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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR
15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
May 22, 2024
Walker &
Dunlop, Inc.
(Exact name of registrant as specified in its charter)
Maryland |
|
001-35000 |
|
80-0629925 |
(State or other jurisdiction of
incorporation) |
|
(Commission File Number) |
|
(IRS Employer Identification No.) |
7272 Wisconsin Avenue
Suite 1300
Bethesda, MD |
|
20814 |
(Address of principal executive offices) |
|
(Zip Code) |
Registrant’s telephone number, including
area code: (301) 215-5500
Not applicable
(Former name or former address, if changed since
last report.)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title
of each class |
|
Trading
Symbol(s) |
|
Name
of each exchange on which registered |
Common
Stock, $0.01 Par Value Per Share |
|
WD |
|
New York Stock Exchange |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2
of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
¨
Emerging growth company
¨
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for
complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange
Act.
Item 1.01. Entry into a Material Definitive
Agreement.
On May 22, 2024, Walker & Dunlop, Inc. (the
“Company”) entered into Amendment No. 2 (the “Amendment”) to the Credit Agreement, dated as of December
16, 2021, by and among the Company, as borrower, JPMorgan Chase Bank, N.A., a national banking association (“JPM”),
as administrative agent (in such capacity, the “Administrative Agent”), the several banks and other financial institutions
or entities from time to time party thereto (the “Lenders”), and the other parties thereto (as amended by that certain
Lender Joinder Agreement and Amendment No. 1, dated as of January 12, 2023, and as further amended, restated, modified and supplemented
from time to time, the “Credit Agreement”).
The Company entered into the Amendment to, among
other things, refinance existing Incremental Term B Loans (as defined in the Credit Agreement) outstanding under the Credit Agreement
with an aggregate principal amount of $198,000,000 that bear interest at a rate of adjusted Term SOFR plus 3.00% per annum, pursuant to
an additional tranche of Initial Term Loans (as defined in the Credit Agreement) totaling $198,000,000, that is part of and fungible with
the existing tranche of Initial Term Loans (the “Additional Initial Term Loans”), and bear interest at a rate of adjusted
Term SOFR plus 2.25%.
The foregoing description of the Amendment does
not purport to be complete and is qualified in its entirety by reference to the Amendment, which is filed as Exhibit 10.1 to this Current
Report on Form 8-K.
JPM and its affiliates have various relationships
with the Company and its affiliates involving the provision of financial services, including another credit facility under which an affiliate
of the Company is a borrower, and investment banking.
Item 2.03. Creation of a Direct Financial Obligation
or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information set forth in Item 1.01 of this
Current Report on Form 8-K is incorporated by reference into this Item 2.03.
Item 9.01. Financial Statements and Exhibits.
Exhibit
Number |
|
Description |
10.1 |
|
Amendment No. 2, dated as of May 22, 2024, to the Credit Agreement, dated as of December 16, 2021, by and among the Company, as borrower, JPMorgan Chase Bank, N.A., a national banking association, as administrative agent and an Incremental Term B Lender, the several banks and other financial institutions or entities from time to time party thereto, and the other parties thereto (as amended by that certain Lender Joinder Agreement and Amendment No. 1, dated as of January 12, 2023). |
104 |
|
Cover Page Interactive Data File (formatted as inline XBRL and contained in Exhibit 101) |
SIGNATURES
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
|
|
Walker & Dunlop, Inc. |
|
|
(Registrant) |
|
|
|
Date:
May 24, 2024 |
By: |
/s/ Gregory A. Florkowski |
|
|
Gregory A. Florkowski
Executive Vice President and Chief Financial Officer |
Exhibit 10.1
Execution Version
AMENDMENT
No. 2, dated as of May 22, 2024 (this “Amendment”), to the Credit Agreement dated as of December 16, 2021,
among WALKER & DUNLOP, INC., a Maryland corporation (the “Borrower”), the several banks and other financial institutions
or entities from time to time parties to the Credit Agreement (the “Lenders”), JPMORGAN CHASE BANK N.A., as Administrative
Agent (in such capacity, the “Administrative Agent”), and the other parties thereto (as amended by that certain Amendment
No. 1 to First Lien Credit Agreement, dated as of January 12, 2023, and as further amended, restated, modified and supplemented from time
to time, the “Credit Agreement”); capitalized terms used and not otherwise defined herein shall have the meanings assigned
to such terms in the Credit Agreement.
WHEREAS, the Borrower desires to amend
the Credit Agreement on the terms set forth herein;
WHEREAS, Section 3.16 of the Credit
Agreement provides that the Administrative Agent, the Borrower and the other Credit Parties may amend the Credit Agreement in order to
effect a Refinancing Amendment by issuing an additional tranche of term loans under the Credit Agreement that refinance, renew, replace,
defease or refund one or more Classes of Term Loans under the Credit Agreement;
WHEREAS, pursuant to Section 3.16 of the
Credit Agreement, an additional tranche of Initial Term Loans that is part of and fungible with the existing tranche of Initial Term Loans
(the “Additional Initial Term Loans”) shall be issued to refinance Incremental Term B Loans outstanding under the Credit
Agreement;
WHEREAS, this Amendment constitutes
a Refinancing Amendment and the Additional Initial Term Loans constitute Refinancing Term Loans;
WHEREAS, (i) each Amendment No. 2 Converting
Lender (as defined in Exhibit A) has agreed, on the terms and conditions set forth herein, to have up to all of its outstanding
Incremental Term B Loans converted into a like principal amount (or such lesser amount as determined by the Amendment No. 2 Lead Arranger
(as defined in Exhibit A) and the Borrower in their sole discretion) of Initial Term Loans effective as of the Amendment No. 2
Effective Date (as defined below) on a cashless basis pursuant to Section 11.9(f) of the Credit Agreement and (ii) if not all outstanding
Incremental Term B Loans are converted as described in clause (i), the Additional Initial Term Lender (as identified on the signature
page hereto) has agreed to provide an Additional Initial Term Loan Commitment (as defined in Exhibit A) in a principal amount equal
to the principal amount of Incremental Term B Loans not converted into Initial Term Loans on the Amendment No. 2 Effective Date, the proceeds
of which shall be applied to repay in full such non-converted Incremental Term B Loans;
NOW, THEREFORE, in consideration of
the premises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto, intending to be legally bound hereby, agree as follows:
Section 1. Amendment.
The Credit Agreement is, effective as of the Amendment No. 2 Effective Date, hereby amended to delete the stricken text (indicated textually
in the same manner as the following example: stricken text) and to add the double-underlined
text (indicated textually in the same manner as the following example: double-underlined
text) as set forth in the pages of the Credit Agreement attached as Exhibit A hereto.
Section 2. Representations and
Warranties, No Default. In order to induce the Lenders to enter into this Amendment and to amend the Credit Agreement in the manner
provided herein, the Borrower represents and warrants to each Lender that:
| a) | After giving effect to this Amendment, each of the representations and warranties in the Credit Agreement
and in the other Loan Documents are true and correct in all material respects on and as of the date hereof as though made on and as of
the date hereof, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse
Effect, in which case, such representation and warranty shall be true, correct and complete in all respects (except to the extent that
any such representation or warranty expressly relates to an earlier date, in which case such representation or warranty shall be true
and correct in all material respects as of such earlier date); and |
| b) | At the time of and immediately after giving effect to this Amendment, no Default or Event of Default
has occurred and is continuing. |
Section 3. Effectiveness.
Section 1 of this Amendment shall become effective on the date (such date, if any, the “Amendment No. 2 Effective Date”)
that the following conditions have been satisfied:
(i)
Counterparts. The Administrative Agent shall have received executed counterparts hereto from the Borrower, the Subsidiary
Guarantors and the Additional Initial Term Lender;
(ii)
Fees. The Borrower shall have paid to the Amendment No. 2 Lead Arranger (as defined in Exhibit A) in immediately
available funds, all fees and expenses owing to the Amendment No. 2 Lead Arranger and due and payable on the Amendment No. 2 Effective
Date as separately agreed to in writing by the Borrower and the Amendment No. 2 Lead Arranger and (ii) to the extent invoiced prior to
the Amendment No. 2 Effective Date, all reasonable out-of-pocket expenses of the Amendment No. 2 Lead Arranger and the Administrative
Agent in connection with this Amendment and the transaction contemplated hereby (including the reasonable fees and expenses of Cahill
Gordon & Reindel LLP, counsel to the Amendment No. 2 Lead Arranger and the Administrative Agent);
(iii)
Legal Opinions. The Administrative Agent shall have received a favorable legal opinion of Morgan Lewis & Bockius LLP,
counsel to the Credit Parties, covering such matters as the Administrative Agent may reasonably request and otherwise reasonably satisfactory
to the Administrative Agent;
(iv)
Officer’s Certificate. The Administrative Agent shall have received a certificate of a Responsible Officer of the
Borrower dated the Amendment No. 2 Effective Date certifying that (a) after giving effect to this Amendment, each of the representations
and warranties in the Credit Agreement and in the other Loan Documents are true and correct in all material respects (except to the extent
any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation
and warranty shall be true, correct and complete in all respects) and (b) at the time of and immediately after giving effect to this Amendment,
no Default or Event of Default has occurred and is continuing;
(v)
Closing Certificates. The Administrative Agent shall have received (i) a certificate of good standing (where relevant) of
each Credit Party as of a recent date, from the applicable Secretary of State or similar Governmental Authority and (ii) a certificate
of a duly authorized officer of each Credit Party dated the Amendment No. 2 Effective Date certifying (A) that there have been no changes
to the organizational documents of such Credit Party since the Closing Date or otherwise attaching the organizational documents to the
extent there have been changes to the organizational documents of such Credit Party, (B) that attached thereto is a true and complete
copy of resolutions duly adopted by the board of directors (or equivalent governing body) of such Credit Party authorizing the execution,
delivery and performance of this Amendment and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have
not been modified, rescinded or amended since the date adopted and are in full force and effect, and (C) as to the incumbency and specimen
signature of each officer executing any Loan Document on behalf of such Credit Party and countersigned by another officer as to the incumbency
and specimen signature of a duly authorized officer executing the certificate referred to above; and
(vi)
Repayment of Incremental Term B Loans. The Administrative Agent shall have received (x) a notice of repayment from the Borrower
in full of the Incremental Term B Loans that are not converted into Initial Term Loans on the Amendment No. 2 Effective Date (which may
be conditioned upon the receipt by the Borrower of the Initial Term Loans pursuant to the Additional Initial Term Loan Commitment) and
(y) for the account of each Lender holding Incremental Term B Loans, all accrued and unpaid interest on such Incremental Term B Loans
outstanding immediately prior to the Amendment No. 2 Effective Date to, but not including, the Amendment No. 2 Effective Date.
(vii)
Solvency Certificate. The Borrower shall have delivered to the Administrative Agent a certificate, in form and substance
satisfactory to the Administrative Agent and certified as accurate by the chief financial officer of the Borrower, that after giving effect
to the incurrence of the Initial Term Loans, the Credit Parties, on a consolidated basis, are Solvent.
(viii)
PATRIOT Act, Etc. The Borrower and each of the other Credit Parties shall have provided to the Administrative Agent and
the Additional Initial Term Lender the documentation and other information requested by the Administrative Agent or the Additional Initial
Term Lender, in each case, at least (3) Business Days prior to the Amendment No. 2 Effective Date, in order to comply with requirements
of any Anti- Money Laundering Laws, including, without limitation, the PATRIOT Act, and any applicable “know your customer”
rules and regulations, and, with respect to each Credit Party or Subsidiary thereof that qualifies as a “legal entity customer”
under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such Credit Party or each Subsidiary.
(ix)
Upfront Fee. The Borrower shall have paid to the Administrative Agent, for the account of each Amendment No. 2 Converting
Lender and the Additional Initial Term Lender, a non-refundable upfront fee (which, at the option of the Amendment No. 2 Lead Arranger,
may be structured as original issue discount) equal to 0.125% of the aggregate principal amount of the Initial Term Loans provided by
such Amendment No. 2 Converting Lender and Additional Initial Term Lender, as the case may be, on the Amendment No. 2 Effective Date.
Section 4. Counterparts.
This Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute
an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature
page to this Amendment by facsimile or electronic (i.e., “pdf” or “tif”) format shall be effective as delivery
of a manually executed counterpart of this Amendment.
Section
5. Applicable Law; Submission to Jurisdiction; Waiver of Venue; Service of
Process; Waiver of Jury Trial. THIS AMENDMENT AND ANY CLAIM, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT
OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AMENDMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY,
AND CONSTRUED WITH, THE LAW OF THE STATE OF NEW YORK. The submission
to jurisdiction, waiver of venue, service of process and waiver of jury trial provisions set forth in Sections 11.5(b), (c), (d) and
11.6 of the Credit Agreement shall apply to this Amendment, mutatis mutandis.
Section 6. Headings.
Section and Subsection headings in this Amendment are included herein for convenience of reference only and shall not constitute a part
of this Amendment for any other purpose or be given any substantive effect.
Section 7. Effect of Amendment.
(a)
Subject to the terms and conditions set forth herein, each Amendment No. 2 Converting Lender shall have all of its outstanding
Incremental Term B Loans reallocated as Initial Term Loans for all purposes under the Credit Agreement and such Initial Term Loans, together
with all Initial Term Loans provided by the Additional Initial Term Lender hereunder on the Amendment No. 2 Effective Date and all Initial
Term Loans outstanding under the Credit Agreement on the Amendment No. 2 Effective Date, shall constitute a single Class of Loans.
(b)
For U.S. federal income tax purposes, the parties hereto shall treat (i) the Initial Term Loans provided by the Additional Initial
Term Lender and the Initial Term Loans of each Amendment No. 2 Converting Lender as issued in a “qualified reopening” (within
the meaning of Treasury Regulations section 1.1275-2(k)) of the Initial Term Loans and (ii) as of the Amendment No. 2 Effective Date,
the Initial Term Loans (including Initial Term Loans provided by the Additional Initial Term Lender and the Initial Term Loans of each
Amendment No. 2 Converting Lender) as fungible.
(c)
Except as expressly set forth herein, (i) this Amendment shall not by implication or otherwise limit, impair, constitute a waiver
of or otherwise affect the rights and remedies of the Lenders, the Administrative Agent or any other Agent, in each case under the Credit
Agreement or any other Loan Document, and (ii) shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations,
covenants or agreements contained in the Credit Agreement or any other provision of either such agreement or any other Loan Document.
This Amendment shall not constitute a novation of the Credit Agreement or any of the Loan Documents. Each and every term, condition, obligation,
covenant and agreement contained in the Credit Agreement or any other Loan Document is hereby ratified and re-affirmed in all respects
and shall continue in full force and effect. Each Credit Party (i) reaffirms its obligations under the Loan Documents to which it is party
and (ii) ratifies and reaffirms its prior grant and the validity of the Liens and security interests granted by it pursuant to the Security
Documents and confirms that all Liens and security interests granted by it pursuant to any Security Document shall continue in full force
and effect to secure the Secured Obligations under the Loan Documents after giving effect to this Amendment, including, without limitation,
the Additional Initial Term Loans and (iii) in the case of each Subsidiary Guarantor, ratifies and reaffirms its guaranty of the Secured
Obligations pursuant to the Collateral Agreement. This Amendment shall constitute a Loan Document for purposes of the Credit Agreement
and from and after the Amendment No. 2 Effective Date, all references to the Credit Agreement in any Loan Document and all references
in the Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring
to the Credit Agreement, shall, unless expressly provided otherwise, refer to the Credit Agreement as amended by this Amendment. Each
of the Credit Parties hereby (i) consents to this Amendment, (ii) confirms that all obligations of such Credit Party under the Loan Documents
to which such Credit Party is a party shall continue to apply to the Credit Agreement as amended hereby and (iii) agrees that all security
interests granted by it pursuant to any Loan Document shall secure the Credit Agreement as amended by this Amendment. Without limiting
the generality of the foregoing, the Security Documents and all of the Collateral described therein do and shall continue to secure the
payment of all Secured Obligations of the Credit Parties under the Loan Documents, as amended by, and after giving effect to, this Amendment.
IN WITNESS WHEREOF, the parties hereto
have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.
|
WALKER & DUNLOP, INC., as Borrower |
|
|
|
By: |
/s/ Gregory A. Florkowski |
|
|
Name: |
Gregory A. Florkowski |
|
|
Title: |
Executive Vice President and Chief Financial Officer |
|
|
|
WALKER & DUNLOP MULTIFAMILY, INC.,
as a Subsidiary Guarantor |
|
|
|
By: |
/s/ Gregory A. Florkowski |
|
|
Name: |
Gregory A. Florkowski |
|
|
Title: |
Executive Vice President and Chief Financial Officer |
|
|
|
WALKER & DUNLOP, LLC, as a Subsidiary
Guarantor |
|
|
|
By: |
/s/ Gregory A. Florkowski |
|
|
Name: |
Gregory A. Florkowski |
|
|
Title: |
Executive Vice President and Chief Financial Officer |
|
|
|
WALKER & DUNLOP CAPITAL, LLC,
as a Subsidiary Guarantor |
|
|
|
By: |
/s/ Gregory A. Florkowski |
|
|
Name: |
Gregory A. Florkowski |
|
|
Title: |
Executive Vice President and Chief Financial Officer |
|
|
|
W&D BE, INC., as a Subsidiary
Guarantor |
|
|
|
By: |
/s/ Gregory A. Florkowski |
|
|
Name: |
Gregory A. Florkowski |
|
|
Title: |
Executive Vice President and Chief Financial Officer |
|
|
|
WALKER & DUNLOP INVESTMENT SALES,
LLC, as a Subsidiary Guarantor |
|
|
|
By: |
/s/ Gregory A. Florkowski |
|
|
Name: |
Gregory A. Florkowski |
|
|
Title: |
Executive Vice President and Chief Financial Officer |
[Signature Page to Amendment]
|
JPMORGAN CHASE BANK, N.A., |
|
as Administrative Agent and Additional
Initial Term Lender |
|
|
|
By: |
/s/ Philippe Tsoukias |
|
|
Name: |
Philippe Tsoukias |
|
|
Title: |
Vice President |
[Signature Page to Amendment]
Annex A
The undersigned Lender hereby consents
to this Amendment and to its Incremental Term B Loans being converted to Initial Term Loans in a like principal amount (or such lesser
amount as determined by the Amendment No. 2 Lead Arranger and the Borrower in their sole discretion) on the Amendment No. 2 Effective
Date on a cashless basis pursuant to Section 11.9(f) of the Credit Agreement:
|
|
|
(Name of Institution) |
|
|
|
By: |
|
|
|
Name: |
|
|
Title: |
|
|
|
[If a second signature is necessary: |
|
|
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By: |
|
|
|
Name: |
|
|
Title:] |
[Lender Signature Page to Amendment]
Exhibit A
[see attached]
Exhibit
A
Execution Version
$600,000,000
CREDIT AGREEMENT
dated as of December 16, 2021,
as amended by Amendment No.
1 dated as of January 12, 2023,
as further amended by Amendment No. 2 dated as of May 22, 2024,
by and among
WALKER
& DUNLOP, INC.,
as Borrower,
the Lenders referred to herein,
as Lenders,
and
JPMORGAN
CHASE BANK, N.A.,
as Administrative Agent,
and
JPMORGAN
CHASE BANK, N.A.,
as
Sole Lead Arranger and Bookrunner
TABLE
OF CONTENTS
Page
ARTICLE I DEFINITIONS |
|
SECTION
1.1 |
Definitions |
1 |
SECTION
1.2 |
Other
Definitions and Provisions |
43 |
SECTION
1.3 |
Accounting
Terms |
4244 |
SECTION
1.4 |
UCC
Terms |
44 |
SECTION
1.5 |
Rounding |
44 |
SECTION
1.6 |
References
to Agreement and Laws |
45 |
SECTION
1.7 |
Times
of Day; Rates |
4345 |
SECTION
1.8 |
Guarantees |
4345 |
SECTION
1.9 |
Covenant
Compliance Generally |
4345 |
SECTION
1.10 |
Divisions |
45 |
SECTION
1.11 |
Limited
Condition Acquisitions |
45 |
SECTION
1.12 |
Certain
Determinations |
4547 |
SECTION
1.13 |
Interest
Rates; Benchmark Notification |
47 |
|
|
|
ARTICLE II TERM LOAN FACILITY |
|
|
|
SECTION
2.1 |
Initial
Term Loan, Incremental Term B Loan and Incremental Term Loans |
4648 |
SECTION
2.2 |
Procedure
for Advance of Term Loans |
48 |
SECTION
2.3 |
Repayment
of Term Loans |
4750 |
SECTION
2.4 |
Prepayments
of Term Loans |
4850 |
|
|
|
ARTICLE III
GENERAL LOAN PROVISIONS |
|
|
|
SECTION
3.1 |
Interest |
5153 |
SECTION
3.2 |
Notice
and Manner of Conversion or Continuation of Loans |
5254 |
SECTION
3.3 |
Fees |
5255 |
SECTION
3.4 |
Manner
of Payment |
5255 |
SECTION
3.5 |
Evidence
of Indebtedness |
5355 |
SECTION
3.6 |
Sharing
of Payments by Lenders |
56 |
SECTION
3.7 |
Funding
by Lenders; Administrative Agent’s Clawback |
5456 |
SECTION
3.8 |
Alternate
Rate of Interest |
5557 |
SECTION
3.9 |
Indemnity |
5759 |
SECTION
3.10 |
Increased
Costs |
5760 |
SECTION
3.11 |
Taxes |
5861 |
SECTION
3.12 |
Mitigation
Obligations; Replacement of Lenders |
6164 |
SECTION
3.13 |
Incremental
Loans |
6265 |
SECTION
3.14 |
Defaulting
Lenders |
6567 |
SECTION
3.15 |
Extension
of Term Loan Maturity Date |
6668 |
SECTION
3.16 |
Refinancing
Term Loans |
6770 |
TABLE
OF CONTENTS
(continued)
Page
ARTICLE IV |
CONDITIONS OF CLOSING AND BORROWING |
|
SECTION 4.1 |
Conditions to Closing and Initial Term Loan |
6972 |
|
|
|
ARTICLE V |
REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIES |
|
|
|
SECTION 5.1 |
Organization; Power; Qualification |
7275 |
SECTION 5.2 |
Ownership; Voting Agreements |
7275 |
SECTION 5.3 |
Authorization; Enforceability |
7375 |
SECTION 5.4 |
Compliance of Agreement, Loan Documents and
Borrowing with Laws, Etc. |
7376 |
SECTION 5.5 |
Compliance with Law; Governmental Approvals |
7376 |
SECTION 5.6 |
Tax Returns and Payments |
7476 |
SECTION 5.7 |
Intellectual Property Matters |
7477 |
SECTION 5.8 |
Environmental Matters |
7477 |
SECTION 5.9 |
Employee Benefit Matters |
7578 |
SECTION 5.10 |
Margin
Stock |
7679 |
SECTION 5.11 |
Government
Regulation |
7679 |
SECTION 5.12 |
Material
Contracts |
7679 |
SECTION 5.13 |
Employee
Relations |
7779 |
SECTION 5.14 |
Burdensome
Provisions |
7779 |
SECTION 5.15 |
[Reserved] |
7779 |
SECTION 5.16 |
No
Material Adverse Change |
79 |
SECTION 5.17 |
Solvency |
7780 |
SECTION 5.18 |
Title
to Properties |
7780 |
SECTION 5.19 |
Litigation |
7780 |
SECTION 5.20 |
Anti-Terrorism; Anti-Money Laundering;
Anti-Corruption and Sanctions |
7780 |
SECTION 5.21 |
Absence
of Defaults |
7880 |
SECTION 5.22 |
Disclosure |
80 |
|
|
|
ARTICLE VI
AFFIRMATIVE COVENANTS |
|
|
|
SECTION
6.1 |
Financial Statements and Budgets |
7881 |
SECTION 6.2 |
Certificates; Other Reports |
7982 |
SECTION 6.3 |
Notice of Litigation and Other Matters |
84 |
SECTION 6.4 |
Preservation of Corporate Existence and Related
Matters |
8284 |
SECTION 6.5 |
Maintenance of Property and Licenses |
84 |
SECTION 6.6 |
Insurance |
8285 |
SECTION 6.7 |
Accounting Methods and Financial Records |
8285 |
SECTION 6.8 |
Payment of Taxes and Other Obligations |
8385 |
SECTION 6.9 |
Compliance with Laws and Approvals |
8385 |
SECTION 6.10 |
Environmental Laws |
86 |
SECTION 6.11 |
Compliance
with ERISA |
8386 |
SECTION 6.12 |
Material
Contracts |
8486 |
SECTION 6.13 |
Visits
and Inspections; Appraisals |
8486 |
TABLE
OF CONTENTS
(continued)
Page
SECTION 6.14 |
Additional Subsidiaries |
8487 |
SECTION 6.15 |
Use of Proceeds |
8689 |
SECTION 6.16 |
Maintenance of Debt Ratings |
8689 |
SECTION 6.17 |
Compliance with Anti-Corruption Laws; Beneficial Ownership
Regulation, Anti-Money
Laundering Laws and Sanctions |
8689 |
SECTION 6.18 |
Further Assurances |
8789 |
SECTION 6.19 |
Post-Closing Items |
8790 |
|
|
|
ARTICLE VII
NEGATIVE COVENANTS |
|
SECTION
7.1 |
Indebtedness |
8790 |
SECTION
7.2 |
Liens |
9093 |
SECTION
7.3 |
Investments |
9295 |
SECTION
7.4 |
Fundamental
Changes |
9497 |
SECTION
7.5 |
Asset
Dispositions |
97 |
SECTION
7.6 |
Restricted
Payments |
9699 |
SECTION
7.7 |
Transactions
with Affiliates |
97100 |
SECTION
7.8 |
Accounting
Changes; Organizational Documents |
97100 |
SECTION
7.9 |
Payments
and Modifications of Junior Indebtedness |
98100 |
SECTION
7.10 |
No
Further Negative Pledges; Restrictive Agreements |
99101 |
SECTION
7.11 |
Nature
of Business |
99102 |
SECTION
7.12 |
Amendments
of Material Contracts |
99102 |
SECTION
7.13 |
[Reserved] |
100103 |
SECTION
7.14 |
Financial
Covenant – Asset Coverage Ratio |
100103 |
SECTION
7.15 |
Voting
Agreements |
100103 |
SECTION
7.16 |
Special
Covenant Regarding Excluded Subsidiaries |
100103 |
|
|
|
ARTICLE VIII |
SPECIAL PROVISIONS REGARDING AGENCY MATTERS |
|
SECTION
8.1 |
Special
Representations, Warranties and Covenants Concerning Eligibility as Seller/Issuer and Service of Mortgage Loans |
100103 |
SECTION
8.2 |
Special
Representations, Warranties and Covenants Concerning Agency Agreements |
103 |
SECTION
8.3 |
Special
Representation, Warranty and Covenant with respect to Fannie Mae Program Reserve Requirements |
101104 |
SECTION
8.4 |
Special
Provisions Regarding Agency Collateral |
101104 |
|
|
|
ARTICLE IX
DEFAULT AND REMEDIES |
|
SECTION
9.1 |
Events
of Default |
102105 |
SECTION
9.2 |
Remedies |
104107 |
SECTION
9.3 |
Rights
and Remedies Cumulative; Non-Waiver; Etc. |
105108 |
SECTION
9.4 |
Crediting
of Payments and Proceeds |
105108 |
SECTION
9.5 |
Administrative
Agent May File Proofs of Claim |
106109 |
SECTION
9.6 |
Credit
Bidding |
107109 |
SECTION
9.7 |
Fannie
Mae Limitations |
107110 |
TABLE
OF CONTENTS
(continued)
Page
SECTION
9.8 |
Freddie
Mac Limitations |
107110 |
SECTION
9.9 |
Ginnie
Mae Limitations |
107110 |
|
|
|
ARTICLE X |
THE ADMINISTRATIVE AGENT |
|
SECTION
10.1 |
Appointment
and Authority |
108110 |
SECTION
10.2 |
Rights
as a Lender |
108111 |
SECTION
10.3 |
Exculpatory
Provisions |
109111 |
SECTION
10.4 |
Reliance
by the Administrative Agent |
109112 |
SECTION
10.5 |
Delegation
of Duties |
110112 |
SECTION
10.6 |
Resignation
of Administrative Agent |
110113 |
SECTION
10.7 |
Non-Reliance
on Administrative Agent and Other Lenders |
111114 |
SECTION
10.8 |
No
Other Duties, Etc. |
111114 |
SECTION
10.9 |
Collateral
and Guaranty Matters |
112114 |
SECTION
10.10 |
Secured
Hedge Agreements and Secured Cash Management Agreements |
112115 |
SECTION
10.11 |
Acknowledgement
of Lenders |
113115 |
|
|
|
ARTICLE XI
MISCELLANEOUS |
|
SECTION
11.1 |
Notices |
114117 |
SECTION
11.2 |
Amendments,
Waivers and Consents |
117120 |
SECTION
11.3 |
Expenses;
Indemnity; Limitation of Liability |
120123 |
SECTION
11.4 |
Right
of Setoff |
122125 |
SECTION
11.5 |
Governing
Law; Jurisdiction, Etc. |
122125 |
SECTION
11.6 |
Waiver
of Jury Trial |
123126 |
SECTION
11.7 |
Reversal
of Payments |
123126 |
SECTION
11.8 |
Injunctive
Relief |
123126 |
SECTION
11.9 |
Successors
and Assigns; Participations |
123126 |
SECTION
11.10 |
Treatment
of Certain Information; Confidentiality |
128131 |
SECTION
11.11 |
Performance
of Duties |
129132 |
SECTION
11.12 |
All
Powers Coupled with Interest |
129132 |
SECTION
11.13 |
Survival |
129132 |
SECTION
11.14 |
Titles
and Captions |
129132 |
SECTION
11.15 |
Severability
of Provisions |
129132 |
SECTION
11.16 |
Counterparts;
Integration; Effectiveness; Electronic Execution |
129132 |
SECTION
11.17 |
Term
of Agreement |
131134 |
SECTION
11.18 |
USA
PATRIOT Act; Anti-Money Laundering Laws |
131134 |
SECTION
11.19 |
Independent
Effect of Covenants |
131134 |
SECTION
11.20 |
Inconsistencies
with Other Documents |
131134 |
SECTION
11.21 |
No
Advisory or Fiduciary Responsibility |
131134 |
SECTION
11.22 |
Acknowledgement
and Consent to Bail-In of EEA Financial Institutions |
132135 |
SECTION
11.23 |
Certain
ERISA Matters |
133135 |
SECTION
11.24 |
Acknowledgement
Regarding Any Supported QFCs |
134137 |
SECTION
11.25 |
Limitation
of Fannie Mae’s Agency Consent |
134137 |
SECTION 11.26 |
Pari Passu Intercreditor Agreement |
137 |
EXHIBITS |
|
|
|
|
Form of: |
Exhibit A |
- |
Term Loan Note |
Exhibit B |
- |
Notice of Borrowing |
Exhibit C |
- |
Notice of Prepayment |
Exhibit D |
- |
Notice of Conversion/Continuation |
Exhibit E |
- |
Officer’s Compliance Certificate |
Exhibit F |
- |
Assignment and Assumption |
Exhibit G-1 |
- |
U.S. Tax Compliance Certificate (Non-Partnership
Foreign Lenders) |
Exhibit G-2 |
- |
U.S. Tax Compliance Certificate (Non-Partnership
Foreign Participants) |
Exhibit G-3 |
- |
U.S. Tax Compliance Certificate (Foreign Participant
Partnerships) |
Exhibit G-4 |
- |
U.S. Tax Compliance Certificate (Foreign Lender
Partnerships) |
Exhibit H |
- |
Auction Procedures |
Exhibit I |
- |
Pari Passu Intercreditor
Agreement |
|
|
|
SCHEDULES |
|
|
Schedule 1.1 |
- |
Fannie Mae, Freddie Mac, Ginnie Mae and FHA/HUD
Agreements |
Schedule 4.1 |
- |
Investors |
Schedule 5.1 |
- |
Jurisdictions of Organization and Qualification |
Schedule 5.2 |
- |
Subsidiaries and Capitalization |
Schedule 5.6 |
- |
Tax Matters |
Schedule 5.9 |
- |
ERISA Plans |
Schedule 5.12 |
- |
Material Contracts |
Schedule 5.13 |
- |
Labor and Collective Bargaining Agreements |
Schedule
5.18 |
- |
Real Property |
Schedule 6.19 |
- |
Post-Closing Items |
Schedule 7.1 |
- |
Existing Indebtedness |
Schedule 7.2 |
- |
Existing Liens |
Schedule 7.3 |
- |
Existing Loans, Advances and Investments |
Schedule 7.7 |
- |
Transactions with Affiliates |
This CREDIT
AGREEMENT, dated as of December 16, 2021 (as amended by Amendment No. 1 dated as of January 12, 20232023,
and as further amended by Amendment No. 2 dated as of May 22, 2024) (this “Agreement”), is by and among WALKER
& DUNLOP, INC., a Maryland corporation, as the Borrower, the lenders who are party to this Agreement and the lenders who may become
a party to this Agreement pursuant to the terms hereof, as Lenders, and JPMORGAN CHASE BANK, N.A., a national banking association, as
Administrative Agent for the Lenders.
