FIRST AMENDMENT TO REVOLVING
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Exhibit 10.7.1
Execution Version
FIRST AMENDMENT TO REVOLVING
CREDIT AGREEMENT
This First Amendment to Revolving Credit Agreement (this “Amendment”), is made as of
January 24, 2023, by and among CIM GROUP MANAGEMENT, LLC, a Delaware limited liability
company (“Borrower”), TRUIST BANK (“Truist”), as the Additional Lender (as defined below), the
other Lenders party hereto, and CITY NATIONAL BANK, as administrative agent for the Lenders (in
such capacity, the “Agent”) and as the Swing Line Lender.
Factual Background
A.Pursuant to that certain Revolving Credit Agreement, dated as of December 30, 2022
(amended, restated, amended and restated, supplemented or otherwise modified from time to time
through the date hereof, the “Credit Agreement”), by and among Borrower, the financial institutions
from time to time party thereto as lenders (collectively, the “Lenders”) and the Agent, the Lenders
agreed to provide an unsecured revolving credit facility (the “Facility”) available to Borrower.
Capitalized terms used herein without definition have the meanings ascribed to them in the Credit
Agreement.
B.▇▇▇▇▇▇▇▇ has requested that (a) the Revolving Credit Aggregate Commitment be
increased by $75,000,000.00 (the “New Revolving Credit Commitment”), to a total of
$150,000,000.00, and (b) certain modifications be made to the Credit Agreement as forth herein.
C.Truist, as a new Lender under the Credit Agreement (in such capacity, the
“Additional Lender”), is willing to provide the New Revolving Credit Commitment, and the Agent
and the other Lenders party hereto (collectively constituting the Majority Lenders under the Credit
Agreement) are willing to make such other modifications to the Credit Agreement, on the terms and
subject to the conditions more particularly set forth herein.
Agreement
Therefore, ▇▇▇▇▇▇▇▇, the Agent and the Lenders agree as follows:
1.Recitals. The recitals set forth above in the Factual Background are true, accurate and
correct.
▇.▇▇▇ Revolving Credit Commitment.
(a)▇▇▇▇▇▇▇ and Assumption by Truist Bank.
(i)Joinder and Assumption. Effective as of the First Amendment
Effective Date (as defined below), Truist (i) shall be deemed automatically to have become a party to
the Credit Agreement and the other Loan Documents as a “Lender” thereunder, to have assumed all of
the obligations of a “Lender” thereunder to the extent of ▇▇▇▇▇▇’s interest therein as described in this
Amendment, and to have all the rights and obligations of a Lender party to the Credit Agreement and
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the other Loan Documents, as if it were an original signatory thereto to the extent of ▇▇▇▇▇▇’s interest
therein as described in this Amendment; and (ii) agrees to be bound by the terms and conditions
set forth in the Credit Agreement and the other Loan Documents as if it were an original signatory
thereto.
(ii)New Revolving Credit Commitment. Without limiting the generality
of clause (i) above, ▇▇▇▇▇▇ severally and for itself alone agrees to make Advances of the Revolving
Credit in Dollars to Borrower from time to time on any Business Day during the period from the First
Amendment Effective Date until (but excluding) the Maturity Date in an aggregate amount not to
exceed at any one time outstanding Truist’s Revolving Credit Percentage of the Revolving Credit
Aggregate Commitment (as increased hereby).
(iii)Representations and Warranties by ▇▇▇▇▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ confirms that
it has received a copy of the Credit Agreement and the exhibits and schedules referred to therein, and
all other Loan Documents which it considers necessary, together with copies of the other documents
which were required to be delivered under the Credit Agreement as a condition to the making of
loans thereunder. ▇▇▇▇▇▇ acknowledges and agrees that it: (a) has made and will continue to make
such inquiries and has taken and will take such care on its own behalf as would have been the case
had its Percentage been granted and its loans been made directly by Truist to Borrower without the
intervention of the Agent or any other Lender; and (b) has made and will continue to make,
independently and without reliance upon the Agent or any other Lender, and based on such
documents and information as it has deemed appropriate, its own credit analysis and decisions
relating to the Credit Agreement. ▇▇▇▇▇▇ further acknowledges and agrees that neither the Agent nor
any other Lender has made any representations or warranties about the creditworthiness of Borrower
or any other party to the Credit Agreement or any other of the Loan Documents, or with respect to
the legality, validity, sufficiency or enforceability of the Credit Agreement or any other of the Loan
Documents.
(b)Acknowledgment of the New Revolving Credit Commitment. Each of the
undersigned hereby (i) acknowledges and agrees that the New Revolving Credit Commitment
provided by Truist pursuant to this Amendment is one of the Revolving Credit Commitments
contemplated by the Credit Agreement and that, following the First Amendment Effective Date and
the consummation of the transactions contemplated hereby, the amount of the “Revolving Credit
Aggregate Commitment” shall be $150,000,000.00, subject to reduction or termination under
Section 2.10 of the Credit Agreement and (ii) acknowledges and agrees that (A) ▇▇▇▇▇▇▇▇ has
directed Agent to offer the New Revolving Credit Commitment to Truist and (B) ▇▇▇▇▇▇ has agreed to
provide the New Revolving Credit Commitment and will be a Revolving Credit Lender under the
Credit Agreement and the other Loan Documents from and after the First Amendment Effective
Date.
3.Modifications to Credit Agreement.
(a)Amendment to Credit Agreement. The Credit Agreement (but not the
Exhibits, Annexes and Schedules thereto, other than as set forth in clauses (a), (b) and (c) below) is
hereby amended by deleting the stricken text (indicated textually in the same manner as the
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following example: stricken text) and adding the double-underlined text (indicated textually in the
same manner as the following example: double-underlined text) as set forth in Exhibit A hereto.
(b)▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇▇▇ of the Credit Agreement is hereby amended and restated
in its entirety as set forth in Exhibit B attached hereto.
(c)Schedule 5.5. Schedule 5.5 of the Credit Agreement is hereby amended and
restated in its entirety as set forth in Exhibit C attached hereto.
(d)Definition of Credit Agreement. Except as provided in this Amendment, all
references in the Credit Agreement and in the other Loan Documents to the Credit Agreement shall
mean the Credit Agreement as amended by this Amendment (the Credit Agreement, as amended
hereby, the “Amended Credit Agreement”).
(e)No Other Modifications. Except as expressly set forth in this Amendment, the
Credit Agreement and the other Loan Documents shall be and remain unmodified and in full force
and effect.
4.Conditions Precedent. This Amendment shall become effective on and as of the first
date on which all of the following conditions shall have been satisfied (or waived by the Agent and
the Lenders in their sole discretion, as evidenced by the release of their respective signature pages
hereto):
(a)The Agent shall have received counterparts of this Amendment (including the
Consent of Guarantors attached hereto) duly executed by each party hereto.
(b)The Agent shall have received (A) customary legal opinions addressed to the
Lenders, board resolutions and officers’ certificates consistent with those delivered on the Closing
Date and (B) such other documents as may be reasonably requested by the Agent.
(c)No Default or Event of Default exists or will exist on the First Amendment
Effective Date immediately before and immediately after giving effect to effectiveness of this
Amendment and the transactions contemplated hereby, including provision of the New Revolving
Credit Commitment.
(d)Each of the representations and warranties made by the Loan Parties in the
Amended Credit Agreement and in each of the other Loan Documents shall be true and correct in all
material respects as of the First Amendment Effective Date as if made on and as of such date (other
than any representation or warranty that expressly speaks as of a different date, in which case such
representation and warranty shall be true and correct in all material respects as of such different
date); provided that any such representations and warranties which are qualified by materiality,
Material Adverse Effect or similar language shall be true and correct in all respects.
(e)Since the Closing Date, nothing has occurred which has had, or could
reasonably be expected to have, a Material Adverse Effect .
(f)Borrower shall have paid all fees that are due and payable to the Lead
Arrangers and the Additional Lender pursuant to the Fee Letter.
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(g)The Agent shall have received reimbursement, in immediately available funds,
of all actual, out-of-pocket costs and expenses incurred by the Agent and for which an
invoice has been submitted in connection with this Amendment, including the legal fees, charges and
expenses of the Agent’s counsel.
Except as set forth in any closing condition letter between Borrower and the Agent, by releasing its
signature page to this Amendment the Agent and each Lender shall be deemed to have consented to,
approved or accepted as satisfactory each document or other matter required by this Section 4 to be
consented to, approved or accepted as satisfactory by the Agent or such Lender, as the case may be.
5.Representations and Warranties. Each of Borrower and, by its execution of the
Consent of Guarantor attached hereto, each of the other Loan Parties, represents and warrants that
each of the representations and warranties made by the Loan Parties in the Amended Credit
Agreement and in each of the other Loan Documents is true and correct in all material respects as of
the First Amendment Effective Date as if made on and as of such date (other than any representation
or warranty that expressly speaks as of a different date, in which case such representation and
warranty is true and correct in all material respects as of such different date); provided that any such
representations and warranties which are qualified by materiality, Material Adverse Effect or similar
language shall be true and correct in all respects.
6.Reimbursement of Expenses. Without duplication of any amounts paid pursuant to
Section 4(i) of this Amendment, Borrower shall pay or reimburse the Agent for all actual, out-of-
pocket costs and expenses incurred by the Agent in connection with this Amendment, including the
legal fees, charges and expenses of the Agent’s counsel in accordance with Section 11.5 of the Credit
Agreement.
7.Integration. The Loan Documents, including this Amendment: (a) integrate all the
terms and conditions mentioned in or incidental to the Loan Documents; (b) supersede all oral
negotiations and prior and other writings with respect to their subject matter; and (c) are intended by
the parties as the final expression of the agreement with respect to the terms and conditions set forth
in those documents and as the complete and exclusive statement of the terms agreed to by the parties.
If there is any conflict between the terms, conditions and provisions of this Amendment and those of
any other agreement or instrument in effect as of the date of this Amendment, including any of the
other Loan Documents, the terms, conditions and provisions of this Amendment shall prevail.
8.Severability. In case any provision in or obligation hereunder or under any other Loan
Document shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations, or of such provision or obligation in any
other jurisdiction, shall not in any way be affected or impaired thereby.
9.Designation as Loan Document. This Amendment shall constitute a Commitment
Increase Amendment and a Loan Document under the Amended Credit Agreement.
10.Miscellaneous. This Amendment and any attached consents or exhibits requiring
signatures may be executed in counterparts, and all counterparts shall constitute but one and the
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same document. If any court of competent jurisdiction determines any provision of this Amendment
or any of the other Loan Documents to be invalid, illegal or unenforceable, that
portion shall be deemed severed from the rest, which shall remain in full force and effect as though the
invalid, illegal or unenforceable portion had never been a part of the Loan Documents. This
Amendment shall be governed by the laws of the State of New York, without regard to the choice of
law rules of that State that would require application of the laws of any other jurisdiction. As used
here, the word “include(s)” means “includes(s), without limitation,” and the word “including” means
“including, but not limited to.”
[Signatures on following page]
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first set forth
above.
Borrower:
CIM GROUP MANAGEMENT, LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:Chief Financial Officer
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Agent:
CITY NATIONAL BANK,
as Agent, a Lender and the Swing Line Lender
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:Vice President
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Additional Lender:
TRUIST BANK, as Additional Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
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CONSENT OF GUARANTORS
The undersigned, having read and understood the foregoing First Amendment to Revolving
Credit Agreement (the “First Amendment”), each hereby (i) consents to all of the terms, conditions
and provisions of the First Amendment and the transactions contemplated by the First Amendment,
(ii) agrees that the First Amendment does not terminate any of the obligations of the undersigned to
Agent under (A) that certain Guaranty Agreement, dated as of December 30, 2022, executed by the
undersigned in favor of Agent (the “Guaranty”), (iii) reaffirms its obligations under the Guaranty
Agreement in light of the First Amendment, and (iv) agrees that its obligations under the Guaranty
Agreement are separate and distinct from those of Borrower with respect to the Facility. Each of the
undersigned, having reread the Guaranty Agreement, and with the advice of its own counsel, hereby
reaffirms and restates all waivers, authorizations, agreements and understandings set forth in the
Guaranty Agreement, as though set forth in full herein. Capitalized terms used in this consent but not
otherwise defined shall have the meanings ascribed to such terms in the First Amendment.
Dated as of January 24, 2023.
[Signatures begin on following page]
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CONSENT OF GUARANTORS
IN WITNESS WHEREOF, each of the undersigned Guarantors has executed this Consent
of Guarantors as of the date above written.
CIM Capital, LLC,
a Delaware limited liability company
By: CIM Group Management, LLC,
a Delaware limited liability company,
its sole equity member
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:Chief Financial Officer
CCO Group, LLC,
a Delaware limited liability company
By: CIM Group Management, LLC,
a Delaware limited liability company,
its managing member
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:Chief Financial Officer
[Signature page to Consent of Guarantors]
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CIM Group, L.P.,
a Delaware limited partnership
By: CIM Management, Inc.
a California corporation,
its general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:Chief Financial Officer
CIM SMA I Sponsor, LLC.,
a California limited liability company
By: CIM SMA I MLP, LLC,
ADelawarelimitedliability company, its managing
member
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:Chief Financial Officer
By: CIM Group Management, LLC,
a Delaware limited liability company,
its managing member
CIM Atlanta Manager, LLC,
a Delaware limited liability company
By: CIM Group Management, LLC, a
Delaware limited liability company,
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:Chief Financial Officer
CIM Service Provider, LLC,
a Delaware limited liability company
By: CIM Group Management, LLC, a
Delaware limited liability company, its sole
equity member
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By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:Chief Financial Officer
CIM Capital SA Management, LLC,
a Delaware limited liability company
By: CIM Group Management, LLC, a
Delaware limited liability company,
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:Chief Financial Officer
CIM Urban Income Investments GP, LLC, a Delaware
limited liability company
By: CIM Group Management, LLC, a
Delaware limited liability company,
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:Chief Financial Officer
S-9th Avenue Co-Investor Manager, LLC,
a Delaware limited liability company
By: S-MWC Co-Investor Manager, LLC,
a Delaware limited liability company, its
sole equity member
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:Chief Financial Officer
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By: CIM Group Management, LLC, a
Delaware limited liability company,
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:Chief Financial Officer
CIM Capital Controlled Company Management, LLC
a Delaware limited liability company
By: CIM Capital, LLC,
a Delaware limited liability company, its
sole equity member
By: CIM Group Management, LLC, a
Delaware limited liability company, its sole
equity member
CIM Capital RE Debt Management, LLC
a Delaware limited liability company
By: CIM Capital, LLC,
a Delaware limited liability company, its sole
equity member
By: CIM Group Management, LLC, a
Delaware limited liability company,
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:Chief Financial Officer
CIM Capital Securities Management, LLC
a Delaware limited liability company
By: CIM Capital, LLC,
a Delaware limited liability company, its
sole equity member
By: CIM Group Management, LLC, a
Delaware limited liability company,
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:Chief Financial Officer
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CIM Capital Real Property Management, LLC
a Delaware limited liability company
By: CIM Capital, LLC,
a Delaware limited liability company, its
sole equity member
By: CIM Group Management, LLC, a
Delaware limited liability company,
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:Chief Financial Officer
CIM Capital IC Management, LLC,
a Delaware limited liability company
By: CIM Group Management, LLC, a
Delaware limited liability company, its
sole equity
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:Chief Financial Officer
CIM Lending Services, LLC,
a Delaware limited liability company
By: CIM Group Management, LLC, a
Delaware limited liability company,
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:Chief Financial Officer
L-55 Hawthorne Co-Investor Manager, LLC,
a Delaware limited liability company
By: CIM Group Management, LLC, a
Delaware limited liability company,
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By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:Chief Financial Officer
H-55 Hawthorne REIT Manager, LLC, a
Delaware limited liability company
By: CIM Group Management, LLC, a
Delaware limited liability company,
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:Chief Financial Officer
CIM Controlled Company Management, LLC,
a Delaware limited liability company
By: CIM Group Management, LLC, a
Delaware limited liability company,
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:Chief Financial Officer
CIM RE Debt Management, LLC,
a Delaware limited liability company
By: CIM Group Management, LLC, a
Delaware limited liability company,
7
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:Chief Financial Officer
CIM EPIC II QOF SLP, LLC,
a Delaware limited liability company
By: CIM Group Management, LLC, a
Delaware limited liability company,
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:Chief Financial Officer
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CIM Management, Inc.,
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:Chief Financial Officer
H-Turtle Creek Village Co-Investor Manager, LLC,
a Delaware limited liability company
By: CIM Group Management, LLC, a
Delaware limited liability company,
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:Chief Financial Officer
CMMT SLP, LLC,
a Delaware limited liability company
By: Cil\1 Group Management, LLC, a
Delaware limited liability company, its sole
equity member
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:Chief Financial Officer
CIM Infrastructure SLP, LLC,
a California limited liability company
By: Cil\1 Group Management, LLC, a
Delaware limited liability company, its
managing member
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:Chief Financial Officer
CIM Infrastructure II SLP, LLC,
a Delaware limited liability company
By: CIM Group Management, LLC, a
Delaware limited liability company,
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
US- DOCS\138548577.7 |
Its:Chief Financial Officer
CIM Infrastructure III SLP, LLC,
a Delaware limited liability company
By: CIM Infrastructure III SLP Holdings, L.P. a
Delaware limited liability company,
its sole equity member
By: CIM Fund SLP GP, LLC,
A Delaware limited liability company, its
general partner
By: CIM Group Management, LLC, a Delaware
limited liability company,
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:Chief Financial Officer
US- DOCS\138548577.7 |
CIM Fund IX SLP, LLC,
a Delaware limited liability company
By: CIM Group Management, LLC, a
Delaware limited liability company,
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:Chief Financial Officer
CIM Opportunity Zone Fund SLP, LLC,
a Delaware limited liability company
By: CIM Group Management, LLC, a
Delaware limited liability company, its
sole equity member
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:Chief Financial Officer
CIM Real Estate Finance Management, LLC,
a Delaware limited liability company
By: CCO Group, LLC,
a Delaware limited liability company, its
sole equity member
By: CIM Group Management, LLC, a
Delaware limited liability company, its
managing member
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:Chief Financial Officer
CREI Advisors, LLC,
an Arizona limited liability company
By:
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Its:Manager
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CIM Real Estate Finance Management, LLC,
a Delaware limited liability company
By: CCO Group, LLC,
a Delaware limited liability company, its sole
equity member
By: CIM Group Management, LLC, a
Delaware limited liability company, its
managing member
By:
Name:▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:Chief Financial Officer
CREI Advisors, LLC,
an Arizona limited liability company
By:
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Its: Manager
CIM Income NAV Management, LLC,
a Delaware limited liability company
By: CCO Group, LLC,
a Delaware limited liability company, its
sole equity member
By: CIM Group Management, LLC, a
Delaware limited liability company,
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:Chief Financial Officer
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CIM SBA Staffing, LLC,
a Delaware limited liability company
By: CIM Group, L.P.,
a Delaware limited partnership, its
sole equity member
By: CIM Management, Inc., a
California corporation, its
general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:Chief Financial Officer
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇) Manager, LLC,
a Delaware limited liability company
By: CIM Group, L.P.,
a Delaware limited partnership, its sole
equity member
By: CIM Management, Inc., a
California corporation,
its general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:Chief Financial Officer
432 Park Management, LLC,
a Delaware limited liability company
By: CIM Group, L.P.,
a Delaware limited partnership, its
sole equity member
By: CIM Management, Inc., a
California corporation,
its general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:Chief Financial Officer
US- DOCS\138548577.7 |
CIM Group Hotel, LLC,
a California limited liability company
By: CIM Group, L.P.,
a Delaware limited partnership, its
sole equity member
By: CIM Management, Inc., a
California corporation,
its general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:Chief Financial Officer
CIM Real Estate Services, LLC,
a Delaware limited liability company
By:
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its:Manager
CIM Group Hotel, LLC,
a California limited liability company
By: CIM Group. L.P..
