidation, acquisition, conveyance,or
transfer involving Borrower, each Subsidiary Guarantor under any Subsidiary Guaranty
that is outstanding at the time such transaction or each transaction in such a series of
transactionsoccursreaffirmsitsobligationsundersuchSubsidiaryGuarantyinwritingat
such time pursuant to documentation that is reasonablyacceptable to the Agent;
(d)immediatelybeforeandimmediatelyaftergivingeffecttosuchtransaction
or each transaction in any such series of transactions (i) no Default or Event of Default
shall have occurred and be continuing and (ii) there shall be no breach or default with
respect to any Eligible Revenue agreement or other management agreement that could
result in any party to such agreement being entitled to a right of termination unless such
breach or default would not reasonablybe expected to have a Material Adverse Effect.
No such conveyance, transfer or lease of substantially all of the assets of Borrower or any
Subsidiary Guarantor shall have the effect of releasing Borrower or such SubsidiaryGuarantor,
as the case may be, or anysuccessor corporation, limited liabilitycompany, limited partnership
or other legal entity, as applicable, that shall theretofore have become such in the manner
prescribed in this Section7.2, from its liability under (x) this Agreement or the other Loan
Documents, unless, in the case of the conveyance, transfer or lease of substantially all of the
assets of a Subsidiary Guarantor, such Subsidiary Guarantor is released from its Subsidiary
Guaranty in accordance with Section6.10(b)in connection with or immediatelyfollowing such
conveyance, transfer or lease.
7.3LineofBusiness.BorrowerwillnotandwillnotpermitanySubsidiarytoengage
in any business if, as a result, the general nature of the business in which Borrower and its
Subsidiaries, taken as a whole, would then be engaged would be substantiallychanged from the
general nature of the business in which Borrower and its Subsidiaries, taken as a whole, are
engaged on the Closing Date; provided that engaging in any business that is ancillary,
complimentary,incidentaloranaturalexpansionofthebusinessengagedinontheClosingDate
will be deemed not to substantiallychange the general nature of the business.
7.4EconomicSanctions,Etc..Borrowerwillnot,andwillnotpermitanyControlled
Entity to (a) become (including by virtue of being owned or controlled by a Blocked Person),
| US-DOCS\138548577.7 |
ownorcontrolaBlockedPersonor(b)directlyorindirectlyhaveanyinvestmentinorengagein
any dealing or transaction (including any investment, dealing or transaction involving the
proceeds of the Advances) with any Person if such investment, dealing or transaction (i) would
cause any Lender or any Affiliate of such Lender to be in violation of, or subject to sanctions
under, any law or regulation applicable to such Lender, or (ii) is prohibited byor subject to any
Sanctions.
7.5Liens.Borrower will not and will not permit any of its Subsidiaries to create,
incur, assume or permit to exist any Lien on or with respect to any property or asset (including
anydocumentorinstrumentinrespectofgoodsoraccountsreceivable)ofBorroweroranysuch
Subsidiary, whether now owned or held or hereafter acquired, except:
(a)LiensforTaxes,assessmentsorothergovernmentalchargeswhicharenot
yet due and payable or that are being contested in good faith or that would not reasonably be
expected to have a Material Adverse Effect;
(b)Liens incidental to the normal conduct of business of Borrower or any
such Subsidiary or the ownership of properties and assets (including landlords’, carriers’,
warehousemen’s, mechanics’, materialmen’s and other similar Liens) and Liens to secure the
performance of bids, tenders, leases, or trade contracts, or to secure statutory obligations
(including obligations under workers compensation, unemployment insurance and other social
security legislation), surety or appeal bonds or other Liens incurred in the ordinary course of
business and not in connection with borrowed money;
(c)anyattachmentorjudgmentLien,unlessthejudgmentitsecuresshallnot,
within 60 days after the entry thereof, have been discharged or stayed pending appeal, or shall
not have been discharged within 60 days after the expiration of anysuch stay;
(d)Liens securing Indebtedness of Borrower or any of its Subsidiaries in
existenceon theClosingDateand listedonSchedule5.15andanyLienssecuringtheextension,
renewal, or replacement of such Indebtedness, but only to the extent that the principal amount
thereof outstanding immediatelybefore giving effect to such extension, renewal or replacement
is not increased other than for accrued and unpaid interest, customary fees, expenses and
prepayment premium or similar amounts;
(e)(i) Liens (A) existing on property at the time of its acquisition by such
Loan Party or any such Subsidiary and not created in contemplation thereof; (B) on property
(includinganypledge of the EquityInterests ofthespecialpurposeentityowningsuchproperty)
created contemporaneously with the acquisition of such property or within 365 days of such
acquisition to secure the purchase price thereof; or (C) existing on property of a Person at the
time such Person is consolidated with or merged into such Loan Partyor anySubsidiaryandnot
created in contemplation thereof; provided that such Liens shall attach solely to the property
acquiredorconstructed(includinganypledgeoftheEquityInterestsofthespecialpurposeentity
owning such property), and the principal amount of the Indebtedness secured bysuch Lien shall
not exceed the lesser of the cost of acquisition or the fair market value of such property at the
timeofitsacquisitiontogetherwithrelatedfeesandexpensesforsuchacquisitionandfinancing;
or (ii) Liens in respect of Indebtedness refinancing anyLiens described in the foregoing clauses
| US-DOCS\138548577.7 |
(A) through (C) above, provided further, that the principal amount shall not be increased other
thanforaccruedandunpaidinterest,customaryfees,expensesandprepaymentpremiumorother
such amount;
(f)Liens related to any cash management, investments in repurchase
agreements, currency hedging, or netting arrangement in favor of any bank or financial
institution;
(g)LienscreatedwiththepriorwrittenconsentoftheAgent;
(h)Liens securing Indebtedness owed by any Subsidiaries of Borrower to a
Loan Party or a Wholly-Owned Subsidiary;
(i)LienssecuringIndebtednessofBorroweroranyofitsSubsidiariessolong
asallObligationsofBorrowerunderthisAgreementareconcurrentlysecuredequallyandratably
with such Indebtedness;
(j)Liens securing Indebtedness that is outstanding for no more than nine (9)
months following its incurrence for the purpose of financing warehoused investments; provided
that(i)anysuchLienshallsecureonlytheassetsofsuchwarehousedinvestment(orallassetsof
the entityowning such warehoused investment, provided such entityonlyowns the warehoused
investment) and any pledge of the Equity Interests of the entity owning such warehoused
investment(orallassetsoftheentityowningtheentitythatownssuchwarehousedinvestmentif
all assets of such entity consist only of the ownership of the entity owning such warehoused
investment and proceeds distributed therefrom), (ii) the aggregate outstanding amount (without
duplication) of all Indebtedness (A) secured by Liens pursuant to this clause (j) plus (B) all
IndebtednessofSubsidiariesoutstandingpursuanttoSection7.6(b)(vi)shallnotexceed
$50,000,000 at any time and (iii) there shall be at least a three (3) consecutive month period in
any twelve (12) consecutive month period in which the sum of (A) the principal amount of
Indebtedness outstanding secured by liens pursuant to this clause (j) plus(B) the principal
amount of Indebtedness outstanding under Section 7.6(b)(vi)is zero; and
(k)otherLienssecuringIndebtednessofBorroweroranySubsidiarynot
otherwisepermittedbyclauses(a)through(j)above,providedthat,theaggregateamount
(without duplication)of(i)IndebtednessoutstandingsecuredbyLienspursuanttothisclause(k)
plus (ii) all IndebtednessoutstandingpursuanttoSection7.6(b)(vii),doesnotatanytimeexceed
the greater of $50,000,000 and 30% of Consolidated Adjusted EBITDA (as determined on a pro
formabasisforthemostrecentlyendedperiodoffourconsecutivefiscalquartersforwhich
financial statements have been delivered pursuant to Section 6.1(a) or Section 6.1(b)); provided
further,thatnotwithstandingtheforegoing,theBorrowershallnot,andshallnotpermitanyofits
Subsidiariesto,securepursuanttothisSection7.5(k)any Indebtednessoutstanding under or
pursuant to any Material Credit Facility unless and until the Obligations under this Agreement
(and any guaranty delivered in connection therewith) shall concurrently be secured equally and
ratably with such Indebtedness pursuant to documentation reasonablyacceptable to the Lenders
in substance and in form, including an intercreditor agreement and opinions of counsel to the
Borrowerand/oranysuchSubsidiary,asthecasemaybe,fromcounselthatisreasonably
acceptabletotheLenders;providedfurther,that,forsolongasthereareanyAdvances
| US-DOCS\138548577.7 |
outstanding hereunder or the to the extent the Revolving Credit Aggregate Commitment has not
been terminated or otherwise reduced to zero, Borrower will not, and will not permit any of its
Subsidiaries to create, incur, assume or permit to exist any Lien pursuant to this Section 7.5(k)
(except to the extent that such Lien (x) refinances a Lien of the type permitted under clause (j)
above and (y) complies with the requirements set forth in such clause (j) (other than subclause
(iii)oftheprovisothereofandthe9-monthrequirementinthelead-inthereof),theincurrenceof
whichLienunderthisSection7.5(k)shallreduceutilizationundersuchclause(j)ona
dollar-for-dollar basis).
7.6Indebtedness.
(a)Borrowerwillnot,andwillnotpermitanyoftheSubsidiaryGuarantorsto
incur, after the Closing Date, any senior Additional Funded Indebtedness, including additional
senior notes (“Additional Senior Notes” and together with all other senior Additional Funded
Indebtedness,“AdditionalSeniorIndebtedness”)unless,(x)asofthedateofincurrenceofsuch
AdditionalSeniorIndebtedness(A)theConsolidatedLeverageRatiodoesnotexceed3.50to
1.00 and (B) Borrower shall be in pro forma compliance with the Financial Covenants set forth
in Section 7.8and any Additional Provisions, in each case calculated on a pro forma basis after
giving effect to the incurrence of such Additional Senior Indebtedness and the use of proceeds
thereof but without netting the proceeds thereof (assuming for purposes of such calculation that
thethen-outstandingRevolvingCreditAggregateCommitmentwasfullyfunded)determinedby
reference to the most recent period of four consecutive fiscal quarters for which financial
statements have been (or were required to have been) delivered pursuant to Section6.1and (y)
such Additional Senior Indebtedness shall not have a stated maturitydate that is earlier than the
date that is ninety(90) days after the MaturityDate hereof; provided, that, to theextent that any
such Additional Senior Indebtedness is secured by a Lien on any asset or property of the
Borrower and/or its Subsidiaries, such Lien shall be permitted solely to the extent incurred in
reliance upon Section 7.5(i).
(b)Borrower will not permit any of its Subsidiaries that are not Subsidiary
Guarantors to create, incur, assume, permit to exist or have outstanding or otherwise become
liable with respect to, any Indebtedness except:
(i)Indebtedness owed by a Subsidiary existing on the Closing Date
and set forth on Schedule5.15, and the extension, renewal, or replacement of such
Indebtedness, provided that the principal amount shall not be increased other than for
accrued and unpaid interest, customary fees, expenses and prepayment premium or
similar amounts;
(ii)Indebtedness of a Subsidiary outstanding at the time such
SubsidiarybecomesaSubsidiary,andanyextension,renewalorreplacementthereof,and
only to the extent that that the principal amount thereof outstanding immediately before
giving effect to such extension, renewal or refunding is not increased other than for
accrued and unpaid interest,customaryfees,expensesandprepaymentpremiumorother
such amounts;
| US-DOCS\138548577.7 |
(iii)IndebtednessofaSubsidiaryowedtoBorrowerorany
Wholly-Owned Subsidiary;
(iv)IndebtednessofaSubsidiaryowingpursuanttoSection7.5(e);
(v)[reserved];
(vi)Indebtedness of a Subsidiary that is outstanding for no more than
nine (9) months following its incurrence for the purpose of financing warehoused
investments; provided that (i) theaggregateoutstandingamount (without duplication)of
all indebtedness (A) pursuant to this clause (b)(vi)plus (B) all Indebtedness outstanding
securedbyLienspursuanttoSection7.5(j)shallnotexceed$50,000,000atanytimeand
(ii) there shall be at least a three (3) consecutive month period in any twelve (12)
consecutive month period in which the sum of (A) the principal amount of Indebtedness
outstanding pursuant to this clause (b)(vi)plus(B) the principal amount of Indebtedness
secured by Liens pursuant to Section 7.5(j)is zero; and
(vii)Indebtednessnototherwisepermittedbyclauses(b)(i)through(vi)
above, provided that, the aggregate amount (without duplication) of all Indebtedness
outstandingpursuanttothisclause(b)(vii)doesnotatanytimeexceedthegreaterof
$50,000,000 and 30% of Consolidated Adjusted EBITDA as determined on a pro forma
basis for the most recently ended period of four consecutive fiscal quarters for which
financial statements have been (or were required to have been) delivered pursuant to
Section 6.1(a)or Section 6.1(b).
7.7Restricted Payments.Borrower will not, and will not permit its Subsidiaries to,
make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or
otherwise) to do so, except:
(a)each Subsidiary may make Restricted Payments to a Person that owns
Equity Interests in such Subsidiary in accordance with the organizational documents of such
Subsidiary, but in no case more than such Person’s ratable interest according to its holdings of
the type of EquityInterest in respect of which such Restricted Payment is being made;
(b)each Loan Party and each Subsidiary may declare and make dividend
payments or other distributions payable solelyin common EquityInterests of such Person;
(c)Restricted Payments in accordance with equity incentive or other benefit
plans or arrangements for management or employees of each Loan Partyand each Subsidiary;
(d)RestrictedPaymentsintheformofPermittedTaxDistributions;
(e)Restricted Payments payable with respect to outstanding Preferred Stock
of CCO Group, LLC; provided that (i) payments representing preferred return distributions are
first applied by the holder of such Preferred Stock to make payments of accrued and unpaid
interest in respect of Indebtedness owing to Borrower and (ii) redemption payments are first
| US-DOCS\138548577.7 |
applied by the holder of such Preferred Stock to repay outstanding principal on such
Indebtedness; and
(f)each Loan PartymaymakeotherRestrictedPaymentssolongas(i)atthe
time such Restricted Paymentismadeandimmediatelyaftergivingeffectthereto,noDefaultor
Event of Default shall exist, (ii) immediately after giving effect thereto, Borrower shall be in
compliance on a pro forma basis with the Financial Covenants set forth in Section7.8and any
Additional Provision, (iii) no Specified EquityContribution has been made in the fiscal quarter
in which such Restricted Payment is made and (iv) in respect of any other Restricted Payments
made under this clause (f) during the period from the Closing Date through and including
September 30, 2024, the aggregate amount of Restricted Payments made pursuant to this clause
(f) during such period shall not exceed the sum of: (x) 105% of the greater of (1) Consolidated
Net Income for the period from July 1, 2022 through the date of the most recently ended fiscal
quarter for which financial statements shall have been (or wererequiredtohavebeen)delivered
under Section6.1and (2) the result of (A) Consolidated EBITDA for such period, minus(B)
Consolidated Interest Charges for such period; plus(y) 50% of the aggregate net proceeds
received by Borrower after the Closing Date from the issuance of any Equity Interests of
Borrower.