STATEMENT OF PURPOSE
The Borrower
has requested, and subject to the terms and conditions set forth in this Agreement, the Administrative Agent and the Lenders have agreed
to extend, a term loan credit facility to the Borrower as set forth herein.
NOW, THEREFORE,
for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, such parties
hereby agree as follows:
ARTICLE I DEFINITIONS
SECTION 1.1 Definitions. The following terms when
used in this Agreement shall have the meanings assigned to them below:
“ABR Term Loan” means a Term Loan bearing
interest based upon the Alternate Base Rate.
“Additional Initial Term Loan” has the meaning assigned
thereto in Section 2.1.
“Additional
Initial Term Loan Commitment” means, with respect to the Additional Initial Term Lender, its commitment to make an
Additional Initial Term Loan on the Amendment No. 2 Effective Date in an amount equal to the aggregate principal amount of all Incremental
Term B Loans outstanding on the Amendment No. 2 Effective Date minus the aggregate principal amount of the Converted Incremental Term
B Loan of all Lenders.
“Additional
Initial Term Lender” means the Person identified as such in Amendment No. 2.
“Adjusted
Term SOFR Rate” means, with respect to any Term Benchmark Borrowing for any Interest Period, an interest rate per annum equal
to (a) the Term SOFR Rate for such Interest Period, plus (b)(x) in the case of an Interest Period that is one month in duration, 0.10%,
(y) in the case of an Interest Period that is three months in duration, 0.15% and (z) in the case of an Interest Period that is six months
in duration, 0.25%; provided that if the Adjusted Term SOFR Rate as so determined would be less than 0.50%, such rate shall be
deemed to be 0.50% for purposes of this Agreement.
“Administrative
Agent” means JPMorgan, in its capacity as Administrative Agent hereunder, and any successor thereto appointed pursuant to Section
10.6.
“Administrative
Agent’s Office” means the office of the Administrative Agent specified in or determined in accordance with the provisions
of Section 11.1(c).
“Administrative
Questionnaire” means an administrative questionnaire in a form supplied by the Administrative Agent.
“Affected
Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate”
means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or
is Controlled by or is under common Control with the Person specified.
“Agency” means Fannie Mae, Freddie Mac,
Ginnie Mae, FHA, or HUD.
“Agency
Agreements” means, singly and collectively, the Fannie Mae Agreements, the Freddie Mac Agreements, the Ginnie Mae Agreements,
and the FHA/HUD Agreements.
“Agency
Collateral” means, singly and collectively, the Fannie Mae Collateral, the Freddie Mac Collateral, the Ginnie Mae Collateral,
and the FHA/HUD Collateral, respectively.
“Agency
Consents” means, singly and collectively, the written consent (and in the case of Ginnie Mae and HUD, acknowledgement), in form
and substance satisfactory to the Arranger, of each of Fannie Mae, Freddie Mac, Ginnie Mae and HUD (which in the case of Ginnie Mae and
HUD is a limited acknowledgment and is expressly not a consent) provided to the Administrative Agent pursuant to Section 4.1(d),
in each case as the same may be amended, restated, modified or supplemented from time to time.
“Agency
Designated Loans” means, singly and collectively, the Fannie Mae Designated Loans, the Freddie Mac Designated Loans, the Ginnie
Mae Designated Loans, and, as may be applicable, the FHA/HUD Loans, respectively.
“Agency
Security Interest” means, singly and collectively, the Fannie Mae Security Interest, the Freddie Mac Security Interest, the
Ginnie Mae Security Interest, and the FHA/HUD Security Interest, respectively.
“Agent Parties” has the meaning assigned
thereto in Section 11.1(e)(ii). “Agreement” has the meaning assigned thereto in the preamble to this Agreement.
“Alliant” has the meaning assigned thereto in the definition of “Alliant Acquisition.”
“Alliant
Acquisition” means the acquisition of Alliant, Inc., a Florida corporation, Alliant ADC, Inc., a California corporation, Palm
Drive Associates, LLC, a Delaware limited liability company, The Alliant Company, LLC, a Florida limited liability company, Alliant Capital,
Ltd., a Florida limited liability company, Alliant Fund Asset Holdings, LLC, a Delaware limited liability company, Alliant Asset Management
Company, LLC, a California limited liability company, Alliant Strategic Investments II, LLC, a Delaware limited liability company, ADC
Communities, LLC, a Florida limited liability company, ADC Communities II, LLC, a California limited liability company, AFAH Finance,
LLC, a Delaware limited liability company, Alliant Fund Acquisitions, LLC, a Florida limited liability company (collectively, “Alliant”),
pursuant to that certain Purchase Agreement (the “Alliant Purchase Agreement”), dated as of August 30, 2021, among,
inter alios, WDAAC, the Borrower and Alliant.
“Alliant
Purchase Agreement” has the meaning assigned thereto in the definition of “Alliant Acquisition.”
“Alternate Base
Rate” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the NYFRB
Rate in effect on such day plus ½ of 1% and (c) the Adjusted Term SOFR Rate for a one month Interest Period as published
two U.S. Government Securities Business Days prior to such day (or if such day is not a Business Day, the immediately preceding Business
Day) plus 1%; provided that for the purpose of this definition, the Adjusted Term SOFR Rate for any day shall be
based on the Term SOFR Reference Rate at approximately 5:00 a.m. Chicago time on such day (or any amended publication time for the Term
SOFR Reference Rate, as specified by the CME Term SOFR Administrator in the Term SOFR Reference Rate methodology). Any change in the
Alternate Base Rate due to a change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR Rate shall be effective from and including
the effective date of such change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR Rate, respectively. If the Alternate Base
Rate is being used as an alternate rate of interest pursuant to Section 3.8 (for the avoidance of doubt, only until the Benchmark
Replacement has been determined pursuant to Section 3.8), then the Alternate Base Rate shall be the greater of clauses (a) and
(b) above and shall be determined without reference to clause (c) above. For the avoidance of doubt, if the Alternate Base Rate
as determined pursuant to the foregoing would be less than 1.50%, such rate shall be deemed to be 1.50% for purposes of this Agreement.
“Amendment No. 1”
means Amendment No. 1 to this Agreement, dated as of January 12, 2023. “Amendment No. 1 Effective Date” has the meaning
assigned to such term in Amendment No. 1.
The Amendment No. 1 Effective Date is
January 12, 2023.
“Amendment No. 1 Lead Arranger”
means JPMorgan, in its capacity as lead arranger and bookrunner for Amendment No. 1.
“Amendment
No. 2” means Amendment No. 2 to this Agreement, dated as of May 22, 2024.
“Amendment
No. 2 Converting Lender” means each Lender (other than the Additional Initial Term Lender) that provided the Administrative Agent
with a counterpart to Amendment No. 2 executed by such Lender.
“Amendment
No. 2 Effective Date” has the meaning assigned to such term in Amendment No. 2.
The
Amendment No. 2 Effective Date is May 22, 2024.
“Amendment
No. 2 Lead Arranger” means JPMorgan, in its capacity as lead arranger and bookrunner for Amendment No. 2.
“Ancillary Document”
has the meaning assigned thereto in Section 11.16(b). “Ancillary Fees” has the meaning assigned thereto in Section
11.2(j).
“Anti-Corruption
Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Borrower or its Subsidiaries from time to
time concerning or relating to bribery or corruption, including, without limitation, the United States Foreign Corrupt Practices Act of
1977, as amended, and the rules and regulations thereunder and the U.K. Bribery Act 2010 and the rules and regulations thereunder.
“Anti-Money
Laundering Laws” means any and all laws, statutes, regulations or obligatory government orders, decrees, ordinances or rules
applicable to a Credit Party, its Subsidiaries or Affiliates related to terrorism financing or money laundering, including any applicable
provision of the PATRIOT Act and The Currency and Foreign Transactions Reporting Act (also known as the “Bank Secrecy Act,”
31 U.S.C. §§ 5311-5330 and 12 U.S.C. §§ 1818(s), 1820(b) and 1951-1959).
“Anti-Terrorism Laws”
has the meaning assigned thereto in Section 5.20.
“Applicable
Law” means all applicable provisions of constitutions, laws, statutes, ordinances, rules, treaties, regulations, permits, licenses,
approvals, interpretations and orders of courts or Governmental Authorities and all orders and decrees of all courts and arbitrators.
“Applicable
Margin” means (i) in the case of Initial Term Loans, (a) 1.25%, in the case
of ABR Term Loans and (b) 2.25%, in the case of Term SOFR Rate Loans and (ii) in the case of Incremental
Term B Loans, (a) 2.00%, in the case of ABR Term Loans and (b) 3.00%, in the case of Term SOFR Rate Loans. The Applicable
Margin shall be increased as, and to the extent, required by Section 3.13.
“Appraised
Value” means, with respect to the Servicing Contracts at any time, the value thereof set forth in the most recent appraisals
received in accordance with Section 6.13(b); provided that if such appraisal shall indicate a range of value, the mid-point
of such range shall be the Appraised Value.
“Approved Bank”
has the meaning assigned thereto in the definition of “Cash Equivalents.” “Approved Fund” means any Fund
that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers
or manages a Lender.
“Arranger”
means JPMorgan, in its capacity as sole lead arranger and bookrunner, Amendment
No. 1 Lead Arranger and Amendment No. 12
Lead Arranger.
“Asset
Coverage Ratio” means, as of any date of determination, the ratio of (a) the sum of (i) the then applicable Appraised Value
of all Qualifying Mortgage Servicing Rights of WDLLC and WD Capital on such date plus (ii) all Unrestricted Cash of the Credit
Parties held in the United States (excluding any assets securing any Securitization Transaction Attributed Indebtedness or any Permitted
Funding Collateral) to (b) Consolidated Corporate Indebtedness on such date.
“Asset Disposition”
means the sale, transfer, license, lease or other disposition of any Property (including any disposition of Equity Interests and any
transfer or disposition by way of statutory division) by any Credit Party or any Subsidiary (other than Excluded Subsidiaries) thereof
(or the granting of any option or other right to do any of the foregoing). The term “Asset Disposition” shall not
include (a) the sale of inventory (other than Servicing Contracts and Mortgage Loans) in the ordinary course of business, (b) the transfer
of assets to the Borrower or any Subsidiary Guarantor pursuant to any other transaction permitted pursuant to Section 7.4 (other
than clause (e) thereof), (c) the write-off, discount, sale or other disposition of defaulted or past-due receivables and similar obligations
in the ordinary course of business and not undertaken as part of an accounts receivable financing transaction, (d) the disposition of
any Hedge Agreement, (e) dispositions of Investments in cash and Cash Equivalents and (f)
the transfer by any Credit Party of its assets to any other Credit Party.
“Assignment
and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any
party whose consent is required by Section 11.9), and accepted by the Administrative Agent, in substantially the form attached
as Exhibit F or any other form (including electronic records generated by the use of an electronic platform) approved by the Administrative
Agent.
“Attributable
Indebtedness” means, on any date of determination, (a) in respect of any Capital Lease Obligation of any Person, the capitalized
amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, and (b) in respect
of any Synthetic Lease, the capitalized amount or principal amount of the remaining lease payments under the relevant lease that would
appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a Capital
Lease Obligation.
“Available Amount” means,
as of any date of determination, an amount not less than zero, determined on a cumulative basis equal to, without duplication:
(a)
the greater of (x) $50,000,000 and (y) 20.0% of Consolidated Adjusted EBITDA for the most recently ended Test Period, plus
(b)
the Cumulative Retained Excess Cash Flow Amount at such time, plus
(c)
the aggregate amount of Net Cash Proceeds received by the Borrower (other than from a Subsidiary) from the sale or issuance of
Qualified Equity Interests of the Borrower after the Closing Date and on or prior to such time (including upon exercise of warrants or
options), plus
(d)
the aggregate amount of Net Cash Proceeds received by the Borrower or any Subsidiary (other than an Excluded Subsidiary and other
than from a Subsidiary) from Indebtedness (other than Junior Indebtedness) after the Closing Date converted to or exchanged for Qualified
Equity Interests of the Borrower, plus
(e)
the amounts received in cash or Cash Equivalents by the Borrower or any Subsidiary (other than any Excluded Subsidiary) from any
distribution, dividend, profit, return of capital, repayment of loans or upon the disposition of any Investment, or otherwise received
from an Excluded Subsidiary (including the amounts received in cash or Cash Equivalents from any disposition or issuance of Equity Interests
of an Excluded Subsidiary), in each case, to the extent received in respect of an Investment (including the designation of an Excluded
Subsidiary) made in reliance on Section 7.3(k) and, in each case, not to exceed the original amount of such Investment, plus
(f)
the fair market value of the Investments by the Borrower and its Subsidiaries (other than any Excluded Subsidiary) made in any
Excluded Subsidiary pursuant to Section 7.3(k) at the time it is redesignated as or merged into a Subsidiary pursuant to Section
6.14(d)(ii) (in each case, not to exceed the fair market value (as determined in good faith by the Borrower) of such Investments made
in such Excluded Subsidiary at the time of such redesignation or merger), minus
(g)
the aggregate amount of all (i) Investments made pursuant to Section 7.3(k), (ii) Restricted Payments made pursuant to Section
7.6(d) and (iii) payments and prepayments of Junior Indebtedness made pursuant to Section 7.9(b)(iv), in each case, after the
Closing Date and on or prior to such time.
“Available
Tenor” means, as of any date of determination and with respect to the then-current Benchmark, any tenor for such Benchmark (or
component thereof) or payment period for interest calculated with reference to such Benchmark (or component thereof), as applicable, that
is or may be used for determining the length of an Interest Period for any term rate or otherwise, for determining any frequency of making
payments of interest calculated pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for
such Benchmark that is then-removed from the definition of “Interest Period” pursuant to clause (e) of Section 3.8.
“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 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, regulation, rule 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, regulation or rule 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).
“Benchmark”
means, initially, with respect to any Term Benchmark Loan, the Term SOFR Rate; provided that if a Benchmark Transition Event, and
the related Benchmark Replacement Date have occurred with respect to the Term SOFR Rate or the then-current Benchmark, then “Benchmark”
means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant
to clause (b) of Section 3.8.
“Benchmark
Replacement” means, for any Available Tenor, the first alternative set forth in the order below that can be determined by the
Administrative Agent for the applicable Benchmark Replacement Date:
(1)
the sum of: (a) Daily Simple SOFR and (b) the related Benchmark Replacement Adjustment; or
(2)
the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement
for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation
of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or
then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for syndicated credit
facilities denominated in Dollars at such time in the United States and (b) the related Benchmark Replacement Adjustment.
If the Benchmark Replacement as
determined pursuant to clause (1) or (2) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor
for purposes of this Agreement and the other Loan Documents.
“Benchmark
Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement
for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement:
(1)
for purposes of clause (1) of the definition of “Benchmark Replacement,” the first alternative set forth in the order
below that can be determined by the Administrative Agent:
(a)
the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value
or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that has been selected or recommended
by the Relevant Governmental Body for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for the applicable
Corresponding Tenor;
(b)
the spread adjustment (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is
first set for such Interest Period that would apply to the fallback rate for a derivative transaction referencing the ISDA Definitions
to be effective upon an index cessation event with respect to such Benchmark for the applicable Corresponding Tenor; and
(2)
for purposes of clause (2) of the definition of “Benchmark Replacement,” the spread adjustment, or method for calculating
or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative
Agent and the Borrower for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread
adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable
Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date and/or (ii) any evolving
or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment,
for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for syndicated credit facilities denominated
in Dollars at such time;
provided
that, in the case of clause (1) above, such adjustment is displayed on a screen or other information service that publishes such Benchmark
Replacement Adjustment from time to time as selected by the Administrative Agent in its reasonable discretion.
“Benchmark
Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational
changes (including changes to the definition of “Alternate 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 Notices of Borrowing or prepayment, conversion or continuation notices, length of lookback
periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative
Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration
thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides
that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no
market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative
Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Benchmark
Replacement Date” means, with respect to any Benchmark, the earliest to occur of the following events with respect to such then-current
Benchmark:
(1)
in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the
public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the
published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark
(or such component thereof); or
(2)
in the case of clause (3) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark
(or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator
of such Benchmark (or such component thereof) to be no longer representative; provided, that such non-representativeness will be
determined by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such
Benchmark (or such component thereof) continues to be provided on such date.
For the avoidance of doubt, (i)
if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect
of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination
and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2)
with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current
Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark
Transition Event” means, with respect to any Benchmark, the occurrence of one or more of the following events with respect to
such then-current Benchmark:
(1)
a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component
used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark
(or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is
no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(2)
a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published
component used in the calculation thereof), the Federal Reserve Board, the NYFRB, the CME Term SOFR Administrator, an insolvency official
with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator
for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator
for such Benchmark (or such component), in each case, which states that the administrator of such Benchmark (or such component) has ceased
or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided
that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor
of such Benchmark (or such component thereof); or
(3)
a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published
component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer,
or as of a specified future date will no longer be, representative.
For the avoidance of doubt, a “Benchmark
Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information
set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the
calculation thereof).
“Benchmark
Unavailability Period” means, with respect to any Benchmark, the period (if any) (x)
beginning at the time that a Benchmark Replacement Date pursuant to clause (1) or (2) of that definition has occurred if, at such
time, no Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance
with Section 3.8 and (y) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes
hereunder and under any Loan Document in accordance with Section 3.8.
“Beneficial
Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation”
means 31 C.F.R. § 1010.230.
“Benefit
Plan” means any of (a) an “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to Title
I of ERISA, (b) a “plan” as defined in Section 4975 of the Code to which Section 4975 of the Code applies, and (c) any Person
whose assets include (for purposes of the Plan Asset Regulations or otherwise for purposes of Title I of ERISA or Section 4975 of the
Code) the assets of any such “employee benefit plan” or “plan”.
“BHC
Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with,
12 U.S.C. § 1841(k)) of such party.
“Borrower” means Walker & Dunlop, Inc.,
a Maryland corporation.
“Borrower
Materials” means the materials and/or information provided on or behalf of the Borrower hereunder and made available to the
Lenders by the Administrative Agent and/or the Arranger by posting on the Platform.
“Borrowing”
means Term Loans of the same Class and Type, made, converted or continued on the same date and, in the case of Term Benchmark Loans, as
to which a single Interest Period is in effect.
“Business
Day” means any day other than a Saturday, Sunday or legal holiday on which banks in Charlotte, North Carolina and New York,
New York, are open for the conduct of their commercial banking business.
“Capital
Expenditures” means, with respect to the Credit Parties on a Consolidated basis, for any period, (a) the additions to property,
plant and equipment and other capital expenditures that are (or would be) set forth in a consolidated statement of cash flows of such
Person for such period prepared in accordance with GAAP and (b) Capital Lease Obligations during such period, but excluding any acquisition
of all or substantially all of the assets, assets consisting of a business, line of business, unit or division or any Equity Interests
of any other Person.
“Capital
Lease Obligations” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified
and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized
amount thereof determined in accordance with GAAP.
“Cash
Equivalents” means (a) securities issued or directly and fully guaranteed or insured by the United States or any agency or
instrumentality thereof having maturities of not more than twelve months from the date of acquisition (“Government
Obligations”), (b) Dollar denominated (or foreign currency fully hedged) time deposits, certificates of deposit,
Eurodollar time deposits and Eurodollar certificates of deposit of (y) any domestic commercial bank of recognized standing having
capital and surplus in excess of $250,000,000 or (z) any bank whose short-term commercial paper rating from S&P is at least A-1
or the equivalent thereof or from Moody’s is at least P-1 or the equivalent thereof (any such bank being an “Approved
Bank”), in each case with maturities of not more than 364 days from the date of acquisition, (c) commercial paper and
variable or fixed rate notes rated A-1 (or the equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or better
by Moody’s and maturing within twelve months of the date of acquisition (other than paper or notes issued by the Borrower or
an Affiliate of the Borrower), (d) repurchase agreements with a bank or trust company (including a Lender) or a recognized
securities dealer having capital and surplus in excess of $500,000,000 for direct obligations issued by or fully guaranteed by the
United States, (e) obligations of any state of the United States or any political subdivision thereof for the payment of the
principal and redemption price of and interest on which there shall have been irrevocably deposited Government Obligations maturing
as to principal and interest at times and in amounts sufficient to provide such payment, and (f) Dollar denominated time and demand
deposit accounts or money market accounts with those domestic banks meeting the requirements of item (y) or (z) of clause (b) above
and any other domestic commercial banks insured by the FDIC with an aggregate balance not to exceed in the aggregate at any time at
any such bank such amount as may be fully insured by the FDIC from time to time.
“Cash
Management Agreement” means any agreement to provide cash management services, including treasury, depository, overdraft, credit
or debit card (including non-card electronic payables and purchasing cards), electronic funds transfer and other cash management arrangements.
“Cash
Management Bank” means any Person that (a) at the time it enters into a Cash Management Agreement with a Credit Party after
the Closing Date, is a Lender, an Affiliate of a Lender, the Administrative Agent or the Arranger or an Affiliate of the Administrative
Agent or the Arranger, or
(b) is a Lender or an Affiliate of
a Lender or the Administrative Agent or the Arranger or an Affiliate of the Administrative Agent or the Arranger that is a party to a
Cash Management Agreement with a Credit Party on the Closing Date.
“Change
in Control” means, at any time, any “person” or “group” (as such terms are used in Sections 13(d) and
14(d) of the Exchange Act, but excluding any employee benefit plan of such person or its Subsidiaries, and any person or entity acting
in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a “person” or “group” shall be deemed to
have “beneficial ownership” of all Equity Interests that such “person” or “group” has the right to
acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than forty
percent (40%) of the Equity Interests of the Borrower entitled to vote in the election of members of the board of directors (or equivalent
governing body) of the Borrower.
“Change
in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of
any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation
or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether
or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (i)
the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in
connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the
Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities,
in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted,
adopted, implemented or issued.
“Class”
means, when used in reference to (a) any Term Loan, whether such Term Loan is an Initial Term Loan, an
Incremental Term B Loan, an Incremental Term Loan, an Extended Term Loan or a Refinancing Term Loan, (b) any Term Loan
Commitment, whether such Term Loan Commitment is a Term Loan Commitment with respect to an Initial Term Loan,
an Incremental Term B Loan or an Incremental Term Loan, and (c) any Lender, refers to whether such Lender has a Term Loan
or Term Loan Commitment with respect to a particular Class of Term Loans or Term Loan Commitments. Incremental Term Loans, Extended Term
Loans and Refinancing Term Loans that have different terms and conditions shall be construed to be in different Classes.
“Closing Date” means the date of this Agreement.
“CME
Term SOFR Administrator” means CME Group Benchmark Administration Limited as administrator of the forward-looking term Secured
Overnight Financing Rate (SOFR) (or a successor administrator).
“Code” means the Internal Revenue Code
of 1986, as amended.
“Collateral”
means the collateral security for the Secured Obligations pledged or granted pursuant to the Security Documents.
“Collateral
Agreement” means the Guaranty and Collateral Agreement of even date herewith executed by the Credit Parties in favor of the
Administrative Agent, for the ratable benefit of the Secured Parties.
“Commodity
Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended.
“Connection
Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise
Taxes or branch profits Taxes.
“Consolidated”
means, when used with reference to financial statements or financial statement items of any Person, such statements or items on a consolidated
basis in accordance with applicable principles of consolidation under GAAP.
“Consolidated
Adjusted EBITDA” means, for any period, the sum of the following determined on a Consolidated basis, without duplication,
for the Credit Parties in accordance with GAAP: (a) Consolidated Corporate Net Income for such period plus (b) the sum of the
following, without duplication, to the extent deducted in determining Consolidated Corporate Net Income for such period: (i) income
and franchise taxes, (ii) Consolidated Corporate Interest Expense, (iii) amortization, depreciation and other non-cash charges
(including any non-cash charges with respect to the write-off of Servicing Contracts) (except to the extent that such non-cash
charges are reserved for cash charges to be taken in the future), (iv) extraordinary losses (excluding extraordinary losses from
discontinued operations), (v) provisions for at-risk sharing obligations related solely to Fannie Mae Mortgage Loans pursuant to any
Fannie Mae Program or any comparable loss sharing arrangement permitted pursuant to Section 7.1(k) in an aggregate amount not
to exceed ten percent (10%) of Consolidated Adjusted EBITDA (determined without reference to this clause (b)(v)) for such period and
(vi) Transaction Costs less (c) the sum of the following, without duplication, to the extent included in determining
Consolidated Corporate Net Income for such period: (i) interest income on cash or Cash Equivalents and other financing activities
outside the ordinary course of business, (ii) any extraordinary gains, (iii) non-cash gains or non-cash items increasing
Consolidated Corporate Net Income, (iv) capitalized amounts attributable to origination of Servicing Contract rights and (v) any
cash loan loss expenses not otherwise deducted or excluded from the determination of Consolidated Corporate Net Income. For purposes
of this Agreement, Consolidated Adjusted EBITDA shall (x) be adjusted on a Pro Forma Basis and (y) not include any net income (or
loss) attributable to Excluded Subsidiaries, except to the extent provided in the definition of “Consolidated Corporate Net
Income.”
“Consolidated
Corporate Indebtedness” means, as of any date of determination with respect to the Credit Parties on a Consolidated basis without
duplication, the sum of all Indebtedness of the Credit Parties which shall exclude (a) any Non-Recourse Indebtedness to the extent not
constituting Excess Permitted Guarantees, (b) any Permitted Funding Indebtedness and (c) any trade payables incurred in the ordinary course
on customary trade terms and shall include all Securitization Transaction Attributed Indebtedness. For purposes of determining the Consolidated
Corporate Indebtedness at any time, all earn-out obligations of any Credit Party shall not be included irrespective of whether such earn-out
obligation is contingent or whether such obligation is indebtedness or a liability for purposes of GAAP.
“Consolidated
Corporate Interest Expense” means, for any period, determined on a Consolidated basis, without duplication, for the Credit
Parties in accordance with GAAP, interest expense (including, without limitation, interest expense attributable to Capital Lease Obligations
and all net payment obligations pursuant to Hedge Agreements) for such period, but excluding any Consolidated Interest Expense with respect
to Non-Recourse Indebtedness or Permitted Funding Indebtedness.
“Consolidated
Corporate Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Corporate Indebtedness on such
date to (b) Consolidated Adjusted EBITDA for the most recent Test Period ending on or immediately prior to such date.
“Consolidated
Corporate Net Income” means, for any period, the net income (or loss) of the Credit Parties for such period, determined on a
Consolidated basis, without duplication, in accordance with GAAP; provided, that in calculating such net income (or loss) for any
period, there shall be excluded (a) the net income (or loss) of any Excluded Subsidiary or any Subsidiary of a Credit Party or any other
Person in which any Credit Party has a joint interest with a third party, in each case except to the extent such net income is actually
paid in cash to a Credit Party by dividend or other distribution during such period (net of any taxes payable on such dividends or distributions),
(b) the net income (or loss) of any Person accrued prior to the date it becomes a Credit Party or is merged into or consolidated with
a Credit Party or that Person’s assets are acquired by a Credit Party except to the extent included pursuant to the foregoing clause
(a), and (c) any gain or loss from any sale, lease, license, transfer or other disposition of Property during such period.
“Consolidated
EBITDA” means, for any period, the sum of the following determined on a Consolidated basis, without duplication, for the
Borrower and its Subsidiaries in accordance with GAAP: (a) Consolidated
Net Income for such period plus (b) the sum of the following, without duplication, to the extent deducted in determining
Consolidated Net Income for such period: (i) income and franchise taxes, (ii) Consolidated Interest Expense, (iii) amortization,
depreciation and other non-cash charges (including any non-cash charges with respect to the write-off of Servicing Contracts)
(except to the extent that such non-cash charges are reserved for cash charges to be taken in the future), (iv) extraordinary losses
(excluding extraordinary losses from discontinued operations), (v) provisions for at-risk sharing obligations related solely to
Fannie Mae Mortgage Loans pursuant to any Fannie Mae Program or any comparable loss sharing arrangement permitted pursuant to Section
7.1(k), but only to the extent permitted to be added back in determining Consolidated Adjusted EBITDA for such period pursuant
to clause (b)(v) of the definition of “Consolidated Adjusted EBITDA” and (vi) Transaction Costs less (c) the sum
of the following, without duplication, to the extent included in determining Consolidated Net Income for such period: (i) interest
income on cash or Cash Equivalents and other financing activities outside the ordinary course of business, (ii) any extraordinary
gains, (iii) non-cash gains or non-cash items increasing Consolidated Net Income, (iv) capitalized amounts attributable to
origination of Servicing Contract rights and (v) any cash loan loss expenses not otherwise deducted or excluded from the
determination of Consolidated Net Income. For purposes of this Agreement, Consolidated EBITDA shall be adjusted on a Pro Forma
Basis.
“Consolidated
Interest Expense” means, for any period, determined on a Consolidated basis, without duplication, for the Borrower and its Subsidiaries
in accordance with GAAP, interest expense (including, without limitation, interest expense attributable to Capital Lease Obligations and
all net payment obligations pursuant to Hedge Agreements) for such period.
“Consolidated
Net Income” means, for any period, the net income (or loss) of the Borrower and its Subsidiaries for such period, determined
on a Consolidated basis, without duplication, in accordance with GAAP; provided, that in calculating Consolidated Net Income of
the Borrower and its Subsidiaries for any period, there shall be excluded (a) the net income (or loss) of any Person (other than a Subsidiary
which shall be subject to clause (c) below), in which the Borrower or any of its Subsidiaries has a joint interest with a third party,
except to the extent such net income is actually paid in cash to the Borrower or any of its Subsidiaries by dividend or other distribution
during such period, (b) the net income (or loss) of any Person accrued prior to the date it becomes a Subsidiary of the Borrower or any
of its Subsidiaries or is merged into or consolidated with the Borrower or any of its Subsidiaries or that Person’s assets are
acquired by the Borrower or any of its Subsidiaries except to the extent included pursuant to the foregoing clause (a), (c) the net income
(if positive), of any Subsidiary to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary
to the Borrower or any of its Subsidiaries of such net income (i) is not at the time permitted by operation of the terms of its charter
or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to such Subsidiary or (ii)
would be subject to any taxes payable on such dividends or distributions, but in each case only to the extent of such prohibition or
taxes and (d) any gain or loss from Asset Dispositions during such period.
“Consolidated
Secured Indebtedness” means, as of any date of determination, the aggregate principal amount of Consolidated Corporate Indebtedness
that is secured by a Lien on any assets of the Credit Parties.
“Consolidated
Secured Leverage Ratio” means, as of any date of determination, the ratio of (a) the Consolidated Secured Indebtedness on such
date to (b) Consolidated Adjusted EBITDA for the most recent Test Period ending on or immediately prior to such date.
“Control”
means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.
“Converted
Incremental Term B Loan” means each Incremental Term B Loan held by an Amendment No. 2 Converting Lender on the Amendment No. 2
Effective Date immediately prior to the effectiveness of Amendment No. 2 (or, if less, the amount notified to such Amendment No. 2 Converting
Lender by the Amendment No. 2 Lead Arranger).
“Corresponding
Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment
period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
“Covered Entity” means any of the following:
(i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii)
a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii)
a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Covered Party” has the meaning assigned
thereto in Section 11.24.
“Credit Parties” means, collectively, the
Borrower and the Subsidiary Guarantors.
“Cumulative
Retained Excess Cash Flow Amount” means, at any date, an amount (which shall not be less than zero for any Excess Cash Flow
Period) determined on a cumulative basis equal to the aggregate cumulative sum of the Retained Percentage of Excess Cash Flow for all
Excess Cash Flow Periods ending after the Closing Date and prior to such date.
“Daily
Simple SOFR” means, for any day (a “SOFR Rate Day”), a rate per annum equal to SOFR for the day (such day
“SOFR Determination Date”) that is five (5) U.S. Government Securities Business Days prior to (i) if such SOFR Rate
Day is a U.S. Government Securities Business Day, such SOFR Rate Day or (ii) if such SOFR Rate Day is not a U.S. Government Securities
Business Day, the U.S. Government Securities Business Day immediately preceding such SOFR Rate Day, in each case, as such SOFR is published
by the SOFR Administrator on the SOFR Administrator’s Website. Any change in Daily Simple SOFR due to a change in SOFR shall be
effective from and including the effective date of such change in SOFR without notice to the Borrower.
“Debt
Issuance” means the issuance of any Indebtedness for borrowed money by any Credit Party or any of its Subsidiaries (other than
Excluded Subsidiaries).
“Debt
Rating” means, as applicable, (a) the corporate family rating of the Borrower as determined by Moody’s from time to time,
(b) the corporate rating of the Borrower as determined by S&P from time to time and (c) the ratings of the Term Loan Facility as determined
by Moody’s and/or S&P from time to time.
