Second Amended And Restated Credit Agreement

SECOND AMENDED AND RESTATED CREDIT AGREEMENT Dated as of February 9, 2018 Among DITECH HOLDING CORPORATION, as Borrower, THE LENDERS PARTY HERETO and CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH as Administrative Agent and Collateral Agent

Exhibit 10.1

EXECUTION VERSION

 

 

 

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

dated as of February 9, 2018

among

DITECH HOLDING CORPORATION,

as Borrower,

THE LENDERS PARTY HERETO

and

CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH

as Administrative Agent and Collateral Agent

 

 

 

 


TABLE OF CONTENTS

 

         

Page

 

ARTICLE 1

  

DEFINITIONS

     2  

Section 1.01

   Defined Terms      2  

Section 1.02

   Terms Generally      41  

Section 1.03

   Classification of Loans and Borrowings      42  

Section 1.04

   Designated Senior Indebtedness      42  

ARTICLE 2

  

THE CREDITS

     42  

Section 2.01

  

Loans

     42  

Section 2.02

  

[Reserved]

     42  

Section 2.03

  

[Reserved]

     42  

Section 2.04

  

Evidence of Debt; Repayment of Loans

     42  

Section 2.05

  

Fees

     43  

Section 2.06

  

Interest on Loans

     43  

Section 2.07

  

Default Interest

     44  

Section 2.08

  

Alternate Rate of Interest

     44  

Section 2.09

  

[Reserved]

     44  

Section 2.10

  

Conversion and Continuation of Borrowings

     44  

Section 2.11

  

Repayment of Term Borrowings

     46  

Section 2.12

  

Voluntary Prepayment

     46  

Section 2.13

  

Mandatory Prepayments

     47  

Section 2.14

  

Reserve Requirements; Change in Circumstances

     49  

Section 2.15

  

Change in Legality

     50  

Section 2.16

  

Breakage

     50  

Section 2.17

  

Pro Rata Treatment

     51  

Section 2.18

  

Sharing of Setoffs

     51  

Section 2.19

  

Payments

     52  

Section 2.20

  

Taxes

     52  

Section 2.21

  

Assignment of Commitments Under Certain Circumstances; Duty to Mitigate

     55  

Section 2.22

  

[Reserved]

     56  

Section 2.23

  

[Reserved]

     56  

Section 2.24

  

Defaulting Lenders

     56  

Section 2.25

  

Incremental Facilities

     57  

Section 2.26

  

Amend and Extend Transactions

     58  

Section 2.27

  

Credit Agreement Refinancing Facilities

     60  

ARTICLE 3

  

REPRESENTATIONS AND WARRANTIES

     61  

Section 3.01

  

Company Status

     61  

Section 3.02

  

Power and Authority

     61  

Section 3.03

  

No Violation

     61  

Section 3.04

  

Approvals

     62  

 

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Section 3.05

  

Financial Statements; Financial Condition; Undisclosed Liabilities

     62  

Section 3.06

  

Litigation

     63  

Section 3.07

  

True and Complete Disclosure

     63  

Section 3.08

  

Use of Proceeds; Margin Regulations

     63  

Section 3.09

  

Tax Returns and Payments

     63  

Section 3.10

  

Compliance with ERISA

     64  

Section 3.11

  

Security Documents

     64  

Section 3.12

  

Properties

     64  

Section 3.13

  

Capitalization

     65  

Section 3.14

  

Subsidiaries

     65  

Section 3.15

  

Compliance with Statutes, Etc.

     65  

Section 3.16

  

Investment Company Act

     65  

Section 3.17

  

Insurance

     65  

Section 3.18

  

Environmental Matters

     65  

Section 3.19

  

Employment and Labor Relations

     66  

Section 3.20

  

Intellectual Property, Etc.

     66  

Section 3.21

  

Indebtedness

     66  

Section 3.22

  

Anti-Terrorism Law

     67  

Section 3.23

  

[Reserved]

     67  

Section 3.24

  

[Reserved]

     67  

Section 3.25

  

[Reserved]

     67  

Section 3.26

  

Foreign Corrupt Practices Act

     67  

ARTICLE 4

  

CONDITIONS OF LENDING

     68  

Section 4.01

  

Conditions Precedent

     68  

ARTICLE 5

  

AFFIRMATIVE COVENANTS

     71  

Section 5.01

  

Information Covenants

     71  

Section 5.02

  

Books, Records and Inspections

     73  

Section 5.03

  

Maintenance of Property; Insurance

     73  

Section 5.04

  

Existence; Franchises

     74  

Section 5.05

  

Compliance with Statutes, Etc.

     74  

Section 5.06

  

Compliance with Environmental Laws

     75  

Section 5.07

  

ERISA

     75  

Section 5.08

  

End of Fiscal Years; Fiscal Quarters

     76  

Section 5.09

  

[Reserved]

     76  

Section 5.10

  

Payment of Taxes

     76  

Section 5.11

  

Use of Proceeds

     76  

Section 5.12

  

Additional Security; Further Assurances; Etc.

     76  

Section 5.13

  

[Reserved]

     77  

Section 5.14

  

[Reserved]

     77  

Section 5.15

  

[Reserved]

     77  

Section 5.16

  

[Reserved]

     77  

Section 5.17

  

[Reserved]

     77  

Section 5.18

  

Maintenance of Company Separateness

     77  

Section 5.19

  

[Reserved]

     77  

Section 5.20

  

Maintenance of Ratings

     77  

Section 5.21

  

Designation of Subsidiaries

     78  

Section 5.22

  

Post-Closing Items

     78  

 

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ARTICLE 6

  

NEGATIVE COVENANTS

     78  

Section 6.01

  

Liens

     78  

Section 6.02

  

Consolidation, Merger, Sale of Assets, Etc.

     82  

Section 6.03

  

Dividends

     85  

Section 6.04

  

Indebtedness

     86  

Section 6.05

  

Advances, Investments and Loans

     89  

Section 6.06

  

Transactions with Affiliates

     92  

Section 6.07

  

Asset Coverage Ratios

     93  

Section 6.08

  

Interest Expense Coverage Ratio

     93  

Section 6.09

  

First Lien Net Leverage Ratio

     94  

Section 6.10

  

Modifications of Certain Agreements

     94  

Section 6.11

  

Limitation on Certain Restrictions on Subsidiaries

     94  

Section 6.12

  

Limitation on Issuance of Equity Interests

     95  

Section 6.13

  

Business; Etc.

     95  

Section 6.14

  

Limitation on Creation of Subsidiaries

     95  

Section 6.15

  

Prepayments of Other Indebtedness

     96  

ARTICLE 7

  

EVENTS OF DEFAULT

     96  

Section 7.01

  

Events of Default

     96  

ARTICLE 8

  

THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT

     99  

ARTICLE 9

  

MISCELLANEOUS

     102  

Section 9.01

  

Notices; Electronic Communications

     102  

Section 9.02

  

Survival of Agreement

     104  

Section 9.03

  

Binding Effect

     104  

Section 9.04

  

Successors and Assigns

     104  

Section 9.05

  

Expenses; Indemnity

     109  

Section 9.06

  

Right of Setoff

     110  

Section 9.07

  

Applicable Law

     111  

Section 9.08

  

Waivers; Amendment

     111  

Section 9.09

  

Interest Rate Limitation

     112  

Section 9.10

  

Entire Agreement

     113  

Section 9.11

  

WAIVER OF JURY TRIAL

     113  

Section 9.12

  

Severability

     113  

Section 9.13

  

Counterparts

     113  

Section 9.14

  

Headings

     113  

Section 9.15

  

Jurisdiction; Consent to Service of Process

     113  

Section 9.16

  

Confidentiality

     114  

Section 9.17

  

Lender Action

     115  

Section 9.18

  

USA PATRIOT Act Notice

     115  

Section 9.19

  

Amendment and Restatement; No Novation

     115  

Section 9.20

  

Acknowledgement and Consent to Bail-In of EEA Financial Institutions

     115  

SCHEDULE 1.01(a)

  

Lenders and Tranche B Term Loans

  
SCHEDULE 1.01(b)   

Subsidiary Guarantors

  
SCHEDULE 1.01(c)   

Unrestricted Subsidiaries

  
SCHEDULE 3.05   

Financial Statements; Financial Condition; Undisclosed Liabilities

  

 

iii


SCHEDULE 3.06   Litigation
SCHEDULE 3.09   Certain Tax Matters
SCHEDULE 3.11(c)   Mortgage Filing Offices
SCHEDULE 3.12   Real Property
SCHEDULE 3.14   Subsidiaries
SCHEDULE 3.17   Insurance
SCHEDULE 3.21   Existing Indebtedness
SCHEDULE 4.02(a)   List of Counsel
SCHEDULE 5.01   Reporting
SCHEDULE 5.22   Post-Closing Items
SCHEDULE 6.01   Existing Liens
SCHEDULE 6.04   Existing Indebtedness
SCHEDULE 6.05   Existing Investments
SCHEDULE 6.11   Certain Restrictive Agreements
EXHIBIT A   Form of Security Agreement
EXHIBIT B   Form of Pledge Agreement
EXHIBIT C   Form of First Lien/Second Lien Intercreditor Agreement
EXHIBIT D   [Reserved]
EXHIBIT E   Form of Subsidiaries Guaranty
EXHIBIT F   Form of Intercompany Subordination Agreement
EXHIBIT G   Form of Compliance Certificate
EXHIBIT H   Form of Assignment and Acceptance
EXHIBIT I   Form of Intercompany Note
EXHIBIT J   Form of Administrative Questionnaire
EXHIBIT K   Form of Solvency Certificate
EXHIBIT L   Procedures for Dutch Auction

 

iv


SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of February 9, 2018, among DITECH HOLDING CORPORATION (formerly known as Walter Investment Management Corp.), a Maryland corporation (the “Borrower”), the Lenders (such term and each other capitalized term used but not defined in this introductory statement having the meaning given it in ARTICLE I), and CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as administrative agent (in such capacity, including any successor thereto, the “Administrative Agent”) and as collateral agent (in such capacity, including any successor thereto, the “Collateral Agent”) for the Lenders. This Agreement amends and restates the Pre-Petition Credit Agreement (as defined below) in its entirety.

RECITALS

WHEREAS, on November 30, 2017 (the “Petition Date”), the Borrower commenced a voluntary petition for reorganization pursuant to chapter 11 of the Bankruptcy Code with the United States Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”);

WHEREAS, prior to the Petition Date, financing was provided to the Borrower pursuant to that certain Amended and Restated Credit Agreement, dated as of December 19, 2013, as amended by Amendment No. 1 thereto dated as of February 23, 2016, Amendment No. 2 thereto dated as of August 5, 2016 and Amendment No. 3 thereto dated as of July 31, 2017 (and as further amended, restated, amended and restated, supplemented or otherwise modified prior to the Petition Date, the “Pre-Petition Credit Agreement”), by and among the Borrower, the lenders from time to time party thereto (the “Pre-Petition Lenders”), and Credit Suisse AG, Cayman Islands Branch (successor to Credit Suisse AG), as administrative agent and collateral agent, pursuant to which the Pre-Petition Lenders extended credit to the Borrower consisting of (a) Tranche B Term Loans in an original aggregate principal amount of $1,500,000,000 (the “Pre-Petition Term Loans”) and (b) revolving credit commitments in an original aggregate amount of $125,000,000;

WHEREAS, the Pre-Petition Term Loans, together with all accrued and unpaid interest, fees, indemnities, costs and other payment obligations pursuant to the Pre-Petition Credit Agreement that are outstanding immediately prior to the Closing Date (collectively, the “Pre-Petition Term Loan Obligations”), are owing as of the Closing Date;

WHEREAS, on January 18, 2018, the Bankruptcy Court entered the Confirmation Order (as defined herein);

WHEREAS, in connection with the implementation and consummation of the Plan of Reorganization (as defined herein), and subject to the terms and conditions set forth herein, in the other Credit Documents, in the Plan of Reorganization and in the Confirmation Order, the Lenders have agreed to enter into this Agreement, which shall be an amendment and restatement of the Pre-Petition Credit Agreement; and

WHEREAS, upon the effectiveness of the Plan of Reorganization, (a) all Pre-Petition Term Loan Obligations shall continue as Obligations (including accrued and unpaid non-default interest outstanding under the Pre-Petition Credit Agreement) and (b) the Pre-Petition Term Loans shall continue as Tranche B Term Loans hereunder and each initial Lender shall be deemed to have made, in the aggregate, $1,156,500,513.53 of Tranche B Term Loans.

 

1


The Lenders are willing to extend such credit to the Borrower on the terms and subject to the conditions set forth herein. Accordingly, the parties hereto agree as follows:

ARTICLE 1

DEFINITIONS

Section 1.01    Defined Terms. As used in this Agreement, the following terms shall have the following meanings:

ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternate Base Rate.

Acquired Entity” shall have the meaning assigned to such term in Section 6.05(xii).

Additional Credit Extension Amendment” shall mean an amendment to this Agreement (which may, at the option of the Administrative Agent, be in the form of an amendment and restatement of this Agreement) providing for any Incremental L/C Commitments pursuant to Section 2.25, Extended Term Loans and/or Extended L/C Commitments pursuant to Section 2.26 or Refinancing Term Loans pursuant to Section 2.27, which shall be consistent with the applicable provisions of this Agreement and otherwise satisfactory to the parties thereto. Each Additional Credit Extension Amendment shall be executed by the Administrative Agent, the Credit Parties and the other parties specified in the applicable Section of this Agreement (but not any other Lender). Any Additional Credit Extension Amendment may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions in Section 4.01, all to the extent reasonably requested by the Administrative Agent or the other parties to such Additional Credit Extension Amendment.

Additional Lender” shall mean, at any time, any Person that is not an existing Lender and that agrees to provide any portion of any (a) Incremental L/C Commitments in accordance with Section 2.25 or (b) Refinancing Term Loans pursuant to an Additional Credit Extension Amendment in accordance with Section 2.27; provided that such Additional Lender shall be an Eligible Assignee.

Additional Security Documents” shall have the meaning assigned to such term in Section 5.12.

Adjusted Consolidated Net Income” shall mean, for any period, Consolidated Net Income for such period plus (a) the sum (without duplication) of:

(i)    non-cash charges or non-cash losses (including, but not limited to share-based non-cash compensation and non-cash fair value adjustments and non-cash interest expense) which were included in arriving at Consolidated Net Income for such period;

(ii)    servicing income earned during such period for servicing of assets in any Securitization Entity (other than any such income attributable to a Heritage Walter Securitization Trust) to the extent consolidated on the balance sheet and carried at fair value;

(iii)    principal payments received during such period by any Heritage Walter Securitization Trust from borrowers to the extent consolidated on the balance sheet;

(iv)    net cash proceeds received during such period from sales of REO Assets by any Heritage Walter Securitization Trust to the extent consolidated on the balance sheet;

(v)    the amount of all cash received during such period from the initial or tail issuance of reverse mortgage securities (HMBS) less any cash payments made during such period to originate, acquire or fund the related loans and subsequent additions to such loans to the extent not included in Consolidated Net Income for such period; and

 

2


(vi)    any cash received for servicing of reverse mortgages to the extent not included in Consolidated Net Income for such period;

less (b) the sum of:

(i)    non-cash gains and non-cash income, including but not limited to non-cash fair value adjustments, which were included in arriving at Consolidated Net Income for such period;

(ii)    the amount of all cash gains on Asset Sales the Net Sale Proceeds of which were applied as a mandatory repayment of Term Loans pursuant to Section 2.13(c) or reinvested (or to be reinvested) as permitted by such Section 2.13(c) to the extent that such cash gains were included in arriving at Consolidated Net Income for such period; and

(iii)    principal payments during such period on Indebtedness of any Heritage Walter Securitization Trust to the extent consolidated on the balance sheet.

Adjusted LIBO Rate” shall mean, with respect to any Eurodollar Borrowing for any Interest Period, an interest rate per annum equal to the product of (i) the LIBO Rate in effect for such Interest Period and (ii) Statutory Reserves; provided that, in the case of the Tranche B Term Loans, if the Adjusted LIBO Rate as so determined for any Interest Period is less than 1.00% per annum, then Adjusted LIBO Rate with respect to the Tranche B Term Loans for such Interest Period shall be deemed to be 1.00% per annum.

Administrative Agent” shall have the meaning assigned to such term in the introductory statement to this Credit Agreement.

Administrative Questionnaire” shall mean an Administrative Questionnaire substantially in the form of Exhibit J, or such other form as may be supplied from time to time by the Administrative Agent.

Affiliate” shall mean, with respect to any Person, any other Person directly or indirectly controlling (including, but not limited to, all directors and officers of such Person), controlled by, or under direct or indirect common control with, such Person. A Person shall be deemed to control another Person if such Person possesses, directly or indirectly, the power (i) to vote 10% or more of the securities having ordinary voting power for the election of directors (or equivalent governing body) of such Person or (ii) to direct or cause the direction of the management and policies of such other Person, whether through the ownership of voting securities, by contract or otherwise.

Agents” shall have the meaning assigned to such term in Article 8.

Aggregate Incremental Amount” shall mean, at any time, the sum of the aggregate principal amount of Incremental L/C Commitments incurred at or prior to such time.

Agreement” shall mean this Second Amended and Restated Credit Agreement, as modified, supplemented, amended, restated (including any amendment and restatement hereof), extended or renewed from time to time.

 

3


All-in Yield” shall mean, as to any Indebtedness, the effective yield thereon as determined in good faith by the Borrower and the Administrative Agent taking into account the applicable interest rate, margin, original issue discount and upfront fees; provided that original issue discount and upfront fees shall be equated to interest rate assuming a four-year life to maturity (or, if less, the life of such Indebtedness); provided further that any eurodollar rate floor or base rate floor (“new floor”) that is greater than the comparable eurodollar rate floor or base rate floor applicable to the Tranche B Term Loans at such time shall only be taken into account in determining the All-in-Yield with respect to the Tranche B Term Loans to the extent an increase in any interest rate floor applicable to the Tranche B Term Loans to the corresponding new floor would cause an increase in the yield applicable to the Tranche B Term Loans then in effect; provided further that “All-in Yield” shall not include arrangement, commitment, underwriting, amendment, structuring or similar fees paid to any agent, underwriter or arranger or fees that are not paid ratably to the market with respect to such Indebtedness.

Alternate Base Rate” shall mean, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1% and (c) the Adjusted LIBO Rate on such day (or if such day is not a Business Day, the immediately preceding Business Day) for a Eurodollar Borrowing with an Interest Period of one month plus 1.00%. If the Administrative Agent shall have determined (which determination shall be conclusive absent manifest error) that it is unable to ascertain the Federal Funds Effective Rate for any reason, including the inability or failure of the Administrative Agent to obtain sufficient quotations in accordance with the terms of the definition thereof, the Alternate Base Rate shall be determined without regard to clause (b) of the preceding sentence until the circumstances giving rise to such inability no longer exist. Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate shall be effective on the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate, as the case may be.

Amend and Extend Transaction” shall mean an extension of maturity transaction described in and effected pursuant to Section 2.26.

Anti-Terrorism Laws” shall have the meaning assigned to such term in Section 3.22(a).

Applicable Excess Cash Flow Prepayment Percentage” shall mean, at any time, 50%.

Applicable Margin” shall mean (a) with respect to any Eurodollar Loan, 6.00% per annum and (b) with respect to any ABR Loan, 5.00% per annum.

Asset Coverage Ratio A” shall mean, on any date of determination, the ratio of (a) Net Assets A of the Borrower and its Restricted Subsidiaries, as of such date of determination, to (b) all First Lien Indebtedness.

Asset Coverage Ratio B” shall mean, on any date of determination, the ratio of (a) Net Assets B of the Borrower and its Restricted Subsidiaries, as of such date of determination, to (b) all First Lien Indebtedness.

Asset Sale” shall mean any sale, transfer or other disposition (or series of related sales, transfers or other dispositions) (each, a “Disposition”) by the Borrower or any Restricted Subsidiary to any Person other than to the Borrower or a Subsidiary Guarantor of any asset (including, without limitation, any capital stock or other securities of, or Equity Interest in, another Person) not made in the Ordinary Course of Business; provided that no Non-Core Asset Sale or Disposition of Bulk MSR shall constitute an “Asset Sale”; provided further that any such Disposition permitted pursuant to Section 6.02(iv), Section 6.02(xiv) or Section 6.02(xxv), to the extent not constituting a Non-Core Asset Sale or Disposition of Bulk MSR, shall constitute an “Asset Sale”.

 

4


Assignment and Acceptance” shall mean an assignment and acceptance entered into by a Lender and an Eligible Assignee, and accepted by the Administrative Agent, substantially in the form of Exhibit H or such other form as shall be approved by the Administrative Agent.

Authorized Officer” shall mean the chief executive officer, president, any vice-president, chairman, vice chairman, secretary, any assistant secretary, treasurer, any assistant treasurer, chief operating officer or chief financial officer of the Borrower.

Bail-In Action” shall mean the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

Bail-In Legislation” shall mean, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

Balance Sheet Value” shall mean, on any date of determination, with respect to any liability or asset (including Equity Interests of any Person), as of any date of determination, the amount included on the consolidated balance sheet of the Borrower as of the fiscal quarter then last ended related to such liability or asset, calculated in accordance with GAAP.

Bankruptcy Code” shall mean Title 11 of the United States Code entitled “Bankruptcy,” as now or hereafter in effect, or any successor thereto.

Bankruptcy Court” shall have the meaning assigned to such term in the Recitals.

Borrower” shall have the meaning assigned to such term in the introductory statement to this Agreement.

Borrower Materials” shall have the meaning assigned to such term in Section 9.01.

Borrower Notice” shall have the meaning assigned to such term in Section 5.12(c).

Borrowing” shall mean Loans of the same Class and Type made, converted or continued on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect.

Breakage Event” shall have the meaning assigned to such term in Section 2.16.

Bulk MSR” shall mean all MSR, including the related Servicing Advances, other than Flow MSR.

Business Day” shall mean any day other than a Saturday, Sunday or day on which banks in New York City are authorized or required by law to close; provided, however, that when used in connection with a Eurodollar Loan, the term “Business Day” shall also exclude any day on which banks are not open for dealings in Dollar deposits in the London interbank market.

 

5


Calculation Period” shall mean, with respect to any Permitted Acquisition, any Significant Asset Sale or any other event expressly required to be calculated on a Pro Forma Basis pursuant to the terms of this Agreement, the Test Period most recently ended prior to the date of such Permitted Acquisition, Significant Asset Sale or other event for which financial statements have been delivered to the Lenders pursuant to Section 4.01(k) or Section 5.01(b) or (c), as applicable.

Capital Expenditures” shall mean, with respect to any Person, all expenditures (without duplication) by such Person which should be capitalized in accordance with GAAP and, without duplication, the amount of Capitalized Lease Obligations incurred by such Person.

Capitalized Lease Obligations” shall mean, with respect to any Person, all rental obligations of such Person which, under GAAP, are required to be capitalized on the books of such Person, in each case taken at the amount thereof accounted for as indebtedness in accordance with such principles.

Cash Equivalents” shall mean, as to any Person, (i) securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof) having maturities of not more than one year from the date of acquisition, (ii) marketable direct obligations issued by any state of the United States or any political subdivision of any such state or any public instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either S&P or Moody’s, (iii) Dollar denominated time deposits, certificates of deposit and bankers acceptances of any Lender or any commercial bank having, or which is the principal banking subsidiary of a bank holding company having, a combined capital and surplus of at least $1,000,000,000 with maturities of not more than one year from the date of acquisition by such Person, (iv) repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clause (i) above entered into with any bank meeting the qualifications specified in clause (iii) above, (v) commercial paper issued by any Person incorporated in the United States rated at least A-1 or the equivalent thereof by S&P or at least P-1 or the equivalent thereof by Moody’s and in each case maturing not more than one year after the date of acquisition by such Person, and (vi) investments in money market funds substantially all of whose assets are comprised of securities of the types described in clauses (i) through (v) above.

CERCLA” shall mean the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as the same has been amended and may hereafter be amended from time to time, 42 U.S.C. § 9601 et seq.

Change in Adjusted Consolidated Working Capital” shall mean, for a given period, without duplication, the sum of the changes (plus or minus) during such period in: (a) Servicing Advances net of the change in applicable borrowings under Permitted Servicing Advance Facility Indebtedness, (b) finance receivable purchases or repurchases of Residential Mortgage Loans net of collections and liquidation proceeds on purchased receivables or repurchased Residential Mortgage Loans, (c) new loan originations net of proceeds received from the sale of new loans, collections on new loans and the change in related borrowings under Permitted Warehouse Indebtedness, (d) cash and Cash Equivalents required to be maintained (i) at any Restricted Subsidiary pursuant to bona fide legal or regulatory requirements, (ii) by any Non-Recourse Entities related to non-recourse financing or (iii) by the Borrower or any Restricted Subsidiary in the ordinary course of business pursuant to any line of credit permitted to be maintained hereunder, and (e) other assets (excluding cash and Cash Equivalents) and liabilities (excluding the current portion of any Indebtedness under this Agreement and the current portion of any other long term Indebtedness which would otherwise be included therein), to the extent the impact of such changes are reflected in the consolidated statement of cash flows of the Borrower and the Restricted Subsidiaries, excluding for this purpose Securitization Entities (other than Heritage Walter Securitization Trusts) to the extent consolidated.

 

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Change in Law” shall mean (a) the adoption of any law, rule or regulation after the Closing Date, (b) any change in any law, rule or regulation or in the interpretation or application thereof by any Governmental Authority or the NAIC after the Closing Date or (c) compliance by any Lender or any Issuing Bank (or, for purposes of Section 2.14, by any lending office of such Lender or by such Lender’s or any such Issuing Bank’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the Closing Date; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

Change of Control” shall mean (i) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act as in effect on the Closing Date) shall have obtained the power (whether or not exercised) to elect a majority of the board of directors (or equivalent governing body) of the Borrower, (ii) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act as in effect on the Closing Date) is or shall become the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act as in effect on the Closing Date), directly or indirectly, of 35% or more on a fully diluted basis of the voting interests in the Borrower’s Equity Interests, (iii) the board of directors (or equivalent governing body) of the Borrower shall cease to consist of a majority of Continuing Directors or (iv) a “change of control” or similar event howsoever denominated shall occur as provided in any Equity Interests of the Borrower (other than Qualified Equity Interests of the Borrower) or any Indebtedness of the Borrower or any Restricted Subsidiary with an aggregate principal amount of at least $5,000,000 (or the documentation governing the same) and such “change of control” or similar event shall not be waived in writing by the holders of such Equity Interests or Indebtedness; provided (x) for the avoidance of doubt, the acquisition pursuant to the Plan of Reorganization of the Convertible Preferred Stock or common Equity Interests in the Borrower or securities convertible, exchangeable or exercisable for such Equity Interests and agreements and arrangements entered into pursuant to the Plan of Reorganization but not any acquisition or agreement thereafter shall not constitute a “Change of Control”, (y) no Person or Persons shall be considered a “group” for purposes of this definition solely on account of possessing or exercising any right to vote or consent in respect of any matter or to nominate or appoint directors pursuant to the organizational documents of the Borrower or Convertible Preferred Stock (including with respect to the General Optional Conversion Right therein) and (z) all determinations as to the percentage of voting interests in the Borrower’s Equity Interests beneficially owned shall deem the Convertible Preferred Stock to have been converted in full into common Equity Interests for purposes of such determination.

Charges” shall have the meaning assigned to such term in Section 9.09.

Claims” shall have the meaning assigned to such term in the definition of “Environmental Claims”.

Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Tranche B Term Loans, Extended L/C Commitments (of the same Extension Series), Extended Term Loans (of the same Extension Series) or Refinancing Term Loans and, when used in reference to any Commitment, refers to whether such Commitment is an Incremental L/C Commitment or a Refinancing Term Loan Commitment and when used in reference to any Lender, refers to whether such Lender has a Loan or Commitment with respect to the applicable Class.

 

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Closing Date” shall mean the date on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with Section 9.08).

Closing Date Warrants” shall mean the Series A Warrants and the Series B Warrants.

Code” shall mean the Internal Revenue Code of 1986.

Collateral” shall mean all property (whether real or personal) with respect to which any security interests or liens have been granted (or purported to be granted) pursuant to any Security Document, including all Pledge Agreement Collateral, all Security Agreement Collateral and all Mortgaged Properties.

Collateral Agent” shall have the meaning assigned to such term in the introductory statement to this Agreement.

Commitment” shall mean, with respect to any Lender, such Lenders’ Incremental L/C Commitment or Refinancing Term Loan Commitment.

Communications” shall have the meaning assigned to such term in Section 9.01.

Company” shall mean any corporation, limited liability company, partnership or other business entity (or the adjectival form thereof, where appropriate).

Confirmation Order” means an order of the Bankruptcy Court confirming the Plan of Reorganization.

Connection Taxes” shall mean, with respect to the Administrative Agent or any Lender, Taxes imposed as a result of a present or former connection between such Administrative Agent or Lender and the jurisdiction imposing such Tax (other than connections arising solely from such Administrative Agent or Lender having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to, or enforced, any Credit Document, or sold or assigned an interest in any Loan or Credit Document).

Consolidated EBITDA” shall mean, for any period, “Adjusted EBITDA” as disclosed on each filed Form 10-K and Form 10-Q, as applicable, for such period; provided, solely for purposes of calculating the First Lien Net Leverage Ratio, with respect to the fiscal quarter of the Borrower ended December 31, 2017, “Consolidated EBITDA” shall mean “Adjusted EBITDA” as disclosed on the Form 10-K of the Borrower for such period, plus, without duplication, the amount of any Reductions which were included in the calculation of “Adjusted EBITDA” in respect of (i) advance receivables in an amount not to exceed $5,000,000, (ii) property repurchase risk within the default servicing operation in an aggregate amount not to exceed $6,000,000 and (iii) potential losses regarding curtailment items within the reverse mortgage operation in an aggregate amount not to exceed $8,000,000; provided further, the total amount of Reductions added back in reliance on the foregoing clauses (i) through (iii) may not exceed $15,900,000.

Consolidated Indebtedness” shall mean, at any time, the sum of (without duplication) (i) all Indebtedness of the Borrower and the Restricted Subsidiaries (on a consolidated basis) as would be required to be reflected as debt or Capitalized Lease Obligations on a consolidated balance sheet of the Borrower and the Restricted Subsidiaries in accordance with GAAP, (ii) all Indebtedness of the Borrower and the Restricted Subsidiaries of the type described in clause (ii) of the definition of Indebtedness and (iii) all Contingent Obligations of the Borrower and the Restricted Subsidiaries in respect of Indebtedness

 

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of any third Person of the type referred to in preceding clauses (i) and (ii); provided that no determination of “Consolidated Indebtedness” shall include (x) the aggregate amount available to be drawn or paid (i.e., unfunded amounts) under all letters of credit, bankers’ acceptances, bank guaranties, surety and appeal bonds and similar obligations issued for the account of the Borrower or any Restricted Subsidiary (but excluding, for avoidance of doubt, all unpaid drawings or other matured monetary obligations owing in respect of such letters of credit, bankers’ acceptances, bank guaranties, surety and appeal bonds and similar obligations) or (y) Non-Recourse Indebtedness, Permitted Securitization Indebtedness of any Securitization Entity, obligations under Excess Spread Sales or Permitted Funding Indebtedness other than MSR Indebtedness. For the avoidance of doubt, Consolidated Indebtedness shall not include Indebtedness of the Borrower or any Restricted Subsidiary to GNMA trusts.

Consolidated Interest Expense” shall mean, for any period, (i) the total cash consolidated interest expense of the Borrower and the Restricted Subsidiaries (including, without limitation, all commissions and other commitment and banking fees and charges (e.g., fees with respect to letters of credit, Interest Rate Protection Agreements and Other Hedging Agreements, but excluding, to the extent included therein, arrangement, commitment, underwriting, amendment, structuring, original issue discounts or similar fees paid to any agent, underwriter or arranger or fees that are not paid ratably to the market), but excluding, to the extent included therein, cash interest expense attributable to Non-Recourse Indebtedness, Excess Spread Sales, Permitted Securitization Indebtedness and Permitted Funding Indebtedness other than MSR Indebtedness) for such period (calculated without regard to any limitations on payment thereof), plus (ii) without duplication, that portion of Capitalized Lease Obligations of the Borrower and the Restricted Subsidiaries on a consolidated basis representing the interest factor for such period. For purposes of the foregoing, interest expense shall be determined after giving effect to any net payments made or received by the Borrower or any Restricted Subsidiary with respect to Interest Rate Protection Agreements.

Consolidated Net Income” shall mean, for any period, the net income (or loss) of the Borrower and the Restricted Subsidiaries determined on a consolidated basis for such period (taken as a single accounting period) in accordance with GAAP, provided that (A) the following items shall be excluded in computing Consolidated Net Income (without duplication): (i) the net income of any Person (other than Borrower) in which a Person or Persons other than the Borrower and its Wholly-Owned Restricted Subsidiaries has an Equity Interest or Equity Interests, except to the extent of the amount of cash dividends or other cash distributions of net income actually paid to the Borrower or a Wholly-Owned Restricted Subsidiary by such Person during such period, (ii) except for determinations expressly required to be made on a Pro Forma Basis, the net income (or loss) of any Person prior to the date it becomes a Restricted Subsidiary or all or substantially all of the property or the net income related to assets of such Person are acquired by the Borrower or a Restricted Subsidiary and (iii) the net income of any Restricted Subsidiary to the extent that the declaration or payment of cash dividends or similar cash distributions by such Restricted Subsidiary of such net income is not at the time permitted by the operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to such Restricted Subsidiary, and (B) any interest expense on Permitted Servicing Advance Facility Indebtedness and Permitted Warehouse Indebtedness for such period shall reduce Consolidated Net Income for such period to the extent that such amounts did not otherwise reduce Consolidated Net Income for such period.

Consummation of the Plan of Reorganization” shall mean the occurrence of the Plan Effective Date and the substantial consummation of the Plan of Reorganization within the meaning of Section 1101(2) of the Bankruptcy Code.

 

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Contingent Obligation” shall mean, as to any Person, any obligation of such Person as a result of such Person being a general partner of any other Person, unless the underlying obligation is expressly made non-recourse as to such general partner, and any obligation of such Person guaranteeing, having the economic effect of guaranteeing or intended to guarantee any Indebtedness, leases, dividends or other obligations (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (x) for the purchase or payment of any such primary obligation or any property constituting direct or indirect security therefor or (y) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth, solvency or other financial statement condition of the primary obligor, (iii) to purchase or lease property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof; provided, however, that the term Contingent Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business or any customary carve-out matters for which such Person acts as a guarantor, such as fraud, misappropriation, breach of representation and warranty and misapplication, unless and until a claim for payment or performance has been made in respect thereof (which has not been satisfied). The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.

Continuing Directors” shall mean the directors (or equivalent governing body) of the Borrower on the Closing Date (including all directors appointed to the board of directors pursuant to the Plan) and each other director (or equivalent Person) if such director’s (or equivalent Person’s) nomination for election to the board of directors (or equivalent governing body) of the Borrower is recommended by a majority of the then Continuing Directors.

Contract Consideration” shall have the meaning assigned to such term in the definition of “Excess Cash Flow”.

Convertible Preferred Stock” shall mean the Mandatorily Convertible Preferred Stock (as defined in the Plan of Reorganization).

Credit Documents” shall mean this Agreement, the Subsidiaries Guaranty, the Pledge Agreement, the Security Agreement, the Intercompany Subordination Agreement and, after the execution and delivery thereof pursuant to the terms of this Agreement, each Note, each other Security Document and each Additional Credit Extension Amendment.

Credit Enhancement Agreements” shall mean, collectively, any documents, instruments, guarantees or agreements entered into by the Borrower, any Restricted Subsidiary, or any Securitization Entity for the purpose of providing credit support (that is reasonably customary as determined by the Borrower’s senior management), including pursuant to netting or similar arrangements, with respect to any Permitted Funding Indebtedness, Permitted Securitization Indebtedness and/or any related Interest Rate Protection Agreement.

Credit Facilities” shall mean the term loan and, if applicable letter of credit facilities provided for by this Agreement.

Credit Party” shall mean the Borrower and each Subsidiary Guarantor.

 

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Credit Suisse” shall mean Credit Suisse AG, Cayman Islands Branch (successor to Credit Suisse AG).

Debtor Relief Laws” shall mean the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect.

Default” shall mean any event, act or condition which with notice or lapse of time, or both, would constitute an Event of Default.

Defaulting Lender” shall mean, subject to Section 2.24(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder or (ii) pay to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within two Business Days of the date when due, (b) has notified the Borrower or the Administrative Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect, (c) has failed, within three Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law or, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-in Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.24(b)) upon delivery of written notice of such determination to the Borrower and each Lender.

Designated Material Contract” shall mean, as of any date of determination, any commercial contract of the Borrower or its Restricted Subsidiaries that (i) is filed publicly by the Borrower as an exhibit to its then most recently filed 10-K or any 10-Q filed thereafter and prior to such date and (ii) has been identified in writing as such to the Administrative Agent on or prior to the Closing Date (and upon the request of any Lender, the Administrative Agent shall make the list of Designated Material Contracts available to such Lender).

Disposition” shall have the meaning assigned to such term in the definition of “Asset Sale”.

Dividend” shall mean, with respect to any Person, that such Person has, directly or indirectly, declared or paid a dividend, distribution or returned any other amount with respect to any Equity Interests to its stockholders, shareholders, partners or members or authorized or made any other distribution, payment or delivery of property or cash to its stockholders, shareholders, partners or members in their capacity as such, or redeemed, retired, purchased or otherwise acquired or terminated or cancelled, directly or indirectly, for a consideration (whether in cash, securities or other property) any shares of any

 

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class of its capital stock or any other Equity Interests outstanding on or after the Closing Date (or any options or warrants issued by such Person with respect to its capital stock or other Equity Interests), or set aside any funds for any of the foregoing purposes, or shall have permitted any of the Restricted Subsidiaries to purchase or otherwise acquire for a consideration any shares of any class of the capital stock or any other Equity Interests of such Person outstanding on or after the Closing Date (or any options or warrants issued by such Person with respect to its capital stock or other Equity Interests).

Dollars” and the sign “$” shall each mean freely transferable lawful money of the United States.

Domestic Subsidiary” of any Person shall mean any Subsidiary of such Person incorporated or organized in the United States or any State thereof or the District of Columbia.

Dutch Auction” shall mean an auction conducted by the Borrower to purchase Term Loans as contemplated by Section 9.04(l) substantially in accordance with the procedures set forth in Exhibit L.

EEA Financial Institution” shall mean (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

EEA Member Country” shall mean any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

EEA Resolution Authority” shall mean any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

Eligible Assignee” shall mean (i) a Lender, (ii) an Affiliate of a Lender, (iii) a Related Fund of a Lender and (iv) any other Person (other than a natural person) approved by the Administrative Agent; and, unless an Event of Default has occurred and is continuing, the Borrower (each such approval not to be unreasonably withheld or delayed and, in the case of the Borrower, any such approval shall be deemed to have been given if the Borrower has not responded within five Business Days of a request for such approval); provided that notwithstanding the foregoing, “Eligible Assignee” shall not include (x) except as permitted under Section 9.04(l), the Borrower or any of the Borrower’s Affiliates or (y) any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y).

Environmental Claims” shall mean any and all administrative, regulatory or judicial actions, suits, demands, demand letters, orders, claims, liens, notices of noncompliance, violation, or liability investigations or proceedings relating in any way to any Environmental Law or any permit issued, or any approval given, under any such Environmental Law (hereafter, “Claims”), including, without limitation, (a) any and all Claims by Governmental Authorities for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any applicable Environmental Law, and (b) any and all Claims by any third party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief in connection with alleged injury or threat of injury to health, safety or the environment due to the presence of Hazardous Materials.

 

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Environmental Law” shall mean any federal, state, foreign or local statute, law, rule, regulation, ordinance, code and rule of common law now or hereafter in effect and in each case as amended, including any judicial or administrative order, consent decree or judgment, relating to the environment, natural resources, human health and safety or Hazardous Materials, including, without limitation, CERCLA; the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.; the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq.; the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.; the Clean Air Act, 42 U.S.C. § 7401 et seq.; the Safe Drinking Water Act, 42 U.S.C. § 300f et seq.; the Oil Pollution Act of 1990, 33 U.S.C. § 2701 et seq.; the Emergency Planning and the Community Right-to-Know Act of 1986, 42 U.S.C. § 11001 et seq.; the Hazardous Material Transportation Act, 49 U.S.C. § 5101 et seq.; the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq.; and any state and local or foreign counterparts or equivalents, in each case as amended from time to time.

Equity Interests” of any Person shall mean any and all shares, interests, rights to purchase, warrants, options, participation or other equivalents of or interest in (however designated) equity of such Person, including any common stock, preferred stock, any limited or general partnership interest and any limited liability company membership interest; provided that, for the avoidance of doubt and without limitation, “Equity Interests” shall exclude any Indebtedness convertible into or exchangeable for Equity Interests.

ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder. Section references to ERISA are to ERISA, as in effect at the Closing Date and any subsequent provisions of ERISA, amendatory thereof, supplemental thereto or substituted therefor.

ERISA Affiliate” shall mean any trade or business (whether or not incorporated) that, together with Borrower or a Restricted Subsidiary of Borrower is treated as a “single employer” within the meaning of Section 414(b), (c), (m) or (o) of the Code.

ERISA Event” shall mean (a) any Reportable Event, (b) with respect to any Plan or Multiemployer Plan, the failure to satisfy the minimum funding standard (as defined in Section 412 or 430 of the Code or Section 302 of ERISA), whether or not waived, (c) the filing pursuant to Section 412(c) of the Code or Section 402(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan or Multiemployer Plan, (d) the filing of a notice to terminate any Plan if such termination would require material additional contributions in order to be considered a standard termination within the meaning of Section 4041(b) of ERISA, (e) a determination that any Plan is in “at-risk status” or any Multiemployer Plan is in “endangered status” or “critical status” (as each is defined in Section 303 and 305 of ERISA, respectively), (f) the incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan or the withdrawal or partial withdrawal of the Borrower or any of its ERISA Affiliates from any Plan or Multiemployer Plan, (g) proceedings have been instituted to terminate or appoint a trustee to administer any Plan which is subject to Title IV of ERISA, (h) the receipt by the Borrower or any of its ERISA Affiliates of any notice, or the receipt by any Multiemployer Plan from the Borrower or any of its ERISA Affiliates of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA or (i) the occurrence of a non-exempt “prohibited transaction” with respect to which the Borrower or any ERISA Affiliate is a “disqualified person” (each within the meaning of Section 4975 of the Code) that is reasonably likely to result in material liability to the Borrower.

EU Bail-In Legislation Schedule” shall mean the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

 

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Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Adjusted LIBO Rate.

Event of Default” shall have the meaning assigned to such term in Section 7.01.

Evidence of Flood Insurance” shall have the meaning assigned to such term in Section 5.12(c).

Excess Cash Flow” shall mean, for any period, the remainder of (a) the sum of, without duplication, (i) Adjusted Consolidated Net Income for such period and (ii) Change in Adjusted Consolidated Working Capital (if negative) for such period, minus (b) the sum of, without duplication, (i) without duplication of amounts deducted pursuant to clause (v) below, the aggregate amount of all Capital Expenditures made by the Borrower and the Restricted Subsidiaries in cash during such period and the aggregate amount of cash used to consummate Permitted Acquisitions during such period or to acquire MSR during such period (including, for this purpose, the aggregate amount of all principal prepayments and repayments of Permitted MSR Indebtedness during such period the proceeds of which were previously used to purchase MSR) (other than such Capital Expenditures, Permitted Acquisitions and acquisitions of MSR to the extent financed with equity proceeds, Equity Interests, asset sale proceeds (other than from sales of inventory in the ordinary course of business), insurance or condemnation proceeds or Indebtedness or other proceeds that would not be included in Adjusted Consolidated Net Income), (ii) the aggregate amount of permanent principal payments in cash of Indebtedness of the types described in clauses (i), (iii), (iv) and (vii) of the definition of Indebtedness of the Borrower and the Restricted Subsidiaries during such period (other than (1) repayments of Permitted Funding Indebtedness, Non-Recourse Indebtedness and Securitization Indebtedness, (2) repayments of revolving loans unless such repayment is accompanied by a corresponding permanent reduction in commitments in respect thereof, (3) repayments made with the proceeds of asset sales (other than from sales of inventory in the ordinary course of business), sales or issuances of Equity Interests, capital contributions, insurance or condemnation events or Indebtedness or other proceeds that would not be included in Adjusted Consolidated Net Income and (4) payments of Loans and/or other Obligations, provided that repayments of Term Loans shall be deducted in determining Excess Cash Flow to the extent such repayments were required pursuant to Section 2.11(a)), (iii) Change in Adjusted Consolidated Working Capital (if positive) for such period, (iv) the aggregate amount of Investments made in cash in any Permitted Funds during such period (other than such Investments to the extent financed with equity proceeds, Equity Interests, asset sale proceeds (other than from sales of inventory in the ordinary course of business), insurance or condemnation proceeds or Indebtedness or other proceeds that would not be included in Adjusted Consolidated Net Income) and (v) without duplication of amounts deducted from Excess Cash Flow in other periods, the aggregate consideration required to be paid in cash by the Borrower or any of the Restricted Subsidiaries pursuant to binding contracts with an entity that is not an Affiliate (the “Contract Consideration”) entered into during such period relating to Permitted Acquisitions, acquisitions of MSRs or Capital Expenditures to be consummated or made during the period of 120 days following the end of such period, provided that to the extent the aggregate amount of cash actually utilized to finance such Permitted Acquisitions, acquisitions of MSRs or Capital Expenditures during such 120-day period (other than to the extent financed with equity proceeds, Equity Interests, asset sale proceeds (other than from sales of inventory in the ordinary course of business), insurance or condemnation proceeds or Indebtedness or other proceeds that would not be included in Adjusted Consolidated Net Income) is less than the Contract Consideration, the Borrower shall apply such shortfall as a mandatory prepayment of the Loans pursuant to Section 2.13(d) no later than the earliest to occur of the (A) abandonment of such planned expenditure, (B) making of such planned expenditure and (C) last day of such 120-day period.

 

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Excess Cash Flow Payment Date” shall mean the earlier of (a) the date occurring 90 days after the last day of each fiscal year of the Borrower (commencing with the fiscal year of the Borrower ending December 31, 2018) and (b) the third Business Day following the date on which financial statements with respect to such period are delivered pursuant to Section 5.01(c).

Excess Cash Flow Payment Period” shall mean with respect to the repayment required on each Excess Cash Flow Payment Date, the immediately preceding fiscal year of the Borrower.

Excess Spread Sale” shall mean any sale in the ordinary course of business and for Fair Market Value of any excess servicing fee spread under any MSR.

Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

Excluded Collateral” shall have the meaning assigned to such term in the Security Agreement.