a Delaware limited partnership, its sole
equity member
By: CJM Management. Inc., a
California corporation,
its general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:Chief Financial Officer
US- DOCS\138548577.7 |
CIM Real Estate Services, LLC,
a Delaware limited liability company
By:
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Its:
Manager
CIM NY Management, LLC,
a New York limited liability company
By: CIM Group, L.P,
a Delaware limited partnership,
its sole equity member
By: CIM Management, Inc., a
California corporation,
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:Chief Financial Officer
CIM TX Management, LLC,
a Delaware limited liability company
By: CIM Group, L.P.,
a Delaware limited partnership,
its managing member
By: CIM Management, Inc., a
California corporation,
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:Chief Financial Officer
US- DOCS\138548577.7 |
Exhibit A
[See attached]
Execution Version
Exhibit A to First
Amendment
CONFIDENTIAL
REVOLVING CREDIT AGREEMENT
among
CIM GROUP MANAGEMENT, LLC,
as Borrower
THE LENDERS FROM TIME
TO TIME PARTY HERETO
and
CITY NATIONAL BANK,
as Agent and Lead Arranger
CITY NATIONAL BANK
and
TRUIST SECURITIES, INC.,
as Lead Arrangers and
TRUIST BANK,
as Syndication Agent
DATED AS OF DECEMBERDated as of December 30, 2022,
as amended by the First Amendment to Credit Agreement dated as of January 24, 2023
US- DOCS\138548577.7 |
TABLE OF CONTENTS
Page
1.DEFINITIONS1
1.1Certain Defined Terms1
1.2Interpretive Provisions30
1.3Accounting Terms; Divisions3031
1.4Rates3132
1.5Pro Forma Calculations32
2.REVOLVING CREDIT3233
2.1Commitment3233
2.2Accrual of Interest and Maturity; Evidence of Obligations33
2.3Requests for and Refundings and Conversions of Advances3334
2.4Disbursement of Advances35
2.5Swing Line36
2.6Interest Payments; Default Interest3940
2.7Optional Prepayments4041
2.8Base Rate Advance in Absence of Election or Upon Default4041
2.9Revolving Credit Facility Fee41
2.10Mandatory Repayment of Revolving Credit Advances41
2.11[Reserved]4243
2.12Extension of Maturity Date4243
2.13Commitment Increase43
3.YIELD PROTECTION; INCREASED COSTS; MARGIN ADJUSTMENTS;
TAXES4445
3.1Reimbursement of Prepayment Costs4445
3.2Suspension of Term SOFR Advances45
3.3[Reserved]4546
3.4[Reserved].4546
3.5Increased Costs4546
3.6Capital Adequacy and Other Increased Costs4647
3.7Right of Lenders to Fund through Branches and Affiliates47
3.8Margin Adjustment47
3.9Delay in Requests48
3.10Taxes48
3.11Benchmark Replacement Setting.4950
4.CONDITIONS5152
4.1Conditions of Initial Advances5152
4.2Continuing Conditions54
US- DOCS\138548577.7 |
i
5.REPRESENTATIONS AND WARRANTIES5455
5.1Organization; Power and Authority55
5.2Authorization, Etc55
5.3Disclosure55
5.4Organization and Ownership of Shares of Subsidiaries; Affiliates5556
5.5Financial Statements; Material Liabilities56
5.6Compliance with Laws, Other Instruments, Etc.5657
5.7Governmental Authorizations, Etc.5657
5.8Litigation; Observation of Statues and Orders57
5.9Taxes57
5.10Title to Property; Leases5758
5.11Licenses, Permits, Etc.5758
5.12Compliance with Employee Benefit Plans5758
5.13[Reserved]5859
5.14Use of Proceeds; Margin Regulations5859
5.15Existing Indebtedness59
5.16Foreign Assets Control Regulations, Etc.5960
5.17Status under Certain Statutes60
5.18Solvency6061
5.19EEA Financial Institution6061
5.20Beneficial Ownership Certification6061
6.AFFIRMATIVE COVENANTS6061
6.1Financial and Business Information61
6.2Officer’s Certificate6364
6.3Inspection of Property; Books and Records, Discussions6465
6.4Compliance with Laws65
6.5Insurance65
6.6Maintenance of Properties65
6.7Payment of Taxes6566
6.8Existence, Etc.6566
6.9Books and Records66
6.10Subsidiary Guarantors66
6.11Eligible Revenues67
6.12Registered Investment Adviser6768
6.13Private Debt Rating6768
6.14Most Favored Lender68
6.15Use of Proceeds6970
7.NEGATIVE COVENANTS6970
7.1Transactions with Affiliates6970
7.2Mergers, Consolidation, Etc70
7.3Line of Business71
US- DOCS\138548577.7 |
7.4Economic Sanctions, Etc.7172
7.5Liens7172
7.6Indebtedness7374
7.7Restricted Payments75
7.8Financial Covenants7576
7.9Amendments to Eligible Revenue Agreements7677
7.10Sale of Assets7677
7.11Modification of Certain Agreements; Certain Payments77
7.12Fiscal Year7778
8.DEFAULTS7778
8.1Events of Default7778
8.2Acceleration80
8.3[Reserved]8081
8.4Rights Cumulative8081
8.5Waiver by Borrower of Certain Laws8081
8.6Waiver of Defaults8081
8.7Set Off81
9.PAYMENTS, RECOVERIES AND COLLECTIONS8182
9.1Payment Procedure8182
9.2[Reserved]82
9.3Pro-rata Recovery8283
9.4Treatment of a Defaulting Lender; Reallocation of Defaulting Lender’s
Fronting Exposure8283
10.AGENT84
10.1Appointment of the Agent84
10.2Deposit Account with the Agent or any Lender8485
10.3Scope of the Agent’s Duties8485
10.4Successor Agent85
10.5Credit Decisions86
10.6Authority of the Agent to Enforce This Agreement86
10.7Indemnification of the Agent86
10.8Knowledge of Default87
10.9The Agent’s Authorization; Action by Lenders87
10.10Enforcement Actions by the Agent8788
10.11[Reserved]8788
10.12The Agents in their Individual Capacities8788
10.13The Agent’s Fees88
10.14Documentation Agent or other Titles88
10.15Obligations in respect of Lender Products and Hedging Agreements88
10.16No Reliance on the Agent’s Customer Identification Program8889
10.17Certain ERISA Matters89
11.MISCELLANEOUS90
US- DOCS\138548577.7 |
11.1[Reserved]90
11.2Consent to Jurisdiction90
11.3Governing Law9091
11.4Interest9091
11.5Closing Costs and Other Costs; Indemnification91
11.6Notices9293
11.7[Reserved]9394
11.8Successors and Assigns; Participations; Assignments9394
11.9Counterparts97
11.10Amendment and Waiver97
11.11Confidentiality100
11.12Substitution or Removal of Lenders101
11.13Withholding Taxes102103
11.14WAIVER OF JURY TRIAL105
11.15USA Patriot Act and Beneficial Ownership Notice105
11.16Complete Agreement; Conflicts105
11.17Severability105106
11.18Table of Contents and Headings105106
11.19Construction of Certain Provisions106
11.20Independence of Covenants106
11.21Electronic Transmissions106
11.22Reliance on and Survival of Provisions106107
11.23Acknowledgment and Consent to Bail-In of Affected Financial Institutions107
11.24Acknowledgment Regarding Any Supported QFCs107108
EXHIBITS
AFORM OF REQUEST FOR REVOLVING CREDIT ADVANCE
BFORM OF REQUEST FOR SWING LINE ADVANCE
CFORM OF REVOLVING CREDIT NOTE
DFORM OF SWING LINE NOTE
EFORM OF SWING LINE PARTICIPATION CERTIFICATE
F[RESERVED]
GFORM OF SUBSIDIARY GUARANTY
H[RESERVED]
IFORM OF COMPLIANCE CERTIFICATE
JFORM OF ASSIGNMENT AGREEMENT
KFORMS OF U.S. TAX COMPLIANCE CERTIFICATE
LFORM OF QUALIFIED PURCHASER CERTIFICATE
ANNEXES
IApplicable Margin Grid
IIOriginal Subsidiary Guarantors
IIIPercentages and Allocations
US- DOCS\138548577.7 |
IVNotices
SCHEDULES
1.1Disqualified Institutions
4.1(b) Jurisdictions in which Loan Parties are formed or organized
1.3Disclosure Materials
1.4Material Subsidiaries
1.5Financial Statements
5.15Existing Indebtedness
US- DOCS\138548577.7 |
v
REVOLVING CREDIT AGREEMENT
This Revolving Credit Agreement (this “Agreement”) is made as of December 30, 2022,
by and among CIM GROUP MANAGEMENT, LLC, a Delaware limited liability company
(“Borrower”), the financial institutions from time to time signatory hereto (individually a
“Lender,” and any and all such financial institutions, collectively, the “Lenders”), and CITY
NATIONAL BANK, as the administrative agent for the Lenders (in such capacity, the “Agent”)
and as sole lead arranger and sole bookrunner (each of CITY NATIONAL BANK and
TRUIST SECURITIES, INC., as joint lead arrangers and joint bookrunners (collectively
in such capacities, the “Lead Arrangers” and each a “Lead Arranger”).
RECITALS
A.▇▇▇▇▇▇▇▇ has requested that the Agent and the Lenders provide a senior
unsecured revolving credit facility.
B.The Agent and the Lenders are prepared to make such senior unsecured revolving
credit facility available to Borrower on the terms and subject to the conditions set forth in this
Agreement.
NOW THEREFORE, in consideration of the covenants contained herein, Borrower, the
▇▇▇▇▇▇▇ and the Agent agree as follows:
1.DEFINITIONS.
1.1Certain Defined Terms. For purposes of this Agreement the following terms will
have the following meanings:
“Acceptable Rating Agency” means Fitch, Moody’s, S&P, DBRS, or ▇▇▇▇▇, so long as, in
each case, any such credit rating agency continues to be a nationally recognized statistical rating
organization recognized by the SEC and is approved as a “Credit Rating Provider” (or other
similar designation) by the NAIC.
“Account” means any account or account receivable as defined under the UCC,
including, with respect to any Person, any right of such Person to payment for goods sold or
leased or for services rendered.
“Additional Funded Indebtedness” means, with respect to any Person at any time,
without duplication, (a) all obligations of such Person evidenced by bonds, debentures, notes,
loan agreements or other similar instruments and (b) all Guaranties with respect to Indebtedness
of the type specified in the foregoing clause (a) of another Person; provided that, Additional
Funded Indebtedness (and Additional Senior Indebtedness) shall not include (1) the Obligations
hereunder, (2) intercompany indebtedness, (3) purchase money indebtedness (including assumed
indebtedness), (4) Indebtedness arising under any hedging or netting arrangement, (5) operating
leases and trade liabilities incurred in the ordinary course of business and payable in accordance
with customary or past practices, (6) prepaid or deferred revenue arising in the ordinary course of
US- DOCS\138548577.7 |
business, (7) Indebtedness incurred for the purposes of financing warehoused investments,
which, if secured, shall be secured solely by ▇▇▇▇▇ assumed or incurred in reliance upon Sections
7.5(j) or (k) and (8) refinancing Indebtedness in respect of any of the foregoing Indebtedness
solely to the extent such refinancing Indebtedness is of the type of Indebtedness described in the
foregoing clauses (1) through (7).
“Additional Provision” has the meaning set forth in Section 6.14(a) hereof.
“Additional Senior Indebtedness” has the meaning set forth in Section 7.6(a) hereof.
“Additional Senior Notes” has the meaning set forth in Section 7.6(a) hereof.
“Advance” means, as the context may indicate, a borrowing requested by ▇▇▇▇▇▇▇▇ and
made by the Revolving Credit Lenders under Section 2.1 or by the Swing Line Lender under
Section 2.5, including any re-advance, refunding or conversion of such borrowing pursuant to
Section 2.3 or Section 2.5 and, subject to the terms hereof, may be a Base Rate Advance or a
Term SOFR Advance.
“Affected Financial Institution” means (a) any EEA Financial Institution, or (b) any UK
Financial Institution.
“Affected Lender” has the meaning set forth in Section 11.12 hereof.
“Affiliate” means, at any time, and with respect to any Person, any other Person that at
such time directly or indirectly through one or more intermediaries Controls, or is Controlled by,
or is under common Control with, such first Person. Unless the context otherwise clearly
requires, any reference to an “Affiliate” is a reference to an Affiliate of Borrower.
“Agent” has the meaning set forth in the preamble hereof, and includes any successor
agents appointed in accordance with Section 10.4 hereof.
“Agent’s Office” means the Agent’s address and, as appropriate, account, as set forth on
▇▇▇▇▇ ▇▇, or such other address or account as the Agent may from time to time notify Borrower
and the Lenders.
“Agent-Related Persons” means, collectively, the Agent and its Affiliates and its and
their respective employees, agents, officers, directors, attorneys-in-fact and other representatives;
and “Agent Related Person” means any of the foregoing.
“Agreement” has the meaning set forth in the preamble hereof.
“Anti-Corruption Laws” means any law or regulation in a U.S. or any non-U.S.
jurisdiction regarding bribery or any other corrupt activity, including the U.S. Foreign Corrupt
Practices Act and the U.K. Bribery Act 2010.
“Anti-Money Laundering Laws” means any law or regulation in a U.S. or any non-U.S.
jurisdiction regarding money laundering, drug trafficking, terrorist-related activities or other
US- DOCS\138548577.7 |
money laundering predicate crimes, including the Currency and Foreign Transactions Reporting
Act of 1970 (otherwise known as the Bank Secrecy Act) and the USA PATRIOT Act.
“Applicable Fee Percentage” means, with respect to the Revolving Credit Facility Fee
payable hereunder in respect of any calendar quarter, the applicable percentage per annum set
forth below that corresponds to the average daily utilization of Revolving Credit Commitments
for such calendar quarter (disregarding the amount of outstanding Swing Line Advances for such
purpose):
Utilization | Applicable Fee Percentage |
>35% | 0.20% |
<35% | 0.40% |
“Applicable Floor” means zero percent (0.0%) per annum.
“Applicable Interest Rate” means, (i) with respect to each Revolving Credit Advance,
Term SOFR or the Base Rate, as applicable, plus, in each case, the Applicable Margin, and (ii)
with respect to each Swing Line Advance, the Base Rate, plus the Applicable Margin.
“Applicable Margin” means, as of any date of determination thereof, the applicable
interest rate margin, determined by reference to the appropriate row and column in the pricing
matrix attached to this Agreement as Annex I, such Applicable Margin to be adjusted solely as
specified in Section 3.8 hereof.
“Assignment Agreement” means an Assignment Agreement substantially in the form of
Exhibit J.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the
applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means (a) with respect to any EEA Member Country implementing
Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the
European Union, the implementing law, rule, regulation or requirement for such EEA Member
Country from time to time which is described in the EU Bail-In Legislation Schedule, and (b)
with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as
amended from time to time) and any other law, rule, regulation or requirement applicable in the
United Kingdom relating to the resolution of unsound or failing banks, investment firms or other
financial institutions or their affiliates (other than through liquidation, administration or other
insolvency proceedings).
“Bankruptcy Code” means Title 11 of the United States Code and the rules promulgated
thereunder.
“Base Rate” means, for any day, the per annum rate of interest that is equal to the greater
of (a) the Prime Rate for such day and (b) the Federal Funds Rate in effect on such day, plus one
half percent (0.50%) per annum. Any change in the Base Rate due to a change in the Prime Rate
US- DOCS\138548577.7 |
or the Federal Funds Rate shall be effective from and including the effective date of such change
in the Prime Rate or the Federal Funds Rate, as applicable.
“Base Rate Term SOFR Determination Day” has the meaning specified in the definition
of the term “Term SOFR”.
“Base Rate Advance” means an Advance that bears interest at the Base Rate.
“Benchmark” has the meaning set forth in Section 3.11(b) hereof.
“Benchmark Replacement” has the meaning set forth in Section 3.11(a) hereof.
“Benchmark Replacement Date” has the meaning set forth in Section 3.11(a) hereof.
“Benchmark Transition Event” has the meaning set forth in Section 3.11(b) hereof.
“Beneficial Ownership Certification” means a certification regarding beneficial
ownership as required by the Beneficial Ownership Regulation in a form as agreed to by the
Agent.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230, as amended from time
to time.
“Blocked Person” means (a) a Person whose name appears on the list of Specially
Designated Nationals and Blocked Persons published by OFAC, (b) a Person, entity,
organization, country or regime that is blocked or a target of Sanctions or (c) a Person that is an
agent, department or instrumentality of, or is otherwise beneficially owned by, controlled by or
acting on behalf of, directly or indirectly, any Person, entity, organization, country or regime
described in clause (a) or (b).
“Borrower” has the meaning set forth in the preamble hereof.
“Business Day” means any day other than a Saturday or a Sunday on which commercial
banks in the State of New York are authorized or required by law to close; provided that, when
used in connection with a Term SOFR Advance, or any other calculation or determination
involving SOFR, the term “Business Day” means any such day that is also a U.S. Government
Securities Business Day.
“Capital Lease” means, at any time, a lease with respect to which the lessee is required
concurrently to recognize the acquisition of an asset and the incurrence of a liability in
accordance with GAAP.
“CEA” has the meaning assigned to such term in the definition of “Excluded Swap
Obligations”.