“Debtor
Relief Laws” means the Bankruptcy Code of the United States of America, and all other liquidation, conservatorship, bankruptcy,
assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief
Laws of the United States or other applicable jurisdictions from time to time in effect.
“Default”
means any of the events specified in Section 9.1 which with the passage of time, the giving of notice or any other condition, would
constitute an Event of Default.
“Default
Rights” means has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§
252.81, 47.2 or 382.1, as applicable.
“Defaulting
Lender” means, subject to Section 3.14(b), any Lender that (a) has failed to (i) fund all or any portion any Term Loan
required to be funded by it hereunder within two Business Days of the date such Term Loans were required to be funded hereunder unless
such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s 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 Administrative Agent or any other Lender any other amount required
to be paid by it hereunder within two Business Days of the date when due or (b) 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 reorganization or liquidation of its business or assets,
including the FDIC or any other state or federal regulatory authority acting in such a capacity or (iii) become the subject of a Bail-In
Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity
interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest
does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement
of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow
or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting
Lender under any one or more of clauses (a) or (b) above shall be conclusive and binding absent manifest error, and such Lender shall
be deemed to be a Defaulting Lender (subject to Section 3.14(b)) upon delivery of written notice of such determination to the Borrower
and each Lender.
“Disqualified
Equity Interests” means any Equity Interests that, by their terms (or by the terms of any security or other Equity Interest
into which they are convertible or for which they are exchangeable) or upon the happening of any event or condition, (a) mature or are
mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund obligation or otherwise (except
as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control
or asset sale event shall be subject to the prior repayment in full of the Term Loans and all other Obligations that are accrued and payable
and the termination of the Term Loan Commitments), (b) are redeemable at the option of the holder thereof (other than solely for Qualified
Equity Interests) (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence
of a change of control or asset sale event shall be subject to the prior repayment in full of the Term Loans and all other Obligations
that are accrued and payable and the termination of the Term Loan Commitments), in whole or in part, (c) provide for the scheduled payment
of dividends in cash or (d) are or become convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute
Disqualified Equity Interests, in each case, prior to the date that is 91 days after the Term Loan Maturity Date; provided that
if such Equity Interests is issued pursuant to a plan for the benefit of the Borrower or its Subsidiaries or by any such plan to such
employees, such Equity Interests shall not constitute Disqualified Equity Interests solely because they may be required to be repurchased
by the Borrower or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations.
“Dollars”
or “$” means, unless otherwise qualified, dollars in lawful currency of the United States.
“Domestic
Subsidiary” means any Subsidiary organized under the laws of the United States, any state thereof or the District of Columbia.
“Dutch Auction” has
the meaning assigned thereto in Section 11.9(g).
“ECF
Percentage” means, for any Excess Cash Flow Period or Fiscal Year, as the case may be, (a)
50%, if the Consolidated Corporate Leverage Ratio as of the last day of such Excess Cash Flow Period or
Fiscal Year, as the case may be, is greater than 3.00 to 1.00, (b) 25%, if the Consolidated Corporate Leverage Ratio as of the last
day of such Excess Cash Flow Period or Fiscal Year, as the case may be, is greater than 2.50 to 1.00, but less than or equal to 3.00
to 1.00 and (c) 0%, if the Consolidated Corporate Leverage Ratio as of the last day of such Excess Cash Flow Period or Fiscal Year,
as the case may be, is less than or equal to 2.50 to 1.00.
“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.
“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 credit institution or investment firm
established in any EEA Member Country.
“Effective
Yield” means, as to any Indebtedness, the effective interest rate with respect thereto as reasonably determined by the Administrative
Agent in consultation with the Borrower and consistent with generally accepted financial practices, it being agreed that (x) arrangement,
commitment, structuring, underwriting, advisory, ticking, unused line, call protection, prepayment premium, consent and amendment fees,
or any similar fees payable in connection with the commitment or syndication of such Indebtedness paid or payable to any of the applicable
arrangers, advisors or other agents (or their respective affiliates) in their respective capacities as such in connection with the applicable
Indebtedness, as applicable (whether or not such fees are paid to or shared in whole or in part with any lenders thereunder), and any
other fees that are not generally paid to all lenders (or their respective affiliates) ratably with respect to such loans or such facility
and that are paid or payable in connection with such loans or such facility, shall be excluded, (y) original issue discount and upfront
fees paid or payable to the lenders thereunder shall be included (with original issue discount and upfront fees being equated to interest
based on assumed four-year life to maturity (or, if less, the remaining life to maturity) without any present value discount) and (z)
to the extent that the Adjusted Term SOFR Rate for a three month interest period on the closing date of any such Incremental Term Loan
Commitment is (A) less than the then-applicable interest rate floor, the amount of such difference shall be deemed added to the interest
margin for the applicable existing Term Loans, solely for the purpose of determining whether an increase in the interest rate margins
for the applicable existing Term Loans shall be required and (B) less than the interest rate floor, if any, applicable to any such Incremental
Term Loans, the amount of such difference shall be deemed added to the interest rate margins for such Incremental Term Loans solely for
such purpose; provided that, to the extent any increase in interest rate margin would be required pursuant to the foregoing provisions,
solely on account of clause (B) immediately above, such increase shall be effected solely by way of an increase in the Adjusted Term SOFR
Rate floor instead of an increase in the Applicable Margin).
“Electronic
Signature” means an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted
by a Person with the intent to sign, authenticate or accept such contract or record.
“Eligible
Assignee” means any Person that meets the requirements to be an assignee under Sections 11.9(b)(iii), (v) and
(vi) (subject to such consents, if any, as may be required under Section 11.9(b)(iii)).
“Employee
Benefit Plan” means (a) any employee benefit plan within the meaning of Section 3(3) of ERISA that is maintained for employees
of any Credit Party or any ERISA Affiliate or (b) any Pension Plan or Multiemployer Plan that has at any time within the preceding seven
(7) years been maintained, funded or administered for the employees of any Credit Party or any current or former ERISA Affiliate.
“Environmental
Claims” means any and all administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, accusations,
allegations, notices of noncompliance or violation, investigations (other than internal reports prepared by any Person in the ordinary
course of business and not in response to any third party action or request of any kind) or proceedings relating in any way to any actual
or alleged violation of or liability under any Environmental Law or relating to any permit issued, or any approval given, under any such
Environmental Law, including, without limitation, any and all claims by Governmental Authorities for enforcement, cleanup, removal, response,
remedial or other actions or damages, contribution, indemnification, cost recovery, compensation or injunctive relief resulting from Hazardous
Materials or arising from alleged injury or threat of injury to public health or the environment.
“Environmental
Laws” means any and all federal, foreign, state, provincial and local laws, statutes, ordinances, codes, rules, standards and
regulations, permits, licenses, approvals, interpretations and orders of courts or Governmental Authorities, relating to the protection
of public health or the environment, including, but not limited to, requirements pertaining to the manufacture, processing, distribution,
use, treatment, storage, disposal, transportation, handling, reporting, licensing, permitting, investigation or remediation of Hazardous
Materials.
“Equity
Interests” means (a) in the case of a corporation, capital stock, (b) in the case of an association or business entity, any
and all shares, interests, participations, rights or other equivalents (however designated) of capital stock, (c) in the case of a partnership,
partnership interests (whether general or limited), (d) in the case of a limited liability company, membership interests, (e) any other
interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets
of, the issuing Person and (f) any and all warrants, rights or options to purchase any of the foregoing.
“Equity
Issuance” means any issuance by the Borrower of common shares of its Equity Interests to any Person that is not a Credit Party
(including, without limitation, in connection with the exercise of options or warrants or the conversion of any debt securities to equity).
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations thereunder.
“ERISA
Affiliate” means any Person who together with any Credit Party or any of its Subsidiaries is treated as a single employer within
the meaning of Section 414(b), (c), (m) or (o) of the Code or Section 4001(b) of ERISA.
“EU
Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor
thereto), as in effect from time to time.
“Event
of Default” means any of the events specified in Section 9.1; provided that any requirement for passage of time,
giving of notice, or any other condition, has been satisfied.
“Excess
Cash Flow” means, for the Credit Parties on a Consolidated basis, in accordance with GAAP for any Excess Cash Flow Period:
(a)
the sum, without duplication, of (i) Consolidated Corporate Net Income for such Excess Cash Flow Period, (ii) an amount equal to
the amount of all non-cash charges to the extent deducted in determining Consolidated Corporate Net Income for such Excess Cash Flow Period,
(iii) the amount of tax expense deducted in determining Consolidated Corporate Net Income of the Credit Parties for such Excess Cash Flow
Period to the extent it exceeds the amount of cash taxes (including penalties and interest) paid or tax reserves set aside or payable
(without duplication) in such Excess Cash Flow Period and (iv) decreases in Working Capital for such Excess Cash Flow Period, minus
(b)
the sum, without duplication, of (i) the aggregate amount of cash (A) actually paid by the Credit Parties during such Excess Cash
Flow Period on account of Capital Expenditures and Permitted Acquisitions (including any earnouts paid in connection with such Permitted
Acquisitions) and (B) Investments and Restricted Payments made during such Excess Cash Flow Period (in each case under this clause (i)
other than to the extent any such Capital Expenditure, Permitted Acquisition or other Investment or Restricted Payment is made or is
expected to be made with the proceeds of Indebtedness of the Credit Parties (other than revolving indebtedness)), (ii) the aggregate
amount of all principal payments of Indebtedness of any Credit Party (including (x) the principal component of payments in respect of
Capital Lease Obligations and (y) the amount of any prepayment of Term Loans pursuant to Section 2.3, 2.4(b)(ii) or 2.4(b)(iii)
(to the extent the Asset Disposition or Insurance or Condemnation Event giving rise to such mandatory prepayment increased Consolidated
Corporate Net Income) (but excluding all other prepayments of the Term Loans) made in cash by the Credit Parties during such Excess Cash
Flow Period (other than in respect of any revolving credit facility to the extent there is not an equivalent permanent reduction in commitments
thereunder)), except to the extent financed with the proceeds of other Indebtedness of the Credit Parties (other than revolving indebtedness),
(iii) an amount equal to the amount of all non-cash credits and
other non-cash items, in each case, to the extent included in determining Consolidated Corporate Net Income for such Excess Cash Flow
Period (including, without limitation, capitalized amounts attributable to origination of Servicing Contract rights), (iv) the amount
of cash taxes (including penalties and interest) paid or tax reserves set aside or payable (without duplication) by the Credit Parties
in such Excess Cash Flow Period to the extent they exceed the amount of tax expense deducted in determining Consolidated Corporate Net
Income for such Excess Cash Flow Period and (v) increases to Working Capital for such Excess Cash Flow Period.
“Excess
Cash Flow Period” means each fiscal quarter of the Borrower beginning with the fiscal quarter ending December 31, 2021.
“Excess
Permitted Guarantees” means any Permitted Guarantee to the extent that the value of such Guarantee (as determined in accordance
with Section 1.8) exceeds the Realizable Value of the assets that are subject to a Lien securing the Indebtedness that is the subject
of such Permitted Guarantee.
“Exchange
Act” means the Securities Exchange Act of 1934 (15 U.S.C. § 77 et seq.), as amended.
“Excluded
Information” means any non-public information with respect to the Borrower or its Subsidiaries or any of their respective securities
to the extent such information could have a material effect upon, or otherwise be material to, an assigning Lender’s decision to
assign Term Loans or a purchasing Lender’s decision to purchase Term Loans.
“Excluded Subsidiary”
means each of the following:
(a) each
of W&D Interim Lender LLC, W&D Interim Lender II LLC, W&D Interim Lender III, Inc., W&D Interim Lender IV, LLC, W&D
Interim Lender V, Inc., W&D Interim Lender VI, LLC, Walker & Dunlop Commercial Mortgage Manager, LLC, Walker & Dunlop Commercial
Property Funding, LLC, Walker & Dunlop Commercial Property Funding I, LLC, Walker & Dunlop Commercial Property Funding I WF,
LLC, Walker & Dunlop Commercial Property Funding I CS, LLC, Walker & Dunlop Commercial Property Funding I CB, LLC, WDIS, Inc.,
Walker & Dunlop Investment Management, LLC, WD-ILP JV Investor, LLC (formerly known as WD-BXMT JV Investor, LLC), Walker & Dunlop
Investment Partners, Inc. (formerly known as JCR Capital Investment Corporation), JCR Capital Investment Company, LLC (and various fund
entities controlled directly/indirectly by JCR Capital Investment Company, LLC), Enodo, Inc., W&D KBP, LLC, W&D ETE, LLC, WD-G
JV Investor, LLC, WD-IC JV GP, LLC, WD-IC JV Investor, LLC, WDIS WA, LLC, WDIB - Investor, LLC, WDIB, LLC, Zelman Partners, LLC, WDAAC,
LLC, W&D STCI, LLC, W&D RPS HoldCo, LLC and their respective Subsidiaries, but, in each case, only for so long as such Person
continues to satisfy the requirements for Excluded Subsidiaries in Section 6.14(d);
(b)
any Subsidiary designated in accordance with Section 6.14(d)(i) that has not been re-designated or reclassified in accordance
with Section 6.14(d)(ii);
(c) any Subsidiary that is a Securitization Entity; and
(d) any
Foreign Subsidiary that is not disregarded for tax purposes and the guarantee by such Foreign Subsidiary would have material adverse
federal income tax consequences for the Borrower (by constituting an investment of earnings in United States property under Section 956
of the Code, triggering an increase in the gross income of the Borrower pursuant to Section 951 of the Code) after giving effect to any
corresponding credits or offsets;
provided
that, notwithstanding anything to the contrary in this Agreement, (i) no Person that is a Credit Party as of the Closing Date and (ii)
no Subsidiary that itself or through any of its Subsidiaries owns, directly or indirectly, any Equity Interests or Indebtedness of, or
owns or holds any Lien on any property of, a Credit Party shall be an Excluded Subsidiary.
“Excluded
Swap Obligation” means, with respect to any Credit Party, any Swap Obligation if, and to the extent that, all or a portion of
the liability of such Credit Party for or the guarantee of such Credit Party of, or the grant by such Credit Party of a security interest
to secure, such Swap Obligation (or any liability or guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any
rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by
virtue of such Credit Party’s failure for any reason to constitute an “eligible contract participant” as defined in
the Commodity Exchange Act and the regulations thereunder at the time the liability for or the guarantee of such Credit Party or the grant
of such security interest becomes effective with respect to such Swap Obligation (such determination being made after giving effect to
any applicable keepwell, support or other agreement for the benefit of the applicable Credit Party, including under any keepwell provision
of the Collateral Agreement). If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall
apply only to the portion of such Swap Obligation that is attributable to swaps for which such guarantee or security interest is or becomes
illegal for the reasons identified in the immediately preceding sentence of this definition.
“Excluded
Taxes” means 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 income (however denominated), franchise Taxes, and branch profits Taxes,
in each case, (i) imposed as a result of such Recipient 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) that are Other Connection Taxes, (b) in the case of a Lender, United States federal withholding Taxes imposed on amounts payable
to or for the account of such Lender with respect to an applicable interest in a Term Loan or Term Loan Commitment pursuant to a law in
effect on the date on which (i) such Lender acquires such interest in the applicable Term Loan Commitment (or, in the case of a Term Loan
not funded pursuant to a Term Loan Commitment, acquired such interest in such Term Loan), other than pursuant to an assignment request
by the Borrower under Section 3.12(b) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant
to Section 3.11, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such
Lender acquired the applicable interest in the applicable Term Loan Commitment or Term Loan or to such Lender immediately before it changed
its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.11(g) and (d) any United
States federal withholding Taxes imposed under FATCA.
“Existing
Credit Agreement” means that certain Amended and Restated Credit Agreement dated as of November 7, 2018 (as amended prior to
the Closing Date) by and among the Borrower, the lenders party thereto and Wells Fargo Bank, National Association, as administrative agent.
“Existing
Credit Agreement Refinancing” has the meaning assigned thereto in the definition of “Transactions.”
“Existing Liens” has the meaning assigned
thereto in Section 11.2(j).
“Existing Term Loan Maturity Date”
has the meaning assigned thereto in Section 3.15(a).
“Existing Term Loan Tranche” has the meaning assigned thereto
in Section 3.15(a).
“Extended Term Loan Maturity Date” has the meaning assigned thereto in Section 3.15(c).
“Extended Term Loans” has the meaning assigned thereto in Section 3.15(a).
“Extension Amendment” has the meaning
assigned thereto in Section 3.15(e).
“Extension Effective Date” has the meaning assigned thereto in Section
3.15(c).
“Extension Request” has the meaning assigned thereto in Section 3.15(a).
“Fannie Mae” means Fannie Mae, a corporation
created under the laws of the United States.
“Fannie
Mae Agreements” means all applicable selling and servicing agreements (including the Fannie Mae Servicing Contracts) between
Fannie Mae and any Credit Party under any Fannie Mae Program, together with any other present or future contracts, agreements, instruments
or indentures to which Fannie Mae and any Credit Party are parties or pursuant to which any Credit Party owes any duty or obligation to
Fannie Mae, and including the Fannie Mae Guides, however titled, referred to in those selling and servicing agreements and all other Fannie
Mae guidelines, directives and approvals to which any Credit Party is subject. All Fannie Mae Agreements existing as of the Closing Date
(other than such Fannie Mae Guides) are detailed in Schedule 1.1.
“Fannie
Mae Collateral” has the meaning assigned thereto in Section 8.01(a) of the Collateral Agreement.
“Fannie
Mae Designated Loans” has the meaning assigned thereto in Section 8.01(a) of the Collateral Agreement.
“Fannie
Mae Guide” has the meaning assigned thereto in Section 1.02 of the Collateral Agreement.
“Fannie
Mae Mortgage Loan” means a permanent Mortgage Loan originated under the Fannie Mae Agreements, the Fannie Mae Guide, or any
Fannie Mae Program.
“Fannie
Mae Program” means (a) any program offered by Fannie Mae to which a Credit Party is a party as of the Closing Date
pursuant to a Fannie Mae Agreement set forth on Schedule 1.1 hereto and (b)
any other program offered by Fannie Mae at any time and from time to time after the Closing Date in which any Credit
Party participates pursuant to the Fannie Mae Agreements.
“Fannie
Mae Security Interest” has the meaning assigned thereto in Section 8.01(a) of the Collateral Agreement.
“Fannie
Mae Servicing Contracts” means any Servicing Contracts between any Credit Party and Fannie Mae.
“FATCA”
means 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), any current or future regulations or official interpretations thereof and
any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above),
and any intergovernmental agreements among Governmental Authorities (and any related laws, regulations or official administrative guidance)
implementing the foregoing.
“FDIC” means the Federal Deposit Insurance
Corporation.
“Federal
Funds Effective Rate” means, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions
by depositary institutions, as determined in such manner as shall be set forth on the NYFRB’s Website from time to time, and published
on the next succeeding Business Day by the NYFRB as the effective federal funds rate; provided that if the Federal Funds Effective
Rate as so determined would be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“Federal
Reserve Board” means the Board of Governors of the Federal Reserve System of the United States of America.
“FHA” means the United States Federal Housing
Administration.
“FHA/HUD
Agreements” means the Multifamily Accelerated Processing Guide, with respect to any Credit Party under any FHA/HUD Program,
together with any other present or future contracts, agreements, instruments or indentures to which FHA and/or HUD and any Credit Party
are parties or pursuant to which any Credit Party owes any duty or obligation to FHA and/or HUD, and including the FHA/HUD Guides, however
titled, referred to in those selling and servicing agreements and all other FHA/HUD guidelines, directives and approvals to which any
Credit Party is subject. All FHA/HUD Agreements existing as of the Closing Date (other than such FHA/HUD Guides) are detailed in Schedule
1.1.
“FHA/HUD
Collateral” means all “Collateral” (as defined in Section 1.02 of the Collateral Agreement) in any way relating
to the FHA/HUD Loans, including without limitation, all servicing fees and other income received by any Credit Party with respect to FHA/HUD
Loans, except as and to the limited extent as may be expressly prohibited or limited under any of the FHA/HUD Agreements.
“FHA/HUD
Guide” has the meaning assigned thereto in Section 1.02 of the Collateral Agreement.
“FHA/HUD
Loans” has the meaning assigned thereto in Section 1.02 of the Collateral Agreement.
“FHA/HUD
Program” means any of (a) the Multifamily Accelerated Processing program, and (b) any other program offered by FHA or HUD at
any time and from time to time in which any Credit Party participates.
“FHA/HUD
Security Interest” means the security interest granted to and in the FHA/HUD Collateral as and to the extent provided in the
Collateral Agreement.
“Financial
Covenant” means, on any date of determination, the applicable Asset Coverage Ratio covenant level required pursuant to Section
7.14.
“First
Tier Foreign Subsidiary” means any Foreign Subsidiary that is a “controlled foreign corporation” within the meaning
of Section 957 of the Code and the Equity Interests of which are owned directly by any Credit Party.
“Fiscal Year”
means the fiscal year of the Borrower and its Subsidiaries ending on December 31.
“Fixed Amounts” has the meaning assigned
thereto in Section 1.12(b).
“Floor”
means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification,
amendment or renewal of this Agreement or otherwise) with respect to the Adjusted Term SOFR Rate. For the avoidance of doubt the initial
Floor for the Adjusted Term SOFR Rate shall be 0.50%.
“Foreign Lender” means
a Lender that is not a U.S. Person.
“Foreign Subsidiary”
means any Subsidiary that is not a Domestic Subsidiary.
“Freddie
Mac” means Freddie Mac, a corporation organized under the laws of the United States.
“Freddie
Mac Agreements” means all applicable selling and servicing agreements (including the Freddie Mac Servicing Contracts) between
Freddie Mac and any Credit Party under any Freddie Mac Program, together with any other present or future contracts, agreements, instruments
or indentures to which Freddie Mac and any Credit Party are parties or pursuant to which any Credit Party owes any duty or obligation
to Freddie Mac, and including the Freddie Mac Guide, however titled, referred to in those selling and servicing agreements and all other
Freddie Mac guidelines, directives and approvals to which any Credit Party is subject. All Freddie Mac Agreements existing as of the
Closing Date (other than the Freddie Mac Guide) are detailed in Schedule 1.1.
“Freddie
Mac Collateral” has the meaning assigned thereto in Section 8.02(a) of the Collateral Agreement.
“Freddie
Mac Designated Loans” has the meaning assigned thereto in Section 8.02(a) of the Collateral Agreement.
“Freddie
Mac Guide” has the meaning assigned thereto in Section 1.02 of the Collateral Agreement.
“Freddie
Mac Program” means any of (a) the Freddie Mac Program Plus, (b) the Targeted Affordable Housing Program, and (c) any other program
offered by Freddie Mac at any time and from time to time in which any Credit Party participates.
“Freddie
Mac Security Interest” has the meaning assigned thereto in Section 8.02(a) of the Collateral Agreement.
“Freddie
Mac Servicing Contracts” means any Servicing Contracts between any Credit Party and Freddie Mac.
“Fund”
means any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its activities.
“GAAP”
means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards
Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are
applicable to the circumstances as of the date of determination, consistently applied.
“Ginnie
Mae” means the Government National Mortgage Association (commonly known as Ginnie Mae), a United States government owned corporation
within HUD.
“Ginnie
Mae Agreements” means all applicable agreements, including servicing agreements between Ginnie Mae and any Credit Party under
any Ginnie Mae Program, together with any other present or future contracts, agreements, instruments or indentures to which Ginnie Mae
and any Credit Party are parties or pursuant to which any Credit Party owes any duty or obligation to Ginnie Mae, and including the Ginnie
Mae Guides, however titled, referred to in such agreements (including such servicing agreements) and all other Ginnie Mae guidelines,
directives and approvals to which any Credit Party is subject. All Ginnie Mae Agreements existing as of the Closing Date (other than such
Ginnie Mae Guides) are detailed in Schedule 1.1.
“Ginnie
Mae Collateral” has the meaning assigned thereto in Section 8.03(a) of the Collateral Agreement.
“Ginnie
Mae Designated Loans” has the meaning assigned thereto in Section 8.03(a) of the Collateral Agreement.
“Ginnie
Mae Guide” has the meaning assigned thereto in Section 1.02 of the Collateral Agreement.
“Ginnie
Mae Program” means any program offered by Ginnie Mae at any time and from time to time in which any Credit Party participates.
“Ginnie
Mae Security Interest” has the meaning assigned thereto in Section 8.03(a) of the Collateral Agreement.
“Government
Obligations” has the meaning assigned thereto in the definition of “Cash Equivalents.”
“Governmental
Approvals” means all authorizations, consents, approvals, permits, licenses and exemptions of, and all registrations and filings
with or issued by, any Governmental Authorities.
“Governmental
Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state,
local or otherwise, and any agency (including any Agency), authority, instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including
any supra-national bodies such as the European Union or the European Central Bank).
“Guarantee”
of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing
or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”)
in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or
pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for
the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity
capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation, (d) as an account party in respect of any letter of credit or letter of guaranty issued to support
such Indebtedness or obligation or (e) for the purpose of assuming in any other manner the obligee in respect of such Indebtedness or
other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (whether in whole or
in part).
“guarantor” has the meaning assigned thereto
in the definition of “Guarantee.”
“Hazardous
Materials” means any substances or materials (a) which are or become defined as hazardous wastes, hazardous substances, pollutants,
contaminants, chemical substances or mixtures or toxic substances under any Environmental Law, (b) which are toxic, explosive, corrosive,
flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise harmful to public health or the environment and are or become
regulated by any Governmental Authority, (c) the presence of which require investigation or remediation under any Environmental Law or
common law, (d) the discharge or emission or release of which requires a permit or license under any Environmental Law or other Governmental
Approval, (e) which are deemed by a Governmental Authority to constitute a nuisance or a trespass which pose a health or safety hazard
to Persons or neighboring properties, or (f) which contain, without limitation, asbestos, polychlorinated biphenyls, urea formaldehyde
foam insulation, petroleum hydrocarbons, petroleum derived substances or waste, crude oil, nuclear fuel, natural gas or synthetic gas.
“Hedge
Agreement” means (a) any and all rate 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 bond or forward bond price or forward bond index transactions, interest rate options, forward foreign
exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including
any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement,
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., any International Foreign Exchange Master Agreement, or any other master agreement.
“Hedge
Bank” means any Person that (a) at the time it enters into a Hedge Agreement after the Closing Date with a Credit Party permitted
under Article VII, is a Lender, an Affiliate of a Lender, the Administrative Agent or the Arranger or an Affiliate of the Administrative
Agent or the Arranger, or (b) is a Lender or an Affiliate of a Lender or the Administrative Agent or the Arranger or an Affiliate of the
Administrative Agent or the Arranger that is a party to a Hedge Agreement with a Credit Party on the Closing Date.
“Hedge
Termination Value” means, in respect of any one or more Hedge Agreements, after taking into account the effect of any legally
enforceable netting agreement relating to such Hedge Agreements, (a) for any date on or after the date such Hedge Agreements 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 the foregoing clause (a), the amount(s) determined as the mark-to-market value(s) for such Hedge Agreements, as determined
based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Hedge Agreements (which
may include a Lender or any Affiliate of a Lender).
“HUD” means the United States Department
of Housing and Urban Development.
“HUD
MAP Lender” means a lender approved by HUD under the Multifamily Accelerated Processing program.
“Increased Amount Date” has the meaning
assigned thereto in Section 3.13(a).
“Incremental
Effective Date” has the meaning assigned to such term in Amendment No. 1. The Incremental Effective Date is January 12, 2023.
“Incremental
Equivalent Debt” means Indebtedness issued, incurred or otherwise obtained by any Credit Party in respect of one or more series
of debt securities or loans that are secured by Liens on the Collateral on a pari passu basis to the Liens on the Collateral securing
the Secured Obligations, and that are issued or made in lieu of Incremental Term Loans; provided that (i) the aggregate principal
amount of all Incremental Equivalent Debt at the time of issuance or incurrence shall not exceed the Incremental Term Loan Limit at such
time, (ii) such Incremental Equivalent Debt shall not be subject to any Guarantee by any Person other than a Credit Party, (iii) the
obligations in respect thereof shall not be secured by any Lien on any asset of any Person other than any asset constituting Collateral,
(iv) such Incremental Equivalent Debt shall be secured on a pari passu basis with the Lien securing the Secured Obligations and subject
to a Pari Passu Intercreditor Agreement, (v) at the time of incurrence, other than, in each case, with respect to Permitted Inside Maturity
Debt, such Incremental Equivalent Debt shall have a final maturity date equal to or later than the Term Loan Maturity Date, and a Weighted
Average Life to Maturity equal to or longer than the Weighted Average Life to Maturity of the Initial Term Loans and
the Incremental Term B Loans, (vi) the Administrative Agent shall have received from the Borrower an Officer’s
Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is
in compliance with the Financial Covenant based on the financial statements most recently delivered pursuant to Section 6.1(a)
or 6.1(b), as applicable, both before and after giving effect (on a Pro Forma Basis) to the incurrence of any Incremental Equivalent
Debt (with any Incremental Equivalent Debt, including, without limitation, any revolving commitments, being deemed to be fully funded),
and any Specified Transactions consummated in connection therewith and (vii) the other terms and conditions relating to such debt securities
or loans (other than interest rates, rate floors, call protection, discounts, fees, premiums and optional prepayment or redemption provisions)
are not in the aggregate materially more restrictive than the terms of this Agreement as determined in good faith by the Borrower (except
for provisions applicable only to periods after the Term Loan Maturity Date at the time such Incremental Equivalent Debt is issued or
incurred); provided that Incremental Equivalent Debt in the form of a revolving credit facility may include financial maintenance
covenants that are more restrictive to the Borrower than the Financial Covenant.
“Incremental Lender” has the meaning assigned
thereto in Section 3.13(a).
“Incremental
Term B Commitment” means, with respect to an Incremental Term B Lender, its commitment
to make an Incremental Term B Loan on the Incremental Effective Date in the amount set forth on Schedule I to Amendment No. 1.
“Incremental
Term B Lender” means a Lender with an Incremental Term B Commitment and/or
an outstanding Incremental Term B Loan.
“Incremental
Term B Loan” means the Incremental Term Loan made on the Incremental Effective Date pursuant to Amendment No. 1. Immediately
after giving effect to Amendment No. 1, the aggregate amount of outstanding Incremental Term B Loans on the Incremental Effective Date
was
$200,000,000.
“Incremental Term Loan” has the meaning
assigned thereto in Section 3.13(a).
“Incremental Term Loan Commitment”
has the meaning assigned thereto in Section 3.13(a).
“Incremental
Term Loan Limit” means, with respect to any proposed incurrence of any Incremental Term Loan or Incremental Equivalent Debt
under Section 3.13, an amount equal to the sum of (a) the greater of (i) $230,000,000 and (ii) 100.0% of Consolidated Adjusted
EBITDA as of the most recent Test Period ending on or immediately prior to such date less the total aggregate principal amount
(determined as of the date of incurrence thereof) of all Incremental Term Loans and Incremental Equivalent Debt previously incurred under
this clause (a), plus (b) the maximum amount of Indebtedness that could be incurred on such date which would not cause the Consolidated
Secured Leverage Ratio to exceed 3.00 to 1.00 as if such incurrence occurred on the last day of the Test Period most recently ended on
or before such date (or, in the case of any Incremental Term Loan or Incremental Equivalent Debt the proceeds of which will finance a
Limited Condition Acquisition, the date determined pursuant to Section 1.11), calculated on a Pro Forma Basis after giving effect
to (i) any then requested Incremental Term Loan or Incremental Equivalent Debt (assuming that such Incremental Term Loan or Incremental
Equivalent Debt, including, without limitation, any revolving commitments, is fully funded), (ii) any permanent repayment of Indebtedness
in connection therewith and (iii) if applicable, any Limited Condition Acquisition to be consummated using the proceeds of such Incremental
Term Loan or Incremental Equivalent Debt. Unless the Borrower otherwise notifies the Administrative Agent, if all or any portion of any
Incremental Term Loan or Incremental Equivalent Debt would be permitted under clause (b) above on the applicable date of incurrence, such
Incremental Term Loan or Incremental Equivalent Debt (or the relevant portion thereof) shall be deemed to have been incurred in reliance
on clause (b) above prior to the utilization of any amount available under clause (a) above.
“Incurrence Based Amounts”
has the meaning assigned thereto in Section 1.12(b).