Excluded Subsidiary” shall mean each (a) Non-Recourse Entity, (b) Securitization Entity, (c) Restricted Subsidiary that is prohibited by any applicable law from guaranteeing the Obligations or that would require the consent, approval, license or authorization of any Governmental Authority (other than a Government Sponsored Entity) or any Regulatory Supervising Organization to guarantee the Obligations (unless such consent, approval, license or authorization has been received), (d) Unrestricted Subsidiary, (e) Immaterial Subsidiary, (f) REIT Subsidiary, (g) MSR Facility Trust, (h) Foreign Subsidiary, (i) Domestic Subsidiary substantially all of the direct assets of which consist of Equity Interests in one or more Foreign Subsidiaries, (j) Domestic Subsidiary of a Foreign Subsidiary, (k) Subsidiary that is not a Wholly-Owned Subsidiary of the Borrower and (l) special purpose Subsidiary established for the purpose of incurring Permitted Securitization Indebtedness or Permitted Servicing Advance Facility Indebtedness so long as such Subsidiary continues to be utilized solely for such purpose.

Excluded Taxes” shall mean, with respect to the Administrative Agent, any Lender, any Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of the Borrower or any other Credit Party hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by the United States of America, or by the jurisdiction under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, or that are Connection Taxes, (b) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (a) above or in which the Borrower is located, (c) in the case of a Lender (other than an assignee pursuant to a request by the Borrower under Section 2.21(a)), any withholding tax that is imposed on amounts payable to such Lender under applicable law in effect at the time such Lender acquires any interest in a Loan or a Commitment or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of acquisition of such interest in a Loan or Commitment, designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to Section 2.20(a), (d) any Tax attributable to such Lender’s failure to comply with Section 2.20(e) and (e) any Taxes imposed pursuant to FATCA.

Executive Order” shall have the meaning assigned to such term in Section 3.22(a).

Existing Indebtedness” shall have the meaning assigned to such term in Section 3.21.

Extended L/C Commitment” shall mean any Class of Incremental L/C Commitments the maturity of which shall have been extended pursuant to Section 2.26.

Extended Term Loans” shall mean any Class of Term Loans the maturity of which shall have been extended pursuant to Section 2.26.

 

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Extension” shall have the meaning assigned to such term in Section 2.26.

Extension Offer” shall have the meaning assigned to such term in Section 2.26(b).

Extension Series” shall mean all Extended Term Loans and Extended L/C Commitments that are established pursuant to the same Additional Credit Extension Amendment (or any subsequent Additional Credit Extension Amendment to the extent such Additional Credit Extension Amendment expressly provides that the Extended Term Loans or Extended L/C Commitments, as applicable, provided for therein are intended to be a part of any previously established Extension Series) and that provide for the same interest margins, extension fees, if any, and amortization schedule.

Fair Market Value” shall mean, with respect to any asset (including any Equity Interests of any Person), the price at which a willing buyer that is not an Affiliate of the seller, and a willing seller, would reasonably be expected to agree to purchase and sell such asset, as determined in good faith by the Borrower or the Restricted Subsidiary selling such asset.

Fannie Mae” shall mean the Federal National Mortgage Association, in its corporate capacity, and any majority owned and controlled affiliate thereof.

FATCA” shall mean Sections 1471 through 1474 of the Code, as of the Closing Date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code and any intergovernmental agreements implementing the foregoing.

Federal Funds Effective Rate” shall mean, for any day, the rate per annum calculated by the Federal Reserve Bank of New York based on such day’s federal funds transactions by depository institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time), as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that if such day is not a Business Day, the Federal Funds Effective Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day.

Fee Letter” shall mean the Amended and Restated Agent Fee Letter, dated as of the Closing Date, among the Borrower, Credit Suisse Securities (USA) LLC and the Administrative Agent.

Fees” shall have the meaning assigned to such term in Section 2.05(b).

Financial Covenants” shall mean the covenants set forth in Sections 6.07, 6.08 and 6.09.

Financial Covenant Default” shall mean (i) a failure to comply with any of the Financial Covenants or (ii) the taking of any action by the Borrower or any Restricted Subsidiary if such action was prohibited hereunder solely due to the existence of a Financial Covenant Default of the type described in clause (i) of this definition.

FINRA” shall mean the Financial Industry Regulatory Authority, Inc. or any other self-regulatory body which succeeds to the functions of the Financial Industry Regulatory Authority, Inc.

 

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First Lien Indebtedness” shall mean Consolidated Indebtedness of the Borrower and its Restricted Subsidiaries that is secured by a Lien that is pari passu with (or not junior to) the Liens securing the Tranche B Term Loans (and any extension, renewal, replacement or refinancing thereof that is pari passu therewith or any other Indebtedness that is required to be pari passu therewith hereunder).

First Lien Net Leverage Ratio” shall mean, on any date of determination, the ratio of (x) First Lien Indebtedness on such date minus the lesser of (i) the aggregate amount of Unrestricted cash and Cash Equivalents of the Borrower and its Restricted Subsidiaries on such date and (ii) $250,000,000 to (y) Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to such date; provided that, for purposes of any calculation of the First Lien Net Leverage Ratio pursuant to this Agreement, Consolidated EBITDA shall be determined on a Pro Forma Basis in accordance with the definition of “Pro Forma Basis” contained herein.

First Lien/Second Lien Intercreditor Agreement” shall mean the First Lien/Second Lien Intercreditor Agreement substantially in the form of Exhibit C, dated as of the Closing Date, among, inter alios, the Borrower and the other Grantors (as defined therein) party thereto, Wilmington Savings Fund Society, FSB, as Junior Collateral Agent for the Junior Secured Parties referred to therein and the Collateral Agent, as agent for the Senior Secured Parties referred to therein, and each other person from time to time party thereto.

Flood Determination Form” shall have the meaning assigned to such term in Section 5.12(c).

Flood Documents” shall have the meaning assigned to such term in Section 5.12(c).

Flood Laws” shall mean the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973 (where applicable).

Flow MSR” shall mean all MSR that are funded or purchased by the Borrower or its Restricted Subsidiary within the prior 120 days and sold to a counterparty pursuant to a flow purchase agreement in the Ordinary Course of Business.

Foreign Lender” shall mean any Lender that is not a “United States person” within the meaning of Section 7701(a)(30) of the Code.

Foreign Pension Plan” shall mean any plan, fund (including, without limitation, any superannuation fund) or other similar program established or maintained outside the United States by the Borrower or any one or more of the Restricted Subsidiaries primarily for the benefit of employees of the Borrower or such Restricted Subsidiaries residing outside the United States, 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 which plan is not subject to ERISA or the Code.

Foreign Subsidiary” of any Person shall mean any Subsidiary of such Person that is not a Domestic Subsidiary.

GAAP” shall mean generally accepted accounting principles in the United States as in effect from time to time.

GNMA” shall mean the Government National Mortgage Association.

“GNMA Buyout” shall mean reverse loans which have been repurchased out of reverse GNMA securitization pools that are included in “Residential loans” in the balance sheet of the Borrower.

 

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“GNMA Buyout REO” shall mean any GNMA Buyout that is then classified as an REO Asset.

“GNMA Buyout Percentage” shall mean 95.0% for each fiscal quarter during the fiscal years ending 2017, 2018 and 2019, and 92.0% for each fiscal quarter thereafter.

Government Sponsored Entity” shall mean (i) Fannie Mae, the Federal Home Loan Mortgage Corporation and GNMA and (ii) any other entity that is “sponsored”, chartered or controlled by the federal government of the United States.

Governmental Authority” shall mean the government of the United States of America, any other nation or any political subdivision thereof, whether state, provincial or local, and any agency, authority, instrumentality, regulatory body, court, central bank, Government Sponsored Entity or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

Granting Lender” shall have the meaning assigned to such term in Section 9.04(i).

Hazardous Materials” shall mean (a) any petroleum or petroleum products, radioactive materials, asbestos in any form that is or could become friable, lead, mold, urea formaldehyde foam insulation, polychlorinated biphenyls, and radon gas; (b) any chemicals, materials or substances defined as or included in the definition of “hazardous substances,” “hazardous waste,” “hazardous materials,” “extremely hazardous substances,” “restricted hazardous waste,” “toxic substances,” “toxic pollutants,” “contaminants,” or “pollutants,” or words of similar import, under any applicable environmental law; and (c) any other chemical, material or substance, the exposure to, or Release of which is prohibited, limited or regulated by any Governmental Authority.

Heritage Walter Securitization Trust” shall mean any Securitization Entity of the Borrower or the Restricted Subsidiaries and any installment sale contract, chattel paper or loan contract and related promissory note and mortgage and any REO Asset owned by the Borrower or the Restricted Subsidiaries, in each case in existence immediately prior to the acquisition by the Borrower on July 1, 2011 of GTCS Holdings LLC, a Delaware limited liability company.

Immaterial Subsidiary” shall mean, at any date of determination, a Restricted Subsidiary of the Borrower that, together with all other Immaterial Subsidiaries, does not have (i) Consolidated EBITDA (determined on a Pro Forma Basis in accordance with the definition of “Pro Forma Basis” contained herein) for the period of four consecutive fiscal quarters ended on the last day of the most recent fiscal period for which financial statements have been delivered pursuant to Section 5.01 that equal or exceed 5% of the Consolidated EBITDA (determined on a Pro Forma Basis in accordance with the definition of “Pro Forma Basis” contained herein) of the Borrower and its Restricted Subsidiaries for such period, (ii) any material intellectual property or (iii) any material real property. The Borrower shall notify the Administrative Agent quarterly as to all Immaterial Subsidiaries as provided in Section 5.01(f). The Borrower may designate and re-designate a Restricted Subsidiary as an Immaterial Subsidiary at any time, subject to the terms set forth in this definition.

Incremental Issuing Bank” shall mean a Lender with an Incremental L/C Commitment or an outstanding Letter of Credit issued, or L/C Disbursement incurred, pursuant to an Incremental L/C Commitment.

Incremental L/C Commitment” shall mean the commitment of any Incremental Issuing Bank, established pursuant to Section 2.25, to issue Letters of Credit on behalf of the Borrower.

 

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Indebtedness” shall mean, as to any Person, without duplication, (i) all indebtedness of such Person for borrowed money or for the deferred purchase price of property or services and all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (ii) the maximum amount available to be drawn or paid under all letters of credit, bankers’ acceptances, bank guaranties, surety and appeal bonds and similar obligations issued for the account of such Person and all unpaid drawings and unreimbursed payments in respect of such letters of credit, bankers’ acceptances, bank guaranties, surety and appeal bonds and similar obligations, (iii) all indebtedness of the types described in clause (i), (ii), (iv), (v), (vi) or (vii) of this definition secured by any Lien on any property owned by such Person, whether or not such indebtedness has been assumed by such Person (provided that, if the Person has not assumed or otherwise become liable in respect of such indebtedness, such indebtedness shall be deemed to be in an amount equal to the fair market value of the property to which such Lien relates), (iv) all Capitalized Lease Obligations of such Person, (v) all Contingent Obligations of such Person in respect of indebtedness and other obligations described in another clause of this definition, (vi) all obligations under any Interest Rate Protection Agreement, any Other Hedging Agreement or under any similar type of agreement and (vii) all obligations of such Person under conditional sale or other title retention agreements relating to property or assets purchased by such Person. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is directly liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor. Notwithstanding the foregoing, Indebtedness shall not include trade payables, accrued expenses and deferred tax and other credits incurred by any Person in accordance with customary practices and in the ordinary course of business of such Person.

Indemnified Taxes” shall mean Taxes imposed on or with respect to any payment made by any Credit Party under any Credit Document other than Excluded Taxes.

Indemnitee” shall have the meaning assigned to such term in Section 9.05(b).

Information” shall have the meaning assigned to such term in Section 9.16.

Intercompany Debt” shall mean any Indebtedness, payables or other obligations, whether now existing or hereafter incurred, owed by the Borrower or any Restricted Subsidiary to the Borrower or any other Restricted Subsidiary.

Intercompany Loans” shall have the meaning assigned to such term in Section 6.05(viii).

Intercompany Note” shall mean a promissory note evidencing Intercompany Loans, duly executed and delivered substantially in the form of Exhibit I (or such other form as shall be reasonably satisfactory to the Administrative Agent), with blanks completed in conformity herewith.

Intercompany Subordination Agreement” shall mean the Amended and Restated Intercompany Subordination Agreement dated as of the Closing Date among the Borrower and certain subsidiaries of the Borrower and the Collateral Agent, substantially in the form of Exhibit F.

Intercreditor Agreement” shall mean, as the context may require, the First Lien/Second Lien Intercreditor Agreement and/or any Other Intercreditor Agreement.

Interest Expense Coverage Ratio” shall mean, for any period, the ratio of (a) Consolidated EBITDA for such period to (b) Consolidated Interest Expense (reduced, to the extent included in such Consolidated Interest Expense, by the amount of any cash interest income with respect to Unrestricted cash and Cash Equivalents of the Borrower and the Restricted Subsidiaries) for such period, in each case,

 

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of the Borrower and its Restricted Subsidiaries; provided that for purposes of any calculation of the Interest Expense Coverage Ratio, Consolidated EBITDA and Consolidated Interest Expense shall be determined on a Pro Forma Basis in accordance with the requirements of the definition of “Pro Forma Basis” contained herein.

Interest Payment Date” shall mean (a) with respect to any ABR Loan, the last Business Day of each March, June, September and December, and (b) with respect to any Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Eurodollar Borrowing with an Interest Period of more than three months’ duration, each day that would have been an Interest Payment Date had successive Interest Periods of three months’ duration been applicable to such Borrowing.

Interest Period” shall mean, with respect to any Eurodollar Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day (or, if there is no numerically corresponding day, on the last day) in the calendar month that is 1, 2, 3 or 6 months thereafter, as the Borrower may elect; provided, however, that (a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, (b) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period and (c) no Interest Period for any Loan shall extend beyond the maturity date of such Loan. Interest shall accrue from and including the first day of an Interest Period to but excluding the last day of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.

Interest Rate Protection Agreement” shall mean any interest rate swap agreement, interest rate cap agreement, interest collar agreement, interest rate hedging agreement, master securities forward transaction agreement for the forward purchase or sale of obligations issued or guaranteed by the United States government or agencies thereof, including TBA transactions on mortgage-backed securities or specified pool transactions, or any other agreement or arrangement similar to any of the foregoing.

Investments” shall have the meaning assigned to such term in Section 6.05.

Issuing Bank” shall mean a Lender with an L/C Commitment or an outstanding Letter of Credit or L/C Disbursement.

Knowledge of the Borrower”, “Knowledge of the Borrower or any of its Subsidiaries” or “Knowledge of the Borrower or each Credit Party” shall mean the actual knowledge of any of the chief executive officer, president, any vice-president, secretary, any assistant secretary, treasurer, chief operating officer, chief financial officer, chief strategic officer, general counsel, any assistant general counsel, chief information officer or chief human resources officer, or any other Person performing functions that would customarily be performed by a person holding any of the foregoing positions, in each case of the Borrower.

Latest Maturity Date” shall mean, at any date of determination, the latest maturity or expiration date applicable to any Loan or Commitment (or, if so specified, applicable to the specified Loans or Commitments or Class thereof) hereunder at such time, including the latest maturity or expiration date of any Incremental L/C Commitment, Extended Term Loan, Extended L/C Commitment or any Refinancing Term Loan, as applicable.

 

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L/C Cap” shall mean at any time an amount equal to $30,000,000, minus (x) the aggregate face amount of all letters of credit outstanding at such time in reliance on Section 2.25 and/or Section 6.04(xx) and (y) the amount of cash, Cash Equivalents and cash and Cash Equivalents in accounts at such time subject to Liens permitted in reliance on the L/C Cap pursuant to Section 6.01(xxx).

L/C Commitments” shall mean Incremental L/C Commitments and Extended L/C Commitments.

L/C Disbursement” shall mean a payment or disbursement made by any Issuing Bank pursuant to a Letter of Credit issued by such Issuing Bank.

L/C Exposure” shall mean at any time the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time and (b) the aggregate amount of all L/C Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

Leaseholds” of any Person shall mean all the right, title and interest of such Person as lessee or licensee in, to and under leases or licenses of land, improvements and/or fixtures.

Legacy Business” shall mean businesses related to non-Government Sponsored Entity or non-Ginnie Mae mortgage loans or MSR (other than the RMS Business).

Lenders” shall mean (a) the Persons listed on Schedule 1.01(a) and (b) any Person that has become a party hereto pursuant to an Additional Credit Extension Amendment or Assignment and Acceptance, other than any such Person that has ceased to be a party hereto pursuant to an Assignment and Acceptance.

Letter of Credit” shall mean any letter of credit issued by one or more Lenders to the Borrower pursuant to their Incremental L/C Commitments.

LIBO Rate” shall mean, the Published LIBO Rate, as adjusted to reflect applicable reserves prescribed by governmental authorities.

Lien” shall mean any mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement, encumbrance, charge, lien (statutory or other), preference, priority or other security agreement of any kind or nature whatsoever (including, without limitation, the interest of a vendor or a lessor under any capital lease, conditional sale agreement or other title retention agreement or any financing lease having substantially the same economic effect as any of the foregoing), in each case, in the nature of security.

Loans” shall mean any Tranche B Term Loan, Extended Term Loan or Refinancing Term Loan made by any Lender hereunder.

Margin Stock” shall have the meaning assigned to such term in Regulation U.

Material Adverse Effect” shall mean a material adverse effect (except for the implementation and consummation of the Plan of Reorganization and the transactions contemplated thereby and the effects that may customarily result, directly or indirectly, therefrom) on (i) the business, operations, property, assets or financial condition of the Borrower and its Restricted Subsidiaries taken as a whole,

 

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(ii) the rights or remedies of or benefits available to the Lenders, the Administrative Agent or the Collateral Agent hereunder or under any other material Credit Document or (iii) the ability of the Borrower or the other Credit Parties, taken as a whole, to perform its or their obligations to the Lenders, the Administrative Agent or the Collateral Agent hereunder or under any other material Credit Document.

Maturity Date” shall mean the Tranche B Term Loan Maturity Date (in the case of Tranche B Term Loans), any maturity date related to any tranche of L/C Commitments, any maturity date related to any tranche of Refinancing Term Loans or any maturity date related to any Extension Series of Extended Term Loans, in each case, as such date may be extended pursuant to Section 2.26.

Maximum Rate” shall have the meaning assigned to such term in Section 9.09.

Moody’s” shall mean Moody’s Investors Service, Inc., or any successor thereto.

Mortgage” shall mean a mortgage, deed of trust, deed to secure debt or similar security instrument made by any Credit Party in favor of, or for the benefit of, the Collateral Agent for the benefit of the Secured Creditors in such form or forms as are reasonably satisfactory to the Collateral Agent.

Mortgage Policy” shall mean a lender’s title insurance policy (Form 2006).

Mortgaged Property” shall mean any Real Property owned by the Borrower or any Restricted Subsidiary which is encumbered (or required to be encumbered) by a Mortgage pursuant to the terms hereof.

MSR” of any Person shall mean any and all of the following: (a) all rights of such Person to service Residential Mortgage Loans, (b) all rights of such Person as “Servicer” (or similar designation) in such Person’s capacity as servicing rights owner with respect to such Residential Mortgage Loans under the related Servicing Agreement, including, without limitation (but subject to the restrictions set forth therein) directing who may service such Residential Mortgage Loans, (c) any and all rights of such Person to servicing fees and other compensation for servicing such Residential Mortgage Loans, (d) any late fees, penalties or similar payments with respect to such Residential Mortgage Loans, (e) all accounts and rights to payment related to any of the property described in this definition and (f) the right to possess and use any and all servicing files, servicing records, data tapes, computer records, or other information pertaining to such Residential Mortgage Loans to the extent relating to the past, present or prospective servicing of such Residential Mortgage Loans.

MSR Acknowledgement Agreement” shall mean an Acknowledgement Agreement, in a form reasonably satisfactory to the Collateral Agent, among the Collateral Agent, the respective owner of the Residential Mortgage Loans to which the applicable MSR relate and the applicable Credit Party pursuant to which the Collateral Agent acknowledges and agrees that its security interest in the MSR described in such Acknowledgement Agreement is subject and subordinate to all rights, powers and prerogatives of such owner on the terms (and subject to the conditions) set forth in such Acknowledgement Agreement.

MSR Call Option” shall mean the right of an MSR Lender which is a Government Sponsored Entity to repurchase MSR from the Borrower or any Restricted Subsidiary the purchase of which was initially financed by such MSR Lender with proceeds of Permitted MSR Indebtedness so long as the purchase price in respect thereof is at Fair Market Value and for cash.

MSR Facility” shall mean any financing arrangement of any kind, including, but not limited to, financing arrangements in the form of repurchase facilities, loan agreements, note issuance facilities and commercial paper facilities, with a financial institution or other lender (including, without limitation,

 

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Fannie Mae or any other Government Sponsored Entity) or purchaser, in each case, exclusively to finance or refinance the purchase or origination by the Borrower or a Restricted Subsidiary of MSRs originated or purchased by the Borrower or any Restricted Subsidiary.

MSR Facility Trust” shall mean any Person (whether or not a Restricted Subsidiary of the Borrower) established for the purpose of issuing notes or other securities in connection with an MSR Facility, which (i) notes and securities are backed by specified MSRs originated or purchased by, and/or contributed to, such Person from the Borrower or any Restricted Subsidiary or (ii) notes and securities are backed by specified MSRs purchased by, and/or contributed to, such Person from the Borrower or any Restricted Subsidiary.

MSR Indebtedness” shall mean Indebtedness in connection with an MSR Facility; the amount of any particular MSR Indebtedness as of any date of determination shall be calculated in accordance with GAAP.

MSR Lender” shall mean a third party financing source (including, without limitation, Fannie Mae) which provides financing to the Borrower or a Restricted Subsidiary the proceeds of which are used exclusively to purchase MSR relating to Residential Mortgage Loans.

Multiemployer Plan” shall mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate currently makes or is obligated to make contributions or to which the Borrower or any ERISA Affiliate has made or was obligated, within the preceding six years, to make contributions.

NAIC” shall mean the National Association of Insurance Commissioners.

Net Assets A” shall mean, on any date of determination, the sum of, without duplication:

(a)    the Balance Sheet Value of “Cash and cash equivalents”;

(b)    the Balance Sheet Value of “Servicing rights, net” minus the Balance Sheet Value of “Servicing rights related liabilities”;

(c)    the Balance Sheet Value of “Servicer and protective advances, net” minus the Balance Sheet Value of “Servicing advance liabilities”;

(d)    the sum of (i) the sum of (y) the Balance Sheet Value of “Residential loans” and (z) the Balance Sheet Value of GNMA Buyout REO minus (ii) the sum of (w) the aggregate principal amount of Warehouse Indebtedness with respect to which the assets described in clause (d)(i) are subject, (x) the Balance Sheet Value of the residential loans held in Residual Trusts and Non-Residual Trusts, (y) the Balance Sheet Value of reverse loans which are in reverse GNMA securitization pools and (z) the Balance Sheet Value of residential loans which are in GNMA securitization pools that are eligible for early buy-out;

(e)    the Balance Sheet Value of total assets less total liabilities of the Residual Trusts;

(f)    the Balance Sheet Value of “Premises and equipment, net”;

(g)    the Balance Sheet Value of “Receivables, net” minus the Balance Sheet Value of “Receivables, net” related to the Non-Residual Trusts; and

 

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(h)    the sum of (i) the Balance Sheet Value of “Other assets, net” minus (ii) the sum of (y) the Balance Sheet Value of “Other assets” related to the Residual Trusts and Non-Residual Trusts and (z) the Balance Sheet Value of REO assets which are in reverse GNMA securitization pools and any GNMA Buyout REOs included in “Net Assets A” pursuant to clause (d) above;

provided, that “Net Assets A” shall include any exchange, substitution, replacement or recategorization of the foregoing to the extent such asset would have been included in “Net Assets A” prior to such exchange, substitution, replacement or recategorization.

“Net Assets B” shall mean, on any date of determination, the sum of, without duplication;

(a)    the lesser of (i) the Balance Sheet Value of “Cash and cash equivalents” and (ii) $250,000,000;

(b)    the Balance Sheet Value of “Servicing rights, net” minus the Balance Sheet Value of “Servicing rights related liabilities”;

(c)    (if positive) (i) the then-applicable Servicer and Protective Advance Percentage multiplied by the Balance Sheet Value of “Servicer and protective advances, net” minus (ii) the Balance Sheet Value of “Servicing advance liabilities”;

(d)    (if positive) the sum of (i) 90% of (v) the Balance Sheet Value of “Residential loans” minus (w) the Balance Sheet Value of the residential loans held in Residual Trusts and Non-Residual Trusts, minus (x) the Balance Sheet Value of reverse loans which are in reverse GNMA securitization pools, minus (y) the Balance Sheet Value of residential loans which are in GNMA securitization pools that are eligible for early buy-out and minus (z) the Balance Sheet Value of GNMA Buyouts and (ii) the then-applicable GNMA Buyout Percentage multiplied by the sum of (x) GNMA Buyouts and (y) the Balance Sheet Value of GNMA Buyout REO, minus (iii) the aggregate principal amount of Warehouse Indebtedness to which the assets described in clause (d)(i)(v) and (d)(ii) are subject;

(e)    75% of the sum of (i) the Balance Sheet Value of “total assets” minus (ii) the Balance Sheet Value of “total liabilities”, in each case, of the Residual Trusts;

(f)    50% of MSR Holdback Receivables; and

(g)    75% of Servicing Fee Receivables;

provided that the foregoing clause (d) shall not exceed 15% of the aggregate amount constituting Net Assets B; provided further that the sum of the foregoing clauses (d), (e) and (g) shall not exceed 20% of the aggregate amount constituting Net Assets B; provided further, that “Net Assets B” shall include any exchange, substitution, replacement or recategorization of the foregoing to the extent (i) such asset would have been included in “Net Assets B” prior to such exchange, substitution, replacement or recategorization and (ii) any advance rate or other deduction applicable to any such asset pursuant to the foregoing prior to such exchange, substitution, replacement or recategorization shall continue to apply to any such asset after such exchange, substitution, replacement or recategorization.

Net Cash Proceeds” shall mean, for any event requiring a repayment of Term Loans pursuant to Section 2.13(b) or (e), as the case may be, the gross cash proceeds (including any cash received by way of deferred payment pursuant to a promissory note, receivable or otherwise, but only as and when received) received from such event, net of reasonable transaction costs (including, as applicable, any underwriting, brokerage or other customary commissions and reasonable legal, advisory and other fees and expenses

 

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associated therewith) received from any such event and, in the case of a Recovery Event, net of the amount of such gross cash proceeds required to be used to permanently repay any Indebtedness (other than Indebtedness secured by the Security Documents, Permitted External Refinancing Debt and any Permitted Refinancing thereof) which is secured by the respective property or assets destroyed, damaged, taken or otherwise underlying such Recovery Event.

Net Sale Proceeds” shall mean for any sale or other disposition of assets, the gross cash proceeds (including any cash received by way of deferred payment pursuant to a promissory note, receivable or otherwise, but only as and when received) received from such sale or other disposition of assets, net of (i) reasonable transaction costs (including, without limitation, any underwriting, brokerage or other customary selling commissions, reasonable legal, advisory and other fees and expenses (including title and recording expenses), associated therewith and sales, VAT and transfer taxes arising therefrom), (ii) payments of unassumed liabilities relating to the assets sold or otherwise disposed of, to the extent that such payment of unassumed liabilities is required by law, rule, regulation or contract and is actually paid at the time of, or within 90 days after, the date of such sale or other disposition, (iii) the amount of such gross cash proceeds required to be used to permanently repay any Indebtedness (other than Indebtedness secured by the Security Documents, Permitted External Refinancing Debt and any Permitted Refinancing thereof) which is secured by the respective assets which were sold or otherwise disposed of, (iv) the estimated net marginal increase in income taxes which will be payable by the Borrower’s consolidated group or any Restricted Subsidiary with respect to the fiscal year of the Borrower in which the sale or other disposition occurs as a result of such sale or other disposition (the “Net Tax Amount”), provided that, after filing the Borrower’s tax return for the applicable year, the Borrower shall promptly determine in good faith whether such estimated Net Tax Amount exceeds the actual Net Tax Amount reflected on Borrower’s tax return for the applicable year (as originally filed and without regard to any subsequent amendments to such tax return), and any such difference between the estimated Net Tax Amount and actual Net Tax Amount shall be treated as additional gross cash proceeds and (v) with respect to any Disposition of MSR for which “subservicer” rights are retained, Servicing Advances receivables with respect to such Servicing Advances required to be made as subservicer under the related subservicing agreement as estimated by the Borrower acting in good faith; provided, further, however, that such gross proceeds shall not include any portion of such gross cash proceeds which the Borrower determines in good faith should be reserved for post-closing adjustments (to the extent the Borrower delivers to the Administrative Agent a certificate signed by an Authorized Officer of the Borrower as to such determination), it being understood and agreed that on the day that all such post-closing adjustments have been determined (which shall not be later than 12 months following the date of the respective asset sale), the amount (if any) by which the reserved amount in respect of such sale or disposition exceeds the actual post-closing adjustments payable by the Borrower or any Restricted Subsidiary shall constitute Net Sale Proceeds on such date received by the Borrower and/or any Restricted Subsidiary from such sale or other disposition.

Net Tax Amount” shall have the meaning assigned to such term in the definition of “Net Sale Proceeds”.

NFIP” shall have the meaning assigned to such term in Section 5.12(c).

Non-Core Asset Sales” shall mean any sale of (a) the RMS Business, (b) Legacy Businesses, with Net Sale Proceeds in the aggregate in excess of $10,000,000 for the term of this Agreement; provided that sales for less than zero shall be treated as zero for purposes of such threshold, (c) the equity interests of any Subsidiary that is not a Subsidiary Guarantor and (d) Residual Interests.

Non-Defaulting Lender” shall mean, at any time, each Lender that is not a Defaulting Lender at such time.

 

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Non-Recourse Entities” shall mean, collectively, each Non-Recourse Servicer Advance Debt Entity, each Non-Recourse Warehouse Debt Entity and each Securitization Entity.

Non-Recourse Indebtedness” shall mean, with respect to any specified Person or any of its Subsidiaries, Indebtedness that is specifically advanced to finance the acquisition of investment assets and secured only by the assets to which such Indebtedness relates without recourse to such Person or any of its Subsidiaries (other than subject to such customary carve-out matters for which such Person or its Subsidiaries acts as a guarantor in connection with such Indebtedness, such as fraud, misappropriation, breach of representation and warranty and misapplication, unless, until and for so long as a claim for payment or performance has been made thereunder against such Person (which has not been satisfied) at which time the obligations with respect to any such customary carve-out shall not be considered Non-Recourse Indebtedness, to the extent that such claim is a liability of such Person for GAAP purposes).

Non-Recourse Servicer Advance Debt Entity” shall mean any special purpose bankruptcy remote Restricted Subsidiary of the Borrower that is exclusively engaged in making Servicing Advances and/or the transactions contemplated in the incurrence of Permitted Servicing Advance Facility Indebtedness that constitutes Non-Recourse Indebtedness in connection therewith and activities relating directly thereto.

Non-Recourse Warehouse Debt Entity” shall mean any special purpose bankruptcy remote Restricted Subsidiary of the Borrower that is exclusively engaged in the origination of residential mortgage loans and the incurrence of Permitted Warehouse Indebtedness that constitutes Non-Recourse Indebtedness in connection therewith and activities relating directly thereto.

Non-Residual Trust” shall mean any variable interest entity identified as a “Non-Residual Trust” in the most recently filed Form 10-K or Form 10-Q of the Borrower, as applicable.

Non-Wholly Owned Subsidiary” shall mean, as to any Person, each Subsidiary of such Person which is not a Wholly-Owned Subsidiary of such Person.

Notes” shall mean any promissory notes issued from time to time pursuant to Section 2.04(e).

Obligations” shall mean all amounts owing to the Administrative Agent, the Collateral Agent, any Issuing Bank or any Lender pursuant to the terms of this Agreement or any other Credit Document, including, without limitation, all amounts in respect of any principal, premium, interest (including any interest accruing after the commencement of any bankruptcy, insolvency, receivership or similar proceeding (or which would accrue but for the operation of applicable bankruptcy or insolvency laws) at the rate provided for herein, whether or not such interest is an allowed or allowable claim in any such proceeding), penalties, fees, expenses, indemnifications, reimbursements (including L/C Disbursements with respect to Letters of Credit), damages and other liabilities, and guarantees of the foregoing amounts.

OFAC” shall have the meaning assigned to such term in Section 3.22(a).

Ordinary Course of Business” shall mean the ordinary course of business (i) as conducted by similarly situated residential loan and mortgage finance businesses in good faith in a manner consistent with customary market practice for the industries in which the Borrower and its Subsidiaries operate or (ii) as conducted by the Borrower and its Subsidiaries in good faith and consistent with past practice with respect to the scope of its normal business operations; provided that (x) with respect to Residential Mortgage Loans, in order for a Disposition thereof to have been made in the “Ordinary Course of Business”, at the time of such Disposition, (I) the Borrower and its Restricted Subsidiaries shall not have exited or taken a substantial step toward exiting the business or a significant part of the business of the

 

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origination of Residential Mortgage Loans and (II) such Disposition is consistent with the past practices of the Borrower and its Restricted Subsidiaries in terms of transaction size, type and structure. and (y) with respect to Ginnie Mae buyout loans, in order for a Disposition thereof to have been made in the “Ordinary Course of Business,” the Borrower and its Restricted Subsidiaries shall reinvest the Net Sale Proceeds thereof in Ginnie Mae buyout loans within six months of the consummation of such Disposition.

Other Hedging Agreements” shall mean any foreign exchange contracts, currency swap agreements, commodity agreements or other similar arrangements, or arrangements designed to protect against fluctuations in currency values or commodity prices.

Other Intercreditor Agreement” shall mean any intercreditor or subordination agreement or arrangement (which may take the form of a “waterfall” or similar provision), as applicable, the terms of which are reasonably acceptable to the Borrower and the Administrative Agent.

Other Taxes” shall mean any and all present or future stamp or documentary taxes, mortgage recording taxes or any other similar excise or property taxes, charges or levies arising from any payment made under any Credit Document or from the execution, delivery or enforcement of, or otherwise with respect to, any Credit Document, except any such Taxes that are Connection Taxes imposed with respect to any assignment (other than an assignment made pursuant to Section 2.21).

PBGC” shall mean the Pension Benefit Guaranty Corporation established pursuant to Section 4002 of ERISA, or any successor thereto.

Permitted Acquisition” shall have the meaning assigned to such term in Section 6.05(xii).

Permitted Encumbrance” shall mean, with respect to any Mortgaged Property, such exceptions to title as are set forth in the Mortgage Policy delivered with respect thereto, all of which exceptions must be acceptable to the Administrative Agent in its reasonable discretion.

Permitted External Refinancing Debt” shall mean any Indebtedness incurred by the Borrower in the form of one or more series of unsecured or junior lien loans or unsecured or pari passu or junior secured notes to refinance all or a portion of any existing Class of Term Loans; provided that (i) the final maturity date of any such Indebtedness shall be no earlier than 91 days following the Latest Maturity Date, (ii) such Indebtedness shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the Term Loans being refinanced, (iii) in the case of loans, such Indebtedness shall not provide for any prepayment or amortization terms that are more favorable to the lenders providing such Indebtedness than the corresponding provisions of the Term Loans being refinanced, (iv) in the case of notes, such Indebtedness shall not provide for any scheduled repayment, mandatory redemption, sinking fund obligations or other payment (other than periodic interest payments) prior to the date that is 91 days following the Latest Maturity Date, other than customary offers to purchase upon a change of control, asset sale or casualty or condemnation event and customary acceleration rights upon an event of default, (v) such Indebtedness shall be unsecured or may either (A) solely in the case of notes, be secured by the Collateral on a pari passu basis (but without regard to the control of remedies) with the Obligations, and a Senior Representative acting on behalf of the holders of such Indebtedness shall have become party to an Other Intercreditor Agreement reflecting the pari passu status of the Liens securing such Indebtedness or (B) be secured by the Collateral on a junior, subordinated lien basis (including with respect to the control of remedies) to the Obligations, and a Senior Representative acting on behalf of the holders of such Indebtedness shall have become party to (x) if such Indebtedness is secured on a pari passu basis with the Second Lien Senior Subordinated PIK Toggle Notes, the First Lien/Second Lien Intercreditor Agreement and (y) otherwise, the provisions of an Other Intercreditor Agreement, (vi) if such Indebtedness is secured, such Indebtedness shall not be secured by

 

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any property or assets of the Borrower or any Restricted Subsidiary other than Collateral and the collateral documents shall be substantially the same as the applicable Security Documents (with such changes, including, if applicable, to reflect the junior lien nature thereof and any changes customarily requested by an indenture trustee, as are reasonably satisfactory to the Administrative Agent), (vii) no Person, other than a Credit Party, shall be an obligor or guarantor in respect of such Indebtedness, (viii) the other terms and conditions of such Indebtedness (excluding pricing, premiums and optional prepayment or redemption terms) are no more favorable (taken as a whole), as reasonably determined by the Borrower, to the investors providing such Indebtedness than those applicable to the Term Loans being refinanced (except for covenants or other provisions applicable only to periods after the Latest Maturity Date); provided that in the event such Indebtedness consists of syndicated term loans and the All-in Yield of such Indebtedness exceeds the All-in Yield of the Tranche B Term Loans, the Borrower shall offer the Tranche B Term Lenders the opportunity to provide such Indebtedness on the same terms being offered, which opportunity must be accepted within ten Business Days of such offer and if not so accepted by any Tranche B Term Lender within such ten Business Day period shall be deemed to be declined by such Tranche B Term Lender, (ix) the principal amount (or accreted value, if applicable) of such Indebtedness shall not exceed the principal amount (or accreted value, if applicable) of the Term Loans being refinanced except by an amount equal to any interest capitalized in connection with, any premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and (x) substantially concurrently with the incurrence or issuance of such Indebtedness, 100% of the net cash proceeds thereof shall be applied to repay the refinanced Term Loans, including accrued interest, fees, costs and expenses relating thereto. Permitted External Refinancing Debt shall include any Registered Equivalent Notes issued in exchange therefor.

Permitted Funding Indebtedness” shall mean (i) any Permitted Servicing Advance Facility Indebtedness, (ii) any Permitted Warehouse Indebtedness, (iii) any Permitted Residual Indebtedness, (iv) any Permitted MSR Indebtedness, (v) any Indebtedness of the type set forth in clauses (i) – (iv) of this definition that is acquired by the Borrower or any Restricted Subsidiary in connection with a Permitted Acquisition or Servicing Acquisition, (vi) any facility that combines any Indebtedness under clauses (i), (ii), (iii), (iv) or (v) of this definition and (vii) any Permitted Refinancing of the Indebtedness under clauses (i), (ii), (iii), (iv), (v) or (vi) of this definition and advanced to the Borrower or any Restricted Subsidiary based upon, and secured by, Servicing Advances (and/or reimbursement rights therefor), mortgage related securities, loans, MSRs, consumer receivables, REO Assets or Residual Interests; provided , however, that the excess (determined as of the most recent date for which internal financial statements are available), if any, of (x) the amount of any Indebtedness incurred in accordance with this clause (vii) for which the holder thereof has contractual recourse to the Borrower or any Restricted Subsidiary to satisfy claims with respect thereto (excluding customary carve-out matters such as fraud, misappropriation, breaches of representations and warranties and misapplication) over (y) the aggregate (without duplication of amounts) Realizable Value of the assets that secure such Indebtedness shall not be Permitted Funding Indebtedness (but shall not be deemed to be a new incurrence, assumption, or sufferance or permission to exist of Indebtedness subject to Section 6.04 except with respect to, and solely to the extent of, any such excess that exists upon the initial incurrence of such Indebtedness incurred under this clause (vii)).

Permitted Funds” shall mean, collectively, (i) any Person electing to be treated as a real estate investment trust under the Code or any fund (or group of related funds) (which, in each case, may be managed by the Borrower or any Restricted Subsidiary) that has as its primary investment objective (a) the origination or acquisition of Residential Mortgage Loans (performing or non-performing) or interests therein, including mortgage backed securities and/or (b) the acquisition and/or origination of MSR or interest therein (including excess servicing fee spread) and (ii) any similarly structured Affiliate or Subsidiary of any of the foregoing.

 

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Permitted Liens” shall have the meaning assigned to such term in Section 6.01.

Permitted MSR Indebtedness” shall mean MSR Indebtedness; provided that the excess (determined as of the most recent date for which internal financial statements are available), if any, of (x) the amount of any such MSR Indebtedness for which the holder thereof has contractual recourse to the Borrower or any Restricted Subsidiary to satisfy claims with respect to such MSR Indebtedness (excluding pursuant to customary carve-out matters such as fraud, misappropriation, breaches of representations and warranties and misapplication) over (y) the aggregate (without duplication of amounts) Realizable Value of the assets that secure such MSR Indebtedness shall not be Permitted MSR Indebtedness (but shall not be deemed to be a new incurrence, assumption, or sufferance or permission to exist, of Indebtedness subject to Section 6.04 except with respect to, and solely to the extent of, any such excess that exists upon the initial incurrence of such Indebtedness). The amount of any particular Permitted MSR Indebtedness as of any date of determination shall be calculated in accordance with GAAP.

Permitted Refinancing” shall mean any Indebtedness (the “refinancing Indebtedness”) issued in exchange for, or the net proceeds of which are used to refinance, renew, replace, defease, discharge or refund, other Indebtedness (the “refinanced Indebtedness”); provided that:

(a)    the principal amount of such refinancing Indebtedness does not exceed the principal amount of the refinanced Indebtedness (plus all accrued interest thereon and the amount of all reasonable fees, expenses and premiums incurred in connection with such exchange, refinancing, renewal, replacement, defeasance, discharge or refunding);

(b)    such refinancing Indebtedness has a final maturity date later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the refinanced Indebtedness;

(c)    the terms of such refinancing Indebtedness (including as to collateral), taken as a whole (as reasonably determined by the Borrower), are not more restrictive to the Credit Parties than the refinanced Indebtedness (other than with respect to interest rates, fees, premiums and no call periods);

(d)    no person, other than a Credit Party, shall be an obligor in respect of such refinancing Indebtedness;

(e)    if the refinanced Indebtedness is subordinated in right of payment or in lien priority to the Obligations, the refinancing Indebtedness shall be subordinated in right of payment or in lien priority, as applicable, to the Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the refinanced Indebtedness;

(f)    no Default or Event of Default shall have occurred and be continuing at the time of such exchange, refinancing, renewal, replacement, defeasance, discharge or refunding; and

(g)    if such refinanced Indebtedness is secured, the refinancing Indebtedness with respect thereto may only be secured if and to the extent secured by the same assets that secured such refinanced Indebtedness.

Permitted Residual Indebtedness” shall mean any Indebtedness of the Borrower or any Restricted Subsidiary under a Residual Funding Facility; provided that the excess (determined as of the most recent date for which internal financial statements are available), if any of (x) the amount of any such Permitted Residual Indebtedness for which the holder thereof has contractual recourse to the

 

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Borrower or any Restricted Subsidiary to satisfy claims with respect to such Permitted Residual Indebtedness (excluding pursuant to customary carve-out matters such as fraud, misappropriation, breaches of representations and warranties and misapplication) over (y) the aggregate (without duplication of amounts) Realizable Value of the assets that secure such Permitted Residual Indebtedness shall be deemed not to be Permitted Residual Indebtedness (but shall not be deemed to be a new incurrence, assumption, or sufferance or permission to exist of Indebtedness subject to Section 6.04 except with respect to, and solely to the extent of, any such excess that exists upon the initial incurrence of such Indebtedness).

Permitted Securitization Indebtedness” shall mean Securitization Indebtedness; provided that (i) in connection with any Securitization, any Warehouse Indebtedness or MSR Indebtedness used to finance the purchase or origination of any receivables subject to such Securitization is repaid in connection with such Securitization to the extent of the net proceeds received by the Borrower and its Restricted Subsidiaries from the applicable Securitization Entity and (ii) the excess (determined as of the most recent date for which internal financial statements are available), if any, of (x) the amount of any such Securitization Indebtedness for which the holder thereof has contractual recourse to the Borrower or any Restricted Subsidiary to satisfy claims with respect to such Securitization Indebtedness (excluding pursuant to customary carve-out matters such as fraud, misappropriation, breaches of representations and warranties and misapplication) over (y) the aggregate (without duplication of amounts) Realizable Value of the assets that secure such Securitization Indebtedness shall not be Permitted Securitization Indebtedness (but shall not be deemed to be a new incurrence, assumption or sufferance or permission to exist of Indebtedness subject to Section 6.04 except with respect to, and solely to the extent of, any such excess that exists upon the initial incurrence of such Indebtedness).

Permitted Servicing Advance Facility Indebtedness” shall mean any Indebtedness of the Borrower or any Restricted Subsidiary incurred under a Servicing Advance Facility; provided, however, that the excess (determined as of the most recent date for which internal financial statements are available), if any of (x) the amount of any such Permitted Servicing Advance Facility Indebtedness for which the holder thereof has contractual recourse to the Borrower or any Restricted Subsidiary to satisfy claims with respect to such Permitted Servicing Advance Facility Indebtedness (excluding pursuant to customary carve-out matters such as fraud, misappropriation, breaches of representations and warranties and misapplication) over (y) the aggregate (without duplication of amounts) Realizable Value of the assets that secure such Permitted Servicing Advance Facility Indebtedness shall not be Permitted Servicing Advance Facility Indebtedness (but shall not be deemed to be a new incurrence, assumption or sufferance or permission to exist of Indebtedness subject to Section 6.04 except with respect to, and solely to the extent of, any such excess that exists upon the initial incurrence of such Indebtedness).

Permitted Warehouse Indebtedness” shall mean Warehouse Indebtedness; provided that the excess (determined as of the most recent date for which internal financial statements are available), if any, of (x) the amount of any such Warehouse Indebtedness for which the holder thereof has contractual recourse to the Borrower or any Restricted Subsidiary to satisfy claims with respect to such Warehouse Indebtedness (excluding pursuant to customary carve-out matters such as fraud, misappropriation, breaches of representations and warranties and misapplication) over (y) the aggregate (without duplication of amounts) Realizable Value of the assets that secure such Warehouse Indebtedness shall not be Permitted Warehouse Indebtedness (but shall not be deemed to be a new incurrence, assumption, or sufferance or permission to exist of Indebtedness subject to Section 6.04 except with respect to, and solely to the extent of, any such excess that exists upon the initial incurrence of such Indebtedness). The amount of any particular Permitted Warehouse Indebtedness as of any date of determination shall be calculated in accordance with GAAP.

 

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Person” shall mean any individual, partnership, joint venture, firm, corporation, association, limited liability company, trust or other enterprise or any Governmental Authority.

Petition Date” shall have the meaning assigned to such term in the Recitals.

Plan” shall mean any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

Plan Effective Date” has the meaning assigned to the term “Effective Date” in the Plan of Reorganization.

Plan of Reorganization” shall mean that certain Prepackaged Chapter 11 Plan of Reorganization of the Borrower and Affiliate Co-Plan Proponents, dated November 6, 2017, as approved pursuant to the Confirmation Order, in accordance with Section 1129 of the Bankruptcy Code, as amended, supplemented or otherwise modified from time to time (whether any such further amendment, supplement or other modification is effected through an amendment, supplement or other modification to the Plan of Reorganization itself or through the Confirmation Order) in accordance with the Bankruptcy Code.