7.8FinancialCovenants.
(a)ConsolidatedNetLeverageRatio.Borrowerwillnotpermittheratioof(i)
Consolidated Net Funded Indebtedness as of the end of any fiscal quarter of Borrower to (ii)
Consolidated Adjusted EBITDA (such ratio, the “ConsolidatedNetLeverageRatio”) for the
period of four consecutive fiscal quarters ended on such date to be greater than 3.50 to 1.00;
provided that the pro forma effect of any acquisition or divestiture consummated within such
period shall beincluded as ifsuch transaction had occurred at thebeginningofsuch period. The
Consolidated Net Leverage Ratio shall be tested for such period on the date of delivery of the
financial statements for such period pursuant to Section6.1; provided further, that anyEvent of
Default arisingfrom thebreach ofthis Section7.8(a), to theextent not cured in accordancewith
the cure rights below, shall be deemed to have occurred on the final dayof such period.
Solelyfor the purposes of determining compliance with the Financial Covenant set forth
in this Section 7.8(a)or any Additional Provision which includes a Consolidated Adjusted
EBITDAcomponent(andnotforanyotherpurposeunderthisAgreement),ineachcase,forany
fiscal quarter, the amount of any cash equity contribution (which may be common equity or
Preferred Stock that is not Disqualified Stock) made to Borrower on or after the first day of a
fiscal quarter of Borrower, and on or prior to the date that is fifteen (15) Business Days after the
dayon which financial statements arerequiredtobedeliveredforsuchfiscal quarterpursuant to
Section6.1(the “Cure Expiration Date”), will, at the request of Borrower, be deemed to be
ConsolidatedAdjustedEBITDAreceivedinsuchfiscalquarterandshallbetakenintoaccountin
the calculation of such Financial Covenant(s) for any period of four fiscal quarters of Borrower
that includes such fiscal quarter (anysuch equitycontribution so included in such calculation, a
“SpecifiedEquityContribution”);provided,thataSpecifiedEquityContributionmaynotbe(x)
made in respect of more than two fiscal quarters in anyfour quarter period, (y) made more than
threetimespriortotheMaturityDateand(z)greaterthantheamountrequiredtocauseBorrower
| US-DOCS\138548577.7 |
to be in pro forma compliance with such Financial Covenant(s). Borrower may give written
noticetotheAgent that itwillreceive(orthatithasreceived)aSpecifiedEquityContributionin
respect of a fiscal quarter of Borrower at any time on or after the last day of such fiscal quarter
and on or prior to the Cure Expiration Date in respect of the applicable testing period and,
subject to the foregoing sentence, any breach (actual or prospective) of such Financial
Covenant(s) shall not result in any Default or Event of Default in respect of the period of four
fiscal quarters endingwith such last dayuntil the dayafter the Cure ExpirationDate,andneither
the Agent nor anyLender mayexercise anyrights or remedies under anythis Agreement during
such period, and then an Event of Default shall be deemed to have occurred only if any such
breach exists after taking into account for such determination for such period the amount of the
Specified Equity Contribution, if any, made in respect of such period.
(b)Minimum Fee Earning Equity Owned and Operated. Borrower will not
permit,asoftheendofanyfiscalquarter,theFeeEarningEquityOwnedandOperatedtobeless
than $10,616,900,000.
7.9Amendments to Eligible Revenue Agreements.Borrower will not, and will not
permit its Subsidiaries to, make, or permit the termination or making of any amendment,
supplement, side letter, waiver, modification or similar agreement or arrangement in respect of
any Eligible Revenue agreement or other management agreement unless, immediately after
giving effect thereto, Borrower shall be in compliance on a pro forma basis with the Financial
CovenantssetforthinSection7.8andanyAdditionalProvisions(determinedbyreferencetothe
most recent fiscal quarter for which financial statements have been (or were required to have
been) delivered pursuant to Section 6.1).
7.10Sale of Assets.Borrower will not, and will not permit any Subsidiary to, make
any Disposition except Permitted Dispositions; provided that, notwithstanding the foregoing,
Borrower or any Subsidiary may make any Disposition so long as, (a) at the time Borrower or
suchSubsidiarymakessuchDispositionandimmediatelyaftergivingeffectthereto,noEventof
Defaultshallexist,(b)suchDispositionisforfairmarketvalue,and(c)immediatelyaftergiving
effect thereto, Borrower shall be in compliance on a pro forma basis with the Financial
Covenants set forth in Section7.8and anyAdditional Provision (determined byreference to the
most recent fiscal quarter for which financial statements have been (or were required to have
been) delivered pursuant to Section 6.1).
7.11ModificationofCertainAgreements;CertainPayments.
(a)Make, permit or consent to any amendment or other modification to the
constitutional documents of any Loan Party except to the extent that any such amendment or
modification (i) does not violate the terms and conditions of this Agreement or anyof the other
Loan Documents and (ii) could not reasonablybe expected to have a Material Adverse Effect.
(b)Amend, modify, waive or otherwise change, or consent or agree to any
amendment, modification, waiver or other change to, any of the terms of the Senior Notes, any
Additional Senior Indebtedness or any Material Credit Facility, if, after giving effect to such
amendment, modification, waiver, change or consent, the obligors with respect to such Senior
Notes,AdditionalSeniorIndebtednessorMaterialCreditFacility,asapplicable,wouldnothave
| US-DOCS\138548577.7 |
been permitted to incur, guarantee or secure such Senior Notes, Additional Senior Indebtedness
or Material Credit Facility, as applicable, pursuant to the terms hereof.
(c)Make, permit or consent to any payment of principal in respect of any
Senior Notes or any Additional Senior Indebtedness to the extent that at such time an Event of
Default has occurred and is continuing or would result therefrom.
(d)For so long as there are any Advances outstanding hereunder or to the
extent the Revolving Credit Aggregate Commitment has not been terminated or otherwise
reduced to zero, make, permit or consent to anypayment of principal in respectoftheSpecified
NotetotheextentthatatthetimeofsuchpaymentanEventofDefaultunderSection8.1(a),(b),
(c)(solely to the extent resulting from a breach of a Financial Covenant or any Additional
Provision), (g)or (h)has occurred and is continuing or would result therefrom.
7.12Fiscal Year.Permit the fiscal year of anyLoan Partyto end on a dayother than
December 31.
8.DEFAULTS.
8.1EventsofDefault.Theoccurrenceofanyofthefollowingeventsshallconstitute
an Event of Default hereunder:
(a)Borrower defaults in the payment of any principal on any Revolving
Credit when the same becomes due and payable, whether at maturity or at a date fixed for
prepayment or by declaration or otherwise; or
(b)Borrower defaults in the payment of any interest, fees or other amounts
owinghereunderandundertheotherLoanDocumentsformorethanfive(5)BusinessDaysafter
the same becomes due and payable; or
(c)Borrower defaults in the performance of or compliance with any term
contained in Section6.1(d), Section7(other than Section 7.5(k)and/or Section 7.6(b)(vii)) or
anyAdditional Provision (subject in the case of an Additional Provision to anyapplicable grace
period set forth in the applicable Material Credit Facility); or
(d)Borrower or any Subsidiary Guarantor defaults in the performance of or
compliance with any term contained herein (other than those referred to in Sections 8.1(a), (b)
and (c)) or in any other Loan Document and such default is not remedied (i) in the case of any
defaultintheperformanceoforcompliancewithanytermcontainedinSection7.5(k)orSection
7.6(b)(vii), within thirty(30) days after the date of the Borrower’s delivery, pursuant to Section
6.1, of financial statements evidencing such default and (ii) in all other cases, within thirty(30)
daysaftertheearlierof(x)aResponsibleOfficerobtainingactualknowledgeofsuchdefaultand
(y) Borrower receiving written notice of such default from the Agent or any Lender (any such
writtennoticetobeidentifiedasa“noticeofdefault”andtoreferspecificallytothis
Section 8.1(d)); or
| US-DOCS\138548577.7 |
(e)any representation or warranty made in writing by or on behalf of
Borrower or any Subsidiary Guarantor or by any officer of Borrower or such Subsidiary
Guarantor in any Loan Document or any writing furnished in connection with the transactions
contemplatedherebyprovestohavebeenfalseorincorrectinanymaterialrespectonthedateas
of which made; or
(f)(i) Borrower or anySignificant Subsidiaryis in default (as principal or as
guarantororothersurety)inthepaymentofanyprincipalof,premiumormake-wholeamountor
interest on (x) theSenior Notes or Additional Senior Indebtednessor(y)anyotherIndebtedness
that is outstanding in an aggregate principal amount of at least $50,000,000 (or its equivalent in
the relevant currency of payment) beyond any period of grace provided with respect thereto, or
(ii) Borrower or anySignificant Subsidiaryis(1)indefaultintheperformanceoforcompliance
withany termof(x)theSeniorNotesPurchaseAgreementorthedocument(s)governingany
Additional Senior Indebtedness or (y) any evidence of any other Indebtedness in an aggregate
outstandingprincipalamountofatleast$50,000,000(oritsequivalentintherelevantcurrencyof
payment)orofanymortgage,indentureorotheragreementrelatingthereto,and(2)ineachcase,
as a consequence of such default, such Indebtedness has become, or has been declared due and
payable before its stated maturityor before its regularlyscheduled dates of payment; or
(g)Borrower or any Significant Subsidiary (i) is generally not paying, or
admits in writing its inability to pay, its debts as they become due, (ii) files, or consents by
answer or otherwise to the filing against it of, a petition for relief or reorganization or
arrangement or any other petition in bankruptcy, for liquidation or to take advantage of any
bankruptcy,insolvency,reorganization,moratoriumorothersimilarlawofanyjurisdiction,(iii)
makes an assignment for the benefit of its creditors, (iv) consents to the appointment of a
custodian, receiver, trustee or other officer with similarpowers with respect to it orwith respect
to anysubstantial part of its property, or (v) is adjudicated as insolvent or to be liquidated; or
(h)a court or other Governmental Authority of competent jurisdiction enters
an order appointing, without consent by Borrower or any of its Significant Subsidiaries, a
custodian, receiver, trustee or other officer with similarpowers with respect to it orwith respect
to any substantial part of its property, or constituting an order for relief or approving a petition
for relief or reorganization or any other petition in bankruptcy or for liquidation or to take
advantage of any bankruptcy or insolvency law of any jurisdiction, or ordering the dissolution,
winding-uporliquidationofBorroweroranyofitsSignificantSubsidiaries,oranysuchpetition
shall be filed against Borrower or any of its Significant Subsidiaries and such petition shall not
be dismissed within 60 days; or
(i)[reserved];or
(j)one or more final non-appealable judgments or orders for the payment of
money aggregating in excess of $50,000,000 (or its equivalent in the relevant currency of
payment)(totheextentnotpaidandnotcoveredbyinsurance(including,ifapplicable,
self-insurance) or indemnities as to which the insurer or indemnitor has been notified of such
judgment or order and has not denied coverage) including any such final order enforcing a
binding arbitration decision, are rendered against one or more of Borrower and its Significant
| US-DOCS\138548577.7 |
Subsidiariesandwhichjudgmentsarenot,within60daysafterentrythereof,bonded,discharged
or stayed pending appeal, or are not discharged within 60 days after the expiration of such stay;
or
(k)if (i) any Plan shall fail to satisfy the minimum funding standards of
ERISAortheCodeforanyplanyearorpartthereoforawaiverofsuchstandardsorextensionof
anyamortization period is soughtorgrantedundersection412oftheCode,(ii)anoticeofintent
to terminate anyPlan shall have been or is reasonablyexpected to be filed with the PBGC or the
PBGC shall have instituted proceedings under ERISA section 4042 to terminate or appoint a
trustee to administer anyPlan or the PBGC shall havenotifiedBorroweroranyERISAAffiliate
thataPlanmaybecomeasubjectofanysuchproceedings,(iii)thereisany“amountofunfunded
benefit liabilities” (within the meaning of section 4001(a)(18) of ERISA) under one or more
Plans, determined in accordance with Title IV of ERISA, (iv) the aggregate present value of
accrued benefit liabilities under all funded Non-U.S. Plans exceeds the aggregate current value
of the assets of such Non-U.S. Plans allocable to such liabilities, (v) Borrower or any ERISA
Affiliateshall haveincurred oris reasonablyexpected to incuranyliabilitypursuanttoTitleIor
IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit
plans, (vi)Borrower or any ERISA Affiliate withdraws from any Multiemployer Plan, (vii)
Borrower or any Subsidiary establishes or amends any employee welfare benefit plan that
provides post-employment welfare benefits in a manner that would increase the liability of
Borrower or any Subsidiary thereunder, (viii) Borrower or any Subsidiary fails to administer or
maintain a Non-U.S. Plan in compliance with the requirements of any and all applicable laws,
statutes, rules, regulations or court orders or any Non-U.S. Plan is involuntarily terminated or
wound up, or (ix) Borrower or any Subsidiary becomes subject to the imposition of a financial
penalty(which for this purpose shall mean anytax, penaltyor other liability, whether bywayof
indemnity or otherwise) with respect to one or more Non-U.S. Plans; and any such event or
events described in clauses (i) through (ix) above, either individuallyor together with anyother
such event or events, would reasonablybe expected to have a Material Adverse Effect. As used
in this Section 8.1(k), the terms “employee benefit plan” and “employee welfare benefit plan”
shall have the respective meanings assigned to such terms in section 3 of ERISA; or
(l)any Loan Document, at any time after its execution and delivery and for
anyreason otherthan as expresslypermitted hereunderorthereunderorsatisfactioninfullofall
theobligationshereunderandunderanyotherLoanDocument,shallceasetobeinfullforceand
effect,anyLoanPartyoranyPersonactingonbehalfofaLoanPartyshallcontestinanymanner
the validity, binding nature or enforceability of any Loan Document, or the obligations of any
LoanPartyunderanyLoanDocumentarenotorceasetobelegal,valid,bindingandenforceable
in accordance with the terms of such Loan Document; or
(m)aChangeofControl.
8.2Acceleration.
(a)IfanEventofDefaultwithrespecttoBorrowerdescribedinSection8.1(g)
or (h) (other than an Event of Default described in clause (i) of Section 8.1(g)or described in
clause(vi)ofSection8.1(g)byvirtueofthefactthatsuchclauseencompassesclause(i)of
| US-DOCS\138548577.7 |
Section8.1(g))hasoccurred,allAdvancesthenoutstandingshallautomaticallybecome
immediately due and payable.