“Indebtedness”
means, with respect to any Person at any date and without duplication, the sum of the following:
(a)
all liabilities, obligations and indebtedness for borrowed money including, but not limited to, obligations evidenced by bonds,
debentures, notes or other similar instruments of any such Person;
(b)
all obligations to pay the deferred purchase price of property or services of any such Person (including, without limitation, all
obligations under non-competition, earnout or similar agreements), except trade payables arising in the ordinary course of business not
more than ninety (90) days past due, or that are currently being contested in good faith by appropriate proceedings and with respect to
which reserves in conformity with GAAP have been provided for on the books of such Person;
(c)
(i) the Attributable Indebtedness of such Person with respect to such Person’s Capital Lease Obligations and Synthetic Leases
(regardless of whether accounted for as indebtedness under GAAP) and (ii) all Securitization Transaction Attributed Indebtedness;
(d)
all obligations of such Person under conditional sale or other title retention agreements relating to property purchased by such
Person to the extent of the value of such property (other than customary reservations or retentions of title under agreements with suppliers
entered into in the ordinary course of business);
(e)
all Indebtedness of any other Person secured by a Lien on any asset owned or being purchased by such Person (including indebtedness
arising under conditional sales or other title retention agreements except trade payables arising in the ordinary course of business),
whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;
(f) all
obligations, contingent or otherwise, of any such Person relative to the face amount of letters of credit, whether or not drawn (including,
without limitation, any reimbursement obligations), and banker’s acceptances issued for the account of any such Person;
(g) all obligations of any such Person in respect of Disqualified Equity Interests;
(h) all net obligations of such Person under any Hedge Agreements; and
(i) all Guarantees of any such Person with respect to any of the foregoing.
For all purposes
hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer to the extent
such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, unless
such Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under any Hedge Agreement on any date
shall be deemed to be the Hedge Termination Value thereof as of such date.
“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 Credit Party under any Loan Document and (b) to the extent not
otherwise described in clause (a), Other Taxes.
“Indemnitee” has the meaning assigned thereto in Section 11.3(b).
“Information” has the meaning assigned thereto in Section 11.10.
“Initial Term Loan”
means, collectively, (i) the term loan made to the Borrower on the
Closing Date and (ii) the Additional Initial Term Loans.
“Insurance
and Condemnation Event” means the receipt by any Credit Party or any of its Subsidiaries (other than Excluded Subsidiaries)
of any cash insurance proceeds or condemnation award payable by reason of theft, loss, physical destruction or damage, taking or similar
event with respect to any of their respective Property.
“Interest
Period” means with respect to any Term Benchmark Borrowing, the period commencing on the date of such Borrowing and ending on
the numerically corresponding day in the calendar month that is one, three or six months thereafter (in each case, subject to the availability
for the Benchmark applicable to the relevant Term Loan or Term Loan Commitment), as the Borrower may elect; provided, that (i)
if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business
Day unless, in the case of a Term Benchmark Borrowing only, such next succeeding Business Day would fall in the next calendar month, in
which case such Interest Period shall end on the next preceding Business Day, (ii) any Interest Period pertaining to a Term Benchmark
Borrowing that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day
in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period
and (iii) no tenor that has been removed from this definition pursuant to Section 3.8(e) shall be available for specification in
such borrowing request. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and,
thereafter, shall be the effective date of the most recent conversion or continuation of such Borrowing.
“Investments” has the meaning assigned
thereto in Section 7.3.
“Investor”
means any Person (other than Fannie Mae, Freddie Mac, Ginnie Mae, FHA, or HUD) that (a) purchases Mortgage Loans serviced by any Credit
Party, or (b) insures or unconditionally guarantees Mortgage Loans serviced by any Credit Party.
“Investor
Agreements” means all applicable selling and servicing agreements (including the Investor Servicing Contracts) between an Investor
and any Credit Party, together with any other present or future contracts, agreements, instruments or indentures to which such Investor
and any Credit Party are parties or pursuant to which any Credit Party owes any duty or obligation to such Investor, and including the
guides, however titled, referred to in those selling and servicing agreements and all other Investor guidelines, directives and approvals
to which any Credit Party is subject.
“Investor
Servicing Contracts” means any Servicing Contracts between any Credit Party and an Investor.
“IRS” means the United States Internal
Revenue Service.
“ISDA
Definitions” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor
thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from
time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.
“JPMorgan” means JPMorgan Chase Bank, N.A.,
a national banking association.
“Junior
Indebtedness” means, the collective reference to any Subordinated Indebtedness, any unsecured Indebtedness incurred under Section
7.1(n) and any Indebtedness that is secured by a Lien on Collateral that is junior to the Liens securing the Term Loans.
“Lender”
means each Person executing this Agreement as a Lender on the Closing Date and any other Person that shall have become a party to this
Agreement as a Lender pursuant to an Assignment and Assumption or pursuant to Section 3.13, other than any Person that ceases to
be a party hereto as a Lender pursuant to an Assignment and Assumption.
“Lender
Joinder Agreement” means a joinder agreement in form and substance reasonably satisfactory to the Administrative Agent delivered
in connection with Section 3.13.
“Lender-Related Party” has the meaning
assigned thereto in Section 11.3(d).
“Lending
Office” means, with respect to any Lender, the office of such Lender maintaining such Lender’s Term Loans.
“License” has the meaning assigned thereto
in Section 6.5(b).
“Lien”
means, with respect to any asset, any mortgage, leasehold mortgage, lien, pledge, charge, security interest, hypothecation or encumbrance
of any kind in respect of such asset. For purposes of this Agreement, a Person shall be deemed to own subject to a Lien any asset which
it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, Capital Lease Obligation
or other title retention agreement relating to such asset.
“Limited
Condition Acquisition” means any acquisition that (a) is not prohibited hereunder, (b) is financed in whole or in part with
a substantially concurrent incurrence of Indebtedness, and (c) is not conditioned on the availability of, or on obtaining, third-party
financing.
“Loan
Documents” means, collectively, this Agreement, Amendment No. 1, Amendment
No. 2, the Pari Passu Intercreditor Agreement, if any, each Term Loan Note, the Security Documents, each Refinancing Amendment,
each Extension Amendment, each Lender Joinder Agreement and each other document, instrument, certificate and agreement executed and delivered
by any of the Credit Parties or any of their respective Subsidiaries in favor of or provided to the Administrative Agent or any Secured
Party in connection with this Agreement or otherwise referred to herein or contemplated hereby (excluding any Secured Hedge Agreement
and any Secured Cash Management Agreement).
“Material
Adverse Effect” means, any of the following: (a) a material adverse change in, or a material adverse effect on, the operations,
business, assets, properties, liabilities (actual or contingent) or condition (financial or otherwise) of either (i) the Borrower and
its Subsidiaries, taken as a whole or (ii) the Credit Parties, taken as a whole, (b) a material impairment of the ability of the Credit
Parties, taken as a whole, to perform their respective obligations under any Loan Document to which any Credit Party is a party, (c) a
material impairment on the rights and remedies of the Administrative Agent or any Lender under any Loan Document, or (d) a material adverse
effect on the legality, validity, binding effect or enforceability against any Credit Party of any Loan Document to which it is a party.
“Material
Contract” means (a) each of the Agency Agreements or (b) any other contract or agreement, written or oral, of any Credit Party
or any of its Subsidiaries, as to both clauses (a) and (b) the breach, non-performance, cancellation or failure to renew of which could
reasonably be expected to have a Material Adverse Effect.
“Moody’s” means Moody’s Investors
Service, Inc.
“Mortgage”
means a mortgage or deed of trust on real property that is improved and substantially completed.
“Mortgage
Loan” means any loan evidenced by a Mortgage Note and secured by a Mortgage and, if applicable, a Mortgage Security Agreement.
“Mortgage
Note” means a promissory note secured by one or more Mortgages and, if applicable, one or more Mortgage Security Agreements.
“Mortgage
Security Agreement” means a security agreement or other agreement that creates a Lien on personal property, including furniture,
fixtures and equipment, to secure repayment of a Mortgage Loan.
“MSR Assets” has the meaning assigned thereto
in the Collateral Agreement.
“Multiemployer
Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA to which any Credit Party or any ERISA
Affiliate is making, or is accruing an obligation to make, or has accrued an obligation to make contributions within the preceding seven
(7) years.
“Net
Cash Proceeds” means, as applicable, (a) with respect to any Asset Disposition or Insurance and Condemnation Event, the gross
proceeds received by any Credit Party or any of its Subsidiaries (other than Excluded Subsidiaries) therefrom (including any cash, Cash
Equivalents, deferred payment pursuant to, or by monetization of, a note receivable or otherwise, as and when received) less the
sum of (i) in the case of an Asset Disposition, all income taxes and
other taxes assessed by, or reasonably estimated to be payable to, a Governmental Authority as a result of such transaction (provided
that if such estimated taxes exceed the amount of actual taxes required to be paid in cash in respect of such Asset Disposition,
the amount of such excess shall constitute Net Cash Proceeds), (ii) all reasonable and customary out-of-pocket fees and expenses incurred
in connection with such transaction or event and (iii) the principal amount of, premium, if any, and interest on any Indebtedness secured
by a Lien on the asset (or a portion thereof) disposed of, which Indebtedness is required to be repaid in connection with such transaction
or event, and (b) with respect to any Equity Issuance or Debt Issuance, the gross cash proceeds received by any Credit Party or any of
its Subsidiaries therefrom less all reasonable and customary out-of-pocket legal, underwriting and other fees and expenses incurred
in connection therewith.
“Non-Consenting
Lender” means any Lender that does not approve any consent, waiver, amendment, modification or termination that (a) requires
the approval of all Lenders or all affected Lenders in accordance with the terms of Section 11.2 and (b) has been approved by the
Required Lenders.
“Non-Defaulting
Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.
“Non-Recourse
Indebtedness” means, with respect to any specified Person or any of its Subsidiaries, Indebtedness that (a) is not, in whole
or in part, Indebtedness of, or secured by any Lien on the assets or properties of, any Credit Party (and for which no Credit Party has
created, maintained or assumed any Guarantee) and for which no holder thereof has or could have upon the occurrence of any contingency,
any recourse against any Credit Party or the assets thereof (other than (i) usual and customary carve out matters for which the Borrower
provides an unsecured Guarantee with respect to fraud, misappropriation, breaches of representations and warranties and misapplication
and (ii) Permitted Guarantees, in each case for which no claim for payment or performance thereof has been made that would constitute
a liability of the Borrower in accordance with GAAP), (b) is owing to a Person that is not the Borrower, a Subsidiary of the Borrower
or an Affiliate of the Borrower or its Subsidiaries and (c) other than as expressly provided herein with respect to the Guarantees contemplated
by the second parenthetical to clause (a) of this definition, the source of repayment for which is expressly limited to the assets or
cash flows of such Person.
“Notice of Borrowing” has the meaning assigned
thereto in Section 2.2(e).
“Notice of Conversion/Continuation”
has the meaning assigned thereto in Section 3.2.
“Notice of Prepayment” has the meaning assigned thereto in
Section 2.4(a).
“NYFRB” means the Federal Reserve Bank of New York.
“NYFRB’s Website”
means the website of the NYFRB at http://www.newyorkfed.org, or any successor source.
“NYFRB
Rate” means, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank
Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided
that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal
funds transaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a federal funds broker of recognized standing
selected by it; provided, further, that if any of the aforesaid rates as so determined be less than zero, such rate shall
be deemed to be zero for purposes of this Agreement.
“Obligations”
means, in each case, whether now in existence or hereafter arising: (a) the principal of and interest on (including interest accruing
after the filing of any bankruptcy or similar petition) the Term Loans and (b) all other fees and commissions (including attorneys’
fees), charges, indebtedness, loans, liabilities, financial accommodations, obligations, covenants and duties owing by the Credit Parties
and each of their respective Subsidiaries to the Lenders or the Administrative Agent, in each case under any Loan Document, with respect
to any Term Loan of every kind, nature and description, direct or indirect, absolute or contingent, due or to become due, contractual
or tortious, liquidated or unliquidated, and whether or not evidenced by any note and including interest and fees that accrue after the
commencement by or against any Credit Party or any Subsidiary thereof of any proceeding under any Debtor Relief Laws, naming such Person
as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.
“OFAC” means
the U.S. Department of the Treasury’s Office of Foreign Assets Control.
“Officer’s
Compliance Certificate” means a certificate of the chief financial officer or the treasurer of the Borrower substantially in
the form attached as Exhibit E.
“Operating
Lease” means, as to any Person as determined in accordance with GAAP, any lease of Property (whether real, personal or mixed)
by such Person as lessee which is not a Capital Lease Obligation.
“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 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 Term Loan or Loan Document).
“Other
Taxes” means all present or future stamp, court, documentary, intangible, recording, filing or similar Taxes that arise from
any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a
security interest 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 3.12).
“Overnight
Bank Funding Rate” means, for any day, the rate comprised of both overnight federal funds and overnight eurodollar transactions
denominated in Dollars by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB
as set forth on the NYFRB’s Website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight
bank funding rate.
“Pari
Passu Intercreditor Agreement” means an intercreditor agreement substantially in the form of Exhibit I (with such changes
thereto as are reasonably acceptable to the Administrative Agent and the Borrower).
“Participant”
has the meaning assigned thereto in Section 11.9(d).
“Participant Register” has the meaning assigned thereto
in Section 11.9(d).
“PATRIOT
Act” means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), as amended.
“Payment” has the
meaning assigned thereto in Section 10.11(c)(i).
“Payment Notice”
has the meaning assigned thereto in Section 10.11(c)(ii).
“PBGC” means the Pension Benefit Guaranty Corporation.
“Pension
Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, which is subject to the provisions of Title IV of ERISA
or Section 412 of the Code and which (a) is maintained, funded or administered for the employees of any Credit Party or any ERISA Affiliate
or (b) has at any time within the preceding seven (7) years been maintained, funded or administered for the employees of any Credit Party
or any current or former ERISA Affiliates.
“Permitted
Acquisition” means any acquisition by a Credit Party in the form of the acquisition of all or substantially all of the assets,
business, unit, division or a line of business, or at least a majority of the outstanding Equity Interests which have the ordinary voting
power for the election of directors of the board of directors (or equivalent governing body) (whether through purchase, merger or otherwise),
of any other Person if each such acquisition meets all of the following requirements, which in the case of a Limited Condition Acquisition
shall be subject to Section 1.11:
(a)
the Person or business to be acquired shall be in a line of business permitted pursuant to Section 7.11;
(b) in
the case of any purchase or other acquisition of Equity Interests in a Person (i) such Person, upon the consummation of such
purchase or acquisition, will be a Subsidiary (including as a result of a merger or consolidation between any Subsidiary and such
Person) and (ii) to the extent required by Section
6.14, such Subsidiary shall become a Subsidiary Guarantor within the time periods and pursuant to the documentation required
thereby; provided that the aggregate consideration paid for Permitted Acquisitions of Persons who do not become Subsidiary
Guarantors, together with the amount of Investments that are at the time outstanding made by Credit Parties in one or more of a
Credit Party’s Subsidiaries that are not Credit Parties pursuant to Section 7.3(a)(iv), shall not exceed the greater of
(x) $125,000,000 and (y) 50.0% of Consolidated Adjusted EBITDA for the most recently ended Test Period after giving effect on a Pro
Forma Basis to the consummation of such Permitted Acquisition;
(c)
the Borrower shall have delivered to the Administrative Agent all notices and other documents required to be delivered pursuant
to, and in accordance with, and to the extent required by, Section 6.14; and
(d) (x)
no Event of Default shall have occurred and be continuing both before and after giving effect to such acquisition and any
Indebtedness incurred in connection therewith and (y) the
Borrower would be in compliance with the Financial Covenant on a Pro Forma Basis after giving effect to such Investment.
“Permitted
Funding Collateral” means, with respect to any Permitted Funding Indebtedness, such assets of the borrower thereunder as are
pledged to support such Permitted Funding Indebtedness. For the avoidance of doubt no Permitted Funding Collateral shall be included in
the calculation of the Asset Coverage Ratio; provided that in no event shall Permitted Funding Collateral include (a) any right
to payments owed to any Credit Party under any of the Servicing Contracts or (b) any MSR Assets, other than such rights to payment and
MSR Assets relating to loans included in such Permitted Funding Collateral.
“Permitted
Funding Indebtedness” means any Indebtedness, which may be structured as loans, warehouse facilities, repurchase facilities,
bridge facilities, working capital facilities or other similar facilities that, in each case, contains customary terms for such Indebtedness
and is incurred in the ordinary course of business of the borrower thereunder but only to the extent that (a) the amount thereof that
the holder of such Indebtedness has contractual recourse to any Credit Party does not exceed the Realizable Value of the assets securing
such Indebtedness and (b) such Indebtedness is secured only by Permitted Funding Collateral applicable to that Permitted Funding Indebtedness.
The amount of any such Indebtedness shall be determined in accordance with GAAP.
“Permitted
Guarantee” means one or more of the following Guarantees of a Credit Party: (a) Guarantees of Indebtedness of an Excluded Subsidiary
consisting of loans or lines of credit incurred by such Excluded Subsidiary in the ordinary course of business that are secured solely
by the assets of Excluded Subsidiary and which such Guarantees are secured, if at all, solely by the Equity Interests issued by such Excluded
Subsidiary to any Credit Party that is providing such Guarantee, (b) unsecured Guarantees of Permitted Funding Indebtedness and (c) Guarantees
of obligations of an entity in which a Credit Party or an Excluded Subsidiary has directly or indirectly made an Investment that is not
otherwise prohibited hereunder, which Guarantee under this clause (c) shall be unsecured and shall be limited to usual and customary carve
out matters with respect to fraud, misappropriation, breaches of representations and warranties and misapplication by a Credit Party or
such entity.
“Permitted
Inside Maturity Debt” means up to $150,000,000 aggregate principal amount of Incremental Equivalent Debt in the form of a revolving
credit facility.
“Permitted Liens” means the Liens permitted
pursuant to Section 7.2.
“Person”
means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
“Plan
Asset Regulations” means 29 C.F.R. § 2510.3-101 et seq., as modified by Section 3(42) of ERISA, as amended from time to
time.
“Platform”
means Debt Domain, IntraLinks, SyndTrak Online or another similar electronic system.
“Pledged
Equity Interests” means all Equity Interests at any time pledged to the Administrative Agent for the benefit of the Secured
Parties pursuant to the Collateral Agreement.
“primary obligor” has the meaning assigned
thereto in the definition of “Guarantee.”
“Prime
Rate” means, at any time, the rate of interest per annum publicly announced from time to time by the Administrative Agent as
its prime rate. Each change in the Prime Rate shall be effective as of the opening of business on the day such change in such prime rate
occurs. The parties hereto acknowledge that the rate announced publicly by the Administrative Agent as its prime rate is an index or base
rate and shall not necessarily be its lowest or best rate charged to its customers or other banks.
“Pro
Forma Basis” means, for purposes of calculating the Consolidated Corporate Leverage Ratio, the Consolidated Secured Leverage
Ratio or the Asset Coverage Ratio (and the component definitions therein) for any period during which one or more Specified Transactions
occurs, that such Specified Transaction (and all other Specified Transactions that have been consummated during the applicable period)
and, except for purposes of determining actual compliance with the Financial Covenant, all Specified Transactions that occur subsequent
to the applicable measurement period and on or prior to the date of determination, in each case, shall be deemed to have occurred as of
the first day of the applicable period of measurement and:
(a)
all income statement items (whether positive or negative) attributable to the Property or Person disposed of in an Asset Disposition
shall be excluded and all income statement items (whether positive or negative) attributable to the Property or Person acquired in a Permitted
Acquisition shall be included; and
(b)
non-recurring costs, extraordinary expenses and other pro forma adjustments attributable to such Specified Transaction may be included
to the extent that such costs, expenses or adjustments:
(i) are reasonably expected to be realized within twenty-four (24) months of such Specified Transaction as set forth in reasonable
detail on a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent;
(ii)
are calculated on a basis consistent with GAAP and Regulation S-X of the Exchange Act; and
(iii)
represent less than twenty-five percent (25%) of Consolidated EBITDA or Consolidated Adjusted EBITDA, as the case may be (determined
without giving effect to this clause (b));
provided
that the foregoing costs, expenses and adjustments shall be without duplication of any costs, expenses or adjustments that are already
included in the calculation of Consolidated EBITDA or Consolidated Adjusted EBITDA or clause (a) above, as the case may be.
“Property”
means any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible,
including, without limitation, Equity Interests.
“PTE”
means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time
to time.
“Public-Sider”
means a Lender whose representatives may trade in securities of the Borrower or its Controlling person or any of its Subsidiaries while
in possession of the financial statements provided by the Borrower under the terms of this Agreement.
“QFC”
has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C.
§ 5390(c)(8)(D).
“QFC Credit Support” has the meaning assigned
thereto in Section 11.24.
“Qualified Equity Interests” means any
Equity Interests that are not Disqualified Equity Interests.
“Qualifying
Mortgage Servicing Rights” means, as of any date of determination, the right to payments owed to any Credit Party under each
of the Servicing Contracts that (a) have been appraised in the most recent appraisals provided to the Administrative Agent in accordance
with Section 6.13(b), (b) are, to the extent provided for in the Collateral Agreement, subject to a first priority Lien in favor
of the Administrative Agent for the benefit of the Secured Parties and (c) are not subject to any other Liens, other than the Lien referred
to in clause (b) of this definition.
“Qualified
Securitization Transaction” means, any Securitization Transaction, provided that (a) the consideration for the Asset
Disposition of Securitization Assets by any Credit Party to any Securitization Entity is not less than fair market value, (b) the board
of directors (or equivalent) of the Borrower shall have determined in good faith that such Securitization Transaction (including financing
terms, covenants, termination events and other provisions) is in the aggregate economically fair and reasonable to the Credit Parties,
(c) except for the Standard Securitization Undertakings related thereto, the obligations under such Securitization Transaction are non-recourse
to the Borrower and its Subsidiaries (other than the applicable Securitization Entity) and (d) the material terms of such Securitization
Transaction are usual and customary for transactions of such type.
“Realizable
Value” means, with respect to any asset of the Borrower or any of its Subsidiaries, (a) in the case of any real property owned
by the Borrower or any of its Subsidiaries and acquired as a result of the foreclosure or other enforcement of a Lien by such Person,
the value realizable upon the disposition of such asset as determined by the Borrower in good faith and consistent with customary industry
practice (which such amount shall not, at any time, exceed the book value of such asset used in preparing the most recent consolidated
balance sheet of the Borrower and its Subsidiaries) and (b) with respect to any other asset, the lesser of (i) if applicable, the face
amount of such asset and (ii) the fair market value of such asset as determined by the Borrower in accordance with the agreement governing
any Indebtedness secured by such asset (or, if such agreement does not contain any such provision, as determined by the senior management
of the Borrower in good faith and consistent with customary industry practice); provided that the Realizable Value of any asset
described in clauses (a) or (b) as to which the Borrower and its Subsidiaries have a binding commitment to purchase from a Person that
is not the Borrower, a Subsidiary of the Borrower or an Affiliate of the Borrower or its Subsidiaries shall be the minimum price payable
to the Borrower and its Subsidiaries for such asset pursuant to the terms of such contractual commitment.
“Reference
Time” with respect to any setting of the then-current Benchmark means (1) if such Benchmark is the Term SOFR Rate, 5:00 a.m.
(Chicago time) on the day that is two Business Days preceding the date of such setting or (2) if such Benchmark is not the Term SOFR Rate,
the time determined by the Administrative Agent in its reasonable discretion.
“Recipient”
means (a) the Administrative Agent or (b) any Lender, as applicable.
“Refinance” has the meaning specified in Section
3.16(a).
“Refinancing
Amendment” means an amendment to this Agreement (which may, at the option of the Administrative Agent and the Borrower, be in
the form of an amendment and restatement of this Agreement) providing for any Refinancing Term Loans pursuant to Section 3.16,
which shall be consistent with the applicable provisions of this Agreement (including Section 3.16(a)) and otherwise reasonably
satisfactory to the parties thereto. Each Refinancing Amendment shall be executed by the Administrative Agent, the Credit Parties and
the other parties specified in Section 3.16 (but not any other Lender not specified in Section 3.16), but shall not affect
any amendments that would require the consent of each affected Lender or all Lenders pursuant to Section 11.2 unless such affected
Lender or all Lenders, as applicable, are party to such amendment. Any Refinancing Amendment may include conditions for delivery of opinions
of counsel and other documentation consistent with the conditions in Section 4.1, all to the extent reasonably requested by the
Administrative Agent or the other parties to such Refinancing Amendment.
“Refinancing Effective Date” has
the meaning specified in Section 3.16(b).
“Refinancing Term Lender” has the meaning specified in Section
3.16(c).
“Refinancing Term Loan Series” has the meaning specified in Section 3.16(c).
“Refinancing
Term Loans” has the meaning specified in Section 3.16(a).
“Register” has the meaning assigned thereto
in Section 11.9(c).
“Related
Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees,
agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.
“Relevant Entities” has the meaning assigned
thereto in Section 6.2.
“Relevant
Governmental Body” means the Federal Reserve Board and/or the NYFRB, the CME Term SOFR Administrator, as applicable, or a committee
officially endorsed or convened by the Federal Reserve Board and/or the NYFRB or, in each case, any successor thereto.
“Removal Effective Date”
has the meaning assigned thereto in Section 10.6(b).
“Repricing Transaction” has the meaning assigned thereto
in Section 2.4(c).
“Required
Lenders” means, at any time, Lenders representing more than fifty percent (50%) of the outstanding Term Loans of all Lenders.
The Term Loans of any Defaulting Lender shall be disregarded in determining Required Lenders at any time.
“Resignation Effective Date” has the meaning
assigned thereto in Section 10.6(a).
“Resolution
Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible
Officer” means, as to any Person, the chief executive officer, president, chief financial officer, controller, treasurer or
assistant treasurer of such Person or any other officer of such Person designated in writing by the Borrower and reasonably acceptable
to the Administrative Agent; provided that, to the extent requested thereby, the Administrative Agent shall have received a certificate
of such Person certifying as to the incumbency and genuineness of the signature of each such officer. Any document delivered hereunder
or under any other Loan Document that is signed by a Responsible Officer of a Person shall be conclusively presumed to have been authorized
by all necessary corporate, limited liability company, partnership and/or other action on the part of such Person and such Responsible
Officer shall be conclusively presumed to have acted on behalf of such Person.
“Restricted Payments” has the meaning assigned
thereto in Section 7.6.
“Retained
Percentage” means, with respect to any Excess Cash Flow Period, (a) 100% minus (b) the ECF Percentage with respect to
such Excess Cash Flow Period.
“S&P”
means Standard & Poor’s Rating Services, a Standard & Poor’s Financial Services LLC business.
“Sanctioned
Country” means at any time, a country, region or territory which is itself the subject or target of any Sanctions (including,
as of the Closing Date, Cuba, Iran, North Korea, Syria and the Crimea region).
“Sanctioned
Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC
(including, without limitation, OFAC’s Specially Designated Nationals and Blocked Persons List and OFAC’s Consolidated
Non-SDN List), the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury,
or other relevant sanctions authority, (b) any Person operating, organized or resident in a Sanctioned Country or (c)
any Person owned or controlled by any such Person or Persons described in clauses (a) and (b), including a
Person that is deemed by OFAC to be a Sanctions target based on the ownership of such legal entity by Sanctioned Person(s).
“Sanctions”
means any and all economic or financial sanctions, sectoral sanctions, secondary sanctions, trade embargoes and anti-terrorism laws, including
but not limited to those imposed, administered or enforced from time to time by the U.S. government (including those administered by OFAC
or the U.S. Department of State), the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant
sanctions authority with jurisdiction over any Lender, the Borrower or any of its Subsidiaries or Affiliates.
“SEC”
means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“Secured
Cash Management Agreement” means any Cash Management Agreement between or among any Credit Party and any Cash Management Bank.
“Secured
Hedge Agreement” means any Hedge Agreement between or among any Credit Party and any Hedge Bank.
“Secured
Obligations” means, collectively, (a) the Obligations and (b) all existing or future payment and other obligations owing by
any Credit Party under (i) any Secured Hedge Agreement (other than an Excluded Swap Obligation) and (ii) any Secured Cash Management Agreement.
“Secured
Parties” means, collectively, the Administrative Agent, the Lenders, the Hedge Banks, the Cash Management Banks, each co-agent
or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 10.5, any other holder from time to time
of any of any Secured Obligations and, in each case, their respective successors and permitted assigns.
“Securitization
Assets” means loans, accounts receivable, payment rights and other related assets (including, without limitation, any proceeds
thereof and rights (contractual and other) and collateral (including all general intangibles, documents, instruments and records) related
thereto) which are customarily sold or pledged pursuant to a securitization transaction or other similar financing transaction; provided
that in no event shall Securitization Assets include (a) any right to payments owed to any Credit Party under any of the Servicing Contracts
or (b) any MSR Assets, other than such rights to payment and MSR Assets relating to loans included in such Securitization Assets.
“Securitization
Entity” means a Subsidiary of the Borrower (or another Person formed for the purposes of engaging in a Qualified Securitization
Transaction with a Credit Party in which a Credit Party makes an Investment or to which a Credit Party transfers assets) which engages
in no activities other than in connection with the financing of assets of such Person, and any business or activities incidental or related
to that business, and
(a)
no portion of the Indebtedness or any other obligations (contingent or otherwise) of which:
(1)
is guaranteed by any Credit Party (excluding unsecured guarantees of obligations pursuant to Standard Securitization Undertakings);
(2)
is recourse to or obligates any Credit Party in any way other than pursuant to unsecured guarantees of Standard Securitization
Undertakings, or
(3)
is secured by any property or asset of any Credit Party, directly or indirectly, contingently or otherwise, for the satisfaction
thereof;
(b)
with which no Credit Party has any material contract, agreement, arrangement or understanding other than those entered into in
connection with Qualified Securitization Transactions that are on terms which the Borrower reasonably believes to be no less favorable
to such Credit Party than those that might be obtained at the time from Persons that are not Affiliates of the Borrower, and
(c)
to which no Credit Party has any obligation to maintain or preserve the entity’s financial condition or cause the entity
to achieve certain levels of operating results other than pursuant to unsecured guarantees of Standard Securitization Undertakings.
“Securitization
Transaction” means any transaction or series of transactions pursuant to which a Credit Party (a) sells, assigns, conveys or
otherwise transfers Securitization Assets or (b) pledges or grants security interests or Liens in Securitization Assets, in each case
under clause (a) or (b), to a Securitization Entity for the purpose of a securitization transaction or other similar financing transaction.
“Securitization
Transaction Attributed Indebtedness” means the amount of obligations outstanding under the legal documents entered into as part
of any Qualified Securitization Transaction on any date of determination that would be characterized as principal if Qualified Securitization
Transaction were required to be structured as a secured lending transaction rather than a sale.
“Security
Documents” means the collective reference to the Collateral Agreement, and each other agreement or writing pursuant to which
any Credit Party pledges or grants a security interest in any Property or assets securing the Secured Obligations.
“Senior Indebtedness” has the meaning assigned
thereto in Section 11.2(j).
“Servicing
Contract” means, with respect to any Person, the arrangement, whether or not in writing, under which that Person has the right
to service Mortgage Loans.
“SOFR”
means a rate equal to the secured overnight financing rate as administered by the CME Term SOFR Administrator.
“SOFR
Administrator” means the NYFRB (or a successor administrator of the secured overnight financing rate).
“SOFR
Administrator’s Website” means the NYFRB’s website, currently at http://www.newyorkfed.org, or any successor source
for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.
“SOFR Determination Date” has the meaning
assigned thereto in the definition of “Daily Simple
SOFR.”
“SOFR Rate Day” has the meaning assigned
thereto in the definition of “Daily Simple SOFR.”
“Solvent”
and “Solvency” mean, with respect to any Person on any date of determination, that on such date (a) the fair value
of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b)
the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability
of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature, (d) such Person is not
engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property
would constitute an unreasonably small capital, and (e) such Person is able to pay its debts and liabilities, contingent obligations
and other commitments as they mature in the ordinary course of business. The amount of contingent liabilities at any time shall be computed
as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability.
“Specified
Transactions” means, with respect to any period, any Investment, sale, transfer or other disposition of assets, incurrence or
repayment of Indebtedness, Restricted Payment, Subsidiary designation or re-designation or other event that by the terms of the Loan Documents
requires “Pro Forma” compliance with a test or covenant hereunder or requires such test or covenant to be calculated on a
Pro Forma Basis.
“Standard
Securitization Undertakings” means representations, warranties, covenants, agreements and indemnities entered into by any Credit
Party which are customary in similar securitization transactions.
“Subordinated
Indebtedness” means the collective reference to any Indebtedness incurred by the Borrower or any of its Subsidiaries (other
than Excluded Subsidiaries) that is expressly subordinated in right of payment to the Secured Obligations.
“Subsidiary”
means as to any Person, any corporation, partnership, limited liability company or other entity of which more than fifty percent (50%)
of the outstanding Equity Interests having ordinary voting power to elect a majority of the board of directors (or equivalent governing
body) or other managers of such corporation, partnership, limited liability company or other entity is at the time owned by (directly
or indirectly) or the management is otherwise controlled by (directly or indirectly) such Person (irrespective of whether, at the time,
Equity Interests of any other class or classes of such corporation, partnership, limited liability company or other entity shall have
or might have voting power by reason of the happening of any contingency). Unless otherwise qualified, references to “Subsidiary”
or “Subsidiaries” herein shall refer to those of the Borrower.