Platform” shall have the meaning assigned to such term in Section 9.01.

Pledge Agreement” shall mean the Amended and Restated First Lien Pledge Agreement dated as of the Closing Date among each of the pledgors from time to time party thereto and the Collateral Agent, substantially in the form of Exhibit B.

Pledge Agreement Collateral” shall mean all “Collateral” as defined in the Pledge Agreement.

Pledgee” shall have the meaning assigned to such term in the Pledge Agreement.

Preferred Equity”, as applied to the Equity Interests of any Person, means Equity Interests of such Person (other than common Equity Interests of such Person) of any class or classes (however designed) that ranks prior, as to the payment of dividends or as to the distribution of assets upon any voluntary or involuntary liquidation, dissolution or winding up of such Person, to shares of Equity Interests of any other class of such Person.

Pre-Petition Credit Agreement” shall have the meaning assigned to such term in the Recitals.

Pre-Petition Lenders” shall have the meaning assigned to such term in the Recitals.

Pre-Petition Term Loans” shall have the meaning assigned to such term in the Recitals.

Pre-Petition Term Loan Obligation” shall have the meaning assigned to such term in the Recitals.

Prime Rate” shall mean the rate of interest per annum determined from time to time by Credit Suisse as its prime rate in effect at its principal office in New York City and notified to the Borrower. The prime rate is a rate set by Credit Suisse based upon various factors including Credit Suisse’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such rate.

 

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Pro Forma Basis” shall mean, in connection with any calculation of compliance with any financial covenant or financial term, the calculation thereof after giving effect on a pro forma basis to (without duplication) (x) the incurrence, assumption, guarantee, redemption, repayment, retirement or extinguishment of any Indebtedness (other than (A) revolving Indebtedness, except, in the case of an incurrence, assumption or guarantee, to the extent same is incurred, assumed or guaranteed to refinance other outstanding Indebtedness or to finance a Permitted Acquisition, any purchase of MSRs, Servicing Advances or servicing rights permitted hereunder or, in the case of a redemption, repayment, retirement or extinguishment, to the extent all commitments under such revolving Indebtedness are permanently and correspondingly terminated, and (B) any Permitted MSR Indebtedness) after the first day of the relevant Calculation Period or Test Period, as the case may be, as if such Indebtedness had been incurred, assumed, guaranteed, redeemed, repaid, retired or extinguished (and the proceeds thereof applied) on the first day of such Test Period or Calculation Period, as the case may be) and (y) any Permitted Acquisition, any purchase of MSRs, Servicing Advances or servicing rights permitted hereunder, entry into a bona fide subservicing agreement in respect of MSRs or any Significant Asset Sale then being consummated (each, a “Subject Transaction”) as well as any other Subject Transaction if consummated after the first day of the relevant Test Period or Calculation Period, as the case may be, and on or prior to the date of the respective Subject Transaction then being effected, as if each such transaction had been effected on the first day of such Test Period or Calculation Period, as the case may be with the following rules to apply in connection therewith:

(i)    all Indebtedness (x) (other than revolving Indebtedness, except to the extent same is incurred, assumed or guaranteed to refinance other outstanding Indebtedness or to finance a Permitted Acquisition, any purchase of MSRs, Servicing Advances or servicing rights permitted hereunder, and other than Permitted MSR Indebtedness) incurred, assumed or guaranteed after the first day of the relevant Test Period or Calculation Period (whether incurred, assumed or guaranteed to finance a Permitted Acquisition, any purchase of MSRs, Servicing Advances or servicing rights permitted hereunder, to refinance Indebtedness or otherwise) shall be deemed to have been incurred, assumed or guaranteed (and the proceeds thereof applied) on the first day of such Test Period or Calculation Period, as the case may be, and remain outstanding through the date of determination and (y) (other than revolving Indebtedness, except to the extent accompanied by a corresponding permanent commitment reduction) permanently redeemed, repaid, retired or extinguished after the first day of the relevant Test Period or Calculation Period, as the case may be, shall be deemed to have been retired or redeemed on the first day of such Test Period or Calculation Period, as the case may be, and remain redeemed, repaid, retired or extinguished through the date of determination;

(ii)    all Indebtedness assumed to be outstanding pursuant to preceding clause (i) shall be deemed to have borne interest at (x) the rate applicable thereto, in the case of fixed rate indebtedness or (y) the rates which would have been applicable thereto during the respective period when same was deemed outstanding, in the case of floating rate Indebtedness (although interest expense with respect to any Indebtedness for periods while same was actually outstanding during the respective period shall be calculated using the actual rates applicable thereto while same was actually outstanding); provided that all Indebtedness (whether actually outstanding or deemed outstanding) bearing interest at a floating rate of interest shall be tested on the basis of the rates applicable at the time the determination is made pursuant to said provisions; and

(iii)    whenever pro forma effect is given to any Subject Transaction, the pro forma calculations shall be made in good faith by an Authorized Officer of the Borrower and, except as set forth in the next sentence, in a manner consistent with Article 11 of Regulation S-X of the Securities Act, as set forth in a certificate of an Authorized Officer of the Borrower (with supporting calculations) delivered to the Administrative Agent. In addition to any adjustments

 

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consistent with Regulation S-X, such certificate may set forth additional pro forma adjustments arising out of factually supportable and identifiable cost savings or business optimization initiatives (including cost saving synergies) attributable to any such transaction (net of any additional costs associated with such transaction) and expected in good faith to be realized within 12 months following such transaction, including, but not limited to, (w) reduction in personnel expenses, (x) reduction of costs related to administrative functions, (y) reductions of costs related to leased or owned properties and (z) reductions from the consolidation of operations and streamlining of corporate overhead (taking into account, for purposes of determining such calculation, any historical financial statements of the business or entities acquired or disposed of, assuming such transaction and all other such transaction that have been consummated since the beginning of such period, and any Indebtedness or other liabilities repaid or incurred in connection therewith had been consummated and incurred or repaid at the beginning of such period); provided, that, unless the Administrative Agent shall otherwise agree in its reasonable discretion, the aggregate amount of adjustments made pursuant to this sentence shall at no time exceed 10% of Consolidated EBITDA prior to giving pro forma effect thereto.

Property” shall mean the Real Property, including the improvements thereon, or the personal property (tangible and intangible), in either case which are encumbered pursuant to a Securitization Assets.

Public Lender” shall have the meaning assigned to such term in Section 9.01.

Published LIBO Rate” shall mean, with respect to any Interest Period when used in reference to any Loan or Borrowing:

(a)    the rate of interest appearing on Reuters Screen LIBOR01 Page (or on any successor or substitute page of such service, or any successor to such service as determined by the Administrative Agent) as the London interbank offered rate for deposits in Dollars for a term comparable to such Interest Period, at approximately 11:00 a.m. (London time) on the date which is two Business Days prior to the commencement of such Interest Period (but if more than one rate is specified on such page, the rate will be an arithmetic average of all such rates); and

(b)    if such rate is not available at such time for any reason, then the “Published LIBO Rate” for such Interest Period shall be a comparable successor rate approved by the Borrower that is, at such time, broadly accepted by the syndicated loan market for loans denominated in US dollars in lieu of the “Published LIBO Rate” or, if no such broadly accepted comparable successor rate exists at such time, a successor index rate as the Administrative Agent may determine with the consent of the Borrower and the Required Lenders (such consent not to be unreasonably withheld, delayed or conditioned and notwithstanding anything in Section 9.08 to the contrary).

Qualified Equity Interests” shall mean any Equity Interests of the Borrower so long as the terms of any such Equity Interests (or the terms of any security into which it is convertible or for which it is exchangeable) (a) do not contain any maturity, mandatory put, redemption, repayment, sinking fund or other similar provision (whether as a result of an asset sale, change of control or otherwise), (b) do not require the payment of dividends or distributions that would otherwise be prohibited by the terms of this Agreement and (c) do not provide that such Equity Interests are or will become convertible into or exchangeable for Indebtedness or any other Equity Interests (other than Qualified Equity Interests), in each case of (a), (b) and (c) before the date that is one year after the Latest Maturity Date.

Real Property” of any Person shall mean all the right, title and interest of such Person in and to land, improvements and fixtures, including Leaseholds.

 

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Realizable Value” of an asset shall mean (i) with respect to any REO Asset, the value realizable upon the disposition of such asset as determined by the Borrower in its reasonable discretion and consistent with customary industry practice and (ii) with respect to any other asset, the lesser of (x) if applicable, the face value of such asset and (y) the market value of such asset as determined by the Borrower in accordance with the agreement governing the applicable Permitted Servicing Advance Facility Indebtedness, Permitted Warehouse Indebtedness, Permitted MSR Indebtedness or Permitted Residual Indebtedness, as the case may be (or, if such agreement does not contain any related provision, as determined by senior management of the Borrower in good faith); provided, however, that the realizable value of any asset described in clause (i) or (ii) above which an unaffiliated third party has a binding contractual commitment to purchase from the Borrower or any Restricted Subsidiaries shall be the minimum price payable to the Borrower or such Restricted Subsidiary for such asset pursuant to such contractual commitment.

Recovery Event” shall mean the receipt by the Borrower or any Restricted Subsidiary of any cash insurance proceeds or condemnation awards payable (i) by reason of theft, loss, physical destruction, damage, taking or any other similar event with respect to any property or assets of the Borrower or any Restricted Subsidiary or (ii) under any policy of insurance required to be maintained under Section 5.03 (excluding, for the avoidance of doubt, business interruption insurance).

Reduction” shall mean any fee, loss, charge, expense, cost, accrual or reserve of any kind.

Refinanced Term Loans” shall have the meaning assigned to such term in Section 2.27.

Refinancing Term Loan Commitment” shall mean the commitment of any Lender, established pursuant to Section 2.27, to make Refinancing Term Loans to the Borrower.

Refinancing Term Loan Lender” shall mean a Lender with a Refinancing Term Loan Commitment or an outstanding Refinancing Term Loan.

Refinancing Term Loans” shall mean one or more new Classes of Term Loans that result from an Additional Credit Extension Amendment in accordance with Section 2.27.

Register” shall have the meaning assigned to such term in Section 9.04(d).

Registered Equivalent Notes” shall mean, with respect to any note originally issued in a Rule 144A or other private placement transaction under the Securities Act, substantially identical notes (having the same guarantees) issued in a dollar-for-dollar exchange therefore pursuant to an exchange offer registered with the SEC.

Regulation D” shall mean Regulation D of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof establishing reserve requirements.

Regulation T” shall mean Regulation T of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof.

Regulation U” shall mean Regulation U of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof.

Regulation X” shall mean Regulation X of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof.

 

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Regulatory Supervising Organization” shall mean any of (a) the SEC, (b) FINRA, (c) the New York Stock Exchange, (d) state securities commissions and (e) any other U.S. or foreign governmental or self-regulatory organization, exchange, clearing house or financial regulatory authority of which the Borrower or any Restricted Subsidiary is a member or to whose rules it is subject.

REIT Subsidiary” shall mean a Restricted Subsidiary that is intended by the Borrower to qualify as a real estate investment trust under the Code.

Related Fund” shall mean, with respect to any Lender that is a fund or commingled investment vehicle that invests in bank loans, any other fund that invests in bank loans and is managed or advised by the same investment advisor as such Lender or by an Affiliate of such investment advisor.

Related Parties” shall mean, with respect to any specified Person, such Person’s Affiliates and the respective directors, trustees, officers, employees, agents, representatives and advisors of such Person and such Person’s Affiliates.

Release” shall mean actively or passively disposing, discharging, injecting, spilling, pumping, leaking, leaching, dumping, emitting, escaping, emptying, pouring, seeping, migrating or the like, into or upon any land or water or air, or otherwise entering into the environment.

REO Assets” of a Person shall mean any real property owned by such Person and acquired as a result of the foreclosure or other enforcement of a lien on such asset securing a loan, Servicing Advance or other mortgage-related receivables.

Repayment Date” shall have the meaning given such term in Section 2.11(a).

Reportable Event” shall mean an event described in Section 4043(c) of ERISA with respect to a Plan that is subject to Title IV of ERISA other than those events as to which the 30-day notice period is waived.

Required Lenders” shall mean, at any time, Lenders having Loans, L/C Exposure and unused Commitments representing more than 50% of the sum of all Loans outstanding, L/C Exposure and unused Commitments at such time. The Loans, L/C Exposure and unused Commitments of any Defaulting Lender shall be disregarded in the determination of the Required Lenders at any time.

Residential Mortgage Loan” shall mean any residential mortgage loan, manufactured housing installment sale contract and loan agreement, home equity loan, home improvement loan, consumer installment sale contract or similar loan evidenced by a Residential Mortgage Note, and any installment sale contract, loan contract or chattel paper.

Residential Mortgage Note” shall mean a promissory note, bond or similar instrument evidencing indebtedness of an obligor under a Residential Mortgage Loan, including, without limitation, all related security interests and any and all rights to receive payments due thereunder.

Residual Funding Facility” shall mean any funding arrangement with a financial institution or institutions or other lenders or purchasers under which advances are made to the Borrower or any Restricted Subsidiary secured by Residual Interests.

 

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Residual Interests” shall mean any residual, subordinated, reserve accounts and retained ownership interest held by the Borrower or a Restricted Subsidiary in Securitization Assets, Securitization Entities, Warehouse Facility Trusts and/or MSR Facility Trusts, regardless of whether required to appear on the face of consolidated financial statements in accordance with GAAP.

Residual Trust” shall mean any variable interest entity identified as a “Residual Trust” in the most recently filed Form 10-K or Form 10-Q of the Borrower, as applicable.

Restricted” shall mean, when referring to cash or Cash Equivalents of the Borrower or any Restricted Subsidiary, that such cash or Cash Equivalents (i) appears (or would be required to appear) as “restricted” on a consolidated balance sheet of the Borrower or of any such Restricted Subsidiary (unless such appearance is related to Liens on the Collateral securing Indebtedness permitted hereunder to be secured by Liens on the Collateral), (ii) are subject to any Lien in favor of any Person other than the Collateral Agent for the benefit of the Secured Creditors and Liens securing Permitted External Refinancing Debt or (iii) are not otherwise generally available for use by the Borrower or such Restricted Subsidiary.

Restricted Subsidiary” shall mean a Subsidiary other than an Unrestricted Subsidiary.

Returns” shall have the meaning assigned to such term in Section 3.09.

RMS Business” means the reverse mortgage business of the Borrower and its Restricted Subsidiaries and the assets and liabilities related thereto including reverse subservicing.

RSA” shall mean that certain Amended and Restated Restructuring Support Agreement, dated as of October 20, 2017 (as amended in accordance with the terms thereof and prior to the date hereof), among the Borrower and the Lenders party thereto.

S&P” shall mean Standard & Poor’s Ratings Service, or any successor thereto.

SEC” shall have the meaning assigned to such term in Section 5.01(h).

Second Lien Senior Subordinated PIK Toggle Notes” shall mean 9.0% Second Lien Senior Subordinated PIK Toggle Notes due 2024, issued by the Borrower pursuant to the Second Lien Senior Subordinated PIK Toggle Notes Indenture. Unless the context requires otherwise, any reference to the Second Lien Senior Subordinated PIK Toggle Notes shall include any Permitted Refinancing thereof (and any further Permitted Refinancing thereof).

Second Lien Senior Subordinated PIK Toggle Notes Documents” shall mean the Second Lien Senior Subordinated PIK Toggle Notes and the Second Lien Senior Subordinated PIK Toggle Notes Indenture (including any guarantee with respect thereto) and the Security Documents (as defined in the Second Lien Senior Subordinated PIK Toggle Notes Indenture).

Second Lien Senior Subordinated PIK Toggle Notes Indenture” shall mean the Indenture dated as of the Plan Effective Date, under which the Second Lien Senior Subordinated PIK Toggle Notes were issued, among the Borrower, as issuer, certain of the Subsidiary Guarantors party thereto, as guarantors, and Wilmington Savings Fund Society, FSB, as trustee and collateral agent, and as amended, restated, supplemented or otherwise modified from time in accordance with the terms hereof.

Secured Creditors” shall have the meaning assigned that term in the respective Security Documents.

 

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Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

Securitization” shall mean a public or private transfer, sale or financing of (i) Servicing Advances, (ii) mortgage loans, (iii) installment contracts and/or (iv) other loans and related assets (clauses (i) – (iv) above, collectively, the “Securitization Assets”) by which the Borrower or any Restricted Subsidiary directly or indirectly securitizes a pool of specified Securitization Assets including, without limitation, any such transaction involving the sale of specified Servicing Advances or mortgage loans to a Securitization Entity or a Government Sponsored Entity (including a Securitization Entity established by such Government Sponsored Entity).

Securitization Assets” has the meaning specified in the definition of “Securitization.”

Securitization Entity” shall mean (i) any Person (whether or not a Restricted Subsidiary of the Borrower) established for the purpose of issuing asset-backed or mortgaged-backed or mortgage pass-through securities of any kind (including collateralized mortgage obligations and net interest margin securities), (ii) any special purpose Subsidiary established for the purpose of selling, depositing or contributing Securitization Assets into a Person described in clause (i) or holding securities in any related Securitization Entity, regardless of whether such person is an issuer of securities; provided that such Person is not an obligor with respect to any Indebtedness of the Borrower or any Subsidiary Guarantor and (iii) any special purpose Restricted Subsidiary of the Borrower formed exclusively for the purpose of satisfying the requirements of Credit Enhancement Agreements and regardless of whether such Restricted Subsidiary is an issuer of securities; provided that such Person is not an obligor with respect to any Indebtedness of the Borrower or any Subsidiary Guarantor other than under Credit Enhancement Agreements.

Securitization Indebtedness” shall mean (i) Indebtedness of the Borrower or any Restricted Subsidiary incurred pursuant to on-balance sheet Securitizations and (ii) any Indebtedness consisting of advances made to the Borrower or any Restricted Subsidiary based upon securities issued by a Securitization Entity pursuant to a Securitization and acquired or retained by the Borrower or any Restricted Subsidiary.

Security Agreement” shall mean the Amended and Restated First Lien Security Agreement dated as of the Closing Date, among the Borrower, certain other Subsidiaries of the Borrower from time to time party thereto and the Collateral Agent, substantially in the form of Exhibit A.

Security Agreement Collateral” shall mean all “Collateral” as defined in the Security Agreement.

Security Document” shall mean and include each of the Security Agreement, the Pledge Agreement, each Mortgage and, after the execution and delivery thereof, each Additional Security Document.

Senior Representative” shall mean, with respect to any Indebtedness, the trustee, administrative agent, collateral agent, security agent or similar agent under the indenture or other agreement pursuant to which such Indebtedness is issued, incurred or otherwise obtained, as the case may be, and each of their successors in such capacities.

Series A Warrants” shall mean the series A ten year warrants issued by the Borrower in accordance with the Plan of Reorganization.

 

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Series B Warrants” shall mean the series B ten year warrants issued by the Borrower in accordance with the Plan of Reorganization.

“Servicer and Protective Advance Percentage” shall mean 95.0% for each fiscal quarter during the fiscal years ending 2017, 2018 and 2019, and 92.0% for each fiscal quarter thereafter.

Servicing Acquisition” shall mean an acquisition permitted under this Agreement of MSRs, Servicing Advances or servicing rights.

Servicing Advance Facility” shall mean any funding arrangement with lenders collateralized in whole or in part by Servicing Advances (and/or reimbursement rights therefor) under which advances are made to the Borrower or any Restricted Subsidiaries based on such collateral.

Servicing Advances” shall mean advances made by the Borrower or any Restricted Subsidiary in its capacity as servicer of any mortgage-related receivables to fund principal, interest, escrow, foreclosure, insurance, tax or other payments or advances when the borrower on the underlying receivable is delinquent in making payments on such receivable; to enforce remedies, manage and liquidate REO Assets; or that the Borrower or any Restricted Subsidiary otherwise advances in its capacity as servicer pursuant to any Servicing Agreement.

Servicing Agreements” shall mean any servicing agreements (including whole loan servicing agreements for portfolios of whole mortgage loans), pooling and servicing agreements, interim servicing agreements and other servicing agreements, and any other agreement governing the rights, duties and obligations of either the Borrower or any Restricted Subsidiary, as a servicer, under such servicing agreements.

“Servicing Fee Receivables” shall mean all receivables related to servicing or sub-servicing of loans and REO including base servicing fee, incentives, ancillary fees and deficiency collections.

Significant Asset Sale” shall mean each Asset Sale (or series of related Asset Sales) which generates Net Sale Proceeds of at least $2,500,000.

SPV” shall have the meaning assigned to such term in Section 9.04(i).

Statutory Reserves” shall mean a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board and any other banking authority, domestic or foreign, to which the Administrative Agent or any Lender (including any branch, Affiliate or other fronting office making or holding a Loan) is subject for Eurocurrency Liabilities (as defined in Regulation D of the Board). Eurodollar Loans shall be deemed to constitute Eurocurrency Liabilities (as defined in Regulation D of the Board) and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D. Statutory Reserves shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.

Subject Transaction” has the meaning specified in the definition of “Pro Forma Basis”.

Subsidiaries Guaranty” shall mean the Amended and Restated Subsidiaries Guaranty dated as of the Closing Date made by the Subsidiary Guarantors from time to time party thereto in favor of Credit Suisse, as Administrative Agent for the benefit of the Secured Creditors (as therein defined), substantially in the form of Exhibit E.

 

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Subsidiary” shall mean, as to any Person, (i) any corporation more than 50% of whose stock of any class or classes having by the terms thereof ordinary voting power to elect a majority of the directors of such corporation (irrespective of whether or not at the time stock of any class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time owned by such Person and/or one or more Subsidiaries of such Person and (ii) any partnership, limited liability company, association or other entity in which such Person and/or one or more Subsidiaries of such Person has more than a 50% equity interest at the time. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower.

Subsidiary Guarantor” shall mean each Wholly-Owned Domestic Restricted Subsidiary (other than the Excluded Subsidiaries) (in each case, whether existing on the Closing Date or established, created or acquired after the Closing Date), unless and until such time as the respective Wholly-Owned Domestic Restricted Subsidiary is released from all of its obligations under the Subsidiaries Guaranty in accordance with the terms and provisions thereof. As of the Closing Date, Subsidiary Guarantors are listed on Schedule 1.01(b).

Taxes” shall mean any and all present or future taxes, levies, imposts, duties, deductions, withholdings imposed by any Governmental Authority.

Term Borrowing” shall mean a Borrowing comprised of Term Loans.

Term Lender” shall mean a Lender with a Commitment or an outstanding Term Loan.

Term Loan” shall mean a Tranche B Term Loan, a Refinancing Term Loan or an Extended Term Loan, as applicable.

Termination Date” shall have the meaning assigned to such term in Article 5.

Test Period” shall mean each period of four consecutive fiscal quarters of the Borrower then last ended, in each case taken as one accounting period; provided that in the case of determinations of the First Lien Net Leverage Ratio, the Interest Expense Coverage Ratio, the Asset Coverage Ratio A and the Asset Coverage Ratio B pursuant to this Agreement, such further adjustments (if any) as described in the provisos to such definitions contained herein shall be made to the extent applicable.

Tranche B Term Lender” shall mean each Lender that holds a Tranche B Term Loan.

Tranche B Term Loan Maturity Date” shall mean June 30, 2022.

Tranche B Term Loans” shall mean the term loans made to the Borrower by the Lenders pursuant to the Pre-Petition Credit Agreement and continued by the Lenders pursuant to Section 2.01. The aggregate outstanding principal amount of the Tranche B Term Loans as of the Closing Date is $1,156,500,513.53.

Transactions” shall mean, collectively, (a) the execution, delivery and performance by the Credit Parties of the Credit Documents to which they are a party and the making of the Borrowings hereunder, (b) the issuance of the Second Lien Senior Subordinated PIK Toggle Notes, (c) the issuance of the Convertible Preferred Stock, (d) the issuance of the Closing Date Warrants, (e) the other transactions contemplated to occur on the Plan Effective Date pursuant to the Plan of Reorganization and (f) the payment of related fees and expenses.

 

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Type”, when used in respect of any Loan or Borrowing, shall refer to the Rate by reference to which interest on such Loan or on the Loans comprising such Borrowing is determined. For purposes hereof, the term “Rate” shall mean the Adjusted LIBO Rate and the Alternate Base Rate.

UCC” shall mean the Uniform Commercial Code as from time to time in effect in the relevant jurisdiction.

Uniform Customs” shall have the meaning assigned to such term in Section 9.07.

United States” and “U.S.” shall each mean the United States of America.

Unrestricted” shall mean, when referring to cash or Cash Equivalents of the Borrower or any Restricted Subsidiary, that such cash or Cash Equivalents are not Restricted.

Unrestricted Subsidiary” shall mean (a) each Subsidiary of the Borrower listed on Schedule 1.01(c), (b) a Subsidiary of the Borrower designated by the Borrower as an Unrestricted Subsidiary pursuant to Section 5.21 subsequent to the Closing Date and (c) a Subsidiary of an Unrestricted Subsidiary.

USA PATRIOT Act” shall mean The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed into law October 26, 2001)).

Warehouse Facility” shall mean any financing arrangement of any kind, including, but not limited to, financing arrangements in the form of repurchase facilities, loan agreements, note issuance facilities and commercial paper facilities (excluding in all cases, Securitizations), with a financial institution or other lender or purchaser exclusively to (i) finance or refinance the purchase or origination by the Borrower or a Restricted Subsidiary of, or provide funding to the Borrower or a Restricted Subsidiary through the transfer of, loans, mortgage-related securities and other mortgage-related receivables purchased or originated by the Borrower or any Restricted Subsidiary of the Borrower in the ordinary course of business, (ii) finance the funding of or refinance Servicing Advances; or (iii) finance or refinance the carrying of REO Assets related to loans and other mortgage-related receivables purchased or originated by the Borrower or any Restricted Subsidiary; provided that such purchase or origination is in the ordinary course of business.

Warehouse Facility Trusts” shall mean any Person (whether or not a Restricted Subsidiary of the Borrower) established for the purpose of issuing notes or other securities in connection with a Warehouse Facility, which notes and securities are backed by (i) specified loans, mortgage-related securities and other mortgage-related receivables purchased by, and/or contributed to, such Person from the Borrower or any Restricted Subsidiary; (ii) specified Servicing Advances purchased by, and/or contributed to, such Person from the Borrower or any other Restricted Subsidiary; or (iii) the carrying of REO Assets related to loans and other mortgage-related receivables purchased by, and/or contributed to, such Person or any Restricted Subsidiary.

Warehouse Indebtedness” shall mean Indebtedness in connection with a Warehouse Facility; provided that the amount of any particular Warehouse Indebtedness as of any date of determination shall be calculated in accordance with GAAP.

 

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Weighted Average Life to Maturity” shall mean, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Indebtedness; provided that for purposes of determining the Weighted Average Life to Maturity of any Indebtedness that is being modified, refinanced, refunded, renewed, replaced or extended (the “Applicable Indebtedness”), the effects of any prepayments made on such Applicable Indebtedness prior to the date of the applicable modification, refinancing, refunding, renewal, replacement or extension shall be disregarded.

Withdrawal Liability” shall mean liability to a Multiemployer Plan as a result of a complete or partial withdrawal by the Borrower or an ERISA Affiliate from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.

Wholly-Owned Domestic Restricted Subsidiary” shall mean, as to any Person, any Wholly Owned Restricted Subsidiary of such Person which is a Domestic Subsidiary.

Wholly-Owned Foreign Restricted Subsidiary” shall mean, as to any Person, any Wholly Owned Restricted Subsidiary of such Person which is a Foreign Subsidiary.

Wholly-Owned Restricted Subsidiary” shall mean a Wholly Owned Subsidiary of the Borrower that is a Restricted Subsidiary.

Wholly-Owned Subsidiary” shall mean, as to any Person, (i) any corporation 100% of whose capital stock is at the time owned by such Person and/or one or more Wholly-Owned Subsidiaries of such Person, and (ii) any partnership, limited liability company, association, joint venture or other entity in which such Person and/or one or more Wholly-Owned Subsidiaries of such Person has a 100% equity interest at such time (other than, in the case of a Foreign Subsidiary of the Borrower with respect to the preceding clauses (i) and (ii), director’s qualifying shares and/or other nominal amount of shares required to be held by Persons other than the Borrower and its Subsidiaries under applicable law).

Write-Down and Conversion Powers” shall mean, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

Section 1.02    Terms Generally. The definitions in Section 1.01 shall apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”; and the words “asset” and “property” shall be construed as having the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights. All references herein to Articles, Sections, Exhibits and Schedules shall be deemed references to Articles and Sections of, and Exhibits and Schedules to, this Agreement unless the context shall otherwise require. Except as otherwise expressly provided herein, (a) any reference in this Agreement to any Credit Document shall mean such document as amended, restated, supplemented or otherwise modified from time to time, in each case, in accordance with the express terms of this Agreement, (b) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or

 

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regulation as amended, modified or supplemented from time to time and (c) all terms of an accounting or financial nature shall be construed in accordance with GAAP as in effect from time to time; provided, however, that if the Borrower notifies the Administrative Agent that the Borrower wishes to amend any covenant in Article 6 or any related definition to eliminate the effect of any change in GAAP occurring after the Closing Date on the operation of such covenant (or if the Administrative Agent notifies the Borrower that the Required Lenders wish to amend Article 6 or any related definition for such purpose), then the Borrower’s compliance with such covenant shall be determined on the basis of GAAP in effect immediately before the relevant change in GAAP became effective, until either such notice is withdrawn or such covenant is amended in a manner satisfactory to the Borrower and the Required Lenders. Notwithstanding anything to the contrary contained herein, all financial covenants contained herein or in any other Credit Document shall be calculated without giving effect to any election under Accounting Standards Codification 825-7-25 or 470-20 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereof or at any amount other than the outstanding principal amount thereof. Notwithstanding anything to the contrary in this Agreement or any Credit Document, whenever it is necessary to determine whether a lease is a capital lease or an operating lease, such determination shall be made on the basis of GAAP as in effect on the Closing Date, notwithstanding any modifications or interpretive changes thereto that may occur thereafter.

Section 1.03    Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a “Term Loan”) or by Type (e.g., a “Eurodollar Loan”) or by Class and Type (e.g., a “Eurodollar Term Loan”). Borrowings also may be classified and referred to by Class (e.g., a “Term Credit Borrowing”) or by Type (e.g., a “Eurodollar Borrowing”) or by Class and Type (e.g., a “Eurodollar Term Credit Borrowing”).

Section 1.04    Designated Senior Indebtedness. The Obligations hereunder are hereby designated by the Borrower as “Designated Senior Indebtedness” (or similar term) for all purposes of any subordinated indebtedness of the Borrower or any Restricted Subsidiary.

ARTICLE 2

THE CREDITS

Section 2.01    Loans. The parties hereto agree that $1,156,500,513.53 of the Pre-Petition Term Loans remain outstanding immediately prior to the Closing Date. Subject to and upon the terms and conditions set forth herein on the Closing Date, and pursuant to the Plan of Reorganization, each Term Lender that is a Pre-Petition Lender is deemed, severally and not jointly, to continue, on the Closing Date, the aggregate principal amount of its Pre-Petition Term Loans as a like principal amount of Tranche B Term Loans hereunder. On and as of the Closing Date, each Term Lender shall hold a portion of the Tranche B Term Loans in the amount set forth opposite such Term Lender’s name on Schedule 1.01(a). Amounts paid or prepaid in respect of Tranche B Term Loans may not be reborrowed.

Section 2.02    [Reserved].

Section 2.03    [Reserved].

Section 2.04    Evidence of Debt; Repayment of Loans. (a) The Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of each Lender the principal amount of each Term Loan of such Lender as provided in Section 2.11.

 

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(b)    Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time under this Agreement.

(c)    The Administrative Agent shall maintain accounts in which it will record (i) the amount of each Loan made hereunder, the Class and Type thereof and, if applicable, the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder from the Borrower or any Subsidiary Guarantor and each Lender’s share thereof.

(d)    The entries made in the accounts maintained pursuant to paragraphs (b) and (c) above shall be prima facie evidence of the existence and amounts of the obligations therein recorded; provided, however, that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligations of the Borrower to repay the Loans in accordance with their terms.

(e)    Any Lender may request that Loans made by it hereunder be evidenced by a promissory note. In such event, the Borrower shall execute and deliver to such Lender a promissory note payable to such Lender and its registered assigns and in a form and substance reasonably acceptable to the Administrative Agent and the Borrower. Notwithstanding any other provision of this Agreement, in the event any Lender shall request and receive such a promissory note, the interests represented by such note shall at all times (including after any assignment of all or part of such interests pursuant to Section 9.04) be represented by one or more promissory notes payable to the payee named therein or its registered assigns.

Section 2.05    Fees. (a) [Reserved].

(b)    The Borrower agrees to pay to the Administrative Agent, for its own account, the administrative fees set forth in the Fee Letter at the times and in the amounts specified therein (the “Fees”).

(c)    [Reserved].

(d)    [Reserved].

(e)    All Fees shall be paid on the dates due, in immediately available funds, to the Administrative Agent for distribution, if and as appropriate, among the Lenders. Once paid, none of the Fees shall be refundable under any circumstances.

Section 2.06    Interest on Loans. (a) Subject to the provisions of Section 2.07, the Loans comprising each ABR Borrowing shall bear interest (computed on the basis of the actual number of days elapsed over a year of 365 or 366 days, as the case may be, at all times and calculated from and including the date of such Borrowing to but excluding the date of repayment thereof) at a rate per annum equal to the Alternate Base Rate plus the Applicable Margin.

(b)    Subject to the provisions of Section 2.07, the Loans comprising each Eurodollar Borrowing shall bear interest (computed on the basis of the actual number of days elapsed over a year of 360 days) at a rate per annum equal to the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the Applicable Margin.

 

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(c)    Interest on each Loan shall be payable on the Interest Payment Dates applicable to such Loan except as otherwise provided in this Agreement. The applicable Alternate Base Rate or Adjusted LIBO Rate for each Interest Period or day within an Interest Period, as the case may be, shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.

Section 2.07    Default Interest. If the Borrower shall default in the payment of any principal of or interest on any Loan or any other amount due hereunder or under any other Credit Document, by acceleration or otherwise, then, until such defaulted amount shall have been paid in full, to the extent permitted by law, such defaulted amount shall bear interest (after as well as before judgment), payable on demand, (a) in the case of principal, at the rate otherwise applicable to such Loan pursuant to Section 2.06 plus 2.00% per annum and (b) in all other cases, at a rate per annum (computed on the basis of the actual number of days elapsed over a year of 365 or 366 days, as the case may be, at all times) equal to the rate that would be applicable to an ABR Loan plus 2.00% per annum.

Section 2.08    Alternate Rate of Interest. In the event, and on each occasion, that on the day two Business Days prior to the commencement of any Interest Period for a Eurodollar Borrowing the Administrative Agent shall have determined that Dollar deposits in the principal amounts of the Loans comprising such Borrowing are not generally available in the London interbank market, or that the rates at which such Dollar deposits are being offered will not adequately and fairly reflect the cost to the Lenders holding more than 50% in principal amount of the Loans which are to be included in such Eurodollar Borrowing of making or maintaining such Eurodollar Loans during such Interest Period, or that reasonable means do not exist for ascertaining the Adjusted LIBO Rate, the Administrative Agent shall, as soon as practicable thereafter, give written or fax notice of such determination to the Borrower and the Lenders. In the event of any such determination, until the Administrative Agent shall have advised the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, any request by the Borrower for a Eurodollar Borrowing pursuant to Section 2.10 shall be deemed to be a request for an ABR Borrowing. Each determination by the Administrative Agent under this Section 2.08 shall be conclusive absent manifest error.

Section 2.09    [Reserved].

Section 2.10    Conversion and Continuation of Borrowings. The Borrower shall have the right at any time upon prior irrevocable written notice to the Administrative Agent (a) not later than 12:00 (noon), New York City time, one Business Day prior to conversion, to convert any Eurodollar Borrowing into an ABR Borrowing, (b) not later than 12:00 (noon), New York City time, three Business Days prior to conversion or continuation, to convert any ABR Borrowing into a Eurodollar Borrowing or to continue any Eurodollar Borrowing as a Eurodollar Borrowing for an additional Interest Period, and (c) not later than 12:00 (noon), New York City time, three Business Days prior to conversion, to convert the Interest Period with respect to any Eurodollar Borrowing to another permissible Interest Period, subject in each case to the following:

(a)    [reserved];

(b)    each conversion or continuation shall be made pro rata among the Lenders in accordance with the respective principal amounts of the Loans comprising the converted or continued Borrowing;

(c)    if less than all the outstanding principal amount of any Borrowing shall be converted or continued, then each resulting Borrowing shall be in an aggregate principal amount that is an integral multiple of $1,000,000 and not less than $5,000,000;

 

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(d)    each conversion shall be effected by each Lender and the Administrative Agent by recording for the account of such Lender the new Loan of such Lender resulting from such conversion and reducing the Loan (or portion thereof) of such Lender being converted by an equivalent principal amount; accrued interest on any Eurodollar Loan (or portion thereof) being converted shall be paid by the Borrower at the time of conversion;

(e)    if any Eurodollar Borrowing is converted at a time other than the end of the Interest Period applicable thereto, the Borrower shall pay, upon demand, any amounts due to the Lenders pursuant to Section 2.16;

(f)    any portion of a Borrowing maturing or required to be repaid in less than one month may not be converted into or continued as a Eurodollar Borrowing;

(g)    any portion of a Eurodollar Borrowing that cannot be converted into or continued as a Eurodollar Borrowing by reason of the immediately preceding clause shall be automatically converted at the end of the Interest Period in effect for such Borrowing into an ABR Borrowing;

(h)    no Interest Period may be selected for any Eurodollar Term Borrowing that would end later than a Repayment Date occurring on or after the first day of such Interest Period if, after giving effect to such selection, the aggregate outstanding amount of (A) the Eurodollar Term Borrowings with Interest Periods ending on or prior to such Repayment Date and (B) the ABR Term Borrowings would not be at least equal to the principal amount of Term Borrowings to be paid on such Repayment Date; and

(i)    upon notice to the Borrower from the Administrative Agent given at the request of the Required Lenders, after the occurrence and during the continuance of a Default or Event of Default, no outstanding Loan may be converted into, or continued as, a Eurodollar Loan.

Each notice pursuant to this Section 2.10 shall be irrevocable and shall refer to this Agreement and specify (i) the identity and amount of the Borrowing that the Borrower requests be converted or continued, (ii) whether such Borrowing is to be converted to or continued as a Eurodollar Borrowing or an ABR Borrowing, (iii) if such notice requests a conversion, the date of such conversion (which shall be a Business Day) and (iv) if such Borrowing is to be converted to or continued as a Eurodollar Borrowing, the Interest Period with respect thereto. If no Interest Period is specified in any such notice with respect to any conversion to or continuation as a Eurodollar Borrowing, the Borrower shall be deemed to have selected an Interest Period of one month’s duration. The Administrative Agent shall promptly advise the Lenders of any notice given pursuant to this Section 2.10 and of each Lender’s portion of any converted or continued Borrowing. If the Borrower shall not have given notice in accordance with this Section 2.10 to continue any Borrowing into a subsequent Interest Period (and shall not otherwise have given notice in accordance with this Section 2.10 to convert such Borrowing), such Borrowing shall, at the end of the Interest Period applicable thereto (unless repaid pursuant to the terms hereof), automatically be converted into an ABR Borrowing.

 

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Section 2.11    Repayment of Term Borrowings. (a) The Borrower shall pay to the Administrative Agent, for the account of the Lenders, on (each such date being called a “Repayment Date”) (i) the Closing Date, $37,500,000 and (ii) thereafter in quarterly installments equal to the amounts listed below (which installments shall be reduced as a result of the application of prepayments as specified in Section 2.13(g)) and each such payment shall be made on the last Business Day of each month as follows:

 

Repayment Date

   Principal Amount  

March 2018

   $ 7,500,000  

June 2018

   $ 7,500,000  

September 2018

   $ 7,500,000  

December 2018

   $ 7,500,000  

March 2019

   $ 10,000,000  

June 2019

   $ 26,700,000  

September 2019

   $ 36,700,000  

December 2019

   $ 36,700,000  

each March, June, September and December thereafter

   $ 15,000,000  

Each payment pursuant to this Section 2.11 shall be made together with accrued and unpaid interest on the principal amount to be paid to but excluding the date of such payment.

In the event any Refinancing Term Loans are made, such Refinancing Term Loans shall be repaid in amounts and on dates as agreed between the Borrower and the relevant Lenders of such Refinancing Term Loans, subject to the requirements set forth in Section 2.27 and to adjustment from time to time pursuant to Section 2.12(b), Section 2.13(g) and Section 9.04(l), together in each case, with accrued and unpaid interest on the principal amount to be paid to but excluding the date of such payment.

(b)    To the extent not previously paid, all Term Loans of any Class shall be due and payable on the Maturity Date applicable to the Term Loans of such Class, together with accrued and unpaid interest on the principal amount to be paid to but excluding the date of payment.

(c)    All repayments pursuant to this Section 2.11 shall be subject to Section 2.16, but shall otherwise be without premium or penalty.

Section 2.12    Voluntary Prepayment. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, in whole or in part, upon at least three Business Days’ prior written or fax notice (or telephone notice promptly confirmed by written or fax notice) in the case of Eurodollar Loans, or written or fax notice (or telephone notice promptly confirmed by written or fax notice) at least one Business Day prior to the date of prepayment in the case of ABR Loans, to the Administrative Agent before 12:00 (noon), New York City time; provided, however, that each partial prepayment shall be in an amount that is an integral multiple of $1,000,000 and not less than $5,000,000 in the case of a Term Borrowing.

(b)    Voluntary prepayments of any Class of Term Loans shall be applied against the remaining scheduled installments of principal due in respect of the applicable Class of Term Loans under Section 2.11 as may be specified by the Borrower, or if not so specified, in direct order of maturity; provided that such prepayments shall be allocated to the Tranche B Term Loans on a pro rata basis (or on a greater than pro rata basis) determined by reference to all Term Loans then outstanding.

 

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(c)    Each notice of prepayment shall specify the prepayment date and the principal amount of each Borrowing (or portion thereof) to be prepaid, shall be irrevocable and shall commit the Borrower to prepay such Borrowing by the amount stated therein on the date stated therein; provided, however, that if such prepayment is for all of the then outstanding Loans, then the Borrower may (x) revoke such notice prior to the proposed date of prepayment and/or (y) extend the prepayment date by not more than five Business Days; provided further, however, that the provisions of Section 2.16 shall apply with respect to any such revocation or extension. All prepayments under this Section 2.12 shall be subject to Section 2.16 but otherwise without premium or penalty. All prepayments under this Section 2.12 shall be accompanied by accrued and unpaid interest on the principal amount to be prepaid to but excluding the date of payment.

Section 2.13    Mandatory Prepayments. (a) [Reserved].

(b)    In addition to any other mandatory repayments pursuant to this Section 2.13, on each date on or after the Closing Date upon which the Borrower or any Restricted Subsidiary receives any cash proceeds from any issuance or incurrence by the Borrower or any Restricted Subsidiary of Indebtedness for borrowed money (other than Indebtedness permitted to be incurred pursuant to Section 6.04, other than Permitted External Refinancing Indebtedness and Refinancing Term Loans), an amount equal to 100% of the Net Cash Proceeds of the respective issuance or incurrence of such Indebtedness shall be applied on such date as a mandatory repayment in accordance with the requirements of Section 2.13(g).

(c)    Unless otherwise agreed by the Required Lenders, in addition to any other mandatory repayments pursuant to this Section 2.13, on each date upon which the Borrower or any Restricted Subsidiary receives (other than in connection with any Disposition to the Borrower or a Subsidiary Guarantor) any cash proceeds from (i) any Non-Core Asset Sale, an amount equal to 100% of the Net Sale Proceeds therefrom shall be applied on such date as a mandatory repayment in accordance with the requirements of Section 2.13(g), (ii) any Disposition of (A) any Bulk MSR (other than any such Disposition required by the following clause (iii) hereof) and/or (B) any Asset Sale, in each case, in an amount equal to 80% of the Net Sale Proceeds therefrom shall be applied on such date as a mandatory repayment in accordance with the requirements of Section 2.13(g), or (iii) any Disposition on or prior to February 15, 2018 of Government Sponsored Entity-related Bulk MSR, an amount equal to the sum of (A) 80% of the gross proceeds therefrom (excluding the proceeds of the Disposition of any related Servicing Advances) and (B) 80% of the Net Sale Proceeds of the Servicing Advances related to the Bulk MSR subject to such Disposition shall be applied on such date as a mandatory repayment in accordance with the requirements of Section 2.13(g).

(d)    In addition to any other mandatory repayments pursuant to this Section 2.13, on each Excess Cash Flow Payment Date, an amount equal to the remainder of (if positive) (i) the Applicable Excess Cash Flow Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) the aggregate amount of principal prepayments of Loans to the extent (and only to the extent) that such prepayments were made as a voluntary prepayment pursuant to Section 2.12(a) other than with proceeds of asset sales (other than from sales of inventory in the ordinary course of business), sales or issuances of Equity Interests, capital contributions, insurance or condemnation events or Indebtedness or other proceeds that would not be included in Adjusted Consolidated Net Income during the relevant Excess Cash Flow Payment Period minus (iii) the face value of Term Loans assigned to or purchased by the Borrower pursuant to Section 9.04(l) during the relevant Excess Cash Flow Payment Period, shall be applied as a mandatory repayment in accordance with the requirements of Section 2.13(g); provided that the amount required to be applied as a mandatory prepayment pursuant to this Section 2.13(d) for any Excess Cash Flow Payment Period shall not exceed an amount equal to (x) 75% of the Excess Cash Flow for such Excess Cash Flow Payment Period minus (y) scheduled installments of principal due in respect of the Term Loans under Section 2.11(a) paid during the related

 

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Excess Cash Flow Payment Period. Notwithstanding the foregoing, at the option of the Borrower, all or any portion of any mandatory repayment required pursuant to this clause (d) for any Excess Cash Flow Payment Period may be paid or applied prior to the related Excess Cash Flow Payment Date (but no earlier than January 1 of the fiscal year in which the related Excess Cash Flow Payment Date occurs), provided that (x) no such mandatory repayment shall be added to the aggregate amount of principal prepayments described in subclause (ii) above for any succeeding Excess Cash Flow Payment Period and (y) the Borrower shall pay such additional amounts (if any) as necessary to pay the full amount of any mandatory repayment required pursuant to this clause (d) no later than the applicable Excess Cash Flow Payment Date (it being understood that if such initial prepayment exceeds such requirement, such excess shall be treated as a voluntary prepayment pursuant to Section 2.12(a) in the fiscal year in which such prepayment was made).