“Change in Law” means the occurrence, after the Closing Date, of any of the following:
(i) the adoption or implementation of, or any change in, any applicable law, treaty, rule or
regulation (whether domestic or foreign) now or hereafter in effect and whether or not applicable
US- DOCS\138548577.7 |
to any Lender or the Agent on such date, (ii) any change in the interpretation, administration or
implementation of any such law, treaty, rule or regulation by any Governmental Authority, or
(iii) the issuance, making or implementation by any Governmental Authority of any regulation,
interpretation, guideline, directive or request (whether or not having the force of law), including
any risk-based capital guidelines. For purposes of this definition, (x) any change in law, treaty,
rule, regulation, interpretation, administration or implementation made by, or which becomes
effective on the basis of, a law, treaty, rule, regulation, interpretation administration or
implementation then in force, the effective date of which change is delayed by the terms of such
law, treaty, rule, regulation, interpretation, administration or implementation, (y) the ▇▇▇▇-▇▇▇▇▇
▇▇▇▇ Street Reform and Consumer Protection Act (Pub. L. 111-203, H.R. 4173) and all rules,
regulations, interpretations, guidelines, directives or requests promulgated thereunder or issued
in connection therewith shall be deemed to be a “Change in Law” regardless of the date enacted,
adopted, issued, promulgated or implemented, and (z) all rules, guidelines, directives or requests
promulgated by the Bank for International Settlements, the Basel Committee on Banking
Supervision (or any successor or similar authority) or the United States regulatory authorities, in
each case pursuant to Basel III, shall each be deemed to be a “Change in Law” regardless of the
date enacted, adopted, issued, promulgated or implemented.
“Change of Control” means any of the following events:
(a)at any time prior to the creation of a Public Market, Permitted Investors
shall cease to Control Borrower; or
(b)any time on or after the creation of a Public Market, any “person” or
“group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) other
than a Permitted Investor or any employee benefit plan or person acting in its capacity as
trustee, agent or other fiduciary or administrator of such plan, shall become the
“beneficial owner” (as defined in Rules 13d-3 and 13d-5 of Exchange Act), directly or
indirectly, of more than 50.0% of the outstanding voting Equity Interests of Borrower on
a fully diluted basis.
“CIM Founding Principal” means any of ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇.
“CIM Fund” means (a) any single-investor or commingled investment vehicle, fund,
partnership, limited liability company or account that is sponsored, managed and/or serviced (or
co-sponsored, co-managed and/or co-serviced), directly or indirectly, by a Loan Party or any of
its Subsidiaries or (b) any entity that, upon a Loan Party’s or a Loan Party’s Subsidiary’s making
an investment therein or acquiring management rights with respect thereto, would constitute an
entity described in clause (a) of this definition.
“Closing Date” means the earliest date on which all the conditions precedent set forth in
Sections 4.1 and 4.2 were satisfied, which was December 30, 2022.
“Code” means the Internal Revenue Code of 1986, as amended, and the rules and
regulations promulgated thereunder from time to time.
US- DOCS\138548577.7 |
“Commitment Increase” has the meaning set forth in Section 2.13 hereof.
“Commitment Increase Amendment” has the meaning set forth in Section 2.13 hereof.
“Commitment Increase Effective Date” has the meaning set forth in Section 2.13 hereof.
“Compliance Certificate” means a certificate of a Senior Financial Officer of by
▇▇▇▇▇▇▇▇ delivered to the Agent pursuant to Section 6.2, substantially in the form attached
hereto as Exhibit I.
“Conforming Changes” means, with respect to either the use or administration of Term
SOFR or the use, administration, adoption or implementation of any Benchmark Replacement,
any technical, administrative or operational changes (including changes to the definition of
“Base Rate,” the definition of “Business Day,” the definition of “U.S. Government Securities
Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and
making payments of interest, timing of borrowing requests or prepayment, conversion or
continuation notices, length of lookback periods, the applicability of breakage provisions, and
other technical, administrative or operational matters) to this Agreement and the other Loan
Documents that the Agent decides (in the case of any such changes made in connection with the
use or administration of Term SOFR, in consultation with Borrower) may be appropriate to
reflect the adoption and implementation of any such rate and to permit the administration thereof
by Agent in a manner substantially consistent with market practice that Agent determines (in the
case of any such changes made in connection with the use or administration of Term SOFR, in
consultation with ▇▇▇▇▇▇▇▇) in connection with the administration of this Agreement and,
notwithstanding anything to the contrary herein or in any other Loan Document, any amendments
implementing such changes will become effective without any further action or consent of
Borrower.
“Consolidated” (or “consolidated”) means, when used with reference to any financial
term in this Agreement, the aggregate for two or more Persons of the amounts signified by such
term for all such Persons, determined on a consolidated basis in accordance with GAAP. Unless
otherwise specified herein, “Consolidated” shall refer to Borrower and its Subsidiaries,
determined on a Consolidated basis.
“Consolidated Adjusted EBITDA” means, for any period, for Borrower and its
Subsidiaries on a consolidated basis, an amount equal to (a) Consolidated EBITDA for such
period, minus (b) to the extent included in calculating Consolidated EBITDA for such period,
any unpaid Eligible Revenues accrued during such period that have been extended and/or
deferred beyond their original stated due date with the approval and/or agreement of the payee
(including any such Eligible Revenues that have been subordinated as permitted under this
Agreement), provided that if any Eligible Revenues are excluded in any given period due to the
fact that it was extended and/or deferred under clause (b), such Eligible Revenues shall be
included in Consolidated Adjusted EBITDA in the period in which it is paid.
“Consolidated EBITDA” means, for any period, for Borrower and its Subsidiaries on a
consolidated basis, without duplication, an amount equal to the sum of (a) Consolidated Net
US- DOCS\138548577.7 |
Income for such period, plus (b) the following to the extent deducted in calculating such
Consolidated Net Income for such period: (i) Consolidated Interest Charges for such period; (ii)
the provision for federal, state, local and foreign income taxes (or similar taxes imposed in lieu
of income tax) payable for such period; (iii) the amount of depreciation and amortization
expense for such period; (iv) amortization of intangibles (including goodwill) and organization
costs; (v) any extraordinary, non-recurring, unusual or exceptional losses, charges and expenses
for such period, including without limitation, non-recurring severance payments, sales of assets,
early extinguishment or restructuring of indebtedness (including prepayment premiums),
acquisitions costs, reorganizations costs, write-offs, forgiveness of debt, placement fees, fund
organizational expenses; (vi) non-cash charges for such period, including amortization or other
expenses for stock options and other equity compensation and impairment charges or expenses;
and (vii) net unrealized losses (gains), including unrealized performance allocation or incentive
fee expense (revenue).
“Consolidated Funded Indebtedness” means, as of any date of determination with
respect to Borrower and its Subsidiaries at such date, determined on a consolidated basis in
accordance with GAAP, without duplication, the sum of: (i) the outstanding principal amount of
all obligations for borrowed money (including the Obligations hereunder) and all obligations
evidenced by bonds, debentures, notes, loan agreements or other similar instruments; (ii) the
maximum amount available to be drawn under issued and outstanding letters of credit (including
standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar
instruments; (iii) all obligations in respect of the deferred purchase price of property or services
(other than trade accounts payable in the ordinary course of business) to the extent if and when
such obligations are recognized as a liability under GAAP; (iv) all purchase money indebtedness;
(v) all attributable Indebtedness; (vi) all Disqualified Stock; (vii) all Guaranties with respect to
Indebtedness of the types specified in clauses (i) through (vi) of another Person to the extent of
the reasonably estimated liability of Borrower and its Subsidiaries; and (viii) all Indebtedness of
the types referred to in clauses (i) through (vii) of any partnership in which Borrower or any of
its Subsidiaries is a general partner, except to the extent that Indebtedness is expressly made non-
recourse to such Person; provided that Consolidated Funded Indebtedness shall not include (1)
any guaranteed Indebtedness for which recourse to such borrower is contractually limited to
liability for customary recourse exceptions; (2) any so-called carry or completion guarantee; (3)
any Indebtedness arising under any hedging or netting arrangement prior to the occurrence of a
termination event with respect thereto; (4) operating leases and trade liabilities incurred in the
ordinary course of business and payable in accordance with customary or past practices; (5)
prepaid or deferred revenue arising in the ordinary course of business and not overdue for more
than 60 days; (6) purchase price holdbacks arising in the ordinary course of business; (7)
earn-out obligations until such obligations become a liability in accordance with GAAP; (8) any
Indebtedness of employees of Borrower or any of its Subsidiaries that is guaranteed by Borrower
or any Subsidiary for the benefit of such employees to invest in Borrower, its Subsidiaries or a
CIM Fund, as part of an employee investment plan; and (9) any obligations incurred under
ERISA in the ordinary course of business.
“Consolidated Interest Charges” means, for any period, for Borrower and its
Subsidiaries on a consolidated basis, the sum of (a) all interest, premium payments, debt
discount, fees, charges and related expenses in respect of Indebtedness (including dividends on
US- DOCS\138548577.7 |
Disqualified Stock), in each case to the extent treated as interest in accordance with GAAP, (b)
the portion of rent expense with respect to such period under Capital Leases that is treated as
interest in accordance with GAAP, (c) the implied interest component of synthetic lease
obligations with respect to such period and (d) net losses on hedge agreements or other
derivative instruments entered into for the purpose of hedging interest rate risk.
“Consolidated Net Income” means, for any period, for Borrower and its Subsidiaries on
a consolidated basis, the net income (excluding extraordinary gains and losses) for that period as
determined in accordance with GAAP.
“Consolidated Net Funded Indebtedness” means, as of any date of determination with
respect to Borrower and its Subsidiaries at such date, determined on a consolidated basis in
accordance with GAAP, without duplication, the sum of (a) Consolidated Funded Indebtedness,
less (b) the sum of unrestricted cash and cash equivalents free and clear of all Liens (other than
(x) Liens in favor of the Administrative Agent or holders of other Indebtedness secured equally
and ratably with or on a junior basis to the Obligations and (y) Liens (not securing any
Indebtedness) in favor of depository institutions or other customary liens arising by operation of
law) as of the date of determination.
“Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a)
Consolidated Funded Debt as of such date to (b) Consolidated Adjusted EBITDA for the period
of four consecutive fiscal quarters most recently ended on such date for which financial
statements have been (or were required to have been) delivered under Section 6.1(a) or (b).
“Consolidated Net Leverage Ratio” has the meaning set forth in Section 7.8(a) hereof.
“Control” means the beneficial ownership, direct or indirect, of more than 50% of the
outstanding voting Equity Interests of a Person on a fully-diluted basis and the power to appoint a
majority of the board of directors or other most senior governing board of such Person, whether
through the ownership of voting securities, by contract or otherwise; and the terms
“Controlled” and “Controlling” shall have meanings correlative to the foregoing.
“Covered Party” has the meaning set forth in Section 11.24(a) hereof.
“Cure Expiration Date” has the meaning set forth in Section 7.8(a) hereof.
“DBRS” means DBRS, Inc., and any successor thereto.
“Debt Rating” means the debt rating with respect to each series of Senior Notes and
Additional Senior Notes as determined from time to time by any Acceptable Rating Agency.
“Debtor Relief Laws” means, collectively, the Bankruptcy Code and all other bankruptcy,
insolvency, assignment for the benefit of creditors, moratorium, rearrangement, conservatorship,
receivership, liquidation, reorganization or similar debtor relief laws of the United States or any
other applicable jurisdictions, in each case as in effect from time to time.
“Default” means an event or condition the occurrence or existence of which would, with
the lapse of time or the giving of notice or both, become an Event of Default.
US- DOCS\138548577.7 |
“Defaulting Lender” means any Lender that (a) has failed to (i) fund all or any portion of
its Revolving Credit Percentage of any Advance within one (1) Business Day of the date such
Advance was required to be funded hereunder, unless such ▇▇▇▇▇▇ notifies the Agent and
Borrower in writing that such failure is the result of such ▇▇▇▇▇▇’s good faith determination that
one or more conditions precedent to funding (each of which conditions precedent, together with
any applicable default, shall be specifically identified in such writing) has not been satisfied, or
(ii) pay to the Agent, the Swing Line Lender or any other Lender any other amount required to be
paid by it hereunder (including in respect of its participation in Swing Line Advances) within one
(1) Business Day of the date when due, (b) has notified Borrower, the Agent or the Swing Line
▇▇▇▇▇▇ in writing that it does not intend to comply with its funding obligations hereunder, or has
made a public statement to that effect, unless such writing or public statement is based on such
▇▇▇▇▇▇’s good faith determination that one or more conditions precedent to funding (each of
which conditions precedent, together with any applicable default, shall be specifically identified
in such writing or public statement) has not been satisfied, (c) has failed, within three (3)
Business Days after written request by the Agent or ▇▇▇▇▇▇▇▇, to confirm in writing to the Agent
and 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 Agent and Borrower), or (d) has, or has a direct or indirect
parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law,
(ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the
benefit of creditors or similar Person charged with liquidation or reorganization or of its business
or assets, including the Federal Deposit Insurance Corporation or any other federal or state
regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-In Action;
provided, however, that a Lender shall not be a Defaulting Lender solely by virtue of a
Governmental Authority’s ownership or acquisition of any Equity Interest in such Lender, or any
direct or indirect parent company thereof, 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 Agent that a Lender is a
Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive
and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender
upon delivery by the Agent of written notice of such determination to ▇▇▇▇▇▇▇▇, each Lender and
the Swing Line Lender.
“Default Rate” means, with respect to (a) outstanding principal, the Applicable Interest
Rate plus two percent (2.00%) per annum, and (b) with respect to all other Obligations accruing
interest at the Default Rate pursuant to the terms of this Agreement, the Base Rate plus two
percent (2.00%) per annum.
“Disclosure Documents” has the meaning set forth in Section 5.3 hereof.
“Disposition” means the sale, transfer, license, lease or other disposition of any property
by any Loan Party or any Subsidiary, including any sale, assignment, transfer or other disposal,
with or without recourse, of any notes or accounts receivable or any rights and claims associated
therewith.
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“Disqualified Institution” means (i) any Person listed on Schedule 1.1 attached hereto,
(ii) with the approval of the Agent (such approval not to be unreasonably withheld, conditioned
or delayed), any other Person that ▇▇▇▇▇▇▇▇ identifies to the Agent from time to time in writing
as a competitor of Borrower or its Subsidiaries, and (iii) any Affiliate of any Person described in
clause (i) or clause (ii) that is identified by Borrower to the Agent from time to time in writing or
is readily identifiable by name.
“Disqualified Stock” means, any Equity Interest in Borrower or its Subsidiaries that (a)
matures or is mandatorily redeemable, other than an Equity Interest which is redeemable solely
in exchange for other Equity Interests; (b) is convertible into or exchange or exercisable for
Consolidated Net Funded Indebtedness; or (c) is redeemable at the option of its holder, in whole
or in part, other than Equity Interests which are redeemable solely in exchange for other Equity
Interests which are not “Disqualified Stock”, in each case on or prior to the Maturity Date.
“Dividing Person” has the meaning assigned to such term in the definition of “Division”.
“Division” means the division of the assets, liabilities and/or obligations of a Person (the
“Dividing Person”) among two or more Persons (whether pursuant to a “plan of division” or
similar arrangement), which may or may not include the Dividing Person and pursuant to which
the Dividing Person may or may not survive.
“Division Successor” means any Person that, upon the consummation of a Division of a
Dividing Person, holds all or any portion of the assets, liabilities and/or obligations previously
held by such Dividing Person immediately prior to the consummation of such Division. A
Dividing Person which retains any of its assets, liabilities and/or obligations after a Division
shall be deemed a Division Successor upon the occurrence of such Division.
“Dollars” and the sign “$” means the lawful money of the United States of America.
“Domestic Subsidiary” shall mean any Subsidiary of Borrower incorporated or organized
under the laws of the United States of America or any state or other political subdivision thereof,
or which is considered to be a “disregarded entity” for United States federal income tax purposes
and is not a “controlled foreign corporation” as defined under Section 957 of the Code, in each
case provided such Subsidiary is owned by Borrower and/or one or more Domestic Subsidiaries
of Borrower, and “Domestic Subsidiaries” shall mean any or all of them as the context shall
indicate.
“▇▇▇▇▇” means the SEC’s Electronic Data Gathering, Analysis and Retrieval System
or any successor SEC electronic filing system for such purposes.
“EEA Financial Institution” means (a) any credit institution or investment firm
established in any EEA Member Country which is subject to the supervision of an EEA
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.
US- DOCS\138548577.7 |
“EEA Member Country” means any of the member states of the European Union,
Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any Person
entrusted with public administrative authority of any EEA Member Country (including any
delegee) having responsibility for the resolution of any EEA Financial Institution.
“Electronic Transmission” shall mean each document, instruction, authorization, file,
information or other communication transmitted, posted or otherwise made or communicated by
e-mail or E-Fax, or otherwise to or from an E-System or other equivalent system or service.
“Eligible Assignee” means a Qualified Purchaser that is (a) a Lender, (b) an Affiliate of a
▇▇▇▇▇▇, (c) any Person (other than a natural person) that is or will be engaged in the business of
making, purchasing, holding or otherwise investing in commercial loans or similar extensions of
credit in the ordinary course of its business, provided that such Person is administered or
managed by a Lender, an Affiliate of a Lender, or an entity or Affiliate of an entity that
administers or manages a Lender, or (d) any other Person (other than a natural person) approved
by (i) the Agent and the Swing Line Lender and (ii) unless an Event of Default under Section
8.1(a), (b), (g) or (h) has occurred and is continuing, Borrower (each such approval not to be
unreasonably withheld or delayed); provided, that Borrower shall be deemed to have consented
to any such assignee unless it gives written notice of its objection to the Agent within five (5)
Business Days after its receipt of notice thereof; and provided further, that notwithstanding the
foregoing, (x) no Disqualified Institution may be an “Eligible Assignee”, (y) neither Borrower
nor any of Borrower’s Affiliates or Subsidiaries may be an “Eligible Assignee”; and (z) no
assignment shall be made to a Defaulting Lender (or any Person who would be a Defaulting
Lender if such Person were a Lender hereunder) without the prior consent of the Agent and the
Swing Line Lender.
“Eligible Revenue Percentage” means (a) at any time Fee Earning Equity Owned and
Operated is less than $13,271,126,000, 80% of Eligible Revenues and (b) at all other times, 70%
of Eligible Revenues.
“Eligible Revenues” means Management Fees, reimbursements, realized incentive fees,
and realized performance allocations paid or payable to Borrower or any of its Subsidiaries.