(b)If anyother Event of Default hasoccurredandiscontinuing,theMajority
Lenders may at any time at its or their option, by notice or notices to Borrower, declare all the
Advances then outstanding to be immediately due and payable.
Upon any Advances becoming due and payable under this Section8.2, whether
automatically or by declaration, such Advances will forthwith mature and the entire unpaid
principal amount of such Advances, plus (x) all accrued and unpaid interest thereon (including
interest accrued thereon at the Default Rate) and (y) all other Obligations then outstanding shall
allbeimmediatelydueandpayable,ineachandeverycasewithoutpresentment,demand,protest
or further notice, all of which are hereby waived.
8.3[Reserved].
8.4RightsCumulative.NodelayorfailureoftheAgentand/orLendersinexercising
anyright, power or privilege hereunder shall affect such right, power or privilege, nor shall any
single or partial exercise thereof preclude any further exercise thereof, or the exercise of any
other power, right or privilege.The rights of the Agent and Lenders under this Agreement are
cumulative and not exclusive of anyright or remedies which Lenders would otherwise have.
8.5Waiver byBorrower of CertainLaws.Totheextentpermittedbyapplicablelaw,
Borrower hereby agrees to waive, and does hereby absolutely and irrevocably waive and
relinquish the benefit and advantage of any valuation, stay, appraisement, extension or
redemption laws now existingor which mayhereafter exist, which, but for this provision, might
beapplicabletoanysalemadeunderthejudgment,orderordecreeofanycourt,onanyclaimfor
interest on the Notes.These waivers have been voluntarily given, with full knowledge of the
consequences thereof.
8.6Waiver of Defaults.No Event of Default shall be waived by the Lenders except
in a writing signed by an officer of the Agent in accordance with Section11.10; provided, that
any Event of Default under Section8.1(a)or Section8.1(b)arising from Borrower’s failure to
make a required payment on a timely basis shall be deemed to have been cured by the Agent’s
acceptance of such payment prior to declaring the entire unpaid principal amount of the
Indebtedness immediatelydue and payable, but no acceptance of alatepayment shall constitute
consent to future late payments or otherwise impair the Agent’s right to strict compliance by
Borrower with all of the provisions of this Agreement without giving notice to, or making any
demandupon,BorrowerforstrictcompliancewiththisAgreement.Nosingleorpartialexercise
of any right, power or privilege hereunder, nor any delay in the exercise thereof, shall preclude
other or further exercise of their rights bythe Agent or the Lenders.No waiver of anyEvent of
Default shall extend to anyother or further Event of Default.No forbearance on the part of the
Agent or the Lenders in enforcing any of their rights shall constitute a waiver of any of their
rights.Borrower expressly agrees that this Sectionmay not be waived or modified by the
Lenders or the Agent by course of performance, estoppel or otherwise.
| US-DOCS\138548577.7 |
8.7Set Off.Upon the occurrence and during the continuance of any Event of
Default, each Lender may at any time and from time to time, without notice to Borrower but
subject to the provisions of Section9.3(any requirement for such notice being expressly
waived byBorrower), setoff and applyagainst anyand all of the obligations of Borrower now
or hereafter existing under this Agreement, whether owing to such Lender, any Affiliate of
such Lender or anyother LenderortheAgent, anyand all deposits (general orspecial, timeor
demand, provisional or final) at any time held and other indebtedness at any time owing by
suchLendertoorforthecreditortheaccountofBorrowerandanypropertyofBorrowerfrom
time to time in possession of such Lender, irrespectiveofwhetherornot such deposits held or
indebtedness owing by such Lender may be contingent and unmatured.Promptly following
any such setoff, such Lender shall give written notice to the Agent and Borrower of the
occurrence thereof; providedthat in the event that any Defaulting Lender shall exercise any
such right of setoff, (x) all amounts so set off shall be paid over immediatelyto the Agent for
further application in accordance with the provisions of Section9.4and, pending such
payment, shall be segregated bysuch DefaultingLender from its other funds and deemed held
for the benefit of the Agent and the Lenders, and (y) the Defaulting Lender shall provide
promptly to the Agent a statement describing in reasonable detail the Obligations owing to
suchDefaultingLenderastowhichitexercisedsuchrightofsetoff.TherightsofeachLender
underthisSection8.8areinadditiontotheotherrightsandremedies(includingotherrightsof
setoff) which such Lender may have.
9.PAYMENTS,RECOVERIESANDCOLLECTIONS.
9.1PaymentProcedure.
(a)All payments to be made byBorrowershall bemadewithout condition or
deduction for any counterclaim, defense, recoupment or setoff.Except as otherwise provided
herein, all payments made by Borrower of principal, interest or fees hereunder shall be made
without setofforcounterclaim on thedatespecifiedforpaymentunderthisAgreementandmust
be received by the Agent not later than 2:00 p.m. (New York City time) (or such later time on
such date as agreed to byAgent) on the date such payment is required or intended to be made in
Dollars in immediately available funds to the Agent at the Agent’s office located at 555 South
Flower Street, 21st Floor, Los Angeles, CA 90071, for the ratable benefit of the Revolving
Credit Lenders in the case of payments in respect of the Revolving Credit.Any payment
received by the Agent after 2:00 p.m. (New York City time) (or such later time on such date as
agreed to by Agent) shall be deemed received on the next succeeding Business Day and any
applicableinterestorfeeshallcontinuetoaccrue.Uponreceiptofeachsuchpayment,theAgent
shall make prompt payment to each applicable Lender.
(b)Unless the Agent shall have been notified in writing byBorrower at least
two (2) Business Days prior to the date on which any payment to be made by Borrower is due
that Borrower does not intend to remit such payment, the Agent may, in its sole discretion and
without obligation to do so, assume that Borrower has remitted such payment when so due and
the Agent may, in reliance upon such assumption, make available to each Revolving Credit
LenderonsuchpaymentdateanamountequaltosuchLender’sshareofsuchassumedpayment.
If Borrower has not in fact remitted such payment to the Agent, each Lender shall forthwith on
| US-DOCS\138548577.7 |
demand repay to the Agent the amount of such assumed payment made available or transferred
to such Lender, together with the interest thereon, in respect of each dayfrom and including the
date such amount was made available by the Agent to such Lender to the date such amount is
repaidtotheAgentatarateperannumequaltotheFederalFundsEffectiveRateforthefirsttwo
(2) Business Days that such amount remains unpaid, and thereafter at a rate of interest then
applicable to such Revolving Credit Advances.
(c)Subject to the definition of “Interest Period” in Section1.1, whenever any
paymenttobemadehereundershallotherwisebedueonadaywhichisnotaBusinessDay,such
payment shall be made on the next succeedingBusiness Dayand such extensionoftimeshallbe
included in computing interest, if any, in connection with such payment.
9.2[Reserved].
9.3Pro-rataRecovery.IfanyLendershallobtainanypaymentorotherrecovery
(whethervoluntary,involuntary,byapplicationofsetofforotherwise)onaccountofprincipalof,
orintereston,anyoftheAdvancesmadebyit,ortheparticipationsinSwingLineAdvancesheld
by it in excess of its pro rata share of payments then or thereafter obtained by all Lenders upon
principal of and interest on all such Obligations, such Lender shall purchase from the other
Lenders such participations in the Revolving Credit held by them as shall be necessaryto cause
suchpurchasingLendertosharetheexcesspaymentorotherrecoveryratablyinaccordancewith
theapplicableRevolvingCreditPercentagesoftheLenders;provided,however,thatifallorany
portion of the excess payment or other recovery is thereafter recovered from such purchasing
holder, the purchase shall be rescinded and the purchase price restored to the extent of such
recovery, but without interest.
9.4Treatment of a Defaulting Lender; Reallocation of Defaulting Lender’s Fronting
Exposure.
(a)TheobligationofanyLendertomakeanyAdvancehereundershallnotbe
affected by the failure of any other Lender to make any Advance under this Agreement, and no
Lender shall have any liability to Borrower or any of its Subsidiaries, the Agent, any other
Lender,oranyotherPersonforanotherLender’sfailuretomakeanyloanorAdvancehereunder.
(b)If any Lender shall become a Defaulting Lender, then such Defaulting
Lender’s right to vote in respect of any amendment, consent or waiver of the terms of this
Agreement or such other Loan Documents, or to direct or approve anyaction or inaction bythe
Agent shall be subject to the restrictions set forth in Section 11.10.
(c)Anypaymentofprincipal,interest,feesorotheramountsreceivedbythe
AgentfortheaccountofsuchDefaultingLender(whethervoluntaryormandatory,atmaturity,
pursuanttoArticle8orotherwise)orreceivedbytheAgentfromaDefaultingLenderpursuant
to Section9.6shall be applied at such time or times as may be determined by the Agent as
follows: first, to the payment of any amounts owing by such Defaulting Lender to the Agent
hereunder;second,tothepaymentonaproratabasisofanyamountsowingbysuchDefaulting
Lender to any Swing Line Lender hereunder; third, as Borrower may request (so long as no
| US-DOCS\138548577.7 |
Default or Event of Default exists), to the funding of any Advance in respect of which such
Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as
determined by the Agent; fourth, if so determined by the Agent and Borrower, to be held in a
deposit account and released pro rata in order to satisfy such Defaulting Lender’s potential
futurefundingobligationswithrespecttoAdvancesunderthisAgreement;fifth,tothepayment
of any amounts owing to the Lenders or Swing Line Lenders as a result of any judgment of a
court of competent jurisdiction obtained by any Lender or Swing Line Lenders against such
Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this
Agreement; sixth, so long as no Default or Event of Default exists, to the payment of any
amounts owing to Borrower as a result of any judgment of a court of competent jurisdiction
obtained by Borrower against such Defaulting Lender as a result of such Defaulting Lender’s
breach of its obligations under this Agreement; and seventh, to such Defaulting Lender or as
otherwise directed by a court of competent jurisdiction; providedthat if such payment is a
payment of the principal amount of anyAdvances in respect of which such Defaulting Lender
has not fully funded its appropriate share, such payment shall be applied solely to pay the
Advances of all Non-Defaulting Lenders on a pro rata basis prior to being applied to the
paymentofanyAdvancesofsuchDefaultingLenderuntilsuchtimeasallAdvancesand
Swing Line Advances are held by the Lenders pro rata in accordance with their respective
Revolving Credit Percentages without giving effect to clause (d) below.Any payments,
prepaymentsorotheramountspaidorpayabletoaDefaultingLenderthatareapplied(orheld)
to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this clause
(c) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender
irrevocably consents hereto.
(d)Each Defaulting Lender shall be entitled to receive a Revolving Credit
Facility Fee for any period during which that Lender is a Defaulting Lender only to extent
allocable to the outstanding principal amount of the Revolving Credit Advances funded byit).
(e)With respect to anyRevolving Credit FacilityFee not required to be paid
toanyDefaultingLenderpursuanttoclause(d)above,Borrowershall(x)paytoeach
Non-DefaultingLenderthatportionofanysuchfeeotherwisepayabletosuchDefaultingLender
with respect to such Defaulting Lender’s participation in Swing Line Advances that has been
reallocated to such Non-Defaulting Lender pursuant to clause (f) below, (y) pay to each Swing
Line Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting
Lender to the extent allocable to such Swing Line Lender’s Fronting Exposure to such
Defaulting Lender, and (z) not be required to paythe remaining amount of anysuch fee.
(f)If anyLender shall becomeaDefaultingLender, then, for so longassuch
LenderremainsaDefaultingLender,anyFrontingExposureshallbereallocatedbytheAgentat
the request of the Swing Line Lender among the Non-Defaulting Lenders in accordance with
their respective Revolving Credit Percentages, but only to the extent that the sum of the
aggregate principal amount of all Revolving Credit Advances made by each Non-Defaulting
Lender, plus such Non-Defaulting Lender’s Revolving Credit Percentage of the aggregate
outstandingprincipalamountofSwingLineAdvancespriortogivingeffecttosuchreallocation
plussuchNon-DefaultingLender’sRevolvingCredit PercentageoftheFrontingExposuretobe
reallocated does not exceed such Non-Defaulting Lender’s Revolving Credit Percentage of the
| US-DOCS\138548577.7 |
Revolving Credit Aggregate Commitment, and only so long as no Default or Event of Default
has occurred and is continuing on the date of such reallocation.
(g)At any time that there shall exist a Defaulting Lender, within one (1)
Business Dayfollowing the written request of the Agent or the SwingLine Lender (with a copy
totheAgent),BorrowershallcashcollateralizetheSwingLineLender’sFrontingExposurewith
respecttosuchDefaultingLender(determinedaftergivingeffecttoanycashcollateralprovided
by such Defaulting Lender) in an amount not less than an amount determined bythe Agent, the
Swing Line Lender in their sole discretion, by depositing such amounts into an account
controlled by the Agent.
10.AGENT.
10.1Appointment of the Agent.Each Lender and the holder of each Note (if issued)
irrevocably appoints and authorizes the Agent to act on behalf of such Lender or holder under
this Agreement and the other Loan Documents and to exercise such powers hereunder and
thereunder as are specifically delegated to the Agent by the terms hereof and thereof, together
withsuchpowersasmaybereasonablyincidentalthereto,includingthepowertoexecuteor
authorize the execution of financing or similar statements or notices, and other documents.In
performing its functions and duties under this Agreement, the Agent shall act solelyas agent of
the Lenders and does not assume and shall not be deemed to have assumed any obligation
towards, or relationship of agencyor trust with or for, anyLoan Party.
10.2Deposit Account with the Agent or anyLender.Borrower authorizes the Agent,
in the Agent’s sole discretion, upon notice to Borrower to charge Account #XXXXX54842
maintained with the Agent or such other deposit account with the Agent as Borrower may
designate to the Agent in writing from time to time for the amount of any principal, interest,
costsorotheramountsdueunderthisAgreementwhenthesamebecomedueandpayableunder
the terms of this Agreement or the Notes.