(e)    In addition to any other mandatory repayments pursuant to this Section 2.13, within one Business Day following each date on or after the Closing Date upon which the Borrower or any Restricted Subsidiary receives any cash proceeds from any Recovery Event (other than Recovery Events where the Net Cash Proceeds therefrom do not exceed $250,000), an amount equal to 100% of the Net Cash Proceeds from such Recovery Event shall be applied on such date as a mandatory repayment in accordance with the requirements of Section 2.13(g); provided, however, that such Net Cash Proceeds shall not be required to be so applied on such date so long as no Default or Event of Default then exists and the Borrower has delivered a certificate to the Administrative Agent on such date stating that such Net Cash Proceeds shall be reinvested (or contractually committed to be reinvested pursuant to a written binding agreement with a Person that is not an Affiliate of the Borrower or any Restricted Subsidiary) in the businesses permitted of the Borrower and its Restricted Subsidiaries pursuant to Section 6.13 within 365 days following the date of the receipt of such Net Cash Proceeds, and provided further, that (I) if all or any portion of such Net Cash Proceeds not required to be so applied pursuant to the preceding proviso are not so reinvested (or contractually committed to be so reinvested) within 365 days after the date of the receipt of such Net Cash Proceeds (or such earlier date, if any, as the Borrower or the relevant Restricted Subsidiary determines not to reinvest the Net Cash Proceeds relating to such Recovery Event as set forth above), such remaining portion shall be applied on the last day of such period (or such earlier date, as the case may be) as provided above in this Section 2.13(e) without regard to the immediately preceding proviso and (II) if all or any portion of such proceeds are not required to be applied on the last day of such 365-day period referred to in clause (I) of this proviso because such amount is contractually committed to be reinvested and then either (A) subsequent to such date such contract is terminated or expires without such portion being so reinvested or (B) such contractually committed portion is not so reinvested within 180 days after the date of such commitment, such remaining portion, in the case of either of preceding clause (A) or (B), shall be applied as a mandatory repayment as provided above in this Section 2.13(e) without regard to the immediately preceding proviso.

(f)    [Reserved].

(g)    Each amount required to be applied pursuant to Section 2.13(b) through Section 2.13(e) in accordance with this Section 2.13(g) shall be applied pro rata according to the respective outstanding principal amounts of the Term Loans then held by the Term Lenders (except to the extent that any applicable Additional Credit Extension Amendment for any Class of Term Loans provides that such Term Loans shall be entitled to less than pro rata treatment); provided that any prepayment of Term Loans required as a result of the incurrence of Permitted External Refinancing Indebtedness or Refinancing Term Loans in respect of any such Class shall be applied solely to such Class. Each such prepayment of the Tranche B Term Loans shall be applied in inverse order of maturity against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans under Section 2.11(a). Each prepayment of any other Class of Term Loans shall be applied as agreed between the Borrower and the Lenders in respect of such Term Loans.

 

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(h)    The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.13, (i) a certificate signed by an Authorized Officer of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and (ii) at least three Business Days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date, the Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings under this Section 2.13 shall be subject to Section 2.16 and, in the case of any prepayment pursuant to Section 2.13(b), but shall otherwise be without premium or penalty, and shall be accompanied by accrued and unpaid interest on the principal amount to be prepaid to but excluding the date of payment.

Section 2.14    Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision of this Agreement, if any Change in Law shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of or credit extended by any Lender or any Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate), shall subject a Lender to Taxes (other than Indemnified Taxes, Other Taxes and Excluded Taxes) on its loans, loan principal, letters of credit, commitments or other obligations, or on its deposits, reserves, other liabilities or capital attributable thereto or shall impose on such Lender or such Issuing Bank or the London interbank market any other condition (other than Taxes) affecting this Agreement or Eurodollar Loans made by such Lender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Lender or such Issuing Bank of making or maintaining any Eurodollar Loan or increase the cost to any Lender or any Issuing Bank of issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or such Issuing Bank hereunder (whether of principal, interest or otherwise) by an amount deemed by such Lender or such Issuing Bank to be material, then the Borrower will pay to such Lender or such Issuing Bank,, as the case may be, upon demand such additional amount or amounts as will compensate such Lender or such Issuing Bank,, as the case may be for such additional costs incurred or reduction suffered.

(b)    If any Lender or any Issuing Bank shall have determined that any Change in Law regarding capital adequacy has or would have the effect of reducing the rate of return on such Lender’s or such Issuing Bank’s capital or on the capital of such Lender’s or such Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made to a level below that which such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or such Issuing Bank’s policies and the policies of such Lender’s or such Issuing Bank’s holding company with respect to capital adequacy) by an amount deemed by such Lender or such Issuing Bank to be material, then from time to time the Borrower shall pay to such Lender or such Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or Issuing Bank or such Lender’s or such Issuing Bank’s holding company for any such reduction suffered.

(c)    A certificate of a Lender or an Issuing Bank setting forth the amount or amounts necessary to compensate such Lender or such Issuing Bank or its holding company, as applicable, as specified in paragraph (a) or (b) above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender or such Issuing Bank the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the same.

(d)    Failure or delay on the part of any Lender or any Issuing Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital shall not constitute a waiver of such Lender’s or such Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be under any obligation to compensate any Lender or any Issuing Bank under paragraph (a) or (b) above with respect to increased costs or reductions with respect to any

 

49


period prior to the date that is 180 days prior to such request if such Lender or such Issuing Bank knew or could reasonably have been expected to know of the circumstances giving rise to such increased costs or reductions and of the fact that such circumstances would result in a claim for increased compensation by reason of such increased costs or reductions; provided further that the foregoing limitation shall not apply to any increased costs or reductions arising out of the retroactive application of any Change in Law within such 180-day period. The protection of this Section shall be available to each Lender and each Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the Change in Law that shall have occurred or been imposed.

Section 2.15    Change in Legality. (a) Notwithstanding any other provision of this Agreement, if any Change in Law shall make it unlawful for any Lender to make or maintain any Eurodollar Loan or to give effect to its obligations as contemplated hereby with respect to any Eurodollar Loan, then, by written notice to the Borrower and to the Administrative Agent:

(i)    such Lender may declare that Eurodollar Loans will not thereafter (for the duration of such unlawfulness) be made by such Lender hereunder (or be continued for additional Interest Periods) and ABR Loans will not thereafter (for such duration) be converted into Eurodollar Loans, whereupon any request for a Eurodollar Borrowing (or to convert an ABR Borrowing to a Eurodollar Borrowing or to continue a Eurodollar Borrowing for an additional Interest Period) shall, as to such Lender only, be deemed a request for an ABR Loan (or a request to continue an ABR Loan as such for an additional Interest Period or to convert a Eurodollar Loan into an ABR Loan, as the case may be), unless such declaration shall be subsequently withdrawn; and

(ii)    such Lender may require that all outstanding Eurodollar Loans made by it be converted to ABR Loans, in which event all such Eurodollar Loans shall be automatically converted to ABR Loans as of the effective date of such notice as provided in paragraph (b) below.

In the event any Lender shall exercise its rights under (i) or (ii) above, all payments and prepayments of principal that would otherwise have been applied to repay the Eurodollar Loans that would have been made by such Lender or the converted Eurodollar Loans of such Lender shall instead be applied to repay the ABR Loans made by such Lender in lieu of, or resulting from the conversion of, such Eurodollar Loans.

(b)    For purposes of this Section 2.15, a notice to the Borrower by any Lender shall be effective as to each Eurodollar Loan made by such Lender, if lawful, on the last day of the Interest Period then applicable to such Eurodollar Loan; in all other cases such notice shall be effective on the date of receipt by the Borrower.

Section 2.16    Breakage. The Borrower shall indemnify each Lender against any loss or expense that such Lender may sustain or incur as a consequence of (a) any event, other than a default by such Lender in the performance of its obligations hereunder, which results in (i) such Lender receiving or being deemed to receive any amount on account of the principal of any Eurodollar Loan prior to the end of the Interest Period in effect therefor, (ii) the conversion of any Eurodollar Loan to an ABR Loan, or the conversion of the Interest Period with respect to any Eurodollar Loan, in each case other than on the last day of the Interest Period in effect therefor, or (iii) any Eurodollar Loan to be made by such Lender (including any Eurodollar Loan to be made pursuant to a conversion or continuation under Section 2.10) not being made after notice of such Loan shall have been given by the Borrower hereunder (any of the events referred to in this clause (a) being called a “Breakage Event”) or (b) any default in the making of any payment or prepayment required to be made hereunder. In the case of any Breakage Event, such loss

 

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shall include an amount equal to the excess, as reasonably determined by such Lender, of (i)its cost of obtaining funds for the Eurodollar Loan that is the subject of such Breakage Event for the period from the date of such Breakage Event to the last day of the Interest Period in effect (or that would have been in effect) for such Loan over (ii) the amount of interest likely to be realized by such Lender in redeploying the funds released or not utilized by reason of such Breakage Event for such period. A certificate of any Lender setting forth any amount or amounts which such Lender is entitled to receive pursuant to this Section 2.16 shall be delivered to the Borrower and shall be conclusive absent manifest error.

Section 2.17    Pro Rata Treatment. Subject to the express provisions of this Agreement which require, or permit, differing payments to be made to Non-Defaulting Lenders as opposed to Defaulting Lenders, and as permitted pursuant to the terms of any Additional Credit Extension Amendment, as permitted under Section 9.04(l) or required under Section 2.15, each Borrowing, each payment or prepayment of principal of any Borrowing, each payment of interest on the Loans, each reduction of the Commitments, each conversion of any Borrowing to or continuation of any Borrowing as a Borrowing of any Type and each other payment received by any Lender by exercising any right of setoff, counterclaim or otherwise shall be allocated pro rata among the Lenders in accordance with their respective applicable Commitments (or, if such Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Loans). Each Lender agrees that in computing such Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Lender’s percentage of such Borrowing to the next higher or lower whole Dollar amount.

Section 2.18    Sharing of Setoffs. Each Lender agrees that if it shall, through the exercise of a right of banker’s lien, setoff or counterclaim against the Borrower or any other Credit Party, or pursuant to a secured claim under Section 506 of Title 11 of the United States Code or other security or interest arising from, or in lieu of, such secured claim, received by such Lender under any applicable bankruptcy, insolvency or other similar law or otherwise, or by any other means, obtain payment (voluntary or involuntary) in respect of any Loan or Loans or L/C Disbursement as a result of which the unpaid principal portion of its Loans and participations in L/C Disbursements shall be proportionately less than the unpaid principal portion of the Loans and participations in L/C Disbursements of any other Lender, it shall be deemed simultaneously to have purchased from such other Lender at face value, and shall promptly pay to such other Lender the purchase price for, a participation in the Loans and L/C Exposure of such other Lender, so that the aggregate unpaid principal amount of the Loans and L/C Exposure and participations in Loans and L/C Exposure held by each Lender shall be in the same proportion to the aggregate unpaid principal amount of all Loans and L/C Exposure then outstanding as the principal amount of its Loans and L/C Exposure prior to such exercise of banker’s lien, setoff or counterclaim or other event was to the principal amount of all Loans and L/C Exposure outstanding prior to such exercise of banker’s lien, setoff or counterclaim or other event; provided, however, that (i) if any such purchase or purchases or adjustments shall be made pursuant to this Section 2.18 and the payment giving rise thereto shall thereafter be recovered, such purchase or purchases or adjustments shall be rescinded to the extent of such recovery and the purchase price or prices or adjustment restored without interest, and (ii) the provisions of this Section 2.18 shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including any application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or participant, other than, unless such assignment was made pursuant to Section 9.04(l), to the Borrower or any of its Affiliates (it being understood that, unless such assignment was made pursuant to Section 9.04(l), the provisions of this Section 2.18 shall apply). The Borrower expressly consents to the foregoing arrangements and agree that any Lender holding a participation in a Loan or L/C Disbursement deemed to have been so purchased may exercise any and all rights of banker’s lien, setoff or counterclaim with respect to any and all moneys owing by the Borrower to such Lender by reason thereof as fully as if such Lender had made a Loan directly to the Borrower in the amount of such participation.

 

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Section 2.19    Payments. (a) The Borrower shall make each payment (including principal of or interest on any Borrowing or any L/C Disbursement or any Fees or other amounts) hereunder and under any other Credit Document not later than 12:00 (noon), New York City time, on the date when due in immediately available Dollars, without setoff, defense or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. Each such payment shall be made to the Administrative Agent at its offices at Eleven Madison Avenue, New York, NY 10010. The Administrative Agent shall promptly distribute to each Lender any payments received by the Administrative Agent on behalf of such Lender.

(b)    Except as otherwise expressly provided herein, whenever any payment (including principal of or interest on any Borrowing or any Fees or other amounts) hereunder or under any other Credit Document shall become due, or otherwise would occur, on a day that is not a Business Day, such payment may be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of interest or Fees, if applicable.

Section 2.20    Taxes. (a) Any and all payments by or on account of any obligation of the Borrower or any other Credit Party hereunder or under any other Credit Document shall be made free and clear of and without deduction for any Indemnified Taxes or Other Taxes except as required by law; provided that, if the Borrower or any other Credit Party shall be required to deduct any Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable shall be increased as necessary so that after making all required deductions for Indemnified Taxes or Other Taxes (including deductions for Indemnified Taxes or Other Taxes applicable to additional sums payable under this Section) the Administrative Agent, each Lender and each Issuing Bank (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower or such Credit Party shall make such deductions and (iii) the Borrower or such Credit Party shall pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law.

(b)    In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.

(c)    (i) Indemnification by the Borrower. The Borrower shall indemnify the Administrative Agent, each Lender and each Issuing Bank, within 10 days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent, such Lender or such Issuing Bank, as the case may be, on or with respect to any payment by or on account of any obligation of the Borrower or any other Credit Party hereunder or under any other Credit Document (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender or an Issuing Bank, or by the Administrative Agent on behalf of itself, a Lender or an Issuing Bank, shall be conclusive absent manifest error.

(ii)    Indemnification by Lenders. Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (x) any Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so) (y) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 9.04(f) relating to the maintenance of the Participant Register and (z) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Credit Document, and any reasonable expenses

 

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arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Credit Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (c)(ii).

(d)    As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the Borrower or any other Credit Party to a Governmental Authority, the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

(e)    (i) Any Lender that is entitled to an exemption from or reduction of withholding tax with respect to payments under this Agreement or any other Credit Document shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate. In addition, any Lender, if requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to any withholding (including backup withholding) or information reporting requirements. Upon the reasonable request of such Borrower or the Administrative Agent, any Lender shall update any form or certification previously delivered pursuant to this Section 2.20(e). If any form or certification previously delivered pursuant to this Section expires or becomes obsolete or inaccurate in any respect with respect to a Lender, such Lender shall promptly (and in any event within 10 days after such expiration, obsolescence or inaccuracy) notify such Borrower and the Administrative Agent in writing of such expiration, obsolescence or inaccuracy and update the form or certification if it is legally eligible to do so.

(ii)    Without limiting the generality of the foregoing, if the Borrower is a “United States person” within the meaning of Section 7701(a)(30) of the Code, any Lender with respect to such Borrower shall, if it is legally eligible to do so, deliver to such Borrower and the Administrative Agent (in such number of copies reasonably requested by such Borrower and the Administrative Agent) on or prior to the date on which such Lender becomes a party hereto, duly completed and executed copies of whichever of the following is applicable:

(A)    in the case of a Lender that is not a Foreign Lender, IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;

(B)    in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (1) with respect to payments of interest under any Credit Document, IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (2) with respect to any other applicable payments under any Credit Document, IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

 

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(C)    in the case of a Foreign Lender for which payments under any Credit Document constitute income that is effectively connected with such Lender’s conduct of a trade or business in the United States, IRS Form W-8ECI;

(D)    in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code both (1) IRS Form W-8BEN or W-8BEN-E and (2) a certificate to the effect that such Lender is not (a) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (b) a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code (c) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code and (d) conducting a trade or business in the United States with which the relevant interest payments are effectively connected;

(E)    in the case of a Foreign Lender that is not the beneficial owner of payments made under any Credit Document (including a partnership or a participating Lender) (1) an IRS Form W-8IMY on behalf of itself and (2) the relevant forms prescribed in clauses (A), (B), (C), (D) and (F) of this paragraph (e)(ii) that would be required of each such beneficial owner or partner of such partnership if such beneficial owner or partner were a Lender; provided, however, that if the Lender is a partnership and one or more of its partners are claiming the exemption for portfolio interest under Section 881(c) of the Code, such Lender may provide the certificate described in (D)(2) above on behalf of such partners; or

(F)    any other form prescribed by law as a basis for claiming exemption from, or a reduction of, U.S. federal withholding Tax together with such supplementary documentation necessary to enable the Borrower or the Administrative Agent to determine the amount of Tax (if any) required by law to be withheld.

(G)    If a payment made to a Lender under any Credit Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the applicable withholding agent, at the time or times prescribed by law and at such time or times reasonably requested by such withholding agent, such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the withholding agent as may be necessary for the withholding agent to comply with its obligations under FATCA, to determine that such Lender has or has not complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this Section 2.20(e)(iii), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

(f)    If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.20 (including additional amounts pursuant to this Section 2.20), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (f) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified

 

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party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (f), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (f) the payment of which would place the 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, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

(g)    For purposes of this Section 2.20, the term “Lender” includes any Issuing Bank.

(h)    For purposes of determining withholding Taxes imposed under FATCA, from and after the Closing Date, the Borrower and the Administrative Agent shall treat (and the Lenders hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).

Section 2.21    Assignment of Commitments Under Certain Circumstances; Duty to Mitigate. (a) In the event (i) any Lender or any Issuing Bank delivers a certificate requesting compensation pursuant to Section 2.14, (ii) any Lender or any Issuing Bank delivers a notice described in Section 2.15, (iii) the Borrower is required to pay any additional amount to any Lender or any Issuing Bank or any Governmental Authority on account of any Lender or any Issuing Bank pursuant to Section 2.20, (iv) any Lender refuses to consent to any amendment, waiver or other modification of any Credit Document requested by the Borrower that requires the consent of a greater percentage of the Lenders than the Required Lenders and such amendment, waiver or other modification is consented to by the Required Lenders, or (v) any Lender becomes a Defaulting Lender, then, in each case, the Borrower may, at its sole expense and effort (including with respect to the processing and recordation fee referred to in Section 9.04(b)), upon notice to such Lender or such Issuing Bank, as the case may be, and the Administrative Agent, require such Lender or such Issuing Bank to transfer and assign, without recourse (in accordance with and subject to the restrictions contained in Section 9.04), all of its interests, rights and obligations under this Agreement (or, in the case of clause (iv) above, all of its interests, rights and obligation with respect to the Class of Loans or Commitments that is the subject of the related consent, amendment, waiver or other modification) to an Eligible Assignee that shall assume such assigned obligations and, with respect to clause (iv) above, shall consent to such requested amendment, waiver or other modification of any Credit Documents (which assignee may be another Lender, if a Lender accepts such assignment); provided that (x) such assignment shall not conflict with any law, rule or regulation or order of any court or other Governmental Authority having jurisdiction, (y) the Borrower shall have received the prior written consent of the Administrative Agent, which consents shall not unreasonably be withheld or delayed, and (z) the Borrower or such assignee shall have paid to the affected Lender or the affected Issuing Bank in immediately available funds an amount equal to the sum of the principal of and interest accrued to the date of such payment on the outstanding Loans or L/C Disbursements of such Lender or such Issuing Bank, respectively, plus all Fees and other amounts accrued for the account of such Lender or such Issuing Bank hereunder with respect thereto (including any amounts under Sections 2.14 and 2.16); provided further that, if prior to any such transfer and assignment the circumstances or event that resulted in such Lender’s or such Issuing Bank’s claim for compensation under Section 2.14, notice under Section 2.15 or the amounts paid pursuant to Section 2.20, as the case may be, cease to cause such Lender or such Issuing Bank to suffer increased costs or reductions in amounts received or receivable or reduction in return on capital, or cease to have the consequences specified in Section 2.15, or cease to result in amounts being payable under Section 2.20, as the case may be (including as a result of any action taken by such Lender or such Issuing Bank pursuant to paragraph (b) below), or if such Lender or such Issuing Bank shall waive its right to claim further compensation under Section 2.14 in respect of such

 

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circumstances or event or shall withdraw its notice under Section 2.15 or shall waive its right to further payments under Section 2.20 in respect of such circumstances or event or shall consent to the proposed amendment, waiver, consent or other modification, as the case may be, then such Lender or such Issuing Bank shall not thereafter be required to make any such transfer and assignment hereunder. Each Lender and each Issuing Bank hereby grants to the Administrative Agent an irrevocable power of attorney (which power is coupled with an interest) to execute and deliver, on behalf of such Lender or such Issuing Bank, as the case may be, as assignor, any Assignment and Acceptance necessary to effectuate any assignment of such Lender’s or such Issuing Bank’s interests hereunder in the circumstances contemplated by this Section 2.21(a).

(b)    If (i) any Lender or any Issuing Bank shall request compensation under Section 2.14, (ii) any Lender or any Issuing Bank delivers a notice described in Section 2.15 or (iii) the Borrower is required to pay any additional amount to any Lender or any Issuing Bank or any Governmental Authority on account of any Lender or any Issuing Bank, pursuant to Section 2.20, then such Lender or such Issuing Bank shall use reasonable efforts (which shall not require such Lender or such Issuing Bank to incur an unreimbursed loss or unreimbursed cost or expense or otherwise take any action inconsistent with its internal policies or legal or regulatory restrictions or suffer any disadvantage or burden deemed by it to be significant) (x) to file any certificate or document reasonably requested in writing by the Borrower or (y) to assign its rights and delegate and transfer its obligations hereunder to another of its offices, branches or affiliates, if such filing or assignment would reduce its claims for compensation under Section 2.14 or enable it to withdraw its notice pursuant to Section 2.15 or would reduce amounts payable pursuant to Section 2.20, as the case may be, in the future. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender or any Issuing Bank in connection with any such filing or assignment, delegation and transfer.

Section 2.22    [Reserved].

Section 2.23    [Reserved].

Section 2.24    Defaulting Lenders. (a) Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:

(i)    Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of Required Lenders.

(ii)    Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 8 or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 9.06 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; third, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement; fourth, to the payment of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this

 

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Agreement; fifth, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement and sixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction.

(b)    If the Borrower and the Collateral Agent agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice such Lender will cease to be a Defaulting Lender; provided, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

Section 2.25    Incremental Facilities.

(a)    The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental L/C Commitments in an amount such that, after giving effect thereto, (i) the Aggregate Incremental Amount does not exceed the L/C Cap. Such notice shall set forth (i) the amount of the Incremental L/C Commitments being requested (which shall be in minimum increments of $100,000 and a minimum amount of $1,000,000) and (ii) the date on which such Incremental L/C Commitments are requested to become effective (which shall not be less than 5 Business Days nor more than 60 days after the date of such notice (or such shorter periods as the Administrative Agent shall agree)). The Borrower may seek Incremental L/C Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender.

(b)    It shall be a condition precedent to the effectiveness of any Incremental L/C Commitment and the issuance of the Letters of Credit that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental L/C Commitment and (ii) the terms of such Incremental L/C Commitments and the Letters of Credit issued thereunder shall comply with Section 2.25(c).

(c)    The terms of the Incremental L/C Commitments and the Letters of Credit issued pursuant thereto shall be determined by the Borrower and the applicable Incremental Issuing Bank and set forth in an Additional Credit Extension Amendment (including any applicable conditions for the issuance of a Letter of Credit); provided that (i) the Incremental L/C Commitments will rank pari passu in right of payment and with respect to security with the Tranche B Term Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Credit Party; provided that the foregoing shall not prohibit the posting of cash collateral to secure the Letters of Credit issued pursuant to such Incremental L/C Commitments, (ii) any L/C Disbursement may participate on a pro rata basis, greater than pro rata basis or less than pro rata basis in any voluntary or mandatory prepayments or commitment reductions hereunder, as specified in the applicable Additional Credit Extension Amendment and (iii) the L/C Commitments may be cancelled and/or terminated on a non-pro rata basis with respect to the Term Loans.

(d)    In connection with any Incremental L/C Commitments, the Borrower, the Administrative Agent and each applicable Incremental Issuing Bank shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental L/C Commitment of each Incremental Issuing Bank. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Credit Extension Amendment. Any Additional Credit Extension Amendment may, without consent of any other Lender, effect such amendments to this Agreement and the other Credit Documents

 

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as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment and implementation of the L/C Commitments and any other technical amendments as may be necessary or appropriate (as reasonably determined by the Administrative Agent and the Borrower) in connection with the foregoing, in each case on terms consistent with this Section 2.25.

(e)    This Section 2.25 shall supersede any provisions in Section 2.17 or Section 9.08 to the contrary.

Section 2.26    Amend and Extend Transactions.

(a)    The Borrower may, by written notice to the Administrative Agent from time to time, request an extension (each, an “Extension” and each such notice, an “Extension Request”) of L/C Commitments of a Class (which term, for purposes of this provision, shall also include any tranche of L/C Commitments outstanding hereunder pursuant to a previous Amend and Extend Transaction) and/or Term Loans of a Class (which term, for purposes of this provision, shall also include any term loans outstanding hereunder pursuant to a previous Amend and Extend Transaction or any Refinancing Term Loans) to the extended maturity date specified in such notice. Such notice shall set forth (i) the amount of the applicable Class of L/C Commitments and/or Term Loans to be extended (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Extension is requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such Extension Request (or such longer or shorter periods as the Administrative Agent shall agree)) and (iii) the relevant Class or Classes of L/C Commitments and/or Term Loans to which the Extension Request relates. Each Lender of the applicable Class shall be offered (an “Extension Offer”) an opportunity to participate in such Extension on a pro rata basis and on the same terms and conditions as each other Lender of such Class pursuant to procedures established by, or reasonably acceptable to, the Administrative Agent. If the aggregate principal amount of Term Loans (calculated on the face amount thereof) or L/C Commitments in respect of which Lenders shall have accepted the relevant Extension Offer shall exceed the maximum aggregate principal amount of Term Loans or L/C Commitments, as applicable, offered to be extended by the Borrower pursuant to such Extension Offer, then the Term Loans or L/C Commitments, as applicable, of Lenders of the applicable Class shall be extended ratably up to such maximum amount based on the respective principal amounts (but not to exceed actual holdings of record) with respect to which such Lenders have accepted such Extension Offer.

(b)    It shall be a condition precedent to the effectiveness of any Extension that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to and immediately after giving effect to such Extension, (ii) the representations and warranties set forth in Article 3 and in each other Credit Document shall be true and correct in all material respects on and as of the date of such Extension and (iii) the terms of such Extended L/C Commitments and Extended Term Loans shall comply with Section 2.26(c).

(c)    The terms of each Extension shall be determined by the Borrower and the applicable extending Lender and set forth in an Additional Credit Extension Amendment; provided that (i) the final maturity date of any Extended Term Loan or Extended L/C Commitment shall be no earlier than the then Latest Maturity Date applicable to the original Term Loans or L/C Commitments, respectively, at the time of Extension, (ii)(A) there shall be no scheduled amortization of the Extended L/C Commitments, (B) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans under the applicable Credit Facility not extended pursuant to such Extension Offer and (C) any Extended Term Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory

 

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prepayments or commitment reductions hereunder, as specified in the applicable Extension Offer, (iii) the L/C Disbursements pursuant to such Extended L/C Commitments and the Extended Term Loans will rank pari passu in right of payment and with respect to security with the Term Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Credit Party, (iv) the interest rate margin, rate floors, fees, original issue discounts and premiums applicable to any Extended Term Loans or Extended L/C Commitments (and the letters of credit issued pursuant thereto) shall be determined by the Borrower and the lenders providing such Extended Term Loans or Extended L/C Commitments, as applicable and (v) to the extent the terms of the Extended Term Loans or the Extended L/C Commitments are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent.

(d)    In connection with any Extension, the Borrower, the Administrative Agent and each applicable extending Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extension. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Extension. Any Additional Credit Extension Amendment may, without the consent of any other Lender, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to implement the terms of any such Extension Offer, including any amendments necessary to establish Extended Term Loans or Extended L/C Commitments as a new Class or tranche of Term Loans or Incremental L/C Commitments, as applicable, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms not inconsistent with this Section 2.26).

(e)    In the event that the Administrative Agent determines in its sole discretion that the allocation of Extended Term Loans of a given Extension Series or the Extended L/C Commitments of a given Extension Series, in each case to a given Lender was incorrectly determined as a result of manifest administrative error, then the Administrative Agent, the Borrower and such affected Lender may (and hereby are authorized to), in their sole discretion and without the consent of any other Lender, enter into an amendment to this Agreement and the other Credit Documents (each, a “Corrective Extension Amendment”) within 15 days following the determination of such error, as the case may be, which Corrective Extension Amendment shall (i) provide for the conversion and extension of Term Loans under the existing Term Loan Class or existing L/C Commitments, as the case may be, in such amount as is required to cause such Lender to hold Extended Term Loans or Extended L/C Commitments (and related letters of credit and L/C Disbursements) of the applicable Extension Series into which such other Term Loans or L/C Commitments were initially converted, as the case may be, in the amount such Lender would have held had such administrative error not occurred and had such Lender received the minimum allocation of the applicable Loans or Commitments to which it was entitled under the terms of such Extension Amendment, in the absence of such error, (ii) be subject to the satisfaction of such conditions as the Administrative Agent, the Borrower and such Lender may agree, and (iii) effect such other amendments of the type (with appropriate reference and nomenclature changes) described in the penultimate sentence of Section 2.26(d).

(f)    This Section 2.26 shall supersede any provisions in Section 2.17 or Section 9.08 to the contrary.

 

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Section 2.27    Credit Agreement Refinancing Facilities.

(a)    The Borrower may, by written notice to the Administrative Agent from time to time, request Refinancing Term Loans to refinance all or a portion of any existing Class of Term Loans (the “Refinanced Term Loans”) in an aggregate principal amount not to exceed the aggregate principal amount of the Refinanced Term Loans plus any accrued interest, fees, costs and expenses related thereto (including any original issue discount or upfront fees). Such notice shall set forth (i) the amount of the applicable Refinanced Term Loans (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000) and (ii) the date on which the applicable Additional Credit Extension Amendment is to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter periods as the Administrative Agent shall agree)). The Borrower may seek Refinancing Term Loans from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender.

(b)    It shall be a condition precedent to the effectiveness of each Additional Credit Extension Amendment and the incurrence of any Refinancing Term Loans thereunder that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to the incurrence of such Refinancing Term Loans, (ii) the representations and warranties set forth in Article 3 and in each other Credit Document shall be true and correct in all material respects on and as of the date such Additional Credit Extension Amendment becomes effective and the Refinancing Term Loans are made, (iii) the terms of the Refinancing Term Loans shall comply with Section 2.27(c) and (iv) substantially concurrently with the incurrence of any such Refinancing Term Loans, 100% of the proceeds thereof shall be applied to repay the Refinanced Term Loans (including accrued interest, fees and premiums (if any) payable in connection therewith).

(c)    The terms of any Refinancing Term Loans shall be determined by the Borrower and the applicable lenders providing such Refinancing Term Loans and set forth in an Additional Credit Extension Amendment; provided that (i) the final maturity date of any Refinancing Term Loans shall not be earlier than 91 days after the maturity or termination date of the applicable Refinanced Term Loans, (ii) the Weighted Average Life to Maturity of the Refinancing Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Refinanced Term Loans, (iii) the Refinancing Term Loans will rank pari passu in right of payment and of security with the Revolving Loans and the Term Loans, none of the obligors or guarantors with respect thereto shall be a Person that is not a Credit Party, and such Refinancing Term Loans shall not be secured by any assets other than the Collateral, (iv) the Refinancing Term Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments or commitment reductions hereunder, as specified in the applicable Additional Credit Extension Amendment, (v) the interest rate margin, rate floors, fees, original issue discount and premiums applicable to the Refinancing Term Loans shall be determined by the Borrower and the applicable lenders providing such Refinancing Term Loans and (vi) to the extent the terms of the Credit Agreement Refinancing Facilities are inconsistent with the terms set forth herein (except as set forth in clause (i) through (v) above), such terms shall be reasonably satisfactory to the Administrative Agent.

(d)    In connection with any Refinancing Term Loans incurred pursuant to this Section 2.27, the Borrower, the Administrative Agent and each applicable Lender or Additional Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence such Refinancing Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Credit Extension Amendment. Any Additional Credit Extension Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.27, including any amendments necessary to establish the applicable Refinancing Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such Classes or tranches (including to

 

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preserve the pro rata treatment of the refinanced and non-refinanced tranches), in each case on terms consistent with this Section 2.27. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

(e)    This Section 2.27 shall supersede any provisions in Section 2.17 or Section 9.08 to the contrary.

ARTICLE 3

REPRESENTATIONS AND WARRANTIES

In order to induce the Lenders to enter into this Agreement and to make the Loans, the Borrower makes the following representations and warranties, in each case after giving effect to the Transactions, all of which shall survive the execution and delivery of this Agreement and the Notes and the making of the Loans, with the occurrence of the Closing Date being deemed to constitute a representation and warranty that the matters specified in this Article 3 are true and correct in all material respects on and as of the Closing Date.

Section 3.01    Company Status. The Borrower and each of the Restricted Subsidiaries (i) is a duly organized and validly existing Company in good standing under the laws of the jurisdiction of its organization, (ii) has the Company power and authority to own its property and assets and to transact the business in which it is engaged and presently proposes to engage and (iii) is duly qualified and is authorized to do business and is in good standing in each jurisdiction where the ownership, leasing or operation of its property or the conduct of its business requires such qualifications, except to the extent all failures with respect to the foregoing clauses (i) and (ii) (other than, in the case of clauses (i) and (ii), with respect to the Borrower) and (iii) could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

Section 3.02    Power and Authority. Each Credit Party has the Company power and authority to execute, deliver and perform its obligations under each of the Credit Documents to which it is party and, in the case of the Borrower, to borrow hereunder, and has taken all necessary Company action to authorize the execution, delivery and performance by it of each of such Credit Documents. Each Credit Party has duly executed and delivered each of the Credit Documents to which it is party, and each of such Credit Documents constitutes its legal, valid and binding obligation enforceable in accordance with its terms, except as enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and by general equitable principles (regardless of whether enforcement is sought by proceedings in equity or at law).

Section 3.03    No Violation. The execution, delivery and performance of this Agreement and the other Credit Documents, the borrowings hereunder and the use of the proceeds thereof will not (i) contravene any provision of any law, statute, rule or regulation or any order, writ, injunction or decree of any court or Governmental Authority, (ii) (x) violate or result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a default under, or give rise to any right to accelerate or to require the prepayment, repurchase of redemption of any obligation under, or (y) result in the creation or imposition of (or the obligation to create or impose) any Lien (except pursuant to the Security Documents) upon any of the property or assets of any Credit Party or any Restricted Subsidiary pursuant to the terms of, any indenture, mortgage, deed of trust, credit agreement or loan agreement, or any other agreement, contract or instrument, in each case to which any Credit Party or any Restricted Subsidiary is a party or by which it or any its property or assets is bound or to which it may be subject or (iii) violate any provision of the certificate or articles of incorporation, certificate of formation, limited liability company agreement or by-laws (or equivalent organizational documents), as applicable, of any Credit

 

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Party or any Restricted Subsidiary, except to the extent all violations or contraventions with respect to the foregoing clauses (i) and (ii)(x) could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

Section 3.04    Approvals. Except as could not reasonably be expected to have a Material Adverse Effect, no order, consent, approval, license, authorization or validation of, or filing, recording or registration with (except for (x) those that have otherwise been obtained or made on or prior to the Closing Date and which remain in full force and effect on the Closing Date and (y) filings which are necessary to perfect the security interests or liens created under the Security Documents), or exemption or other action by, any Governmental Authority is required to be obtained or made by, or on behalf of, any Credit Party to authorize, or is required to be obtained or made by, or on behalf of, any Credit Party in connection with, the execution, delivery and performance of any Credit Document or the legality, validity, binding effect or enforceability of any such Credit Document.

Section 3.05    Financial Statements; Financial Condition; Undisclosed Liabilities. (a) (i) The audited consolidated balance sheets of the Borrower and its Subsidiaries at December 31, 2014, December 31, 2015 and December 31, 2016 and the related consolidated statements of income and cash flows and changes in stockholder’s equity of the Borrower for the three fiscal years of the Borrower ended on such dates, in each case furnished to the Administrative Agent for delivery to the Lenders prior to the Closing Date, present fairly in all material respects the consolidated financial position of the Borrower and its Subsidiaries at the dates of said financial statements and the results of operations for the respective periods covered thereby except as set forth on Schedule 3.05 and (ii) the unaudited consolidated balance sheet of the Borrower as at September 30, 2017 and the related consolidated statements of income and cash flows and changes in stockholders’ equity of the Borrower for the nine-month period ended on such date, in each case furnished to the Lenders prior to the Closing Date, present fairly in all material respects the consolidated financial condition of the Borrower and its Subsidiaries at the date of said financial statements and the results of operations for the respective periods covered thereby, subject to normal year-end adjustments and the absence of footnotes. All such financial statements have been prepared in accordance with GAAP consistently applied except to the extent provided in the notes to said financial statements and subject, in the case of the unaudited financial statements, to normal year-end audit adjustments and the absence of footnotes.

(b)    [Reserved].

(c)    On and as of the Closing Date, and after giving effect to the Transactions and to all Indebtedness (including the Loans) being incurred or assumed and Liens created by the Credit Parties in connection therewith, (i) the sum of the fair value of the assets, at a fair valuation on a going concern basis, of the Borrower and its Subsidiaries (taken as a whole) will exceed the sum of their debts, (ii) the Borrower and its Subsidiaries (taken as a whole) as of the date hereof do not have debts outstanding, and do not intend to incur further debts, beyond their ability to pay such debts as such debts mature in the ordinary course of business and (iii) the capital of the Borrower and its Subsidiaries (taken as a whole) is not unreasonably small in relation to the business of the Borrower or its Subsidiaries (taken as a whole) contemplated as of the date hereof. For purposes of this Section 3.05(c), “debt” means any liability on a claim, and “claim” means (a) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured or (b) right to an equitable remedy for breach of performance if such breach gives rise to a payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured or unsecured.

 

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(d)    Except as reflected in the financial statements delivered pursuant to Section 3.05(a), and except for the Indebtedness incurred under this Agreement or otherwise incurred in the ordinary course of business, there were as of the Closing Date no liabilities or obligations that would be required to be reflected in the consolidated financial statements of the Borrower and its Subsidiaries by GAAP with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

(e)    [Reserved].

(f)    After giving effect to the Transactions, since the Closing Date, there has been no change in the business, operations, property, assets or financial condition of the Borrower or any of its Restricted Subsidiaries that either, individually or in the aggregate, has had, or could reasonably be expected to have, a Material Adverse Effect.

Section 3.06    Litigation. Except as set forth on Schedule 3.06, there are no actions, suits or proceedings at law or in equity pending or, to the Knowledge of the Borrower, threatened (i) with respect to any Credit Document or (ii) that has had, or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.

Section 3.07    True and Complete Disclosure. All written information (taken as a whole) (including, without limitation, all information contained in the Credit Documents) for purposes of or in connection with this Agreement, the other Credit Documents or any transaction contemplated herein or therein is, and all other such factual information (taken as a whole) hereafter furnished by or on behalf of the Borrower in writing to the Administrative Agent or any Lender will be, complete and correct in all material respects on the date as of which such information is dated or certified and does not or will not contain any untrue statement of a material fact or omit a material fact necessary to make such information (taken as a whole) not misleading in any material respect at such time in light of the circumstances under which such information was provided (giving effect to all supplements and updates provided thereto prior to the Closing Date); provided that no representation is made with respect to information of a general economic or general industry nature.

Section 3.08    Use of Proceeds; Margin Regulations. (a) All proceeds of the Loans will be used by the Borrower only for the purposes specified in the introductory statement to the Agreement.

(b)    No part of any Loan (or the proceeds thereof) will be used to purchase or carry any Margin Stock or to extend credit for the purpose of purchasing or carrying any Margin Stock. Neither the making of any Loan nor the use of the proceeds thereof will, whether directly or indirectly, and whether immediately, incidentally or ultimately, violate or be inconsistent with the provisions of Regulation T, U or X.

Section 3.09    Tax Returns and Payments. Except as set forth on Schedule 3.09, (i) the Borrower and each of the Restricted Subsidiaries has timely filed or caused to be timely filed with the appropriate taxing authority all material federal, state, local and foreign returns, statements, forms and reports for taxes (the “Returns”) required to be filed by, or with respect to the income, properties or operations of, the Borrower and/or any Restricted Subsidiary, (ii) the Borrower and each of the Restricted Subsidiaries has paid all material taxes and assessments payable by it which have become due, other than those that are being contested in good faith and adequately disclosed and fully provided for on the financial statements of the Borrower and the Restricted Subsidiaries in accordance with GAAP and (iii) except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, there is no action, suit, proceeding, investigation, audit or claim now pending or, to the Knowledge of the Borrower or any Restricted Subsidiary, threatened by any authority regarding any taxes relating to the Borrower or any Restricted Subsidiary.

 

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Section 3.10    Compliance with ERISA. Each Plan is in compliance in all material respects with the applicable provisions of ERISA and the Code except for non-compliance which, in the aggregate, would not have a Material Adverse Effect. No ERISA Event has occurred within the past five years or is reasonably expected to occur that, when taken together with all other ERISA Events that have occurred or are reasonably likely to occur, could reasonably be expected to have a Material Adverse Effect.

Section 3.11    Security Documents. (a) The provisions of the Security Agreement are effective to create in favor of the Collateral Agent for the benefit of the Secured Creditors a legal, valid and enforceable security interest in all right, title and interest of the Credit Parties in the Security Agreement Collateral described therein, and the Collateral Agent, for the benefit of the Secured Creditors, has a fully perfected security interest in all right, title and interest in all of the Security Agreement Collateral described therein to the extent required thereunder (other than (i) any Security Agreement Collateral consisting of cash not contained in a deposit account or securities account not subject to the “control” (as defined under the UCC) of the Collateral Agent, (ii) any Security Agreement Collateral consisting of deposit accounts not subject to the “control” (as defined under the UCC) of the Collateral Agent and (iii) any other Security Agreement Collateral to the extent perfection steps are not required to be taken pursuant to the Security Agreement with respect to such Security Agreement Collateral), subject to no other Liens other than Permitted Liens. The recordation of (x) the Grant of Security Interest in U.S. Patents, if applicable and (y) the Grant of Security Interest in U.S. Trademarks, if applicable, in the respective form attached to the Security Agreement, in each case in the United States Patent and Trademark Office, together with filings on Form UCC-1 made pursuant to the Security Agreement, will create, as may be perfected by such filings and recordation, a perfected security interest in the United States trademarks and patents covered by the Security Agreement, and the recordation of the Grant of Security Interest in U.S. Copyrights, if applicable, in the form attached to the Security Agreement with the United States Copyright Office, together with filings on Form UCC-1 made pursuant to the Security Agreement, will create, as may be perfected by such filings and recordation, a perfected security interest in the United States copyrights covered by the Security Agreement.

(b)    The security interests created under the Pledge Agreement in favor of the Collateral Agent, as Pledgee, for the benefit of the Secured Creditors, constitute perfected security interests in the Pledge Agreement Collateral described in the Pledge Agreement, subject to no security interests of any other Person, other than Liens in favor of holders of Permitted External Refinancing Debt and any Permitted Refinancing thereof.

(c)    After the execution, delivery and recordation thereof, in the offices specified on Schedule 3.11(c), or, if delivered pursuant to Section 5.12, in the recording office specified by Borrower, each Mortgage will create, as security for the obligations purported to be secured thereby, a valid and enforceable perfected security interest in and mortgage lien on all right, title and interest of the Credit Parties in and to the respective Mortgaged Property (to the extent such Mortgaged Property constitutes real property or any interest in real property) in favor of the Collateral Agent (or such other trustee as may be required or desired under local law) for the benefit of the Secured Creditors, superior and prior to the rights of all third Persons (except that the security interest and mortgage lien created on such Mortgaged Property may be subject to the Permitted Encumbrances related thereto) and subject to no other Liens (other than Permitted Encumbrances related thereto).

Section 3.12    Properties. All Real Property (other than REO Assets) owned by a Credit Party as of the Closing Date, with a book value as of September 30, 2017 of at least $5,000,000, is set forth on Schedule 3.12. Except as set forth on Schedule 3.12, the Borrower and each of the Restricted Subsidiaries has a valid and marketable title to all material properties (and to all buildings, fixtures and improvements located thereon) owned by it, and a valid leasehold interest in the material properties leased by it, in each case free and clear of all Liens other than Permitted Liens.

 

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Section 3.13    Capitalization. The authorized Equity Interests of the Borrower consists solely of Qualified Equity Interests. All outstanding Equity Interests of the Borrower have been duly and validly issued, are fully paid and non-assessable and have been issued free of preemptive rights.

Section 3.14    Subsidiaries. On and as of the Closing Date, (a) the Borrower has no Subsidiaries other than those Subsidiaries listed on Schedule 3.14 and (b) Schedule 3.14 sets forth the percentage ownership (direct and indirect) of the Borrower in each class of Equity Interests of each of its Subsidiaries and also identifies the direct owner thereof. All outstanding Equity Interests of each Subsidiary of the Borrower have been duly and validly issued and are fully paid (except as such rights may arise under mandatory provisions of applicable statutory law that may not be waived or otherwise agreed) and have been issued free of preemptive rights, and no Subsidiary of the Borrower has outstanding any securities convertible into or exchangeable for its Equity Interests or outstanding any right to subscribe for or to purchase, or any options or warrants for the purchase of, or any agreement providing for the issuance (contingent or otherwise) of or any calls, commitments or claims of any character relating to, its Equity Interests or any stock appreciation or similar rights except as set forth on Schedule 3.14.

Section 3.15    Compliance with Statutes, Etc. The Borrower and each of the Restricted Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities in respect of the conduct of its business and the ownership of its property (including, without limitation, applicable statutes, regulations, orders and restrictions relating to environmental standards and controls), except such non-compliances as could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

Section 3.16    Investment Company Act. Neither the Borrower nor any Restricted Subsidiary is required to register as an “investment company”, or is subject to regulation, under the Investment Company Act of 1940, as amended.

Section 3.17    Insurance. Schedule 3.17 sets forth a listing of all material insurance maintained by the Borrower and the Restricted Subsidiaries as of the Closing Date, with the amounts insured (and any deductibles) set forth therein. As of the Closing Date, such insurance is in full force and effect and all premiums have been duly paid. The Borrower and the Restricted Subsidiaries have insurance in such amounts and covering such risks and liabilities as are in accordance with normal industry practice.

Section 3.18    Environmental Matters. (a) The Borrower and each of its Subsidiaries is and has been in compliance with all applicable Environmental Laws and the requirements of any permits issued under such Environmental Laws. There are no pending or, to the Knowledge of the Borrower, threatened Environmental Claims against the Borrower or any of its Subsidiaries or any Real Property owned, leased or operated by the Borrower or any of its Subsidiaries (including any such claim arising out of the ownership, lease or operation by the Borrower or any of its Subsidiaries of any Real Property formerly owned, leased or operated by the Borrower or any of its Subsidiaries). To the Knowledge of the Borrower there are no facts, circumstances, conditions or occurrences with respect to the Borrower or any of its Subsidiaries, or any Real Property owned, leased or operated by the Borrower or any of its Subsidiaries (including any Real Property formerly owned, leased or operated by the Borrower or any of its Subsidiaries) or any other property that could be reasonably expected (i) to form the basis of any liability under Environmental Law or an Environmental Claim against the Borrower or any of its Subsidiaries or any such Real Property owned, leased or operated by the Borrower or any of its Subsidiaries or (ii) to cause any Real Property owned, leased or operated by the Borrower or any of its Subsidiaries to be subject to any restrictions on the ownership, lease, occupancy, use or transferability of such Real Property by the Borrower or any of its Subsidiaries under any applicable Environmental Law.