“Equity Interest” means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity ownership
interests in a Person, and any warrants, options or other rights entitling the holder thereof to
purchase or acquire any such Equity Interest. As used in this Agreement, “Equity Interests” shall
not include convertible Indebtedness unless and until such Indebtedness has been converted to
capital stock.
“ERISA” means the Employee Retirement Income Security Act of 1974 and the rules and
regulations promulgated thereunder from time to time in effect.
“ERISA Affiliate” means any trade or business (whether or not incorporated) that is
treated as a single employer together with Borrower under section 414 of the Code.
US- DOCS\138548577.7 |
“Estate Planning Entity” means with respect to any individual, (a) any trust, the
beneficiaries of which are primarily such individual and/or any Immediate Family Relative, or
(b)any corporation, partnership, limited liability company or other entity that is primarily
owned and controlled, directly or indirectly, by such individual, any Immediate Family Relative
and/or any of the persons described in clause (a).
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule
published by the Loan Market Association (or any successor person), as in effect from time to
time.
“Event of Default” has the meaning set forth in Section 8.1 hereof.
“Exchange Act” means the Securities Exchange Act of 1934.
“Excluded Taxes” shall mean any of the following Taxes imposed on or with respect to a
Recipient or required to be withheld or deducted from a payment to a Recipient: (a) Taxes
imposed on or measured by net or gross income (however denominated), franchise Taxes and
branch profits Taxes, in each case that are (i) imposed as a result of such Recipient’s being
organized under the laws of, or having its principal office or, in the case of any Lender, its
applicable lending office located in, the jurisdiction imposing such Tax (or any political
subdivision thereof) or (ii) Other Connection Taxes, (b) in the case of a Lender, U.S. federal
withholding Taxes imposed on amounts payable to or for the account of such Lender with
respect to an applicable interest in a loan or commitment pursuant to a law in effect on the date
on which (i) such Lender acquires such interest in the loan or commitment (other than pursuant
to an assignment request by Borrower under Section 11.12) or (ii) such Lender changes its
lending office, except in each case to the extent that amounts with respect to such Taxes were
payable either to such ▇▇▇▇▇▇’s assignor immediately before such ▇▇▇▇▇▇ became a party hereto
or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such
Recipient’s failure to comply with Section 11.13, and (d) any U.S. federal withholding Taxes
imposed under FATCA.
“Excluded Swap Obligation” shall mean any obligation of a Loan Party to the Agent or a
Lender with respect to a “swap” (as defined in Section 1a(47) of the Commodity Exchange Act
(“CEA”)) if and to the extent that such Loan Party’s guarantee of such swap obligation is or
becomes illegal under the CEA, or any rule, regulation or order of the Commodity Futures
Trading Commission (or any successor or other agency at any time exercising its powers under
the CEA), or the application or official interpretation of any thereof, by virtue of such Loan
Party’s failure for any reason to constitute an “eligible contract participant” (as defined in
Section 1a(18) of the CEA and the regulations thereunder) at the time such guarantee becomes
effective with respect to such swap obligation. If any such swap obligation arises under a master
agreement governing more than one swap, the foregoing exclusion shall apply only to those swap
obligations that are attributable to swaps in respect of which such Loan Party’s guarantee is or
becomes illegal.
US- DOCS\138548577.7 |
“Extending Lenders” has the meaning set forth in Section 2.12(a) hereof.
“Extension” has the meaning set forth in Section 2.12 hereof.
“Extension Fee” has the meaning assigned to such term in the Fee Letter.
“E-System” means any electronic system or other Internet or extranet-based site, whether
such electronic system is owned, operated, hosted or utilized by the Agent, any of its Affiliates or
any other Person, providing for access to data protected by passcodes or other security system.
“FATCA” shall mean (i) Sections 1471 through 1474 of the Code as of the date of this
Agreement (or any amended or successor version that is substantively comparable and not
materially more onerous to comply with), and any current or future regulations or official
interpretations thereof, (ii) any agreement entered into pursuant to Section 1471(b)(1) of the
Code, (iii) any intergovernmental agreement entered into in connection with the implementation
of Sections 1471 through 1474 of the Code, and (iv) any legislation, rules or practices adopted
pursuant to, or otherwise relating to, any such intergovernmental agreement.
“Federal Funds Rate” means, for any day, a fluctuating per annum interest rate equal to
the weighted average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if
such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve
Bank of New York or, if such rate is not so published for any day which is a Business Day, the
average of the quotations for such day on such transactions received by the Agent from three
Federal funds brokers of recognized standing selected by the Agent, all as conclusively
determined by the Agent, such sum to be rounded upward, if necessary, in the discretion of the
Agent, to the nearest whole multiple of 1/100th of 1%; provided that if the Federal Funds Rate as
so determined would be less than 0%, such rate shall be deemed to be 0% for purposes of this
Agreement.
“Federal Reserve Board” means the Board of Governors of the Federal Reserve System.
“Fee Earning Equity Owned and Operated” means, at any time, the sum of (a) the
aggregate net asset value before incentive fee allocations of all CIM Funds that generate (directly
and/or through investments) any Eligible Revenues for Borrower and/or any of its Subsidiaries
and/or any entities jointly owned with a co-sponsor, co-manager or co-servicer based upon the
sponsorship, management and/or servicing by Borrower or any Subsidiary, as most recently
reported by Borrower or any Affiliate of Borrower (and/or, in the case of any co-sponsored,
co-managed or co-serviced CIM Fund, by any co-sponsor, co-manager or co-servicer) to the
investors in such CIM Funds, plus (b) the aggregate amount, at the applicable report date(s), of
unfunded commitments to all CIM Funds; provided that with respect to any CIM Fund that is
cosponsored, co-managed and/or co-serviced by a person that is not an Affiliate of Borrower, the
Fee Earning Equity Owned and Operated of such CIM Fund shall at any time be equal to the
Loan Parties’ pro rata share of such CIM Fund’s net asset value before incentive fee allocations
and unfunded commitments (as determined by Borrower in good faith based on the relative
amount of asset management fees and other similar fees then being earned by the Loan Parties or
US- DOCS\138548577.7 |
their subsidiaries and by the other co-sponsor, co-manager and/or co-servicer of such CIM
Fund).
“Fee Letter” shall mean the amended and restated fee letter, dated as of December 30,
2022, by and betweenthe First Amendment Effective Date, by and among Borrower and City
National Bank, the Agent and the Lead Arrangers and relating to the Revolving Credit,
as amended, restated, amended and restated, supplemented or otherwise modified from time to
time.
“Fees” means the Revolving Credit Facility Fee and the other fees and charges (including
any agency fees) payable by Borrower to the Lenders or the Agent hereunder or under the Fee
Letter.
“Financial Covenant” means any covenant (whether set forth as a covenant,
undertaking, event of default, restriction or other provision, including in related definitions and
any provision related to the treatment of operating leases in connection with such covenant) that
requires Borrower or any Subsidiary to achieve or maintain a stated level of financial condition
or performance and includes, without limitation, any requirement that Borrower or any
Subsidiary:
(a)maintain a specified level of net worth, shareholders’ equity, total assets,
cash flow or net income;
(b)maintain any relationship of any component of its capital structure to any
other component thereof (including, without limitation, the relationship of indebtedness,
senior indebtedness or subordinated indebtedness to total capitalization or to net worth);
and
(c)maintain any measure of its ability to service its indebtedness (including,
without limitation, exceeding any specified ratio of revenues, cash flow or net income to
indebtedness, interest expense, rental expense, capital expenditures and/or scheduled
payments of indebtedness).
“First Amendment” means that certain First Amendment to Revolving Credit
Agreement, dated as of the First Amendment Effective Date, by and among ▇▇▇▇▇▇▇▇, the
Additional Lender party thereto, the other Lenders party thereto and the Agent.
“First Amendment Effective Date” has the meaning set forth in the First
Amendment.
“Fitch” means Fitch, Inc., and any successor thereto.
“Foreign Lender” means any Lender that is not a U.S. Person.
“Form 10-K” has the meaning set forth in Section 6.1(b) hereof.
“Form 10-Q” has the meaning set forth in Section 6.1(a) hereof.
US- DOCS\138548577.7 |
“Fronting Exposure” shall mean, at any time there is a Defaulting Lender, such
Defaulting ▇▇▇▇▇▇’s Revolving Credit Percentage of outstanding Swing Line Advances made by
the Swing Line Lender.
“GAAP” means (a) generally accepted accounting principles as in effect from time to
time in the United States of America and (b) for purposes of Section 6.9, with respect to any
Subsidiary, generally accepted accounting principles (including International Financial Reporting
Standards, as applicable) as in effect from time to time in the jurisdiction of organization of such
Subsidiary.
“GAAP Change Event” has the meaning set forth in Section 1.3 hereof.
“Governmental Authority” means
(a)the government of
(i)the United States of America or any state or other political
subdivision thereof, or
(ii)any other jurisdiction in which Borrower or any Subsidiary
conducts all or any part of its business, or which asserts jurisdiction over any
properties of Borrower or any Subsidiary, or
(b)any entity exercising executive, legislative, judicial, regulatory or
administrative functions of, or pertaining to, any such government; or
(c)any group or body charged with setting financial accounting or regulatory
capital rules or standards (including the Financial Accounting Standards Board, the Bank
for International Settlements or the Basel Committee on Banking Supervision or any
successor or similar authority to any of the foregoing).
“Governmental Official” means any governmental official or employee, employee of any
government-owned or government-controlled entity, political party, any official of a political
party, candidate for political office, official of any public international organization or anyone
else acting in an official capacity.
“Guarantor Supplement” has the meaning set forth in Section 6.10(a)(i) hereof.
“Guaranty” means, with respect to any Person, any obligation (except the endorsement in
the ordinary course of business of negotiable instruments for deposit or collection) of such
Person guaranteeing or in effect guaranteeing any indebtedness, dividend or other obligation of
any other Person in any manner, whether directly or indirectly, including obligations incurred
through an agreement, contingent or otherwise, by such Person:
(a)to purchase such indebtedness or obligation or any property constituting
security therefor;
US- DOCS\138548577.7 |
(b)to advance or supply funds (i) for the purchase or payment of such
indebtedness or obligation, or (ii) to maintain any working capital or other balance sheet
condition or any income statement condition of any other Person or otherwise to advance
or make available funds for the purchase or payment of such indebtedness or obligation;
(c)to lease properties or to purchase properties or services primarily for the
purpose of assuring the owner of such indebtedness or obligation of the ability of any
other Person to make payment of the indebtedness or obligation; or
(d)otherwise to assure the owner of such indebtedness or obligation against
loss in respect thereof.
In any computation of the indebtedness or other liabilities of the obligor under any Guaranty, the
indebtedness or other obligations that are the subject of such Guaranty shall be assumed to be
direct obligations of such obligor.
“Hazardous Material” means any and all pollutants, toxic or hazardous wastes or other
substances that might pose a hazard to health and safety, the removal of which may be required
or the generation, manufacture, refining, production, processing, treatment, storage, handling,
transportation, transfer, use, disposal, release, discharge, spillage, seepage or filtration of which
is or shall be restricted, prohibited or penalized by any applicable law, including asbestos, urea
formaldehyde foam insulation, polychlorinated biphenyls, petroleum, petroleum products, lead
based paint, radon gas or similar restricted, prohibited or penalized substances.
“Hedging Agreement” shall mean any agreement relating to an interest rate swap
transaction, basis swap transaction, forward rate transaction, equity swap transaction, equity
index transaction, foreign exchange transaction, cap transaction or floor transaction, any option
with respect to any of the foregoing transactions, or any combination of any of the foregoing, in
each case, entered into by Borrower or any of its Subsidiaries with the Agent or any Lender (or
their respective Affiliates), in each case as amended, restated, supplemented or otherwise
modified from time to time.
“Immediate Family Relative” means an individual’s lineal descendants (including any
such descendants by adoption), siblings, parents, spouse, former spouses, current civil union
partner, former civil union partners and the estates, guardians, custodians or other legal
representatives of any of the foregoing.
“Indebtedness” means, with respect to any Person at any time, without duplication,
(a)its liabilities for borrowed money and its redemption obligations in respect
of mandatorily redeemable Preferred Stock;
(b)its liabilities for the deferred purchase price of property acquired by such
Person (excluding accounts payable arising in the ordinary course of business but
including all liabilities created or arising under any conditional sale or other title retention
agreement with respect to any such property);
US- DOCS\138548577.7 |
(c)(i) all liabilities appearing on its balance sheet in accordance with GAAP
in respect of Capital Leases and (ii) all liabilities which would appear on its balance sheet
in accordance with GAAP in respect of Synthetic Leases assuming such Synthetic Leases
were accounted for as Capital Leases;
(d)all liabilities for borrowed money secured by any Lien with respect to any
property owned by such Person (whether or not it has assumed or otherwise become
liable for such liabilities);
(e)all its liabilities in respect of letters of credit or instruments serving a
similar function issued or accepted for its account by banks and other financial
institutions (whether or not representing obligations for borrowed money);
(f)the aggregate Swap Termination Value of all Swap Contracts of such
Person; and
(g)any Guaranty of such Person with respect to liabilities of a type described
in any of clauses (a) through (f) hereof.
Indebtedness of any Person shall include all obligations of such Person of the character described
in clauses (a) through (g) to the extent such Person remains legally liable in respect thereof
notwithstanding that any such obligation is deemed to be extinguished under GAAP.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with
respect to any payment made by or on account of any obligation of any Loan Party under any
Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
“Indemnitee” has the meaning set forth in Section 11.5(b) hereof.
“Information” has the meaning set forth in Section 11.11 hereof.
“Interest Period” means, with respect to a Term SOFR Advance, an interest period of
one (1), three (3) or six (6) months (in each case subject to availability thereof) as selected by
Borrower, in any request for, conversion to, or continuation of such Term SOFR Advance;
provided, however that (i) any Interest Period which would otherwise end on a day which is not a
Business Day shall end on the next succeeding Business Day, except that as to an Interest Period
in respect of a Term SOFR Advance, if the next succeeding Business Day falls in another
calendar month, such Interest Period shall end on the next preceding Business Day, (ii) when an
Interest Period in respect of a Term SOFR Advance begins on the last Business Day of a
calendar month or on a day which has no numerically corresponding day in the calendar month
during which such Interest Period is to end, it shall end on the last Business Day of such calendar
month, (iii) no Interest Period in respect of any Advance shall extend beyond the Revolving
Credit Maturity Date, and (iv) no tenor that has been removed from this definition pursuant to
Section 3.11 shall be available for election in any Request for Advance.
“Investment Advisers Act” means the Investment Advisers Act of 1940, as amended and
the rules and regulations of the SEC thereunder, as modified or interpreted by orders of the SEC,
or other interpretative releases or letters issued by the SEC or its staff, all as from time to time in
US- DOCS\138548577.7 |
effect, or any successor law, rules or regulations, and any reference to any statutory or regulatory
provision shall be deemed to be a reference to any successor statutory or regulatory provision.
“Investment Grade” has the meaning set forth in the definition of “Investment Grade
Rating”.
“Investment Grade Rating” means a Debt Rating assigned to the Senior Notes or
Additional Senior Notes from at least one Acceptable Rating Agency equal to or higher than (a)
BBB- (or the equivalent) by Fitch, S&P, ▇▇▇▇▇ or DBRS, or (b) Baa3 by ▇▇▇▇▇’▇ (such ratings
under clause (a) and clause (b) being “Investment Grade”); provided, that:
(i)if at any time there are two Debt Ratings assigned to the Senior Notes or
Additional Senior Notes from Acceptable Rating Agencies, and the lower of such
Debt Ratings that is in full force and effect (not having been withdrawn) is less
than Investment Grade, then the Senior Notes or Additional Senior Notes, as
applicable, shall be deemed not to have an “Investment Grade Rating”;
(ii)if at any time there are three or more Debt Ratings assigned to the Senior Notes or
Additional Senior Notes from Acceptable Rating Agencies, and the then second
lowest of such Debt Ratings that is in full force and effect (not having been
withdrawn) is less than Investment Grade, then the Senior Notes or Additional
Senior Notes, as applicable, shall be deemed not to have an “Investment Grade
Rating” (provided, for the avoidance of doubt, if two or more of such Debt
Ratings are equal or equivalent as the lowest such Debt Rating, then one of such
equal or equivalent Debt Ratings will be deemed to be the second lowest Debt
Rating for purposes of such determination); and
(iii)if Borrower shall have failed to maintain a Debt Rating or receive and deliver to
the Agent a Private Rating Letter from at least one Acceptable Rating Agency, in
each case as required pursuant to Section 6.13, then the Senior Notes and/or
Additional Senior Notes shall be deemed not to have an “Investment Grade
Rating”.
“Key Employees” means any of ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ and any other
employee of Borrower or any of its Subsidiaries that is promoted to or designated a “Principal.”
“▇▇▇▇▇” means ▇▇▇▇▇ Bond Rating Agency, LLC, and any successor thereto.
“Lender Products” shall mean any one or more of the following types of services or
facilities extended to any of the Loan Parties by any Lender: (i) credit cards, (ii) credit card
processing services, (iii) debit cards, (iv) purchase cards, (v) Automated Clearing House (ACH)
transactions, (vi) cash management, including controlled disbursement services, and (vii)
establishing and maintaining deposit accounts.
US- DOCS\138548577.7 |
“Lenders” has the meaning set forth in the preamble hereof, and shall include the
Revolving Credit Lenders, the Swing Line Lender and any assignee that becomes a Lender
pursuant to Section 11.8 hereof.
“Lien” means, with respect to any property, any mortgage, lien, pledge, charge, security
interest or other similar encumbrance on such property, or any interest or title of any vendor,
lessor, lender or other secured party to or of such property under any conditional sale or other
title retention agreement or Capital Lease, upon or with respect to such property.
“Loan Documents” means, collectively, this Agreement, the Notes (if issued), each
Subsidiary Guaranty, each Guarantor Supplement, and any other agreement, certificate and/or
instrument executed and/or delivered in connection therewith, each as may be amended,
restated or otherwise modified from time to time.
“Loan Parties” shall mean, collectively, Borrower and each Subsidiary Guarantor, and
“Loan Party” shall mean any one of them, as the context shall indicate.