10.3Scope of the Agent’s Duties.The Agent shall have nodutiesorresponsibilities
exceptthoseexpresslysetforthherein,andshallnot,byreasonofthisAgreementorotherwise,
have a fiduciary relationship with any Lender (and no implied covenants or other obligations
shall be read into this Agreement against the Agent).None of the Agent, its Affiliates nor any
oftheirrespectivedirectors,officers,employeesoragentsshallbeliabletoanyLenderforany
action taken or omitted to be taken by it or them under this Agreement or any document
executed pursuant hereto, or in connection herewith or therewith with the consent or at the
request of the MajorityLenders (or all of the Lenders for those acts requiring consent of all of
the Lenders) (except for its or their own willful misconduct or gross negligence), nor be
responsible for or have any duties to ascertain, inquire into or verify (a) any recitals or
warranties made bythe Loan Parties oranyAffiliateoftheLoan Parties, oranyofficerthereof
contained herein or therein, (b) the effectiveness, enforceability, validity or due execution of
this Agreement or any document executed pursuant hereto or any security thereunder, (c) the
performance bythe Loan Parties of their respectiveobligationshereunderorthereunder,or(d)
the satisfaction of any condition hereunder or thereunder, including in connection with the
making of any Advance.The Agent and its Affiliates shall be entitled to rely upon any
| US-DOCS\138548577.7 |
certificate, notice, document or other communication (including any cable, telegraph, telex,
facsimile transmission or oral communication) believed by it to be genuine and correct and to
have been sent or given byor on behalf of a proper person.The Agent maytreat the payee of
any Note as the holder thereof.The Agent may employ agents and may consult with legal
counsel, independent public accountants and other experts selectedbyitandshallnotbeliable
totheLenders(exceptastomoneyorpropertyreceivedbythemortheirauthorizedagents),for
the negligence or misconduct of any such agent selected by it with reasonable care or for any
action taken or omitted to be taken by it in good faith in accordance with the advice of such
counsel, accountants or experts.
10.4SuccessorAgent.TheAgentmayresignassuchatanytimeuponatleastthirty
(30)dayspriorwrittennoticetoBorrowerandeachoftheLenders.IftheAgentatanytimeshall
resign or if the office of the Agent shall become vacant for any other reason, Majority Lenders
shall, bywritten instrument, appoint successor agent(s) (“SuccessorAgent”) satisfactorytosuch
MajorityLenders and, so long as no Default or Event of Default has occurred and is continuing,
to Borrower(which approval shall not beunreasonablywithheldordelayed);provided,however
that any such successor Agent shall be a bank or a trust company or other financial institution
which maintains an office in the United States, or a commercial bank organized under the laws
of the United States or anystate thereof, or anyAffiliate of such bank or trust companyor other
financialinstitutionwhichisengagedinthebankingbusiness,andshallhaveacombinedcapital
and surplus of at least $500,000,000.Such Successor Agent shall thereupon become the Agent
hereunder, as applicable, and the Agent shall deliver or cause to be delivered to any successor
agent such documents of transfer and assignment as such Successor Agent may reasonably
request.IfaSuccessorAgentisnotsoappointedordoesnotacceptsuchappointmentbeforethe
resigning Agent’s resignation becomes effective, the resigning Agent may appoint a temporary
successor to act until such appointment by the Majority Lenders and Borrower (so long as no
Default or Event of Default has occurred and is continuing), is madeand accepted, orifno such
temporary successor is appointed as provided above by the resigning the Agent, the Majority
Lenders shall thereafterperform all oftheduties oftheresigningtheAgent hereunderuntil such
appointment by the MajorityLenders and, if applicable, Borrower, is made and accepted.Such
Successor Agent shall succeed to all of the rights and obligations of the resigning Agent as if
originallynamed.The resigning Agent shall dulyassign, transfer and deliver to such Successor
AgentallmoneysatthetimeheldbytheresigningAgenthereunderafterdeductingtherefromits
expenses for which it is entitled to be reimbursed hereunder.Upon such succession of anysuch
Successor Agent, the resigning Agent shall be discharged from its duties and obligations, in its
capacity as the Agent hereunder, except for its gross negligence or willful misconduct arising
priortoitsresignationhereunder,andtheprovisionsofthisArticle10shallcontinueineffectfor
the benefit of the resigning Agent in respect of any actions taken or omitted to be taken by it
while it was acting as the Agent.
10.5Credit Decisions.Each Lender acknowledges that it has, independently of the
Agent and each other Lender and based on the financial statements of Borrower and such other
documents, information and investigations as it has deemed appropriate, made its own credit
decision to extend credit hereunder from time to time.Each Lender also acknowledges that it
will, independently of the Agent and each other Lender and based on such other documents,
informationandinvestigationsasitshalldeemappropriateatanytime,continuetomakeitsown
| US-DOCS\138548577.7 |
credit decisions as to exercising or not exercising from time to time any rights and privileges
available to it under this Agreement, any Loan Document or any other document executed
pursuant hereto.
10.6Authority of the Agent to Enforce This Agreement.Each Lender, subject to the
termsandconditionsofthisAgreement,grantstheAgentfullpowerandauthorityas
attorney-in-fact to institute and maintain actions, suits or proceedings for the collection and
enforcement of anyObligations outstandingunder this Agreement or anyother Loan Document
and to file such proofs of debt or other documents as maybe necessaryto have the claimsofthe
Lenders allowed in any proceeding relative to any Loan Party, or their respective creditors or
affectingtheirrespectiveproperties,andtotakesuchotheractionswhichtheAgentconsidersto
be necessary or desirable for the protection, collection and enforcement of the Notes, this
Agreement or the other Loan Documents.
10.7IndemnificationoftheAgent.TheLendersagreetoindemnifytheAgent-Related
Persons (to the extent not reimbursed by Borrower, but without limiting any obligation of
Borrower to make such reimbursement), ratably according to their respective Weighted
Percentages, and hold them harmless from and against any and all claims, damages, losses,
liabilities, costs or expenses of any kind or nature whatsoever (including reasonable fees and
expensesofhouseandoutsidecounsel)whichmaybeimposedon,incurredby,orasserted
againstanyAgent-RelatedPersoninanywayrelatingtoorarisingoutofthisAgreement,anyof
the other Loan Documents or the transactions contemplated hereby or any action taken or
omitted by the Agent and its Affiliates under this Agreement or any of the Loan Documents;
provided, however, that no Lender shall be liable for any portion of such claims, damages,
losses, liabilities, costs or expenses resultingfrom anyAgent-RelatedPerson’sgrossnegligence
or willful misconduct.Withoutlimitationoftheforegoing,eachLenderagreestoreimbursethe
Agent-RelatedPersonspromptlyupondemandforitsratableshareofanyreasonable
out-of-pocket expenses (including reasonable fees and expenses of house and outside counsel)
incurred by the Agent-Related Persons in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this
AgreementoranyoftheotherLoanDocuments,totheextentthattheAgent-RelatedPersonsare
not reimbursed for such expenses byBorrower, but without limiting the obligation of Borrower
to make such reimbursement.Each Lender agrees to reimburse the Agent-Related Persons
promptlyupon demand for its ratable share of anyamounts owingtotheAgent-RelatedPersons
by the Lenders pursuant to this Section 10.7, provided that, if the Agent-Related Persons are
subsequently reimbursed by Borrower for such amounts, they shall refund to the Lenders on a
pro rata basis the amount of any excess reimbursement.If the indemnity furnished to the
Agent-Related Persons under this Section 10.7shall become impaired as determined in the
Agent’s reasonable judgment or the Agent shall elect in its sole discretion to have such
indemnity confirmed by the Lenders (as to specific matters or otherwise), the Agent shall give
notice thereof to each Lender and, until such additional indemnity is provided or such existing
indemnity is confirmed, the Agent may cease, or not commence, to take any action.Any
amounts paid by the Lenders hereunder to the Agent-Related Persons shall be deemed to
constitute part of the Obligations hereunder.
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10.8Knowledge of Default.It is expressly understood and agreed that the Agent
shall be entitled to assume that no Default or Event of Default has occurred and is continuing,
unlesstheofficersoftheAgentimmediatelyresponsibleformattersconcerningthisAgreement
shall have received a written notice from a Lender or Borrower specifying such Default or
Event of Default and stating that such notice is a “notice of default”.Upon receiving such a
notice, the Agent shall promptly notify each Lender of such Default or Event of Default and
provide each Lender with a copy of such notice and shall endeavor to provide such notice to
theLenderswithinthree(3)BusinessDays(butwithoutanyliabilitywhatsoeverintheeventof
its failure to do so).The Agent shall also furnish the Lenders, promptly upon receipt, with
copiesofallothernoticesorotherinformationrequiredtobeprovidedbyBorrowerhereunder.
10.9The Agent’s Authorization; Action by Lenders.Except as otherwise expressly
provided herein, whenever the Agent is authorized and empowered hereunder on behalf of the
Lenders to give any approval or consent, or to make any request, or to take any other action on
behalfoftheLenders(includingtheexerciseofanyrightorremedyhereunderorundertheother
LoanDocuments),theAgentshallberequiredtogivesuchapprovalorconsent,ortomakesuch
requestortotakesuchotheractiononlywhensorequestedinwritingbytheMajorityLendersor
the Lenders, as applicable hereunder.Action that may be taken by the Majority Lenders, any
other specified Percentage of the Lenders or all of the Lenders, as the case maybe (as provided
for hereunder) maybe taken (i) pursuant to a vote of the requisite percentages of the Lenders as
requiredhereunderatameeting(whichmaybeheldbytelephoneconferencecall),providedthat
the Agent exercises good faith, diligent efforts to give all of the Lenders reasonable advance
notice of the meeting, or (ii) pursuant to the written consent of the requisite percentages of the
Lenders as required hereunder, provided that all of the Lenders are given reasonable advance
notice of the requests for such consent.
10.10EnforcementActionsbytheAgent.Exceptasotherwiseexpresslyprovided
underthis Agreement orinanyoftheotherLoanDocumentsandsubjecttothetermshereof,the
Agent will take such action, assert such rights and pursue such remedies under this Agreement
and the other Loan Documents as the MajorityLenders or all of the Lenders, as the case maybe
(as provided for hereunder), shall direct; provided, however, that theAgent shall not berequired
to act or omit to act if, in the reasonable judgment of the Agent, such action or omission may
exposetheAgenttopersonalliabilityforwhichtheAgenthasnotbeensatisfactorilyindemnified
hereunderoriscontrarytothisAgreement,anyoftheLoanDocumentsorapplicablelaw.
ExceptasexpresslyprovidedaboveorelsewhereinthisAgreementortheotherLoan
Documents, no Lender (other than the Agent, acting in its capacity as agent) shall be entitled to
takeanyenforcementactionofanykindunderthisAgreementoranyoftheotherLoan
Documents.
10.11[Reserved].
10.12The Agents in their Individual Capacities.City National Bank and its Affiliates,
successorsandassignsshalleachhavethesamerightsandpowershereunderasanyotherLender
andmayexerciseorrefrainfromexercisingthesameasthoughsuchLenderwerenot theAgent.
City National Bank and its Affiliates may (without having to account therefor to any Lender)
acceptdepositsfrom,lendmoneyto,andgenerallyengageinanykindofbanking,trust,financial
| US-DOCS\138548577.7 |
advisory or other business with the Loan Parties as if such Lender were not acting as the Agent
hereunder, and may accept fees and other consideration therefor without having to account for
the same to the Lenders.
10.13The Agent’s Fees.Until all Obligations (other than amounts in respect of
indemnification, expense reimbursement, yield protection or tax gross-up, and other contingent
obligations with respect to which no claim has been made) have been repaid and discharged in
fullandnocommitmenttoextendanycredithereunderisoutstanding,Borrowershallpaytothe
Agent, as applicable, anyagencyorotherfee(s)set forth (orto beset forth fromtimetotime)in
the applicable Fee Letter on the terms set forth therein.The agency fees referred to in this
Section 10.13shall not be refundable under any circumstances.
10.14Documentation Agent or other Titles.Any Lender or Affiliate of a Lender
identifiedonthefacingpageorsignaturepageofthisAgreementorinanyamendmentheretoor
as designated with consent of the Agent in any assignment agreement as a Lead Arranger,
Documentation Agent, SyndicationsSyndicationAgent or any similar titles, shall not have any
right, power, obligation, liability, responsibilityor dutyunder thisAgreementasaresultofsuch
title other than those applicable to all Lenders as such.Without limiting the foregoing, the
Lenders and Affiliates so identified shall not have or be deemed to have any fiduciary
relationship with anyLender as a result of such title.Each Lender acknowledges that it has not
relied, and will not rely, on the LenderLenders or Affiliatesso identified (nor their respective
Affiliates)in deciding to enter into this Agreement or in taking or not taking action hereunder.
10.15Obligations in respect of Lender Products and Hedging Agreements.Except as
otherwise expressly set forth herein, no Lender that obtains the benefits of the provisions of
Section 9.2 or of the Subsidiary Guaranty 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 to
notice of or to consent to anyamendment, waiver or modification of the provisions hereof or of
the Subsidiary Guaranty) other than in its capacity as a Lender and, in such case, only to the
extent expressly provided in the Loan Documents. Notwithstanding any other provision of this
Article 10 to the contrary, the Agent shall not be required to verifythe payment of, or that other
satisfactory arrangements have been made with respect to, Obligations arising under Lender
Products and Hedging Agreements unless the Agent has received written notice of such
Obligations, together with such supporting documentation as the Agent may request, from the
applicable Lender.
10.16NoRelianceontheAgent’sCustomerIdentificationProgram.
(a)EachLenderacknowledgesandagreesthatneithersuchLender,noranyof
its Affiliates, participants or assignees, may rely on the Agent to carry out such Lender’s,
Affiliate’s, participant’s or assignee’s customer identification program, or other obligations
required or imposed under or pursuant to the USA Patriot Act or the regulations thereunder,
including the regulations contained in 31 CFR 103.121 (as hereafter amended or replaced, the
“CIP Regulations”), or any other Anti-Terrorism Lawanti-terrorism law, including any
programs involvinganyofthefollowingitems relatingtoorinconnectionwithBorrowerorany
of its Subsidiaries, any of their respective Affiliates or agents, the Loan Documents or the
| US-DOCS\138548577.7 |
transactions hereunder: (i) anyidentifyverification procedures, (ii) anyrecord keeping, (iii) any
comparisons with government lists, (iv) any customer notices, or (v) any other procedures
required under the CIP Regulations or such other laws.
(b)Each Lender or assignee or participant of a Lender that is not organized
under the laws of the United States or a state thereof (and is not excepted from the certification
requirement contained in Section313 of the USA Patriot Act and the applicable regulations
because it is both (i) an affiliate of a depository institution or foreign bank that maintains a
physical presence in the United States or foreign country, and (ii) subject to supervision by a
banking authority regulating such affiliated depository institution or foreign bank) shall deliver
totheAgentthecertification,or,ifapplicable,recertification,certifyingthatsuchLenderisnota
“shell”andcertifyingtoothermattersasrequiredbySection313oftheUSAPatriotActandthe
applicable regulations at such times as are required under the USA Patriot Act or such other
applicable regulations.
10.17CertainERISAMatters.