“Subsidiary
Guarantors” means, collectively, all direct and indirect Subsidiaries of the Borrower (other than Excluded Subsidiaries) in
existence on the Closing Date or which become a party to the Collateral Agreement pursuant to Section 6.14.
“Supported QFC” has the meaning assigned
thereto in Section 11.24.
“Swap
Obligation” means, with respect to any Credit Party, any obligation to pay or perform under any agreement, contract or transaction
that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.
“Synthetic
Lease” means any synthetic lease, tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing
product where such transaction is considered borrowed money indebtedness for tax purposes but is classified as an Operating Lease in accordance
with GAAP.
“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, fines, additions to tax or penalties applicable thereto.
“Term
Benchmark” when used in reference to any Term Loan or Borrowing, refers to whether such Term Loan, or the Term Loans comprising
such Borrowing, are bearing interest at a rate determined by reference to the Adjusted Term SOFR Rate, or the applicable Benchmark Replacement
to the extent that such Benchmark Replacement has replaced the Adjusted Term SOFR Rate or such other prior benchmark rate.
“Term
Loan Commitment” means (a) as to any Lender, the obligation of such Lender to make a portion of the Initial Term Loan,
Incremental Term B Loans and/or Incremental Term Loans, as applicable, to the account of the Borrower hereunder on the
Closing Date or the Amendment No. 2 Effective Date (in the case of
the Initial Term Loan), the Incremental Effective Date (in the case of Incremental Term B Loans)
or the applicable borrowing date (in the case of any Incremental Term Loan) in an aggregate principal amount not to exceed the amount
set forth opposite such Lender’s name on the Register, as such amount may be reduced or otherwise modified at any time or from time
to time pursuant to the terms hereof and (b) as to all Lenders, the aggregate commitment of all Lenders to make such Term Loans. The
aggregate Term Loan Commitment with respect to the Initial Term Loan of all Lenders on the Closing Date was $600,000,000.
“Term
Loan Facility” means the term loan facility established pursuant to Article II (including any new term loan facility
established pursuant to Section 3.13). Except where the context otherwise requires, the Term Loan Facility shall include each facility
for the borrowing of Extended Term Loans and each facility providing for the borrowing of Refinancing Term Loans in respect of the foregoing.
“Term
Loan Maturity Date” means the first to occur of (a) December 16, 2028, and (b) the date of acceleration of the Term Loans pursuant
to Section 9.2(a).
“Term
Loan Note” means a promissory note made by the Borrower in favor of a Lender evidencing the portion of the Term Loans made by
such Lender, substantially in the form attached as Exhibit A, and any substitutes therefor, and any replacements, restatements,
renewals or extensions thereof, in whole or in part.
“Term
Loans” means the Initial Term Loans, the Incremental Term B Loans and, if applicable,
except where the context otherwise requires, all Incremental Term Loans, Extended Term Loans and Refinancing Term Loans, and “Term
Loan” means any of such Term Loans.
“Term
SOFR Determination Day” has the meaning assigned to it under the definition of “Term SOFR Reference Rate.”
“Term
SOFR Rate” means, with respect to any Term Benchmark Borrowing and for any tenor comparable to the applicable Interest Period,
the Term SOFR Reference Rate at approximately 5:00 a.m., Chicago time, two U.S. Government Securities Business Days prior to the commencement
of such tenor comparable to the applicable Interest Period, as such rate is published by the CME Term SOFR Administrator.
“Term SOFR Rate Loan”
means a Term Loan bearing interest based upon the Term SOFR Rate.
“Term
SOFR Reference Rate” means, for any day and time (such day, the “Term SOFR Determination
Day”), with respect to any Term Benchmark Borrowing and for any tenor comparable to the applicable Interest Period,
the rate per annum determined by the Administrative Agent as the forward-looking term rate based on SOFR; provided that if the
Term SOFR Reference Rate as so determined would be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
If by 5:00 pm (New York City time) on the fifth (5th) U.S. Government Securities Business Day immediately following any Term SOFR Determination
Day, the “Term SOFR Reference Rate” for the applicable tenor has not been published by the CME Term SOFR Administrator and
a Benchmark Replacement Date with respect to the Term SOFR Rate has not occurred, then the Term SOFR Reference Rate for such Term SOFR
Determination Day will be the Term SOFR Reference Rate as published in respect of the first preceding U.S. Government Securities Business
Day for which such Term SOFR Reference Rate was published by the CME Term SOFR Administrator, so long as such first preceding Business
Day is not more than five (5) Business Days prior to such Term SOFR Determination Day.
“Termination
Event” means the occurrence of any of the following which, individually or in the aggregate, has resulted or could reasonably
be expected to result in liability of the Borrower in an aggregate amount in excess of the Threshold Amount: (a) a “Reportable Event”
described in Section 4043 of ERISA for which the thirty (30) day notice requirement has not been waived by the PBGC, or (b) the withdrawal
of any Credit Party or any ERISA Affiliate from a Pension Plan during a plan year in which it was a “substantial employer”
as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA,
or (c) the termination of a Pension Plan, the filing of a notice of intent to terminate a Pension Plan or the treatment of a Pension Plan
amendment as a termination, under Section 4041 of ERISA, if the plan assets are not sufficient to pay all plan liabilities, or (d) the
institution of proceedings to terminate, or the appointment of a trustee with respect to, any Pension Plan by the PBGC, or (e) any other
event or condition which would constitute grounds under Section 4042(a) of ERISA for the termination of, or the appointment of a trustee
to administer, any Pension Plan, or (f) the imposition of a Lien pursuant to Section 430(k) of the Code or Section 303 of ERISA, or (g)
the determination that any Pension Plan or Multiemployer Plan is considered an at-risk plan or plan in endangered or critical status with
the meaning of Sections 430, 431 or 432 of the Code or Sections 303, 304 or 305 of ERISA or (h) the partial or complete withdrawal of
any Credit Party or any ERISA Affiliate from a Multiemployer Plan if withdrawal liability is asserted by such plan, or (i) any event or
condition which results in the reorganization or insolvency of a Multiemployer Plan under Sections 4241 or 4245 of ERISA, or (j) any event
or condition which results in the termination of a Multiemployer Plan under Section 4041A of ERISA or the institution by PBGC of proceedings
to terminate a Multiemployer Plan under Section 4042 of ERISA, or (k) the imposition of any liability under Title IV of ERISA, other than
for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Credit Party or any ERISA Affiliate.
“Test
Period” means (a) for purposes of calculating the Financial Covenant, the most recent four consecutive fiscal quarters of the
Borrower then last ended (in each case taken as one accounting period) for which financial statements have been delivered or are required
to have been delivered pursuant to Section 6.1(a) or Section 6.1(b) hereof and (b) for any other purpose, the most recent
four consecutive fiscal quarters of the Borrower then last ended (in each case taken as one accounting period) for which financial statements
are internally available (as determined in good faith by the Borrower), in each case, prior to such date of determination.
“Threshold Amount” means $75,000,000.
“Transaction
Costs” means all transaction fees, charges and other amounts related to the Transactions, the
Incremental Term B LoanLoans,
the Additional Initial Term Loans, Amendment No. 1, Amendment No. 2 any Permitted Acquisitions and any other Investments permitted
hereby (including, without limitation, any financing fees, merger and acquisition fees, legal fees and expenses, due diligence fees or
any other fees and expenses in connection therewith), in each case to the extent paid within six
(6)
months of the closing of the Term Loan Facility, such Permitted Acquisition or such Investment, as applicable.
“Transactions”
means, collectively, (a) the Alliant Acquisition, pursuant to the Alliant Purchase Agreement, (b) the refinancing all indebtedness of
the Borrower and the Subsidiary Guarantors under the Existing Credit Agreement (the “Existing Credit Agreement Refinancing”),
(c) the incurrence of the Initial Term Loan on the Closing Date and (d) the payment of fees and expenses incurred in connection therewith.
“Type”,
when used in reference to any Term Loan or Borrowing, refers to whether the rate of interest on such Term Loan, or on the Term Loans comprising
such Borrowing, is determined by reference to the applicable Term Benchmark or the Alternate Base Rate.
“UCC” means the Uniform Commercial Code
as in effect in the State of New York.
“UK
Financial Institutions” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to
time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within 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.
“Unadjusted
Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“United States” means the United States
of America.
“Unrestricted
Cash” means, at any time, cash and Cash Equivalents reflected on the consolidating balance sheet of the Credit Parties at such
time to the extent such cash or Cash Equivalent is (a) not subject to any Lien (other than a Lien in favor of the Administrative Agent
for the benefit of the Secured Parties or a banker’s Lien or right of setoff pursuant to customary deposit arrangements) or any
restriction as to its use or otherwise unavailable to the Credit Parties and (b) held in bank accounts or securities accounts located
in the United States which such accounts are subject to a perfected Lien in favor of the Administrative Agent for the benefit of the Secured
Parties.
“U.S.
Government Securities Business Day” means any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which the Securities
Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for
purposes of trading in United States government securities.
“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 assigned thereto in Section 11.24.
“U.S. Tax Compliance Certificate” has
the meaning assigned thereto in Section 3.11(g)(ii)(B)(3).
“W&D Multifamily” means Walker & Dunlop
Multifamily, Inc., a Delaware corporation.
“WDACC” means WDAAC, LLC, a Delaware limited liability company and wholly
owned subsidiary of the Borrower.
“WD Capital” means Walker & Dunlop
Capital, LLC, a Massachusetts limited liability company.
“WDLLC” means Walker & Dunlop, LLC, a Delaware limited
liability company.
“Weighted
Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing
(a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity
or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated
to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount
of such Indebtedness.
“Wholly-Owned”
means, with respect to a Subsidiary, that all of the Equity Interests of such Subsidiary are, directly or indirectly, owned or controlled
by the Borrower and/or one or more of its Wholly-Owned Subsidiaries (except for directors’ qualifying shares or other shares required
by Applicable Law to be owned by a Person other than the Borrower and/or one or more of its Wholly-Owned Subsidiaries).
“Withholding
Agent” means the Borrower, the Administrative Agent and any other applicable withholding agent.
“Working
Capital” means, for any period, for the Borrower and its Subsidiaries (other than the Excluded Subsidiaries) on a Consolidated
basis and calculated in accordance with GAAP, as of any date of determination, the excess of (a) the sum of the amounts of “Pledged
Securities” and “Servicing Fees and Other Receivables, Net”, each as reflected on the Consolidated balance sheet of
the Credit Parties as of the last day of such period over (b) the sum of the amounts of “Accounts Payable and Other Accruals”
and “Performance Deposits from Borrower”, each as reflected on the Consolidated balance sheet of the Credit Parties as of
the last day of such period.
“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.
SECTION 1.2 Other Definitions and Provisions.
With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document: (a)
the definitions of terms herein shall apply equally to the singular and plural forms of the terms defined, (b) whenever the context
may require, any pronoun shall include the corresponding masculine, feminine and neuter forms, (c) the words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”,
(d) the word “will” shall be construed to have the same meaning and effect as the word “shall”, (e) any
reference herein to any Person shall be construed to include such Person’s successors and assigns, (f) the words
“herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provision hereof, (g) all references herein to Articles, Sections, Exhibits
and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement, (h) the words
“asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities, accounts and contract rights, (i) the term
“documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial
statements and other writings, however evidenced, whether in physical or electronic form and (j) in the computation of 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”.
SECTION 1.3 Accounting Terms.
(a) Generally.
All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data
(including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared
in conformity with GAAP, applied on a consistent basis, as in effect from time to time and in a manner consistent with that used in
preparing the audited financial statements required by Section 6.1(a), except as otherwise specifically prescribed herein.
Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial
covenant) contained herein, Indebtedness of the Credit Parties shall be deemed to be carried at 100% of the outstanding principal
amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.
(b) Changes
in GAAP.
(i) If
at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document,
and either the Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the 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
(subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio or requirement shall
continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the
Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably
requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving
effect to such change in GAAP.
(ii) Notwithstanding
anything to the contrary contained in this Section 1.3 or the definition of “Capital Lease Obligations”, (A) all
obligations of any Person that are or would have been treated as operating leases for purposes of GAAP prior to the effectiveness of
FASB ASC 842 shall continue to be accounted for as operating leases for purposes of all financial definitions and calculations for
purpose of this Agreement (whether or not such operating lease obligations were in effect on such date) notwithstanding the fact
that such obligations are required in accordance with FASB ASC 842 (on a prospective or retroactive basis or otherwise) to be
treated as Capital Lease Obligations in the financial statements and (B) all financial statements delivered to the Administrative
Agent hereunder shall contain a schedule showing the modifications necessary to reconcile the adjustments made pursuant to clause
(A) above with such financial statements.
SECTION 1.4 UCC Terms. Terms defined in the
UCC in effect on the Closing Date and not otherwise defined herein shall, unless the context otherwise indicates, have the meanings
provided by those definitions. Subject to the foregoing, the term “UCC” refers, as of any date of determination, to the
UCC then in effect.
SECTION 1.5 Rounding. Any financial ratios
required to be maintained pursuant to this Agreement shall be calculated by dividing the appropriate component by the other
component, carrying the result to one place more than the number of places by which such ratio or percentage is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).
SECTION 1.6 References to Agreement and Laws.
Unless otherwise expressly provided herein, (a) any definition or reference to formation documents, governing documents, agreements
(including the Loan Documents) and other contractual documents or instruments shall be deemed to include all subsequent amendments,
restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements,
extensions, supplements and other modifications are not prohibited by any Loan Document; and (b) any definition or reference to any
Applicable Law, including, without limitation, Anti-Corruption Laws, Anti-Money Laundering Laws, the Code, the Commodity Exchange
Act, ERISA, the Exchange Act, the PATRIOT Act, the Securities Act of 1933, the UCC, the Investment Company Act of 1940, the
Interstate Commerce Act, the Trading with the Enemy Act of the United States or any of the foreign assets control regulations of the
United States Treasury Department, shall include all statutory and regulatory provisions consolidating, amending, replacing,
supplementing or interpreting such Applicable Law.
SECTION 1.7 Times of Day; Rates. Unless
otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as
applicable). The Administrative Agent does not warrant or accept responsibility for, and shall not have any liability with respect
to, the administration, submission or any other matter related to the rates in the definition of “Term SOFR Rate”.
SECTION 1.8 Guarantees. Unless otherwise
specified, the amount of any Guarantee shall be the amount to be reflected in the balance sheet as determined in accordance with
GAAP, applied on a consistent basis, as in effect from time to time and in a manner consistent with that used in preparing financial
statements.
SECTION 1.9 Covenant Compliance Generally. For
purposes of determining compliance under Sections 7.1, 7.2, 7.3, 7.5 and 7.6, any amount in a
currency other than Dollars will be converted to Dollars in a manner consistent with that used in calculating Consolidated Corporate
Net Income in the most recent annual financial statements delivered pursuant to Section 6.1(a). Notwithstanding the
foregoing, for purposes of determining compliance with Sections 7.1, 7.2 and 7.3, with respect to any amount of
Indebtedness or Investment in a currency other than Dollars, no breach of any basket contained in such Sections shall be deemed to
have occurred solely as a result of changes in rates of exchange occurring after the time such Indebtedness or Investment is
incurred; provided that for the avoidance of doubt, the foregoing provisions of this Section 1.9 shall otherwise apply
to such Sections, including with respect to determining whether any Indebtedness or Investment may be incurred at any time under
such Sections.
SECTION 1.10 Divisions. For all purposes under
the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a
different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right,
obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the
subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the
first date of its existence by the holders of its Equity Interests at such time.
SECTION 1.11 Limited Condition Acquisitions.
In the event that the Borrower notifies the Administrative Agent in writing that any proposed acquisition is a Limited Condition
Acquisition and that the Borrower wishes to test the conditions to such acquisition and the Indebtedness to be used to finance such
acquisition in accordance with this Section 1.11, then, so long as agreed to by the lenders providing such Indebtedness, the
following provisions shall apply:
(a) any condition to such acquisition or such Indebtedness that requires that no Default or Event of Default shall have occurred and
be continuing at the time of such acquisition or the incurrence of such Indebtedness, shall be satisfied if (i) no Default or Event of
Default shall have occurred and be continuing at the time of the execution of the definitive purchase agreement, merger agreement or
other acquisition agreement governing such acquisition and (ii) no Event of Default under any of Sections 9.1(a), 9.1(b),
9.1(i) or 9.1(j) shall have occurred and be continuing both before and after giving effect to such acquisition and any
Indebtedness incurred in connection therewith;
(b) any condition to such acquisition or such Indebtedness that the representations and warranties in this Agreement and the other
Loan Documents shall be true and correct at the time of such acquisition or the incurrence of such Indebtedness shall be subject to customary
“SunGard” or other customary applicable “certain funds” conditionality provisions (including, without limitation,
a condition that the representations and warranties under the relevant agreements relating to such Limited Condition Acquisition as are
material to the lenders providing such Indebtedness shall be true and correct, but only to the extent that the Borrower or its applicable
Subsidiary has the right to terminate its obligations under such agreement as a result of a breach of such representations and warranties
or the failure of those representations and warranties to be true and correct), so long as all representations and warranties in this
Agreement and the other Loan Documents are true and correct at the time of execution of the definitive purchase agreement, merger agreement
or other acquisition agreement governing such acquisition;
(c) any financial ratio test or condition may, upon the written election of the Borrower delivered to the Administrative Agent prior
to the execution of the definitive agreement for such acquisition, be tested either (i) upon the execution of the definitive agreement
with respect to such Limited Condition Acquisition or (ii) upon the consummation of the Limited Condition Acquisition and related incurrence
of Indebtedness, in each case, after giving effect to the relevant Limited Condition Acquisition and related incurrence of Indebtedness,
on a Pro Forma Basis; provided that the failure to deliver a notice under this Section 1.11(c) prior to the date of execution
of the definitive agreement for such Limited Condition Acquisition shall be deemed an election to test the applicable financial ratio
under sub-clause (ii) of this Section 1.11(c); and
(d) except as provided in the next sentence, if the Borrower has made an election with respect to any Limited Condition Acquisition
to test a financial ratio test or condition at the time specified in clause (c)(i) of this Section 1.11, then in connection with
any subsequent calculation of any ratio or basket on or following the relevant date of execution of the definitive agreement with respect
to such Limited Condition Acquisition and prior to the earlier of (i) the date on which such Limited Condition Acquisition is consummated
or (ii) the date that the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of
such Limited Condition Acquisition, any such ratio or basket shall be required to be satisfied on a Pro Forma Basis assuming such Limited
Condition Acquisition and other transactions in connection therewith (including the incurrence or assumption of Indebtedness) have been
consummated. Notwithstanding the foregoing, any calculation of a ratio in connection with determining whether or not the Borrower is
in compliance with the requirements of Section 7.14
shall, in each case be calculated assuming such Limited Condition Acquisition and other transactions in connection therewith (including
the incurrence or assumption of Indebtedness) have not been consummated.
The foregoing provisions shall apply with
similar effect during the pendency of multiple Limited Condition Acquisitions such that each of the possible scenarios is separately
tested.
SECTION 1.12 Certain Determinations.
(a) For purposes of determining compliance with any of the covenants set forth in Article VII
at any time (whether at the time of incurrence or thereafter), any Lien, Investment, Indebtedness, Asset Disposition, Restricted
Payment, payment of Junior Indebtedness or Affiliate transaction meets the criteria of one, or more than one, of the categories permitted
pursuant to such covenant in Article VII, the Borrower (i) shall in its sole discretion determine under which category such Lien
(other than Liens with respect to the Initial Term Loans or Incremental Term B Loans),
Investment, Indebtedness (other than Indebtedness consisting of the Initial Term Loans or Incremental
Term B Loans), Asset Disposition, Restricted Payment, payment of Junior Indebtedness or Affiliate transaction (or, in
each case, any portion there) is permitted and (ii) shall be permitted, in its sole discretion, to divide and/or classify under which
category or categories such Lien, Investment, Indebtedness, Asset Disposition, Restricted Payment, payment of Junior Indebtedness or
Affiliate transaction is permitted as it may determine and without notice to the Administrative Agent or any Lender.
(b) Notwithstanding anything to the contrary herein, with respect to any amounts incurred or transactions entered into (or consummated)
in reliance on a provision of this Agreement that does not require compliance with a financial ratio or test (including, without limitation,
any Consolidated Corporate Leverage Ratio or Consolidated Secured Leverage Ratio) (any such amounts, the “Fixed Amounts”)
substantially concurrently with any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this
Agreement that requires compliance with any such financial ratio or test (any such amounts, the “Incurrence Based Amounts”),
it is understood and agreed that the Fixed Amounts (and any cash proceeds thereof) shall be disregarded in the calculation of the financial
ratio or test applicable to the Incurrence Based Amounts in connection with such substantially concurrent incurrence (but shall be calculated
on a Pro Forma Basis to give effect to all applicable and related transactions (including the use of proceeds of all Indebtedness to
be incurred and any repayments, repurchases and redemptions of Indebtedness)).
(c) For purposes of determining compliance with the definition of “Incremental Term Loan Limit” in connection with any
Incremental Term Loan or Incremental Equivalent Debt or whether any incurrence of Indebtedness or Lien is permitted pursuant to Section
7.1 or 7.2, respectively, the Borrower shall be permitted, in its sole discretion, to make any redetermination and/or to reclassify
under which category or categories such Indebtedness or Lien is permitted from time to time as it may determine and without notice to
the Administrative Agent or any Lender. If any Indebtedness or Lien incurred in reliance on a Fixed Amount under the definition of “Incremental
Term Loan Limit”, under Section 7.1 or under Section 7.2 would be permitted in any subsequent fiscal quarter to have
been incurred in reliance on an Incurrence Based Amount under such definition or covenant, as the case may be, then the reclassification
of such Indebtedness or Liens (or portions thereof) as incurred under any available Incurrence Based Amounts shall be deemed to have
automatically occurred even if not elected by the Borrower (unless the Borrower otherwise notifies the Administrative Agent).
SECTION 1.13 Interest
Rates; Benchmark Notification. The interest rate on a Term Loan may be derived from an interest rate benchmark that may be discontinued
or is, or may in the future become, the subject of regulatory reform. Upon the occurrence of a Benchmark Transition Event, Section
3.8(b) provides a mechanism for determining an alternative rate of interest. The Administrative Agent does not warrant or accept
any responsibility for, and shall not have any liability with respect to, the administration, submission, performance or any other matter
related to any interest rate used in this Agreement, or with respect to any alternative or successor rate thereto, or replacement rate
thereof, including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference
rate will be similar to, or produce the same value or economic equivalence of, the existing interest rate being replaced or have the
same volume or liquidity as did any existing interest rate prior to its discontinuance or unavailability. The Administrative Agent and
its affiliates and/or other related entities may engage in transactions that affect the calculation of any interest rate used in this
Agreement or any alternative, successor or alternative rate (including any Benchmark Replacement) and/or any relevant adjustments thereto,
in each case, in a manner adverse to the Borrower. The Administrative Agent may select information sources or services in its reasonable
discretion to ascertain any interest rate used in this Agreement, any component thereof, or rates referenced in the definition thereof,
in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender 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.
ARTICLE II
TERM LOAN FACILITY
SECTION 2.1 Initial Term Loan,
Incremental Term B Loan and Incremental Term Loans. Subject to the terms and conditions set forth herein
and in the other Loan Documents (i) each Lender with a Term Loan Commitment in respect of Initial Term Loans severally agrees to
make Initial Term Loans to the Borrower in Dollars on the Closing Date in an amount equal to such Lender’s Term Loan
Commitment, (ii) each Incrementalthe
Additional Initial Term B Lender agrees to make Incrementalan
Initial Term B Loans to the Borrower in Dollars on the Incremental Effective Date in
anLoan to the Borrower (together with each Loan
converted from a Converted Incremental Term B Loan pursuant to clause (iii) below, an “Additional Initial Term Loan”) on
the Amendment No. 2 Effective Date in a principal amount equal to such Incremental Term B
Lender’s Incremental Term B Loan Commitment and (iiithe
Additional Initial Term Loan Commitment, (iii) each Converted Incremental Term B Loan of each Amendment No. 2 Converting Lender
shall be converted into an Initial Term Loan of such Lender effective as of the Amendment No. 2 Effective Date in a principal amount
equal to the principal amount of such Lender’s Converted Incremental Term B Loan immediately prior to such conversion and
(iv) each Lender with an Incremental Term Loan Commitment severally agrees to make Incremental Term Loans to the Borrower in
Dollars on the relevant borrowing date in an amount equal to such Lender’s applicable Incremental Term Loan Commitment. All
such Term Loans shall be made on the applicable date by making immediately available funds available to the Administrative
Agent’s designated account or to such other account or accounts as may be designated in writing to the Administrative Agent by
the Borrower, not later than the time specified by the Administrative Agent. The full amount of the Term
Loan Commitments in respect ofAdditional Initial
Term Loans must be drawn in a single drawing on the Closing Date. The full amount of the Term Loan
Commitments in respect of the Incremental Term B LoansLoan
Commitment must be drawn in a single drawing on the IncrementalAmendment
No. 2 Effective Date. Amounts repaid or prepaid in respect of Term Loans may not be re-borrowed.
SECTION 2.2 Procedure for Advance of Term Loans.
(a) Each Term Loan shall be made as part of a Borrowing consisting of Term Loans under the same Term Loan Facility and of the same
Type made by the Lenders ratably in accordance with their respective Term Loan Commitments under such Term Loan Facility. The failure
of any Lender to make any Term Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided
that the Term Loan Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure
to make Loans as required hereunder.
(b) Subject to Section 3.8, each Borrowing shall be comprised entirely of ABR Term Loans or Term Benchmark Term Loans as the
Borrower may request in accordance herewith. Each Lender at its option may make any Term Benchmark Term Loan by causing any domestic
or foreign branch or Affiliate of such Lender to make such Term Loan (and in the case of an Affiliate, the provisions of Sections
3.1, 3.4, 3.6, 3.7, 3.8, 3.9, 3.10 and 3.13 shall apply to such Affiliate to the
same extent as to such Lender); provided that any exercise of such option shall not affect the obligation of the Borrower to repay
such Term Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Term Benchmark Borrowing, such Borrowing shall be in an aggregate amount that
is an integral multiple of $500,000 and not less than $1,000,000. At the time that each ABR Borrowing is made, such Borrowing shall be
in an aggregate amount that is an integral multiple of $500,000. Borrowings of more than one Type and Class may be outstanding at the
same time; provided that there shall not at any time be more than a total of ten Term Benchmark Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request, or to elect to convert or
continue, any Term Benchmark Borrowing if the Interest Period requested with respect thereto would end after the applicable Term Loan
Maturity Date.
(e) To request a Borrowing (other than a continuation or conversion, which is governed by Section
3.2), the Borrower shall give the Administrative Agent a written notice substantially in the form of Exhibit B (a “Notice
of Borrowing”): (a) in the case of a Term Benchmark Borrowing, not later than 11:00 a.m., New York City time, three (3) Business
Days before the date of the proposed Borrowing or (b) in
the case of an ABR Borrowing, not later than 10:00 a.m., New York City time, on the date of the proposed Borrowing. Each Notice of Borrowing
shall be irrevocable and signed by the Borrower; provided that such Notice of Borrowing may state that it is conditioned upon
the occurrence of any specified event, in which case, subject to Section 3.9, such Notice of Borrowing may be revoked by the Borrower
(by notice to the Administrative Agent on or prior to the date for borrowing specified therein) if such condition is not satisfied. Each
such Notice of Borrowing shall specify the following information in compliance with this Section 2.2:
(i) the aggregate amount of the requested
Borrowing and the Class of such Borrowing;
(ii) the date of
such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be
an ABR Borrowing or a Term Benchmark Borrowing;
(iv) in the case of a Term Benchmark Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated
by the definition of the term “Interest Period”; and
(v) the location and number of the Borrower’s account or such other account or accounts designated in writing by the Borrower
to which funds are to be disbursed, which shall comply with the requirements of Section 3.7(a).
If no election
as to the Type of Borrowing is specified, then the requested Borrowing shall be a Term Benchmark Borrowing with an Interest Period of
one month’s duration. If no Interest Period is specified with respect to any requested Term Benchmark Borrowing, then the Borrower
shall be deemed to have selected an Interest Period of one month’s duration. Promptly following receipt of a Notice of Borrowing
in accordance with this Section 2.2, the Administrative Agent shall advise each applicable Lender of the details thereof and of
the amount of such Lender’s Term Loan to be made as part of the requested Borrowing.
SECTION 2.3 Repayment of Term Loans.
(a) Initial Term Loan. The
Borrower shall repay the aggregate outstanding principal amount of the Initial Term Loan in consecutive quarterly installments on the
last Business Day of each of March, June, September and December, commencing March 31, 2022,June
30, 2024, in an amount equal to 0.25% of the aggregate principal amount of such Initial Term Loans incurred
on the Closing Date,$2,006,393.86, except as the amounts of individual installments may be adjusted pursuant to Section
2.4 hereof; provided that the final principal installment of the Initial Term Loan shall be paid in full on the Term Loan Maturity Date
in an amount equal to the aggregate outstanding principal of the Initial Term Loan on such date (together with all accrued interest thereon).
(b) Incremental Term B Loan. The Borrower shall repay the aggregate outstanding principal
amount of the Incremental Term B Loan in consecutive quarterly installments on the last Business Day of each of March, June, September
and December, commencing June 30, 2023, in an amount equal to 0.25% of the aggregate principal amount of suchto
the Administrative Agent for the ratable account of the Lenders with Incremental Term B Loans incurred
on the Incremental Effective Date, except as the amounts of individual installments may be adjusted pursuant to Section 2.4 hereof; provided
that the final principal installment of the Incremental Term B Loan shall be paid in full on the Term Loan Maturity Date in an amount
equal to the aggregate outstanding principal of the Incremental Term B Loan on such date (together with all accrued interest thereon)that
are not Converted Incremental Term B Loans, all Incremental Term B Loans that are not Converted Incremental Term B Loans on the Amendment
No. 2 Effective Date.
(c) Incremental Term Loans. The Borrower shall repay the aggregate outstanding principal amount of each Incremental Term Loan
(if any) as determined pursuant to, and in accordance with, Section 3.13.
SECTION 2.4 Prepayments of Term Loans.
(a) Optional Prepayments. The Borrower shall have the right at any time and from time to time, without premium or penalty (except
as provided in clause (c) of this Section 2.4), to prepay the Term Loans, in whole or in part, upon delivery to the Administrative
Agent of a written notice substantially in the form of Exhibit C (a “Notice of Prepayment”) not later than
11:00 a.m. (i) on the same Business Day as each ABR Term Loan and (ii) at least three (3) Business Days before each Term SOFR Rate Loan,
specifying the date and amount of repayment, whether the repayment is of Term SOFR Rate Loans or ABR Term Loans or a combination thereof,
and if a combination thereof, the amount allocable to each and whether the repayment is of the Initial Term Loan,
the Incremental Term B LoanLoans or, if applicable,
an Incremental Term Loan, an Extended Term Loan or a Refinancing Term Loan or a combination thereof, and if a combination thereof, the
amount allocable to each. Each optional prepayment of the Term Loans hereunder shall be in an aggregate principal amount of at least
$5,000,000 or any whole multiple of $1,000,000 in excess thereof (or such lesser amount if the amount of such prepayment constitutes
the remaining outstanding balance of the Borrowing being prepaid) and shall be applied to the outstanding principal installments of the
Initial Term Loan, Incremental Term B LoanLoans
and, if applicable, any Incremental Term Loans, any Extended Term Loans or any Refinancing Term Loans as directed by the Borrower.
Each repayment shall be accompanied by any amount required to be paid pursuant to Section 3.9 hereof. A Notice of Prepayment received
after 11:00 a.m. on any day shall be deemed received on the next Business Day. The Administrative Agent shall promptly notify the applicable
Lenders of each Notice of Prepayment. Notwithstanding the foregoing, any Notice of Prepayment delivered in connection with any refinancing
of all of the Term Loan Facility with the proceeds of such refinancing or of any other incurrence of Indebtedness or the occurrence of
some other identifiable event or condition, may be, if expressly so stated to be, contingent upon the consummation of such refinancing
or incurrence or occurrence of such other identifiable event or condition and may be revoked by the Borrower in the event such contingency
is not met (provided that the delay or failure of such contingency shall not relieve the Borrower from its obligations in respect
thereof under Section 3.9).
(b) Mandatory
Prepayments.
(i) Debt Issuances. The Borrower shall make mandatory principal prepayments of the Term Loans in the manner set forth in clause
(v) below in an amount equal to one hundred percent (100%) of the aggregate Net Cash Proceeds from any Debt Issuance of Refinancing Term
Loans and any other Debt Issuance not otherwise permitted pursuant to Section 7.1. Such prepayment shall be made within three
(3) Business Days after the date of receipt
of the Net Cash Proceeds of any such Debt Issuance.