“Majority Lenders” shall mean at any time, Lenders holding more than 50.0% of the
Revolving Credit Aggregate Commitment (or, if the Revolving Credit Aggregate
Commitment has been terminated (whether by maturity, acceleration or otherwise), the
aggregate principal amount outstanding under the Revolving Credit); provided, however, that
for purposes of determining Majority Lenders the principal amount outstanding under the
Swing Line shall be allocated among the Revolving Credit Lenders based on their respective
Revolving Credit Percentages; and provided further, that if there are (x) fewer than three (3)
Lenders (considering any Lender and its Affiliates as a single Lender), Majority Lenders shall
mean all Lenders andor (y) there three (3) or more Lenders (considering any Lender and its
Affiliates as a single Lender), Majority Lenders shall include at least two (2) Lenders. The
Revolving Credit Commitment Amounts of, and portion of the Obligations attributable to, any
Defaulting Lender shall be excluded for purposes of making a determination of Majority
Lenders; provided, however, that the amount of any participation in any Swing Line Advance
that a Defaulting Lender has failed to fund that has not been reallocated to and funded by
another Lender shall be deemed to be held by the Lender that is the Swing Line Lender in
making a determination under this definition.
“Management Fees” means any fund management fees, property management fees,
development fees, leasing or sales commissions or any other similar fees (but for the
avoidance of doubt excluding any incentive fees, performance allocations, or carried interest)
paid or payable to Borrower or any Subsidiary.
“Material” means material in relation to the business, operations, affairs, financial
condition, assets or properties of Borrower and its Subsidiaries taken as a whole.
“Material Adverse Effect” means a material adverse effect on (a) the business,
operations, affairs, financial condition, assets or properties of Borrower and its Subsidiaries
taken as a whole, (b) the ability of Borrower or any other Loan Party, taken as a whole to
perform their respective obligations under this Agreement or Borrower or any other Loan
Document or (c) the validity or enforceability of this Agreement or any other Loan Document.
US- DOCS\138548577.7 |
“Material Credit Facility” means, as to Borrower and its Subsidiaries, any
agreement(s) creating or evidencing Indebtedness for borrowed money entered into by
Borrower or any Subsidiary, or in respect of which Borrower or any Subsidiary is a obligor or
otherwise provides a guarantee or other credit support, in a principal amount outstanding or
available for borrowing equal to or greater than $50,000,000 (or the equivalent of such amount
in the relevant currency of payment, determined as of the date of the closing of such facility
based on the exchange rate of such other currency.
“Maturity Date” means the earlier to occur of (i) December 30, 2025 (subject to
Borrower’s extension thereof pursuant to Section 2.12), and (ii) the date on which the
Revolving Credit Aggregate Commitment terminates in accordance with the provisions of this
Agreement.
“Multiemployer Plan” means any Plan that is a “multiemployer plan” (as such term is
defined in section 4001(a)(3) of ERISA).
“Non-Defaulting Lender” means, at any time, a Lender that is not a Defaulting Lender
at such time.
“Non-U.S. Plan” means any plan, fund or other similar program that (a) is established
or maintained outside the United States of America by Borrower or any Subsidiary primarily
for the benefit of employees of Borrower or one or more Subsidiaries residing outside the
United States of America, which plan, fund or other similar program provides, or results in,
retirement income, a deferral of income in contemplation of retirement or payments to be
made upon termination of employment, and (b) is not subject to ERISA or the Code.
“Notes” means, collectively, the Revolving Credit Notes and the Swing Line Note.
“Obligations” shall mean the unpaid principal of and interest on (including, without
limitation, interest accruing after the maturity of the Advances and interest accruing after the
filing of any petition in bankruptcy, or the commencement of any proceeding under any
Debtor Relief Law, relating to Borrower or any Subsidiary, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding) the Advances and all other
obligations and liabilities owed by Borrower or any Subsidiary to the Agent, theany Lead
Arranger, any Lender or the Swing Line Lender, whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred, which may arise
under, out of, or in connection with, this Agreement, any other Loan Document, any Hedging
Agreement, any Lender Products or any other document made, delivered or given in
connection herewith or therewith, whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses (including, without limitation, all fees, charges
and disbursements of counsel to the Lead ArrangerArrangers, the Agent or any Lender that
are required to be paid by Borrower pursuant hereto) or otherwise. Notwithstanding the
foregoing, the term “Obligations” shall be deemed not to include any Excluded Swap
Obligations.
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“OFAC” means the Office of Foreign Assets Control of the United States Department
of the Treasury.
“OFAC Sanctions Program” means any economic or trade sanction that OFAC is
responsible for administering and enforcing. A list of OFAC Sanctions Programs may be
found at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇ center/sanctions/Programs/Pages/Programs.aspx.
“Officer’s Certificate” means a certificate of a Senior Financial Officer or of any other
officer of Borrower whose responsibilities extend to the subject matter of such certificate.
“Original Subsidiary Guarantors” means, collectively, each of the Subsidiaries of
Borrower set forth on ▇▇▇▇▇ ▇▇ hereof.
“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a
result of a present or former connection between such Recipient and the jurisdiction imposing
such Tax (other than connections arising from such Recipient’s having executed, delivered,
become a party to, performed its obligations under, received payments under, received or
perfected a security interest under, engaged in any other transaction pursuant to or enforced
any Loan Document, or sold or assigned an interest in any Advance or Loan Document).
“Other Taxes” means all present or future stamp, court or documentary, intangible,
recording, filing or similar Taxes that arise from the execution, delivery, performance,
enforcement or registration of, from the receipt or perfection of a security interest under, from
any payment made under, or otherwise with respect to, any Loan Document, except any such
Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an
assignment made pursuant to Section 11.12).
“Participant Register” has the meaning set forth in Section 11.8(f) hereof.
“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in
ERISA.
“Percentage” means, as applicable, the Revolving Credit Percentage or the Weighted
Percentage.
“Periodic Term SOFR Determination Day” has the meaning specified in the definition
of “Term SOFR”.
“Permitted Dispositions” means (a) Dispositions of assets in the ordinary course of
business on fair and reasonable terms, (b) Dispositions of property by a Loan Party to any other
Loan Party or to a Wholly-Owned Subsidiary, (c) Dispositions by any Subsidiary which is not a
Loan Party to another Subsidiary, (d) Dispositions of obsolete, damaged, uneconomic or worn
out assets, or assets no longer used or useful in the conduct of the Loan Parties’ business and (e)
Dispositions consisting of Restricted Payments permitted in accordance with Section 7.7.
“Permitted Investors” means (a) any of the CIM Founding Principals, (b) any of the Key
Employees (excluding any such Key Employees who were not Key Employees at least twelve
US- DOCS\138548577.7 |
(12) months prior to obtaining a majority or more of the outstanding Equity Interests of
Borrower); (c) any Immediate Family Relative of any of the CIM Founding Principals or Key
Employees; (d) any Estate Planning Entity for the benefit of any person(s) described in clauses
(a) through (c), (e) any family charitable foundation over which any person(s) described in
subclauses (a) through (c) has direction, (f) Mitsui & Co., Ltd. and its controlled affiliates, (g)
Sabre Investments LLC and its controlled affiliates and (h) any group (as defined in section 13(d)
of the Exchange Act) containing any of the foregoing “Permitted Investors” so long as such
members of such group own and control legal and beneficially at least 50.1% of the outstanding
voting Equity Interests of the group.
“Permitted Tax Distribution” means, for each taxable year (or portion thereof) of
Borrower for which Borrower is treated as a disregarded entity or partnership for U.S. federal,
state and/or local income tax purposes, distributions to Borrower’s direct owner(s) to fund the
U.S. federal, state and/or local income tax liability of such owner(s) (or, if a direct owner is a
disregarded entity or partnership for U.S. federal, state and/or local income tax purposes, of
▇▇▇▇▇▇▇▇’s ultimate indirect owner(s)) for such taxable year (or portion thereof) attributable to
the operations and activities of Borrower (and those of any Subsidiaries that are treated as
disregarded entities or partnerships for U.S. federal, state and/or local income tax purposes), in
an amount not to exceed the product of (a) the amount of net taxable income (for the avoidance
of doubt, calculated in accordance with the assumptions and limitations set forth in this
definition) of Borrower (and ▇▇▇▇▇▇▇▇’s allocable share of the net taxable income of any
Subsidiaries that are treated as disregarded entities or partnerships for U.S. federal, state and/or
local income tax purposes) for such taxable year (or portion thereof), reduced by net taxable loss
or tax credit of ▇▇▇▇▇▇▇▇ (and ▇▇▇▇▇▇▇▇’s allocable share of the net taxable loss or tax credit of
any Subsidiaries that are treated as disregarded entities or partnerships for U.S. federal, state
and/or local income tax purposes) with respect to the current taxable year and all prior taxable
years (or portions thereof) to the extent deductible or creditable against such taxable income and
to the extent such loss or credit has not previously been applied to reduce taxable income under
this clause (a), times (b) the maximum combined U.S. federal, state and local income tax rates
applicable to such income for such taxable year (or portion thereof) applicable to an individual
residing in New York City, taking into account the character of ▇▇▇▇▇▇▇▇’s income, the
deductibility (and any limitations thereon) of state and local income taxes and the deductibility
(and any limitations thereon) of expenses.
“Person” means an individual, partnership, corporation, limited liability company,
association, trust, unincorporated organization, business entity or governmental authority.
“Plan” means an “employee benefit plan” (as defined in section 3(3) of ERISA) subject
to Title I of ERISA that is or, within the preceding five years, has been established or
maintained, or to which contributions are or, within the preceding five years, have been made or
required to be made, by Borrower or any ERISA Affiliate or with respect to which Borrower or
any ERISA Affiliate may have any liability.
“Prime Rate” means the per annum rate of interest announced by the Agent, at its main
office, from time to time as its “prime rate” (it being acknowledged that such announced rate
US- DOCS\138548577.7 |
may not necessarily be the lowest rate charged by the Agent to any of its customers), which
Prime Rate shall change simultaneously with any change in such announced rate.
“Private Rating Letter” means a letter issued by an Acceptable Rating Agency in
connection with any private debt rating for a series of the Senior Notes or Additional Senior
Notes, which (a) sets forth the Debt Rating for such series of Senior Notes or Additional Senior
Notes, as applicable, (b) refers to the Private Placement Number issued by Standard & Poor’s
CUSIP Bureau Service in respect of such series of Senior Notes or Additional Senior Notes, as
applicable, (c) addresses the likelihood of payment of both principal and interest on the Senior
Notes or Additional Senior Notes, as applicable (which requirement shall be deemed satisfied if
either (x) such letter includes confirmation that the rating reflects the Acceptable Rating
Agency’s assessment of ▇▇▇▇▇▇▇▇’s ability to make timely payment of principal and interest on
the Senior Notes or Additional Senior Notes, as applicable, or a similar statement or (y) such
letter is silent as to the Acceptable Rating Agency’s assessment of the likelihood of payment of
both principal and interest and does not include any indication to the contrary), (d) includes such
other information describing the relevant terms of the Senior Notes or Additional Senior Notes,
as applicable, as may be required from time to time by the SVO or any other Governmental
Authority having jurisdiction over any holder of the Senior Notes or Additional Senior Notes, as
applicable, and (e) shall not be subject to confidentiality provisions or other restrictions which
would prevent or limit the letter from being shared with the SVO or any other Governmental
Authority having jurisdiction over any holder of the Senior Notes or Additional Senior Notes, as
applicable.
“Private Rating Rationale Report” means, with respect to any Private Rating Letter, a
report issued by the Acceptable Rating Agency in connection with such Private Rating Letter
setting forth an analytical review of the Senior Notes or Additional Senior Notes explaining the
transaction structure, methodology relied upon, and, as appropriate, analysis of the credit, legal,
and operational risks and mitigants supporting the assigned Private Rating for the Senior Notes
or Additional Senior Notes, as applicable, in each case, on the letterhead of the Acceptable
Rating Agency or its controlled website and generally consistent with the work product that an
Acceptable Rating Agency would produce for a similar publicly rated security and otherwise in
form and substance generally required by the SVO or any other Governmental Authority having
jurisdiction over any holder of Senior Notes or Additional Senior Notes, as applicable, from time
to time. Such report shall not be subject to confidentiality provisions or other restrictions which
would prevent or limit the report from being shared with the SVO or any other Governmental
Authority having jurisdiction over any holder of Senior Notes or Additional Senior Notes.
“Preferred Stock” means any class of capital stock of a Person that is preferred over any
other class of capital stock (or similar equity interests) of such Person as to the payment of
dividends or the payment of any amount upon liquidation or dissolution of such Person.
“property” or “properties” means, unless otherwise specifically limited, real or personal
property of any kind, tangible or intangible, ▇▇▇▇▇▇ or inchoate.
“Public Market” means (a) a Public Offering has been consummated or (b) Borrower has
a class of Equity Interests registered under Section 12(b) or 12(g) of the Exchange Act.
US- DOCS\138548577.7 |
“Public Offering” means a public offering of the Equity Interests of Borrower in an
underwritten primary public offering (other than a public offering pursuant to a registration
statement on Form S-8 (or successor form)) or a direct listing, in each case, pursuant to an
effective registration statement filed with the SEC in accordance with the Securities Act
(whether alone or in connection with a secondary public offering).
“Purchases” has the meaning set forth in Section 7.5 hereof.
“Purchasing Lender” has the meaning set forth in Section 11.12(a) hereof.
“QFC Credit Support” has the meaning set forth in Section 11.24 hereof.
“Qualified Purchaser” has the meaning set forth in Section 2(a)(51)(A) of the
Investment Company Act of 1940, as amended, and the rules and regulations promulgated
thereunder, and includes any “qualified institutional buyer” as contemplated by Rule 2a51-1(g)
issued pursuant to the Investment Company Act of 1940, as amended.
“Qualified Purchaser Certificate” means a certificate delivered by a Qualified Purchaser
substantially in the form of Exhibit L.
“Recipient” means (a) the Agent or (b) any Lender.
“Register” has the meaning set forth in Section 11.8(h) hereof.
“Refinancing” means the repayment in full of all Indebtedness and other obligations
under that certain ▇▇▇▇▇▇▇ and Restated Revolving Credit Agreement, dated as of December
17, 2019, by and among CIM Group, LLC, as borrower, the lenders from time to time party
thereto and Comerica Bank, as administrative agent, as amended, restated, amended and restated,
supplemented or otherwise modified from time to time prior to the date hereof, and the
termination of all commitments to provide financial accommodations, and all Guaranties and
▇▇▇▇▇ granted, thereunder.
“Relevant Governmental Body” means the Federal Reserve Board or the Federal
Reserve Bank of New York, or a committee officially endorsed or convened by the Federal
Reserve Board or the Federal Reserve Bank of New York, or, in each case, any successor
thereto.
“Representative” has the meaning set forth in Section 11.11 hereof.
“Request for Advance” means a Request for Revolving Credit Advance or a Request for
Swing Line Advance, as the context may indicate or otherwise require.
“Request for Extension” means a written request for an Extension made by Borrower
and delivered to the Agent under Section 2.12(e).
“Request for Revolving Credit Advance” means a written request for a Revolving Credit
Advance made by Borrower under Section 2.3 substantially in the form attached hereto as
Exhibit A (or such other form to which the Agent and Borrower may agree from time to time).
US- DOCS\138548577.7 |
“Request for Swing Line Advance” means a written request for a Swing Line Advance
made by Borrower under Section 2.5(c) substantially in the form attached hereto as Exhibit B (or
such other form to which the Agent and ▇▇▇▇▇▇▇▇ may agree from time to time).
“Requirement of Law” means, as to any Person, the certificate of incorporation or
formation and the bylaws, partnership agreement or other organizational or governing documents
of such Person, and any law, treaty, rule or regulation or determination of an arbitration, a court
or other Governmental Authority, in each case applicable to or binding upon such Person or any
of its property or to which such Person or any of its property is subject.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK
Financial Institution, a UK Resolution Authority.
“Responsible Officer” means any Senior Financial Officer and any other officer of
Borrower with responsibility for the administration of the relevant portion of this Agreement.
“Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests of any Person, or any payment
(whether in cash, securities or other property), including any sinking fund or similar deposit, on
account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or
termination of any such Equity Interests or on account of any return of capital to such Person’s
stockholders, partners or members (or the equivalent Person thereof), or any option, warrant or
other right to acquire any such dividend or other distribution or payment.
“Revolving Credit” means the revolving credit made available to Borrower by the
Revolving Credit Lenders pursuant to Article 2 hereof, in an aggregate amount (subject to the
terms hereof) not to exceed, at any one time outstanding, the Revolving Credit Aggregate
Commitment.
“Revolving Credit Advance” means an Advance requested by ▇▇▇▇▇▇▇▇ and made by the
Revolving Credit Lenders under Section 2.1, including any re-advance, refunding or conversion
of such Advance pursuant to Section 2.3, and, subject to the terms hereof, may be a Base Rate
Advance or a Term SOFR Advance.
“Revolving Credit Aggregate Commitment” means, initially, Seventy-Fiveas of the
First Amendment Effective Date, One Hundred Fifty Million Dollars
($75,000,000.00150,000,000.00), as adjusted from time to time in accordance with the terms
hereof.
“Revolving Credit Commitment Amount” means, as to any Revolving Credit Lender, (i)
if the Revolving Credit Aggregate Commitment has not been terminated, the amount specified
opposite such Revolving Credit ▇▇▇▇▇▇’s name in the column entitled “Revolving Credit
Commitment Amount” on ▇▇▇▇▇ ▇▇▇, as adjusted from time to time in accordance with the terms
hereof; and (ii) if the Revolving Credit Aggregate Commitment has been terminated (whether by
maturity, acceleration or otherwise), an amount equal to its Revolving Credit Percentage of the
aggregate principal amount outstanding under the Revolving Credit (including any outstanding
Swing Line Advances).
US- DOCS\138548577.7 |
“Revolving Credit Facility Fee” means the fee payable to the Agent for distribution to
the Revolving Credit Lenders in accordance with Section 2.9.
“Revolving Credit Lenders” means the financial institutions from time to time parties
hereto as lenders under the Revolving Credit.
“Revolving Credit Notes” means the revolving credit notes described in Section 2.2, each
made by ▇▇▇▇▇▇▇▇ to the order of a Revolving Credit Lender in the form attached hereto as
Exhibit C, as such notes may be amended or supplemented from time to time, and any other
notes issued in substitution, replacement or renewal thereof from time to time.
“Revolving Credit Percentage” means, as to any Revolving Credit Lender, the
percentage specified opposite such Revolving Credit ▇▇▇▇▇▇’s name in the column entitled
“Revolving Credit Percentage” on ▇▇▇▇▇ ▇▇▇, as adjusted from time to time in accordance with
the terms hereof.
“S&P” means Standard & Poor’s Rating Services, a Standard & Poor’s Financial
Services LLC business, and any successor thereto.
“Sanctions” means any economic or financial sanctions programs or embargoes
administered or enforced by the United States Government (including OFAC), the United
Nations Security Council, the European Union, Her Majesty’s Treasury or other authority having
jurisdiction over any Loan Party or its Subsidiaries.
“SEC” means the Securities and Exchange Commission of the United States of America.