 

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(b)    Hazardous Materials have not at any time been generated, used, treated or stored on, or transported to or from, or Released on, to, or from, any Real Property presently or formerly owned, leased or operated by the Borrower or any of its Subsidiaries or, to the Knowledge of the Borrower, any other property, where such generation, use, treatment, storage, transportation or Release has violated or could be reasonably expected to violate any applicable Environmental Law or give rise to an Environmental Claim or any liability under Environmental Law.

(c)    Notwithstanding anything to the contrary in this Section 3.18, the representations and warranties made in this Section 3.18 shall be untrue only if the effect of any or all facts, circumstances, occurrences, conditions, violations, claims, restrictions, failures, liabilities or noncompliances of the types described above could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

Section 3.19    Employment and Labor Relations. Neither the Borrower nor any Restricted Subsidiary is engaged in any unfair labor practice that could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect. There is (i) no unfair labor practice complaint pending against the Borrower or any Restricted Subsidiary or, to the Knowledge of the Borrower, threatened against any of them, before the National Labor Relations Board, and no grievance or arbitration proceeding arising out of or under any collective bargaining agreement is so pending against the Borrower or any Restricted Subsidiary or, to the Knowledge of the Borrower, threatened against any of them, (ii) no strike, labor dispute, slowdown or stoppage pending against the Borrower or any Restricted Subsidiary or, to the Knowledge of the Borrower, threatened against the Borrower or any Restricted Subsidiary, (iii) no union representation question exists with respect to the employees of the Borrower or any Restricted Subsidiary, (iv) no equal employment opportunity charges or other claims of employment discrimination are pending or, to the Knowledge of the Borrower, threatened against the Borrower or any Restricted Subsidiary and (v) no wage and hour department investigation has been made of the Borrower or any Restricted Subsidiary, except (with respect to any matter specified in clauses (i) – (v) above, either individually or in the aggregate) such as could not reasonably be expected to have a Material Adverse Effect.

Section 3.20    Intellectual Property, Etc. The Borrower and each of the Restricted Subsidiaries owns or has the right to use all the patents, permits, trademarks, domain names, service marks, trade names, copyrights, licenses, franchises, inventions, trade secrets, proprietary information and know-how of any type, whether or not written (including, but not limited to, rights in computer programs and databases) and formulas, or rights with respect to the foregoing, necessary for the present conduct of its business, without any known conflict with the rights of others which, or the failure to own or have which, as the case may be, could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect.

Section 3.21    Indebtedness. Schedule 3.21 sets forth a list of all Indebtedness (including Contingent Obligations, but excluding intercompany Indebtedness solely between or among the Credit Parties and Indebtedness that is otherwise permitted under this Agreement (other than under Section 6.04(ii)) (it being understood that the representation set forth in this Section 3.21 shall not be deemed to be incorrect to the extent that Indebtedness in an aggregate amount not exceeding $10,000,000 is not reflected on Schedule 3.21)) of the Borrower and the Restricted Subsidiaries as of the Closing Date and which is to remain outstanding after giving effect to the Transactions (excluding the Loans, the “Existing Indebtedness”), in each case showing the aggregate principal amount thereof and the name of the respective borrower and any Credit Party or any Restricted Subsidiary which directly or indirectly guarantees such debt.

 

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Section 3.22    Anti-Terrorism Law. (a) Neither the Borrower nor any Restricted Subsidiary is in violation of any legal requirement relating to any laws with respect to terrorism or money laundering (“Anti-Terrorism Laws”), including Executive Order No. 13224 on Terrorist Financing effective September 24, 2001 (the “Executive Order”) and the USA PATRIOT Act. Neither the Borrower nor any Restricted Subsidiary and, to the Knowledge of the Borrower, no agent of the Borrower or any Restricted Subsidiary acting on behalf of the Borrower or any Restricted Subsidiary or any director, officer, employee or Affiliate of the Borrower or any of its Restricted Subsidiaries, as the case may be, is any of the following:

(i)    a Person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order;

(ii)    a Person owned or controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order;

(iii)    a Person with which any Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law;

(iv)    a Person that commits, threatens or conspires to commit or supports “terrorism” as defined in the Executive Order; or

(v)    a Person that is named as a “specially designated national and blocked person” on the most current list published by the U.S. Treasury Department Office of Foreign Assets Control (“OFAC”) at its official website or any replacement website or other replacement official publication of such list.

(b)    Neither the Borrower nor any of the Restricted Subsidiaries and, to the Knowledge of the Borrower, no agent of the Borrower or any Restricted Subsidiary acting on behalf of the Borrower or any Restricted Subsidiary, as the case may be, (i) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of a Person described in Section 3.22(a), (ii) deals in, or otherwise engages in any transaction relating to, any property or interests in property blocked pursuant to the Executive Order, or (iii) engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law.

(c)    The Borrower will not directly or indirectly use the proceeds of the Loans or otherwise make available such proceeds to any Person, for the purpose of financing the activities of any Person currently subject to any U.S. sanctions administered by OFAC.

Section 3.23    [Reserved].

Section 3.24    [Reserved].

Section 3.25    [Reserved].

Section 3.26    Foreign Corrupt Practices Act. The Borrower, each Restricted Subsidiary and each of their directors, officers, agents, employees, and any person acting for or on behalf of the Borrower or any Restricted Subsidiary has complied with, and will comply with, the U.S. Foreign Corrupt Practices Act, as amended from time to time, or any other applicable anti-bribery or anti-corruption law, and it and they have not made, offered, promised, or authorized, and will not make, offer, promise, or authorize, whether directly or indirectly, any payment, of anything of value to: (i) an executive, official, employee or

 

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agent of a governmental department, agency or instrumentality, (ii) a director, officer, employee or agent of a wholly or partially government-owned or -controlled company or business, (iii) a political party or official thereof, or candidate for political office, or (iv) an executive, official, employee or agent of a public international organization (e.g., the International Monetary Fund or the World Bank) (“Government Official”); while knowing or having a reasonable belief that all or some portion will be used for the purpose of: (a) influencing any act, decision or failure to act by a Government Official in his or her official capacity, (b) inducing a Government Official to use his or her influence with a government or instrumentality to affect any act or decision of such government or entity, or (c) securing an improper advantage; in order to obtain, retain, or direct business.

ARTICLE 4

CONDITIONS OF LENDING

Section 4.01    Conditions Precedent. The obligations of the Lenders to make Loans hereunder are subject to the satisfaction of the following conditions on the Closing Date:

(a)    The Administrative Agent shall have received, on behalf of itself and the Lenders, a favorable written opinion of (i) Weil, Gotshal & Manges LLP, counsel for the Borrower, and (ii) each counsel listed on Schedule 4.02(a), each such opinion to be in form and substance reasonably satisfactory to the Administrative Agent, in each case (A) dated the Closing Date, (B) addressed to the Administrative Agent and the Lenders, and (C) covering such matters relating to the Credit Documents and the Transactions as the Administrative Agent shall reasonably request, and the Borrower hereby requests such counsel to deliver such opinions.

(b)    The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or other equivalent formation document, including all amendments thereto, of each Credit Party, certified as of a recent date by the Secretary of State (or other similar official) of the state of its organization, and a certificate as to the good standing of each Credit Party as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of each Credit Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws, partnership agreement, limited liability company agreement, memorandum and articles of association or other equivalent governing document of such Credit Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Credit Party authorizing the execution, delivery and performance of the Credit Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, (C) that the certificate or articles of incorporation or other equivalent formation document of such Credit Party has not been amended since the date of the last amendment thereto furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Credit Document or any other document delivered in connection herewith on behalf of such Credit Party; and (iii) the certificate referred to in the foregoing clause (ii) shall contain a certification by an Authorized Officer of such Credit Party as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing such certificate pursuant to clause (ii) above.

(c)    The Administrative Agent shall have received a certificate, dated the Closing Date and signed by an Authorized Officer of the Borrower, confirming compliance with the conditions precedent set forth in clauses (h) and (i) of this Section 4.01.

 

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(d)    The Administrative Agent and each Lender shall have received all Fees and other amounts due and payable on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all out of pocket expenses required to be reimbursed or paid by the Borrower hereunder, under any other Credit Document or under the Fee Letter referred to therein (including reasonable fees and expenses of counsel).

(e)    The Borrower shall have duly authorized, executed and delivered this Agreement, and each other party to this Agreement shall have executed and delivered this Agreement, and this Agreement shall be in full force and effect.

(f)    The Administrative Agent (or its counsel) shall have received from each Credit Party either (i) a counterpart of each of the Security Agreement, Pledge Agreement, Subsidiaries Guaranty and Intercompany Subordination Agreement, in each case, signed on behalf of such party party thereto or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of the Security Agreement, Pledge Agreement, Subsidiaries Guaranty and Intercompany Subordination Agreement,) that such party has signed a counterpart of the Security Agreement, Pledge Agreement, Subsidiaries Guaranty and Intercompany Subordination Agreement,

(g)    The Administrative Agent shall have received:

(i)    evidence reasonably satisfactory to it as to the proper filing of financing statements (Form UCC-1 or the equivalent) in each jurisdiction as may be necessary or, in the reasonable opinion of the Collateral Agent, desirable, to perfect the security interests purported to be created by the Security Agreement;

(ii)    certified copies of requests for information or copies (Form UCC-11), or equivalent reports as of a recent date, listing all effective financing statements that name the Borrower or any Restricted Subsidiary as debtor and that are filed in the jurisdictions referred to in clause (i) above and in such other jurisdictions in which Collateral is located on the Closing Date, together with copies of such other financing statements that name the Borrower or any Restricted Subsidiary as debtor (none of which shall cover any of the Collateral except (x) to the extent evidencing Permitted Liens or (y) those in respect of which the Collateral Agent shall have received termination statements (Form UCC-3) or such other termination statements as shall be required by local law fully executed for filing);

(iii)    evidence of the completion of all other recordings and filings of, or with respect to, the Security Agreement (other than to the extent such actions are required or permitted to be performed after the Closing Date) as may be necessary or, in the reasonable opinion of the Collateral Agent, desirable, to perfect the security interests intended to be created by the Security Agreement; and

(iv)    evidence that all other actions necessary or, in the reasonable opinion of the Collateral Agent, desirable to perfect and protect the security interests purported to be created by the Security Agreement have been taken (other than to the extent such actions are required or permitted to be performed after the Closing Date), and the Security Agreement shall be in full force and effect.

(h)    The representations and warranties set forth in Article 3 and in each other Credit Document shall be true and correct in all material respects on and as of the Closing Date after giving effect to the Transactions with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date.

 

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(i)    As of, and immediately after the Closing Date, after giving effect to the Transactions, no Default or Event of Default shall have occurred and be continuing.

(j)    Immediately after giving effect to the Consummation of the Plan of Reorganization, the Transactions and the other transactions contemplated hereby, the Borrower and the Restricted Subsidiaries shall have outstanding no Indebtedness for borrowed money or Preferred Equity other than Indebtedness outstanding under this Agreement, the Convertible Preferred Stock, the Second Lien Senior Subordinated PIK Toggle Notes, indebtedness listed on Schedule 3.21, other Indebtedness permitted to be incurred under this Agreement and Qualified Equity Interests.

(k)    The Lenders shall have received the financial statements referred to in Section 3.05.

(l)    The Administrative Agent shall have received a certificate from the chief financial officer of the Borrower substantially in the form attached hereto as Exhibit K certifying that the Borrower and its subsidiaries, on a consolidated basis after giving effect to the Transactions to occur on the Closing Date, are solvent.

(m)    The Administrative Agent shall have received, at least five Business Days prior to the Closing Date, to the extent requested, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.

(n)    The Administrative Agent shall have received a copy of each of (i) the Second Lien Senior Subordinated PIK Toggle Notes, the Second Lien Senior Subordinated PIK Toggle Notes Indenture and each other Second Lien Senior Subordinated PIK Toggle Notes Document and (ii) the First Lien/Second Lien Intercreditor Agreement, in each case, duly executed by the parties party thereto and effective as of the Plan Effective Date.

(o)    The Administrative Agent shall have received a copy of, or a certificate as to coverage under, the insurance policies required by Section 5.03 and the applicable provisions of the Security Documents, each of which shall be endorsed or otherwise amended to include a customary lender’s loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance reasonably satisfactory to the Administrative Agent.

(p)    The Confirmation Order shall have been entered in accordance with the Bankruptcy Code, the Federal Rules of Bankruptcy Procedure, any applicable orders of the Bankruptcy Court and any applicable local rules.

(q)    The Confirmation Order shall be in full force and effect and shall not, without the consent of the Required Lenders, have been stayed, reversed, modified or amended, and shall not be subject to a motion to stay.

(r)    The Consummation of the Plan of Reorganization in accordance with its terms shall occur on the Closing Date, substantially simultaneously with the deemed making of the Tranche B Term Loans pursuant to Section 2.01.

(s)    The Administrative Agent shall have received fully executed Control Agreements (as defined in the Security Agreement) governing each deposit account of the Credit Parties, to the extent required by the Security Agreement.

 

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ARTICLE 5

AFFIRMATIVE COVENANTS

The Borrower covenants and agrees with each Lender that so long as this Agreement shall remain in effect and until the Commitments have been terminated and the principal of and interest on each Loan, all Fees and all other expenses or amounts payable under any Credit Document shall have been paid in full (other than contingent indemnification obligations for which no claim has been made) (the date on which all such conditions are satisfied, the “Termination Date”), unless the Required Lenders shall otherwise consent in writing:

Section 5.01    Information Covenants. The Borrower will furnish to the Administrative Agent which will promptly furnish to each Lender:

(a)    [Reserved].

(b)    Quarterly Financial Statements. Within 45 days after the end of the first three fiscal quarters of each fiscal year of the Borrower, (i) its consolidated balance sheet and related statements of comprehensive income as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year and related statements of stockholders’ equity and cash flows as of the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding prior period or periods (or in the case of the balance sheet, as of the end of the previous fiscal year, and, in the case of the statement of shareholders’ equity, no comparative disclosure), all of which shall be certified by an Authorized Officer of the Borrower that they fairly present in all material respects in accordance with GAAP the financial condition of the Borrower and its Subsidiaries as of the dates indicated and the results of their operations for the periods indicated, subject to normal year-end audit adjustments and the absence of footnotes and (ii) the information set forth on Schedule 5.01 for such quarterly period, which shall be certified as being true and correct in all material respects by an Authorized Officer of the Borrower.

(c)    Annual Financial Statements. Within 90 days after the end of each fiscal year of the Borrower, (i) the consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal year and the related consolidated statements of income and stockholders’ equity and statement of cash flows for such fiscal year setting forth comparative figures where applicable for the preceding fiscal year and reported on by Ernst & Young LLP or other independent certified public accountants of recognized national standing (which report shall be without a “going concern” or like qualification or exception and without any qualification or exception as to scope of audit), together with a report of such accounting firm stating that in the course of its regular audit of the financial statements of the Borrower and its Subsidiaries, which audit was conducted in accordance with generally accepted auditing standards, such accounting firm obtained no knowledge of any Default or an Event of Default relating to financial or accounting matters which has occurred and is continuing or, if such accounting firm obtained knowledge of such a Default or an Event of Default, a statement as to the nature thereof, in each case only to the extent that such accounting firm is not restricted or prohibited from doing so by its internal policies or accounting rules or guidelines generally) and (ii) the information set forth on Schedule 5.01 for such fiscal year, which shall be certified as being true and correct in all material respects by an Authorized Officer of the Borrower.

(d)    Unrestricted Subsidiaries. At any time the Borrower has designated any of its Subsidiaries as Unrestricted Subsidiaries pursuant to Section 5.21, simultaneously with the delivery of each set of consolidated financial statements referred to in Sections 5.01(b) and (c), the related consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements.

 

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(e)    [Reserved].

(f)    Officers Certificates. At the time of the delivery of the financial statements provided for in Sections 5.01(b) and (c), a compliance certificate from an Authorized Officer of the Borrower substantially in the form of Exhibit G certifying on behalf of the Borrower that, to such officer’s knowledge after due inquiry, no Default or Event of Default has occurred and is continuing or, if any Default or Event of Default has occurred and is continuing, specifying the nature and extent thereof, which certificate shall (i) set forth in reasonable detail the calculations required to establish whether the Borrower and the Restricted Subsidiaries were in compliance with the provisions of Section 2.13(b), Section 2.13(c) and Section 2.13(e) and Section 6.07, Section 6.08 and Section 6.09, inclusive, at the end of such fiscal quarter or year, as the case may be, (ii) if delivered with the financial statements required by Section 5.01(c), set forth in reasonable detail the amount of (and the calculations required to establish the amount of) Excess Cash Flow for the respective Excess Cash Flow Payment Period, (iii) set forth a list of all Immaterial Subsidiaries and Unrestricted Subsidiaries, (iv) certify that there have been no changes to Schedules 1 through 8 of the Security Agreement and Annexes A through G of the Pledge Agreement, in each case since the Closing Date or, if later, since the date of the most recent certificate delivered pursuant to this Section 5.01(f), or if there have been any such changes, a list in reasonable detail of such changes (but, in each case with respect to this clause (iv), only to the extent that such changes are required to be reported to the Collateral Agent pursuant to the terms of such Security Documents) and whether the Borrower and the other Credit Parties have otherwise taken all actions required to be taken by them pursuant to such Security Documents in connections with any such changes and (v) include a reaffirmation by the Borrower of its obligations under the Credit Documents.

(g)    Notice of Default, Litigation and Material Adverse Effect. Promptly, and in any event within three Business Days after any Authorized Officer obtains knowledge thereof, notice of (i) the occurrence of any event which constitutes a Default or an Event of Default, specifying the nature and extent thereof and the corrective action (if any) taken or proposed to be taken with respect thereto, (ii) any litigation or governmental investigation or proceeding pending, or any threat or notice of intention of any Person to file or commence any litigation or governmental investigation or proceeding, against the Borrower or any of its Subsidiaries (x) which, either individually or in the aggregate, has had, or could reasonably be expected to have, a Material Adverse Effect or (y) with respect to any Credit Document and (iii) any other event, change or circumstance that has had, or could reasonably be expected to have, a Material Adverse Effect.

(h)    Other Reports and Filings. Promptly after the filing or delivery thereof, copies of all financial information, proxy materials and reports, if any, which the Borrower or any of its Subsidiaries shall publicly file with the Securities and Exchange Commission or any successor thereto (the “SEC”) (which delivery requirement shall be deemed satisfied by the posting of such information, materials or reports on EDGAR or any successor website maintained by the SEC so long as the Administrative Agent shall have been promptly notified in writing by the Borrower of the posting thereof) or deliver to holders (or any trustee, agent or other representative therefor) of any Qualified Equity Interests of the Borrower, or any of its other material Indebtedness pursuant to the terms of the documentation governing the same.

(i)    Notice under Designated Material Contracts. Promptly following the occurrence of, or receipt by, as applicable, the Borrower or any of its Subsidiaries thereof, (i) notice of a reasonable expectation of termination of any Designated Material Contract, (ii) notice of actual termination of any Designated Material Contract and (iii) written notice of an event which if uncured could give rise to a termination event under any Designated Material Contract.

 

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(j)    Patriot Act Information. Promptly following the Administrative Agent’s or any Lender’s request therefor, all documentation and other information that the Administrative Agent or any Lender reasonably requests in order to comply with its on-going obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.

(k)    [Reserved].

(l)    [Reserved].

(m)    [Reserved].

(n)    Other Information. From time to time, such other information or documents (financial or otherwise) with respect to the Borrower or any of its Subsidiaries as the Administrative Agent or the Required Lenders (through the Administrative Agent) may reasonably request.

Section 5.02    Books, Records and Inspections. The Borrower will, and will cause each of the Restricted Subsidiaries to, keep proper books of record and accounts in which full, true and correct entries in conformity with GAAP and all requirements of law shall be made of all dealings and transactions in relation to its business and activities. The Borrower will, and will cause each of the Restricted Subsidiaries to, permit officers and designated representatives of the Administrative Agent or the Required Lenders to visit and inspect, under guidance of officers of the Borrower or such Restricted Subsidiary, any of the properties of the Borrower or such Restricted Subsidiary, and to examine the books of account of the Borrower or such Restricted Subsidiary and discuss the affairs, finances and accounts of the Borrower or such Restricted Subsidiary with, and be advised as to the same by, its and their officers and independent accountants, all upon reasonable prior notice and at such reasonable times and intervals and to such reasonable extent as the Administrative Agent or the Required Lenders may reasonably request; provided that, excluding any such visits and inspections during the continuation of an Event of Default, only the Administrative Agent on behalf of the Lenders may exercise visitation and inspection rights of the Administrative Agent and the Lenders under this sentence.

Section 5.03    Maintenance of Property; Insurance. (a) The Borrower will, and will cause each of the Restricted Subsidiaries to, (i) keep all material property necessary to the business of the Borrower and the Restricted Subsidiaries in good working order and condition, ordinary wear and tear excepted and subject to the occurrence of casualty events, (ii) maintain with financially sound and reputable insurance companies insurance on all such property and against all such risks as is consistent and in accordance with industry practice for companies similarly situated owning similar properties and engaged in similar businesses as the Borrower and the Restricted Subsidiaries, and (iii) furnish to the Administrative Agent, upon its request therefor, full information as to the insurance carried. Such insurance to the extent consistent with the foregoing shall include physical damage insurance on all real and personal property (whether now owned or hereafter acquired) on an all risk basis and business interruption insurance.

(b)    The Borrower will, and will cause each of the Restricted Subsidiaries to, at all times keep its material property insured in favor of the Collateral Agent, and shall ensure (or, with respect of clauses (ii) and (iii) below, use commercially reasonable efforts to ensure) that all policies or certificates (or certified copies thereof) with respect to such insurance (and any other insurance maintained by the Borrower and/or such Restricted Subsidiaries) (i) be endorsed to the Collateral Agent’s reasonable satisfaction for the benefit of the Collateral Agent (including, without limitation, by naming the Collateral Agent as loss payee and/or additional insured), (ii) state that the insurers under such insurance policies shall endeavor to provide at least 15 days’ prior written notice of the cancellation thereof by the respective insurer to the Collateral Agent, (iii) provide that the respective insurers irrevocably waive any and all rights of subrogation with respect to the Collateral Agent and the other Secured Creditors, and (iv) be delivered to the Collateral Agent.

 

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(c)    If the Borrower or any Restricted Subsidiary shall fail to maintain insurance in accordance with this Section 5.03, or if the Borrower or any Restricted Subsidiary shall fail to so endorse and deposit all policies or certificates with respect thereto, the Administrative Agent shall have the right (but shall be under no obligation) to procure such insurance and the Borrower agrees to reimburse the Administrative Agent for all costs and expenses of procuring such insurance, provided that the Administrative Agent shall furnish written notice to the Borrower of its intent to procure such insurance.

(d)    If at any time the area in which the buildings or other improvements (as defined in the applicable Mortgages) in respect of any Mortgaged Property are located is designated (1) a “flood hazard area” in any Flood Insurance Rate Map published by the Federal Emergency Management Agency (or any successor agency), the Borrower shall obtain flood insurance in such total amount as the Administrative Agent, the Collateral Agent or the Required Lenders may from time to time reasonably require, and otherwise comply with the NFIP as set forth in the Flood Disaster Protection Act of 1973, as it may be amended from time to time, or (2) a “Zone 1” area, the Borrower shall obtain earthquake insurance in such total amount as the Administrative Agent, the Collateral Agent or the Required Lenders may from time to time reasonably require. Following the Closing Date, the Borrower shall deliver to the Collateral Agent annual renewals of each flood insurance policy or annual renewals of each force-placed flood insurance policy, as applicable. In connection with any amendment to this Agreement pursuant to which any increase, extension, or renewal of Loans is contemplated, the Borrower shall cause to be delivered to the Collateral Agent for any Mortgaged Property, a Flood Determination Form, Borrower Notice and Evidence of Flood Insurance, as applicable.

(e)    With respect to any Mortgaged Property, carry and maintain commercial general liability insurance and coverage on an occurrence basis against claims made for personal injury (including bodily injury, death and property damage) and umbrella liability insurance against any and all claims, in no event for a combined single limit of less than that which is customary for companies in the same or similar businesses operating in the same or similar locations, naming the Collateral Agent as an additional insured, on forms reasonably satisfactory to the Collateral Agent.

(f)    The Borrower shall notify the Administrative Agent and the Collateral Agent promptly whenever any separate insurance concurrent in form or contributing in the event of loss with that required to be maintained under this Section 5.03 is taken out by any Credit Party; and promptly deliver to the Administrative Agent and the Collateral Agent a duplicate original copy of such policy or policies.

Section 5.04    Existence; Franchises. The Borrower will, and will cause each of the Restricted Subsidiaries to, (x) do or cause to be done all things necessary to preserve and keep in full force and effect its organizational existence and (y) take all reasonable action to maintain all rights, privileges, franchises, licenses, permits, copyrights, trademarks, trade names, and patents necessary or desirable in the normal conduct of its business; provided, however, that nothing in this Section 5.04 shall prevent (i) sales of assets and other transactions by the Borrower or any Restricted Subsidiary in accordance with Section 6.02, (ii) the discontinuation, abandonment or expiration of any right, franchise, license, permit, copyright, trademark or patent if such discontinuation, abandonment or expiration could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or (iii) the withdrawal by the Borrower or any Restricted Subsidiary of its qualification as a foreign Company in any jurisdiction if such withdrawal could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

Section 5.05    Compliance with Statutes, Etc. The Borrower will, and will cause each of the Restricted Subsidiaries to, comply with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities in respect of the conduct of its business and the ownership of its property (including applicable statutes, regulations, orders and restrictions relating to environmental standards and controls), except such non-compliances as could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

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Section 5.06    Compliance with Environmental Laws. (a) The Borrower will comply, and will cause each of its Subsidiaries to comply, with all Environmental Laws and permits applicable to, or required by, its operations or the ownership, lease, occupancy, or use of its Real Property now or hereafter owned, leased or operated by the Borrower or any of its Subsidiaries, except such noncompliances as could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and will promptly pay or cause to be paid all costs and expenses incurred in connection with such compliance, and will keep or cause to be kept all such Real Property free and clear of any Liens imposed pursuant to such Environmental Laws except, in each case, for Permitted Liens related thereto. Neither the Borrower nor any of its Subsidiaries will generate, use, treat, store, Release or dispose of Hazardous Materials on any Real Property now or hereafter owned, leased or operated by the Borrower or any of its Subsidiaries, or transport Hazardous Materials to or from any such Real Property, except for Hazardous Materials generated, used, treated, stored, Released or disposed of at or transported from, any such Real Properties (x) in compliance in all respects with all applicable Environmental Laws and as required in connection with the normal operation, use and maintenance of the business or operations of the Borrower or any of its Subsidiaries or (y) as could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(b)    (i) At any time that the Borrower or any of its Subsidiaries are not in compliance with Section 5.06(a), or (ii) in the event that the Administrative Agent or the Lenders have exercised any of the remedies pursuant to the last paragraph of Section 7.01, the Borrower will (in each case) provide, at the sole expense of the Borrower and at the request of the Administrative Agent, a non-invasive environmental site assessment report concerning the Real Property owned, leased or operated by the Borrower or any of its Subsidiaries that is in question, prepared by an environmental consulting firm reasonably approved by the Administrative Agent, indicating the presence or absence of Hazardous Materials or noncompliance and the potential cost of any removal or remedial action required by a Governmental Authority in connection with such Hazardous Materials or noncompliance on such Real Property. If the Borrower fails to provide the same within 60 days after such request was made, the Administrative Agent may order the same, the cost of which shall be borne by the Borrower, and the Borrower shall grant and hereby grants to the Administrative Agent and the Lenders and their respective agents access to such Real Property and specifically grants the Administrative Agent and the Lenders an irrevocable non-exclusive license, subject to the rights of tenants, to undertake such an assessment at any reasonable time upon reasonable notice to the Borrower, all at the sole expense of the Borrower.

Section 5.07    ERISA. (a) Furnish written notice to the Administrative Agent promptly, and in any event within ten days after any responsible officer of Borrower or any ERISA Affiliate knows, or has reason to know, that any ERISA Event has occurred or is reasonably likely to occur that, alone or together with any other ERISA Event could reasonably be expected to result in liability of the Borrower or any ERISA Affiliate in an aggregate amount exceeding $10,000,000.

(b)    The Borrower and each of its applicable Subsidiaries shall ensure that all Foreign Pension Plans administered by it or into which it makes payments obtains or retains (as applicable) registered status under and as required by applicable law and is administered in a timely manner in all respects in compliance with all applicable laws except where the failure to do any of the foregoing, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.

 

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Section 5.08    End of Fiscal Years; Fiscal Quarters. The Borrower will cause (i) its and each of its Domestic Subsidiaries’ fiscal years to end on December 31 of each calendar year and (ii) its and each of its Domestic Subsidiaries’ fiscal quarters to end on March 31, June 30, September 30 and December 31 of each calendar year.

Section 5.09    [Reserved].

Section 5.10    Payment of Taxes. The Borrower will pay and discharge, and will cause each of the Restricted Subsidiaries to pay and discharge, all material taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits or upon any properties belonging to it, prior to the date on which penalties attach thereto, and all material lawful claims which, if unpaid, might become a Lien or charge upon any properties of the Borrower or any Restricted Subsidiary not otherwise permitted under Section 6.01(i); provided that neither the Borrower nor any Restricted Subsidiary shall be required to pay any such tax, assessment, charge, levy or claim which is being contested in good faith and by proper proceedings if it has maintained adequate reserves with respect thereto in accordance with GAAP.

Section 5.11    Use of Proceeds. The Borrower will use the proceeds of the Loans only for the purposes specified in the introductory statement to this Agreement.

Section 5.12    Additional Security; Further Assurances; Etc. (a) The Borrower will, and will cause each other Credit Party to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests and Mortgages in such assets and Real Property of the Borrower and such other Credit Party as are not covered by the original Security Documents and as may be reasonably requested from time to time by the Administrative Agent or the Required Lenders (collectively, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Collateral Agent and shall constitute valid and enforceable perfected security interests, hypothecations and Mortgages superior to and prior to the rights of all third Persons and enforceable against third parties and subject to no other Liens except for Permitted Liens or, in the case of Real Property, the Permitted Encumbrances related thereto. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security Documents and all taxes, fees and other charges payable in connection therewith shall be paid in full. Notwithstanding the foregoing, this Section 5.12(a) shall not (i) apply to any Excluded Collateral or (ii) require any Credit Party to grant a Mortgage in (x) any Leasehold, (y) any owned Real Property the book value of which is less than $5,000,000 or (z) any REO Assets.

(b)    [Reserved].

(c)    With respect to any owned Real Property with respect to which a Mortgage is delivered pursuant to this Section 5.12, Borrower will promptly (i) if requested by the Collateral Agent, provide the Lenders with a Mortgage Policy covering such real property in an amount at least equal to the purchase price of such real property (or such other amount as shall be reasonably specified by the Collateral Agent) as well as an ALTA survey thereof certified to the Collateral Agent in form reasonably satisfactory to the Collateral Agent and (ii) if requested by the Collateral Agent, deliver to the Collateral Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Collateral Agent. No later than three Business Days prior to the date on which a Mortgage is executed and delivered pursuant to this Section 5.12(c), in order to comply with the Flood Laws, the Collateral Agent shall have received the following documents (collectively, the “Flood Documents”): (A) a completed standard “life of loan” flood hazard determination form (a “Flood Determination Form”), (B) if the improvement(s) to the applicable improved real property is located in a special flood hazard area, a notification to the Borrower (“Borrower Notice”) and (if applicable)

 

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notification to the Borrower that flood insurance coverage under the National Flood Insurance Program (“NFIP”) is not available because the community does not participate in the NFIP, (C) documentation evidencing the Borrower’s receipt of the Borrower Notice (e.g., countersigned Borrower Notice, return receipt of certified U.S. Mail, or overnight delivery), and (D) if the Borrower Notice is required to be given and flood insurance is available in the community in which the property is located, a copy of one of the following: the flood insurance policy, the borrower’s application for a flood insurance policy plus proof of premium payment, a declaration page confirming that flood insurance has been issued, or such other evidence of flood insurance reasonably satisfactory to the Collateral Agent (any of the foregoing being “Evidence of Flood Insurance”).

(d)    The Borrower agrees that each action required by clauses (a) through (c) of this Section 5.12 shall be completed as soon as possible, but in no event later than 60 days after such action is requested to be taken by the Administrative Agent or the Required Lenders; provided that, in no event will the Borrower or any Restricted Subsidiary be required to take any action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section 5.12.

Section 5.13    [Reserved].

Section 5.14    [Reserved].

Section 5.15    [Reserved].

Section 5.16    [Reserved].

Section 5.17    [Reserved].

Section 5.18    Maintenance of Company Separateness. The Borrower will cause each Non-Recourse Entity and each Securitization Entity to satisfy customary formalities for such entity, including, as applicable (i) to the extent required by law, the holding of regular board of members’, managers’, directors’ and shareholders’ meetings or action by members, managers, directors or shareholders without a meeting, (ii) the maintenance of separate books and records and (iii) the maintenance of separate bank accounts in its own name. Neither the Borrower nor any of the Restricted Subsidiaries shall make any payment to a creditor of any Non-Recourse Entity or any Securitization Entity in respect of any liability of any Non-Recourse Entity or any Securitization Entity, and no bank account of any Non-Recourse Entity or any Securitization Entity shall be commingled with any bank account of the Borrower or any of the Restricted Subsidiaries. Any financial statements distributed to any creditors of any Non-Recourse Entity or any Securitization Entity shall clearly establish or indicate the corporate separateness of such Non-Recourse Entity or such Securitization Entity from the Borrower and the other Restricted Subsidiaries. Neither the Borrower nor any of the Restricted Subsidiaries shall take any action, or conduct its affairs in a manner, which is likely to result in the separate legal existence of the Borrower or any Restricted Subsidiary being ignored, or in the assets and liabilities of the Borrower or any Restricted Subsidiary being substantively consolidated with those of any other Person in a bankruptcy, reorganization or other insolvency proceeding.

Section 5.19    [Reserved].

Section 5.20    Maintenance of Ratings. The Borrower will use its commercially reasonable efforts to maintain at all times public ratings (of any level) for the Credit Facilities and public corporate ratings or corporate family ratings (as applicable) of any level with respect to the Borrower, in each case from each of S&P and Moody’s.

 

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Section 5.21    Designation of Subsidiaries. The Borrower may at any time designate any Subsidiary as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided that (a) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing, (b) the First Lien Net Leverage Ratio specified in Section 6.09 as of the last day of the most recently ended Calculation Period (determined on a Pro Forma Basis after giving effect to such designation) shall be satisfied (and, as a condition precedent to the effectiveness of any such designation, the Borrower shall deliver to the Administrative Agent a certificate of an Authorized Officer setting forth in reasonable detail the calculations demonstrating such compliance), (c) no Subsidiary may be designated as or continue as an Unrestricted Subsidiary if it is a “Restricted Subsidiary” for the purposes of any other Indebtedness (including, for the avoidance of doubt, under the Second Lien Senior Subordinated PIK Toggle Notes) and (d) the Required Lenders shall have consented to the designation of such Restricted Subsidiary as an Unrestricted Subsidiary. The designation of any Subsidiary as an Unrestricted Subsidiary shall constitute an Investment by the Borrower therein at the date of designation in an amount equal to the fair market value of the Borrower’s or its Subsidiary’s (as applicable) investment therein. No Unrestricted Subsidiary shall at any time own any Equity Interests or Indebtedness of, or own or hold any Lien on, any property of the Borrower or any Restricted Subsidiary. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Investment, Indebtedness or Liens of such Subsidiary existing at such time. Any such designation shall be notified by the Borrower to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of an Authorized Officer certifying that such designation complied with the foregoing provisions.

Section 5.22    Post-Closing Items. Notwithstanding anything herein or in the other Credit Documents to the contrary, the Borrower shall, or shall cause each other Credit Party to, satisfy the obligations listed in Schedule 5.22 by the times specified therein with respect to such items, or such later time as may be agreed to by the Administrative Agent in its reasonable discretion.

ARTICLE 6

NEGATIVE COVENANTS

The Borrower covenants and agrees with each Lender that until the Termination Date, unless the Required Lenders shall otherwise consent in writing:

Section 6.01    Liens. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with respect to any property or assets (real or personal, tangible or intangible and including Equity Interests or other securities of any Person, including any Restricted Subsidiary) of the Borrower or any Restricted Subsidiary, whether now owned or hereafter acquired, or on any income or revenues or rights in respect of any thereof; provided that the provisions of this Section 6.01 shall not prevent the creation, incurrence, assumption or existence of the following (Liens described below are herein referred to as “Permitted Liens”):

(i)    Liens for taxes, assessments or governmental charges or levies not yet due or Liens for taxes, assessments or governmental charges or levies being contested in good faith and by appropriate proceedings for which adequate reserves have been established in accordance with GAAP;

(ii)    Liens in respect of property or assets of the Borrower or any Restricted Subsidiary imposed by law, which were incurred in the ordinary course of business and do not secure Indebtedness for borrowed money, such as carriers’, warehousemen’s, materialmen’s and mechanics’ liens and other similar Liens arising in the ordinary course of business, and in each case (x) which are for amounts that are not past-due and do not in the aggregate materially detract

 

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from the value of the Borrower’s or such Restricted Subsidiary’s property or assets or materially impair the use thereof in the operation of the business of the Borrower or such Restricted Subsidiary or (y) which are being contested in good faith by appropriate proceedings, which proceedings have the effect of preventing the forfeiture or sale of the property or assets subject to any such Lien, and for which adequate reserves have been established in accordance with GAAP;

(iii)    Liens in existence on the Closing Date which are listed, and the property subject thereto described, in Schedule 6.01, plus renewals, replacements and extensions of such Liens, provided that (x) the aggregate principal amount of the Indebtedness, if any, or obligations secured by such Liens does not increase from that amount outstanding at the time of any such renewal, replacement or extension and (y) any such renewal, replacement or extension does not encumber any additional assets or properties of the Borrower or any Restricted Subsidiary;

(iv)    Liens created by or pursuant to this Agreement and the Security Documents;

(v)    (x) licenses, sublicenses, leases or subleases granted by the Borrower or any Restricted Subsidiary to other Persons in the ordinary course of business and not materially interfering with the conduct of the business of the Borrower or any Restricted Subsidiary or materially detracting from the value of the Borrower’s or such Restricted Subsidiary’s property, rights or assets and (y) any interest or title of a lessor, sublessor or licensor under any operating lease or license agreement entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business and covering only the assets so leased or licensed;

(vi)    Liens upon assets of the Borrower or any Restricted Subsidiary subject to Capitalized Lease Obligations to the extent such Capitalized Lease Obligations are permitted by Section 6.04(iv), provided that (x) such Liens only serve to secure the payment of Indebtedness arising under such Capitalized Lease Obligation and (y) the Lien encumbering the asset giving rise to the Capitalized Lease Obligation does not encumber any other asset of the Borrower or any Restricted Subsidiary;

(vii)    Liens placed upon fixed or capital assets used in the ordinary course of business of the Borrower or any Restricted Subsidiary and placed at the time of the acquisition thereof by the Borrower or such Restricted Subsidiary or within 90 days thereafter to secure Indebtedness incurred to pay all or a portion of the purchase price thereof or to secure Indebtedness incurred solely for the purpose of financing the acquisition of any such assets, or extensions, renewals or replacements of any of the foregoing for the same or a lesser amount, provided that (x) the Indebtedness secured by such Liens is permitted by Section 6.04(iv) and (y) in all events, the Lien encumbering the assets so acquired does not encumber any other asset of the Borrower or such Restricted Subsidiary (other than property financed by such Indebtedness and proceeds thereof);

(viii)    easements, rights-of-way, restrictions, encroachments and other similar charges or encumbrances, and minor title deficiencies, in each case not securing Indebtedness and not materially interfering with the conduct of the business of the Borrower or any Restricted Subsidiary;

(ix)    Liens arising from precautionary UCC financing statement filings regarding operating leases entered into or dispositions of assets consummated in the ordinary course of business;

 

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(x)    Liens arising out of the existence of judgments or awards not constituting an Event of Default under Section 7.01(i) and in respect of which the Borrower or any Restricted Subsidiary shall in good faith be prosecuting an appeal or proceedings for review and in respect of which there shall have been secured a subsisting stay of execution pending such appeal or proceedings;

(xi)    statutory and common law landlords’ liens under leases entered into in the ordinary course of business by the Borrower or any Restricted Subsidiary;

(xii)    (A) Liens (other than Liens imposed under ERISA) incurred in the ordinary course of business in connection with workers compensation claims, unemployment insurance and other social security legislation and (B) Liens securing the performance of bids, trade contracts, performance and completion guarantees, tenders, leases and contracts in the ordinary course of business, statutory obligations, surety bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business (in each case exclusive of obligations in respect of Indebtedness);

(xiii)    Permitted Encumbrances;

(xiv)    Liens on property or assets acquired pursuant to a Permitted Acquisition, or on property or assets of a Restricted Subsidiary in existence at the time such Restricted Subsidiary is acquired pursuant to a Permitted Acquisition, provided that (x) any Indebtedness that is secured by such Liens is permitted to exist under Section 6.04(vii), and (y) such Liens are not incurred in connection with, or in contemplation or anticipation of, such Permitted Acquisition and do not attach to any other asset of the Borrower or any Restricted Subsidiary;

(xv)    Liens arising out of any conditional sale, title retention, consignment or other similar arrangements for the sale of goods entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business to the extent such Liens do not attach to any assets other than the goods subject to such arrangements;

(xvi)    Liens (x) incurred in the ordinary course of business in connection with the purchase or shipping of goods or assets (or the related assets and proceeds thereof), which Liens are in favor of the seller or shipper of such goods or assets and only attach to such goods or assets, and (y) in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;

(xvii)    (A) bankers’ Liens, rights of setoff and other similar Liens existing solely with respect to cash and Cash Equivalents on deposit in one or more accounts maintained by the Borrower or any Restricted Subsidiary, in each case granted in the ordinary course of business and are customary in the banking industry in favor of the bank or banks with which such accounts are maintained, securing amounts owing to such bank or banks with respect to cash management and operating account arrangements and (B) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;

(xviii)    Liens securing Non-Recourse Indebtedness so long as any such Lien shall encumber only (i) the assets originated, acquired or funded with the proceeds of such Non-Recourse Indebtedness and (ii) any intangible contract rights and other accounts, documents, records and other property directly related to the assets set forth in clause (i) and any proceeds thereof;

 

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(xix)    (A) Liens securing Permitted Funding Indebtedness (and any related Interest Rate Protection Agreement) other than Permitted Servicing Advance Facility Indebtedness so long as any such Lien shall encumber only (i) the assets originated, acquired or funded with the proceeds of such Indebtedness and (ii) any intangible contract rights and other accounts, documents, records and other property directly related to the assets set forth in clause (i) and any proceeds thereof and (B) Liens in any cash collateral or restricted accounts securing Permitted Funding Indebtedness (and any related Interest Rate Protection Agreement) other than Permitted Servicing Advance Facility Indebtedness;

(xx)    (A) Liens on Servicing Advances, any intangible contract rights, reimbursement rights for Servicing Advances and other accounts, documents, records and property directly related to the foregoing assets and any proceeds thereof securing Permitted Servicing Advance Facility Indebtedness, Permitted Securitization Indebtedness or Non-Recourse Indebtedness and (B) Liens in any cash collateral or restricted accounts securing Permitted Servicing Advance Facility Indebtedness, or, if used to finance Servicing Advances, Permitted Securitization Indebtedness or Non-Recourse Indebtedness, in each case only to the extent required by the debt provider or Government Sponsored Entity and limited to an amount that is customary in the industry;

(xxi)    Liens on Servicing Advances (and/or reimbursement rights therefor), Residential Mortgage Loans or MSR and any intangible contract rights and other accounts, documents, records and property directly related to the foregoing assets and any proceeds thereof, in each case that are the subject of an Excess Spread Sale entered into in the ordinary course of business securing obligations under such Excess Spread Sale;

(xxii)    Liens on the Equity Interests of any Unrestricted Subsidiary and the proceeds thereof securing Non-Recourse Indebtedness of such Unrestricted Subsidiary;

(xxiii)    Liens on insurance policies and the proceeds thereof securing the financing of premiums with respect thereto; provided such Liens shall not exceed the amount of such premiums so financed;

(xxiv)    Liens on any cash earnest money deposits made by the Borrower or any Restricted Subsidiary in connection with any letter of intent or purchase agreement permitted hereunder;

(xxv)    Liens on Securitization Assets, any intangible contract rights and other accounts, documents, records and assets directly related to the foregoing assets and any proceeds thereof incurred in connection with Permitted Securitization Indebtedness or permitted guarantees thereof;

(xxvi)    Liens on the Collateral securing Permitted External Refinancing Debt or any Permitted Refinancing thereof;

(xxvii)    additional Liens of the Borrower or any Restricted Subsidiary not otherwise permitted by this Section 6.01 so long as the aggregate outstanding principal amount of the obligations secured thereby (determined as of the date such Lien is incurred) does not exceed $22,500,000 in the aggregate for all such Liens at any time; provided that such Liens shall not secure third party debt for borrowed money;

 

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(xxviii)    Liens in any cash collateral or restricted accounts (containing only cash or cash equivalent securities, including securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof, including, without limitation, GNMA, FNMA or FHLMC mortgage backed securities) securing any Interest Rate Protection Agreement permitted under the Credit Documents;

(xxix)    Liens on cash, Cash Equivalents and restricted accounts containing cash and Cash Equivalents in connection with the defeasance, discharge or redemption of Indebtedness; provided that such defeasance, discharge or redemption is permitted hereunder;

(xxx)    Liens on cash, Cash Equivalents and accounts containing cash and Cash Equivalents securing obligations owed by the Borrower or any Restricted Subsidiary to any Government Sponsored Entity, any other government agency or any insurer, which obligations are permitted or not prohibited under the Credit Documents and in each case, so long as the aggregate principal amount at any time outstanding of the obligations secured thereby does not exceed the sum of $50,000,000 and the L/C Cap;

(xxxi)    Liens on cash, Cash Equivalents and accounts containing cash and Cash Equivalents securing the Indebtedness permitted by Section 6.04(xx) in an aggregate amount not to exceed 105% of the face amount of the Indebtedness permitted thereby;

(xxxii)    subject to the First Lien/Second Lien Intercreditor Agreement, Liens securing indebtedness permitted by Section 6.04(xxii).

In connection with the granting of Liens of the type described in clauses (iii), (vi), (vii), (xiv), (xviii), (xix), (xx), (xxi), (xxv), (xxviii), (xxix), (xxx) and (xxxi) of this Section 6.01 by the Borrower of any of the Restricted Subsidiaries, the Administrative Agent and the Collateral Agent shall be authorized to take any actions deemed appropriate by it in connection therewith without approval of any Lender (including, without limitation, by executing appropriate lien releases or lien subordination agreements in favor of the holder or holders of such Liens, in either case solely with respect to the item or items of equipment or other assets subject to such Liens).