(a)Each Lender (x) represents and warrants, as of the date such Person
becameaLenderpartyhereto,to,and(y)covenants,fromthedatesuchPersonbecameaLender
party heretotothedatesuchPersonceasesbeingaLenderparty hereto,forthebenefitof,the
Agent and not, for the avoidance of doubt, to or for the benefit of Borrower, that at least one of
the following is and will be true:
(i)such Lender is not using “plan assets” (within the meaning of
Section3(42)ofERISAorotherwiseforpurposesofTitleIofERISAorSection4975of
theCode)ofoneormorePlanswithrespecttosuchLender’sentranceinto,participation
in, administration of and performance of this Agreement or the Advances and
commitments hereunder,
(ii)the prohibited transaction exemption set forth in one or more
PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by
independent qualified professional asset managers), PTE 95-60 (a class exemption for
certain transactions involving insurance company general accounts), PTE 90-1 (a class
exemption for certain transactions involving insurance company pooled separate
accounts), PTE 91-38 (a class exemption for certain transactions involving bank
collective investment funds) or PTE 96-23 (a class exemption for certain transactions
determined by in-house asset managers), is applicable so as to exempt from the
prohibitions of Section 406 of ERISA and Section 4975 of the Code such Lender’s
entrance into, participation in, administration of and performance of this Agreement or
the Advances and commitments hereunder,
(iii)(A) such Lender is an investment fund managed by a “Qualified
Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such
Qualified Professional Asset Manager made the investment decision on behalf of such
Lender to enter into, participate in, administer and perform this Agreement and the
Advances and commitments hereunder, (C) the entrance into, participation in,
| US-DOCS\138548577.7 |
administration of and performance of this Agreement and the Advances and
commitments hereunder satisfytherequirements ofsub-sections(b)through(g)ofPartI
of PTE 84- 14 and (D) to the best knowledge of such Lender, the requirements of
subsection(a)ofPartIofPTE84-14aresatisfiedwithrespecttosuchLender’sentrance
into, participation in, administration of and performance of this Agreement and the
Advances and commitments hereunder, or
(iv)suchotherrepresentation,warrantyandcovenantasmaybeagreed
in writing between the Agent, in its sole discretion, and such Lender.
(b)In addition, unless either (1) sub-clause (i) in the immediately preceding
clause (a) is true with respect to a Lender or (2) a Lender has provided another representation,
warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause
(a),suchLenderfurther(x)representsandwarrants,asofthedatesuchPersonbecameaLender
party hereto, and (y) covenants, from the date such Person became a Lender partyhereto to the
datesuchPersonceasesbeingaLenderpartyhereto,forthebenefitof,theAgentandnot,forthe
avoidance of doubt, to or for the benefit of Borrower, that the Agent is not a fiduciary with
respect to the assets of such Lender involved in such Lender’s entrance into, participation in,
administrationofandperformanceofthisAgreementandtheAdvancesandcommitments
hereunder (including in connection with the reservation or exercise of any rights by the Agent
under this Agreement, anyLoan Document or anydocuments related hereto or thereto).
11.MISCELLANEOUS.
11.1[Reserved].
11.2Consent to Jurisdiction.THE PARTIES AGREE THAT ALL ACTIONS OR
PROCEEDINGS ARISING IN CONNECTION WITH THIS AGREEMENT AND THE
OTHERLOANDOCUMENTSSHALLBETRIEDANDLITIGATEDONLYINTHESTATE
ANDFEDERALCOURTSLOCATEDINTHECOUNTYOFNEWYORK,STATEOFNEW
YORK.BORROWER, THE AGENT AND THE LENDERS WAIVE, TO THE EXTENT
PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT
THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE
EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION
11.2.
11.3GoverningLaw.THEVALIDITYOFTHISAGREEMENTANDTHEOTHER
LOAN DOCUMENTS (UNLESS EXPRESSLY PROVIDED TO THE CONTRARY IN
ANOTHER LOAN DOCUMENT IN RESPECT OF SUCH OTHER LOAN DOCUMENT),
AND THE CONSTRUCTION, INTERPRETATION AND ENFORCEMENT HEREOF AND
THEREOF, AND THE RIGHTS OF THE PARTIES HERETO AND THERETO WITH
RESPECT TO ALLMATTERSARISINGHEREUNDERORTHEREUNDERORRELATED
HERETO OR THERETO, SHALL BE DETERMINED UNDER, GOVERNED BY AND
CONSTRUEDINACCORDANCEWITHTHEINTERNALLAWSOFTHESTATEOFNEW
YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW THAT WOULD
REQUIRE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.
| US-DOCS\138548577.7 |
11.4Interest.Notwithstanding any other provision of this Agreement or any of the
otherLoanDocuments,theaggregateinterestratechargedwithrespecttoanyoftheObligations,
including all charges or fees in connection therewith deemed in the nature of interest under
applicable law, shall not exceed the maximum lawful interest rate, if any, that at any time or
from time to time may be contracted for, charged, or received under the laws applicable to any
Lender.If the rate of interest (determined without regard to the preceding sentence) under this
Agreement at any time exceeds such maximum lawful rate, the outstanding amount of the
Advances madehereundershall bearinterest atsuchmaximumlawfulrate(notwithstandingany
period during which the stated interest rate set forth in this Agreement becomes less than such
maximum lawful rate) until the total amount of interest due hereunder equals the amount of
interest which would have been due hereunder if the stated rates of interest set forth in this
Agreementhadatalltimesbeenineffect.Inaddition,ifwhentheAdvancesmadehereunderare
repaid in full the total interest due hereunder (taking into account the increase provided for
above) is less than the total amount of interest which would have been due hereunder if the
statedrateofinterestsetforthinthisAgreementhadatalltimesbeenineffect,thentotheextent
permittedbylaw,BorrowershallpaytotheAgentanamountequaltothedifferencebetweenthe
amount of interest paid and the amount of interest which would have been paid if the maximum
lawful rate had at all times been in effect.Notwithstanding the foregoing, it is the intention of
the Lenders and Borrower to conform strictlyto anyapplicable usurylaws.Accordingly, if any
Lender contracts for, charges, or receives anyconsideration which constitutes interest in excess
of the maximum lawful rate, then any such excess shall be cancelled automatically and, if
previously paid, shall at such Lender’s option be applied to the outstanding amount of the
Advances made hereunder or be refunded to Borrower.
11.5ClosingCostsandOtherCosts;Indemnification.
(a)BorrowershallpromptlypayorreimbursetheAgentandtheLead
ArrangerArrangersforpaymentofallreasonableanddocumentedout-of-pocketcostsand
expenses, including the fees and expenses of one primary firm of outside counsel, lien search
fees,andrequiredtravelcosts,incurredbytheAgentinconnectionwiththecommitment,
consummationandclosingoftheloanscontemplatedhereby,orinconnectionwiththe
administration of this Agreement or the other Loan Documents (includingthe obtainingof legal
adviceregardingtherightsandresponsibilitiesofthepartieshereto)oranyrefinancingor
restructuringoftheloansorAdvancesprovidedunderthisAgreementortheotherLoan
Documents, or any amendment or modification thereof requested by Borrower (which shall be
limitedtooneprimaryfirmofoutsidecounselforallPersonsentitledtoreimbursementor
indemnification,takenasawhole,and,ifreasonablynecessary,asingleoutsidelocalcounselin
eachappropriatejurisdiction(whichmayincludeasinglespecialcounselinmultiple
jurisdictions)forallPersonsentitledtoreimbursementorindemnificationtakenasawhole(and,
inthecaseofanactualorperceivedconflictofinterest,thesmallestnumberofadditional
counsel for all Persons entitled to reimbursement or indemnification required to prevent such
conflict).Inaddition,Borrowershallpayallreasonableout-of-pocketcostsandexpenses,
including outside attorney fees and expenses, incurred by the Agent-Related Persons and, after
theoccurrenceandduringthecontinuanceofanEventofDefault,bytheLenders,inpreserving,
protecting, exercising or enforcing any of the rights of the Agent or any of the Lenders against
| US-DOCS\138548577.7 |
BorroweroranyotherLoanParty,orotherwiseincurredbytheAgentortheLendersin
connectionwithanyEventofDefaultortheenforcementoftheloansoranyoftheLoan
Documents (whether incurred through negotiations, legal proceedings or otherwise), including
suchchargesinanycourtorbankruptcyproceedingsorarisingoutofanyclaimoractionbyany
Person against the Agent or any Lender which would not have been asserted were it not for the
Agent’s or such Lender’s relationship with Borrower oranyLoanPartyhereunderorotherwise.
AllsuchamountsrequiredtobepaidbyBorrowerhereunderandnotpaidforthwithupon
demandshallbearinterestfromthedateincurredtothedatepaymentisreceivedbytheAgentat
a per annum rate equal to the Default Rate.
(b)Borrower agrees to indemnify and hold harmless the Agent, the Lead
ArrangerArrangersand each of the Lenders (and, in each case, their respective Affiliates), and
theirrespectiveemployees,agents,officers,directors,attorneys-in-factandotherrepresentatives
(each,an“Indemnitee”),fromallloss,cost,damage,liabilityorexpenses,includingreasonable
and documented outside attorneys’ fees and disbursements (which shall be limited to one
primary firm of outside counsel for all Persons entitled to reimbursement or indemnification,
taken as a whole, and if reasonablynecessary, a single outside local counsel in each appropriate
jurisdiction(whichmayincludeasinglespecialcounselinmultiplejurisdictions)forallPersons
entitled to reimbursement or indemnification, taken as a whole (and, in the case of an actual or
perceived conflict of interest, the smallest number of additional counsel for all Persons entitled
toreimbursementorindemnificationrequiredtopreventsuchconflict)),incurredbyan
Indemnitee by reason of the prosecution or defense of any action or proceeding concerning any
matter growing out of or connected with this Agreement or any of the Loan Documents,
excluding, however, anyloss, cost, damage, liabilityor expenses to the extent arisingsolelyas a
resultof(i)thegrossnegligenceorwillfulmisconductoftheIndemniteeseekingindemnification
under this Section11.5(b), (ii) a material breach of this Agreement bythe Indemniteeseekingto
beindemnifiedunderthisSection11.5(b),or(iii)anyproceedingbetweenoramongIndemnitees
that does not involve an actoromissionbyanyoftheLoanParties(otherthanclaimsagainstthe
Agent in its capacity as such or in fulfilling its role as an Agent (but excluding its role as a
Lender)).
(c)Borroweragreestodefend,indemnifyandholdharmlesseachIndemnitee
from and against anyand all claims, demands, penalties, fines, liabilities, settlements, damages,
costs or expenses of whatever kind or nature (including reasonable attorneys and consultants
fees, investigation and laboratory fees, environmental studies required by the Agent or any
Lender in connection with the violation of Hazardous Material Laws), court costs and litigation
expenses, arising out of or related to (i)thepresence, use, disposal, releaseorthreatened release
of anyHazardous Materials on, from or affecting anypremises owned or occupied byanyLoan
Party in violation of or the non-compliance with applicable Hazardous Material Laws, (ii) any
personal injury (including wrongful death) or property damage (real or personal) arising out of
exposure to such Hazardous Materials, (iii) any lawsuit or other proceeding brought or
threatened, settlement reached or governmental order or decree relating to such Hazardous
Materials, and/or (iv) complying or coming into compliance with all Hazardous Material Laws
(including the cost of any remediation or monitoring required in connection therewith) or any
other Requirement of Law; provided, however, that Borrower shall have no obligations under
| US-DOCS\138548577.7 |
this Section11.5(c)with respect to claims, demands, penalties, fines, liabilities, settlements,
damages, costs or expenses to the extent arising out of the gross negligence or willful
misconduct of the Indemnitee.The obligations of Borrower under this Section11.5(c)shall be
inadditiontoanyandallotherobligationsandliabilitiesBorrowermayhavetotheAgentorany
of the Lenders at common law or pursuant to any other agreement.
11.6Notices.
(a)ExceptasexpresslyprovidedotherwiseinthisAgreement(andexceptas
provided in clause (b) below), all notices and other communications provided to any party
heretounderthisAgreementoranyotherLoanDocumentshallbeinwritingandshallbegiven
by personal delivery, by mail, by reputable overnight courier, by facsimile or by electronic
communication (including email) addressed or delivered to it at its address, facsimile number
or e-mail address set forth on Annex IVor at such other address, facsimile number or e-mail
address as may be designated by such party in a notice to the other parties that complies as to
deliverywith the terms of this Section11.6or, except as to payment demands or other notices
to or communications with Borrower (as to which notices will be given byone of the methods
specified above), posted to an E-System set up byor at the direction of the Agent (as set forth
below).Any notice, if personally delivered or if mailed and properly addressed with postage
prepaid and sent byregistered or certified mail, shall be deemed given when received or when
deliveryisrefused;anynotice,ifgiventoareputableovernightcourierandproperlyaddressed,
shall be deemed given two (2) Business Days after the date on which it was sent, unless it is
actually received sooner by the named addressee; and any notice, if transmitted by facsimile,
shall be deemed given when received.The Agent may, but, except as specifically provided
herein, shall not be required to, take any action on the basis of any notice given to it by
telephone, but the giver of anysuch notice shall promptlyconfirm such noticein writingorby
facsimile, and such noticewill not bedeemed to havebeen received until such confirmation is
deemed received in accordance with the provisions of this Sectionset forth above.If such
telephonic notice conflicts with any such confirmation, the terms of such telephonic notice
shall control.Anynoticegiven bytheAgent oranyLendertoBorrowershallbedeemedtobe
a notice to all of the Loan Parties.
(b)Notices and other communications provided to the Agent and theLenders
partyheretounderthisAgreementoranyotherLoanDocumentmaybedeliveredorfurnishedby
electronic communication (including email and Internet or intranet websites) pursuant to
procedures approved by the Agent.Notices and other communications provided to Borrower
under this Agreement or any other Loan Document may be delivered or furnished byelectronic
communication (including email) to the email addresses set forth for Borrower in Annex IV
pursuant to Section11.6(a).The Agent or Borrower may, in its discretion, agree to accept
noticesandothercommunicationstoithereunderbyelectroniccommunications(includingemail
and any E-System) pursuant to procedures approved by it.Unless otherwise agreed to in a
writing by and among the parties to a particular communication, (i) notices and other
communications sent to an email address shall be deemed received upon the sender’s receipt of
an acknowledgment from the intended recipient (such as by the “return receipt requested”
function, return email, or other written acknowledgment) and (ii) notices and other
communications posted to any E-System shall be deemed received upon the deemed receipt by
| US-DOCS\138548577.7 |
the intended recipient at its email address as described in the foregoing clause (i) of notification
that such notice or other communication is available and identifying the website address
therefore.
11.7[Reserved].
11.8SuccessorsandAssigns;Participations;Assignments.
(a)This Agreement shall be binding upon and shall inure to the benefit of
Borrower and the Lenders and their respective successors and assigns.
(b)TheforegoingshallnotauthorizeanyassignmentbyBorrowerofitsrights
ordutieshereunder,and,exceptasotherwiseprovidedherein,nosuchassignmentshallbemade
(or be effective) without the prior written approval of the Lenders.