“Securities Act” means the Securities Act of 1933 and the rules and regulations
promulgated thereunder from time to time in effect.
“Senior Financial Officer” means the chief financial officer, principal accounting
officer, treasurer or comptroller of Borrower.
“Senior Notes” means, collectively, the 6.42% Series A Senior Notes due August 30,
2029, the 6.50% Series B Senior Notes due August 30, 2032 and the 6.75% Series C Senior
Notes due August 30, 2034, in each case issued by Borrower pursuant to the Senior Notes
Purchase Agreement.
“Senior Notes Purchase Agreement” means that certain Senior Notes Purchase
Agreement, dated as of August 30, 2022, by and among ▇▇▇▇▇▇▇▇ and the purchasers party
thereto, as amended, restated, amended and restated, supplemented or otherwise modified from
time to time in a manner not prohibited hereby.
“Significant Subsidiary” means, at any time, any Subsidiary that would at such time
constitute a “significant subsidiary” (as such term is defined in Regulation S-X of the SEC as in
effect on the Closing Date) of ▇▇▇▇▇▇▇▇.
“SOFR” means a rate per annum equal to the secured overnight financing rate as
administered by the SOFR Administrator.
US- DOCS\138548577.7 |
“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor
administrator of the secured overnight financing rate).
“Solvent” means that, as of any date of determination with respect to ▇▇▇▇▇▇▇▇ and its
Subsidiaries (determined on a Consolidated basis), (i) the aggregate amount of such Persons’
Indebtedness as at such date does not exceed the present fair saleable value of their assets on a
going-concern basis as at such date, (ii) such Persons’ capital as of such date is not unreasonably
small in relation to their business as contemplated on such date, (iii) such Persons have not
incurred, and do not intend to incur or believe (nor should they reasonably believe) that they will
incur, debts beyond their ability to pay as they become due (whether at maturity or otherwise),
and (iv) such Persons are “solvent” within the meaning given that term and similar terms under
any applicable Debtor Relief Law and applicable laws relating to fraudulent or avoidable
transfers and conveyances. For purposes of this definition, the amount of any contingent liability
at any time shall be the amount that could reasonably be expected to become an actual and
matured liability.
“Specified Equity Contribution” has the meaning set forth in Section 7.8(a) hereof.
“Specified Note” means that certain Promissory Noted, dated March 25, 2022, made by
Borrower in favor of CIM Group Investments, LLC, a Delaware limited liability company, in the
original aggregate principal amount of $66,000,000.
“Specified Transaction” shall mean any (i) material acquisition or investment, (ii)
material sale or transfer of assets or property or other asset disposition (including any disposal,
abandonment or discontinuance of operations), (iii) incurrence, repayment or refinancing of
Consolidated Funded Indebtedness, or (iv) other transaction, election or other event for which
this Agreement requires pro forma compliance with a test or covenant hereunder or requires such
test or covenant to be calculated on a pro forma basis.
“State Sanctions List” means a list that is adopted by any state Governmental Authority
pertaining to Persons that engage in investment or other commercial activities in Iran or any
other country that is a target of any Sanctions.
“Subsidiary” means, as to any Person, any other Person in which such first Person or one
or more of its Subsidiaries or such first Person and one or more of its Subsidiaries owns
sufficient equity or voting interests to enable it or them (as a group) ordinarily, in the absence of
contingencies, to elect a majority of the directors (or Persons performing similar functions) of
such second Person, and any partnership or joint venture if more than a 50% interest in the
profits or capital thereof is owned by such first Person or one or more of its Subsidiaries or such
first Person and one or more of its Subsidiaries (unless such partnership or joint venture can and
does ordinarily take major business actions without the prior approval of such Person or one or
more of its Subsidiaries). Unless the context otherwise clearly requires, any reference to a
“Subsidiary” is a reference to a Subsidiary of Borrower.
“Subsidiary Guarantor” means, collectively, the Original Subsidiary Guarantors and any
other Subsidiary of Borrower that may from time to time guaranty the Obligations of Borrower
pursuant to the Subsidiary Guaranty.
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“Subsidiary Guaranty” means the Subsidiary Guaranty, substantially in the form set
forth on Exhibit G hereto, dated as of the Closing Date, pursuant to which the Subsidiary
Guarantors shall jointly and severally guaranty the Obligations of Borrower, as amended,
restated, amended and restated, supplemented or otherwise modified from time to time
(including by the Guarantor Supplements).
“Supported QFC” has the meaning set forth in Section 11.24 hereof.
“SVO” means the Securities Valuation Office of the NAIC.
“Swap Contract” means (a) any and all interest rate swap transactions, basis swap
transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward foreign exchange
transactions, cap transactions, floor transactions, currency options, spot contracts or any other
similar transactions or any of the foregoing (including any options to enter into any of the
foregoing), and (b) any and all transactions of any kind, and the related confirmations, which are
subject to the terms and conditions of, or governed by, any form of master agreement published
by the International Swaps and Derivatives Association, Inc. or any International Foreign
Exchange Master Agreement.
“Swap Termination Value” means, in respect of any one or more Swap Contracts, after
taking into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination value(s), and (b) for
any date prior to the date referenced in clause (a), the amounts(s) determined as the
mark-to-market values(s) for such Swap Contracts, as determined based upon one or more
mid-market or other readily available quotations provided by any recognized dealer in such Swap
Contracts.
“Swing Line” means the revolving credit made available to Borrower by the Swing Line
Lender pursuant to Section 2.5, in an aggregate amount (subject to the terms hereof) not to
exceed, at any one time outstanding, the Swing Line Maximum Amount.
“Swing Line Advance” means an Advance requested by ▇▇▇▇▇▇▇▇ and made by the
Swing Line Lender pursuant to Section 2.5, which shall be a Base Rate Advance.
“Swing Line Lender” means City National Bank in its capacity as lender of Swing Line
Advances under Section 2.5, or its successor as subsequently designated hereunder.
“Swing Line Maximum Amount” means, initially, Twenty-Eightas of the First
Amendment Effective Date, Fifty-Six Million OneTwo Hundred Twenty-FiveFifty Thousand
Dollars ($28,125,00056,250,000), as adjusted from time to time in accordance with the terms
hereof.
“Swing Line Note” means the swing line note which may be executed by ▇▇▇▇▇▇▇▇
payable to the order of the Swing Line Lender pursuant to Section 2.5(b)(ii) hereof in the form
US- DOCS\138548577.7 |
attached hereto as Exhibit D, as such note may be amended or supplemented from time to time,
and any note or notes issued in substitution, replacement or renewal thereof from time to time.
“Swing Line Participation Certificate” means the Swing Line Participation Certificate
delivered by the Agent to each Revolving Credit Lender pursuant to Section 2.5(e)(ii) in the form
attached hereto as Exhibit E.
“Syndication Agent” means Truist Bank, in its capacity as the syndication agent
hereunder.
“Synthetic Lease” means, at any time, any lease (including leases that may be terminated
by the lessee at any time) of any property (a) that is accounted for as an operating lease under
GAAP and (b) in respect of which the lessee retains or obtains ownership of the property so
leased for U.S. federal income tax purposes, other than any such lease under which such Person
is the lessor.
“Taxes” means, all present or future taxes, levies, imposts, duties, deductions,
withholdings (including backup withholding), assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term SOFR” means
(a)for any calculation with respect to a Term SOFR Advance, the Term
SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such
day, the “Periodic Term SOFR Determination Day”) that is two (2) U.S. Government Securities
Business Days prior to the first day of such Interest Period, as such rate is published by the Term
SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any
Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable
tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement
Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be
the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on
the first preceding U.S. Government Securities Business Day for which such Term SOFR
Reference Rate for such tenor was published by the Term SOFR Administrator so long as such
first preceding U.S. Government Securities Business Day is not more than three (3) U.S.
Government Securities Business Days prior to such Periodic Term SOFR Determination Day,
and
(b)for any calculation with respect to a Base Rate Advance on any day, the
Term SOFR Reference Rate for a tenor of one month on the day (such day, the “Base Rate Term
SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to
such day, as such rate is published by the Term SOFR Administrator; provided, however, that if
as of 5:00 p.m. (New York City time) on any Base Rate Term SOFR Determination Day the
Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR
Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference
Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor
as published by the Term SOFR Administrator on the first preceding U.S. Government Securities
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Business Day for which such Term SOFR Reference Rate for such tenor was published by the
Term SOFR Administrator so long as such first preceding U.S. Government Securities Business
Day is not more than three (3) U.S. Government Securities Business Days prior to such Base
Rate Term SOFR Determination Day;
provided, further, that if Term SOFR determined as provided above (including pursuant
to the proviso under clause (a) or clause (b) above) shall ever be less than the Applicable Floor,
then Term SOFR shall be deemed to be the Applicable Floor.
“Term SOFR Administrator” means the CME Group Benchmark Administration
Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the
Agent in its reasonable discretion).
“Term SOFR Advance” means any Advance which bears interest at Term SOFR.
“Term SOFR Reference Rate” means the forward-looking term rate based on SOFR.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined
under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom
Prudential Regulation Authority) or any Person subject to IFPRU 11.6 of the FCA Handbook (as
amended from time to time) promulgated by the United Kingdom Financial Conduct Authority,
which includes certain credit institutions and investment firms, and certain affiliates of such
credit institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public
administrative authority having responsibility for the resolution of any UK Financial Institution.
“Uniform Commercial Code” or “UCC” means the Uniform Commercial Code as in
effect from time to time in any applicable jurisdiction; provided that, unless otherwise specified
or the context otherwise requires, such terms shall refer to the Uniform Commercial Code as in
effect from time to time in the State of New York.
“USA Patriot Act” means United States Public Law 107 56, Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA
PATRIOT ACT) Act of 2001 and the rules and regulations promulgated thereunder from time to
time in effect.
“U.S. Person” means any Person that is a “United States Person” as defined in
Section 7701(a)(30) of the Code.
“U.S. Special Resolution Regimes” has the meaning set forth in Section 11.24 hereof.
“U.S. Tax Compliance Certificate” has the meaning set forth in Section 11.13 hereof.
“Weighted Percentage” means, with respect to any Lender, its weighted percentage
calculated by dividing (i) its Revolving Credit Commitment Amount, by (ii) the Revolving
Credit Aggregate Commitment (or, if the Revolving Credit Aggregate Commitment has been
US- DOCS\138548577.7 |
terminated (whether by maturity, acceleration or otherwise), the aggregate principal amount
outstanding under the Revolving Credit, including any outstanding Swing Line Advances.
▇▇▇▇▇ ▇▇▇ reflects each Lender’s Weighted Percentage, and may be revised by the Agent from
time to time to reflect changes in the Weighted Percentages of the Lenders.
“Wholly-Owned Subsidiary” means, at any time, any Subsidiary all of the equity
interests (except directors’ qualifying shares, employee and profit-sharing interests) and voting
interests of which are owned by any one or more of Borrower and ▇▇▇▇▇▇▇▇’s other
Wholly-Owned Subsidiaries at such time.
“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete
or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.
“Withholding Agent” means any Loan Party and the Agent.
“Write-Down and Conversion Powers” means (a) with respect to any EEA Resolution
Authority, the write-down and conversion powers of such EEA Resolution Authority from time
to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down
and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with
respect to the United Kingdom, any powers of the applicable Resolution Authority under the
Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK
Financial Institution or any contract or instrument under which that liability arises, to convert all
or part of that liability into shares, securities or obligations of that person or any other person, to
provide that any such contract or instrument is to have effect as if a right had been exercised
under it or to suspend any obligation in respect of that liability or any of the powers under that
Bail-In Legislation that are related to or ancillary to any of those powers.
1.2Interpretive Provisions. For purposes of this Agreement:
(a)The meanings of defined terms are equally applicable to the singular and
plural forms of the defined terms.
(b)References herein to “sections,” “subsections,” “clauses,” “paragraphs,”
“subparagraphs,” “exhibits,” “annexes” and “schedules” shall be to sections, subsections,
clauses, paragraphs, subparagraphs, exhibits, annexes and schedules, respectively, of this
Agreement unless otherwise specified or unless the context otherwise clearly indicates.
(c)The terms “including” and “include” are not limiting, and mean “including
or include without limitation.”
(d)The terms “hereof”, “hereto”, “hereunder” and similar terms shall refer to
this Agreement and not to any particular paragraph or provision of this Agreement.
(e)In computing periods of time from a specified date to a later specified
date, the word “from” means “from and including”; the words “to” and “until” each mean “to but
excluding”; and the word “through” means “to and including.”
US- DOCS\138548577.7 |
(f)Unless otherwise expressly provided herein, (i) references to agreements
(including this Agreement and the other Loan Documents) and other contractual instruments
shall be deemed to include all subsequent amendments, restatements, supplements and other
modifications thereto, but only to the extent such amendments, restatements, supplements and
other modifications are not prohibited by the terms of any Loan Document, and (ii) references to
any statute or regulation shall be construed as including all statutory and regulatory provisions
amending, replacing, supplementing or interpreting such statute or regulation.
(g)References to the “ordinary course” refer to the ordinary course of
business of Borrower and its Subsidiaries, taken as a whole, unless otherwise specified.
(h)This Agreement and the other Loan Documents are the result of
negotiations among and have been reviewed by counsel to the Agent, the Lenders, Borrower and
the other parties thereto and are the products of all parties. Accordingly, they shall not be
construed against the Agent or a Lender merely because of the Agent’s or such ▇▇▇▇▇▇’s
involvement in their preparation.
1.3Accounting Terms; Divisions.
(a)Except as otherwise expressly provided herein, all accounting terms not
otherwise defined herein shall have the meanings assigned to them in conformity with GAAP. If
at any time any change in GAAP would affect the computation of any financial ratio or other
requirement set forth in any Loan Document (a “GAAP Change Event”), at ▇▇▇▇▇▇▇▇’s request
the Agent and Borrower shall negotiate in good faith to amend such ratio or requirement to
preserve the original intent thereof in light of such change in GAAP; provided, that until so
amended, each such ratio or requirement shall continue to be computed in conformity with
GAAP as in effect immediately prior to such change. Following any GAAP Change Event, and
until such ratio or requirement is so amended, Borrower shall provide with any financial
statements delivered under Sections 6.1(a) and 6.1(d) an internally-prepared reconciliation
between such financial statements and any financial information required for the computation of
such ratio or requirement in accordance with GAAP as in effect prior to such GAAP Change
Event.
(b)Notwithstanding anything to the contrary in Section 1.3(a) or in the
definition of “Capitalized Lease,” any change in accounting for leases pursuant to GAAP
resulting from the adoption of Financial Accounting Standards Board Accounting Standards
Update No. 2016-02, Leases (Topic 842) (“FAS 842”), to the extent such adoption would
require treating any lease (or similar arrangement conveying the right to use) as a capital lease
where such lease (or similar arrangement) would not have been required to be so treated under
GAAP as in effect on December 31, 2015, such lease shall not be considered a capital lease,
any lease that would have been treated as an operating lease under GAAP as in effect on
December 31, 2015 shall continue to be considered an operating lease, and all calculations and
deliverables under this Agreement or any other Loan Document shall be made or delivered, as
applicable, in accordance therewith.
US- DOCS\138548577.7 |
(c)For all purposes under the Loan Documents, in connection with any
Division, (a) if any asset, right, obligation or liability of any Dividing Person becomes the asset,
right, obligation or liability of a Division Successor, then it shall be deemed to have been
transferred from the Dividing Person to the Division Successor, and (b) any Division Successor
shall be deemed to have been organized on the first date of its existence by the holders of its
Equity Interests at such time.
1.4Rates. The Agent does not warrant or accept responsibility for, and shall not have
any liability with respect to (a) the continuation of, administration of, submission of, calculation
of or any other matter related to the Base Rate, the Term SOFR Reference Rate or Term SOFR,
or any component definition thereof or rates referred to in the definition thereof, or any
alternative, successor or replacement rate thereto (including any Benchmark Replacement),
including whether the composition or characteristics of any such alternative, successor or
replacement rate (including any Benchmark Replacement) will be similar to, or produce the same
value or economic equivalence of, or have the same volume or liquidity as, the Base Rate, the
Term SOFR Reference Rate, Term SOFR or any other Benchmark prior to its discontinuance or
unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The
Agent may select information sources or services in its reasonable discretion to ascertain the
Base Rate, Term SOFR Reference Rate, Term SOFR or any component thereof or any other
Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to
Borrower or any other Person or entity for damages of any kind, including direct or indirect,
special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort,
contract or otherwise and whether at law or in equity), for any error or calculation of any such
rate (or component thereof) provided by any such information source or service. In connection
with the use or administration of any Benchmark, the Agent will have the right to make
Conforming Changes from time to time and, notwithstanding anything to the contrary herein or
in any other Loan Document, any amendments implementing such Conforming Changes will
become effective without any further action or consent of any other party to this Agreement or
any other Loan Document. The Agent will promptly notify Borrower and the Lenders of the
effectiveness of any Conforming Changes.
1.5Pro Forma Calculations. For the avoidance of doubt:
(a)For purposes of determining compliance with any provision of this
Agreement that refers to “pro forma compliance”, “pro forma effect” or to any determination
being made on a “pro forma basis” or words of similar effect, any Specified Transaction
occurring since the first day of the most recently ended period of four consecutive fiscal quarters
for which financial statements have been (or were required to have been) delivered pursuant to
Section 6.1(a) or Section 6.1(b) shall be deemed to have occurred as of, and pro forma
adjustments arising out of events attributable to such Specified Transaction shall be made from
and after, the first day of such four fiscal quarter measurement period and continuing through the
last day of such four fiscal quarter measurement period.
(b)Upon giving effect to a transaction on a “pro forma” basis, (i) any
Indebtedness incurred by Borrower or any of its Subsidiaries in connection with such Specified
Transaction shall be deemed to be Indebtedness on the last day of such four fiscal quarter
measurement period, (ii) income statement items (whether positive or negative) and
US- DOCS\138548577.7 |
Consolidated Adjusted EBITDA attributable to all property acquired in such Specified
Transaction, or to the investment constituting such Specified Transaction, as applicable, shall be
included as if such Specified Transaction had occurred as of the first day of such four fiscal
quarter measurement period, and (iii) income statement items (whether positive or negative)
attributable to all property disposed of in any Specified Transaction shall be excluded as if such
Specified Transaction had occurred as of the first day of such four fiscal quarter measurement
period.
(c)Whenever pro forma effect is to be given to any Specified Transaction, the
pro forma calculations shall be made in good faith by a Responsible Officer of Borrower.