Section 6.02    Consolidation, Merger, Sale of Assets, Etc. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, wind up, liquidate or dissolve its affairs or consummate any merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its property or assets (other than sales of inventory in the ordinary course of business), or consummate any sale-leaseback transactions with any Person, except that the following shall be permitted, in each case, so long as, in the case of each of the following constituting an Asset Sale, Disposition of Bulk MSR or Non-Core Asset Sale, the Net Sale Proceeds therefrom are applied pursuant to Section 2.13(c):

(i)    Capital Expenditures made in the ordinary course of business shall be permitted;

(ii)    the Borrower and the Restricted Subsidiaries may liquidate or otherwise dispose of obsolete or worn-out property in the ordinary course of business;

(iii)    Investments may be made to the extent permitted by Section 6.05 and Dividends to the extent permitted by Section 6.04;

(iv)    the Borrower and the Restricted Subsidiaries may sell assets (provided that any sale of less than all the capital stock or other Equity Interests of any Restricted Subsidiary in accordance with this clause (iv) shall be deemed to be an Investment by the Borrower or the

 

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applicable Restricted Subsidiary in the capital stock or other Equity Interests not so sold in an amount equal to the Fair Market Value of such capital stock or other Equity Interests), so long as (v) no Default or Event of Default then exists or would result therefrom (including as a result of any such deemed investment), (w) the Borrower or the respective Restricted Subsidiary receives at least Fair Market Value and (x) the consideration received by the Borrower or such Restricted Subsidiary consists of at least 75% cash or Cash Equivalents and is paid at the time of the closing of such sale;

(v)    the Borrower and each of the Restricted Subsidiaries may lease (as lessee) or license (as licensee) real or personal property in the ordinary course of business (so long as any such lease or license does not create a Capitalized Lease Obligation except to the extent permitted by Section 6.04(iv));

(vi)    the Borrower and each of the Restricted Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction;

(vii)    the Borrower and each of the Restricted Subsidiaries may grant licenses, sublicenses, leases or subleases to other Persons in the ordinary course of business and not materially interfering with the conduct of the business of the Borrower or any Restricted Subsidiary;

(viii)    the Borrower or any Restricted Subsidiary may convey, sell or otherwise transfer all or any part of its business, properties and assets to the Borrower or to any Wholly-Owned Domestic Restricted Subsidiary which is a Subsidiary Guarantor;

(ix)    any Restricted Subsidiary that is a Subsidiary Guarantor may merge or consolidate with and into, or be dissolved or liquidated into, the Borrower or any Wholly-Owned Domestic Restricted Subsidiary which is a Subsidiary Guarantor, so long as (A) in the case of any such merger, consolidation, dissolution or liquidation involving the Borrower, the Borrower is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation and (B) in all other cases, a Subsidiary Guarantor is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation;

(x)    any Restricted Subsidiary that is not a Subsidiary Guarantor (other than a Non-Recourse Entity) may convey, sell, lease or otherwise dispose of all or any part of its property or assets to, or merge or consolidate with and into, or be dissolved or liquidated into, the Borrower or any other Restricted Subsidiary, in each case so long as (A) no Event of Default shall result therefrom, (B) in the case of any such merger, consolidation, dissolution or liquidation involving the Borrower, the Borrower is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation and (C) in the case of any such merger, consolidation, dissolution or liquidation involving a Subsidiary Guarantor (but not involving the Borrower), such Subsidiary Guarantor is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation;

(xi)    Permitted Acquisitions may be consummated in accordance with the requirements of Section 6.05(xii);

(xii)    the Borrower and the Restricted Subsidiaries may liquidate or otherwise dispose of Cash Equivalents in the ordinary course of business for cash or Cash Equivalents;

 

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(xiii)    sales, contributions, assignments or other transfers in the ordinary course of business and for Fair Market Value of Servicing Advances or Residential Mortgage Loans pursuant to the terms of Permitted Funding Indebtedness or Non-Recourse Indebtedness shall be permitted;

(xiv)    to the extent that any MSR Lender which is a Government Sponsored Entity exercises its MSR Call Option, the Borrower or the applicable Restricted Subsidiary may sell the MSR subject to such MSR Call Option;

(xv)    [reserved];

(xvi)    sales, contributions, assignments or other transfers (in one or more transactions) for Fair Market Value of Servicing Advances, Residential Mortgage Loans or MSR or any parts thereof (a) in the ordinary course of business, (b) in connection with the transfer or termination of the related MSRs or (c) in connection with Excess Spread Sales in the ordinary course of business shall be permitted;

(xvii)    sales, contributions, assignments or other transfers in the ordinary course of business and for Fair Market Value of Servicing Advances, Residential Mortgage Loans or MSRs to Securitization Entities and Warehouse Facility Trusts in connection with Securitizations or Warehouse Facilities shall be permitted;

(xviii)    sales, contributions, assignments or other transfers of Investments or other assets and disposition or compromise of loans or other receivables, in each case, in connection with the workout, compromise, settlement or collection thereof or exercise of remedies with respect thereto, in the ordinary course of business or in bankruptcy, foreclosure or similar proceedings, including foreclosure, repossession and disposition of REO Assets and other collateral for loans serviced and/or originated by the Borrower or any of the Restricted Subsidiaries shall be permitted;

(xix)    the modification of any loans owned by the Borrower or any of the Restricted Subsidiaries in the ordinary course of business shall be permitted;

(xx)    sales, contributions, assignments or other transfers of Securitization Assets in the ordinary course of business and for Fair Market Value by the Borrower or any of the Restricted Subsidiaries in connection with the origination, acquisition, securitization and/or sale of loans that are purchased, insured, guaranteed, or securitized shall be permitted;

(xxi)    sales, contributions, assignments or other transfers in the ordinary course of business of MSRs in connection with MSR Facilities and Warehouse Facilities and of REO Assets shall be permitted;

(xxii)    sales, contributions, assignments or other transfers of Residual Interests after the Closing Date in the ordinary course of business and for Fair Market Value shall be permitted; provided that the Fair Market Value of Residual Interests sold, contributed, assigned or otherwise transferred pursuant to this clause (xxii) shall not exceed $60,000,000 in the aggregate;

(xxiii)    sales or other transfers of a minority interest in any Investment otherwise permitted under Section 6.05; provided that the majority interests in such Investment shall also be concurrently sold or transferred on the same terms and the holder or holders of such majority interests shall have required such sale or disposition of such minority interest pursuant to the exercise of any applicable drag-along rights;

 

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(xxiv)    the Borrower and each Restricted Subsidiary may contribute assets to any joint venture in exchange for Equity Interests in such joint venture; provided (x) such transaction is on an arm’s length basis, (y) the Borrower or such Restricted Subsidiary, as applicable, receives fair value for the assets so contributed and (z) such contributions shall constitute, on the date of such contribution, an Investment by the Borrower or such Restricted Subsidiary, as applicable, in an amount equal to the fair market value of the assets so contributed; provided further, that such contributions may only be made to the extent permitted by Section 6.05;

(xxv)    sales, contributions, assignments or other transfers of any assets or rights required or advisable as a result of statutory or regulatory changes as determined in good faith by the senior management of the Borrower;

(xxvi)    sales, contributions, assignments or other transfers of Equity Interests of an Unrestricted Subsidiary;

(xxvii)    sales, contributions, assignments or other transfers of the RMS Business, so long as (A) no Event of Default then exists or would result therefrom and (B) the Borrower delivers or causes to be delivered an opinion stating that such transaction is fair to the Borrower or such Restricted Subsidiary from a financial point of view from an accounting, appraisal, investment banking firm or consultant of nationally recognized standing that is, in the good faith judgment of the Borrower, qualified to perform the task for which it has been engaged and that is independent of the Borrower and its Affiliates; and

(xxviii)    to the extent constituting a merger or consolidation, or conveyance, sale, lease or other disposal, the Borrower and its Restricted Subsidiaries may consummate the Transactions.

For the avoidance of doubt, any sale, contribution, assignment or other transfer otherwise permitted pursuant to Section 6.02(xiii), (xvi) or (xvii) shall not be deemed to be for less than Fair Market Value solely because such sale, contribution, assignment or transfer was made at a discount to par.

To the extent the Required Lenders waive the provisions of this Section 6.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 6.02 (other than to the Borrower or a Restricted Subsidiary), such Collateral shall be sold free and clear of the Liens created by the Security Documents and, in the case of the sale of all of the Equity Interests of a Subsidiary Guarantor permitted by this Section 6.02 (other than to the Borrower or a Restricted Subsidiary), such Subsidiary Guarantor shall be released from the Subsidiaries Guaranty, and the Administrative Agent and the Collateral Agent shall be authorized without any further action on behalf of any Lender or other Secured Creditor to take any actions deemed appropriate in order to effect the foregoing release.

Section 6.03    Dividends. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, directly or indirectly, authorize, declare or pay any Dividends with respect to the Borrower or any Restricted Subsidiary, except that:

(i)    any Restricted Subsidiary may pay Dividends to the Borrower or to any Wholly-Owned Domestic Restricted Subsidiary and any Subsidiary of the Borrower that is not a Credit Party may pay Dividends to any Wholly-Owned Restricted Subsidiary;

 

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(ii)    any Non-Wholly-Owned Restricted Subsidiary may pay Dividends to its shareholders, members or partners generally so long as the Borrower or a Restricted Subsidiary which owns the Equity Interests in the Restricted Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holding of the Equity Interests in the Restricted Subsidiary paying such Dividends and taking into account the relative preferences, if any, of the various classes of Equity Interests of such Restricted Subsidiary);

(iii)    the Borrower may redeem, repurchase or otherwise acquire for value, outstanding shares of its Qualified Equity Interests (or options or warrants to purchase its Qualified Equity Interests) following the death, disability or termination of employment of officers, directors or employees of the Borrower or any Restricted Subsidiary, provided that (x) the aggregate amount of all Dividends paid or made pursuant to this clause (iii) shall not exceed $10,000,000 in any fiscal year of the Borrower and (y) at the time of any Dividend permitted to be made pursuant to this clause (iii), no Default or Event of Default shall then exist or would result therefrom;

(iv)    the Borrower may pay Dividends on its Qualified Equity Interests solely through the issuance of additional shares of Qualified Equity Interests of the Borrower (but not in cash), provided that in lieu of issuing additional shares of Qualified Equity Interests as Dividends, the Borrower may increase the liquidation preference of the shares of Qualified Equity Interests in respect of which such Dividends have accrued;

(v)    to the extent constituting a Dividend, the Borrower and its Restricted Subsidiaries may consummate the Transactions; and

(vi)    to the extent constituting a Dividend, the making of any Dividends on or after the Closing Date as required by the Plan of Reorganization, the Confirmation Order or any documents, instruments or agreements contemplated thereby, including any Dividend in connection with (A) the conversion of the Convertible Preferred Stock and (B) the exercise of the Closing Date Warrants.

Section 6.04    Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, contract, create, incur, assume or suffer to exist any Indebtedness, except:

(i)    Indebtedness incurred pursuant to this Agreement and the other Credit Documents;

(ii)    Existing Indebtedness outstanding on the Closing Date and listed on Schedule 6.04 (as reduced by any permanent repayments of principal thereof) and, in each case, any subsequent extension, renewal or refinancing thereof, provided that the aggregate principal amount of the Indebtedness to be extended, renewed or refinanced does not increase from that amount outstanding (or, in the case of a revolving line of credit, the amount committed on the Closing Date (as reduced by any permanent commitment reductions thereunder)) at the time of any such extension, renewal or refinancing, and neither the final maturity nor the Weighted Average Life to Maturity of such Indebtedness is decreased, such Indebtedness, if subordinated to the Obligations, remains so subordinated on terms no less favorable to the Lenders, and the original obligors in respect of such Indebtedness remain the only obligors thereon;

(iii)    Indebtedness of the Borrower and the Restricted Subsidiaries under Interest Rate Protection Agreements or Other Hedging Agreements, so long as the entering into of such Interest Rate Protection Agreements or Other Hedging Agreements are bona fide hedging activities and are not for speculative purposes;

 

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(iv)    Indebtedness of the Borrower and the Restricted Subsidiaries evidenced by Capitalized Lease Obligations and purchase money Indebtedness described in Section 6.01(vii), provided that in no event shall the sum of the aggregate principal amount of all Capitalized Lease Obligations and purchase money Indebtedness permitted by this clause (iv) exceed $25,000,000 at any time outstanding;

(v)    Indebtedness constituting Intercompany Loans to the extent permitted by Section 6.05(viii);

(vi)    Indebtedness consisting of guaranties or other Contingent Obligations (x) by the Borrower and the Wholly-Owned Restricted Subsidiaries that are Subsidiary Guarantors of each other’s Indebtedness and other obligations permitted under this Agreement (other than guaranties of Non-Recourse Indebtedness, Permitted Funding Indebtedness or any Indebtedness permitted under Section 6.04(xvii); provided that the Borrower (but no other Credit Party) may, on an unsecured basis, guarantee the Permitted Funding Indebtedness of a Subsidiary Guarantor), (y) by Wholly-Owned Restricted Subsidiaries that are not Credit Parties of each other’s Indebtedness or other contractual obligations permitted under this Agreement (in each case other than guaranties of Non-Recourse Indebtedness or Securitization Indebtedness) and (z) of Indebtedness and other obligations (including any Permitted Funding Indebtedness) so long as such guaranty or other Contingent Obligation is otherwise permitted as an Investment under Section 6.05 (other than Section 6.05(xi));

(vii)    Indebtedness of a Restricted Subsidiary acquired pursuant to a Permitted Acquisition (or Indebtedness assumed at the time of a Permitted Acquisition of an asset securing such Indebtedness), provided that (x) such Indebtedness was not incurred in connection with, or in anticipation or contemplation of, such Permitted Acquisition, (y) such Indebtedness is not guaranteed in any respect by the Borrower or any Restricted Subsidiary (other than any acquired Person that becomes a Restricted Subsidiary) and (z) the aggregate principal amount of all Indebtedness permitted by this clause (vii) (other than Permitted Funding Indebtedness) shall not exceed $50,000,000;

(viii)    Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, so long as such Indebtedness is extinguished within three Business Days of its incurrence;

(ix)    Indebtedness of the Borrower and the Restricted Subsidiaries with respect to performance bonds, surety bonds, appeal bonds or customs bonds required in the ordinary course of business or in connection with the enforcement of rights or claims of the Borrower or any Restricted Subsidiary or in connection with judgments that do not result in a Default or an Event of Default;

(x)    Indebtedness of the Borrower or any Restricted Subsidiary which may be deemed to exist in connection with customary agreements providing for indemnification, purchase price adjustments and similar obligations in connection with the acquisition or disposition of assets in connection with transactions otherwise permitted hereunder, so long as any such obligations are those of the Person making the respective acquisition or sale, and are not guaranteed by any other Person except as permitted by Section 6.04(vi);

(xi)    Permitted Funding Indebtedness;

 

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(xii)    Non-Recourse Indebtedness;

(xiii)    to the extent constituting Indebtedness, Indebtedness under Excess Spread Sales incurred in the ordinary course of business;

(xiv)    (A) Indebtedness of the Borrower or any Restricted Subsidiary which may be deemed to exist pursuant to earn-out arrangements upon the achievement of certain future performance goals of the respective Acquired Entity in connection with Permitted Acquisitions, so long as any such obligations are those of the Person making the respective Permitted Acquisition and are not guaranteed by any other Person except as permitted by Section 6.04(vi) and (B) any Indebtedness of the Borrower or any Restricted Subsidiary which may be deemed to exist pursuant to any deferred purchase price, installment payment or similar arrangement in connection with the purchase of MSR, Servicing Advances, REO Assets, servicing rights, Residual Interests Excess Spreads, residential or commercial mortgage loans or Securitization Assets, provided such Indebtedness is on terms consistent with standards acceptable to the industry;

(xv)    [reserved];

(xvi)    [reserved];

(xvii)    Indebtedness of any Restricted Subsidiary that is a general partner of a Permitted Fund solely as a result of such Restricted Subsidiary being a general partner of a Permitted Fund but only so long as such Restricted Subsidiary is in compliance with Section 6.13;

(xviii)    Permitted Securitization Indebtedness and Indebtedness under Credit Enhancement Agreements, in each case incurred in the ordinary course of business;

(xix)    so long as no Default or Event of Default then exists or would result therefrom, additional unsecured Indebtedness incurred by the Borrower and the Restricted Subsidiaries (other than a Non-Recourse Entity) in an aggregate principal amount not to exceed $50,000,000 at any one time outstanding;

(xx)    Indebtedness consisting of undrawn letters of credit and reimbursement obligations with respect to letters of credit issued for the benefit of the Borrower or any Restricted Subsidiary; provided that the aggregate face amount of all such letters of credit at any time outstanding shall not exceed L/C Cap;

(xxi)    Permitted External Refinancing Debt of any Credit Party, and any Permitted Refinancing thereof; and

(xxii)    Indebtedness of the Credit Parties in respect of the Second Lien Senior Subordinated PIK Toggle Notes in an aggregate principal amount of up to $250,000,000 plus the amount of any increase in the outstanding principal amount thereof as a result of the issuance of PIK Interest (as defined in the Second Lien Senior Subordinated PIK Toggle Notes Indenture) in connection therewith, in each case, at any time outstanding, less the aggregate amount of any principal payments made thereon (other than in connection with a Permitted Refinancing thereof), and any Permitted Refinancing thereof.

 

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Section 6.05    Advances, Investments and Loans. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, directly or indirectly, make or permit to exist any advance, loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase, hold or acquire any Equity Interest, bonds, notes, debentures, evidence of indebtedness or other securities of, or acquire any assets constituting all or substantially all of the assets of or assets constituting all or substantially all of the assets of a business, division or product line of, or make or permit to exist any investment or any other interest in, any Person (each of the foregoing an “Investment” and, collectively, “Investments”), except that the following shall be permitted:

(i)    the Borrower and the Restricted Subsidiaries may acquire and hold accounts or notes receivables owing to any of them, if created or acquired in the ordinary course of business;

(ii)    the Borrower and the Restricted Subsidiaries may acquire and hold cash and Cash Equivalents;

(iii)    [reserved];

(iv)    the Borrower and the Restricted Subsidiaries may acquire and own REO Assets and other investments (including debt obligations) received in connection with the bankruptcy or reorganization of suppliers and customers and in good faith settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business;

(v)    the Borrower and the Restricted Subsidiaries may make loans and advances to their officers and employees in the ordinary course of business (including for travel, entertainment and relocation expenses) in an aggregate amount not to exceed $3,500,000 at any time outstanding;

(vi)    the Borrower and the Restricted Subsidiaries may acquire and hold obligations of their officers and employees in connection with such officers’ and employees’ acquisition of shares of Qualified Equity Interests of the Borrower (so long as no cash is actually advanced by the Borrower or any Restricted Subsidiary in connection with the acquisition of such obligations);

(vii)    the Borrower and the Restricted Subsidiaries may enter into Interest Rate Protection Agreements and Other Hedging Agreements to the extent permitted by Section 6.04(iii);

(viii)    (A) the Borrower and the Subsidiary Guarantors may make intercompany loans and advances between or among one another and (B) any Restricted Subsidiary which is not a Credit Party may make intercompany loans and advances to the Borrower or a Wholly-Owned Restricted Subsidiary (such intercompany loans and advances referred to in preceding clauses (A) and (B), collectively, the “Intercompany Loans”), provided that (v) each Intercompany Loan made by a Credit Party shall be evidenced by an Intercompany Note, (w) each such Intercompany Note owned or held by a Credit Party shall be pledged to the Collateral Agent pursuant to the Pledge Agreement, (x) each Intercompany Loan made by any Restricted Subsidiary that is not a Credit Party to a Credit Party shall be subject to the subordination provisions contained in the Intercompany Subordination Agreement and (y) any Intercompany Loans made to any Subsidiary Guarantor or any Wholly-Owned Restricted Subsidiary pursuant to this clause (viii) shall cease to be permitted by this clause (viii) if such Subsidiary Guarantor or Wholly-Owned Restricted Subsidiary, as the case may be, ceases to constitute a Subsidiary Guarantor that is a Wholly-Owned Domestic Restricted Subsidiary or a Wholly-Owned Restricted Subsidiary, as the case may be;

 

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(ix)    (A) the Borrower and any Subsidiary Guarantor may make capital contributions to, or acquire Equity Interests of, any Subsidiary Guarantor which is a Wholly-Owned Restricted Subsidiary and (B) any Restricted Subsidiary which is not a Credit Party may make capital contributions to, or acquire Equity Interests of, any other Wholly-Owned Restricted Subsidiary, and may capitalize or forgive any Indebtedness owed to it by a Wholly-Owned Restricted Subsidiary;

(x)    the Borrower and the Restricted Subsidiaries may own the Equity Interests of their respective Restricted Subsidiaries created or acquired in accordance with the terms of this Agreement (so long as all amounts invested in such Restricted Subsidiaries are independently justified under another provision of this Section 6.05);

(xi)    Contingent Obligations permitted by Section 6.04, to the extent constituting Investments;

(xii)    the Borrower or any Restricted Subsidiary may acquire all or substantially all the assets of a Person or line of business or business unit of such Person, or not less than the majority of the Equity Interests of a Person (referred to herein as the “Acquired Entity”; and any acquisition of an Acquired Entity meeting all the criteria of this Section 6.05(xii) being referred to herein as a “Permitted Acquisition”)); provided that (A) no Default or Event of Default shall have occurred and be continuing at the time of the consummation of the proposed acquisition or immediately after giving effect thereto, (B) calculations are made by the Borrower for the respective Calculation Period on a Pro Forma Basis as if the respective acquisition (as well as all other Subject Transactions theretofore consummated after the first day of such Calculation Period) had occurred on the first day of such Calculation Period, and such calculations shall show that the Borrower shall have been in compliance with the Financial Covenants as of the last day of such Calculation Period on a Pro Forma Basis, (C) in the case of any acquisition with respect to which the aggregate consideration (including any Indebtedness that is assumed by the Borrower or any Restricted Subsidiary following such acquisition and any payments following such acquisition pursuant to earn-out provisions or similar obligations) to be incurred is expected to be $25,000,000 or more, the Borrower shall have delivered to the Administrative Agent a certificate executed by an Authorized Officer, certifying to the best of such officer’s knowledge, compliance with the requirements of preceding clauses (A) and (B), inclusive, and containing the calculations (in reasonable detail) required to establish compliance with preceding clause (B), (D) the Acquired Entity shall be in a business permitted by Section 6.13 and (E) the Borrower will cause each Restricted Subsidiary (except any Excluded Subsidiary) which is formed to effect, or is acquired pursuant to, such acquisition to comply with, and to execute and deliver all of the documentation as and to the extent required by, Section 5.12 and 6.14; provided further that the aggregate amount of such consideration paid or provided by or on behalf of any Credit Party (including any Indebtedness incurred or assumed by any such Person to finance any portion of such consideration) at any time after the Closing Date in reliance on this Section 6.05(xii) attributable to acquisitions of Persons that do not become Credit Parties or of assets by Subsidiaries that are not or do not become Credit Parties (including as a result of a merger or consolidation) shall not exceed the amount otherwise available for Investments in Restricted Subsidiaries that are not Credit Parties under this Section 6.05;

(xiii)    the Borrower and the Restricted Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any asset sale permitted by Section 6.02(iv);

 

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(xiv)    the Borrower and the Restricted Subsidiaries may in the ordinary course of business make advances in the form of a prepayment of expenses to vendors, suppliers and trade creditors, so long as such expenses were incurred in the ordinary course of business of the Borrower or such Restricted Subsidiary;

(xv)    Investments by the Borrower or any Restricted Subsidiary in Securitization Entities, Warehouse Facility Trusts, MSR Facility Trusts, Investments in mortgage-related securities or charge-off receivables, in each case (a)(I) consistent with past practices or (II) generally accepted market standards and in the ordinary course of business or (b) the Borrower shall be in compliance with the Financial Covenants, determined on a Pro Forma Basis for the applicable Calculation Period;

(xvi)    Investments arising out of purchases (a)(I) consistent with past practices or (II) generally accepted market standards and in the ordinary course of business or (b) the Borrower shall be in compliance with the Financial Covenants, determined on a Pro Forma Basis for the applicable Calculation Period, of all remaining outstanding asset-backed securities of any Securitization Entity and/or Securitization Assets of any Securitization Entity;

(xvii)    Investment in MSRs (including in the form of repurchases of MSRs), in each case (a)(I) consistent with past practices or (II) generally accepted market standards and in the ordinary course of business or (b) the Borrower shall be in compliance with the Financial Covenants, determined on a Pro Forma Basis for the applicable Calculation Period;

(xviii)    Investments in Residual Interests in connection with any Securitization, Warehouse Facility or MSR Facility, in each case (a)(I) consistent with past practices or (II) generally accepted market standards and in the ordinary course of business or (b) the Borrower shall be in compliance with the Financial Covenants, determined on a Pro Forma Basis for the applicable Calculation Period;

(xix)    Investments in and making or origination of Servicing Advances, residential or commercial mortgage loans and Securitization Assets (whether or not made in conjunction with the acquisition of MSRs) (including in the form of repurchases of any of the foregoing), in each case (a)(I) consistent with past practices or (II) generally accepted market standards and in the ordinary course of business or (b) the Borrower shall be in compliance with the Financial Covenants, determined on a Pro Forma Basis for the applicable Calculation Period;

(xx)    the contribution, assignment or other transfer of Equity Interests of an Unrestricted Subsidiary; provided, that to the extent the transferor of such Equity Interest is a Credit Party, the recipient of such Equity Interests shall also be a Credit Party;

(xxi)    [reserved];

(xxii)    [reserved];

(xxiii)    in addition to Investments permitted by clauses (i) through (xxii) of this Section 6.05, the Borrower and the Restricted Subsidiaries may make additional loans, advances and other Investments to or in a Person (other than a Non-Recourse Entity) in an aggregate amount for all loans, advances and other Investments made pursuant to this clause (xxiii) (determined without regard to any write-downs or write-offs thereof), net of cash repayments of principal in the case of loans, sale proceeds in the case of Investments in the form of debt instruments and cash equity returns (whether as a distribution, dividend, redemption or sale) in the case of equity investments, not to exceed $30,000,000;

 

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(xxiv)    [reserved];

(xxv)    Investments by the Borrower or any Restricted Subsidiary existing on the Closing Date and set forth on Schedule 6.05;

(xxvi)    Investments in connection with or resulting from sales, contributions, assignments or other transfers pursuant to Section 6.02(xxvii); and

(xxvii)    to the extent constituting an Investment, the consummation of the Transactions.

The amount, as of any date of determination, of (i) any Investment in the form of a loan, advance or extension of credit shall be the principal amount thereof outstanding on such date, minus any cash payments actually received by the applicable investor representing a payment or prepayment of in respect of principal of such Investment, but without any adjustment for write-downs or write-offs (including as a result of forgiveness of any portion thereof) with respect to such loan, advance or extension after the date of such loan, advance or extension, (ii) any Investment in the form of a guarantee shall be equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof, as determined in good faith by the Borrower, (iii) any Investment in the form of a transfer of Equity Interests or other non-cash property by the investor to the investee, including any such transfer in the form of a capital contribution, shall be the Fair Market Value of such Equity Interests or other property as of the time of the transfer or capital contribution, minus any payments actually received by such investor representing a return of capital of such Investment, but without any other adjustment for increases or decreases in value of, or write-ups, write-downs or write-offs with respect to, such Investment after the date of such Investment, and (iv) any Investment (other than any Investment referred to in clause (i), (ii) or (iii) above) by the specified Person in the form of a purchase or other acquisition of any Equity Interests, bonds, notes, debentures, evidences of Indebtedness or other securities of any other Person shall be the original cost of such Investment (including any Indebtedness assumed in connection therewith), minus the amount of any portion of such Investment that has been repaid to the investor in cash as a repayment of principal or a return of capital, but without any other adjustment for increases or decreases in value of, or write-ups, write-downs or write-offs with respect to, such Investment after the date of such Investment.

Section 6.06    Transactions with Affiliates. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, enter into any transaction or series of related transactions with any Affiliate (other than transactions (a) by and among Credit Parties and (b) by and among Restricted Subsidiaries that are not Credit Parties and/or (c) by and among Credit Parties and Wholly-Owned Restricted Subsidiaries that are not Credit Parties to the extent that such transactions are in the ordinary course of business and consistent with past practices), other than on terms and conditions substantially as favorable to the Borrower or such Restricted Subsidiary as would reasonably be obtained by the Borrower or such Restricted Subsidiary at that time in a comparable arm’s-length transaction with a Person other than an Affiliate, except that the following in any event shall be permitted:

(i)    Dividends may be paid to the extent provided in Section 6.03;

(ii)    loans may be made and other transactions may be entered into by the Borrower and the Restricted Subsidiaries to the extent permitted by Section 6.02, 6.04 and 6.05 so long as, in each case, such loans and other transactions are in the ordinary course of business and consistent with past practice;

 

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(iii)    customary fees, indemnities and reimbursements may be paid to non-officer directors of the Borrower and the Restricted Subsidiaries;

(iv)    the Borrower and the Restricted Subsidiaries may enter into, and may make payments under, employment agreements, employee benefits plans, stock option plans, indemnification provisions and other similar compensatory arrangements with officers, employees and directors of the Borrower and the Restricted Subsidiaries in the ordinary course of business; and

(v)    the existence of, or the performance by the Borrower or any of its Restricted Subsidiaries of its obligations under the terms of, any registration rights agreement, the Second Lien Senior Subordinated PIK Toggle Notes Indenture, the Convertible Preferred Stock or other agreement or instrument entered into in connection with the Plan of Reorganization to which it is a party as of the Closing Date.

Section 6.07    Asset Coverage Ratios. (a) The Borrower will not permit the Asset Coverage Ratio A, as of the last day of any Test Period ending on the date set forth in the table below, to be less than the ratio set forth opposite such fiscal quarter below:

 

Fiscal Quarter Ending

   Asset Coverage Ratio A  

December 31, 2017

     1.40:1.00  

March 31, 2018

     1.40:1.00  

June 30, 2018

     1.40:1.00  

September 30, 2018

     1.40:1.00  

December 31, 2018

     1.40:1.00  

March 31, 2019

     1.45:1.00  

June 30, 2019

     1.45:1.00  

September 30, 2019

     1.45:1.00  

December 31, 2019 and the last day of each fiscal quarter of the Borrower thereafter

     1.50:1.00  

(b)    The Borrower will not permit the Asset Coverage Ratio B, as of the last day of each Test Period ending after the Closing Date, to be less than 1.00:1.00.

Section 6.08    Interest Expense Coverage Ratio. The Borrower will not permit the Interest Expense Coverage Ratio, as of the last day of any Test Period ending on the date set forth in the table below, to be less than the ratio set forth opposite such fiscal quarter below:

 

Fiscal Quarter Ending

   Interest Expense
Coverage Ratio
 

December 31, 2017

     1.20:1.00  

March 31, 2018

     1.20:1.00  

June 30, 2018

     1.20:1.00  

September 30, 2018

     1.25:1.00  

December 31, 2018

     1.25:1.00  

March 31, 2019

     1.75:1.00  

June 30, 2019

     2.00:1.00  

September 30, 2019

     2.00:1.00  

December 31, 2019 and the last day of each fiscal quarter of the Borrower thereafter

     2.25:1.00  

 

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Section 6.09    First Lien Net Leverage Ratio. The Borrower will not permit the First Lien Net Leverage Ratio, as of the last day of any Test Period ending on the date set forth in the table below, to be greater than the ratio set forth opposite such date below:

 

Fiscal Quarter Ending

   First Lien Net Leverage
Ratio
 

December 31, 2017

     8.50:1.00  

March 31, 2018

     7.75:1.00  

June 30, 2018

     7.75:1.00  

September 30, 2018

     6.75:1.00  

December 31, 2018

     5.75:1.00  

March 31, 2019

     5.00:1.00  

June 30, 2019

     4.50:1.00  

September 30, 2019

     4.00:1.00  

December 31, 2019 and the last day of each fiscal quarter of the Borrower thereafter

     3.50:1.00  

Section 6.10    Modifications of Certain Agreements. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, amend, modify, change or waive, or permit the amendment, modification or changing of, any terms of (a) any Permitted External Refinancing Debt or any Permitted Refinancing thereof, if, after giving effect to such amendment, modification, change or waiver, such Indebtedness would not constitute Permitted External Refinancing Debt or (b) subject to subclause (vii) of this Section 6.10, the Second Lien Senior Subordinated PIK Toggle Notes Documents or any respective Permitted Refinancing thereof if such amendment, modification, change or waiver (i) could reasonably be expected to materially increase the obligations of the obligors thereunder, (ii) confers any additional material rights on the holders thereof or any Permitted Refinancing thereof, (iii) decreases the Weighted Average Life to Maturity or shortens the maturity date applicable thereto, (iv) requires additional prepayments with respect to any event, (v) results in any subordination provisions thereof being less favorable in any respect to the Lenders, including, without limitation, Articles 10 and 12 of the Second Lien Senior Subordinated PIK Toggle Notes Indenture, (vi) results in an increase in the All-in Yield (payable in cash only) on the Second Lien Senior Subordinated PIK Toggle Notes in effect on the date hereof or (vii) results in an increase in excess of 2.00% per annum on the rate of interest paid-in-kind on the Second Lien Senior Subordinated PIK Toggle Notes in effect on the date hereof, in each case, the payment of which is not otherwise permitted hereunder, in each case other than in connection with a Permitted Refinancing thereof.

Section 6.11    Limitation on Certain Restrictions on Subsidiaries. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any encumbrance or restriction on the ability of any such Restricted Subsidiary to (a) pay dividends or make any other distributions on its capital stock or any other Equity Interest or participation in its profits owned by the Borrower or any Restricted Subsidiary, or pay any Indebtedness owed to the Borrower or any Restricted Subsidiary, (b) make loans or advances to the Borrower or any Restricted Subsidiary or (c) transfer any of its properties or assets to the Borrower or any Restricted Subsidiary, except for such encumbrances or restrictions existing under or by reason of (i) applicable law, (ii) this Agreement and the other Credit Documents, (iii) agreements which (x) exist on the Closing Date and (to the extent not otherwise permitted by this Section 6.11) are listed on Schedule 6.11 and (y) to the extent agreements permitted by preceding sub-clause (x) are set forth in an agreement

 

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evidencing Indebtedness, are set forth in any agreement evidencing any permitted renewal, extension or refinancing of such Indebtedness so long as such renewal, extension or refinancing does not expand the scope of the restrictions described in clause (a), (b) or (c) that are contained in such existing agreement, (iv) agreements that are binding on a Restricted Subsidiary at the time such Restricted Subsidiary is acquired by the Borrower or any Restricted Subsidiary, so long as such agreements were not entered into in contemplation of such Person becoming a Restricted Subsidiary, (v) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Borrower or any Restricted Subsidiary, (vi) customary provisions restricting assignment of any licensing agreement (in which the Borrower or any Restricted Subsidiary is the licensee) or other contract entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business, (vii) restrictions on the transfer of any asset or any Restricted Subsidiary pending the close of the sale of such asset or such Restricted Subsidiary, (viii) restrictions on the transfer of any asset subject to a Lien permitted by Section 6.01(iii), (vi), (vii), (xv), (xvi), (xviii), (xix), (xx), (xxv), (xxvii), (xxviii), (xxix), (xxx) and (xxxi); provided that such restrictions are limited to the applicable individual agreements and/or the property or assets subject to such agreements, (ix) customary provisions applicable to a Securitization Entity; provided that such restrictions are limited to the applicable individual agreements and/or the property or assets subject to such agreements, (x) provisions in documentation with respect to the Second Lien Senior Subordinated PIK Toggle Notes, Permitted External Refinancing Debt or any Permitted Refinancing of the foregoing, in each case, so long as such provisions are no more restrictive than the corresponding provisions hereof and (xi) provisions pursuant to the terms of any Permitted Funding Indebtedness or any Non-Recourse Indebtedness providing for financial covenants or limitations on affiliate transactions, mergers, consolidations, transfers of all or substantially all assets or other fundamental changes, in each case so long as such provisions are determined in good faith by the Borrower to be customary for such financing and the applications of such provisions will not materially affect the ability of the Borrower to pay the principal or interest on the Loans.

Section 6.12    Limitation on Issuance of Equity Interests. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, issue (i) any Preferred Equity (other than (x) in the case of the Borrower, Preferred Equity that constitutes Qualified Equity Interests and (y) in the case of any such Restricted Subsidiary, Preferred Equity issued to the Borrower or a Subsidiary Guarantor) or (ii) any redeemable common stock or other redeemable common Equity Interests other than (x) in the case of the Borrower, common Qualified Equity Interests and (y) in the case of any such Restricted Subsidiary, common stock or other redeemable common Equity Interests that is or are redeemable at the sole option of such Restricted Subsidiary.

Section 6.13    Business; Etc. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, engage directly or indirectly in any business other than the businesses engaged in by the Borrower and the Restricted Subsidiaries as of the Closing Date and reasonable extensions and developments thereof and businesses reasonably similar, ancillary or complimentary thereto.

Section 6.14    Limitation on Creation of Subsidiaries. (a) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, establish, create or acquire after the Closing Date any Restricted Subsidiary, provided that the Borrower and its Wholly-Owned Restricted Subsidiaries (other than Non-Recourse Entities) shall be permitted to establish, create and, to the extent permitted by this Agreement, acquire Wholly-Owned Restricted Subsidiaries, so long as, in each case, (i) the capital stock or other Equity Interests of such new Restricted Subsidiary are promptly pledged pursuant to, and to the extent required by, the Pledge Agreement and the certificates, if any, representing such stock or other Equity Interests, together with stock or other appropriate powers duly executed in blank, are promptly delivered to the Collateral Agent, (ii) each such new Wholly-Owned Domestic Restricted Subsidiary (other than an Excluded Subsidiary) promptly executes a counterpart of the Subsidiaries Guaranty, the Security Agreement and the Pledge Agreement, (iii) each such new Wholly-Owned Domestic Restricted

 

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Subsidiary (other than any Non-Recourse Entity or Securitization Entities) promptly executes a counterpart of the Intercompany Subordination Agreement and (iv) each such new Wholly-Owned Domestic Restricted Subsidiary (other than an Excluded Subsidiary), to the extent requested by the Administrative Agent or the Required Lenders, promptly takes all actions required pursuant to Section 5.12. In addition, each new Wholly-Owned Restricted Subsidiary that is required to execute any Credit Document shall promptly execute and deliver, or cause to be promptly executed and delivered, all other relevant documentation (including opinions of counsel) of the type described in Section 4.01 as such new Restricted Subsidiary would have had to deliver if such new Restricted Subsidiary were a Credit Party on the Closing Date, in each case to the extent reasonably requested by the Administrative Agent; provided further that Non-Wholly Owned Subsidiaries may be established, created or acquired in accordance with the requirements of Section 6.14(b).

(b)    In addition to Restricted Subsidiaries created pursuant to preceding clause (a), the Borrower and the Restricted Subsidiaries may establish, acquire or create, and make Investments in, Non-Wholly Owned Subsidiaries after the Closing Date as a result of Permitted Acquisitions (subject to the limitations contained in the definitions thereof) and Investments expressly permitted to be made pursuant to Section 6.05, provided that all of the capital stock or other Equity Interests of each such Non-Wholly Owned Subsidiary shall be pledged by any Credit Party which owns same as, and to the extent, required by the Pledge Agreement.

Section 6.15    Prepayments of Other Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, directly or indirectly, (a) voluntarily or optionally prepay, repurchase, redeem or otherwise optionally or voluntarily satisfy or defease, or make any payment in violation of any subordination terms of, whether in cash, property, securities or a combination thereof, or otherwise acquire for consideration (including as a result of any asset sale, change of control or similar event or any purchase or assignment pursuant to any provision similar to Section 9.04(l) hereunder), or set apart any sum for the aforesaid purposes, any Indebtedness constituting Second Lien Senior Subordinated PIK Toggle Notes, Permitted External Refinancing Debt or any Permitted Refinancing thereof, except (v) pursuant to a Permitted Refinancing thereof and (w) the conversion or exchange of any such Indebtedness to or for Qualified Equity Interests of the Borrower or (b) with respect to the Second Lien Senior Subordinated PIK Toggle Notes, make (i) any payment of cash interest with respect to more than $200,000,000 of the original principal amount thereof or (ii) any payment of cash interest with respect to amounts accreted to the principal amount thereof by virtue of payments in kind.

ARTICLE 7

EVENTS OF DEFAULT

Section 7.01    Events of Default. Upon the occurrence of any of the following specified events (each, an “Event of Default”):

(a)    Payments. (i) Default shall be made in the payment of any principal of any Loan or the reimbursement with respect to any L/C Disbursement when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or by acceleration thereof or otherwise or (ii) default shall be made in the payment of any interest on any Loan or any Fee or L/C Disbursement or any other amount (other than an amount referred to in clause (i)) due under any Credit Document, when and as the same shall become due and payable, and in the case of this clause (ii) such default shall continue unremedied for a period of three Business Days; or

(b)    Representations, etc. Any representation, warranty or statement made or deemed made by any Credit Party herein or in any other Credit Document or in any report, certificate, financial statement or other instrument delivered to the Administrative Agent or any Lender pursuant hereto or thereto shall prove to be untrue in any material respect on the date as of which made or deemed made or delivered; or

 

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(c)    Covenants. The Borrower or any Restricted Subsidiary shall (i) default in the due performance or observance by it of any term, covenant or agreement contained in Section 5.01(g)(i), 5.04 (with respect to the existence of the Borrower or any material Subsidiary Guarantor), Section 5.05, Section 5.08, 5.11, 5.18 or Article 6, or (ii) default in the due performance or observance by it of any other term, covenant or agreement contained in this Agreement (other than those set forth in Section 7.01(a) and 7.01(b)) and such default shall continue unremedied for a period of 30 days after the earlier of (x) written notice thereof to the Borrower by the Administrative Agent or the Required Lenders and (y) knowledge thereof by the Borrower or any Authorized Officer of the Borrower; or

(d)    Default Under Other Agreements. (i) The Borrower or any Restricted Subsidiary (other than a Securitization Entity that is an Immaterial Subsidiary) shall (x) default in any payment of any Indebtedness (other than the Obligations) beyond the period of grace, if any, provided in an instrument or agreement under which such Indebtedness was created or (y) default in the observance or performance of any agreement or condition relating to any Indebtedness (other than the Obligations or obligations under any Interest Rate Protection Agreement or Other Hedging Agreement (it being understood that clause (i)(x) shall only apply to any failure to make any payment in respect of any Interest Rate Protection Agreement or Other Hedging Agreement as a result of such default)) or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, any such Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its stated maturity, (ii) any Indebtedness (other than the Obligations or obligations under any Interest Rate Protection Agreement or Other Hedging Agreement (it being understood that clause (i)(x) shall only apply to any failure to make any payment in respect of any Interest Rate Protection Agreement or Other Hedging Agreement as a result of such event)) of the Borrower or any Restricted Subsidiary shall be declared to be (or shall become) due and payable, or required to be prepaid other than by a regularly scheduled required prepayment, prior to the stated maturity thereof, provided that it shall not be a Default or an Event of Default under this Section 7.01(d) unless the aggregate principal amount of all Indebtedness as described in preceding clauses (i) and (ii) is at least $30,000,000; or (iii) any Designated Material Contract shall be terminated by the counterparty thereunder and such Designated Material Contract is not replaced by a comparable commercial contract, to the extent that failure to replace such Designated Material Contract would reasonably be expected to have a Material Adverse Effect; or

(e)    Bankruptcy, etc. (i) An involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (x) relief in respect of the Borrower or any Restricted Subsidiary (other than a Securitization Entity that is an Immaterial Subsidiary), or of a substantial part of the property or assets of the Borrower or a Restricted Subsidiary (other than a Securitization Entity that is an Immaterial Subsidiary), under Title 11 of the United States Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law, (y) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Restricted Subsidiary (other than a Securitization Entity that is an Immaterial Subsidiary) or for a substantial part of the property or assets of the Borrower or a Restricted Subsidiary (other than a Securitization Entity that is an Immaterial Subsidiary) or (z) the winding-up or liquidation of the Borrower or any Restricted Subsidiary (other than a Securitization Entity that is an Immaterial Subsidiary); and such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered; or (ii) the Borrower or any Restricted Subsidiary (other than a Securitization Entity that is an Immaterial Subsidiary) shall (t) voluntarily commence any proceeding or file any petition seeking relief under Title 11 of the United

 

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States Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law, (u) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in (i) above, (v) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any such Restricted Subsidiary or for a substantial part of the property or assets of the Borrower or any such Restricted Subsidiary, (w) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (x) make a general assignment for the benefit of creditors, (y) become unable, admit in writing its inability or fail generally to pay its debts as they become due or (z) take any action for the purpose of effecting any of the foregoing; or

(f)    ERISA. An ERISA Event shall have occurred that, in the reasonable opinion of the Required Lenders, when taken together with all other such ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse Effect; or

(g)    Security Documents. Any of the Security Documents shall cease to be in full force and effect, or shall cease to give the Collateral Agent for the benefit of the Secured Creditors the Liens, rights, powers and privileges purported to be created thereby (including, without limitation, a perfected security interest in, and Lien on, all of the Collateral (other than, in the aggregate, immaterial portions of the Collateral), in favor of the Collateral Agent, superior to and prior to the rights of all third Persons (except as permitted by Section 6.01), and subject to no other Liens (except as permitted by Section 6.01), or any Credit Party shall default in the due performance or observance of any term, covenant or agreement on its part to be performed or observed pursuant to any such Security Document and such default shall continue beyond the period of grace, if any, specifically applicable thereto pursuant to the terms of such Security Document or the Borrower or any other Credit Party shall assert that any security interest purported to be created by any Security Document is not a valid, perfected, first priority (except as otherwise expressly provided in this Agreement or such Security Document) security interest in the securities, assets or properties covered thereby; or

(h)    Guaranties. Any Subsidiaries Guaranty or any provision thereof shall cease to be in full force or effect as to any Subsidiary Guarantor (except as a result of a release of any Subsidiary Guarantor in accordance with the terms thereof), or any Subsidiary Guarantor or any Person acting for or on behalf of such Subsidiary Guarantor shall deny or disaffirm such Subsidiary Guarantor’s obligations under the Subsidiaries Guaranty or any Subsidiary Guarantor shall default in the due performance or observance of any term, covenant or agreement on its part to be performed or observed pursuant to the Subsidiaries Guaranty; or

(i)    Judgments. One or more judgments or decrees shall be entered against the Borrower or any Restricted Subsidiary (other than any Securitization Entity that is an Immaterial Subsidiary) involving in the aggregate for the Borrower and the Restricted Subsidiaries a liability (not paid or to the extent not covered by a reputable and solvent insurance company) and such judgments and decrees either shall be final and non-appealable or shall not be vacated, discharged or stayed or bonded pending appeal for any period of 30 consecutive days, and the aggregate amount of all such judgments equals or exceeds $30,000,000; or

(j)    Intercreditor Agreement. Any Intercreditor Agreement shall, in whole or in part, cease to be effective or cease to be legally valid, binding and enforceable against the holders of any Indebtedness whose Liens are subject to such Intercreditor Agreement; or

(k)    Change of Control. A Change of Control shall occur;

 

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then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing, the Administrative Agent may, and upon the written request of the Required Lenders shall, by written notice to the Borrower, take any or all of the following actions (provided that, if an Event of Default specified in Section 7.01(e) shall occur with respect to the Borrower or any Restricted Subsidiary (other than any Restricted Subsidiary that is (x) an Immaterial Subsidiary, (y) a Securitization Entity or (z) related to the RMS Business), the result which would occur upon the giving of written notice by the Administrative Agent as specified in clauses (i) and (ii) below shall occur automatically without the giving of any such notice): (i) declare the Commitments terminated, whereupon all Commitments of each Lender shall forthwith terminate immediately; (ii) declare the principal of and any accrued interest and Fees in respect of all Loans and the Notes and all Obligations owing hereunder and thereunder to be, whereupon the same shall become, forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by each Credit Party, anything contained herein or in any other Credit Document to the contrary notwithstanding; (iii) terminate any Letter of Credit which may be terminated in accordance with its terms; (iv) [reserved]; (v) enforce, as Collateral Agent, all of the Liens and security interests created pursuant to the Security Documents; and (vi) enforce the Subsidiaries Guaranty.