(c)NoLendermayatanytimeassignorgrantparticipationsinsuchLender’s
rights and obligations hereunder and under the other Loan Documents except by way of (i) an
assignment to any Eligible Assignee in accordance with clause (d) of this Section11.8, (ii) a
participationinaccordancewiththeprovisionsofclause(e)ofthisSection11.8,or(iii)apledge
or assignment of a security interest subject to the restrictions of clause (g) of this Section11.8
(and any other attempted assignment or transfer by any Lender shall be deemed to be null and
void).
(d)Each assignment by a Lender of all or any portion of its rights and
obligations hereunder and under the other Loan Documents, shall be subject to the following
terms and conditions:
(i)each such assignment shall be made on a pro rata basis, and shall
be in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) or such
lesser amount as the Agent shall agree and (y) the entire remaining amount of assigning
Lender’s aggregate interest in the Revolving Credit; provided however that, after giving
effect to such assignment, in no event shall the entire remaining amount (if any) of
assigning Lender’s aggregate interest in the Revolving Credit be less than $5,000,000;
(ii)thepartiestoanyassignmentshallexecuteanddelivertotheAgent
an Assignment Agreement substantially (as determined by the Agent) in the form
attached hereto as ExhibitJ(with appropriate insertions acceptable to the Agent),
together with a processingand recordation fee in the amount, ifany, requiredas set forth
in the Assignment Agreement; and
(iii)the assigning Lender shall deliver to Borrower and the Agent a
completed Qualified Purchaser Certificate executed by the assignee five (5) Business
Days priorto thedateoftheproposed assignment.SolongasnoEventofDefaultunder
Section 8.1(a), (b), (g)or (h)has occurred and is continuing, if Borrower notifies the
Agent in writingat least two (2) Business Days prior to the proposed date of assignment
thatBorroweringoodfaithbelievesthatsuchassigneeisnotaQualifiedPurchaser,then
such Lender may not assign all or any part of such Lender’s rights or obligations
hereunder to such party.
| US-DOCS\138548577.7 |
UntiltheAssignmentAgreementbecomeseffectiveinaccordancewithitstermsandisrecorded
in the Register maintained bythe Agent underclause(h)ofthis Section11.8, and theAgent has
confirmed that the assignment satisfies the requirements of this Section11.8, Borrower and the
Agent shall be entitled to continue to deal solely and directly with the assigning Lender in
connection with the interest so assigned.From and after the effective date of each Assignment
Agreement that satisfies the requirements of this Section11.8, the assignee thereunder shall be
deemed to be a partyto this Agreement, such assignee shall have the rights and obligations of a
Lender under this Agreement and theother Loan Documents (includingtheright to receivefees
payablehereunder in respect of theperiod followingsuch assignment) and theassigningLender
shallrelinquishitsrightsandbereleasedfromitsobligationsunderthisAgreementandtheother
Loan Documents.
Upon request, Borrower shall execute and deliver to the Agent, new Note(s) payable to the
assignee in an amount equal to the amount assigned to the assigning Lender pursuant to such
Assignment Agreement, and with respect to the portion of the Obligations retained by the
assigning Lender, to the extent applicable, new Note(s) payable to the order of the assigning
Lender in an amount equal to the amount retained by such Lender hereunder.The Agent, the
Lenders and Borrower acknowledges and agrees that any such new Note(s) shall be given in
renewalandreplacementoftheNotesissuedtotheassigninglenderpriortosuchassignmentand
shall not effect or constitute a novation or discharge of the Obligations evidenced bysuch prior
Note, and each such new Note maycontain a provision confirming such agreement.
(e)BorrowerandtheAgentacknowledgethateachoftheLendersmayatany
time and from time to time, subject to the terms and conditions hereof, grant participations in
such Lender’s rights and obligations hereunder (on a pro rata basis only) and under the other
Loan Documents to any Person (other than (w) a Person that is not a Qualified Purchaser, (x) a
Disqualified Institution, (y) a natural person or (z) Borrower or any of Borrower’s Affiliates or
Subsidiaries); providedthat any participation permitted hereunder shall comply with all
applicable laws and shall be subject to a participation agreement that incorporates the following
restrictions:
(i)suchLendershallremaintheholderofitsNoteshereunder(ifsuch
Notes are issued), notwithstanding any such participation;
(ii)aparticipantshallnotreassignortransfer,orgrantany
sub-participations in its participation interest hereunder or any part thereof;
(iii)suchLendershallretainthesolerightandresponsibilitytoenforce
the obligations of the Loan Parties relating to the Notes and the other Loan Documents,
including the right to proceed against any Subsidiary Guarantors, or cause the Agent to
doso(subjecttothetermsandconditionshereof),andtherighttoapproveany
amendment,modificationorwaiverofanyprovisionofthisAgreementwithoutthe
consent of the participant (unless such participant is an Affiliate of such Lender), except
forthosemattersrequiringtheconsentofeachoftheLendersoreachoftheaffected
LendersunderSection11.10(b)(i)-(iii)(providedthataparticipantmayexercise
approval rights over such matters only on an indirect basis, acting through such Lender
| US-DOCS\138548577.7 |
and the LoanParties,theAgentandtheotherLendersmaycontinuetodealdirectlywith
suchLenderinconnectionwithsuchLender’srightsanddutieshereunder).
Notwithstanding the foregoing, however, in the case of anyparticipation granted byany
Lender hereunder, the participant shall not have any rights under this Agreement or any
oftheotherLoanDocumentsagainstthe Agent,any otherLenderorany LoanParty;
provided, however that the participant mayhave rights against such Lender in respect of
such participation as may be set forth in the applicable participation agreement and all
amountspayablebytheLoanPartieshereundershallbedeterminedasifsuchLenderhad
notsoldsuchparticipation.Eachsuchparticipantshallbeentitledtothebenefitsof
Article3of this Agreement to the sameextentasifitwereaLenderandhadacquiredits
interestbyassignmentpursuanttoclause(d)ofthisSection11.8,providedthatno
participantshallbeentitledtoreceiveanygreateramountpursuanttosuchtheprovisions
of Article3than the issuing Lender would have been entitled to receive in respect ofthe
amountoftheparticipationtransferredbysuchissuingLendertosuchparticipanthadno
such transfer occurred and each such participant shall also be entitled to the benefits of
Section8.6hereofasthoughitwereaLender,providedthatsuchparticipantagreestobe
subject to Section 9.3as though it were a Lender; and
(iv)eachparticipantshallprovidetherelevanttaxformrequiredunder
Section11.13.
In addition, with respect to any participation, the Lender granting the participation shall deliver
toBorrowerandtheAgentacompletedQualifiedPurchaserCertificateexecutedbytheproposed
participant five (5) Business Days prior to the date of the proposed participation.So long as no
Event of Default has occurred that remains uncured or unwaived, if Borrower notifies the Agent
inwritingatleasttwo(2)BusinessDayspriortotheproposeddateofparticipationthatBorrower
in good faith believes that such proposed participant is not a Qualified Purchaser, then such
Lender may not participate all or any part of such Lender’s rights or obligations hereunder to
such party.
(f)Each Lender that sells a participation shall, acting solely for this purpose
as an agent of Borrower, maintain a register on which it enters the name and address of each
participant and the principal amounts (and stated interest) of each participant’s interest in the
RevolvingCredit or otherObligationsundertheLoanDocuments(the“ParticipantRegister”);
providedthat noLendershall haveanyobligationtodisclosealloranyportionoftheParticipant
Register (including the identity of any participant or any information relating to a participant’s
interest in any commitments, loans or its other obligations under any Loan Document) to any
Person except (i) Borrower or (ii) to the extent that such disclosure is necessaryto establish that
such commitment, loan or other obligation is in registered form under Section5f.103-1(c) ofthe
United States Treasury Regulations.The entries in the Participant Register shall be conclusive
absent manifest error, and such Lender shall treat each Person whose name is recorded in the
Participant Register as the owner of such participation for all purposes of this Agreement
notwithstandinganynoticetothecontrary.Fortheavoidanceofdoubt,theAgent(initscapacity
as Agent) shall have no responsibility for maintaining a Participant Register.
(g)Any Lender may at any time pledge or assign a security interest in all or
any portion of its rights under this Agreement (including its Notes, if any) to secure obligations
| US-DOCS\138548577.7 |
of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve
Bank; provided that no such pledge or assignment shall release such Lender from any of its
obligationshereunderorsubstituteanysuchpledgeorassigneeforsuchLenderasapartyhereto.
(h)Borrower herebydesignatestheAgent,andtheAgentagreestoserve,as
Borrower’s non-fiduciary agent solely for purposes of this Section11.8(h)to maintain at its
principalofficeintheUnitedStatesacopyofeachAssignmentAgreementdeliveredtoitanda
register (the “Register”) for the recordation of the names and addresses of the Lenders, the
Percentages of such Lenders and the principal amount of each type of Advance owing to each
suchLenderfromtimetotime.TheentriesintheRegistershallbeconclusiveevidence,absent
manifest error, and Borrower, the Agent and the LendersmaytreateachPersonwhosenameis
recorded in the Register as the owner of the Advances recorded therein for all purposes of this
Agreement.TheRegistershallbeavailableforinspectionbyBorroweroranyLender(butonly
with respect to any entry relating to such Lender’s Percentages and the principal amounts
owing to such Lender) upon reasonable notice to the Agent and a copy of such information
shall beprovidedtoanysuchpartyontheirpriorwrittenrequest.TheAgentshallgiveprompt
written notice to Borrower of the making of any entry in the Register or any change in such
entry.
(i)Borrower authorizes each Lender to disclose to any prospective assignee
or participant which has satisfied the requirements hereunder, any and all financial information
in such Lender’s possession concerning the Loan Parties which has been delivered to such
Lender pursuant to this Agreement, provided that each such prospective assignee or participant
shall execute a confidentiality agreement consistent with the terms of Section11.11or shall
otherwise agree to be bound by the terms thereof.
(j)Nothing in this Agreement, the Notes or the other Loan Documents,
expressed or implied, is intended to or shall confer on any Person other than the respective
parties hereto and thereto and their successors and assignees and participants permitted
hereunderandthereunderanybenefitoranylegalorequitableright,remedyorotherclaimunder
this Agreement, the Notes or the other Loan Documents.
11.9Counterparts.ThisAgreementmaybeexecutedinseveralcounterparts,andeach
executed copy shall constitute an original instrument, but such counterparts shall together
constitute but one and the same instrument.
11.10AmendmentandWaiver.
(a)Except as otherwise set forth in this Section11.10, no amendment or
waiver of any provision of this Agreement or any other Loan Document, nor consent to any
departurebyanyLoanPartytherefrom,shallinanyeventbeeffectiveunlessthesameshallbein
writingandsignedbytheAgentandtheMajorityLenders(orbytheAgentatthewrittenrequest
of the Majority Lenders) or, if this Agreement expressly so requires with respect to the subject
matter thereof, by all Lenders (and, with respect to any amendments to this Agreement or the
other Loan Documents, by any Loan Party or the Subsidiary Guarantors that are signatories
thereto), and then such waiver or consent shall be effective onlyin the specific instance and for
| US-DOCS\138548577.7 |
the specific purpose for which given.All references in this Agreement to “Lenders” or “the
Lenders” shall refer to all Lenders, unless expressly stated to refer to Majority Lenders (or the
like).
(b)Notwithstandinganything tothecontraryherein:
(i)no amendment, waiver or consent shall extend, or increase the
stated amount of, anyLender’s commitment hereunder without such Lender’s consent;
(ii)no amendment, waiver or consent shall, unless in writing and
signed bytheLenderorLendersholdingObligationsdirectlyaffectedthereby,doanyof
the following:
(A)forgiveorreducetheprincipalof,orintereston,any
outstanding Obligations or any Fees or other amounts payable hereunder;
(B)postpone,extendordelayanydatefixedforanypaymentof
principalof,orintereston,anyoutstandingObligationsoranyFeesorother
amountspayablehereunder(including,fortheavoidanceofdoubt,theprovisions
of Section 2.10(b)); and
(C)change any of the provisions of this Section11.10or the
definitions of “Majority Lenders” or any other provision of any Loan Document
specifying the number or percentage of Lenders required to waive, amend or
modify any rights thereunder or make any determination or grant any consent
thereunder;
(iii)no amendment, waiver or consent shall, unless in writing and
signed by all Lenders, do any of the following:
(A)except as expresslypermitted hereunder or under theother
Loan Documents, release any material guaranty provided by any Person in favor
of the Agent and the Lenders, provided however that the Agent shall be entitled,
without notice to or any further action or consent of the Lenders, to release any
guaranty to the extent expressly permitted in this Agreement or any of the other
Loan Documents (whether in connection with the sale, transfer or other
disposition of the applicable Subsidiary Guarantor or otherwise);
(B)amend, modify or waive any condition precedent to any
Advance set forth Article 4(including, without limitation, the waiver of an
existing Default or Event of Default required to be waived in order for such
Advance to be made); or
(C)modifytheproratasharingprovisionsofSection9.3;
(iv)any amendment, waiver or consent that will (A) reduce the
principal of, or interest on, the Swing Line Note, (B) postpone any date fixed for any
| US-DOCS\138548577.7 |
payment of principal of, or interest on, the Swing Line Note or (C) otherwise affect the
rights and duties of the Swing Line Lender under this Agreement or any other Loan
Document, shall require the written concurrence of the Swing Line Lender; and
(v)any amendment, waiver, or consent that will affect the rights or
duties of the Agent (in its capacity as Agent) under this Agreement or any other Loan
Document, shall require the written concurrence of the Agent.
(c)Notwithstanding anything to the contrary herein, no Defaulting Lender
shall have any right to approve or disapprove of any amendment, consent, waiver or any other
modification to any Loan Document (and all amendments, consents, waivers and other
modifications may be effected without the consent of the Defaulting Lenders) and such
DefaultingLender’sRevolvingCreditCommitmentAmountandRevolvingCreditPercentageof
anyoutstandingAdvancesshallbeexcludedfromthenumeratoranddenominatorinmakingany
determination of the Majority Lenders or any other determination under anyLoan Document of
the number or percentage of Lenders required to waive, amend or modify any rights thereunder
or make any determination or grant any consent thereunder, except that the foregoing shall not
permit,ineachcasewithoutsuchDefaultingLender’sconsent,(i)anincreaseinsuchDefaulting
Lender’s stated commitment amounts, (ii) the waiver, forgiveness or reduction of the principal
amount of any Obligations owing to such Defaulting Lender (unless all other Lenders affected
thereby are treated similarly), (iii) the extension of the final maturitydate(s) of such Defaulting
Lender’s portion of any of the Obligations or the extension of anycommitment to extend credit
of such Defaulting Lender, or (iv) any other modification which requires the consent of all
Lenders or the Lender(s) affected therebywhich affects such DefaultingLender more adversely
than the other affected Lenders generally(other than a modification which results inareduction
of such Defaulting Lender’s Percentage of the Revolving Credit Aggregate Commitment or
repayment of anyamounts owing to such Defaulting Lender on a non-pro-rata basis).