(d)Whenever a financial ratio or test is to be calculated on a pro forma basis,
the relevant measurement period for purposes of calculating such financial ratio or test shall be
the most recently ended four fiscal quarter period for which the financial statements of ▇▇▇▇▇▇▇▇
and its Subsidiaries have been (or were required to have been) delivered pursuant to Section
6.1(a) or Section 6.1(b), and such calculation shall be based on such financial statements.
2.REVOLVING CREDIT.
2.1Commitment. Subject to the terms and conditions of this Agreement (including
Section 2.3), each Revolving Credit Lender severally and for itself alone agrees to make
Advances of the Revolving Credit in Dollars to Borrower from time to time on any Business Day
during the period from the Closing Date until (but excluding) the Maturity Date in an aggregate
amount not to exceed at any one time outstanding such ▇▇▇▇▇▇’s Revolving Credit Percentage of
the Revolving Credit Aggregate Commitment. Subject to the terms and conditions set forth
herein, advances, repayments and re-advances may be made under the Revolving Credit.
2.2Accrual of Interest and Maturity; Evidence of Obligations.
(a)Borrower hereby unconditionally promises to pay to the Agent for the
account of each Revolving Credit Lender the then unpaid principal amount of each Revolving
Credit Advance (plus all accrued and unpaid interest) of such Revolving Credit Lender to
Borrower on the Maturity Date and on such other dates and in such other amounts as may be
required from time to time pursuant to this Agreement. Subject to the terms and conditions
hereof, each Revolving Credit Advance shall, from time to time from and after the date of such
Advance (until paid), bear interest at its Applicable Interest Rate.
(b)Each Revolving Credit Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of Borrower to the appropriate
lending office of such Revolving Credit Lender resulting from each Revolving Credit Advance
made by such lending office of such Revolving Credit Lender from time to time, including the
amounts of principal and interest payable thereon and paid to such Revolving Credit Lender from
time to time under this Agreement.
(c)The Agent shall maintain the Register pursuant to Section 11.8(h), and a
subaccount therein for each Revolving Credit Lender, in which Register and subaccounts (taken
together) shall be recorded (i) the amount of each Revolving Credit Advance made hereunder,
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the type thereof and each Interest Period applicable to any Term SOFR Advance, (ii) the amount
of any principal or interest due and payable or to become due and payable from Borrower to each
Revolving Credit Lender hereunder in respect of the Revolving Credit Advances and (iii) both
the amount of any sum received by the Agent hereunder from ▇▇▇▇▇▇▇▇ in respect of the
Revolving Credit Advances and each Revolving Credit ▇▇▇▇▇▇’s share thereof.
(d)The entries made in the Register maintained pursuant to Section 2.2(c) and
Section 11.8(h) shall, absent manifest error, to the extent permitted by applicable law, be prima
facie evidence of the existence and amounts of the obligations of Borrower therein recorded;
provided, however, that the failure of any Revolving Credit Lender or the Agent to maintain the
Register or any account, as applicable, or any error therein, shall not in any manner affect the
obligation of Borrower to repay the Revolving Credit Advances (and all other amounts owing
with respect thereto) made to Borrower by the Revolving Credit Lenders in accordance with the
terms of this Agreement.
(e)▇▇▇▇▇▇▇▇ agrees that, upon written request to the Agent by any Revolving
Credit Lender, ▇▇▇▇▇▇▇▇ will execute and deliver, to such Revolving Credit Lender, at
▇▇▇▇▇▇▇▇’s own expense, a Revolving Credit Note evidencing the outstanding Revolving Credit
Advances owing to such Revolving Credit Lender.
2.3Requests for and Refundings and Conversions of Advances. Borrower may
request an Advance (other than a Swing Line Advance, which shall be governed by Section 2.5)
of the Revolving Credit, a refund of any Revolving Credit Advance in the same type of Advance
or to convert any Revolving Credit Advance to any other type of Revolving Credit Advance only
by delivery to the Agent of a Request for Revolving Credit Advance executed by a Responsible
Officer of ▇▇▇▇▇▇▇▇, subject to the following:
(a)each such Request for Revolving Credit Advance shall set forth the
information required on the Request for Revolving Credit Advance, including:
(i)the proposed date of such Revolving Credit Advance (or the
refunding or conversion of an outstanding Revolving Credit Advance), which must be a
Business Day;
(ii)whether such Advance is a new Revolving Credit Advance or a
refunding or conversion of an outstanding Revolving Credit Advance; and
(iii)whether such Revolving Credit Advance is to be a Base Rate
Advance or a Term SOFR Advance, and, with respect to each Term SOFR Advance, the
first Interest Period applicable thereto; provided, however, that the initial Revolving
Credit Advance made under this Agreement shall be a Base Rate Advance, which may
then be converted into a Term SOFR Advance in compliance with this Agreement.
(b)each such Request for Revolving Credit Advance shall be delivered to the
Agent by 11:00 a.m. (Los Angeles time) three (3) Business Days prior to the proposed date of the
Revolving Credit Advance, except in the case of a Base Rate Advance, for which the Request for
US- DOCS\138548577.7 |
Revolving Credit Advance must be delivered by 11:00 a.m. (Los Angeles time) one (1) Business
Day prior to the proposed date for such Revolving Credit Advance;
(c)on the proposed date of such Revolving Credit Advance, the aggregate
principal amount of all Revolving Credit Advances and Swing Line Advances outstanding on
such date, after giving effect to all outstanding requests for Revolving Credit Advances and
Swing Line Advances, shall not exceed the Revolving Credit Aggregate Commitment;
(d)in the case of a Base Rate Advance, the principal amount of the initial
funding of such Advance, as opposed to any refunding or conversion thereof, shall be at least
$1,000,000 (or a larger integral multiple of $100,000) or the remainder available under the
Revolving Credit Aggregate Commitment if less than $1,000,000;
(e)in the case of a Term SOFR Advance, the principal amount of such
Advance, plus the amount of any other outstanding Revolving Credit Advance to be then
combined therewith having the same Interest Period, if any, shall be at least $2,000,000 (or a
larger integral multiple of $100,000) or the remainder available under the Revolving Credit
Aggregate Commitment if less than $2,000,000, and at any one time there shall not be in effect
more than five (5) different Interest Periods; and
(f)a Request for Revolving Credit Advance, once delivered to the Agent,
shall not be revocable by Borrower.
The Agent, acting on behalf of the Revolving Credit Lenders, may also, at its option, lend under
this Section 2.3 upon the telephone or email request of a Responsible Officer of Borrower to
make such requests and, in the event the Agent, acting on behalf of the Revolving Credit
Lenders, makes any such Advance upon a telephone or email request, a Responsible Officer of
Borrower shall fax or deliver by electronic file to the Agent, on the same day as such telephone
or email request, an executed Request for Revolving Credit Advance.Borrower hereby
authorizes the Agent to disburse Advances under this Section 2.3 pursuant to the telephone or
email instructions of any person purporting to be a Responsible Officer of Borrower.
Notwithstanding the foregoing, Borrower acknowledges that Borrower shall bear all risk of loss
resulting from disbursements made upon any telephone or email request. Each telephone or
email request for an Advance from a Responsible Officer ofBorrower shall constitute a
certification of the matters set forth in the Request for Revolving Credit Advance form as of the
date of such requested Advance.
2.4Disbursement of Advances.
(a)Upon receiving any Request for Revolving Credit Advance from Borrower
under Section 2.3, the Agent shall promptly notify each Revolving Credit Lender by wire, telex
or telephone (confirmed by wire, telecopy or telex) of the amount of such Advance being
requested and the date such Revolving Credit Advance is to be made by each Revolving Credit
Lender in an amount equal to its Revolving Credit Percentage of such Advance. Unless such
Revolving Credit ▇▇▇▇▇▇’s commitment to make Revolving Credit Advances hereunder shall
have been suspended or terminated in accordance with this Agreement, each such Revolving
US- DOCS\138548577.7 |
Credit Lender shall make available the amount of its Revolving Credit Percentage of each
Revolving Credit Advance in immediately available funds to the Agent by no later than 8:00
a.m. (Los Angeles time) on the date specified in the related Request for Revolving Credit
Advance.
(b)Subject to the fulfillment of all applicable conditions set forth herein, the
Agent shall make available to Borrower the aggregate of the amounts so received by it from the
Revolving Credit Lenders in like funds and currencies by no later than 10:00 a.m. (Los Angeles
time) on the date specified in the related Request for Revolving Credit Advance, by wire-transfer
of such proceeds to the account specified in the related Request for Revolving Credit Advance.
(c)The Agent shall deliver the documents and papers received by it for the
account of each Revolving Credit Lender to such Revolving Credit Lender. Unless the Agent
shall have been notified by any Revolving Credit Lender prior to the date of any proposed
Revolving Credit Advance that such Revolving Credit Lender does not intend to make available
to the Agent such Revolving Credit ▇▇▇▇▇▇’s Percentage of such Advance, the Agent may
assume that such Revolving Credit Lender has made such amount available to the Agent on such
date, as aforesaid. The Agent may, but shall not be obligated to, make available to Borrower the
amount of such payment in reliance on such assumption. If such amount is not in fact made
available to the Agent by such Revolving Credit Lender, as aforesaid, the Agent shall be entitled
to recover such amount on demand from such Revolving Credit Lender. If such Revolving
Credit Lender does not pay such amount forthwith upon the Agent’s demand therefor and the
Agent has in fact made a corresponding amount available to Borrower, the Agent shall promptly
notify Borrower and Borrower shall pay such amount to the Agent, if such notice is delivered to
Borrower prior to 12:00 p.m. (Los Angeles time) on a Business Day, on the day such notice is
received, and otherwise on the next Business Day, and such amount paid by Borrower shall be
applied as a prepayment of the Revolving Credit (without any corresponding reduction in the
Revolving Credit Aggregate Commitment), reimbursing the Agent for having funded said
amounts on behalf of such Revolving Credit Lender. Borrower shall retain its claim against such
Revolving Credit Lender with respect to the amounts repaid by it to the Agent and, if such
Revolving Credit Lender subsequently makes such amounts available to the Agent, the Agent
shall promptly make such amounts available to Borrower as a Revolving Credit Advance. The
Agent shall also be entitled to recover from such Revolving Credit Lender or Borrower, as the
case may be, but without duplication, interest on such amount in respect of each day from the
date such amount was made available by the Agent to Borrower, to the date such amount is
recovered by the Agent, at a rate per annum equal to:
(i)in the case of such Revolving Credit Lender, for the first two (2)
Business Days such amount remains unpaid, the Federal Funds Effective Rate, and
thereafter, at the rate of interest then applicable to such Revolving Credit Advances (plus
any administrative, processing or similar fees assessed by Agent in connection with the
foregoing); and
(ii)in the case of ▇▇▇▇▇▇▇▇, the rate of interest then applicable to such
Advance of the Revolving Credit.
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Until such Revolving Credit Lender has paid the Agent such amount, such Revolving Credit
Lender shall have no interest in or rights with respect to such Advance for any purpose
whatsoever. The obligation of any Revolving Credit Lender to make any Revolving Credit
Advance hereunder shall not be affected by the failure of any other Revolving Credit Lender to
make any Advance hereunder, and no Revolving Credit Lender shall have any liability to
Borrower or any of its Subsidiaries, the Agent, any other Revolving Credit Lender, or any other
party for another Revolving Credit ▇▇▇▇▇▇’s failure to make any loan or Advance hereunder.
2.5Swing Line.
(a)Swing Line Advances. The Swing Line Lender may, on the terms and
subject to the conditions hereinafter set forth (including in Section 2.5(c)), but shall not be
required to, make one or more Advances (each such advance being a “Swing Line Advance”) to
Borrower from time to time on any Business Day during the period from the Closing Date until
(but excluding) the Maturity Date in an aggregate amount not to exceed at any one time
outstanding the Swing Line Maximum Amount. On the terms and subject to the conditions set
forth herein, advances, repayments and re-advances may be made under the Swing Line.
(b)Accrual of Interest and Maturity; Evidence of Obligations.
(i)The Swing Line Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of Borrower to the Swing
Line Lender resulting from each Swing Line Advance from time to time, including the
amount and date of each Swing Line Advance, its Applicable Interest Rate, its Interest
Period, if any, and the amount and date of any repayment made on such Swing Line
Advance from time to time. The entries made in the Swing Line Lender’s account or
accounts shall be prima facie evidence, absent manifest error, of the existence and
amounts of Borrower’s obligations therein recorded; provided, however, that the Swing
Line Lender’s failure to maintain any such account or accounts, as applicable, or any
error therein, shall not in any manner affect Borrower’s obligation to repay the Swing
Line Advances (and all other amounts owing with respect thereto) in accordance with the
terms of this Agreement.
(ii)▇▇▇▇▇▇▇▇ agrees that, upon Swing Line ▇▇▇▇▇▇’s written request,
Borrower will execute and deliver to the Swing Line Lender a Swing Line Note.
(iii)Borrower unconditionally promises to pay to the Swing Line
Lender the then unpaid principal amount of any Swing Line Advances (plus all accrued
and unpaid interest) on the Maturity Date and on such other dates and in such other
amounts as may be required from time to time pursuant to this Agreement. Subject to the
terms and conditions hereof, each Swing Line Advance shall, from time to time after the
date of such Advance (until paid), bear interest at its Applicable Interest Rate.
(c)Requests for Swing Line Advances. Borrower may request a Swing Line
Advance by delivering to the Swing Line Lender a Request for Swing Line Advance executed by
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a Responsible Officer of ▇▇▇▇▇▇▇▇. The Swing Line Lender’s obligation to make the requested
Swing Line Advance shall be subject to satisfaction of all of the following conditions:
(i)such Request for Swing Line Advance shall set forth the
information required on the Request for Swing Line Advance, including (A) the proposed
date of such Swing Line Advance, which must be a Business Day and (B) any other
information required on the Request for Swing Line Advance;
(ii)on the proposed date of such Swing Line Advance, after giving
effect to all outstanding requests for Swing Line Advances made by Borrower as of such
date, the aggregate principal amount of all outstanding Swing Line Advances shall not
exceed the Swing Line Maximum Amount;
(iii)on the proposed date of such Swing Line Advance, after giving
effect to all outstanding requests for Revolving Credit Advances and Swing Line
Advances made by ▇▇▇▇▇▇▇▇ as of such date, the aggregate principal amount of all
outstanding Revolving Credit Advances and Swing Line Advances shall not exceed the
Revolving Credit Aggregate Commitment;
(iv)the principal amount of the requested Swing Line Advance shall be
at least Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00), or such lesser
amount to which the Swing Line Lender may agree;
(v)each such Request for Swing Line Advance shall be delivered to
the Swing Line Lender not later than 10:00 a.m. (Los Angeles time) on the proposed date
of such Swing Line Advance; and
(vi)each Request for Swing Line Advance, once delivered to the
Swing Line Lender, shall be irrevocable.
Unless sooner paid pursuant to the provisions hereof, the principal amount of the Swing Line
Advances shall be paid in full, together with accrued interest thereon, on the Maturity Date. The
Agent may, at its option, also elect to make Swing Line Advances upon ▇▇▇▇▇▇▇▇’s telephone
requests on the basis set forth in the last paragraph of Section 2.3, provided that ▇▇▇▇▇▇▇▇
complies with the provisions of this Section 2.5.
(d)Disbursements of Swing Line Advances. Upon receiving any executed
Request for Swing Line Advance from Borrower and the satisfaction of the conditions set forth
in Section 2.5(c), the Swing Line Lender shall, at its option, make the requested amount
available to Borrower in Dollars not later than 2:00 p.m. (Los Angeles time) on the date of such
Swing Line Advance, by credit to an account of ▇▇▇▇▇▇▇▇ maintained with the Agent or to such
other account or third party as Borrower may reasonably direct in writing, subject to applicable
law, provided such direction is timely given. The Swing Line Lender shall promptly notify the
Agent of any Swing Line Advance by telephone, telex or telecopier.
(e)Refunding of or Participation Interest in Swing Line Advances.
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(i)The Agent, at any time in its sole and absolute discretion, may, in
each case on behalf of Borrower (which hereby irrevocably directs the Agent to act on its
behalf), request each of the Revolving Credit Lenders (including the Swing Line Lender
in its capacity as a Revolving Credit Lender) to make an Advance of the Revolving
Credit to Borrower, in an amount equal to such Revolving Credit ▇▇▇▇▇▇’s Revolving
Credit Percentage of the aggregate principal amount of the Swing Line Advances
outstanding on the date such notice is given (the “Refunded Swing Line Advances”).
The applicable Revolving Credit Advances used to refund any Swing Line Advances
shall be Base Rate Advances. In connection with the making of any such Refunded
Swing Line Advances or the purchase of a participation interest in Swing Line Advances
under Section 2.5(e)(ii), the Swing Line Lender shall retain its claim against Borrower for
any unpaid interest or fees in respect thereof accrued to the date of such refunding.
Unless any of the events described in Section 8.1(g) or Section 8.1(h) shall have occurred
(in which event the procedures of Section 2.5(e)(ii) shall apply) and regardless of whether
the conditions precedent set forth in this Agreement to the making of a Revolving Credit
Advance are then satisfied (but subject to Section 2.5(e)(iii)), each Revolving Credit
Lender shall make the proceeds of its Revolving Credit Advance available to the Agent
for the benefit of the Swing Line Lender at the office of the Agent specified in
Section 2.4(a) prior to 8:00 a.m. (Los Angeles time) on the Business Day next succeeding
the date such notice is given, in immediately available funds. The proceeds of such
Revolving Credit Advances shall be immediately applied to repay the Refunded Swing
Line Advances, subject to the provisions of Section 3.1.
(ii)If, prior to the making of an Advance of the Revolving Credit
pursuant to Section 2.5(e)(i), one of the events described in Section 8.1(g) or
Section 8.1(h) shall have occurred, each Revolving Credit Lender will, on the date such
Advance of the Revolving Credit was to have been made, purchase from the Swing Line
Lender an undivided participating interest in each Swing Line Advance that was to have
been refunded in an amount equal to its Revolving Credit Percentage of such Swing Line
Advance. Each Revolving Credit Lender within the time periods specified in
Section 2.5(e)(i), as applicable, shall immediately transfer to the Agent, for the benefit of
the Swing Line Lender, in immediately available funds, an amount equal to its Revolving
Credit Percentage of the aggregate principal amount of all Swing Line Advances
outstanding as of such date. Upon receipt thereof, the Agent will deliver to such
Revolving Credit Lender a Swing Line Participation Certificate evidencing such
participation.