ARTICLE 8

THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT

Each Lender and each Issuing Bank (if any) hereby irrevocably appoints the Administrative Agent and the Collateral Agent (for purposes of this Article 8, the Administrative Agent and the Collateral Agent are referred to collectively as the “Agents”) its agent and authorizes the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agents by the terms of the Credit Documents, together with such actions and powers as are reasonably incidental thereto. Without limiting the generality of the foregoing, the Agents are hereby expressly authorized to (i) execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Creditors with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and (ii) negotiate, enforce or settle any claim, action or proceeding affecting the Lenders in their capacity as such, at the direction of the Required Lenders, which negotiation, enforcement or settlement will be binding upon each Lender. Without limiting the generality of the foregoing, the Lenders hereby specifically authorize the Agents to enter into one or more MSR Acknowledgement Agreements in connection with the Agents’ security interest, for the benefit of the Secured Creditors, in those MSR relating to Residential Mortgage Loans owned or held by the respective owner of the Residential Mortgage Loans to which such MSR relate (in each case to the extent required to do so by such owner). If any provision hereof permits the Borrower or any Restricted Subsidiary to incur any secured Indebtedness so long as any Liens securing such Indebtedness are subject to an Intercreditor Agreement, then (x) each such Intercreditor Agreement shall be deemed to also be satisfactory to the Lenders and any Issuing Bank if the same is not objected to in writing by the Required Lenders within five Business Days after notice thereof, (y) each Lender and each Issuing Bank hereby authorizes any Agent from time to time to enter into and perform its obligations under any such Intercreditor Agreement and (z) following the request of the Borrower, the applicable Agents shall execute such Intercreditor Agreement. Each of the Lenders and the Issuing Banks acknowledges and agrees that an Agent may also act as the collateral agent or as collateral trustee for the lenders under certain other Indebtedness permitted hereunder and each Lender and the Issuing Bank hereby waives any conflict of interest, now contemplated or arising hereafter, in connection therewith and agrees not to assert against Credit Suisse or any of its Related Parties any claims, causes of action, damages or liabilities of whatever kind or nature relating thereto. The Administrative Agent may perform any of its respective duties hereunder by or through its officers, directors, agents, employees or affiliates.

 

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The institution serving as the Administrative Agent and/or the Collateral Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent hereunder.

Neither Agent shall have any duties or obligations except those expressly set forth in the Credit Documents. Without limiting the generality of the foregoing, (a) neither Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing, (b) neither Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that such Agent is instructed in writing to exercise by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.08); provided that no Agent shall be required to take any action that, in its opinion or the opinion of its counsel, may expose such Agent to liability or that is contrary to any Credit Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) except as expressly set forth in the Credit Documents, neither Agent shall have any duty to disclose, nor shall it be liable for the failure to disclose, any information relating to the Borrower or any of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent and/or Collateral Agent or any of its Affiliates in any capacity. Neither Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.08) or in the absence of its own gross negligence or willful misconduct. Neither Agent shall be deemed to have knowledge of any Default or Event of Default unless and until written notice thereof is given to such Agent by the Borrower or a Lender, and neither Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Credit Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 4 or elsewhere in any Credit Document, other than to confirm receipt of items expressly required to be delivered to such Agent.

Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.

Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent.

 

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Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders, any Issuing Banks and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in the United States, or an Affiliate of any such bank. If no successor Agent has been appointed pursuant to the immediately preceding sentence by the 30th day after the date such notice of resignation was given by such Agent, such Agent’s resignation shall become effective and the Required Lenders shall thereafter perform all the duties of such Agent hereunder and/or under any other Credit Document until such time, if any, as the Required Lenders appoint a successor Administrative Agent and/or Collateral Agent, as the case may be. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After an Agent’s resignation hereunder, the provisions of this Article and Section 9.05 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while acting as Agent.

Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any other Credit Document, any related agreement or any document furnished hereunder or thereunder.

Each Lender authorizes and directs the Collateral Agent to enter into each Intercreditor Agreement and the Security Documents for the benefit of the Lenders and the other Secured Creditors. Each Lender hereby agrees, and each holder of any Note by the acceptance thereof will be deemed to agree, that, except as otherwise set forth herein, any action taken by the Required Lenders in accordance with the provisions of this Agreement, the First Lien/Second Lien Intercreditor Agreement, any other Intercreditor Agreement or the Security Documents, and the exercise by the Required Lenders of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all of the Lenders. The Collateral Agent is hereby authorized on behalf of all of the Lenders, without the necessity of any notice to or further consent from any Lender, from time to time prior to an Event of Default, to take any action with respect to any Collateral or Security Documents which may be necessary to perfect and maintain perfected the security interest in and liens upon the Collateral granted pursuant to the Security Documents.

The Lenders hereby authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral (i) upon termination of the Commitments and payment and satisfaction of all of the Obligations (other than inchoate indemnification obligations) at any time arising under or in respect of this Agreement or the Credit Documents or the transactions contemplated hereby or thereby, (ii) constituting property being sold or otherwise disposed of (to Persons other than the Borrower and its Subsidiaries) upon the sale or other disposition thereof in compliance with Section 6.02, (iii) if approved, authorized or ratified in writing by the Required Lenders (or all of the Lenders hereunder, to the extent required by Section 9.08) or (iv) as otherwise may be expressly provided in the relevant Security Documents. Upon request by the Administrative Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Article 9.

 

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ARTICLE 9

MISCELLANEOUS

Section 9.01    Notices; Electronic Communications. Notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile transmission, as follows:

(a)    if to the Borrower, to Ditech Holding Corporation, Attention of: General Counsel, 3000 Bayport Drive, Suite 1100, Tampa, Florida 33607 Fax Number 813-281-5635;

(b)    if to the Administrative Agent, to Credit Suisse AG, Cayman Islands Branch Attention of: Agency Management, Eleven Madison Avenue, New York, NY 10010, Fax Number 212-322-2291, Email: agency.loanops@credit-suisse.com;

(c)    if to the Collateral Agent, to Credit Suisse AG, Cayman Islands Branch, Attention of: Loan Operations – Boutique Management, Eleven Madison Avenue, New York, NY 10010, Fax Number 212-325-8315, Email: list.ops-collateral@credit-suisse.com; and

(d)    if to a Lender, to it at its address (including email address or facsimile number) in the Assignment and Acceptance pursuant to which such Lender shall have received its Tranche B Term Loans.

All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt if delivered by hand or overnight courier service or sent by facsimile transmission (except that, if not given during the normal business hours of the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient) or on the date five Business Days after dispatch by certified or registered mail if mailed, in each case delivered, sent or mailed (properly addressed) to such party as provided in this Section 9.01 or in accordance with the latest unrevoked direction from such party given in accordance with this Section 9.01. As agreed to among the Borrower, the Administrative Agent and the applicable Lenders from time to time, notices and other communications may also be delivered by e-mail to the e-mail address of a representative of the applicable Person provided from time to time by such Person.

The Borrower hereby agrees, unless directed otherwise by the Administrative Agent or unless the electronic mail address referred to below has not been provided by the Administrative Agent to the Borrower, that it will, or will cause the Restricted Subsidiaries to, provide to the Administrative Agent all information, documents and other materials that it is obligated to furnish to the Administrative Agent pursuant to the Credit Documents or to the Lenders under Article 5, including all notices, requests, financial statements, financial and other reports, certificates and other information materials, but excluding any such communication that (i) is or relates to a notice pursuant to Section 2.10, (ii) relates to the payment of any principal or other amount due under this Agreement prior to the scheduled date therefor, (iii) provides notice of any Default or Event of Default under this Agreement or any other Credit Document or (iv) is required to be delivered to satisfy any condition precedent to the effectiveness of this Agreement and/or any Borrowing or other extension of credit hereunder (all such non-excluded communications being referred to herein collectively as “Communications”), by transmitting the Communications in an electronic/soft medium that is properly identified in a format acceptable to the Administrative Agent to an electronic mail address as directed by the Administrative Agent. In addition, the Borrower agrees, and agrees to cause the Restricted Subsidiaries, to continue to provide the Communications to the Administrative Agent or the Lenders, as the case may be, in the manner specified in the Credit Documents but only to the extent requested by the Administrative Agent.

 

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The Borrower hereby acknowledges that (a) the Administrative Agent will make available to the Lenders and any Issuing Bank materials and/or information provided by or on behalf of the Borrower hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on Intralinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower or its securities) (each, a “Public Lender”). The Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower or its securities for purposes of United States federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.16); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor;” and (z) the Administrative Agent shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be marked “PUBLIC”, unless the Borrower notifies the Administrative Agent promptly that any such document contains material non-public information: (1) the Credit Documents and (2) notification of changes in the terms of the Credit Facilities.

Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States federal and state securities laws, to make reference to Communications that are not made available through the “Public Side Information” portion of the Platform and that may contain material non-public information with respect to the Borrower or its securities for purposes of United States federal or state securities laws.

THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”. NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY CREDIT PARTY, ANY LENDER OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF ANY CREDIT PARTY’S OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED PRIMARILY FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

 

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The Administrative Agent agrees that the receipt of the Communications by the Administrative Agent at its e-mail address set forth above shall constitute effective delivery of the Communications to the Administrative Agent for purposes of the Credit Documents. Each Lender agrees that receipt of notice to it (as provided in the next sentence) specifying that the Communications have been posted to the Platform shall constitute effective delivery of the Communications to such Lender for purposes of the Credit Documents. Each Lender agrees to notify the Administrative Agent in writing (including by electronic communication) from time to time of such Lender’s e-mail address to which the foregoing notice may be sent by electronic transmission and that the foregoing notice may be sent to such e-mail address.

Nothing herein shall prejudice the right of the Administrative Agent or any Lender to give any notice or other communication pursuant to any Credit Document in any other manner specified in such Credit Document.

Section 9.02    Survival of Agreement. All covenants, agreements, representations and warranties made by the Borrower herein and in the certificates or other instruments prepared or delivered in connection with or pursuant to this Agreement or any other Credit Document shall be considered to have been relied upon by the Lenders and any Issuing Bank and shall survive the making by the Lenders of the Loans and any issuance of Letters of Credit by any Issuing Bank, regardless of any investigation made by the Lenders or any Issuing Bank or on their behalf, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any Fee or any other amount payable under this Agreement or any other Credit Document is outstanding and unpaid or any Letter of Credit is outstanding and so long as the Commitments have not been terminated. The provisions of Sections 2.14, 2.16, 2.20 and 9.05 shall remain operative and in full force and effect regardless of the expiration of the term of this Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Loans, the expiration of the Commitments, the expiration of any Letter of Credit, the invalidity or unenforceability of any term or provision of this Agreement or any other Credit Document, or any investigation made by or on behalf of the Administrative Agent, the Collateral Agent, any Lender or any Issuing Bank.

Section 9.03    Binding Effect. This Agreement shall become effective when it shall have been executed by the Borrower, the Agents, the Lenders and any Issuing Bank and when the Administrative Agent shall have received counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto.

Section 9.04    Successors and Assigns. (a) Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the permitted successors and assigns of such party; and all covenants, promises and agreements by or on behalf of the Borrower, the Administrative Agent, the Collateral Agent, the Issuing Banks or the Lenders that are contained in this Agreement shall bind and inure to the benefit of their respective successors and assigns.

(b)    Each Lender may assign to one or more Eligible Assignees all or a portion of its interests, rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it), with the prior consent of the Borrower (which consent shall not be unreasonably withheld or delayed) and with notice to the Administrative Agent; provided, however, that (i) (A) [reserved], (B) the consent of the Borrower (1) shall not be required to any such assignment made (x) to another Lender, an Affiliate of a Lender or a Related Fund of a Lender, (y) [reserved] or (z) after the occurrence and during the continuance of any Event of Default and (2) shall be deemed to have been given if the Borrower has not responded with five Business Days of a request for such consent), (C) the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall be in an integral multiple of, and not less than, $1,000,000 in the case of Term Loans (or, if less, the entire remaining amount of such Lender’s Commitment or Loans of the relevant Class); provided that simultaneous assignments by two or more Related Funds shall be combined

 

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for purposes of determining whether the minimum assignment requirement is met, (ii) the parties to each assignment shall (A) execute and deliver to the Administrative Agent an Assignment and Acceptance via an electronic settlement system acceptable to the Administrative Agent or (B) if previously agreed with the Administrative Agent, manually execute and deliver to the Administrative Agent an Assignment and Acceptance, and, in each case, shall pay to the Administrative Agent a processing and recordation fee of $3,500 (which fee may be waived or reduced in the sole discretion of the Administrative Agent), and (iii) the assignee (other than the Borrower in connection with assignments contemplated by Section 9.04(l)), if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire (in which the assignee shall designate one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Credit Parties and their Related Parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including federal and state securities laws) and all applicable forms described in Section 2.20(e). Upon acceptance and recording pursuant to paragraph (e) of this Section 9.04, from and after the effective date specified in each Assignment and Acceptance, (A) the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement and (B) the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.14, 2.16, 2.20 and 9.05, as well as to any Fees accrued for its account and not yet paid); provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender having been a Defaulting Lender. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate to pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent and each Lender hereunder (and interest accrued thereon). Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.

(c)    By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the assignee thereunder shall be deemed to confirm to and agree with each other and the other parties hereto as follows: (i) such assigning Lender warrants that it is the legal and beneficial owner of the interest being assigned thereby free and clear of any adverse claim and that its Commitment and the outstanding balances of its Term Loans, in each case without giving effect to assignments thereof which have not become effective, are as set forth in such Assignment and Acceptance, (ii) except as set forth in (i) above, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any other Credit Document or any other instrument or document furnished pursuant hereto, or the financial condition of the Borrower or any Restricted Subsidiary or the performance or observance by the Borrower or any Restricted Subsidiary of any of its obligations under this Agreement, any other Credit Document or any other instrument or document furnished pursuant hereto; (iii) such assignee represents and warrants that it is an Eligible Assignee legally authorized to enter into such Assignment and Acceptance; (iv) such assignee confirms that it has received a copy of this Agreement, together with copies of the most recent financial statements referred to in Section 3.05 or delivered pursuant to Section 5.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to

 

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enter into such Assignment and Acceptance; (v) such assignee will independently and without reliance upon the Administrative Agent, the Collateral Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (vi) such assignee appoints and authorizes the Administrative Agent and the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent and the Collateral Agent, respectively, by the terms hereof, together with such powers as are reasonably incidental thereto; (vii) [reserved]; and (viii) such assignee agrees that it will perform in accordance with their terms all the obligations which by the terms of this Agreement are required to be performed by it as a Lender.

(d)    The Administrative Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices in The City of New York a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal amount (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive and the Borrower, the Administrative Agent, any Issuing Bank, the Collateral Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower, any Issuing Bank, the Collateral Agent and any Lender, at any reasonable time and from time to time upon reasonable prior notice. This Section 9.04(d) shall be construed so that the Loans are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code.

(e)    Upon its receipt of, and consent to, a duly completed Assignment and Acceptance executed by an assigning Lender and an assignee, an Administrative Questionnaire completed in respect of the assignee (if applicable to such assignee), the processing and recordation fee referred to in paragraph (b) above, if applicable, and the written consent of the Administrative Agent and, if required, the Borrower to such assignment and any applicable forms described in Section 2.20(e), the Administrative Agent shall promptly (i) accept such Assignment and Acceptance and (ii) record the information contained therein in the Register. Except with respect to assignments to the Borrower pursuant to Section 9.04(l), no assignment shall be effective unless it has been recorded in the Register as provided in this paragraph (e).

(f)    Each Lender may without the consent of the Borrower or the Administrative Agent sell participations to one or more banks or other Persons in all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans owing to it); provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other Persons shall be entitled to the benefit of the cost protection provisions contained in Sections 2.14, 2.16 and 2.20 (subject to the requirements and limitations therein, including the requirements under Section 2.20(e) (it being understood that the documentation required under Section 2.20(e) shall be delivered to the participating Lender)) to the same extent as if they were Lenders (but, with respect to any particular participant, to no greater extent than the Lender that sold the participation to such participant) and (iv) the Borrower, the Administrative Agent and the Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and such Lender shall retain the sole right to enforce the obligations of the Borrower relating to the Loans or L/C Disbursements and to approve any amendment, modification or waiver of any provision of this Agreement (other than amendments, modifications or waivers decreasing any fees payable to such participating bank or Person hereunder or the amount of principal of or the rate at which interest is payable on the Loans in which such participating bank or Person has an interest,

 

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extending any scheduled principal payment date or date fixed for the payment of interest on the Loans in which such participating bank or Person has an interest, increasing or extending the Commitments in which such participating bank or Person has an interest or releasing any Subsidiary Guarantor (other than in connection with the sale of such Subsidiary Guarantor in a transaction permitted by Section 6.02) or all or substantially all of the Collateral). To the extent permitted by law, each participating bank or other Person also shall be entitled to the benefits of Section 9.06 as though it were a Lender, provided such participating bank or other Person agrees to be subject to Section 2.18 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Loans or other obligations under this Agreement (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any participant or any information relating to a participant’s interest in any Commitments, Loans, Letters of Credit or its other obligations under any Credit Document) except to the extent that such disclosure is necessary to establish that such Commitment, Loan, Letter of Credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and the Borrower, the Lenders and the Administrative Agent shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement, notwithstanding any notice to the contrary.

(g)    Any Lender or participant may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 9.04, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided that, prior to any such disclosure of information designated by the Borrower as confidential, each such assignee or participant or proposed assignee or participant shall execute an agreement whereby such assignee or participant shall agree (subject to customary exceptions) to preserve the confidentiality of such confidential information on terms no less restrictive than those applicable to the Lenders pursuant to Section 9.16.

(h)    Any Lender may at any time assign all or any portion of its rights under this Agreement to secure extensions of credit to such Lender or in support of obligations owed by such Lender (including any such assignment or pledge in support of obligations owed to a Federal Reserve Bank or any other central banking authority); provided that no such assignment shall release a Lender from any of its obligations hereunder or substitute any such assignee for such Lender as a party hereto.

(i)    Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPV”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPV to make any Loan and (ii) if an SPV elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPV hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPV shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, it will not institute against, or join any other Person in instituting against, such SPV any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In

 

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addition, notwithstanding anything to the contrary contained in this Section 9.04, any SPV may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender or to any financial institutions (consented to by the Borrower and Administrative Agent) providing liquidity and/or credit support to or for the account of such SPV to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPV.

(j)    The Borrower shall not assign or delegate any of its rights or duties hereunder without the prior written consent of the Administrative Agent, each Issuing Bank and each Lender, and any attempted assignment without such consent shall be null and void.

(k)    [Reserved].

(l)    Any Lender may, at any time, assign all or a portion of its rights and obligations under this Agreement in respect of its Term Loans to the Borrower on a non-pro rata basis through (x) Dutch Auctions open to all Lenders or (y) open market purchases, in each case subject to the following limitations and other provisions:

(i)    no Event of Default has occurred and is continuing at the time such assigned is entered into or would result therefrom;

(ii)    the Borrower will not be entitled to receive, and will not receive, information provided solely to Lenders by the Administrative Agent or any Lender and will not be permitted to attend or participate in, and will not attend or participate in, meetings or conference calls attended solely by the Lenders and the Administrative Agent;

(iii)    [reserved];

(iv)    any Term Loans purchased by the Borrower shall be automatically and permanently cancelled immediately upon acquisition by the Borrower;

(v)    notwithstanding anything to the contrary contained herein (including in the definitions of “Consolidated Net Income” and “Consolidated EBITDA”) any noncash gains in respect of “cancellation of indebtedness” resulting from the cancellation of any Term Loans purchased by the Borrower shall be excluded from the determination of Consolidated Net Income and Consolidated EBITDA;

(vi)    the cancellation of Term Loans in connection with a Dutch Auction or open market purchases shall not constitute a voluntary or mandatory prepayment for purposes of Section 2.12 or Section 2.13, but the face amount of Term Loans cancelled as provided for in clause (iv) above shall be applied on a pro rata basis to the remaining scheduled installments of principal due in respect of the Term Loans;

(vii)    the Borrower shall represent and warrant as of the date of any such purchase and assignment that neither the Borrower nor any of its officers has any material non-public information with respect to the Borrower or any of its Subsidiaries or securities that has not been disclosed to the assigning Lender (other than because such assigning Lender does not wish to receive material non-public information with respect to the Borrower and its Subsidiaries or securities) prior to such date to the extent such information could reasonably be expected to have a material effect upon, or otherwise be material, to a Term Lender’s decision to assign Term Loans to the Borrower;

 

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(viii)    after giving effect to any purchase or assignment of Term Loans pursuant to this Section 9.04(l), the aggregate amount of all Unrestricted cash and Cash Equivalents of the Borrower and the Restricted Subsidiaries as of such date shall not be less than $15,000,000; and

(ix)    at the time of the consummation of each purchase and assignment of Term Loans pursuant to this Section 9.04(l), the Borrower shall have delivered to the Administrative Agent a certificate of an Authorized Officer as to compliance with the preceding clauses (vii) and (viii).

Section 9.05    Expenses; Indemnity. (a) The Borrower agrees to pay (i) all reasonable out-of-pocket expenses incurred by the Administrative Agent, the Collateral Agent, each Issuing Bank and each Related Party of any of the foregoing Persons in connection with the preparation, execution, delivery and administration of this Agreement and the other Credit Documents or in connection with any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions hereby or thereby contemplated shall be consummated) (but limited, with respect to legal expenses, to the reasonable and documented fees, disbursements and other charges of one single firm of primary counsel, one single firm of special counsel and one firm of additional local counsel for each applicable jurisdiction) and (ii) all out-of-pocket expenses incurred by the Administrative Agent, the Collateral Agent, each Issuing Bank, each Lender and each Related Party of any of the foregoing Persons in connection with the enforcement or protection of its rights in connection with this Agreement and the other Credit Documents or in connection with the Loans made or Letters of Credit issued hereunder or in connection with any refinancing or restructuring of the credit arrangements provided under this Agreement in the nature of a “work-out” or pursuant to any insolvency or bankruptcy proceedings (but limited, with respect to legal expenses, to the reasonable and documented fees, disbursements and other charges of one single firm of primary counsel, one firm of special counsel and one firm of additional local counsel for each applicable jurisdiction to the Administrative Agent, the Collateral Agent, each Issuing Bank, taken as a whole, and one additional single firm of primary counsel and one firm of additional local counsel for each applicable jurisdiction to the Lenders, taken as a whole).

(b)    The Borrower agrees to indemnify the Administrative Agent, the Collateral Agent, each Lender, any Issuing Bank, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, penalties, claims, damages, liabilities, obligations, fines and related expenses, including reasonable counsel fees, charges and disbursements (but limited, with respect to legal expenses, to the reasonable and documented fees, disbursements and other charges of one single firm of primary counsel, one firm of special counsel and one additional firm of local counsel for each applicable jurisdiction for all similarly situated Indemnitees (it being agreed that, in the case of any actual or perceived conflict of interest between or among any Indemnitees, such Indemnitees shall be deemed not to be similarly situated and each such group of Indemnitees shall be entitled to additional counsel as set forth herein), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of or by reason of (i) the execution or delivery of this Agreement or any other Credit Document or any agreement or instrument contemplated thereby, the performance by the parties thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated thereby (including the syndication of the Credit Facilities), (ii) the use of the proceeds of the Loans or issuance of Letter of Credit, (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Credit Party or any of their respective Affiliates) or (iv) the actual or alleged presence of or exposure to Hazardous Materials in the indoor or outdoor air, surface water or groundwater or on the surface or subsurface of any Real Property at any time owned, leased or

 

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operated by the Borrower or any of its Subsidiaries, the generation, storage, transportation, handling, Release or disposal of Hazardous Materials by the Borrower or any of its Subsidiaries at any location, whether or not owned, leased or operated by the Borrower or any of its Subsidiaries, the non-compliance by, or liability of or relating to, the Borrower, any of its Subsidiaries or any Real Property at any time owned, leased or operated by the Borrower or any of its Subsidiaries with, relating to, or under any Environmental Law (including applicable permits thereunder), or any Environmental Claim threatened or asserted against or relating to the Borrower, any of its Subsidiaries or any Real Property at any time owned, leased or operated by the Borrower or any of its Subsidiaries; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted primarily from the gross negligence, bad faith or willful misconduct of such Indemnitee.

(c)    To the extent that the Borrower fails to pay any amount required to be paid by it to the Administrative Agent, the Collateral Agent or any Issuing Bank under paragraph (a) or (b) of this Section (including, without limitation, as a result of entering into of one or more MSR Acknowledgement Agreements), each Lender severally agrees to pay to the Administrative Agent, the Collateral Agent or such Issuing Bank, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent, the Collateral Agent or such Issuing Bank in its capacity as such. For purposes hereof, a Lender’s “pro rata share” shall be determined based upon its share of the outstanding Term Loans at the time.

(d)    To the extent permitted by applicable law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential, incidental or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Credit Document or any agreement or instrument contemplated hereby or thereby, the Transactions, any Loan or any Letter of Credit or the use of the proceeds thereof.

(e)    All amounts due under this Section 9.05 shall be payable on written demand therefor.

Section 9.06    Right of Setoff. (a) If an Event of Default shall have occurred and be continuing, each Lender is hereby authorized at any time and from time to time, except to the extent prohibited by law, without presentment, demand, protest or other notice of any kind to any Credit Party or to any other Person, any such notice being hereby expressly waived, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by such Lender (including, without limitation, by branches and agencies of such Lender wherever located) to or for the credit or the account of the Borrower (for the avoidance of doubt, excluding any deposits held by the Borrower in a custodial account for the benefit of a third party or any property which constitutes Excluded Collateral) against any of and all the obligations of the Borrower now or hereafter existing under this Agreement and other Credit Documents held by such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement or such other Credit Document and although such obligations may be unmatured; provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.24 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the Issuing Banks and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender under this Section 9.06 are in addition to other rights and remedies (including other rights of setoff) which such Lender may have.

 

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(b)    NOTWITHSTANDING THE FOREGOING SUBSECTION (a), AT ANY TIME THAT THE LOANS OR ANY OTHER OBLIGATION SHALL BE SECURED BY REAL PROPERTY LOCATED IN CALIFORNIA, NO LENDER SHALL EXERCISE A RIGHT OF SETOFF, LIEN OR COUNTERCLAIM OR TAKE ANY COURT OR ADMINISTRATIVE ACTION OR INSTITUTE ANY PROCEEDING TO ENFORCE ANY PROVISION OF THIS AGREEMENT OR ANY NOTE UNLESS IT IS TAKEN WITH THE CONSENT OF THE REQUIRED LENDERS OR APPROVED IN WRITING BY THE ADMINISTRATIVE AGENT, IF SUCH SETOFF OR ACTION OR PROCEEDING WOULD OR MIGHT (PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTIONS 580a, 580b, 580d AND 726 OF THE CALIFORNIA CODE OF CIVIL PROCEDURE OR SECTION 2924 OF THE CALIFORNIA CIVIL CODE, IF APPLICABLE, OR OTHERWISE) AFFECT OR IMPAIR THE VALIDITY, PRIORITY OR ENFORCEABILITY OF THE LIENS GRANTED TO THE COLLATERAL AGENT PURSUANT TO THE SECURITY DOCUMENTS OR THE ENFORCEABILITY OF THE NOTES AND OTHER OBLIGATIONS HEREUNDER, AND ANY ATTEMPTED EXERCISE BY ANY LENDER OF ANY SUCH RIGHT WITHOUT OBTAINING SUCH CONSENT OF THE REQUIRED LENDERS OR THE ADMINISTRATIVE AGENT SHALL BE NULL AND VOID. THIS SUBSECTION (B) IS FOR THE SOLE BENEFIT OF THE LENDERS AND SHALL NOT AFFORD ANY RIGHT TO, OR CONSTITUTE A DEFENSE AVAILABLE TO, ANY CREDIT PARTY.

Section 9.07    Applicable Law. THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS (OTHER THAN LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN OTHER CREDIT DOCUMENTS) AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT OR ANY SUCH OTHER CREDIT DOCUMENTS (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.

Section 9.08    Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the Collateral Agent, any Lender or any Issuing Bank in exercising any power or right hereunder or under any other Credit Document and no course of dealing between the Borrower or any other Credit Party and the Administrative Agent, the Collateral Agent, any Issuing Bank or any Lender shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Collateral Agent, any Issuing Bank and the Lenders hereunder and under the other Credit Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Credit Document or consent to any departure by the Borrower or any other Credit Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances.

(b)    Neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Borrower and the Required Lenders; provided, however, that no such agreement shall (i) decrease the principal amount of, or extend the maturity of or any scheduled principal payment date or any date for the payment of any interest on any Loan, or waive or excuse any such payment or any part thereof, or decrease the rate of interest on any Loan (other than as set forth in the definition of “Published LIBO Rate”), without the prior written

 

111


consent of each Lender directly adversely affected thereby, (ii) increase or extend the Commitment or decrease or extend the date for payment of any Fees of any Lender without the prior written consent of such Lender, (iii) amend or modify the pro rata requirements of Section 2.17, the provisions of Section 9.04 or the provisions of this Section or release any Subsidiary Guarantor (other than in connection with the sale of such Subsidiary Guarantor in a transaction permitted by Section 6.02) or all or substantially all of the Collateral, without the prior written consent of each Lender, (iv) change the provisions of any Credit Document in a manner that by its terms adversely affects the rights in respect of payments due to Lenders holding Loans of one Class differently from the rights of Lenders holding Loans of any other Class without the prior written consent of Lenders holding a majority in interest of the outstanding Loans and unused Commitments of each adversely affected Class, (v) modify the protections afforded to an SPV pursuant to the provisions of Section 9.04(i) without the written consent of such SPV or (vi) reduce the percentage contained in the definition of the term “Required Lenders” without the prior written consent of each Lender; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Collateral Agent hereunder or under any other Credit Document without the prior written consent of the Administrative Agent or the Collateral Agent.

(c)    Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrower (i) to add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Credit Documents with the Term Loans and the accrued interest and fees in respect thereof, (ii) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders and (iii) to permit any such additional credit facilities which are term facilities to share ratably with the Term Loans in the application of prepayments and to permit any such credit facilities which are revolving credit facilities to share ratably with any revolving credit facility hereunder in the application of prepayments (it being understood that the foregoing shall not restrict any amendments effected pursuant to an Additional Credit Extension Amendment).

(d)    Notwithstanding anything to the contrary contained in this Section 9.08, the Borrower and the Administrative Agent may, without the input or consent of any Lender, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate in the opinion of the Administrative Agent to effect the provisions of Section 2.25, Section 2.26 and Section 2.27.

(e)    In addition, notwithstanding the foregoing, if the Administrative Agent and the Borrower shall have jointly identified an obvious error or any error or omission of a technical or immaterial nature in any provision of the Credit Documents, then the Administrative Agent and the Borrower shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party to any Credit Document if the same is not objected to in writing by the Required Lenders within five Business Days after notice thereof.

Section 9.09    Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other amounts which are treated as interest on such Loan under applicable law (collectively the “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance with applicable law, the rate of interest payable in respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Loan but were not payable as a result of the operation of this Section 9.09 shall be cumulated and the interest and Charges payable to such Lender in respect of other Loans or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender.

 

112


Section 9.10    Entire Agreement. This Agreement, the Fee Letter and the other Credit Documents constitute the entire contract between the parties relative to the subject matter hereof. Any other previous agreement among the parties with respect to the subject matter hereof is superseded by this Agreement and the other Credit Documents. Nothing in this Agreement or in the other Credit Documents, expressed or implied, is intended to confer upon any Person (other than the parties hereto and thereto, their respective successors and assigns permitted hereunder (including any Affiliate of any Issuing Bank that issues any Letter of Credit) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Collateral Agent, any Issuing Bank and the Lenders) any rights, remedies, obligations or liabilities under or by reason of this Agreement or the other Credit Documents.

Section 9.11    WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER CREDIT DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.

Section 9.12    Severability. In the event any one or more of the provisions contained in this Agreement or in any other Credit Document should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired thereby (it being understood that the invalidity of a particular provision in a particular jurisdiction shall not in and of itself affect the validity of such provision in any other jurisdiction). The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

Section 9.13    Counterparts. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original but all of which when taken together shall constitute a single contract, and shall become effective as provided in Section 9.03. Delivery of an executed signature page to this Agreement by facsimile or other form of electronic transmission shall be as effective as delivery of a manually signed counterpart of this Agreement.

Section 9.14    Headings. Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.

Section 9.15    Jurisdiction; Consent to Service of Process. (a) The Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of any New York state court or federal court of the United States of America sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or the other Credit Documents, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or

 

113


proceeding may be heard and determined in such New York state or, to the extent permitted by law, in such federal court; provided that suit for the recognition or enforcement of any judgment obtained in any such New York state or federal court may be brought in any other court of competent jurisdiction. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that the Administrative Agent, the Collateral Agent, any Issuing Bank or any Lender may otherwise have to bring any action or proceeding relating to this Agreement or the other Credit Documents against the Borrower or its properties in the courts of any jurisdiction.

(b)    The Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or the other Credit Documents in any New York state or federal court. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

(c)    Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 9.01. Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.

Section 9.16    Confidentiality. Each of the Administrative Agent, the Collateral Agent, the Issuing Banks and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its and its Affiliates’ officers, directors, employees and agents, including accountants, legal counsel and other advisors, and to numbering, administration and settlement service providers (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by any regulatory authority or quasi-regulatory authority (such as the National Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) in connection with the exercise of any remedies hereunder or under the other Credit Documents or any suit, action or proceeding relating to the enforcement of its rights hereunder or thereunder, (e) subject to an agreement containing provisions substantially the same as those of this Section 9.16 to (i) any actual or prospective assignee of or participant in any of its rights or obligations under this Agreement and the other Credit Documents (it being agreed that any such actual or prospective assignee or participant shall be deemed to have entered into such an agreement if such assignee or participant “clicks through” or takes other affirmative action to electronically acknowledge its agreement to any electronic notification containing provisions substantially the same as those in this Section 9.16 in accordance with the standard syndication processes of the Person disclosing such Information or customary market standards for dissemination of such type of information) or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower or any Restricted Subsidiary or any of their respective obligations, (f) with the consent of the Borrower or (g) to the extent such Information becomes publicly available other than as a result of a breach of this Section 9.16. For the purposes of this Section, “Information” shall mean all information received from the Borrower and related to the Borrower or its business, other than any such information that was available to the Administrative Agent, the Collateral Agent, any Issuing Bank or any Lender on a nonconfidential basis prior to its disclosure by the Borrower; provided that, in the case of Information received from the Borrower after the Closing Date, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section 9.16 shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord its own confidential information.

 

114


Section 9.17    Lender Action. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy against any Credit Party or any other obligor under any of the Credit Documents (including the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral or any other property of any such Credit Party, unless expressly provided for herein or in any other Credit Document, without the prior written consent of the Administrative Agent. The provisions of this Section 9.17 are for the sole benefit of the Lenders and shall not afford any right to, or constitute a defense available to, any Credit Party.

Section 9.18    USA PATRIOT Act Notice. Each Lender and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act, it is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower in accordance with the USA PATRIOT Act.

Section 9.19    Amendment and Restatement; No Novation. This Agreement constitutes for all purposes an amendment and restatement of the Pre-Petition Credit Agreement as authorized by the Bankruptcy Court pursuant to the Plan or Reorganization. The Pre-Petition Credit Agreement, as amended and restated hereby, continues in full force and effect as so amended and restated by this Agreement. Nothing contained in this Agreement or any other Credit Document shall constitute or be construed as a novation of any of the Obligations.

Section 9.20    Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Credit Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Lender that is an EEA Financial Institution arising under any Credit Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

(a)    the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and

(b)    the effects of any Bail-in Action on any such liability, including, if applicable:

(i)    a reduction in full or in part or cancellation of any such liability;

(ii)    a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Credit Document; or

(iii)    the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.

[Remainder of Page Intentionally Left Blank; Signature Pages to Follow]

 

115


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.

 

DITECH HOLDING CORPORATION, as Borrower
By:  

/s/ Cheryl A. Collins

Name:   Cheryl A. Collins
Title:   Senior Vice President and Treasurer

 

1


CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as Administrative Agent and Collateral Agent
By:  

/s/ Megan Kane

Name:   Megan Kane
Title:   Authorized Signatory
By:  

/s/ Laura Katherine Schembri

Name:   Laura Katherine Schembri
Title:   Authorized Signatory


Schedule 1.01(a)

Lenders and Tranche B Term Loans

 

Lender

   Tranche B Term
Loans as of the
Closing Date
 

ICM GLOBAL FLOATING RATE INCOME LIMITED

   $ 1,655,016.50  

ICM Senior Loan Fund, LP

   $ 1,655,016.50  

JAMESTOWN CLO II LTD.

   $ 4,503,578.33  

JAMESTOWN CLO III LTD

   $ 4,363,386.60  

JAMESTOWN CLO IX LTD.

   $ 2,857,572.75  

JAMESTOWN CLO V LTD.

   $ 4,021,576.98  

JAMESTOWN CLO VI LTD.

   $ 3,203,127.18  

JAMESTOWN CLO VII LTD.

   $ 3,657,037.19  

JAMESTOWN CLO VIII LTD

   $ 3,477,272.18  

AMMC CLO 16, LIMITED

   $ 1,599,653.36  

AMMC CLO XI LIMITED

   $ 1,542,445.36  

AMMC CLO XII LIMITED

   $ 1,542,445.37  

AMMC CLO XIII LIMITED

   $ 744,258.33  

AMMC CLO XIV, LIMITED

   $ 784,794.99  

BANK OF AMERICA NA

   $ 19,749,839.42  

BOWERY FUNDING ULC

   $ 10,085,737.01  

LANDMARK WALL SMA LP

   $ 4,144,524.38  

LANDMARK WALL SMA SPV L.P.

   $ 732,065.79  

CANYON BLUE CREDIT INVESTMENT FUND L.P.

   $ 647,880.27  

CANYON VALUE REALIZATION FUND LP

   $ 7,225,082.06  

CANYON VALUE REALIZATION MAC 18 LTD

   $ 224,018.71  

CANYON-ASP FUND LP

   $ 1,379,157.47  

CANYON-SL VALUE FUND, L.P.

   $ 404,681.14  

THE CANYON VALUE REALIZATION MASTER FUND LP

   $ 15,628,098.99  

CATHEDRAL LAKE CLO 2013, LTD

   $ 2,821,673.00  

CATHEDRAL LAKE II, LTD.

   $ 1,657,809.74  

CATHEDRAL LAKE III, LTD

   $ 2,486,714.63  

CATHEDRAL LAKE IV, LTD.

   $ 2,486,714.63  

Double Black Diamond Offshore Ltd

   $ 36,769,658.03  

CFIP CLO 2013-1 LTD

   $ 5,032,313.71  

CFIP CLO 2014-1, LTD

   $ 5,059,845.97  

CQS ABS MASTER FUND LIMITED

   $ 16,329,425.58  

CQS AIGUILLE DU CHARDONNET MF SCA SICAV-SIF

   $ 1,077,576.33  

Credit Suisse Loan Funding LL

   $ 13,675,599.84  

Atrium VIII

   $ 2,772,784.80  

ATRIUM IX

   $ 4,564,782.80  

ATRIUM X

   $ 2,641,888.93  


Schedule 1.01(a)

 

Lender

   Tranche B Term
Loans as of the
Closing Date
 

ATRIUM XI

   $ 4,182,403.43  

ATRIUM XII

   $ 3,811,267.25  

AUSTRALIANSUPER

   $ 7,126,726.64  

BENTHAM SYNDICATED LOAN FUND-1

   $ 16,511,337.28  

California State Teachers Retirement System-4

   $ 2,862,798.81  

Commonwealth Pennsylvania Treasury Department

   $ 606,686.99  

COPPERHILL LOAN FUND I,LLC

   $ 612,337.01  

CREDIT SUISSE FLOATING RATE HIGH INCOME FUND

   $ 16,340,622.16  

CREDIT SUISSE FLOATING RATE TRUST

   $ 1,855,006.40  

CREDIT SUISSE NOVA (LUX) GLOBAL SENIOR LOAN FUND

   $ 31,796,739.04  

CREDIT SUISSE STRATEGIC INCOME FUND

   $ 676,861.62  

DOLLAR SENIOR LOAN FUND, LTD.

   $ 4,455,452.53  

ERIE INDEMNITY COMPANY-2

   $ 346,990.99  

ERIE INSURANCE EXCHANGE

   $ 2,469,759.30  

KP FIXED INCOME FUND

   $ 550,763.13  

MADISON PARK FUNDING X LTD

   $ 4,515,874.38  

MADISON PARK FUNDING XI, LTD

   $ 3,345,248.93  

MADISON PARK FUNDING XII, LTD

   $ 3,186,563.95  

MADISON PARK FUNDING XIII, LTD

   $ 3,570,066.41  

MADISON PARK FUNDING XIV, LTD

   $ 4,003,013.31  

MADISON PARK FUNDING XIX, LTD.

   $ 2,857,572.75  

MADISON PARK FUNDING XV, LTD

   $ 3,017,596.82  

MADISON PARK FUNDING XVI, LTD.

   $ 2,673,157.17  

MADISON PARK FUNDING XVII, LTD

   $ 3,547,248.53  

MADISON PARK FUNDING XVIII, LTD.

   $ 3,146,990.93  

MADISON PARK FUNDING XX, LTD.

   $ 2,449,348.08  

MADISON PARK FUNDING XXI, LTD

   $ 3,360,420.66  

MADISON PARK FUNDING XXII, LTD.

   $ 3,360,420.65  

MADISON PARK FUNDING XXIV, LTD.

   $ 3,265,797.43  

MADISON PARK FUNDING XXVI, LTD

   $ 2,608,447.29  

QUALCOMM GLOBAL TRADING PTE LTD-1

   $ 0.05  

SENIOR SECURED FLOATING RATE LOAN FUND

   $ 581,309.95  

STATE OF NEW MEXICO INVESTMENT COUNCIL

   $ 669,049.85  

THE EATON CORPORATION MASTER RETIREMENT TRUST

   $ 816,449.36  

WESPATH FUNDS TRUST

   $ 1,564,746.03  

CUTWATER 2014-1, LTD.

   $ 3,119,286.50  

CUTWATER 2014-II, LTD.

   $ 2,342,407.57  

CUTWATER 2015-I, LTD.

   $ 2,383,979.57  

DEUTSCHE BANK AG, CAYMAN ISLANDS BRANCH

   $ 8,667,214.89  

VIBRANT CLO II LTD.

   $ 765,731.12  


Schedule 1.01(a)

 

Lender

   Tranche B Term
Loans as of the
Closing Date
 

AGF FLOATING RATE INCOME FUND

   $ 835,188.45  

BRIGHTHOUSE FUNDS TRUST I - BRIGHTHOUSE/EATON VANCE FLOATING RATE PORTFOLIO

   $ 3,305,712.10  

Columbia Funds Variable Series Trust II Variable Portfolio -Eaton Vance

   $ 392,377.97  

COLUMBIA FUNDS VARIABLE SERIES TRUST II VARIABLE PORTFOLIO EATON VANCE FLOATING RATE INCOME FUND

   $ 122,467.41  

DAVINCI REINSURANCE LTD-1

   $ 204,112.33  

Eaton Vance Institutional Senior Loan Fund

   $ 23,360,279.93  

Eaton Vance Senior Floating Rate Trust

   $ 3,764,597.80  

Eaton Vance Senior Income Trust

   $ 1,680,193.74  

Eaton Vance VT Floating Rate Income Fund

   $ 2,491,631.16  

EATON VANCE FLOATING RATE INCOME TRUST

   $ 3,876,142.67  

EATON VANCE FLOATING RATE PORTFOLIO

   $ 40,980,382.38  

EATON VANCE FLOATING-RATE INCOME PLUS FUND

   $ 896,627.49  

EATON VANCE INTERNATIONAL (CAYMAN ISLANDS) FLOATING-RATE INCOME PORTFOLIO

   $ 2,431,877.98  

EATON VANCE LIMITED DURATION INCOME FUN

   $ 4,881,571.72  

EATON VANCE LOAN HOLDING LIMITED

   $ 81,644.93  

EATON VANCE SHORT DURATION DIVERSIFIED INCOME FUND

   $ 570,644.83  

FLORIDA POWER & LIGHT COMPANY-1

   $ 408,224.68  

Pacific Select Fund-Floating Rate Loan Portfolio

   $ 2,203,788.17  

RENAISSANCE INVESTMENT HOLDINGS LTD

   $ 361,695.42  

Senior Debt Portfolio

   $ 33,836,025.94  

EMPYREAN INVESTMENTS LLC

   $ 9,405,576.67  

FPA Crescent Fund

   $ 14,956,937.98  

OCEAN TRAILS CLO IV

   $ 2,755,697.04  

OCEAN TRAILS CLO V

   $ 780,802.58  

GOLDMAN SACHS LENDING PARTNERS LLC

   $ 30,845,904.85  

GRAHAM MACRO STRATEGIC LTD.

   $ 12,433,573.11  

DAVINCI REINSURANCE LTD

   $ 176,956.74  

HBK Master Fund

   $ 54,283,333.90  

ACIS CLO 2014-3, LTD

   $ 1,699,255.00  

ACIS CLO 2014-4, LTD.

   $ 1,989,371.70  

ACIS CLO 2014-5, LTD

   $ 2,030,816.93  

ACIS CLO 2015-6 LTD.

   $ 1,823,590.71  

ACIS CLO 2017-7 LTD.

   $ 1,284,802.55  

HIGHLAND FLOATING RATE OPPORTUNITIES FUND

   $ 12,618,243.42  

HIGHLAND GLOBAL ALLOCATION FUND

   $ 2,486,714.63  

HIGHLAND LOAN MASTER FUND LP

   $ 1,892,949.16  

HIGHLAND OPPORTUNISTIC CREDIT FUND

   $ 1,657,809.73  

HIGHLAND PROMETHEUS MASTER FUND, L.P.