(ii) Asset Dispositions. The Borrower shall make mandatory principal prepayments of the Term Loans in the manner set forth in
clause (v) below in amounts equal to one hundred percent (100%) of the aggregate Net Cash Proceeds from any Asset Disposition permitted
pursuant to, and in accordance with, clauses (h) and/or (j) of Section 7.5 to the extent that the aggregate amount of such Net
Cash Proceeds exceed $15,000,000 during any Fiscal Year. Such prepayments shall be made within three (3) Business Days after the date
of receipt of the Net Cash Proceeds of any such Asset Disposition by any Credit Party or any of its Subsidiaries (other than Excluded
Subsidiaries); provided that, so long as no Event of Default has occurred and is continuing, the Borrower or any Subsidiary (other
than any Excluded Subsidiary) may cause the Net Cash Proceeds from such event (or a portion thereof) to be invested within 365 days after
receipt by the Borrower or such Subsidiary (other than any Excluded Subsidiary) of such Net Cash Proceeds in the business of the Borrower
and its Subsidiaries (other than any Excluded Subsidiary) (including to consummate any Permitted Acquisition (or any other acquisition
of all or substantially all the assets of (or all or substantially all the assets constituting a business unit, division, product line
or line of business of) any Person) permitted hereunder), in which case no prepayment shall be required pursuant to this paragraph in
respect of the Net Cash Proceeds from such event (or such portion of such Net Cash Proceeds so invested) except to the extent of any
such Net Cash Proceeds that have not been so invested by the end of such 365-day period (or within a period of 180 days thereafter if
by the end of such initial 365-day period the Borrower or one or more Subsidiaries (other than any Excluded Subsidiary) shall have entered
into an agreement or binding commitment to invest such Net Cash Proceeds), at which time a prepayment shall be required in an amount
equal to the Net Cash Proceeds that have not been so invested; provided, further, that the Borrower may use a portion of
such Net Cash Proceeds to prepay or repurchase any other Indebtedness that is secured by the Collateral on a pari passu basis with the
Term Loans to the extent such other Indebtedness and the Liens securing such Indebtedness are permitted hereunder and the documentation
governing such other Indebtedness requires such a prepayment or repurchase thereof with the proceeds of such Asset Disposition, in each
case in an amount not to exceed the product of (x) the amount of such Net Cash Proceeds and (y) a fraction, the numerator of which is
the outstanding principal amount of such other Indebtedness and the denominator of which is the aggregate outstanding principal amount
of Term Loans and such other Indebtedness.
(iii) Insurance and Condemnation Events. The Borrower shall make mandatory principal prepayments of the Term Loans in the manner
set forth in clause (v) below in an amount equal to one hundred percent (100%) of the aggregate Net Cash Proceeds from any Insurance
and Condemnation Event to the extent that the aggregate amount of such Net Cash Proceeds exceed $15,000,000 during any Fiscal Year. Such
prepayments shall be made within three (3) Business Days after the date of receipt of Net Cash Proceeds of any such Insurance and Condemnation
Event by any Credit Party or any of its Subsidiaries (other than Excluded Subsidiaries); provided that, so long as no Event of
Default has occurred and is continuing, the Borrower or any Subsidiary (other than any Excluded Subsidiary) may cause the Net Cash Proceeds
from such event (or a portion thereof) to be invested within 365 days after receipt by the Borrower or such Subsidiary (other than any
Excluded Subsidiary) of such Net Cash Proceeds in the business of the Borrower and its Subsidiaries (other than any Excluded Subsidiary)
(including to consummate any Permitted Acquisition (or any other acquisition of all or substantially all the assets of (or all or substantially
all the assets constituting a business unit, division, product line or line of business of) any Person) permitted hereunder), in which
case no prepayment shall be required pursuant to this paragraph in respect of the Net Cash Proceeds from such event (or such portion
of such Net Cash Proceeds so invested) except to the extent of any such Net Cash Proceeds that have not been so invested by the end of
such 365-day period (or within a period of 180 days thereafter if by the end of such initial 365-day period the Borrower or one or more
Subsidiaries (other than any Excluded Subsidiary) shall have entered into an agreement or binding commitment to invest such Net Cash
Proceeds), at which time a prepayment shall be required in an amount equal to the Net Cash Proceeds that have not been so invested; provided,
further, that the Borrower may use a portion of such Net Cash Proceeds to prepay or repurchase any other Indebtedness that is
secured by the Collateral on a pari passu basis with the Term Loans to the extent such other Indebtedness and the Liens securing such
Indebtedness are permitted hereunder and the documentation governing such other Indebtedness requires such a prepayment or repurchase
thereof with the proceeds of such Insurance and Condemnation Event, in each case in an amount not to exceed the product of (x) the amount
of such Net Cash Proceeds and (y) a fraction, the numerator of which is the outstanding principal amount of such other Indebtedness and
the denominator of which is the aggregate outstanding principal amount of Term Loans and such other Indebtedness.
(iv) Excess Cash Flow. After the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2022), within
five (5) Business Days after the earlier to occur of (x) the delivery of the financial statements and related Officer’s Compliance
Certificate for such Fiscal Year and (y) the date on which the financial statements and the related Officer’s Compliance Certificate
for such fiscal year are required to be delivered pursuant to Section 6.1(a) and Section 6.2(a), the Borrower shall make
mandatory principal prepayments of the Term Loans in the manner set forth in clause (v) below in an amount equal to (A) the then applicable
ECF Percentage of Excess Cash Flow, if any, for such Fiscal Year minus (B) the aggregate amount of all (i) optional prepayments
of Term Loans pursuant to Section 2.4(a) during such Fiscal Year and (ii) purchases of Term Loans pursuant to Section 11.9(g)
by the Borrower or any Subsidiary during such fiscal year (determined by the actual cash purchase price paid by such Person for any
such purchase and not the par value of the Term Loans purchased by such Person) (in each case other than with the proceeds of long-term
Indebtedness (other than revolving indebtedness)).
(v) Notice; Manner of Payment. Upon the occurrence of any event triggering the prepayment requirement under clauses (i)
through and including (iv) above, the Borrower shall promptly deliver a Notice of Prepayment to the Administrative Agent and upon receipt
of such notice, the Administrative Agent shall promptly (other than a prepayment with the proceeds of Refinancing Term Loans) so notify
the applicable Lenders. Each prepayment of the Term Loans under this Section 2.4 shall be applied on a pro rata basis among
the Initial Term Loans, Incremental Term B Loans and, if applicable, Incremental Term
Loans, Extended Term Loans and Refinancing Term Loans (as determined based on the then outstanding principal amount of each such Term
Loan), except to the extent that any applicable amendment or other governing document implementing an Incremental Term Loan, Extended
Term Loan and/or Refinancing Term Loan provides that the applicable Class of Term Loans made thereunder shall be entitled to less than
pro rata treatment. Notwithstanding the foregoing, each prepayment of Term Loans under Section 2.4(b)(i) with proceeds
of Refinancing Term Loans shall be applied solely to the Class of Term Loans being Refinanced thereby. Amounts so applied shall be further
applied (A) on a pro rata basis to the remaining scheduled principal installments of the Initial Term Loans and Incremental
Term B Loans and (B) as determined by the Borrower and the applicable Class of Lenders to reduce the remaining scheduled
principal installments of any Incremental Term Loans, Extended Term Loans and/or Refinancing Term Loans. Each prepayment shall be accompanied
by any amount required to be paid pursuant to Section 3.9.
(c) Call Premium. In the event that, on or prior to the six (6) month anniversary of the Amendment No. 1 Effective Date, the
Borrower (i) makes any prepayment or repayment of the Initial Term Loans or the Incremental Term B
Loans in connection with any Repricing Transaction (as defined below) or (ii) effects any amendment of this Agreement resulting in a
Repricing Transaction, the Borrower shall pay to the Administrative Agent, for the ratable account of each applicable Lender, a fee in
an amount equal to, (x) in the case of clause (i), a prepayment premium of 1.0% of the amount of the Initial Term Loans or
Incremental Term B Loans, as the case may be, being prepaid and (y) in the case of clause (ii), a payment equal to 1.0%
of the aggregate amount of the Initial Term Loans or Incremental Term B Loans, as the
case may be, outstanding immediately prior to such amendment that are subject to such amendment (including, without limitation, any Initial
Term Loans or Incremental Term B Loans, as the case may be, of a Non-Consenting Lender
that is replaced pursuant to Section 3.12(b) in connection with such amendment). Such fees shall be due and payable within three
(3) Business Days of the date of the effectiveness of such Repricing Transaction. For the purpose of this clause (c), “Repricing
Transaction” means (x) any prepayment or repayment of the Initial Term Loans or Incremental
Term B Loans, as the case may be, with the proceeds of, or any conversion of the Initial Term Loans or
Incremental Term B Loans, as the case may be, into, any new or replacement tranche of term loans or Indebtedness incurred
for the primary purpose (as determined in good faith by the Borrower) of reducing the Effective Yield to an amount less than the Effective
Yield applicable to the Initial Term Loans or Incremental Term B Loans, as the case may be,
and (y) any amendment, amendment and restatement, mandatory assignment or other transaction that reduces, and the primary purpose of
which (as determined in good faith by the Borrower) was the reduce, the Effective Yield applicable to the Initial Term Loans or
Incremental Term B Loans, as the case may be, but which in each case does not include any refinancing that involves a
transaction that, if consummated, would constitute a Change in Control or any other transaction not otherwise permitted by this Agreement.
ARTICLE III
GENERAL LOAN
PROVISIONS
SECTION 3.1 Interest.
(a) Interest Rate Options. Subject to the provisions of this Section 3.1, at the election of the Borrower, (i)
the Initial Term Loans shall bear interest at (A) the Alternate Base Rate plus the Applicable
Margin or (B) the Adjusted Term SOFR Rate plus the Applicable Margin and (ii) the Incremental
Term Bthe Initial Term Loans shall bear interest
at (A) the Alternate Base Rate plus the Applicable Margin or (B) the Adjusted Term SOFR Rate plus the Applicable Margin
(provided that, in each case, the Adjusted Term SOFR Rate shall not be available
until three (3) Business Days after the Closing Date unless the Borrower has delivered to the Administrative Agent a letter indemnifying
the Lenders in the manner set forth in Section 3.9 of this Agreement). The Borrower shall select the rate of interest and Interest
Period, if any, applicable to the Initial Term Loans and/or the Incremental Term B Loans
at the time a Notice of Borrowing is given or at the time a Notice of Conversion/Continuation is given pursuant to Section 3.2.
(b) Default Rate. Subject to Section 9.3, immediately upon the occurrence and during the continuance of an Event of
Default under Section 9.1(a), (b), (i) or (j), (A) the Borrower shall no longer have the option to request
Term SOFR Rate Loans, (B) all outstanding Term SOFR Rate Loans shall bear interest at a rate per annum of two percent (2%) in excess
of the rate (including the Applicable Margin) then applicable to Term SOFR Rate Loans until the end of the applicable Interest Period
and thereafter at a rate equal to two percent (2%) in excess of the rate (including the Applicable Margin) then applicable to ABR Term
Loans, (C) all outstanding ABR Term Loans and other Obligations arising hereunder or under any other Loan Document shall bear interest
at a rate per annum equal to two percent (2%) in excess of the rate (including the Applicable Margin) then applicable to ABR Term Loans
or such other Obligations arising hereunder or under any other Loan Document and (D) all accrued and unpaid interest shall be due and
payable on demand of the Administrative Agent. Interest shall continue to accrue on the Obligations after the filing by or against the
Borrower of any petition seeking any relief in bankruptcy or under any Debtor Relief Law.
(c) Interest Payment and Computation. Interest on each ABR Term Loan shall be due and payable in arrears on the last Business
Day of each calendar quarter commencing December 31, 2021; and interest on each Term SOFR Rate Loan shall be due and payable on the last
day of each Interest Period applicable thereto, and if such Interest Period extends over three (3) months, at the end of each three (3)
month interval during such Interest Period. ;
provided that accrued and unpaid interest up to but excluding the Amendment No. 2 Effective Date for the Initial Term Loans (including
the Converted Incremental Term B Loans) shall be due and payable on the Amendment No. 2 Effective Date. All computations of interest
for ABR Term Loans when the Alternate Base Rate is determined by the Prime Rate shall be made on the basis of a year of 365 or 366 days,
as the case may be, and actual days elapsed. All other computations of fees and interest provided hereunder shall be made on the basis
of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the
basis of a 365/366-day year).
(d) Maximum Rate. In no contingency or event whatsoever shall the aggregate of all amounts deemed interest under this Agreement
charged or collected pursuant to the terms of this Agreement exceed the highest rate permissible under any Applicable Law which a court
of competent jurisdiction shall, in a final determination, deem applicable hereto. In the event that such a court determines that the
Lenders have charged or received interest hereunder in excess of the highest applicable rate, the rate in effect hereunder shall automatically
be reduced to the maximum rate permitted by Applicable Law and the Lenders shall at the Administrative Agent’s option (i) promptly
refund to the Borrower any interest received by the Lenders in excess of the maximum lawful rate or (ii) apply such excess to the principal
balance of the Obligations. It is the intent hereof that the Borrower not pay or contract to pay, and that neither the Administrative
Agent nor any Lender receive or contract to receive, directly or indirectly in any manner whatsoever, interest in excess of that which
may be paid by the Borrower under Applicable Law.
SECTION 3.2 Notice
and Manner of Conversion or Continuation of Loans. The Borrower shall have the option to (a) convert at any time following the third
Business Day after the Closing Date all or any portion of any outstanding ABR Term Loans in a principal amount equal to $5,000,000 or
any whole multiple of $1,000,000 in excess thereof into one or more Term SOFR Rate Loans and (b) upon the expiration of any Interest
Period, (i) convert all or any part of its outstanding Term SOFR Rate Loans in a principal amount equal to $1,000,000 or a whole multiple
of $500,000 in excess thereof into ABR Term Loans or (ii) continue such Term SOFR Rate Loans as Term SOFR Rate Loans. Whenever the Borrower
desires to convert or continue Term Loans as provided above, the Borrower shall give the Administrative Agent irrevocable prior written
notice in the form attached as Exhibit D (a “Notice of Conversion/Continuation”) not later than 11:00 a.m.
three (3) Business Days before the day on which a proposed conversion or continuation of such Term Loans is to be effective specifying
(A) the Class of Term Loans to be converted or continued, and, in the case of any Term SOFR Rate Loan to be converted or continued, the
last day of the Interest Period therefor, (B) the effective date of such conversion or continuation (which shall be a Business Day),
(C) the principal amount of such Term Loans to be converted or continued, and (D) the Interest Period to be applicable to such converted
or continued Term SOFR Rate Loan. If the Borrower fails to give a timely Notice of Conversion/Continuation prior to the end of the Interest
Period for any Term SOFR Rate Loan, then the applicable Term SOFR Rate Loan shall be converted to an ABR Term Loan. Any such automatic
conversion to an ABR Term Loan shall be effective as of the last day of the Interest Period then in effect with respect to the applicable
Term SOFR Rate Loan. If the Borrower requests a conversion to, or continuation of, Term SOFR Rate Loans, but fails to specify an Interest
Period, it will be deemed to have specified an Interest Period of one (1) month. The Administrative Agent shall promptly notify the applicable
Lenders of such Notice of Conversion/Continuation.
SECTION 3.3 Fees. The Borrower shall pay to the
Arranger and the Administrative Agent for their own respective accounts fees in the amounts and at the times as separately agreed. The
Borrower shall pay to the Lenders such fees as shall have been separately agreed upon in writing in the amounts and at the times so specified.
SECTION 3.4 Manner of Payment. Each payment
by the Borrower on account of the principal of or interest on the Term Loans or of any fee, commission or other amounts payable to the
Lenders under this Agreement shall be made not later than 1:00 p.m. on the date specified for payment under this Agreement to the Administrative
Agent at the Administrative Agent’s Office for the account of the applicable Lenders entitled to such payment in Dollars, in immediately
available funds and shall be made without any set off, counterclaim or deduction whatsoever. Any payment received after such time but
before 2:00 p.m. on such day shall be deemed a payment on such date for the purposes of Section 9.1, but for all other purposes
shall be deemed to have been made on the next succeeding Business Day. Any payment received after 2:00 p.m. shall be deemed to have been
made on the next succeeding Business Day for all purposes. Upon receipt by the Administrative Agent of each such payment, the Administrative
Agent shall distribute to each such Lender at its address for notices set forth herein its ratable share (or other applicable share as
provided herein) of such payment and shall wire advice of the amount of such credit to each Lender. Each payment to the Administrative
Agent of Administrative Agent’s fees or expenses shall be made for the account of the Administrative Agent and any amount payable
to any Lender under Sections 3.9, 3.10, 3.11 or 11.3 shall be paid to the Administrative Agent for the account
of the applicable Lender. Subject to the definition of “Interest Period,” if any payment under this Agreement shall be specified
to be made upon a day which is not a Business Day, it shall be made on the next succeeding day which is a Business Day and such extension
of time shall in such case be included in computing any interest if payable along with such payment. Notwithstanding the foregoing, if
there exists a Defaulting Lender each payment by the Borrower to such Defaulting Lender hereunder shall be applied in accordance with
Section 3.14(a)(ii).
SECTION 3.5 Evidence of Indebtedness. The Term
Loans made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Administrative Agent
in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive
absent manifest error of the amount of the Term Loans made by the Lenders to the Borrower and the interest and payments thereon. Any
failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder
to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by
any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative
Agent shall control in the absence of manifest error. Upon the request of any Lender made through the Administrative Agent, the Borrower
shall execute and deliver to such Lender (through the Administrative Agent) a Term Loan Note which shall evidence such Lender’s
Term Loans in addition to such accounts or records. Each Lender may attach schedules to its Term Loan Note and endorse thereon the date,
amount and maturity of its Term Loan and payments with respect thereto.
SECTION 3.6 Sharing
of Payments by Lenders. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect
of any principal of or interest on any of its Term Loans or other obligations hereunder resulting in such Lender’s receiving payment
of a proportion of the aggregate amount of its Term Loans and accrued interest thereon or other such obligations (other than pursuant
to Sections 3.9, 3.10, 3.11 or 11.3) greater than its pro rata share thereof as provided herein, then
the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face
value) participations in the Term Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable,
so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal
of and accrued interest on their respective Term Loans and other amounts owing them; provided that:
(i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations
shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph (ii) shall not be construed to apply to (A) any payment made by the Borrower pursuant to and
in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting
Lender), or (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Term
Loans to any assignee or participant, other than, except to the extent provided in Section 11.9(g), to the Borrower or any of
its Subsidiaries or Affiliates (as to which the provisions of this paragraph (ii) shall apply).
Each Credit
Party consents to the foregoing and agrees, to the extent it may effectively do so under Applicable Law, that any Lender acquiring a participation
pursuant to the foregoing arrangements may exercise against each Credit Party rights of setoff and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of each Credit Party in the amount of such participation.
For purposes
of clause (b) of the definition of “Excluded Taxes,” a Lender that acquired a participation pursuant to this Section 3.6
shall be treated as having acquired such participation on the earlier date(s) on which such Lender acquired an interest in the Term Loan
Commitment(s) or Term Loan(s) to which such participation relates.
SECTION 3.7 Funding by Lenders; Administrative Agent’s
Clawback.
(a) Funding by Lenders. Each Lender shall make each Term Loan to be made by it hereunder on the proposed date thereof by
wire transfer of immediately available funds by 12:00 p.m., New York City time, to the account of the Administrative Agent most recently
designated by it for such purpose by notice to the applicable Lenders. The Administrative Agent will make such Term Loans available to
the Borrower by promptly crediting the amounts so received, in like funds, to an account of the Borrower maintained with the Administrative
Agent and designated by the Borrower in the applicable Notice of Borrowing or to such other account or accounts as may be designated
in writing to the Administrative Agent by the Borrower.
(b) Presumption by Administrative Agent. Unless the Administrative Agent shall have received notice from a Lender (i) in
the case of ABR Term Loans, not later than 12:00 noon on the date of any proposed borrowing and (ii) otherwise, prior to the proposed
date of any borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such borrowing,
the Administrative Agent may assume that such Lender has made such share available on such date in accordance with this Agreement and
may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact
made its share of the applicable borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally
agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including
the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the
case of a payment to be made by such Lender, the greater of the daily average Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank compensation and (B) in the case of a payment to be made
by the Borrower, the interest rate applicable to ABR Term Loans. If the Borrower and such Lender shall pay such interest to the Administrative
Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest
paid by the Borrower for such period. If such Lender pays its share of the applicable borrowing to the Administrative Agent, then the
amount so paid shall constitute such Lender’s Term Loan included in such borrowing. Any payment by the Borrower shall be without
prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(c) Payments by the Borrower; Presumptions by Administrative Agent. Unless the Administrative Agent shall have received
notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders hereunder
that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date
in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due. In such event, if the Borrower
has not in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand
the amount so distributed to such Lender, with interest thereon, for each day from and including the date such amount is distributed
to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
(d) Nature of Obligations of Lenders. The obligations of the Lenders under this Agreement to make Term Loans are several and
are not joint or joint and several. The failure of any Lender to make available its ratable portion of any Term Loan requested by the
Borrower shall not relieve it or any other Lender of its obligation, if any, hereunder to make its ratable portion of such Term Loan
available on the borrowing date, but no Lender shall be responsible for the failure of any other Lender to make its ratable portion of
such Term Loan available on the borrowing date.
SECTION 3.8 Alternate Rate of Interest.
(a) Subject
to clauses (b), (c), (d), (e) and (f) of this Section 3.8, if
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error) prior to the commencement
of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Adjusted
Term SOFR Rate or the Term SOFR Rate (including because the Term SOFR Reference Rate is not available or published on a current basis),
for such Interest Period; or
(ii) the Administrative Agent is advised by the Required Lenders that prior to the commencement of any Interest Period for a Term Benchmark
Borrowing, the Adjusted Term SOFR Rate or the Term SOFR Rate and such Interest Period will not adequately and fairly reflect the cost
to such Lenders (or Lender) of making or maintaining their Term Loans (or its Term Loan) included in such Borrowing for such Interest
Period;
then the Administrative Agent
shall give notice thereof to the Borrower and the Lenders by telephone, telecopy or electronic mail as promptly as practicable thereafter
and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer
exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Notice of Borrowing in accordance with the terms of
Section 2.2, (1) any Notice of Conversion/Continuation that requests the conversion of any ABR Borrowing to, or continuation of
any ABR Borrowing as, a Term Benchmark Borrowing and any Notice of Borrowing that requests a Term Benchmark Revolving Borrowing shall
instead be deemed to be a Notice of Conversion/Continuation or a Notice of Borrowing, as applicable, for an ABR Borrowing. Furthermore,
if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred
to in this Section 3.8(a), then until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances
giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Notice of Borrowing
in accordance with the terms of Section 2.2, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable
to such Term Loan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to,
and shall constitute, an ABR Borrowing.
(b) Notwithstanding anything to the contrary herein or in any other Loan Document (and any Swap Obligation shall be deemed to be a
Loan Document for purposes of this Section 3.8), if a Benchmark Transition Event and its related Benchmark Replacement Date have
occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is
determined in accordance with clause (1) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date,
such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark
setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement
or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (2) of the definition of “Benchmark
Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder
and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business
Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent
of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time,
written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders of each affected Class.
(c) Notwithstanding anything to the contrary herein or in any other Loan Document, the Administrative Agent will have the right to
make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other
Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action
or consent of any other party to this Agreement or any other Loan Document.
(d) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event,
(ii) the implementation of any Benchmark Replacement, (iii)
the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark
pursuant to clause (f) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision
or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section
3.8, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event,
circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent
manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other
Loan Document, except, in each case, as expressly required pursuant to this Section 3.8.
(e) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation
of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Rate) and either (A) any tenor
for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by
the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided
a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative,
then the Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such
time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either
(A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or
is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement),
then the Administrative Agent may modify the definition of “Interest Period” for all Benchmark settings at or after such
time to reinstate such previously removed tenor.
(f) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke
any request for a Term Benchmark Borrowing of, conversion to or continuation of Term Benchmark Loans to be made, converted or continued
during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any request for (1) a Term
Benchmark Borrowing into a request for a Borrowing of or conversion to an ABR Borrowing. During any Benchmark Unavailability Period or
at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of ABR based upon the then-current Benchmark
or such tenor for such Benchmark, as applicable, will not be used in any determination of ABR. Furthermore, if any Term Benchmark Loan
is outstanding on the date of the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, then until
such time as a Benchmark Replacement is implemented pursuant to this Section 3.8, any Term Benchmark Loan shall on the last day
of the Interest Period applicable to such Term Loan (or the next succeeding Business Day if such day is not a Business Day), be converted
by the Administrative Agent to, and shall constitute an ABR Term Loan.
SECTION 3.9 Indemnity. The Borrower hereby indemnifies
each of the Lenders against any loss or expense (including any loss or expense arising from the liquidation or reemployment of funds
obtained by it to maintain a Term SOFR Rate Loan or from fees payable to terminate the deposits from which such funds were obtained)
which may arise or be attributable to each Lender’s obtaining, liquidating or employing deposits or other funds acquired to effect,
fund or maintain any Term Loan (a) as a consequence of any failure by the Borrower to make any payment when due of any amount due hereunder
in connection with a Term SOFR Rate Loan, (b) due to any failure of the Borrower to borrow or continue a Term SOFR Rate Loan or convert
to a Term SOFR Rate Loan on a date specified therefor in a Notice of Borrowing or Notice of Conversion/Continuation or (c) due to any
payment, prepayment or conversion of any Term SOFR Rate Loan on a date other than the last day of the Interest Period therefor. The amount
of such loss or expense shall be determined, in the applicable Lender’s sole discretion, based upon the assumption that such Lender
funded its ratable portion of the Term SOFR Rate Loans and using any reasonable attribution or averaging methods which such Lender deems
appropriate and practical. A certificate of such Lender setting forth the basis for determining such amount or amounts necessary to compensate
such Lender shall be forwarded to the Borrower through the Administrative Agent and shall be conclusively presumed to be correct save
for manifest error. For the avoidance of doubt, notwithstanding the foregoing,
no Lender shall demand, and the Borrower shall not be obliged to make, any funding loss payments pursuant to this Section 3.9 with respect
to the payment of accrued interest on the Amendment No. 2 Effective Date with respect to the Converted Incremental Term B Loan.
SECTION 3.10 Increased Costs.
(a) Increased
Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against
assets of, deposits with or for the account of, or advances, loans or other credit extended or participated in by, any Lender (except
any reserve requirement reflected in the Term SOFR Rate); or
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition
of “Excluded Taxes” and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other
obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Lender any other condition, cost or expense (other than Taxes) affecting this Agreement or Term SOFR Rate Loans
made by such Lender;
and the result of any of the foregoing
shall be to increase the cost to such Lender or such other Recipient of making, converting to, continuing or maintaining any Term Loan
(or of maintaining its obligation to make any such Term Loan) or to reduce the amount of any sum received or receivable by such Lender
or other Recipient hereunder (whether of principal, interest or any other amount) then, upon written request of such Lender or other Recipient,
the Borrower shall promptly pay to any such Lender or other Recipient, as the case may be, such additional amount or amounts as will compensate
such Lender or other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender determines that any Change in Law affecting such Lender or any Lending Office of such
Lender or such Lender’s holding company, if any, regarding capital or liquidity requirements, has or would have the effect of reducing
the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence
of this Agreement or the Term Loans made by such Lender to a level below that which such Lender or such Lender’s holding company
could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s
holding company with respect to capital adequacy), then from time to time upon written request of such Lender the Borrower shall promptly
pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such
reduction suffered.
(c) Certificates for Reimbursement. A certificate of a Lender or other Recipient setting forth the amount or amounts necessary
to compensate such Lender, such other Recipient or any of their respective holding companies, as the case may be, as specified in paragraph
(a) or (b) of this Section 3.10 and delivered to the Borrower, shall be conclusive absent manifest error. The Borrower shall pay
such Lender or such other Recipient, as the case may be, the amount shown as due on any such certificate within ten (10) days after receipt
thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender or other Recipient to demand compensation pursuant to this
Section 3.10 shall not constitute a waiver of such Lender’s or such other Recipient’s right to demand such compensation;
provided that the Borrower shall not be required to compensate any Lender or any other Recipient pursuant to this Section 3.10
for any increased costs incurred or reductions suffered more than nine (9) months prior to the date that such Lender or such other
Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such
Lender’s or such other Recipient’s intention to claim compensation therefor (except that if the Change in Law giving rise
to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period
of retroactive effect thereof).
SECTION 3.11 Taxes.
(a) Defined
Terms. For purposes of this Section 3.11, the term “Applicable Law” includes FATCA.
(b) Payments Free of Taxes. All payments by or on account of any obligation of any Credit PFATCA.arty under any Loan Document shall
be made without deduction or withholding for any Taxes, except as required by Applicable Law. If any Applicable Law (as determined in
the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment
by any Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely
pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with Applicable Law and, if such Tax is
an Indemnified Tax, then the sum payable by the applicable Credit Party shall be increased as necessary so that, after all such deductions
or withholdings have been made (including such deductions and withholdings applicable to additional sums payable under this Section
3.11), the applicable Lender (or, in the case of payments made to the Administrative Agent for its own account, the Administrative
Agent) receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(c) Payment of Other Taxes by the Credit Parties. The Credit Parties shall timely pay to the relevant Governmental Authority
in accordance with Applicable Law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(d) Indemnification
by the Credit Parties. The Credit Parties shall, jointly and severally, indemnify each Recipient, within ten (10) days after
demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to
amounts payable under this Section 3.11) payable or paid by such Recipient or required to be withheld or deducted with
respect to a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the
amount of such payment or liability delivered to the Borrower by a Recipient (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Recipient, shall be conclusive absent manifest error.
(e) Indemnification by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within ten (10) days
after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Credit Party has not
already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Credit Parties to
do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 11.9(d) relating to
the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or
paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect
thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate
as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest
error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender
under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to
the Administrative Agent under this Section 3.11(e).
(f) Evidence of Payments. As soon as practicable after any payment of Taxes by any Credit Party to a Governmental Authority
pursuant to this Section 3.11, such Credit Party shall deliver to the Administrative Agent the original or a certified copy of
a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence
of such payment reasonably satisfactory to the Administrative Agent.
(g) Status
of Lenders.
(i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan
Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the
Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent
as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably
requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably
requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or
not such Lender is subject to backup withholding or information reporting requirements.
(ii) Without
limiting the generality of the foregoing:
(A) Any
Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender
becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the
Administrative Agent), two executed copies of IRS Form W-9 certifying that such Lender is exempt from United States federal backup
withholding tax;
(B) any
Foreign Lender shall, to the extent it is legally eligible to do so, deliver to the Borrower and the Administrative Agent on or
prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the
reasonable request of the Borrower or the Administrative Agent), two of whichever of the following is applicable:
(1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party executed copies
of IRS Form W-8BEN or W-BEN-E, as applicable;
(2) executed
copies of IRS Form W-8ECI;
(3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code,
(x) a certificate substantially in the form of Exhibit G-1 to the effect that such Foreign Lender is not a “bank” within
the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section
881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code and that no
payments under any Loan Documents are effectively connected with a U.S. trade or business (a “U.S. Tax Compliance Certificate”)
and (y) executed copies of IRS Form W-8BEN or W-BEN-E, as applicable; or
(4) to the extent a Foreign Lender is not the beneficial owner (for example, where such Lender is a partnership or a participating
Lender), executed original copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-BEN-E, as applicable, a U.S.
Tax Compliance Certificate substantially in the form of Exhibit G-2 or Exhibit G-3, IRS Form W-9, and/or other certification
documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership (and not a participating
Lender) and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign
Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-4 on behalf of such direct and indirect
partner(s);
(C) any Foreign Lender shall, to the extent it is legally eligible to do so, deliver to the Borrower and the Administrative Agent
(in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender
under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed
copies of any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in United States federal
withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by Applicable Law to permit the
Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) if a payment made to a Lender under any Loan Document would be subject to United States federal withholding Tax imposed by FATCA
if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b)
or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed
by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by Applicable
Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower
or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under
FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct
and withhold from such payment. Solely for purposes of this Section 3.11(g)(ii)(D), “FATCA” shall include any amendments
made to FATCA after the date of this Agreement.
Each Lender agrees
that if any documentation it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall promptly update such
documentation or promptly notify the Borrower and the Administrative Agent in writing of its legal ineligibility to do so.
Notwithstanding
anything to the contrary in this Section 3.11(g), no Lender shall not be required to deliver any documentation pursuant to this
Section 3.11(g) that it is not legally eligible.
Each Lender
hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation
provided by such Lender to the Administrative Agent pursuant to this Section 3.11(g).
(h) Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received
a refund of any Taxes as to which it has been indemnified pursuant to this Section 3.11 (including by the payment of additional
amounts pursuant to this Section 3.11), it shall pay to the indemnifying party an amount equal to such refund (but only to the
extent of indemnity payments made under this Section 3.11 with respect to the Taxes giving rise to such refund), net of all out-of-pocket
expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified
party the amount paid over pursuant to this Section 3.11(h) (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority.