(iii)Each Revolving Credit Lender’s obligation to make Revolving
Credit Advances to refund Swing Line Advances, and to purchase participation interests,
in accordance with Sections 2.5(e)(i) and 2.5(e)(ii), respectively, shall be absolute and
unconditional and shall not be affected by any circumstance, including (A) any set-off,
counterclaim, recoupment, defense or other right which such Revolving Credit Lender
may have against Swing Line Lender, Borrower or any other Person for any reason
whatsoever; (B) the occurrence or continuance of any Default or Event of Default; (C)
any adverse change in the condition (financial or otherwise) of Borrower or any other
Person; (D) any breach of this Agreement or any other Loan Document by Borrower or
US- DOCS\138548577.7 |
any other Person; (E) any inability of Borrower to satisfy the conditions precedent to
borrowing set forth in this Agreement on the date upon which such Revolving Credit
Advance is to be made or such participating interest is to be purchased; (F) the
termination of the Revolving Credit Aggregate Commitment hereunder; or (G) any other
circumstance, happening or event whatsoever, whether or not similar to any of the
foregoing. If any Revolving Credit Lender does not make available to the Agent the
amount required pursuant to Sections 2.5(e)(i) or 2.5(e)(ii), as the case may be, the Agent
on behalf of the Swing Line Lender, shall be entitled to recover such amount on demand
from such Revolving Credit Lender, together with interest thereon for each day from the
date of non-payment until such amount is paid in full (x) for the first two (2) Business
Days such amount remains unpaid, at the Federal Funds Effective Rate and (y) thereafter,
at the rate of interest then applicable to such Swing Line Advances. The obligation of
any Revolving Credit Lender to make available its pro rata portion of the amounts
required pursuant to Sections 2.5(e)(i) or 2.5(e)(ii) shall not be affected by the failure of
any other Revolving Credit Lender to make such amounts available, and no Revolving
Credit Lender shall have any liability to any Loan Party, the Agent, the Swing Line
Lender, or any other Revolving Credit Lender or any other party for another Revolving
Credit Lender’s failure to make available the amounts required under Sections 2.5(e)(i) or
2.5(e)(ii).
(iv)Notwithstanding the foregoing, no Revolving Credit Lender shall
be required to make any Revolving Credit Advance to refund a Swing Line Advance or to
purchase a participation in a Swing Line Advance if at least two (2) Business Days prior
to the making of such Swing Line Advance by the Swing Line Lender, the officers of the
Swing Line Lender immediately responsible for matters concerning this Agreement shall
have received written notice from the Agent or any Lender that Swing Line Advances
should be suspended based on the occurrence and continuance of a Default or Event of
Default and stating that such notice is a “notice of default”; provided, however that the
obligation of the Revolving Credit Lenders to make or refund such Swing Line Advance
or purchase a participation in such Swing Line Advance) shall be reinstated upon the date
on which such Default or Event of Default has been waived by the requisite Lenders.
2.6Interest Payments; Default Interest.
(a)Subject to clause (e) of this Section 2.6, all Advances hereunder shall bear
interest at a per annum interest rate equal to the Applicable Interest Rate for such Advances.
(b)Accrued interest on (x) each Base Rate Advance of the Revolving Credit
and Swing Line Advance shall be payable in immediately available funds quarterly in arrears on
the first Business Day of each calendar quarter (in respect of the prior calendar quarter or any
portion thereof), and (y) each Term SOFR Advance of the Revolving Credit shall be payable in
immediately available funds on the last day of the Interest Period applicable thereto (and, if any
Interest Period shall exceed three months, then on the last Business Day of the third month of
such Interest Period, and at three month intervals thereafter), and in each case at such other times
as may be specified herein; provided that (i) interest accrued pursuant to clause (e) of this
Section 2.6 shall be payable on demand, (ii) in the event of any repayment or prepayment of any
US- DOCS\138548577.7 |
Revolving Credit Advance or Swing Line Advance (other than a prepayment of a Base Rate
Advance prior to the Maturity Date), accrued interest on the principal amount repaid or prepaid
shall be payable on the date of such repayment or prepayment, and (iii) in the event of any
conversion of any Term SOFR Advance prior to the end of the Interest Period therefor, accrued
interest on such Advance shall be payable on the effective date of such conversion.
(c)Interest accruing in respect of any Advance shall be computed on the basis
of a 360-day year (other than to the extent bearing interest based on clause (a) of the definition of
Base Rate, which shall be based on the basis of a 365-day year) and assessed for the actual
number of days elapsed.
(d)Notwithstanding anything to the contrary in the preceding sections, all
accrued and unpaid interest on any Revolving Credit Advance refunded or converted pursuant to
Section 2.3 and any Swing Line Advance refunded pursuant to Section 2.5(e), shall be due and
payable in full on the date such Advance is refunded or converted.
(e)Upon the occurrence and during the continuance of any Default or Event
of Default, all Obligations shall bear interest, after as well as before judgment, at the Default
Rate, and all accrued and unpaid interest all Revolving Credit Advances and Swing Line
Advances shall be payable on demand.
2.7Optional Prepayments.
(a)(i) Borrower may prepay all or part of the outstanding principal of any
Base Rate Advance of the Revolving Credit at any time (subject to delivery of written notice
thereof to the Agent by no later than 11:00 a.m. (Los Angeles time) one (1) Business Day prior to
the date of such prepayment), and (ii) subject to Section 2.10(d), Borrower may prepay all or part
of the outstanding principal of any Term SOFR Advance of the Revolving Credit at any time
(subject to delivery of written notice thereof to the Agent by no later than 11:00 a.m. (Los
Angeles time) three (3) Business Days prior to the date of such prepayment ).
(b)Borrower may prepay all or part of the outstanding principal of any Swing
Line Advance carried at the Base Rate at any time (subject to delivery of written notice thereof to
the Agent by no later than 11:00 a.m. (Los Angeles time) on the date of such prepayment).
(c)Any prepayment of a Base Rate Advance made in accordance with this
Section 2.7 shall be without premium or penalty, and any prepayment of any other type of
Advance shall be subject to the provisions of Section 3.1, but otherwise without premium or
penalty.
2.8Base Rate Advance in Absence of Election or Upon Default. If, if on the last day
of the applicable Interest Period a Default or an Event of Default shall have occurred and be
continuing, then, on the last day of the applicable Interest Period the principal amount of any
Term SOFR Advance which has not been prepaid shall, absent a contrary election of the
Majority Lenders, be converted automatically to a Base Rate Advance and the Agent shall
thereafter promptly notify ▇▇▇▇▇▇▇▇ in writing of said action. All accrued and unpaid interest on
US- DOCS\138548577.7 |
any Advance converted to a Base Rate Advance under this Section 2.8 shall be due and payable
in full on the date such Advance is converted.
2.9Revolving Credit Facility Fee. Borrower shall pay to the Agent for distribution to
the Revolving Credit Lenders pro-rata in accordance with their respective Revolving Credit
Percentages, a Revolving Credit Facility Fee, which shall accrue quarterly from the Closing Date
and be payable in arrears on the first Business Day of each calendar quarter (in respect of the
prior calendar quarter or any portion thereof), commencing January 2, 2023 and on the Maturity
Date. The Revolving Credit Facility Fee payable to the Revolving Credit Lenders shall be
determined by multiplying the Applicable Fee Percentage by the average daily unused amount of
the Revolving Credit Aggregate Commitment then in effect; provided that the amount of
outstanding Swing Line Advances shall not be considered usage of the Revolving Credit
Aggregate Commitment for the purpose of calculating the Revolving Credit Facility Fee. The
Revolving Credit Facility Fee shall be computed on the basis of a year of three hundred sixty
(360) days and assessed for the actual number of days elapsed. Upon its receipt of each such
payment, the Agent shall make prompt payment to each Revolving Credit Lender of its share of
the Revolving Credit Facility Fee based upon its respective Revolving Credit Percentage. It is
expressly understood that the Revolving Credit Facility Fee payments described in this Section
2.9 are not refundable.
2.10Mandatory Repayment of Revolving Credit Advances.
(a)If at any time and for any reason that the aggregate outstanding principal
amount of Revolving Credit Advances plus Swing Line Advances exceeds the Revolving Credit
Aggregate Commitment, ▇▇▇▇▇▇▇▇ shall immediately repay Revolving Credit Advances and
Swing Line Advances in an amount equal to the amount of such excess. Borrower acknowledges
that, in connection with any repayment required hereunder, it shall also be responsible for the
reimbursement of any prepayment or other costs required under Section 3.1.
(b)Within ten (10) Business Days following the first date any series of the
Senior Notes or Additional Senior Notes fails to have an Investment Grade Rating (a “Below
Investment Grade Rating Event”), Borrower shall give written notice of such event (a “Below
Investment Grade Rating Notice”) to the Agent, which Below Investment Grade Rating Notice
shall describe the facts and circumstances of such ratings downgrade in reasonable detail. OnBy
no later than the date that is ten (10) Business Days prior to (x) any Below Investment Grade
Rating Prepayment Date (as defined in the Senior Notes Purchase Agreement) or (y) such other
date on which Borrower is required to redeem any Senior Notes or Additional Senior Notes as a
result of a Below Investment Grade Rating Event, Borrower shall also, by written notice to the
Agent for distribution to the Lenders, offer (each such offer, a “Commitment Termination
Offer”) to permanently reduce the Revolving Credit Aggregate Commitment by an amount equal
to the result of (i) the aggregate principal amount of Senior Notes and Additional Senior Notes
so redeemed by Borrower divided by (ii) the aggregate principal amount of all then outstanding
Senior Notes and Additional Senior Notes at the time of such Commitment Termination Offer
multiplied by (iii) the then-outstanding Revolving Credit Aggregate Commitment at the time of
such Commitment Termination Offer. To accept a Commitment Termination Offer, a Lender or
US- DOCS\138548577.7 |
the Swing Line Lender, as the case may be, shall deliver a written notice of such acceptance
(each such acceptance, a “Commitment Termination Acceptance”) to the Agent and Borrower
within ten (10) Business Days of Borrower’s delivery of such Commitment Termination Offer to
Agent. If any Lender or the Swing Line Lender does not deliver a Commitment Termination
Acceptance to the Agent and Borrower within such ten (10) Business Day period, then such
Lender or the Swing Line Lender, as the case may be, shall be deemed to have rejected such
Commitment Termination Offer. If at any time following the receipt of any Commitment
Termination Acceptance the aggregate outstanding principal amount of Revolving Credit
Advances and Swing Line Advances exceeds the Revolving Credit Aggregate Commitment after
giving effect to such Commitment Termination Acceptance, Borrower shall immediately
repay Revolving Credit Advances and Swing Line Advances in an amount equal to the amount of
such excess. If less than all Lenders and the Swing Line Lender, collectively, deliver a
Commitment Termination Acceptance within such ten (10) Business Day period, then the
amount of such commitment reduction shall be applied to the Revolving Credit Commitment
Amount of the Persons that delivered a Commitment Termination Acceptance (to the extent such
person had elected) notwithstanding any pro rata sharing provisions otherwise set forth in this
Agreement. Such commitment reduction shall become effective on the Below Investment
Grade Rating Prepayment Date (as defined in the Senior Notes Purchase Agreement) or
such other date on which Borrower is required to redeem any Senior Notes or Additional
Senior Notes as a result of a Below Investment Grade Rating Event; provided, that, if the
aggregate outstanding principal amount of Revolving Credit Advances and Swing Line Advances
exceeds the Revolving Credit Aggregate Commitment after giving effect to such commitment
reduction, Borrower shall, concurrently with such commitment reduction, repay Revolving
Credit Advances and Swing Line Advances in an amount equal to the amount of such excess.
Nothing in this Section 2.10(b) shall be construed to limit the rights or remedies of the Agent or
the Lenders following a Default or Event of Default.
(c)Subject to the provisions of Section 9.2, any payments made pursuant to
this Section 2.10 shall be applied first to outstanding Base Rate Advances under the Revolving
Credit, next to Swing Line Advances, and then to Term SOFR Advances under the Revolving
Credit.
(d)To the extent that, on the date any mandatory repayment of the Revolving
Credit Advances under this Section 2.10 or payment pursuant to the terms of any of the Loan
Documents is due, the Obligations under the Revolving Credit or any other Obligations to be
prepaid is being carried, in whole or in part, at Term SOFR and no Default or Event of Default
has occurred and is continuing, Borrower may deposit the amount of such mandatory prepayment
in a cash collateral account to be held by the Agent, for and on behalf of the Revolving Credit
Lenders, on such terms and conditions as are reasonably acceptable to the Agent and upon such
deposit the obligation of Borrower to make such mandatory prepayment shall be deemed
satisfied. Subject to the terms and conditions of said cash collateral account, sums on deposit in
said cash collateral account shall be applied (until exhausted) to reduce the principal balance of
the Revolving Credit on the last day of each Interest Period attributable to the Term SOFR
Advances of such Revolving Credit, thereby avoiding breakage costs under Section 3.1;
provided, however, that if a Default or Event of Default shall have occurred at any time while
US- DOCS\138548577.7 |
sums are on deposit in the cash collateral account, the Agent may, in its sole discretion, elect to
apply such sums to reduce the principal balance of such Term SOFR Advances prior to the last
day of the applicable Interest Period, and Borrower will be obligated to pay any resulting
breakage costs under Section 3.1.
2.11[Reserved].
2.12Extension of Maturity Date. Borrower shall have an option to extend the Maturity
Date then in effect for up to two (2) additional terms following the Closing Date (each, an
“Extension”), each not longer than twelve (12) months, subject to satisfaction of the following
conditions precedent:
(a)each of the extending Lenders (such Lenders, the “Extending Lenders”),
the Swing Line Lender and the Agent in its sole discretion shall have consented to, and obtained
credit approval for, such Extension;
(b)as of the effective date of such Extension and immediately after giving
effect thereto, the representations and warranties set forth herein and in the other Loan
Documents are true and correct in all material respects with the same force and effect as if made
on and as of such date (other than any representation or warranty that expressly speaks as of a
different date, in which case such representation and warranty shall be true and correct in all
material respects as of such different date); provided that any such representations and warranties
which are qualified by materiality, Material Adverse Effect or similar language shall be true and
correct in all respects;
(c)Borrower shall have paid the Extension Fee to the Agent for the ratable
benefit of the Extending Lenders consenting to such Extension;
(d)no Event of Default shall have occurred and be continuing on the date on
which notice is given in accordance with the following clause (e) or on the effective date of such
Extension; and
(e)Borrower shall have delivered, by no later than the date that is thirty (30)
days prior to the Maturity Date subject to Extension, a Request for Extension to the Agent
(which shall be promptly forwarded by the Agent to each Lender).
2.13Commitment Increase.
(a)Borrower may, on one occasion, by written notice to the Agent, request an
increase to the Revolving Credit Aggregate Commitment (a “Commitment Increase”; and the
effective date of such Commitment Increase, the “Commitment Increase Effective Date”), in an
aggregate amount not to exceed $125,000,000, from and after the First Amendment Effective
Date, $50,000,000. Such Commitment Increase may only be provided by an Eligible Assignee
(any such Eligible Assignee, an “Additional Lender”); provided, that, in no event shall any
existing Lender be obligated to provide any such Commitment Increase.
US- DOCS\138548577.7 |
(b)Such Commitment Increase shall become effective, as of the Commitment
Increase Effective Date, so long as:
(i)the conditions set forth in Section 4.2 shall have be satisfied as of
the Commitment Increase Effective Date, mutatis mutandis; provided, that,
satisfaction of the conditions set forth in clauses (c), and (d) of such Section 4.2
shall only be required to the extent that any Advances are made on such
Commitment Increase Effective Date;
(ii)such Commitment Increase shall be in an aggregate principal
amount that is not less than $100,000 and increments of $100,000 in excess
thereof;
(iii)the Agent shall have received (A) customary legal opinions
addressed to the LenderLenders, board resolutions and officers’ certificates
consistent with those delivered on the Closing Date and (B) such other documents
as may be reasonably requested by the Agent; and
(iv)Borrower shall have paid any fees that are payable to the Agent
and the Additional Lenders as mutually agreed and shall have reimbursed the
Agent for all costs and expenses of the Lender in connection therewith that are
reimbursable by ▇▇▇▇▇▇▇▇ pursuant to the terms of this Agreement.
(c)Any Commitment Increase shall be deemed for all purposes of this
Agreement and the other Loan Documents as an increase to the Revolving Credit Aggregate
Commitment, having the same terms and conditions applicable thereto as are applicable to the
commitments provided to Borrower on the Closing Date. Such Commitment Increase shall be
effected by an amendment to this Agreement (a “Commitment Increase Amendment”) executed
by ▇▇▇▇▇▇▇▇, the Agent, the Swing Line Lender and the Additional Lenders, in form and
substance reasonably satisfactory to each of them, which shall include an amendment to Annex
III hereto to give effect to such Commitment Increase. The Commitment Increase Amendment
may, without the consent of any other Person, effect such amendments to this Agreement and the
other Loan Documents as may be necessary or appropriate (which may be in the form of an
amendment and restatement of this Agreement), in the opinion of the Agent and ▇▇▇▇▇▇▇▇, to
effect the provisions of this Section 2.13.
(d)Upon the effectiveness of the Commitment Increase, (i) the Swing Line
Maximum Amount shall also be increased on a ratable basis (it being understood and agreed that
in no event shall the Swing Line Maximum Amount exceed Seventy-Five Million Dollars
($75,000,000)), (ii) each Lender immediately prior to such Commitment Increase will
automatically and without further act be deemed to have assigned to each Additional Lender, and
each Additional Lender will automatically and without further act be deemed to have assumed, a
portion of such ▇▇▇▇▇▇’s participations hereunder in any outstanding Swing Line Advances, such
that, after giving effect to each deemed assignment and assumption of participations, all of the
Lenders’ (including each such Additional ▇▇▇▇▇▇’s) participations hereunder in outstanding
Swing Line Advances shall be held based on their Revolving Credit Percentage (determined after
giving effect to such Commitment Increase) and (iii) the existing Lenders will automatically and
US- DOCS\138548577.7 |
without further act be deemed to have assigned outstanding Revolving Credit Advances to the
other Lenders (including the Additional Lenders), and such other Lenders (including the
Additional Lenders) will automatically and without further act be deemed to have purchased
such Revolving Credit Advances, in each case, to the extent necessary so that all of the Lenders
participate in each outstanding borrowing of Revolving Credit Advances based on their
Revolving Credit Percentage (determined after giving effect to any such Commitment Increase);
it being understood and agreed 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 this Section 2.13(d).
3.YIELD PROTECTION; INCREASED COSTS; MARGIN ADJUSTMENTS;
TAXES.
3.1Reimbursement of Prepayment Costs. In the event of (a) the payment of any
principal of any Term SOFR Advance other than on the last day of the Interest Period
applicable thereto (including as a result of an Event of Default), (b) the conversion of any Term
SOFR Advance other than on the last day of the Interest Period applicable