   $ 324,795.93  


Schedule 1.01(a)

 

Lender

   Tranche B Term
Loans as of the
Closing Date
 

NEXPOINT CREDIT STRATEGIES FUND

   $ 4,973,429.24  

PENSIONDANMARK PENSIONSFORSIKRINGSAKTIESELSKAB-2

   $ 6,637,155.92  

INVESCO WLR CREDIT PARTNERS FUND-A LP

   $ 667,955.88  

THE CITY OF NEW YORK GROUP TRUST-6

   $ 4,708,006.03  

JP MORGAN CHASE BANK NATIONAL ASSOCIATION

   $ 3,290,708.48  

KVK CLO 2013-1, LTD

   $ 3,934,016.31  

Litman Gregory Masters Alternative Strategies Fund

   $ 197,594.42  

Marathon CLO IV Ltd

   $ 3,876,674.79  

Marathon CLO X Ltd.

   $ 2,678,707.04  

Marathon Currituck Fund, LP - Series A

   $ 414,452.44  

MAM CORPORATE LOAN FUND

   $ 994,685.85  

MAM CORPORATE LOAN ICAV

   $ 1,632,898.72  

MARATHON CLO IX LTD

   $ 4,898,696.15  

MARATHON CLO V LTD

   $ 4,605,189.95  

QUAMVIS SCA SICAV-FIS: CMAB - SIF - CREDIT MULTI ASSET POOL B

   $ 3,265,797.43  

MERCER QIF FUND PLC IN RESPECT OF MERCER MULTI-ASSET CREDIT FUND

   $ 3,807,117.76  

VENTURE XII CLO LIMITED

   $ 2,115,671.11  

VENTURE XIV CLO LIMITED

   $ 506,897.96  

VENTURE XIX CLO, LIMITED

   $ 392,377.98  

VENTURE XV CLO LIMITED

   $ 632,083.71  

VENTURE XVI CLO, LIMITED

   $ 521,388.30  

VENTURE XVII CLO LIMITED

   $ 910,024.37  

VENTURE XVIII CLO, LIMITED

   $ 577,529.73  

VENTURE XX CLO, LIMITED

   $ 392,377.98  

VENTURE XXI CLO, LIMITED

   $ 3,139,023.85  

VENTURE XXII CLO, LIMITED

   $ 1,224,674.04  

AIG FLEXIBLE CREDIT FUND

   $ 2,552,254.18  

DUNHAM FLOATING RATE BOND FUND

   $ 1,260,860.71  

NEWFLEET CLO 2016-1, LTD.

   $ 2,326,880.67  

Virtus Tactical Allocation Fund

   $ 106,138.42  

VIRTUS GLOBAL MULTI-SECTOR INCOME FUND

   $ 473,540.63  

VIRTUS NEWFLEET DYNAMIC CREDIT ETF

   $ 877,683.06  

VIRTUS NEWFLEET MULTI-SECTOR INTERMEDIATE BOND FUND

   $ 980,298.14  

VIRTUS NEWFLEET MULTI-SECTOR UNCONSTRAINED BOND ETF

   $ 575,596.79  

VIRTUS NEWFLEET SENIOR FLOATING RATE FUND

   $ 3,864,251.37  

VIRTUS TOTAL RETURN FUND INC.

   $ 351,073.23  

VVIT: VIRTUS NEWFLEET MULTI-SECTOR INTERMEDIATE BOND SERIES

   $ 244,934.81  

Nomura Corporate Funding Americas, LLC

   $ 16,114,113.27  


Schedule 1.01(a)

 

Lender

   Tranche B Term
Loans as of the
Closing Date
 

INDIANA PUBLIC RETIREMENT SYSTEM-1

   $ 108,221.71  

MISSOURI EDUCATION PENSION TRUST

   $ 833,205.85  

Oaktree Senior Loan Fund LP

   $ 3,395,706.35  

OAKTREE CLO 2014-1 LTD

   $ 2,437,773.54  

OAKTREE CLO 2014-2 LTD.

   $ 1,928,932.21  

OAKTREE CLO 2015-1 LTD

   $ 1,086,286.58  

OAKTREE EIF I SERIES A, LTD

   $ 1,790,134.69  

OAKTREE EIF I SERIES A1, LTD

   $ 1,672,912.65  

OAKTREE EIF II SERIES A1, LTD

   $ 2,714,092.95  

OAKTREE ENHANCED INCOME FUNDING SERIES IV LTD

   $ 2,528,437.10  

Omega Capital Investors, LP

   $ 3,145,892.60  

Omega Capital Partners, LP

   $ 12,084,128.18  

Omega Equity Investors LP

   $ 6,921,315.69  

Omega Overseas Partners Ltd

   $ 3,767,097.91  

OMEGA CREDIT OPPORTUNITIES MASTER FUND, L.P.

   $ 29,037,647.28  

OZ SPECIAL MASTER FUND LTD

   $ 4,702,788.34  

PALMER SQUARE CAPITAL SPECIAL SITUATIONS FUND L.P.

   $ 32,657.97  

PALMER SQUARE CLO 2013-2 LTD

   $ 3,523,475.02  

PALMER SQUARE CLO 2015-1, LTD

   $ 3,332,834.81  

PALMER SQUARE CLO 2015-2 LTD

   $ 3,563,110.33  

PALMER SQUARE LOAN FUNDING 2016-3, LTD

   $ 612,337.01  

PALMER SQUARE OPPORTUNISTIC CREDIT FUND, LP

   $ 547,632.91  

PALMER SQUARE OPPORTUNISTIC INCOME FUND

   $ 430,404.55  

PALMER SQUARE STRATEGIC CREDIT FUND

   $ 85,727.17  

BENEFIT STREET PARTNERS CLO II LTD

   $ 1,403,249.03  

BENEFIT STREET PARTNERS CLO III, LTD

   $ 1,420,587.02  

BENEFIT STREET PARTNERS CLO IV, LTD.

   $ 1,419,611.24  

BENEFIT STREET PARTNERS CLO V, LTD

   $ 1,423,017.28  

BENEFIT STREET PARTNERS CLO VI, LTD

   $ 1,428,510.54  

BENEFIT STREET PARTNERS CLO XII, LTD.

   $ 1,211,136.55  

BSP SPECIAL SITUATIONS MASTER A L.P

   $ 14,102,791.31  

SEI INSTITUTIONAL INVESTMENTS TRUST-HIGH YIELD BOND FUND-4

   $ 1,249,284.04  

SEI INSTITUTIONAL MANAGED TRUST - HIGH YIELD BOND FUND

   $ 780,802.54  

U.S. HIGH YIELD BOND FUND-4

   $ 312,321.00  

BLUE CROSS OF IDAHO HEALTH SERVICE, INC.

   $ 306,168.51  

CITY NATIONAL ROCHDALE FIXED INCOME OPPORTUNITIES FUND

   $ 2,729,468.66  

MERCER QIF FUND PLC - MERCER INVESTMENT FUND 1-6

   $ 673,105.80  

MOUNTAIN VIEW CLO 2013-1 LTD

   $ 1,837,011.05  

MOUNTAIN VIEW CLO 2014-1 LTD.

   $ 2,041,123.39  


Schedule 1.01(a)

 

Lender

   Tranche B Term
Loans as of the
Closing Date
 

MOUNTAIN VIEW CLO IX LTD

   $ 2,041,123.39  

MOUNTAIN VIEW CLO X LTD.

   $ 1,837,011.05  

VIRTUS SEIX FLOATING RATE HIGH INCOME FUND

   $ 28,254,846.72  

VIRTUS SEIX HIGH INCOME FUND

   $ 1,925,261.62  

VIRTUS SEIX HIGH YIELD FUND

   $ 2,286,058.20  

ADAMS MILL CLO LTD

   $ 3,059,683.31  

ASSOCIATED ELECTRIC & GAS INSURANCE SERVICES LIMITED

   $ 348,246.61  

BROOKSIDE MILL CLO LTD

   $ 2,953,375.78  

Christian Super

   $ 55,008.27  

Credos Floating Rate Fund, LP

   $ 154,089.02  

JACKSON MILL CLO LTD.

   $ 1,986,034.46  

JEFFERSON MILL CLO LTD.

   $ 1,429,036.24  

KENTUCKY RETIREMENT SYSTEMS (SHENKMAN - PENSION ACCOUNT)

   $ 130,291.72  

KENTUCKY RETIREMENT SYSTEMS INSURANCE TRUST FUND-3

   $ 53,970.70  

PROVIDENCE ST. JOSEPH HEALTH LONG TERM PORTFOLIO

   $ 166,863.54  

SHENKMAN FLOATING RATE HIGH INCOME FUND

   $ 481,776.71  

SUDBURY MILL CLO, LTD

   $ 2,858,482.15  

VIRGINIA COLLEGE SAVINGS PLAN 1

   $ 397,168.59  

WASHINGTON MILL CLO LTD.

   $ 2,590,617.27  

SOLUS SENIOR HIGH INCOME FUND LP

   $ 5,632,871.30  

Commonwealth of Pennsylvania, Treasury Department

   $ 35,404.10  

COMMONWEALTH OF PENNSYLVANIA, TREASURY DEPARTMENT - TUITION ACCOUNT PROGRAM

   $ 1,869.32  

NEUBERGER BERMAN ALTERNATIVE FUNDS-NEUBERGER BERMAN ABSOLUTE RETURN MULTI MANAGER FUND-2

   $ 1,101,240.09  

NEUBERGER BERMAN INVESTMENT FUNDS PLC

   $ 369,344.34  

PRINCIPAL FUNDS,INC.- GLOBAL MULTI-STRATEGY FUND-2

   $ 5,133,056.60  

Sound Point Credit Opportunities Master Fund LP

   $ 15,009,034.96  

SOUND POINT BEACON MASTER FUND, LP

   $ 4,913,882.79  

SOUND POINT CLO II LTD

   $ 1,293,451.18  

SOUND POINT CLO III LTD.

   $ 1,206,736.46  

SOUND POINT CLO IV, LTD

   $ 1,765,908.84  

SOUND POINT CLO IX, LTD.

   $ 1,488,439.13  

SOUND POINT CLO V, LTD

   $ 1,362,642.83  

SOUND POINT CLO VI, LTD

   $ 1,499,007.54  

SOUND POINT CLO VII, LTD.

   $ 616,488.28  

SOUND POINT CLO VIII, LTD.

   $ 1,782,012.32  

SOUND POINT MONTAUK FUND, L.P.

   $ 531,513.60  

A/C BAYCITY SENIOR LOAN MASTER FUND LTD

   $ 2,306,626.54  

BayCity Corporate Arbitrage and Relative Value Fund, L.P.

   $ 2,401,851.36  


Schedule 1.01(a)

 

Lender

   Tranche B Term
Loans as of the
Closing Date
 

BAYCITY ALTERNATIVE INVESTMENT FUNDS SICAV-SIF- BAYCITY US SENIOR LOAN FUND

   $ 2,977,190.89  

BAYCITY EVENT DRIVEN OPPORTUNITIES MASTER FUND, L.P.

   $ 446,451.91  

BAYCITY LONG-SHORT CREDIT MASTER FUND, LTD

   $ 6,684,818.06  

BAYCITY SENIOR LOAN MASTER FUND LTD.

   $ 6,613,934.23  

CALIFORNIA STREET CLO IX LIMITED PARTNERSHIP

   $ 1,847,642.99  

CALIFORNIA STREET CLO XII, LTD

   $ 2,857,572.75  

GOLDMAN SACHS TRUST II GOLDMAN SACHS MULTI-MANAGER NON-CORE FIXED INCOME FUND

   $ 709,215.35  

MENARD INC-1

   $ 3,923,666.12  

MUNICIPAL EMPLOYEES ANNUITY AND BENEFIT FUND OF CHICAGO 1

   $ 1,512,619.55  

Nuveen Credit Opportunities 2022 Target Term Fund

   $ 3,251,324.42  

Nuveen Diversified Dividend and Incom Fund

   $ 690,626.55  

Nuveen Floating Rate Income Fund

   $ 7,330,000.63  

Nuveen Floating Rate Income Opportunity Fund

   $ 5,115,391.72  

Nuveen Senior Income Fund

   $ 3,266,710.91  

NUVEEN CREDIT STRATEGIES INCOME FD

   $ 16,407,560.57  

NUVEEN SHORT DURATION CREDIT OPPORTUNITIES FUND

   $ 2,646,990.35  

NUVEEN SYMPHONY FLOATING RATE INCOME FUND

   $ 14,228,523.45  

PENSIONDANMARK PENSIONSFORSIKRINGSAKTIESELSKAB-1

   $ 5,966,941.33  

PRINCIPAL DIVERSIFIED REAL ASSET CIT

   $ 2,121,080.46  

PRINCIPAL FUNDS INC,-DIVERSIFIED REAL ASSET FUND

   $ 7,295,462.70  

SCOF-2 LTD.

   $ 2,758,906.85  

SSF TRUST

   $ 38,705.92  

Symphony CLO VIII Limited Partnership

   $ 2,140,290.96  

SYMPHONY CLO XIV, LTD

   $ 1,203,489.20  

SYMPHONY CLO XV, LTD.

   $ 1,137,708.85  

SYMPHONY CLO XVI, LTD

   $ 3,265,797.43  

SYMPHONY CLO XVII, LTD

   $ 1,926,611.71  

SYMPHONY CLO XVIII, LTD

   $ 2,959,571.24  

SYMPHONY FLOATING RATE SENIOR LOAN FUND

   $ 1,235,248.71  

TCI-SYMPHONY CLO 2016-1 LTD

   $ 2,347,291.90  

TAO FUND, LLC

   $ 65,463,078.68  

CATAMARAN CLO 2012 1 LTD

   $ 4,262,223.63  

CATAMARAN CLO 2013-1 LTD.

   $ 1,942,490.06  

CATAMARAN CLO 2014-2, LTD.

   $ 1,224,674.04  

CATAMARAN CLO 2015-1 LTD.

   $ 1,224,674.04  

USAA MUTUAL FUNDS TRUST - USAA HIGH INCOME FUND

   $ 6,557,179.79  

WM POOL HIGH YIELD FIXED INTEREST TRUST

   $ 464,967.91  

WHITEHORSE VI LTD

   $ 1,978,869.12  

WHITEHORSE VII LTD.

   $ 2,795,318.48  

WHITEHORSE VIII, LTD

   $ 3,514,591.72  
  

 

 

 

Total

   $ 1,156,500,513.53  
  

 

 

 


Schedule 1.01(b)

Subsidiary Guarantors

 

1. Ditech Financial LLC, a Delaware limited liability company

 

2. DF Insurance Agency LLC, a Delaware limited liability company

 

3. Green Tree Credit LLC, a New York limited liability company

 

4. Green Tree Credit Solutions LLC, a Delaware limited liability company

 

5. Green Tree Insurance Agency of Nevada, Inc., a Nevada corporation

 

6. Green Tree Investment Holdings III LLC, a Delaware limited liability company

 

7. Green Tree Servicing Corp., a Delaware corporation

 

8. Mortgage Asset Systems, LLC, a Delaware limited liability company

 

9. REO Management Solutions, LLC, a Delaware limited liability company

 

10. Reverse Mortgage Solutions, Inc., a Delaware corporation

 

11. Walter Management Holding Company LLC, a Delaware limited liability company

 

12. Walter Reverse Acquisition LLC, a Delaware limited liability company


Schedule 1.01(c)

Unrestricted Subsidiaries

 

1. 2013 WCO Holdings Corp., a Maryland corporation

 

2. WIMC Real Estate Investment LLC, a Delaware limited liability company


Schedule 3.05

Financial Statements; Financial Condition; Undisclosed Liabilities

None.


Schedule 3.06

Litigation

 

1. See the matters scheduled in Schedule 3.09 (Certain Tax Matters).


Schedule 3.09

Certain Tax Matters

 

1. Disputes with the Internal Revenue Service with regard to the U.S. federal income taxes allegedly owed by Walter Energy, Inc. (“Walter Energy”; Vida Walter Industries, Inc.) for the fiscal years ended August 31, 1983 through May 31, 1994 and the years ended May 31, 2000 through December 31, 2009. Pursuant to a tax separation agreement dated April 17, 2009, Walter Energy is responsible for the payment of all federal incomes taxes (including any interest or penalties applicable thereto) owed by the Borrower and its consolidated subsidiaries during such time periods, but in the event that Walter Energy is unable to pay any unpaid taxes, interest or penalties assessed as a result of the foregoing disputes, the Borrower and certain of its consolidated subsidiaries would be liable.

 

2. Dispute with the Alabama Department of Revenue for the years 2004 through 2008 — the State of Alabama is claiming approximately $4.2 million in allegedly unpaid taxes (including interest and penalties).

 

3. Tax exposure on uncertain tax positions that results in a potential liability estimated at $5.6 million as of December 31, 2017.

 

4. The Company and its subsidiaries have the following open audits as of 12/31/17:

 

  a. Federal IRS: Corporate Income Tax. The Internal Revenue Service is auditing WIMC for the tax periods 12/31/2013-12/31/2016.


Schedule 3.11(c)

Mortgage Filing Offices

None.


Schedule 3.12

Real Property

None.


Schedule 3.14

Subsidiaries

 

Subsidiary

  

Direct Owner

   Ownership
Percentage
 
2013 WCO Holdings Corp.    Ditech Holding Corporation      100
Ditech Agency Advance Depositor LLC    Ditech Financial LLC      100
Ditech PLS Advance Depositor LLC    Ditech Financial LLC      100
Ditech Financial LLC    Walter Management Holding Company LLC      100
DF Insurance Agency LLC    Green Tree Credit Solutions LLC      100
Green Tree Advance Receivables II LLC    Ditech Financial LLC      100
Green Tree Advance Receivables III LLC    Ditech Financial LLC      100
Green Tree Credit LLC    Walter Management Holding Company LLC      100
Green Tree Credit Solutions LLC    Ditech Holding Corporation      100
Green Tree Insurance Agency of Nevada, Inc.    Green Tree Credit Solutions LLC      100
Green Tree Investment Holdings III LLC    Green Tree Credit Solutions LLC      100
Green Tree Servicing Corp.    Walter Management Holding Company LLC      100
Hanover SPC-A, Inc.    Ditech Holding Corporation      100
Mid-State Capital, LLC    Ditech Holding Corporation      100
Mortgage Asset Systems, LLC    Reverse Mortgage Solutions, Inc.      100
REO Management Solutions, LLC    Reverse Mortgage Solutions, Inc.      100
Reverse Mortgage Solutions, Inc.    Walter Reverse Acquisition LLC      100


Subsidiary

  

Direct Owner

   Ownership
Percentage
 
RMS REO BRC, LLC    Reverse Mortgage Solutions, Inc.1      100
RMS REO CS, LLC    Reverse Mortgage Solutions, Inc.2      100
Walter Management Holding Company LLC    Green Tree Credit Solutions LLC      100
Walter Reverse Acquisition LLC    Ditech Holding Corporation      100
WIMC Real Estate Investment LLC    Ditech Holding Corporation      100

Options, Warrants, Stock Appreciation, or similar rights:

None.

 

1  Membership Interest held by Credit Suisse First Boston Mortgage Capital LLC
2  Membership Interest held by Credit Suisse First Boston Mortgage Capital LLC


Schedule 3.17

Insurance

 

Line of Coverage

  

Carrier

Policy #

Policy Period

  

Limit

Deductible

Property   

CNA

05/15/17-05/15/18

  

Per Schedule

Wind/Hail/Flood EQ Limit & Deductible varies by location

Personal prop Blanket Limit

$140,070/726

General Liability   

CNA

05/15/17-05/15/18

  

$1,000,000/2,000,000

No Deductible

Auto Liability (Hired/Non-Owned & Repossessed Autos Only)   

CNA

05/15/17-05/15/18

  

$1,000,000 Auto Liability & Repossessed Auto Liability

Hired Autos Only:

Physical Damage Limit: ACV

Deductibles:

$100 Comp/$1,000 Collision

Workers Comp   

Federal Insurance Co (Chubb)

05/15/17-05/15/18

  

$1,000,000/$1,000,000/ $1,000,000

Workers’ Comp Statutory

Employers Liability

Umbrella Liability   

CNA

05/15/17-05/15/18

   25,000,000 Primary
Excess Umbrella Liability   

Liberty Mutual Group

05/15/17-05/15/18

  

$25,000,000

$25M x Primary

Mortgage Impairment and Errors & Omissions

(Mortgage Protection)

  

Lloyd’s

9/01/17-9/01/18

  

$25,000,000 Limit

$50,000 Deductible

Directors & Officers3

Primary $10M

   XL Specialty    $10,000,000 Limit

Directors & Officers

1st Excess

   Berkshire Hathaway Specialty    $10M x $10M Limit

Directors & Officers

2nd Excess

   National Union (AIG)    $10M x $20M Limit

 

3  Directors & Officers Insurance Term will begin on date when the Company emerges from the Ch 11 case and continue for 12 months thereafter. Policy numbers will be available approximately 30-45 days following the effective date.


Directors & Officers

3rd Excess

   Argonaut    $10M x $30M Limit

Directors & Officers

4th Excess

   Allied World National Assurance Co (AWAC)    $10M x $40M Limit

Directors & Officers

5th Excess

   Continental Casualty Co (C.N.A.)    $10 x $50M Limit

Directors & Officers

6th Excess

   Berkley Ins Co.    $5M x $60M Limit

Directors & Officers

7th Excess

   Endurance Assurance Corp (Sompo)    $10M x $65M Limit

Directors & Officers

8th Excess

  

US Specialty Ins (HCC)

Lead Side A

   $10M x 75M Limit

Directors & Officers

9th Excess

  

Berkshire Hathaway Specialty

Excess Side A

   $10M x $85M Limit

Directors & Officers

10th Excess

  

Markel American Ins Co

Excess Side A

   $10M xs $95M Limit

Directors & Officers

11th Excess

  

Starr

Excess Side A

   $10M xs $105M Limit

Directors & Officers

12th Excess

  

Axis Ins Co

Excess Side A

   $5M xs $115M Limit

Directors & Officers

13th Excess

  

XL Specialty

Excess Side A

   $10M xs $120M Limit
Employment Practices Liability   

Illinois National Insurance Company (AIG)

09/01/17-09/01/18

  

$5,000,000

$250,000 Retention All Other

$500,000 Retention Class Action

Fiduciary   

Illinois National Insurance Company (AIG)

09/01/17-09/01/18

  

$5,000,000 Limit

$100,000 Retention

Bankers Professional

FIRP

BPL

  

Houston Casualty

09/01/17-09/01/18

  

$5,000,000 Limit

$500,000 Retention All Other

$2,000,000 Retention Class Action

Bankers Professional

FIRP

  

CV Starr Indemnity

9/1/17-9/1/18

   $2.5M xs $5M


Bankers Professional

FIRP

  

XL Specialty

9/1/17-9/1/18

   $2.5M xs $7.5M
Fidelity Primary (Crime)   

AIG-National Union

9/1/17-9/1/18

  

$10,000,000 Limit

$250,000 Deductible

Fidelity Layer 1   

XL Specialty

9/1/17-9/1/18

   $10M x $10M
Fidelity Layer 2   

Starr Indemnity

9/1/17-9/1/18

   $15M x $20M
Fidelity Layer 3   

Great American

9/1/17-9/1/18

   $25M x $35M
Fidelity Layer 4   

RLI

09/01/17-09/01/18

   $25M x $60M
Fidelity Layer 5   

Lloyd’s

09/01/17-09/01/18

   $25M x $85M
Fidelity Layer 6   

Berkley/Carolina Casualty

9/01/17-9/01/18

   $20M p/o $40M x $110M
Fidelity Layer 6   

National Union

09/01/17-09/01/18

   $10M p/o $40M x $110M
Fidelity Layer 6   

C N A

09/01/17-09/01/18

   $10M p/o $40M x $110M
Fidelity Layer 7   

Crum & Forster

9/01/2017-9/01/2018

   $10M p/o $25M x $150M
Fidelity Layer 7   

Nationwide/Freedom Specialty

09/01/17-09/01/18

   $15M p/o 25M x $150M
Fidelity Layer 8   

Beazley

09/01/17-09/01/18

   $25M x $175M
Fidelity Layer 9   

Lloyds

09/01/17-09/01/18

   $40M x $200M
Cyber Liability/Privacy Breach Response   

Beazley Insurance Co.

Lloyds Syndicate 2623-623

09/01/17-09/01/18

  

$10,000,000 Liability Limit

$250,000 Retention

2,000,000 individuals/no dollar limit for breach notification/$10,000 retention.

$2,500,000 legal/public relations expense

Ex. Cyber Liability   

Greenwich Insurance Co.

9/1/17-9/1/18

   $10M xs $10M


Schedule 3.21

Indebtedness

None.


Schedule 4.02(a)

List of Counsel

Venable LLP, as Maryland counsel

Sidley Austin LLP, as special Investment Company Act counsel


Schedule 5.01

Reporting

 

1. Loan Servicing

 

  (a) Ending UPB by

 

  (i) Asset class (Manufactured Housing, Residential Mortgages and Other)

 

  (ii) Contract type (sub-servicing vs. MSR purchased)

 

  (b) New servicing portfolio UPB added by

 

  (i) Asset class (including Average loan size and contractual fee)

 

  (ii) Contract type (sub-servicing vs. MSR purchased)

 

  (c) Consolidated disappearance rate on portfolio by Asset class (broken out by Default rate and Voluntary prepayment rate)

 

  (d) Ending number of accounts by Asset class

 

  (e) Servicing Fees by Asset class (contractual)

 

2. Deficiency Collections

 

  (a) Notional balance added for the period

 

  (b) Gross collections

 

  (c) Percentage of Gross collections payable to 3rd parties for the period

 

3. Originations of Forward Mortgages

 

  (a) Number of loan originations

 

  (b) Average loan size

 

  (c) Fees earned (% of originations)

 

4. Reverse Mortgages

 

  (a) Ending UPB serviced


Schedule 5.22

Post-Closing Obligations

1.     Within thirty (30) days of the Closing Date, the Borrower shall (i) make all necessary filings with the United States Patent and Trademark Office to accurately reflect the Borrower’s legal name and (ii) provide the Administrative Agent with evidence of such filings.

2.    Within thirty (30) days of the Closing Date, the Loan Parties shall have delivered to the Administrative Agent insurance endorsements satisfying the requirements of Section 5.03 of the Credit Agreement, in form and substance reasonably satisfactory to the Administrative Agent.


Schedule 6.01

Existing Liens

 

Jurisdiction

  

Debtor

  

Secured Party

  Filing Info  

Collateral

Maryland SOS    Ditech Holding Corporation    The Bank of New York Mellon   181409674
12/09/2010
  Accounts, general intangibles, chattel paper and instruments related to mortgages
Maryland SOS    Ditech Holding Corporation    The Bank of New York Mellon   181550740
02/05/2016
  Accounts, general intangibles, chattel paper and instruments related to mortgages
Delaware SOS    Ditech Financial LLC    Credit Suisse First Boston Mortgage Capital LLC   20130972019
03/13/2013
  Purchased mortgage loans and other repurchase assets
Delaware SOS    Ditech Financial LLC    Credit Suisse First Boston Mortgage Capital LLC   20130972225
03/13/2013
  Purchased mortgage loans and other repurchase assets
Delaware SOS    Ditech Financial LLC    Credit Suisse First Boston Mortgage Capital LLC   20130972282
03/13/2013
  Purchased mortgage loans and other repurchase assets
Delaware SOS    Ditech Financial LLC    Credit Suisse First Boston Mortgage Capital LLC   20131179192
03/27/2013
  Purchased mortgage loans and other repurchase assets
Delaware SOS    Ditech Financial LLC    Wells Fargo Bank, N.A.   20140252304
01/21/2014
  Receivables from designated servicing agreements
Delaware SOS    Ditech Financial LLC    Jefferies Funding LLC   20151607141
04/15/2015
  Purchased mortgage loans and other repurchase assets
Delaware SOS    Ditech Financial LLC    EverBank   20152422755
06/05/2015
  Servicing rights, receivables, deposit accounts related to the EverBank Servicing Agreement
Delaware SOS    Ditech Financial LLC    Bank of America, N.A.   20153823134
08/31/2015
  Purchased mortgage loans and other purchased items


Jurisdiction

  

Debtor

  

Secured Party

  Filing Info  

Collateral

Delaware SOS    Ditech Financial LLC    Credit Suisse First Boston Mortgage Capital LLC   20153823233
08/31/2015
  Purchased mortgage loans and other repurchase assets
Delaware SOS    Ditech Financial LLC    Jefferies Funding LLC   20153823258
08/31/2015
  Purchased loans, participation certificates and securities; servicing records; collection accounts; mortgage guarantees and insurance; other assets related to purchased assets
Delaware SOS    Ditech Financial LLC    Fannie Mae   20154428172
10/01/2015
  Excess yield for mortgage loans
Delaware SOS    Ditech Financial LLC    WCO Excess Spread Acquisitions LLC   20155177745
11/05/2015
  Rights under the Excess Servicing Spread
Delaware SOS    Ditech Financial LLC    WCO Excess Spread Acquisitions LLC   20155178461
11/05/2015
  Rights under the Excess Servicing Spread
Delaware SOS    Ditech Financial LLC    New Residential Mortgage LLC   20166146144
10/06/2016
  Rights under the Flow and Bulk Agreement for the Purchase and Sale of Mortgage Servicing Rights
Delaware SOS    Ditech Financial LLC    Credit Suisse First Boston Mortgage Capital LLC   20167289661
11/23/2016
  Purchased mortgage loans and other repurchase assets
Delaware SOS    Ditech Financial LLC    Credit Suisse First Boston Mortgage Capital LLC   20178044093
12/05/2017
  Purchased mortgage loans and other repurchase assets
Delaware SOS    Ditech Financial LLC    Credit Suisse First Boston Mortgage Capital LLC   20178044333
12/05/2017
  Rights under the Margin, Setoff and Netting Agreement
Delaware SOS    Ditech Financial LLC    Wells Fargo Bank, N.A.   20178051155
12/05/2017
  Rights and receivables under the Receivables Sale Agreement
Delaware SOS    Ditech Financial LLC    Wells Fargo Bank, N.A.   20178051221
12/05/2017
  Rights and receivables under the Receivables Sale Agreement
Delaware SOS    Reverse Mortgage Solutions, Inc.    De Lage Landen Financial Services, Inc.   20133784221
09/27/2013
  Equipment


Jurisdiction

  

Debtor

  

Secured Party

  Filing Info  

Collateral

Delaware SOS    Reverse Mortgage Solutions, Inc.    People’s United Bank   20133946283
10/08/2013
  Computer equipment
Delaware SOS    Reverse Mortgage Solutions, Inc.    Credit Suisse First Boston Mortgage Capital LLC   20154775218
10/19/2015
  Purchased mortgage loans and other repurchase assets
Delaware SOS    Reverse Mortgage Solutions, Inc.    Credit Suisse First Boston Mortgage Capital LLC   20161104304
02/24/2016
  Interest in transaction mortgage loans and contributed REO property
Delaware SOS    Reverse Mortgage Solutions, Inc.    Credit Suisse First Boston Mortgage Capital LLC   20171200556
02/22/2017
  Interest in transaction mortgage loans and contributed REO property
Delaware SOS    Reverse Mortgage Solutions, Inc.    Credit Suisse First Boston Mortgage Capital LLC   20178042311
12/05/2017
  Interest in transaction mortgage loans and contributed REO property
Delaware SOS    Reverse Mortgage Solutions, Inc.    Credit Suisse First Boston Mortgage Capital LLC   20178044333
12/05/2017
  Certain accounts and rights to assets related to the Margin, Setoff and Netting Agreement
Delaware SOS    Reverse Mortgage Solutions, Inc.    Texas Capital Bank, National Association   20140923060
03/10/2014
  Instruments related to HECM loans
Texas SOS    Reverse Mortgage Solutions, Inc.    Community Trust Bank   14-0015961764 
05/20/2014
  All mortgage loans, mortgage loan documents and all insurance policies and servicing rights related thereto
Texas SOS    Reverse Mortgage Solutions, Inc.    Community Trust Bank   14-0028726424 
09/09/2014
  All mortgage loans, mortgage loan documents and all insurance policies and servicing rights related thereto
Delaware SOS    Reverse Mortgage Solutions, Inc.    Community Trust Bank   20143592995
09/09/2014
  All mortgage loans, mortgage loan documents and all insurance policies and servicing rights related thereto
Delaware SOS    Reverse Mortgage Solutions, Inc.    Konica Minolta Premier Finance   20152022001
05/12/2015
  Equipment
Delaware SOS    Green Tree Servicing Corp.    Wells Fargo Foothill, LLC   20092464136
07/31/09
  Rights to receivables under the Purchase and Sale Agreement


Jurisdiction

  

Debtor

  

Secured Party

  Filing Info  

Collateral

Delaware SOS    Green Tree Servicing Corp.    Cisco Systems Capital Corporation   20111078891
03/23/2011
  Equipment
Delaware SOS    Green Tree Servicing Corp.    Bank of America, N.A.   20112551680
07/01/2011
  Certain deposit accounts
Delaware SOS    Green Tree Servicing Corp.    Credit Suisse First Boston Mortgage Capital LLC   20130972019
03/13/2013
  Purchased mortgage loans and other repurchase assets
Delaware SOS    Green Tree Servicing Corp.    Credit Suisse First Boston Mortgage Capital LLC   20130972225
03/13/2013
  Purchased mortgage loans and other repurchase assets
Delaware SOS    Green Tree Servicing Corp.    Credit Suisse First Boston Mortgage Capital LLC   20130972282
03/13/2013
  Purchased mortgage loans and other repurchase assets
Delaware SOS    Green Tree Servicing Corp.    Credit Suisse First Boston Mortgage Capital LLC   20131179192
03/27/2013
  Right, title and interest in purchased mortgage loans and other repurchase assets
Delaware SOS    Green Tree Servicing Corp.    Wells Fargo Bank, N.A.   20140252304
01/21/2014
  Receivables from designated servicing agreements
Delaware SOS    Green Tree Servicing Corp.    CIT Finance LLC   20142121622
05/30/2014
  Equipment
Delaware SOS    Green Tree Servicing Corp.    Walter Capital Opportunity GP, LLC   20142604379
07/01/2014
  Right, title and interest under the Current Excess Servicing Spread
Delaware SOS    Green Tree Servicing Corp.    Toshiba Financial Services   20143725298
09/17/2014
  Equipment
Delaware SOS    Green Tree Servicing Corp.    Jefferies Funding LLC   20151607141
04/15/2015
  Purchased loans and other purchased assets
Delaware SOS    Green Tree Servicing Corp.    EverBank   20152422755
06/05/2015
  Pledged servicing rights and pledged servicing receivables
Delaware SOS    Green Tree Servicing Corp.    EverBank   20153793287
08/28/2015
  Purchased mortgage loans related to the Master Repurchase Agreement


Jurisdiction

  

Debtor

  

Secured Party

  Filing Info  

Collateral

Minnesota SOS    Green Tree Servicing, LLC    Federal National Mortgage Association (AKA Fannie Mae)   200916681448

07/09/2009

  Rights to transferred loans
Minnesota SOS    Green Tree Servicing, LLC
Green Tree Loan Company
Victory Home Sales
   Isanti Estates LLC   201226938919

1/20/2012

  Manufactured home
Pennsylvania - Department of State Uniform Commercial Code Section    Green Tree Servicing, LLC    Therese Anne Steuber   2015010505295

12/29/2014

  Agricultural lien


Schedule 6.04

Existing Indebtedness

None.


Schedule 6.05

Existing Investments

 

1. Ditech Holding Corporation owns a 100% undivided beneficial ownership interest in Mid-State Trust X pursuant to a trust agreement dated as of October 31, 2001 as further amended and restated from time to time, between Mid-State Homes, Inc. and Wilmington Trust Company

 

2. Ditech Holding Corporation owns a 100% undivided beneficial ownership interest in Mid-State Capital Corporation 2006-1 Trust pursuant to a trust agreement dated as of July 14, 2004 as further amended and restated from time to time, between Mid-State Homes, Inc. and Wilmington Trust Company

 

3. Ditech Holding Corporation owns a 100% undivided beneficial ownership interest in Mid-State Trust XI pursuant to a trust agreement dated as of July 24, 2003 as further amended and restated from time to time, between Mid-State Homes, Inc. and Wilmington Trust Company

 

4. Ditech Holding Corporation owns a 100% undivided beneficial ownership interest in Mid-State Capital Corporation 2005-1 Trust pursuant to a trust agreement dated as of November 22, 2005 as further amended and restated from time to time, between Mid-State Homes, Inc. and Wilmington Trust Company

 

5. Ditech Holding Corporation holds a Class R Asset-Backed Note issued by WIMC Capital Trust 2011-1, governed by a trust agreement dated as of June 8, 2011

 

6. Investment by Ditech Holding Corporation in single, fixed-rate security with an 8.0% coupon and a contractual maturity of 2038

 

7. Investment by Green Tree Credit Solutions LLC in beneficial interests of Hanover Capital Trust 2001-A

 

8. Ditech Holding Corporation owns approximately 10% interest in Walter Capital Opportunity Corp.


Schedule 6.11

Certain Restrictive Agreements

None.


EXHIBIT A

FORM OF SECURITY AGREEMENT

[Attached]

 

A-1


EXHIBIT B

FORM OF PLEDGE AGREEMENT

[Attached]

 

B-1


EXHIBIT C

FORM OF FIRST LIEN/SECOND LIEN INTERCREDITOR AGREEMENT

[Attached]

 

C-1


EXHIBIT D

[RESERVED]

 

D-1


EXHIBIT E

FORM OF SUBSIDIARIES GUARANTY

[Attached]

 

E-1


EXHIBIT F

FORM OF INTERCOMPANY SUBORDINATION AGREEMENT

[Attached]

 

F-1


EXHIBIT G

FORM OF COMPLIANCE CERTIFICATE

This Compliance Certificate is delivered to you pursuant to Section 5.01(f) of the Second Amended and Restated Credit Agreement, dated as of February 9, 2018 (as amended, restated, amended and restated, supplemented and/or otherwise modified from time to time, the “Credit Agreement”), among Ditech Holding Corporation (formerly known as Walter Investment Management Corp.), a Maryland corporation (the “Borrower”), the lenders from time to time party thereto, and Credit Suisse AG, Cayman Islands Branch, as Administrative Agent and Collateral Agent. Terms defined in the Credit Agreement and not otherwise defined herein are used herein as therein defined.

1.    I am a duly elected, qualified and acting Authorized Officer of the Borrower.

2.    I have reviewed and am familiar with the contents of this Compliance Certificate. I am providing this Compliance Certificate solely in my capacity as an Authorized Officer of the Borrower. The matters set forth herein are true to the best of my knowledge after due inquiry.

3.    I have reviewed the terms of the Credit Agreement and the other Credit Documents and have made or caused to be made under my supervision a review in reasonable detail of the transactions and condition of the Borrower and its Subsidiaries during the accounting period covered by the financial statements attached hereto as ANNEX 1 (the “Financial Statements”). Such review did not disclose the existence during or at the end of the accounting period covered by the Financial Statements, and I have no knowledge of the existence, as of the date of this Compliance Certificate, of the occurrence and continuation of any Default or Event of Default[, except for             ].

4.    Attached hereto as ANNEX 2 is the information required to establish compliance with Sections 6.07, 6.08 and 6.09 of the Credit Agreement for the Test Period ended on [        ]1 (the “Computation Date”) (including computations showing (in reasonable detail) such compliance).

5.    Attached hereto as ANNEX 3 is the information required to establish compliance with Sections 2.13(b), 2.13(c) and 2.13(e) of the Credit Agreement as of the Computation Date or the applicable period ending on such date (including computations showing (in reasonable detail) such compliance).

6.    Attached hereto as ANNEX 4 is a list of all Immaterial Subsidiaries and Unrestricted Subsidiaries.

7.     The Borrower hereby (a) reaffirms its obligations under the Credit Agreement and each other Credit Document to which it is a party.

 

1  Insert the last day of the respective fiscal quarter or year covered by the financial statements which are required to be accompanied by this Compliance Certificate.

 

G-1


[8.    Attached hereto as ANNEX 5 is the information in reasonable detail required to evidence the amount of (and the calculations required to establish the amount of) Excess Cash Flow for the fiscal year ended on December 31, [    ].]2

[9.     There have been no changes to Schedules 1 through 8 of the Security Agreement and Annexes A through G of the Pledge Agreement, in each case since [the Closing Date][the date of the most recent certificate delivered pursuant to Section 5.01(f) of the Credit Agreement] [other than as set forth in Annex [6][7] attached hereto, and the Borrower and the other Credit Parties have taken all actions required to be taken by them pursuant to such Security Documents in connections with the changes set forth in Annex [6][7]]3.]

*    *    *

 

 

 

2  To be included for any Compliance Certificate being delivered with the financial statements required by Section 5.01(c) of the Credit Agreement (commencing with the annual financial statements with respect to the fiscal year ending December 31, 2018).
3  Changes to be include only to the extent that such changes are required to be reported to the Collateral Agent pursuant to the terms of such Security Documents.

 

G-2


IN WITNESS WHEREOF, in my capacity as an Authorized Officer of the Borrower and not in my individual capacity, I have executed this Compliance Certificate this          day of         .

 

DITECH HOLDING CORPORATION
By:  

 

Name:  
Title:  

 

G-3


ANNEX 1

[Applicable Financial Statements To Be Attached]

 

G-4


ANNEX 2

[Information demonstrating compliance with Sections 6.07, 6.08 and 6.09 of the Credit Agreement To Be Attached]

 

A. Asset Coverage Ratio A for the applicable Test Period ending on the Computation Date

 

  (i)         :1.00; minimum Asset Coverage Ratio A required under Section 6.07(a) of the Credit Agreement for the applicable Test Period: 1.[ ]0:1.00.

 

B. Asset Coverage Ratio B for the applicable Test Period ending on the Computation Date

 

  (i)         :1.00; minimum Asset Coverage Ratio B required under Section 6.07(b) of the Credit Agreement for the applicable Test Period: 1.00:1.00.

 

C. Interest Expense Coverage Ratio for the applicable Test Period ending on the Computation Date

 

  (i)         :1.00; minimum Interest Expense Coverage Ratio required under Section 6.08 of the Credit Agreement for the applicable Test Period: [        ]:1.00.

 

D. First Lien Net Leverage Ratio for the applicable Test Period ending on the Computation Date4

 

  (i)         :1.00; maximum First Lien Net Leverage Ratio permitted under Section 6.09 of the Credit Agreement for the applicable Test Period:[        ]:1.00.

 

4  Attached hereto in reasonable detail are the relevant components (and the calculations thereof) of the First Lien Net Leverage Ratio.

 

G-5


ANNEX 3

The information described herein is as of the Computation Date and, except as otherwise indicated below, pertains to the period from [the Closing Date][January 1, 20    ] to the Computation Date (the “Relevant Period”).

Mandatory Prepayments

1.    [During the Test Period ended on the Computation Date, neither the Borrower nor any of its Restricted Subsidiaries has received any Net Cash Proceeds from any issuance or incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness for borrowed money (other than Indebtedness permitted to be incurred pursuant to Section 6.04, other than Permitted External Refinancing Indebtedness and Refinancing Term Loans) which would require a mandatory repayment pursuant to Section 2.13(b) of the Credit Agreement.]5

2.    [During such Test Period ended on the Computation Date, neither the Borrower nor any of its Restricted Subsidiaries has received (x) any Net Sale Proceeds from any (i) Non-Core Asset Sale, (ii) Disposition of any Bulk MSR and/or any Asset Sale or (iii) Servicing Advances related to the Disposition on or prior to the MSR Outside Date of Government Sponsored Entity-related Bulk MSR or (y) gross proceeds from any Disposition on or prior to the MSR Outside Date of Government Sponsored Entity-related Bulk MSR, in each case, which would require a mandatory repayment pursuant to Section 2.13(c) of the Credit Agreement.] 6

 

5  If the Borrower or any of its Restricted Subsidiaries has received such cash proceeds, the certificate should describe the same and state amounts and dates of the receipt thereof, as well as the amounts and dates of the required mandatory repayments pursuant to Section 2.13(b), together with sufficient information as to mandatory repayments to determine compliance with Section 2.13(b) and a statement that the Borrower is in compliance with the requirements of Section 2.13(b).
6  If the Borrower or any of its Restricted Subsidiaries has received such cash proceeds from any Non-Core Asset Sales or Disposition as described in this provision, the certificate should describe the same and state amounts and dates of the receipt thereof, as well as amounts and dates of the required mandatory repayments pursuant to Section 2.13(c), together with sufficient information as to mandatory repayments and/or reinvestments thereof to determine compliance with Section 2.13(c) of the Credit Agreement and a statement that the Borrower is in compliance with the requirements of said Section 2.13(c).

 

G-6


3.    [During such Test Period ended on the Computation Date, neither the Borrower nor any of its Restricted Subsidiaries has received any Net Cash Proceeds from any Recovery Event which would require a mandatory repayment pursuant to Section 2.13(e) of the Credit Agreement.] 7

 

7  If the Borrower or any of its Subsidiaries has received such cash proceeds from any Recovery Event, the certificate should describe the same and state amounts and dates of the receipt thereof, as well as amounts and dates of the required mandatory repayments pursuant to Section 2.13(e), together with sufficient information as to mandatory repayments and/or reinvestments thereof to determine compliance with Section 2.13(e) of the Credit Agreement and a statement that the Borrower is in compliance with the requirements of said Section 2.13(e).

 

G-7


ANNEX 4

[Immaterial Subsidiaries and Unrestricted Subsidiaries]

 

G-8


ANNEX 5

[Information evidencing the amount of Excess Cash Flow]

 

G-9


ANNEX [6][7]

[Information regarding changes to Schedules to the Security Agreement and/or Annexes to Pledge Agreement]

 

G-10


EXHIBIT H

FORM OF ASSIGNMENT AND ACCEPTANCE

This Assignment and Acceptance (the “Assignment and Acceptance”) is dated as of the Effective Date set forth below and is entered into by and between [the][each]8 Assignor identified in item 1 below ([the][each, an] “Assignor”) and [the][each]9 Assignee identified in item 2 below ([the][each, an] “Assignee”). [It is understood and agreed that the rights and obligations of [the Assignors][the Assignees]10 hereunder are several and not joint.]11 Capitalized terms used but not defined herein shall have the meanings given to them in the Second Amended and Restated Credit Agreement identified below (as amended, restated, amended and restated, supplemented and/or otherwise modified from time to time, the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by [the][each] Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Acceptance as if set forth herein in full.

For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and assumes from [the Assignor][the respective Assignors], subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’] rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of [the Assignor][the respective Assignors] under the respective facilities identified below (including without limitation any letters of credit, and guarantees included in such facilities), and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of [the Assignor (in its capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)] against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as [the][an] “Assigned Interest”). Each such sale and assignment is without recourse to [the][any] Assignor and, except as expressly provided in this Assignment and Acceptance, without representation or warranty by [the][any] Assignor.

 

1.    Assignor[s]:   

 

  
     

 

  
   [Assignor [is] [is not] a Defaulting Lender]   
2.    Assignee[s]:   

 

  
     

 

  
   [for each Assignee, indicate [Affiliate][Related Fund] of [identify Lender]   

 

8  For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose the second bracketed language.
9  For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language.
10  Select as appropriate.