Notwithstanding anything to the contrary in this Section 3.11(h), in no event will the indemnified party be required to pay any
amount to an indemnifying party pursuant to this paragraph (h) the payment of which would place the indemnified party in a less favorable
net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund
had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax
had never been paid. This Section 3.11(h) shall not be construed to require any indemnified party to make available its Tax returns
(or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
(i) Survival. Each party’s obligations under this Section 3.11 shall survive the resignation or replacement of
the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Term Loan Commitments
and the repayment, satisfaction or discharge of all obligations under any Loan Document.
SECTION 3.12 Mitigation Obligations; Replacement of
Lenders.
(a) Designation of a Different Lending Office. If any Lender requests compensation under Section
3.10, or requires the Borrower to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority
for the account of any Lender pursuant to Section 3.11, then such Lender shall, at the request of the Borrower, use reasonable
efforts to designate a different Lending Office for funding or booking its Term Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 3.10 or Section 3.11, as the case may be, in the future and (ii)
would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation under Section 3.10, or if the Borrower is required to
pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to
Section 3.11, and, in each case, such Lender has declined or is unable to designate a different Lending Office in accordance with
Section 3.12(a), or if any Lender is a Defaulting Lender or a Non-Consenting Lender, then the Borrower may, at its sole expense
and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in, and consents required by, Section 11.9), all of its interests, rights
(other than its existing rights to payments pursuant to Section 3.10 or Section 3.11) and obligations under this Agreement
and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such assignment); provided that:
(i) the Borrower shall have paid to the Administrative Agent the assignment fee (if any) specified in Section 11.9;
(ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Term Loans, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section
3.9) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of
all other amounts, including any amounts under Section 2.4(c));
(iii) in the case of any such assignment resulting from a claim for compensation under Section 3.10 or payments required to be
made pursuant to Section 3.11, such assignment will result in a reduction in such compensation or payments thereafter;
(iv) such
assignment does not conflict with Applicable Law; and
(v) in the case of any assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented
to the applicable amendment, waiver or consent.
A Lender shall
not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation cease to apply.
SECTION 3.13 Incremental Loans.
(a) At any time after the Closing Date, the Borrower may by written notice to the Administrative Agent elect to request the establishment
of one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”)
to make additional term loans, including a borrowing of an additional term loan the principal amount of which will be added to the outstanding
principal amount of any existing Class of Term Loans (any such additional term loan, an “Incremental Term Loan”);
provided that (i) the total aggregate principal amount of such Incremental Term Loan Commitment shall not exceed the Incremental
Term Loan Limit and (ii) the total aggregate amount for each Incremental Term Loan Commitment (and the Incremental Term Loans made thereunder)
shall not, unless otherwise agreed to by the Administrative Agent, be less than a minimum principal amount of $10,000,000 or, if less,
the remaining amount permitted pursuant to the foregoing clause (i). Each such notice shall specify the date (each, an “Increased
Amount Date”) on which the Borrower proposes that any Incremental Term Loan Commitment shall be effective, which shall be a
date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent (or such other date
as may be approved by the Administrative Agent). The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved
Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Term Loan Commitment or
any portion thereof (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached
to provide all or a portion of any Incremental Term Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental
Term Loan Commitment. Any Incremental Term Loan Commitment shall become effective as of such Increased Amount Date; provided that,
subject to Section 1.11, each of the following conditions has been satisfied or waived as of such Increased Amount Date:
(A) no Default or Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect
on a Pro Forma Basis to any Incremental Term Loan Commitment, the making of any Incremental Term Loans pursuant thereto and any Specified
Transactions consummated in connection therewith;
(B) the Administrative Agent and the Lenders shall have received from the Borrower an Officer’s Compliance Certificate demonstrating,
in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the Financial Covenant
based on the financial statements most recently delivered pursuant to Section 6.1(a) or 6.1(b), as applicable, both before
and after giving effect (on a Pro Forma Basis) to any Incremental Term Loan Commitment, the making of any Incremental Term Loans pursuant
thereto (with any Incremental Term Loan Commitment being deemed to be fully funded), and any Specified Transactions consummated in connection
therewith;
(C) each of the representations and warranties contained in Articles V and VIII shall be true and correct in all material
respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect,
in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with
the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as
of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the proceeds of any Incremental Term Loans shall be used for general corporate purposes of the Credit Parties (including, without
limitation, capital expenditures, acquisitions, working capital and/or purchase price adjustments, the payment of transaction fees and
expenses, other Investments, Restricted Payments and/or any other purpose not prohibited by the Loan Documents);
(E) each Incremental Term Loan Commitment (and the Incremental Term Loans made thereunder) shall constitute Obligations of the Borrower
and shall be secured and guaranteed with the other Term Loans on a pari passu basis;
(F) in the case of each Incremental Term Loan (the terms of which shall be set forth in the relevant Lender Joinder Agreement):
(1) such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Incremental Lenders making such Incremental
Term Loan and the Borrower, but will not in any event have a shorter Weighted Average Life to Maturity than the remaining Weighted Average
Life to Maturity of the Initial Term Loan or Incremental Term B Loan or a maturity date
earlier than the Term Loan Maturity Date;
(2) the interest rate margins, fees and, subject to clause (F)(1) above, amortization schedule, applicable to any Incremental Term
Loan shall be determined by the Borrower and the applicable Incremental Lenders; provided that in the event that the Effective
Yield for any Incremental Term Loan incurred by the Borrower prior to the date that is twelve (12) months after the Closing Date under
any Incremental Term Loan Commitment is higher than the Effective Yield for the outstanding Initial Term Loans hereunder immediately prior
to the incurrence of the applicable Incremental Term Loans by more than 50 basis points, then the Applicable Margin for the Initial Term
Loans at the time such Incremental Term Loans are incurred shall be increased to the extent necessary so that the Effective Yield for
the Initial Term Loans is equal to the Effective Yield for such Incremental Term Loans minus 50 basis points; and
(3) except as provided above, all other terms and conditions applicable to any Incremental Term Loan, to the extent not consistent
with the terms and conditions applicable to the Initial Term Loans or the Incremental Term B Loans,
shall be reasonably satisfactory to the Administrative Agent (provided that such other terms and conditions shall not be materially
more favorable to the Lenders under any Incremental Term Loans than such other terms and conditions under the Initial Term Loans or
the Incremental Term B Loans);
(G) such Incremental Term Loan Commitments shall be effected pursuant to one or more Lender Joinder Agreements executed and delivered
by the Borrower, the Administrative Agent and the applicable Incremental Lenders (which Lender Joinder Agreement may, without the consent
of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the
opinion of the Administrative Agent, to effect the provisions of this Section 3.13); and
(H) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation,
a resolution duly adopted by the board of directors (or equivalent governing body) of each Credit Party authorizing such Incremental
Term Loan and/or Incremental Term Loan Commitment) and such written consent or acknowledgement, if any, from each Agency with respect
to such Incremental Term Loan as may be necessary or reasonably requested by Administrative Agent in connection with any such transaction
(which such consents or acknowledgments shall be in form and substance reasonably satisfactory to the Administrative Agent and the Incremental
Lenders).
(b) The Incremental Term Loans shall be deemed to be Term Loans; provided that any such Incremental Term Loan that is not added
to the outstanding principal balance of a pre-existing Term Loan shall be designated as a separate Class of Term Loans for all purposes
of this Agreement. Each party hereto hereby agrees that, upon the effectiveness of any Lender Joinder Agreement, this Agreement shall
be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments
evidenced thereby. Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section
3.13 shall be deemed “Loan Documents” hereunder. Each of the parties hereto hereby agrees that the Administrative Agent
may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Incremental Term Loans
designated as a separate Class of Term Loans), when originally made, are included in each Borrowing of the outstanding Initial Term Loans
or Incremental Term B Loans on a pro rata basis.
(i) The Incremental Lenders shall be included in any determination of the Required Lenders and, unless otherwise agreed, the Incremental
Lenders will not constitute a separate voting class for any purposes under this Agreement.
(c) On any Increased Amount Date on which any Incremental Term Loan Commitment becomes effective, subject to the foregoing terms and
conditions, each Incremental Lender with an Incremental Term Loan Commitment shall make, or be obligated to make, an Incremental Term
Loan to the Borrower in an amount equal to its Incremental Term Loan Commitment and shall become a Lender hereunder with respect to such
Incremental Term Loan Commitment and the Incremental Term Loan made pursuant thereto.
SECTION 3.14 Defaulting Lenders.
(a) Defaulting Lender Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes
a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by Applicable Law:
(i) Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent
with respect to this Agreement shall be restricted as set forth in the definition of “Required Lenders” and Section 11.2.
(ii) Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Administrative Agent
for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article IX or otherwise) or
received by the Administrative Agent from a Defaulting Lender pursuant to Section 11.4 shall be applied at such time or times
as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender
to the Administrative Agent hereunder; second, as the Borrower may request (so long as no Default or Event of Default exists),
to the funding of any Term Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this
Agreement, as determined by the Administrative Agent; third, if so determined by the Administrative Agent and the Borrower, to
be held in a deposit account and released pro rata in order to satisfy such Defaulting Lender’s potential future funding
obligations with respect to Term Loans under this Agreement; fourth, to the payment of any amounts owing to the Lenders as a result
of any judgment of a court of competent jurisdiction obtained by any Lender against such Defaulting Lender as a result of such Defaulting
Lender’s breach of its obligations under this Agreement; fifth, so long as no Default or Event of Default exists, to the
payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower
against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and sixth,
to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (1) such payment is
a payment of the principal amount of any Term Loans in respect of which such Defaulting Lender has not fully funded its appropriate share
and (2) such Term Loans were made at a time when the conditions set forth in Section 4.1 were satisfied or waived, such payment
shall be applied solely to pay the Term Loans of all Non-Defaulting Lenders on a pro rata basis prior to being applied to the
payment of any Term Loans of such Defaulting Lender until such time as all Term Loans are held by the Lenders pro rata in accordance
with the applicable ratable shares of such Term Loans. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender
that are applied (or held) to pay amounts owed by a Defaulting Lender shall be deemed paid to and redirected by such Defaulting Lender,
and each Lender irrevocably consents hereto.
(b) Defaulting Lender Cure. If the Borrower and the Administrative Agent agree in writing that a Lender is no longer a Defaulting
Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject
to any conditions set forth therein, such Lender will, to the extent applicable, purchase at par that portion of outstanding Term Loans
of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Term Loans to
be held pro rata by the Lenders in accordance with the Term Loan Commitments, whereupon such Lender will cease to be a Defaulting
Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf
of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly
agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim
of any party hereunder arising from that Lender’s having been a Defaulting Lender.
SECTION 3.15 Extension of Term Loan Maturity Date.
(a) The Borrower may, upon written notice to the Administrative Agent (an “Extension Request”),
which shall promptly notify the applicable Class of Lenders, request one or more extensions of the maturity date applicable to the Term
Loans of such Class (each, an “Existing Term Loan Tranche” and the extended loans of such Class, the “Extended
Term Loans”) then in effect (such existing maturity date applicable to such Class of Term Loans being the “Existing
Term Loan Maturity Date”) to a date specified in such Extension Request.
(b) Each Extension Request shall specify (i) the date on which the Borrower proposes that the extension shall be effective, which
shall be a date not less than ten (10) Business Days nor more than thirty (30) days after the date of such Extension Request (or such
longer or shorter periods as the Administrative Agent shall agree in its sole discretion), (ii) the Existing Term Loan Tranche to be
extended, (iii) the amount of the Existing Term Loan Tranche that is subject to such Extension Request and (iv) the proposed maturity
date of such Extended Term Loan. Within the time period specified in such Extension Request, each applicable Lender shall notify the
Administrative Agent whether it consents to such extension (which consent may be given or withheld in such Lender’s sole and absolute
discretion). Each Lender of the Existing Term Loan Tranche shall be offered the opportunity to participate in such extension on a pro
rata basis and on the same terms and conditions as each other Lender of the Existing Term Loan Tranche pursuant to procedures established
by, or reasonably acceptable to, the Administrative Agent and the Borrower. Any Lender not responding within the above time period shall
be deemed not to have consented to such extension. The Administrative Agent shall promptly notify the Borrower and the applicable Lenders
of such Lenders’ responses. If the aggregate principal amount of the Existing Term Loan Tranche in respect of which the applicable
Lenders that have accepted the Extension Request exceeds the amount set forth in such Extension Request, then such accepting Lenders’
Term Loans of the Existing Term Loan Tranche shall be extended ratably up to such maximum amount based on the respective principal amounts
with respect to which such Lenders have accepted such Extension Request.
(c) The maturity date applicable to any Class of Term Loans shall be extended only with respect to such Existing Term Loan Tranche
held by such Lenders that have consented thereto (it being understood and agreed that no other Lender consents shall be required hereunder
for such extensions). If so extended, the scheduled maturity date with respect to the Term Loans of the relevant Class so extended shall
be the date specified in the Extension Request, which shall become the new maturity date of the applicable Class of Term Loans established
pursuant to such extension (such maturity date for the Term Loans so affected, the “Extended Term Loan Maturity Date”).
The Administrative Agent shall promptly confirm to the applicable Lenders such extension, specifying the effective date of such extension
(the “Extension Effective Date”) and the Extended Term Loan Maturity Date (after giving effect to such extension)
applicable to the Extended Term Loans.
(d) The proposed terms of the Extended Term Loans to be established shall be identical to the Term Loans under the Existing Term Loan
Tranche from which such Extended Term Loans are to be amended, except that:
(i) the maturity date of the Extended Term Loans shall be later than the maturity date of the applicable Existing Term Loan Tranche;
(ii) the Weighted Average Life to Maturity of the Extended Term Loans shall be no shorter than the remaining Weighted Average Life
to Maturity of the Term Loans of such Existing Term Loan Tranche;
(iii) the Effective Yield with respect to the Extended Term Loans (whether in the form of interest rate margin, upfront fees, original
issue discount, interest rate floors or otherwise) may be different than the Effective Yield for the Term Loans of such Existing Term
Loan Tranche, in each case, to the extent provided in the applicable Extension Amendment;
(iv) the Extension Amendment may provide for other covenants and terms that apply solely to any period after the final maturity date
of the Term Loans that are in effect on the effective date of the Extension Amendment (immediately prior to the establishment of such
Extended Term Loans);
(v) Extended Term Loans may have call protection as may be agreed by the Borrower and the Lenders thereof; and
(vi) the Extended Term Loans may participate on a pro rata or less than pro rata (but not greater than pro rata)
basis in mandatory prepayments with the other Term Loans.
(e) Notwithstanding the terms of Section 11.2, the Borrower and the Administrative Agent shall be entitled (without the consent
of any other Lenders except to the extent required above under this Section 3.15) to enter into any amendments (an “Extension
Amendment”) to this Agreement that the Administrative Agent believes are necessary to appropriately reflect, or provide for
the integration of, any extension of the maturity date and other amendments applicable to any Class of Term Loans pursuant to this Section
3.15.
SECTION 3.16 Refinancing Term Loans.
(a) Notwithstanding anything to the contrary in this Agreement, the Borrower may by written notice to the Administrative Agent request
the establishment of one or more additional tranches or Classes of term loans under this Agreement (“Refinancing Term Loans”)
which refinance, renew, replace, defease or refund (collectively, “Refinance”) one or more Classes of Term Loans under
this Agreement; provided that:
(i) no Default or Event of Default
has occurred and is continuing or would result therefrom;
(ii) the principal amount of such Refinancing Term Loans may not exceed the aggregate principal amount of the Term Loans being Refinanced
plus accrued and unpaid interest and fees thereon, any prepayment premiums applicable thereto and reasonable fees, costs and expenses
incurred in connection therewith;
(iii) the Net Cash Proceeds of such Refinancing Term Loans shall be applied, concurrently or substantially concurrently with the incurrence
thereof, solely to the repayment of the outstanding amount of one or more Classes of Term Loans being Refinanced thereby;
(iv) each Class of Refinancing Term Loans shall be in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess
thereof (or such other amount necessary to repay any Class of outstanding Term Loans in full);
(v) the final maturity date of such Refinancing Term Loans shall not be earlier than the maturity date of the Term Loans being Refinanced,
and the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no earlier than the then remaining Weighted Average
Life to Maturity of each Class of Term Loans being Refinanced;
(vi) subject to clause (v) above, such Refinancing Term Loans shall have pricing (including interest rates, fees and premiums), amortization,
optional prepayment, mandatory prepayment and redemption terms as may be agreed to by the Borrower and the relevant Refinancing Term
Lenders, so long as, in the case of any mandatory prepayment or redemption provisions, such Refinancing Term Loans do not participate
on a greater basis in any such prepayments as compared to the Term Loans being Refinanced;
(vii) all other terms applicable to such Refinancing Term Loans shall be substantially identical to, or (taken as a whole) be otherwise
not more favorable to (as reasonably determined by the Borrower) the lenders providing such Refinancing Term Loans than those applicable
to the then outstanding Term Loans, except to the extent such covenants and other terms apply solely to any period after the latest final
maturity date of the Term Loans existing at the time of such refinancing or replacement;
(viii) such Refinancing Term Loans shall not be secured by (i) Liens on assets other than assets securing the Indebtedness being Refinanced
or (ii) Liens having a higher priority than the Liens, if any, securing the Indebtedness being Refinanced;
(ix) no Subsidiary is a borrower or a guarantor with respect to such Refinancing Term Loans unless such Subsidiary is a Credit Party
which shall have previously or substantially concurrently guaranteed the Secured Obligations; and
(x) no
existing Lender shall be required to provide any Refinancing Term Loans.
(b) Each such notice shall specify the date (each, a “Refinancing Effective Date”) on which the Borrower proposes
that the Refinancing Term Loans be made, which shall be a date reasonably acceptable to the Administrative Agent.
(c) The Borrower may approach any Lender or any other Person that would be an Eligible Assignee of Term Loans pursuant to Section
11.9 to provide all or a portion of the Refinancing Term Loans (each a “Refinancing Term Lender”); provided
that any Lender offered or approached to provide all or a portion of the Refinancing Term Loans may elect or decline, in its sole
discretion, to provide a Refinancing Term Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated
a series (a “Refinancing Term Loan Series”) of Refinancing Term Loans for all purposes of this Agreement; provided
that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment, be designated as an increase
in any previously established Refinancing Term Loan Series of Refinancing Term Loans made to the Borrower.
(d) The Administrative Agent and the Lenders hereby consent to the transactions contemplated by this Section 3.16 (including,
for the avoidance of doubt, the payment of interest, fees, amortization or premium in respect of the Refinancing Term Loans on the terms
specified by the Borrower) and hereby waive the requirements of this Agreement (including Section 3.6 and Section 11.2)
or any other Loan Document that may otherwise prohibit such Refinancing or any other transaction contemplated by this Section 3.16.
The Refinancing Term Loans shall be established pursuant to Refinancing Amendment and such Refinancing Amendment shall be binding on
the Lenders, the Administrative Agent, the Credit Parties party thereto and the other parties hereto without the consent of any other
Lender and the Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other
Loan Documents as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower, to effect the
provisions of this Section 3.16, including in order to establish new tranches or sub-tranches in respect of the Refinancing Term
Loans and such technical amendments as may be necessary or appropriate in connection therewith and to adjust the amortization set forth
in Section 2.3 (insofar as such schedule relates to payments due to Lenders the Term Loans of which are Refinanced; provided
that no such amendment shall reduce the pro rata share of any such payment that would have otherwise been payable to the Lenders
holding Term Loans which are not being Refinanced). The effectiveness of any Refinancing Amendment shall be subject to the satisfaction
on the date thereof of conditions substantially consistent with the conditions in Section 4.1 and, to the extent reasonably requested
by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’
certificates consistent with those delivered on the Closing Date (conformed as appropriate) reasonably satisfactory to the Administrative
Agent, (ii) reaffirmation agreements and/or such amendments to the Security Documents as may be reasonably requested by the Administrative
Agent in order to ensure that such Refinancing Term Loan is provided with the benefit of the applicable Loan Documents, and (iii) written
consent or acknowledgment from each Agency with respect to such Refinancing Term Loans (which such consents or acknowledgments shall
be in form and substance reasonably satisfactory to the Administrative Agent and the Refinancing Term Lenders).
ARTICLE IV
CONDITIONS OF CLOSING AND BORROWING
SECTION 4.1 Conditions to Closing and Initial Term
Loan. The obligation of the Lenders to close this Agreement and to make the Initial Term Loan is subject to the satisfaction of each
of the following conditions:
(a)
Executed Loan Documents. This Agreement, a Term Loan Note in favor of each Lender requesting a Term Loan Note and the Security
Documents, together with any other applicable Loan Documents, shall have been duly authorized, executed and delivered to the Administrative
Agent by the parties thereto and shall be in full force and effect.
(b) Closing Certificates; Etc. The Administrative Agent shall have received each of the following in form and substance reasonably
satisfactory to the Administrative Agent:
(i) Officer’s Certificate. A certificate from a Responsible Officer of the Borrower to the effect that (A) since December
31, 2020, no event has occurred or condition arisen, either individually or in the aggregate, that has had or could reasonably be expected
to have a Material Adverse Effect; and (B) each of the Credit Parties, as applicable, has satisfied each of the conditions set forth
in Sections 4.1(g)(iii) and (v).
(ii) Certificate of Secretary of each Credit Party. A certificate of a Responsible Officer of each Credit Party certifying
as to the incumbency and genuineness of the signature of each officer of such Credit Party executing Loan Documents to which it is a
party and certifying that attached thereto is a true, correct and complete copy of (A) the articles or certificate of incorporation or
formation (or equivalent), as applicable, of such Credit Party and all amendments thereto, certified as of a recent date by the appropriate
Governmental Authority in its jurisdiction of incorporation, organization or formation (or equivalent), as applicable, (B) the bylaws
or other governing document of such Credit Party as in effect on the Closing Date, (C) resolutions duly adopted by the board of directors
(or other governing body) of such Credit Party authorizing and approving the transactions contemplated hereunder and the execution, delivery
and performance of this Agreement and the other Loan Documents to which it is a party, and (D) each certificate required to be delivered
pursuant to Section 4.1(b)(iii).
(iii) Certificates of Good Standing. Certificates as of a recent date of the good standing of each Credit Party under the laws
of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable.
(iv) Opinions of Counsel. Opinions of counsel to the Credit Parties addressed to the Administrative Agent and the Lenders
with respect to the Credit Parties, the Loan Documents and such other matters as the Administrative Agent shall request (which such opinions
shall expressly permit reliance by permitted successors and assigns of the Administrative Agent and the Lenders).
(c) Personal
Property Collateral.
(i) Filings and Recordings. The Administrative Agent shall have received all filings and recordations that are necessary to
perfect the security interests of the Administrative Agent, on behalf of the Secured Parties, in the Collateral and the Administrative
Agent shall have received evidence reasonably satisfactory to the Administrative Agent that upon such filings and recordations such security
interests constitute valid and perfected first priority Liens thereon (subject to Permitted Liens).
(ii) Pledged Collateral. The Administrative Agent shall have received (A) original stock certificates or other certificates
evidencing the certificated Equity Interests pledged pursuant to the Security Documents, together with an undated stock power for each
such certificate duly executed in blank by the registered owner thereof and (B) each original promissory note pledged pursuant to the
Security Documents together with an undated allonge for each such promissory note duly executed in blank by the holder thereof.
(iii) Lien Search. The Administrative Agent shall have received the results of a Lien search (including a search as to judgments,
bankruptcy, tax and intellectual property matters), in form and substance reasonably satisfactory thereto, made against the Credit Parties
under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations
under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of such Credit Party, indicating
among other things that the assets of each such Credit Party are free and clear of any Lien (except for Permitted Liens).
(d) Agency Consents. The Credit Parties shall have received (A) written consent to the extent required under the Agency Agreements
or otherwise reasonably deemed necessary by the Administrative Agent, in form and substance satisfactory to the Administrative Agent,
of each of Fannie Mae and Freddie Mac (and to the extent applicable or required, each other Investor listed on Schedule 4.1 hereto),
to the granting of the security interests contemplated by this Agreement and the other Loan Documents (including as relating to cash
flows derived from mortgage loan servicing rights and related fees and other compensation) and the exercise by the Administrative Agent
of its rights and remedies as a secured party in connection therewith upon the occurrence of an Event of Default subject to the provisions
of Article 8 of the Collateral Agreement, with evidence satisfactory to the Administrative Agent that all conditions precedent to the
effectiveness of such written consent provided by each of Fannie Mae and Freddie Mac have been fully satisfied and (B) written consent,
in form and substance satisfactory to the Administrative Agent, from (1) each lender (or any agent authorized to act on behalf of the
lenders) under any Permitted Funding Indebtedness to the extent required by the documentation governing such Permitted Funding Indebtedness
and (2) any other Person whose consent is required as a condition to the consents otherwise required by this Section 4.1(d).
(e) Financial
Matters.
(i) Solvency Certificate. The Borrower shall have delivered to the Administrative Agent a certificate, in form and substance
satisfactory to the Administrative Agent and certified as accurate by the chief financial officer of the Borrower, that after giving
effect to the Transactions, the Credit Parties, on a consolidated basis, are Solvent.
(ii) Payment at Closing. The Borrower shall have paid or made arrangements to pay contemporaneously with closing (A) to the
Administrative Agent, the Arranger and the Lenders the fees set forth or referenced in Section 3.3 and any other accrued and unpaid
fees or commissions due hereunder, (B) all fees, charges and disbursements of counsel to JPMorgan (directly to such counsel if requested
by JPMorgan) to the extent accrued and unpaid prior to or on the Closing Date, plus such additional amounts of such fees, charges
and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it
through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between
the Borrower and the Arranger) and (C) to any other Person such amount as may be due thereto in connection with the transactions contemplated
hereby, including all taxes, fees and other charges in connection with the execution, delivery, recording, filing and registration of
any of the Loan Documents.
(f) Alliant Acquisition. The Alliant Acquisition shall have occurred or shall occur concurrently with the funding of the Initial
Term Loans on the Closing Date.
(g) Miscellaneous.
(i) Credit Agreement Refinancing. On or contemporaneously with the funding of the Initial Term Loans on the Closing Date, the
Existing Credit Agreement Refinancing shall have occurred and all commitments (if any) in respect thereof shall have been terminated
and all guarantees therefor and security therefor shall be released, and the Administrative Agent shall have received pay-off letters
in form and substance satisfactory to it evidencing such repayment, termination and release.
(ii) PATRIOT Act, Etc. The Borrower and each of the other Credit Parties shall have provided to:
(A) the Administrative Agent and the Lenders the documentation and other information requested by the Administrative Agent in order
to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act, and any applicable “know
your customer” rules and regulations; and
(B) to each Lender requesting the same with respect to each Credit Party or Subsidiary thereof that qualifies as a “legal entity
customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such Credit Party or such
Subsidiary,
in each case requested by the Administrative
Agent or a Lender at least three (3) Business Days prior to the Closing Date.
(iii) Representations and Warranties. The representations and warranties contained in this Agreement and the other Loan Documents
shall be true and correct in all material respects, except for any representation and warranty that is qualified by materiality or reference
to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects, on and as of such borrowing,
continuation, conversion, issuance or extension date with the same effect as if made on and as of such date (except for any such representation
and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct in
all material respects as of such earlier date, except for any representation and warranty that is qualified by materiality or reference
to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects as of such earlier date).
(iv) No Material Adverse Effect. Since December 31, 2020, no event shall have occurred or condition arisen, either individually
or in the aggregate, that could reasonably be expected to have a Material Adverse Effect.
(v) No Default. No Default or Event of Default shall exist, or would result after giving effect to the Term Loans to be made
on the Closing Date.
Without limiting the generality
of the provisions of the last paragraph of Section 10.3, for purposes of determining compliance with the conditions specified
in this Section 4.1, the Administrative Agent and each Lender that has signed this Agreement shall be deemed to have consented
to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed
Closing Date specifying its objection thereto.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
OF THE CREDIT PARTIES
To induce the
Administrative Agent and Lenders to enter into this Agreement and to induce the Lenders to make the Term Loans, the Credit Parties hereby
represent and warrant to the Administrative Agent and the Lenders both before and after giving effect to the transactions contemplated
hereunder that:
SECTION 5.1 Organization; Power; Qualification.
Each Credit Party (a) is duly organized, validly existing and, where applicable, in good standing under the laws of the jurisdiction
of its incorporation or formation, (b) has the power and authority to own its Properties and to carry on its business as now being and
hereafter proposed to be conducted and (c) is duly qualified and authorized to do business in each jurisdiction in which the character
of its Properties or the nature of its business requires such qualification and authorization except in jurisdictions where the failure
to be so qualified or in good standing could not reasonably be expected to result in a Material Adverse Effect. The jurisdictions in
which each Credit Party is organized and qualified to do business as of the Closing Date are described on Schedule 5.1. No Credit
Party nor any Subsidiary thereof is an EEA Financial Institution.
SECTION 5.2 Ownership; Voting Agreements. Each
Subsidiary of each Credit Party as of the Closing Date is listed on Schedule 5.2. As of the Closing Date, the capitalization of
each Credit Party and its Subsidiaries consists of the number of shares, authorized, issued and outstanding, of such classes and series,
with or without par value, described on Schedule 5.2. All outstanding shares have been duly authorized and validly issued and
are fully paid and nonassessable and not subject to any preemptive or similar rights, except as described in Schedule 5.2. As
of the Closing Date, there are no outstanding stock purchase warrants, subscriptions, options, securities, instruments or other rights
of any type or nature whatsoever, which are convertible into, exchangeable for or otherwise provide for or require the issuance of Equity
Interests of any Credit Party or any Subsidiary thereof, except as described on Schedule 5.2.
SECTION 5.3 Authorization; Enforceability. Each
Credit Party has the right, power and authority and has taken all necessary corporate and other action to authorize the execution, delivery
and performance of this Agreement and each of the other Loan Documents to which it is a party in accordance with their respective terms.
This Agreement and each of the other Loan Documents have been duly executed and delivered by the duly authorized officers of each Credit
Party that is a party thereto, and each such document constitutes the legal, valid and binding obligation of each Credit Party that is
a party thereto, enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar state or federal Debtor Relief Laws from time to time in effect which affect the enforcement of creditors’
rights in general and the availability of equitable remedies.
SECTION 5.4 Compliance of Agreement, Loan Documents
and Borrowing with Laws, Etc. The execution, delivery and performance by each Credit Party of the Loan Documents to which each such
Person is a party, in accordance with their respective terms, the Term Loans hereunder and the transactions contemplated hereby or thereby
do not and will not, by the passage of time, the giving of notice or otherwise, (a) require any Governmental Approval or violate any
Applicable Law relating to any Credit Party or any Subsidiary thereof where the failure to obtain such Governmental Approval or such
violation could reasonably be expected to have a Material Adverse Effect, (b) conflict with, result in a breach of or constitute a default
under the articles of incorporation, bylaws or other organizational documents of any Credit Party, (c) conflict with, result in a breach
of or constitute a default under any indenture, agreement or other instrument to which such Person is a party or by which any of its
properties may be bound or any Governmental Approval relating to such Person, which could, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect, (d) result in or require the creation or imposition of any Lien upon or with respect to
any property now owned or hereafter acquired by such Person other than Permitted Liens or (e) require any consent or authorization of,
filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required in connection
with the execution, delivery, performance, validity or enforceability of this Agreement or any other Loan Document other than (i) consents,
authorizations, filings or other acts or consents such as have been obtained or made and are in full force and effect (and copies of
which have been provided to the Administrative Agent prior to the date hereof), (ii) consents or filings under the UCC, and (iii) filings
with the United States Copyright Office and/or the United States Patent and Trademark Office. Without limiting the generality of the
foregoing, all consents and approvals required from any Agency (including, without limitation, FHA and HUD) under any of the Agency Agreements
and from any Investor under any of the Investor Agreements that are Material Contracts have been obtained by the Credit Parties and provided
to the Administrative Agent pursuant to Section 4.1(d) and are in full force and effect.
SECTION 5.5 Compliance with Law; Governmental Approvals.
Each Credit Party (a) has all Governmental Approvals required by any Applicable Law for it to conduct its business, each of which is
in full force and effect, is final and not subject to review on appeal and is not the subject of any pending or, to its knowledge, threatened
attack by direct or collateral proceeding, (b) is in compliance with each Governmental Approval applicable to it and in compliance with
all other Applicable Laws relating to it or any of its respective properties and (c) has timely filed all material reports, documents
and other materials required to be filed by it under all Applicable Laws with any Governmental Authority and has retained all material
records and documents required to be retained by it under Applicable Law except in each case of clause (a), (b) or (c) where the failure
to have, comply or file could not reasonably be expected to have a Material Adverse Effect.