(d)The Agent shall, upon the written request of Borrower, and the Lenders
hereby irrevocably authorize the Agent to, execute and deliver to the Loan Parties such
documents as maybe necessaryto evidence the releaseofanyPerson from its obligations under
the Loan Documents (including the Subsidiary Guaranty) if all of the Equity Interests of such
Person that were held by a Loan Party are sold or otherwise transferred to any transferee other
than Borrower or a Subsidiary of Borrower as part of or in connection with any disposition
(whether by sale, by merger or by any other form of transaction) permitted in accordance with
the terms of this Agreement.
(e)Notwithstanding anything to the contrary herein the Agent may amend,
modify or supplement this Agreement or any of the other Loan Documents (i) without the
consentofBorroweroranyLender,tomakeConformingChangesinaccordancewith
Section2.6)(f)or 3.11, as applicable, (ii) with the consent of Borrower only, to cure any
ambiguity, omission, mistake, defect or inconsistency, (iii) with the consent of Borrower, the
Swing Line Lender and the Extending Lenders only, to give effect to any Extension in
accordancewithSection2.12and(iv)withtheconsentofBorrower,theSwingLineLenderand
the Extending Lenders only, to give effect to any Commitment Increase in accordance with
Section 2.13.
| US-DOCS\138548577.7 |
(f)Notwithstanding the foregoing, no amendment and restatement of this
Agreement which is in all other respects approved by the Lenders in accordance with this
Section11.10shall require the consent or approval of any Lender (i) which immediately after
givingeffect tosuchamendmentandrestatement,shallhavenocommitmentorotherobligation
to maintain or extend credit under this Agreement (as so amended and restated), and (ii) which,
substantially contemporaneously with the effectiveness of such amendment and restatement,
shall have received payment in full of all Obligations (other than amounts in respect of
indemnification, expense reimbursement, yield protection or tax gross-up and other contingent
obligationswithrespecttowhichnoclaimhasbeenmade)owingtosuchLenderundertheLoan
Documents (other than any Obligations owing to such Lender in connection with Lender
Products or under any Hedging Agreement).From and after the effectiveness of any such
amendment and restatement, any such Lender shall be deemed to no longer be a “Lender”
hereunder or a party hereto, except that any such Lender shall retain the benefits of
indemnification provisions hereof which, by the terms hereof would survive the termination of
this Agreement.
(g)[Reserved].
(h)TheAgentandtheLendersherebyirrevocablyagreethatanyPersonshall
be automatically released from its obligations under the Loan Documents (including the
SubsidiaryGuaranty) if all of the EquityInterests of suchPersonthatwereheldbyaLoanParty
are sold or otherwise transferred to any transferee other than Borrower or a Subsidiary of
Borrower as part of or in connection with any disposition (whether by sale, by merger or any
other form of transaction) permitted by this Agreement.
11.11Confidentiality.
(a)Each Lender agrees that it will keep confidential (and direct and cause its
officers, directors, employees, agents, representatives, legal counsel, accountants, auditors and
otherserviceproviders(each,a“Representative”)tokeepconfidential),andnotdisclosewithout
the prior consent of Borrower, any information relating to Borrower or any of its Affiliates
(including its Subsidiaries and the CIM Funds) that it receives from or on behalf of Borrower or
any of Borrower’s Affiliates, together with analyses, compilations, studies or other documents
prepared by such Lender or its Representatives which contain or otherwise reflect such
information or its review of Borrower or otherwise concerning the credit facility evidenced by
the Loan Documents (collectively, the “Information”).
(b)Notwithstanding the provisions of Section11.11(a), the Agent and each
Lender may disclose any such Information to (i) any of the other Lenders, (ii) such of its
RepresentativesasneedtoknowsuchInformationinconnectionwiththepreparation,execution,
delivery, administration, performance, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of this Agreement and the other Loan
Documents, orlegal advicein respect thereof(provided that such Lendershall inform each such
Person of the confidential nature of such Information and direct and cause such Person to treat
the Information confidentially), (iii) any federal, state or foreign government agency in the
exerciseofitsgeneralregulatoryorsupervisoryauthorityovertheAgentoranyLender,whether
as part of any audit or examination or otherwise, without any restriction, (iv) anyPerson and in
| US-DOCS\138548577.7 |
anyproceeding to theextent required byanyRequirement ofLaworbyanysubpoenaorsimilar
legal process or otherwise necessary in the judgment of the Agent or such Lender to protect its
interests in connection with anyclaim or dispute in which it is involved (provided that (A) prior
to such disclosure, if legally permissible, the Agent or such Lender, to the extent permitted by
law, informs Borrower of such request and allows Borrower to contest such production, or seek
an appropriate protective order, other appropriate remedy or reliable assurance that the
Information will be accorded confidential treatment, and (B) in the event that such protective
order, other appropriate remedy or reliable assurance of confidential treatment is not obtained,
theAgentorsuchLendershallfurnishonlythatportionoftheInformationwhichitisadvisedby
its counsel is legally required to be disclosed and shall exercise diligent efforts, at Borrower’s
sole expense, to obtain reasonable assurance that confidential treatment will be accorded to any
Information so released), and (v) to any prospective assignee or participant in accordance with
Section11.8(i)(provided that (A) prior to such disclosure each such prospective assignee or
participant shall execute and deliver to Borrower a confidentiality agreement in favor of
Borrower substantially in the form of this Section11.11and (B) no Information shall be
disclosed to any Person that constitutes a Disqualified Institution at the time of such disclosure
without Borrower’s prior written consent).
(c)The provisions of Section11.11(a)shall not apply to any Information to
the extent that such Information (i) has become generallyavailable to the public other than as a
result of a breach ofthis Section11.11, (ii)has been lawfullyobtained bytheAgent oraLender
on a non-confidential basis from a third party not known to be in breach of a duty (legal,
fiduciary, contractual or otherwise) of confidentialityto Borrower or anyof its Affiliates, (iii) is
orwasavailabletotheAgentoraLenderonanon-confidentialbasisfromsuchasourcepriorto
its disclosure by Borrower or any of its Affiliates, or (iv) is or was developed independently by
the Agent, a Lender or one of their Representatives without use of the Information.
(d)TheAgentandeachLenderagreesthat(i)itshalluse,andshalldirectand
cause its Representatives to use, any Information solely for purposes of the preparation,
execution, delivery, administration, performance, modification, amendment or enforcement
(whetherthroughnegotiations,legalproceedingsasotherwise)ofthisAgreement,theotherLoan
Documents and any Hedging Agreement to which the Agent or any Lender is a party, or legal
advice in respect of its rights and responsibilities hereunder and thereunder or for other valid
internal business purposes (provided that the Information may not be used by any such Person
for the purpose of providing services to a customer other than Borrower or its Affiliates), (ii) it
shallberesponsibleforany breachofthisSection11.11by itsrespectiveRepresentativesand
(iii) moneydamages maynotbeasufficientremedyforbreachofthisSection11.11andthat,in
addition to all other remedies available at law or in equity, Borrower shall be entitled to seek
equitablerelief,includinginjunctionandspecificperformance,withoutproofofactualdamages,
and shall not be required to post bond or other securityas a condition of obtaining such relief.
11.12SubstitutionorRemovalofLenders.
(a)With respect to any Lender (i) whose obligation to make Term SOFR
Advances has been suspended pursuant to Section 3.3or Section 3.4,
(i)thathasdemandedcompensationunderSection3.5,Section3.6or
| US-DOCS\138548577.7 |
Section3.10,
(ii)thathasbecomeaDefaultingLender,or(iv)thathasfailedto
consent to a requested amendment, waiver or modification to any Loan Document as to
whichtheMajorityLendershavealreadyconsented(ineachcase,an“AffectedLender”),
thentheAgentorBorrowermay,atBorrower’ssoleexpense,requiretheAffectedLender
to sell and assign all of its interests, rights and obligations under this Agreement,
including its Revolving Credit Commitment Amount, to one or more assignees (which
maybe one or more of the other Lenders) (such assignee(s) shall be referred to herein as
the“PurchasingLender”or“PurchasingLenders”)withintwo(2)BusinessDaysafter
receiving notice from the Agent or Borrower requiring it to do so, for an aggregate price
equal to the sum of the portion of all Advances made by it, interest and fees accrued for
its account through but excluding the date of such payment, and all other amounts
payable to it hereunder, from the Purchasing Lenders (to the extent of such outstanding
principal and accrued interest and fees) or Borrower (in the case of all other amounts,
including, if demanded by the Affected Lender, the amount of any compensation that is
due to the Affected Lender under Sections3.1, 3.5, 3.6and 3.10to but excluding said
date), payable in cash in immediatelyavailable funds.TheAffectedLender,asassignor,
each such Purchasing Lender, as assignee, Borrower and the Agent shall enter into an
Assignment Agreement pursuant to Section11.8, whereupon each such Purchasing
Lender shall be a Lender party to this Agreement, shall be deemed to be an assignee
hereunder and shall have all the rights and obligations of a Lender with a Revolving
Credit Percentage equal to its ratable share of the then applicable Revolving Credit
Aggregate Commitment of the Affected Lender; provided, however, that if the Affected
LenderdoesnotexecutesuchAssignmentAgreementwithintwo(2)BusinessDaysofits
receipt thereof, the Agent may execute the Assignment Agreement as the Affected
Lender’s attorney-in-fact.Each of the Lenders hereby irrevocably constitutes and
appointstheAgentandanyofficeroragentthereof,withfullpowerofsubstitution,asits
trueandlawfulattorney-in-factwithfullpowerandauthority,inthenameofsuchLender
or initsownname,toexecuteanddelivertheAssignmentAgreementwhilesuchLender
is an Affected Lender hereunder (such power of attorney to be deemed coupled with an
interestandirrevocable). Inconnectionwithanyassignmentpursuanttothis
Section11.12, Borrower or the Purchasing Lender shall pay to the Agent the
administrative fee for processing such assignment referred to in Section 11.8.
(b)IfanyLenderisanAffectedLenderofthetypedescribedinclauses(ii),
(iii) or (iv) of Section11.12(a)(anysuch Lender, a “Non-CompliantLender”), Borrower may,
with the prior written consent of the Agent (not to be unreasonably withheld, delayed or
conditioned),andnotwithstandingSection9.3ofthisAgreementoranyotherprovisionrequiring
pro rata payments to the Lenders, elect to (i) reduce the Revolving Credit Aggregate
Commitment byan amount equal to the Non-Compliant Lender’s Percentage of such Revolving
Credit Aggregate Commitment and (ii) repay such Non-Compliant Lender an amount equal the
principalamountofallAdvancesowingtoit,allinterestandfeesaccruedforitsaccountthrough
but excluding the date of such repayment, and all other amounts payable to it hereunder
(including, if demanded by the Non-Compliant Lender, the amount of any compensation that is
due to such Non-Compliant Lender under Sections3.1, 3.5, 3.6and 3.10to but excluding said
| US-DOCS\138548577.7 |
date), payable in cash in immediately available funds, so long as, after giving effect to the
terminationofsuchRevolvingCreditCommitmentAmountandtherepaymentsdescribedinthis
clause(b),anyFrontingExposureofsuchNon-CompliantLendershallbereallocatedamongthe
LendersthatarenotNon-CompliantLendersinaccordancewiththeirrespectivePercentages,but
only to the extent that the sum of the aggregate principal amount of all Revolving Credit
Advances made by each such Lender, plus such Lender’s Percentage of the aggregate
outstandingprincipal amount of SwingLine Advances prior to givingeffect tosuchreallocation
plus such Lender’s Percentage of the Fronting Exposure to be reallocated does not exceed such
Lender’s Percentage of the Revolving Credit Aggregate Commitment, and with respect to any
portion of the Fronting Exposure that may not be reallocated, Borrower shall deliver to the
Agent, for the benefit of the Swing Line Lender, cash collateral or other security satisfactory to
the Agent with respect any such remaining Fronting Exposure.
11.13WithholdingTaxes.
(a)Any Lender that is entitled to an exemption from or reduction of
withholding Taxes with respect to payments made under any Loan Document shall deliver to
Borrower and the Agent, at the time or times reasonably requested by Borrower or the Agent,
such properly completed and executed documentation reasonably requested by Borrower or the
Agent as will permit such payments to be made without withholding or at a reduced rate of
withholding.In addition, any Lender, if reasonably requested by Borrower or the Agent, shall
deliver such other documentation prescribed by applicable law or reasonably requested by
Borrower or the Agent as will enable Borrower or the Agent to determine whether or not such
Lenderissubjecttobackupwithholdingorinformationreportingrequirements.Notwithstanding
anything to the contrary in the preceding two sentences, the completion, execution and
submissionofsuchdocumentation(otherthansuchdocumentationsetforthin Sections
11.13(a)(i), (ii)and (iv)below) shall not be required if in the Lender’s reasonable judgment such
completion, execution or submission would subject such Lender to any material unreimbursed
cost or expense or would materiallyprejudice the legal or commercial position of such Lender.
Withoutlimitingthegeneralityoftheforegoing,intheeventthatBorrowerisaU.S.
Person,
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(i)anyLender that is a U.S. Person shall deliver to Borrower and the Agent, on or
prior to the date on which such Lender becomes a Lender under this Agreement (and from timetotime
thereafteruponthereasonablerequestofBorroweror the Agent), executed originals of IRS Form W-9
certifying that such Lender is exempt from U.S. federal backup withholding tax;
(ii)any Foreign Lender shall, to the extent it is legally entitled to do so,deliverto
BorrowerandtheAgent(insuchnumberofcopiesasshallberequestedby the recipient), on or prior to
the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the reasonable request of Borrower or the Agent), whichever of the following is
applicable:
(A)in the case of a Foreign Lender claiming the benefits of an income tax
treaty to which the United States is a party (x) with respect to payments of interest under any
Loan Document, executed originals of IRS Form W-8BEN-E establishing an exemption from,
or reduction of, U.S. federal withholdingTaxespursuanttothe“interest”articleofsuchtax
treatyand(y)with respect to any other applicable payments under any Loan Document, IRS
Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding
Taxes pursuant to the “business profits” or “other income” article of such tax treaty;
(B)executedoriginalsofIRSFormW-8ECI;
(C)in the case ofaForeignLenderclaimingthebenefitsofthe exemptionfor
portfoliointerestunderSection881(c)oftheCode,(x)acertificate substantially in the form of
ExhibitK-1to the effect that such Foreign Lender is not a “bank” within the meaning of Section
881(c)(3)(A) of the Code, a “10 percentshareholder”ofaBorrowerwithinthemeaningof
Section881(c)(3)(B)of the Code, or a “controlled foreign corporation” describedinSection
881(c)(3)(C)
oftheCode(a“U.S.TaxComplianceCertificate”)and(y)executedoriginalsof
IRS Form W-8BEN-E; or
(D)to the extent a Foreign Lender is not the beneficial owner,
executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI,
IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the
form of ExhibitK-2or ExhibitK-3, IRS Form W-9, and/or other certification
documentsfromeachbeneficialowner,asapplicable;providedthatiftheForeign
LenderisapartnershipandoneormoredirectorindirectpartnersofsuchForeign
Lender are claiming the portfolio interest exemption, such Foreign Lender may
provideaU.S.TaxComplianceCertificatesubstantiallyintheformof
Exhibit K-4on behalf of each such direct and indirect partner;
(iii)any Foreign Lender shall, to the extent it is legally entitled to do
so,delivertoBorrowerandtheAgent(insuchnumberofcopiesasshallberequestedby
the recipient), on or prior to the date on which such Foreign Lender becomes a Lender
under this Agreement (and from time to time thereafter upon the reasonable request of
Borrower or the Agent), executed originals of any other form prescribed by applicable
| US-DOCS\138548577.7 |
law as a basis for claiming exemption from or a reduction in U.S. federal withholding
Tax, duly completed, together with such supplementary documentation as may be
prescribed by applicable law to permit Borrower or the Agent to determine the
withholding or deduction required to be made; and
(iv)if a payment made to the Agent or a Lender under any Loan
DocumentwouldbesubjecttoU.S.federalwithholdingTaxesimposedbyFATCAifthe
Agent or such Lender were to fail to comply with the applicable reporting requirements
of FATCA (including those contained in Section1471(b) or 1472(b) of the Code, as
applicable),theAgentorsuchLendershalldelivertoBorrowerandtheAgentatthetime
ortimesprescribedbylawandatsuchtimeortimesreasonablyrequestedbyBorroweror
the Agent such documentation prescribed by applicable law (including as prescribed by
Section1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably
requested by Borrower or the Agent as maybe necessaryfor Borrower and the Agent to
comply with their obligations under FATCA and to determine that the Agent or such
Lender has complied with the Agent’s or such Lender’s obligations under FATCA or to
determinetheamounttodeductandwithholdfromsuchpayment.Solelyforpurposesof
this clause (iv), “FATCA” shall include anyamendments made to FATCA after the date
of this Agreement.
(b)EachLenderagreesthatifanyformorcertificationitpreviouslydelivered
expires or becomes obsolete or inaccurate in any respect, it shall update such form or
certification or promptlynotifyBorrower and the Agent in writing of its legal inabilityto do so.
(c)PromptlyuponnoticefromtheAgentofanydeterminationbytheInternal
Revenue Service that any payments previously made to such Lender hereunder were subject to
UnitedStatesincometaxwithholdingwhenmade(orsubjecttowithholdingatahigherratethan
that applied to such payments), such Lender shall pay to the Agent the excess of the aggregate
amount requiredtobewithheldfrom suchpaymentsovertheaggregateamount (ifany)actually
withheld by the Agent or Borrower, provided that, following any such payment, such Lender
shall retain all of its rights and remedies against Borrower with respect thereto.
ForpurposesofthisSection11.13,theterm“applicablelaw”includesFATCA.
11.14WAIVER OF JURY TRIAL.THE LENDERS, THE AGENT AND
BORROWER KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY
RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION
BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY RELATED
INSTRUMENTORAGREEMENTORANY OFTHETRANSACTIONSCONTEMPLATED
BY THIS AGREEMENT OR ANY COURSE OF CONDUCT, DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTION OF ANY OF THEM.NEITHER THE
LENDERS, THE AGENT NOR BORROWER SHALL SEEK TO CONSOLIDATE, BY
COUNTERCLAIM OR OTHERWISE, ANY SUCH ACTION IN WHICH A JURY TRIAL
HASBEENWAIVEDWITHANYOTHERACTIONINWHICHAJURYTRIALCANNOT
BEORHASNOTBEENWAIVED.THESEPROVISIONSSHALLNOTBEDEEMEDTO
HAVE BEEN MODIFIED IN ANY RESPECT OR RELINQUISHED BY THE LENDERS
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AND THE AGENT OR BORROWER EXCEPT BY A WRITTEN INSTRUMENT
EXECUTED BY ALL OF THEM.
11.15USA Patriot Act and Beneficial Ownership Notice.Pursuant to Section326 of
theUSAPatriotActandtheBeneficialOwnershipRegulation,theAgentandtheLendershereby
notify the Loan Parties that if they or any of their Subsidiaries open an account, including any
loan, deposit account, treasurymanagement account, or other extension of credit with the Agent
oranyLender,theAgentortheapplicableLenderwillrequesttheapplicablePerson’sname,tax
identification number, business address and other information necessaryto identifysuch Person
(andmayrequestsuchPerson’sorganizationaldocumentsorotheridentifyingdocuments)tothe
extent necessary for the Agent and the applicable Lender to comply with the USA Patriot Act
and the Beneficial Ownership Regulation.
11.16CompleteAgreement; Conflicts.This Agreement, theNotes (ifissued), theother
Loan Documents and anyRequests for Revolving Credit Advance and Requests for Swing Line
Advance contain the entire agreement of the parties hereto, superseding all prior agreements,
discussions and understandings relatingto the subject matterhereofandthereof, andnoneofthe
parties shall beboundbyanythingnotexpressedinwriting.Intheeventofanyconflictbetween
thetermsofthisAgreementandthetermsofotherLoanDocuments,thetermsofthisAgreement
shall govern.
11.17Severability.IncaseanyoneormoreoftheobligationsoftheLoanPartiesunder
this Agreement, the Notes or any of the other Loan Documents shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining
obligations of the Loan Parties in such jurisdiction shall not in anywaybe affected or impaired
thereby,andtheinvalidity,illegalityorunenforceabilityofanyoneormoreoftheobligationsof
the Loan Parties under this Agreement, the Notes or any of the other Loan Documents in one
jurisdictionshallnotaffectthevalidity,legalityorenforceabilityofsuchobligationsoftheLoan
Parties in any other jurisdiction.
11.18Table of Contents and Headings.The table of contents and the headings of the
various subdivisions hereof are for convenience ofreferenceonlyandshallinnowaymodifyor
affect any of the terms or provisions hereof.
11.19Construction of Certain Provisions.If anyprovision of this Agreement or anyof
the Loan Documents refers to any action to be taken by any Person, or which such Person is
prohibited from taking, such provision shall be applicable whether such action is taken directly
or indirectlybysuch Person, whether or not expresslyspecified in such provision.
11.20IndependenceofCovenants.Eachcovenanthereundershallbegivenindependent
effect (subject to any exceptions stated in such covenant) so that if a particular action or
condition is not permitted byanysuch covenant (takinginto account anysuchstatedexception),
the fact that it would be permitted by an exception to, or would otherwise be within the
limitations of, another covenant shall not avoid the occurrence of a Default or an Event of
Default.
11.21ElectronicTransmissions.
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(a)Each of the Agent, the Lenders, the Loan Parties, and each of their
respective Affiliates is authorized (but not required) to transmit, post or otherwise make or
communicate, in its sole discretion, Electronic Transmissions in connection with any Loan
Document and the transactions contemplated therein.Borrower and each other Loan Party
hereby acknowledges and agrees that the use of Electronic Transmissions is not necessarily
secure and that there are risks associated with such use, including risks of interception,
disclosureandabuse,andeachindicatesitassumesandacceptssuchrisksbyherebyauthorizing
the transmission of Electronic Transmissions.
(b)AllusesofanE-Systemshallbegovernedbyandsubjectto,inadditionto
Section11.6and this Section11.21, separate terms and conditions posted or referenced in such
E-System and related contractual obligations executed by the Agent, the Lenders and the Loan
Parties in connection with the use of such E-System.
(c)All E-Systems andElectronicTransmissions shall beprovided“as is” and
“as available”.None of the Agent or any of its Affiliates, nor Borrower or any of its respective
Affiliates warrants the accuracy, adequacy or completeness of any E-Systems or Electronic
Transmission,andeachdisclaimsallliabilityforerrorsoromissionstherein.Nowarrantyofany
kind is made by the Agent or any of its Affiliates, or by Borrower or any of its respective
Affiliates, in connection with anyE-System or Electronic Transmission, including anywarranty
of merchantability, fitness for a particular purpose, non-infringement of third-party rights or
freedom from viruses or other code defects.The Agent, the Lenders, Borrower and its
Subsidiaries agree that the Agent has no responsibility for maintaining or providing any
equipment, software, services or any testing required in connection with any Electronic
Transmission or otherwise required for any E-System.The Agent and the Lenders agree that
Borrowerhasnoresponsibilityformaintainingorprovidinganyequipment,software,servicesor
any testing required in connection with any Electronic Transmission or otherwise required for
any E-System.
11.22RelianceonandSurvivalofProvisions.Alloftheterms,covenants,agreements,
representations and warranties of the Loan Parties set forth in this Agreement or in any of the
other Loan Documents, or in any certificate, report, financial statement or other document
furnished by or on behalf of any Loan Party in connection with this Agreement or any of the
other Loan Documents, shall be deemed to have been relied upon bythe Agent and the Lenders
notwithstandinganyinvestigationheretoforeorhereaftermadebytheAgentoranyLenderoron
the Agent’s or such Lender’s behalf, and those covenants and agreements of Borrower and the
Lenders, as applicable, set forth in Sections3.10, 10.7,11.5,11.11and11.22(togetherwithany
other indemnities of anyLoan Partyor Lender contained elsewhere in this Agreement or in any
of the other Loan Documents) shall survive the repayment in full of the Obligations and the
termination of this Agreement and the other Loan Documents, including any commitment to
extend credit thereunder.
11.23AcknowledgmentandConsenttoBail-InofAffectedFinancialInstitutions.
NotwithstandinganythingtothecontraryinanyLoanDocumentorinanyotheragreement,
arrangement or understandingamonganysuch parties, eachpartyheretoacknowledgesthat any
liability of any Affected Financial Institution arising under any Loan Document, to the extent
suchliabilityisunsecured,maybesubjecttothewrite-downandconversionpowersofthe
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applicable Resolution Authorityand agrees and consents to, and acknowledges and agrees to be
bound by:
(a)the application of any Write-Down and Conversion Powers by the
applicable Resolution Authority to any such liabilities arising hereunder which may be payable
to it byanypartyhereto that is an Affected Financial Institution; and
(b)theeffectsofanyBail-InActiononanysuchliability,including,if
applicable:
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(i)areductioninfullorinpartorcancellationofanysuchliability;
(ii)aconversionofall,oraportionof,suchliabilityintosharesor
other instruments of ownership in such Affected Financial Institution, its parent
institution, or a bridge institution that may be issued to it or otherwise conferred on it,
and that such shares or other instruments of ownership will be accepted by it in lieu of
any rights with respect to any such liability under this Agreement or any other Loan
Document; or
(iii)the variation of the terms of such liability in connection with the
exercise of the write-down and conversion powers of the applicable Resolution
Authority.
11.24Acknowledgment Regarding Any Supported QFCs.To the extent that the Loan
Documents provide support, through a guarantee or otherwise, for Hedging Agreements or any
other agreement or instrument that is a QFC (such support, “QFC Credit Support” and each
such QFC a “Supported QFC”), the parties acknowledge and agree as follows with respect to
the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit
Insurance Act and Title IIof the Dodd-Frank Wall Street Reform and Consumer Protection Act
(together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”)
inrespectofsuchSupportedQFCandQFCCreditSupport(withtheprovisionsbelowapplicable
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 anyother state of
the United States):
(a)In the event a Covered Entity that is party to a Supported QFC (each, a
“CoveredParty”)becomessubjecttoaproceedingunderaU.S.SpecialResolutionRegime,the
transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest
and obligation in or under such Supported QFC and such QFC Credit Support, and anyrights in
property securing such Supported QFC or such QFC Credit Support) from such Covered Party
will be effective to the same extent as the transfer would be effective under the U.S. Special
Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest,
obligationandrightsinproperty)weregovernedbythelawsoftheUnitedStatesorastateofthe
United States. In the event a Covered Partyor a BHC Act Affiliate of a Covered Partybecomes
subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan
Documents that might otherwise applyto such Supported QFC or anyQFC Credit Support that
may be exercised against such Covered Party are permitted to be exercised to no greater extent
than such Default Rights could be exercised under the U.S. Special Resolution Regime if the
Supported QFC and the Loan Documents were governed by the laws of the United States or a
state of the United States. Without limitation of the foregoing, it is understood and agreed that
rightsandremediesofthepartieswithrespecttoaDefaultingLendershallinnoeventaffectthe
rights of anyCovered Partywith respect to a Supported QFC or anyQFC Credit Support.
(b)AsusedinthisSection11.24,thefollowingtermshavethefollowing
meanings:
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“BHCActAffiliate”ofapartymeansan“affiliate”(assuchtermisdefined
under,andinterpretedinaccordancewith,12U.S.C.1841(k))ofsuchparty.
“CoveredEntity” means anyof the following:
(a)a“coveredentity”asthattermisdefinedin,andinterpretedinaccordance
with, 12 C.F.R. § 252.82(b);
(b)a “covered bank” as that term is defined in, and interpreted in accordance
with, 12 C.F.R. § 47.3(b); or
(c)a “covered FSI” as that term is defined in, and interpreted in accordance
with, 12 C.F.R. § 382.2(b).
“DefaultRight”hasthemeaningassignedtothattermin,andshallbeinterpreted
in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“QFC”hasthemeaningassignedtotheterm“qualifiedfinancialcontract”in,and
shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
Exhibit B
PercentagesandAllocations
Revolving Credit Facility
| LENDERS | REVOLVINGCREDITPERCENTAGE | REVOLVINGCREDITALLOCATIONS | WEIGHTEDPERCENTAGE |
| City National Bank | 50.00000000% | $75,000,000.00 | 50.00000000% |
| Truist Bank | 50.00000000% | $75,000,000.00 | 50.00000000% |
| TOTALS | 100.00000000% | $150,000,000.00 | 100.00000000% |
Exhibit C
SCHEDULE5.5
FINANCIALSTATEMENTS
1.AuditedconsolidatedfinancialstatementsofCIMGroup,LLCforthefiscalyears2019,
2020 and 2021.
2.UnauditedinterimconsolidatedfinancialstatementsofCIMGroupManagement,LLC
for the fiscal quarter ended September 30, 2022.