SECTION 5.6 Tax Returns and Payments. Each Credit
Party has duly filed or caused to be filed all federal, state and other material tax returns required by Applicable Law to be filed,
and has paid, or made adequate provision for the payment of, all federal, state and other material taxes, assessments and governmental
charges or levies upon it and its property, income, profits and assets (including in the capacity of a withholding agent) which are due
and payable (other than any amount the validity of which is currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided for on the books of the relevant Credit Party). Such returns accurately
reflect in all material respects all liability for taxes of any Credit Party for the periods covered thereby. As of the Closing Date,
except as set forth on Schedule 5.6, there is no ongoing audit or examination or, to its knowledge, other investigation by any
Governmental Authority of the tax liability of any Credit Party. No Governmental Authority has asserted any Lien or other claim against
any Credit Party with respect to unpaid taxes which has not been discharged or resolved (other than (a) any amount the validity of which
is currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have
been provided for on the books of the relevant Credit Party and (b) Permitted Liens). The charges, accruals and reserves on the books
of each Credit Party in respect of federal, state and other material taxes for all Fiscal Years and portions thereof since the organization
of any Credit Party are in the judgment of the Borrower adequate, and the Borrower does not anticipate any additional taxes or assessments
for any of such years. No Credit Party or any Subsidiary (other than an Excluded Subsidiary) is party to a tax sharing agreement.
SECTION 5.7 Intellectual Property Matters. Each
Credit Party owns or possesses rights to use all franchises, licenses, copyrights, copyright applications, patents, patent rights or
licenses, patent applications, trademarks, trademark rights, service mark, service mark rights, trade names, trade name rights, copyrights
and other rights with respect to the foregoing which are reasonably necessary to conduct its business. No event has occurred which permits,
or after notice or lapse of time or both would permit, the revocation or termination of any such rights, and no Credit Party is liable
to any Person for infringement under Applicable Law with respect to any such rights as a result of its business operations.
SECTION 5.8 Environmental Matters.
(a) The properties owned, leased or operated by each Credit Party now or in the past do not contain, and to their knowledge have not
previously contained, any Hazardous Materials in amounts or concentrations which constitute or constituted a violation of applicable
Environmental Laws and which could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect;
(b) Each Credit Party and such properties and all operations conducted in connection therewith are in compliance, and have been in
compliance, with all applicable Environmental Laws, except such non-compliance as could not reasonably be expected, individually or in
the aggregate, to have a Material Adverse Effect, and, to the knowledge of each Credit Party, there is no contamination at, under or
about such properties or such operations which could materially interfere with the continued operation of such properties or materially
impair the fair saleable value thereof;
(c) No Credit Party has received any notice of violation, alleged violation, non-compliance, liability or potential liability regarding
environmental matters, Hazardous Materials, or compliance with Environmental Laws that, if adversely determined, could reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect, nor does any Credit Party have knowledge or reason to
believe that any such notice will be received or is being threatened;
(d) To its knowledge, Hazardous Materials have not been transported or disposed of to or from the properties owned, leased or operated
by any Credit Party in violation of, or in a manner or to a location which could give rise to liability under, Environmental Laws, nor
have any Hazardous Materials been generated, treated, stored or disposed of at, on or under any of such properties in violation of, or
in a manner that could give rise to liability under, any applicable Environmental Laws, and which could reasonably be expected, individually
or in the aggregate, to have a Material Adverse Effect;
(e) No judicial proceedings or governmental or administrative action is pending, or, to the knowledge of the Borrower, threatened,
under any Environmental Law to which any Credit Party is or will be named as a potentially responsible party, nor are there any consent
decrees or other decrees, consent orders, administrative orders or other orders, or other administrative or judicial requirements outstanding
under any applicable Environmental Law with respect to any Credit Party, with respect to any real property owned, leased or operated
by any Credit Party or operations conducted in connection therewith that could reasonably be expected, individually or in the aggregate,
to have a Material Adverse Effect; and
(f) There
has been no release, or to its knowledge, threat of release, of Hazardous Materials at or from properties owned, leased or operated by
any Credit Party, now or in the past, in violation of or in amounts or in a manner that could give rise to liability under applicable
Environmental Laws that could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
SECTION 5.9 Employee Benefit Matters.
(a) As
of the Closing Date, no Credit Party nor any ERISA Affiliate maintains or contributes to, or has any obligation under, any Employee
Benefit Plans other than those identified on Schedule 5.9;
(b) Each
Credit Party and each ERISA Affiliate is in compliance with all applicable provisions of ERISA, the Code and the regulations and
published interpretations thereunder with respect to all Employee Benefit Plans except for any required amendments for which the
remedial amendment period as defined in Section 401(b) of the Code has not yet expired and except where a failure to so comply could
not reasonably be expected to have a Material Adverse Effect. Each Employee Benefit Plan that is intended to be qualified under
Section 401(a) of the Code has been determined by the IRS to be so qualified, and each trust related to such plan has been
determined to be exempt under Section 501(a) of the Code except for such plans that have not yet received determination letters but
for which the remedial amendment period for submitting a determination letter has not yet expired. No liability has been incurred by
any Credit Party or any ERISA Affiliate which remains unsatisfied for any taxes or penalties assessed with respect to any Employee
Benefit Plan or any Multiemployer Plan except for a liability that could not reasonably be expected to have a Material Adverse
Effect;
(c) As
of the Closing Date, no Pension Plan has been terminated, nor has any Pension Plan become subject to funding based benefit
restrictions under Section 436 of the Code, nor has any funding waiver from the IRS been received or requested with respect to any
Pension Plan, nor has any Credit Party or any ERISA Affiliate failed to make any contributions or to pay any amounts due and owing
as required by Sections 412 or 430 of the Code, Section 302 of ERISA or the terms of any Pension Plan on or prior to the due dates
of such contributions under Sections 412 or 430 of the Code or Section 302 of ERISA, nor has there been any event requiring any
disclosure under Section 4041(c)(3)(C) or 4063(a) of ERISA with respect to any Pension Plan;
(d) Except
where the failure of any of the following representations to be correct could not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect, no Credit Party nor any ERISA Affiliate has: (i) engaged in a nonexempt prohibited
transaction described in Section 406 of the ERISA or Section 4975 of the Code, (ii) incurred any liability to the PBGC which remains
outstanding other than the payment of premiums and there are no premium payments which are due and unpaid, (iii) failed to make a
required contribution or payment to a Multiemployer Plan, or (iv) failed to make a required installment or other required payment
under Sections 412 or 430 of the Code;
(e) No Termination Event has occurred or is reasonably expected to occur;
(f) Except
where the failure of any of the following representations to be correct could not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect, no proceeding, claim (other than a benefits claim in the ordinary course of business),
lawsuit and/or investigation is existing or, to its knowledge, threatened concerning or involving (i) any employee welfare benefit
plan (as defined in Section 3(1) of ERISA) currently maintained or contributed to by any Credit Party or any ERISA Affiliate, (ii)
any Pension Plan or (iii) any Multiemployer Plan;
(g) No
Credit Party is a party to any contract, agreement or arrangement that could, solely as a result of the delivery of this Agreement
or the consummation of transactions contemplated hereby, result in the payment of any “excess parachute payment” within
the meaning of Section 280G of the Code; and
(h) As
of the Closing Date the Borrower is not nor will be using “plan assets” (within the meaning of 29 CFR § 2510.3-101,
as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Term Loans.
SECTION 5.10 Margin Stock. No Credit Party is engaged
principally or as one of its activities in the business of extending credit for the purpose of “purchasing” or
“carrying” any “margin stock” (as each such term is defined or used, directly or indirectly, in Regulation U
of the Board of Governors of the Federal Reserve System). No part of the proceeds of any of the Term Loans will be used for
purchasing or carrying margin stock or for any purpose which violates, or which would be inconsistent with, the provisions of
Regulation T, U or X of such Board of Governors. Following the application of the proceeds of each Term Loan, not more than
twenty-five percent (25%) of the value of the assets (either of the Borrower only or of the Credit Parties on a Consolidated basis)
subject to the provisions of Section 7.2 or Section 7.5 or subject to any restriction contained in any agreement or
instrument between the Borrower and any Lender or any Affiliate of any Lender relating to Indebtedness in excess of the Threshold
Amount will be “margin stock”.
SECTION
5.11 Government Regulation. No Credit Party is an “investment company” or a company “controlled”
by an “investment company” (as each such term is defined or used in the Investment Company Act of 1940) and no Credit
Party is, or after giving effect to any Term Loan will be, subject to regulation under the Interstate Commerce Act, or any other
Applicable Law which limits its ability to incur or consummate the transactions contemplated hereby.
SECTION
5.12 Material Contracts. Schedule 5.12 sets forth a complete and accurate list of all Material Contracts of each
Credit Party in effect as of the Closing Date. Other than as set forth in Schedule 5.12, as of the Closing Date, each such
Material Contract is, and after giving effect to the consummation of the transactions contemplated by the Loan Documents will be, in
full force and effect in accordance with the terms thereof. To the extent requested by the Administrative Agent, each Credit Party
has delivered to the Administrative Agent a true and complete copy of each Material Contract required to be listed on Schedule
5.12 or any other Schedule hereto. As of the Closing Date, no Credit Party (nor, to its knowledge, any other party thereto) is
in breach of or in default under any Material Contract in any material respect or has received any notice of the intention of any
other party thereto to terminate any Material Contract.
SECTION
5.13 Employee Relations. As of the Closing Date, no Credit Party is party to any collective bargaining agreement, nor has
any labor union been recognized as the representative of its employees except as set forth on Schedule 5.13. The Borrower
knows of no pending, threatened or contemplated strikes, work stoppage or other collective labor disputes involving its
employees.
SECTION
5.14 Burdensome Provisions. No Subsidiary of the Borrower (other than an Excluded Subsidiary) is party to any agreement
or instrument or otherwise subject to any restriction or encumbrance that restricts or limits its ability to make dividend payments
or other distributions in respect of its Equity Interests to the Borrower or any Subsidiary of the Borrower (other than an Excluded
Subsidiary) or to transfer any of its assets or properties to the Borrower or any other Subsidiary of the Borrower (other than an
Excluded Subsidiary) in each case other than existing under or by reason of the Loan Documents, Applicable Law or customary
restrictions in any documentation governing a Permitted Funding Indebtedness or Material Contract restricting any sale, assignment,
lease, conveyance, transfer or other disposition of all or any substantial part of a Credit Party’s business which would not
prevent the granting of the Liens on the Collateral as contemplated by the Loan Documents.
SECTION 5.15 [Reserved].
SECTION 5.16 No Material Adverse Change. Since December
31, 2020, no event has occurred or condition arisen, either individually or in the aggregate, that could reasonably be expected to
have a Material Adverse Effect.
SECTION 5.17 Solvency. The Credit Parties, on a
Consolidated basis, are Solvent. No transfer of property has been or will be made by any Credit Party and no obligation has been or
will be incurred by any Credit Party in connection with the transactions contemplated by this Agreement or the other Loan Documents
with the intent to hinder, delay or defraud either present or future creditors of any Credit Party.
SECTION 5.18 Title to Properties. As of the Closing
Date, the real property listed on Schedule
5.18 constitutes all of the real property that is owned, leased, subleased or used by any Credit Party. Each Credit Party
has such title to the real property owned or leased by it as is necessary or desirable to the conduct of its business and valid and
legal title to all of its personal property and assets, except those which have been disposed of by the Credit Parties subsequent to
such date which dispositions have been in the ordinary course of business or as otherwise expressly permitted hereunder.
SECTION 5.19 Litigation. There are no actions, suits or
proceedings pending nor, to their knowledge, threatened against or in any other way relating adversely to or affecting any Credit
Party or any of their respective properties in any court or before any arbitrator of any kind or before or by any Governmental
Authority that could reasonably be expected to have a Material Adverse Effect.
SECTION 5.20 Anti-Terrorism; Anti-Money
Laundering; Anti-Corruption and Sanctions. No Credit Party nor any of its Subsidiaries or, to their knowledge, any of their
Related Parties (a) is an “enemy” or an “ally of the enemy” within the meaning of Section 2 of the Trading
with the Enemy Act of the United States (50 U.S.C. App. §§ 1 et seq.), (b) is in violation of (i) the Trading with the
Enemy Act, (ii) any of the foreign assets control
regulations of the United States Treasury Department (31 C.F.R., Subtitle B, Chapter V) or any enabling legislation or executive
order relating thereto or (iii) the PATRIOT Act (collectively, the “Anti-Terrorism Laws”), (c) is a Sanctioned
Person or currently the subject or target of any Sanctions, (D) has its assets located in a Sanctioned Country, (E) directly, or
indirectly, derives revenues from investments in, or transactions with, Sanctioned Persons or (F) is under administrative, civil or
criminal investigation for an alleged violation of, or received notice from or made a voluntary disclosure to any governmental
entity regarding a possible violation of, Anti-Corruption Laws, Anti-Money Laundering Laws or Sanctions by a governmental authority
that enforces Sanctions or any Anti-Corruption Laws or Anti-Money Laundering Laws. No part of the proceeds of any Term Loans
hereunder will be unlawfully used directly or indirectly to fund any operations in, finance any investments or activities in or make
any payments to, a Sanctioned Person or a Sanctioned Country, or in any other manner that will result in any violation by any Person
(including any Lender, the Arranger or the Administrative Agent) of any Anti-Terrorism Laws, any Anti-Corruption Laws, any
Anti-Money Laundering Laws or any applicable Sanctions.
SECTION 5.21 Absence of Defaults. No event has occurred
or is continuing (a) which constitutes a Default or an Event of Default, or (b) which constitutes, or which with the passage of time
or giving of notice or both would constitute, a default or event of default by any Credit Party under (i) any Material Contract or
(ii) any judgment, decree or order to which any Credit Party is a party or by which any Credit Party or any of its properties may be
bound or which would require any Credit Party to make any payment thereunder prior to the scheduled maturity date therefor that, in
any case under this clause (ii), could, either individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
SECTION 5.22 Disclosure. Each Credit
Party has disclosed to the Administrative Agent and the Lenders all agreements, instruments and corporate or other restrictions to
which any Credit Party is subject, and all other matters known to them, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. No financial statement, material report, material certificate or other material
information furnished (whether in writing or orally) by or on behalf of any Credit Party to the Administrative Agent or any Lender
in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder (as modified or
supplemented by other information so furnished), taken together as a whole, contains any untrue statement of a material fact or
omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading; provided that, with respect to projected financial information, pro forma financial information,
estimated financial information and other projected or estimated information, such information was prepared in good faith based upon
assumptions believed to be reasonable at the time (it being recognized by the Lenders that projections are not to be viewed as facts
and that the actual results during the period or periods covered by such projections may vary from such projections). As of the
Closing Date, all of the information included in any Beneficial Ownership Certification is true and correct.
ARTICLE VI
AFFIRMATIVE COVENANTS
Until all of
the Obligations (other than contingent indemnification obligations not then due) have been paid and satisfied in full in cash and the
Term Loan Commitments terminated, each Credit Party will, and will cause each of its Subsidiaries (other than the Excluded Subsidiaries)
to:
SECTION 6.1 Financial Statements and Budgets. Deliver to
the Administrative Agent (which shall promptly make such information available to the Lenders in accordance with its customary
practice):
(a) Annual
Financial Statements. As soon as practicable and in any event within ninety (90) days after the end of each Fiscal Year
(commencing with the Fiscal Year ending December 31, 2021), an audited Consolidated and unaudited consolidating balance sheet of the
Borrower and its Subsidiaries as of the close of such Fiscal Year and audited Consolidated and unaudited consolidating statements of
income, retained earnings and cash flows including the notes thereto, together with management’s discussion and analysis of
such financial statements, all in reasonable detail setting forth in comparative form the corresponding figures as of the end of and
for the preceding Fiscal Year and prepared in accordance with GAAP and, if applicable, containing disclosure of the effect on the
financial position or results of operations of any change in the application of accounting principles and practices during the year.
Such annual Consolidated financial statements shall be audited by an independent certified public accounting firm of recognized
national standing acceptable to the Administrative Agent, and accompanied by a report and opinion thereon by such certified public
accountants prepared in accordance with generally accepted auditing standards that is not subject to any “going concern”
or similar qualification or exception or any qualification as to the scope of such audit or with respect to accounting principles
followed by the Borrower or any of its Subsidiaries not in accordance with GAAP (other than any exception, qualification or
explanatory paragraph with respect to or resulting from an upcoming maturity date under this Agreement occurring within one year
from the time such opinion is delivered).
(b) Quarterly
Financial Statements. As soon as practicable and in any event within sixty (60) days after the end of the first three fiscal
quarters of each Fiscal Year (commencing with the fiscal quarter ended September 30, 2021, an unaudited Consolidated and
consolidating balance sheet of the Borrower and its Subsidiaries as of the close of such fiscal quarter and unaudited Consolidated
and consolidating statements of income and cash flows for the fiscal quarter then ended and that portion of the Fiscal Year then
ended, including the notes thereto, together with management’s discussion and analysis of such financial statements, all in
reasonable detail setting forth in comparative form the corresponding figures as of the end of and for the corresponding period in
the preceding Fiscal Year and prepared by the Borrower in accordance with GAAP and, if applicable, containing disclosure of the
effect on the financial position or results of operations of any change in the application of accounting principles and practices
during the period, and certified by the chief financial officer of the Borrower to present fairly in all material respects the
financial condition of the Borrower and its Subsidiaries on a Consolidated and consolidating basis as of their respective dates and
the results of operations of the Borrower and its Subsidiaries for the respective periods then ended, subject to normal year-end
adjustments and the absence of footnotes.
(c) Annual
Business Plan and Budget. As soon as practicable and in any event within forty-five (45) days after the end of each Fiscal Year
(or, if earlier, 10 Business Days after board approval), a business plan and operating and capital budget of the Borrower and its
Subsidiaries for the ensuing four (4) fiscal quarters, such plan to be prepared in accordance with GAAP and to include, on a
quarterly basis, the following: a quarterly operating and capital budget, a projected income statement, statement of cash flows and
balance sheet, calculations demonstrating projected compliance with the Financial Covenant and a report containing
management’s discussion and analysis of such budget with a reasonable disclosure of the key assumptions and drivers with
respect to such budget, accompanied by a certificate from a Responsible Officer of the Borrower to the effect that such budget
contains good faith estimates (utilizing assumptions believed to be reasonable at the time of delivery of such budget) of the
financial condition and operations of the Borrower and the other Credit Parties for such period.
SECTION
6.2 Certificates; Other Reports. Deliver to the Administrative Agent (which shall promptly make such information
available to the Lenders in accordance with its customary practice):
(a) at
each time financial statements are delivered pursuant to Sections 6.1(a) or (b), commencing with the financial
statements for the year ended December 31, 2021, a duly completed Officer’s Compliance Certificate signed by the chief
executive officer, chief financial officer, treasurer or controller of the Borrower, which shall include (i) a list of all
Subsidiaries of the Borrower that identifies each Excluded Subsidiary, attaching the related consolidating financial statements
reflecting the adjustments necessary to eliminate the accounts of Excluded Subsidiaries from the related consolidated financial
statements, (ii) a certification as to whether a Default has occurred and is continuing on such date and, if a Default has occurred
and is continuing on such date, specifying the details thereof and any action taken or proposed to be taken with respect thereto and
(iii) beginning with the fiscal quarter ending December 31, 2021, the Borrower’s reasonably detailed calculations of Excess
Cash Flow and the Asset Coverage Ratio;
(b) promptly
after the assertion or occurrence thereof, notice of any action or proceeding against or of any noncompliance by any Credit Party
thereof with any Environmental Law that could reasonably be expected to have a Material Adverse Effect;
(c) promptly
after the same are available, copies of each annual report, proxy statement or financial statement sent to the stockholders of the
Borrower, and copies of all annual, regular, periodic and special reports and registration statements which the Borrower may file or
be required to file with the SEC under Section 13 or 15(d) of the Exchange Act, or with any national securities exchange, and in any
case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d) promptly
upon the request thereof, such other information and documentation required by bank regulatory authorities under applicable
“know your customer” and anti-money laundering rules and regulations (including, without limitation, the PATRIOT Act and
the Beneficial Ownership Regulation), as from time to time reasonably requested by the Administrative Agent or any Lender;
(e) written
notice within five (5) Business Days (i) after notice (A) of the revocation of any approvals of any Agency or (B) changes to the
approved mortgagee or approved servicer status with respect to the origination or servicing of Mortgage Loans by such Credit Party
or (ii) after any Credit Party otherwise ceases to possess any Agency approval, but only if such events could reasonably be expected
to result, individually or in the aggregate, in a Material Adverse Effect; and
(f) such
other information regarding the operations, business affairs and financial condition of any Credit Party or any Subsidiary thereof
as the Administrative Agent or any Lender may reasonably request (which information shall not include any originals or copies of any
audit, lender assessment report, or other internal review of any Credit Party by any Agency).
Documents required
to be delivered pursuant to Section 6.1(a) or (b) or Section 6.2(c) (to the extent any such documents are included
in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered
on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet
at the website address listed in Section 11.1; or (ii) on which such documents are posted on the Borrower’s behalf on an
Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party
website or whether sponsored by the Administrative Agent); provided that the Borrower shall notify the Administrative Agent (by
facsimile or electronic mail) of the posting of any such documents. The Administrative Agent shall have no obligation to request the delivery
or to maintain copies of any of the documents referred to above, and in any event shall have no responsibility to monitor compliance by
the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining
its copies of such documents. Notwithstanding the foregoing, the obligations in Sections 6.1(a) and (b) and 6.2(c)
shall be deemed satisfied upon Borrower’s filing or furnishing such financial statements and other information with the SEC via
the EDGAR filing system or any successor electronic delivery procedures, in each case, within the time periods specified in such paragraphs.
The Borrower
represents and warrants that each of it and its Controlling and Controlled entities, in each case, if any (collectively with the Borrower,
the “Relevant Entities”), either (i) has no SEC registered or unregistered, publicly traded securities outstanding,
or (ii) files its financial statements with the SEC and/or makes its financial statements available to potential holders of its securities,
and, accordingly, the Borrower hereby (i) authorizes the Administrative Agent to make the financial statements to be provided under Sections
6.1(a) and 6.1(b) above, along with the Loan Documents, available to Public-Siders and (ii) agrees that at the time such financial
statements are provided hereunder, they shall already have been made available to holders of any such securities. The Borrower will not
request that any other material be posted to Public-Siders without expressly representing and warranting to the Administrative Agent in
writing that such materials do not constitute material non-public information within the meaning of the federal securities laws or that
the Relevant Entities have no outstanding SEC registered or unregistered, publicly traded securities. Notwithstanding anything herein
to the contrary, in no event shall the Borrower request that the Administrative Agent make available to Public-Siders budgets or any certificates,
reports or calculations with respect to the Borrower’s compliance with the covenants contained herein.
SECTION 6.3 Notice of Litigation and Other Matters.
Promptly (but in no event later than ten (10) days after any Responsible Officer of any Credit Party obtains knowledge thereof)
notify the Administrative Agent in writing of (which shall promptly make such information available to the Lenders in accordance
with its customary practice):
(a) the occurrence of any Default or Event of Default;
(b) the
commencement of all proceedings and investigations by or before any Governmental Authority and all actions and proceedings in any
court or before any arbitrator against or involving any Credit Party or any of its properties, assets or businesses in each case
that could reasonably be expected to result in a Material Adverse Effect;
(c) any
notice of any violation received by any Credit Party from any Governmental Authority including, without limitation, any notice of
violation of Environmental Laws which in any such case could reasonably be expected to have a Material Adverse Effect;
(d) any
event which constitutes or which with the passage of time or giving of notice or both would constitute a default or event of default
under any Material Contract to which any of the Credit Parties is a party or by which any of the Credit Parties or any of their
respective properties may be bound which could reasonably be expected to have a Material Adverse Effect;
(e) (i)
any unfavorable determination letter from the IRS regarding the qualification of an Employee Benefit Plan under Section 401(a) of
the Code (along with a copy thereof), (ii) all notices received by any Credit Party or any ERISA Affiliate of the PBGC’s
intent to terminate any Pension Plan or to have a trustee appointed to administer any Pension Plan, (iii) all notices received by
any Credit Party or any ERISA Affiliate from a Multiemployer Plan sponsor concerning the imposition or amount of withdrawal
liability pursuant to Section 4202 of ERISA and (iv) the Borrower obtaining knowledge or reason to know that any Credit Party or any
ERISA Affiliate has filed or intends to file a notice of intent to terminate any Pension Plan under a distress termination within
the meaning of Section 4041(c) of ERISA; and
(f) any other development that results in, or would reasonably be expected to result in, a Material Adverse Effect.
Each notice
pursuant to Section 6.3 shall be accompanied by a statement of a Responsible Officer of the Borrower setting forth details of the
occurrence referred to therein and stating what action the Borrower has taken and proposes to take with respect thereto. Each notice pursuant
to Section 6.3(a) shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have
been breached.
SECTION 6.4 Preservation of Corporate Existence and Related
Matters. Except as permitted by Section 7.4, preserve and maintain its separate corporate existence or equivalent form
and qualify and remain qualified as a foreign corporation or other entity and authorized to do business in each jurisdiction in
which the failure to so qualify could reasonably be expected to have a Material Adverse Effect.
SECTION 6.5 Maintenance of Property and Licenses.
(a) In
addition to the requirements of any of the Security Documents, protect and preserve all Properties necessary in and material to its
business, including copyrights, patents, trade names, service marks and trademarks; maintain in good working order and condition,
ordinary wear and tear excepted, all buildings, equipment and other tangible real and personal property; and from time to time make
or cause to be made all repairs, renewals and replacements thereof and additions to such Property necessary for the conduct of its
business, so that the business carried on in connection therewith may be conducted in a commercially reasonable manner, in each case
except as such action or inaction could not reasonably be expected to result in a Material Adverse Effect.
(b) Maintain,
in full force and effect, each and every license, permit, certification, qualification, approval, right or franchise issued by any
Governmental Authority (each, a “License”) required for each of them to conduct their respective businesses as
presently conducted, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.
SECTION 6.6 Insurance. Maintain insurance with
financially sound and reputable insurance companies against at least such risks and in at least such amounts as are customarily
maintained by similar businesses and as may be required by Applicable Law and as are required by any Security Documents (including,
without limitation, hazard and business interruption insurance). All such insurance shall, (a) provide that no cancellation or
material modification thereof shall be effective until at least 30 days after receipt by the Administrative Agent of written notice
thereof, (b) name the Administrative Agent as an additional insured party thereunder and (c) in the case of each casualty insurance
policy, name the Administrative Agent as lender’s loss payee or, if applicable, mortgagee. On the Closing Date (subject to Section
6.19) and from time to time thereafter deliver to the Administrative Agent upon its request information in reasonable detail as
to the insurance then in effect, stating the names of the insurance companies, the amounts and rates of the insurance, the dates of
the expiration thereof and the properties and risks covered thereby.
SECTION 6.7 Accounting Methods and Financial
Records. Maintain a system of accounting, and keep proper books, records and accounts (which shall be true and complete in
all material respects) as may be required or as may be necessary to permit the preparation of financial statements in accordance
with GAAP and in material compliance with the regulations of any Governmental Authority having jurisdiction over it or any of its
Properties.
SECTION 6.8 Payment of Taxes and Other Obligations. Pay and
perform (a) all taxes, assessments and other governmental charges that may be levied or assessed upon it or any of its Property
(including in the capacity of a withholding agent) and (b) all other Indebtedness, obligations and liabilities in accordance with
customary trade practices; except, in each case, where (i) (A) the validity or amount thereof is being contested in good faith by
appropriate proceedings and (B) such Credit Party has set aside on its books adequate reserves with respect thereto in accordance
with GAAP or (ii) the failure to so pay or perform could not reasonably be expected to result in a Material Adverse Effect.
SECTION 6.9 Compliance with Laws and Approvals. Observe and
remain in compliance with all Applicable Laws and maintain in full force and effect all Governmental Approvals, in each case
applicable to the conduct of its business except in instances in which (a) (i) such requirement of Applicable Law or order, writ,
injunction or decree is being contested in good faith by appropriate proceedings diligently conducted and with respect to which
adequate reserves have been set aside and maintained by the Credit Parties in accordance with GAAP; and (ii) such contest
effectively suspends enforcement of the contested Applicable Laws, or (b) the failure to comply therewith could not reasonably be
expected to have a Material Adverse Effect.
SECTION 6.10 Environmental Laws. In addition to and without
limiting the generality of Section 6.9, (a)
comply in all material respects with, and ensure such compliance in all material respects by all tenants and subtenants with all
applicable Environmental Laws and obtain and comply with and maintain, and ensure that all tenants and subtenants, if any, obtain
and comply with and maintain, any and all licenses, approvals, notifications, registrations or permits required by applicable
Environmental Laws, (b) conduct and complete all investigations, studies, sampling and testing, and all remedial, removal and other
actions required under Environmental Laws, and promptly comply with all lawful orders and directives of any Governmental Authority
regarding Environmental Laws; provided, however, that neither a Credit Party nor any of its Subsidiaries shall be
required to undertake any cleanup, removal, remedial or other action to the extent that its obligation to do so is being contested
in good faith and by property proceedings and adequate reserves have been set aside and are being maintained with respect to such
circumstances in accordance with GAAP; and provided further that as to clauses (a) and (b) above, the failure to so comply
could not reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, and (c) defend,
indemnify and hold harmless the Administrative Agent and the Lenders, and their respective parents, Subsidiaries, Affiliates,
employees, agents, officers and directors, from and against any claims, demands, penalties, fines, liabilities, settlements,
damages, costs and expenses of whatever kind or nature known or unknown, contingent or otherwise, arising out of, or in any way
relating to the presence of Hazardous Materials, or the violation of, noncompliance with or liability under any Environmental Laws
applicable to the operations of the Borrower or any such Subsidiary, or any orders, requirements or demands of Governmental
Authorities related thereto, including, without limitation, reasonable attorney’s and consultant’s fees, investigation
and laboratory fees, response costs, court costs and litigation expenses, except to the extent that any of the foregoing directly
result from the gross negligence or willful misconduct of the party seeking indemnification therefor, as determined by a court of
competent jurisdiction by final non-appealable judgment.
SECTION 6.11 Compliance with ERISA. In addition to and
without limiting the generality of Section 6.9, (a) except where the failure to so comply could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect, (i) comply with applicable provisions of ERISA, the Code and
the regulations and published interpretations thereunder with respect to all Employee Benefit Plans, (ii) not take any action or
fail to take action the result of which could reasonably be expected to result in a liability to the PBGC or to a Multiemployer
Plan, (iii) not participate in any prohibited transaction that could result in any civil penalty under ERISA or tax under the Code
and (iv) operate each Employee Benefit Plan in such a manner that will not incur any tax liability under Section 4980B of the Code
or any liability to any qualified beneficiary as defined in Section 4980B of the Code and (b) furnish to the Administrative Agent
upon the Administrative Agent’s request such additional information about any Employee Benefit Plan as may be reasonably
requested by the Administrative Agent.
SECTION 6.12 Material Contracts.
Perform and observe all the terms and provisions of each Material Contract to be performed or observed by it, maintain each such
Material Contract which is material to its business in full force and effect, enforce each such Material Contract in accordance with
its terms, and cause each of its Subsidiaries to do so, except, in any case, where the failure to do so, either individually or in
the aggregate, could not reasonably be expected to have a Material Adverse Effect.
SECTION 6.13 Visits and Inspections; Appraisals.
(a) Permit
representatives of the Administrative Agent (on behalf of the Lenders), from time to time upon prior reasonable notice and at such
times during normal business hours, all at the expense of the Borrower, to visit and inspect its properties; inspect, audit and make
extracts from its books, records and files, including, but not limited to, management letters prepared by independent accountants;
and discuss with its principal officers, and its independent accountants, its business, assets, liabilities, financial condition,
results of operations and business prospects; provided that excluding any such visits and inspections during the continuation
of an Event of Default, the Administrative Agent (on behalf of the Lenders) shall not exercise such rights more often than one (1)
time during any calendar year at the Borrower’s expense; provided further that upon the occurrence and during the
continuance of an Event of Default, the Administrative Agent (on behalf of the Lenders) may do any of the foregoing at the expense
of the Borrower at any time at any time during normal business hours and upon reasonable advance notice.
(b) The
Borrower shall cause an appraiser retained by the Borrower and reasonably acceptable to the Administrative Agent (it being
acknowledged that Prestwick Mortgage Group and MIAC shall be deemed to be reasonably acceptable) to conduct two (2) appraisals of
the Servicing Contracts of the Credit Parties that are included in the Collateral each Fiscal Year, which such first appraisal shall
have an “as of” date no earlier than May 31 of the applicable Fiscal Year and which such second appraisal shall have an
“as of” date no earlier than November 30 of the applicable Fiscal Year, and, in each case, shall be delivered to the
Administrative Agent as soon as available but in no event later than the time that financial statements are required to be delivered
pursuant to Section 6.1(a) or (b), as applicable. The Borrower shall pay the fees and expenses of the Administrative
Agent or such professionals with respect to such appraisal. Without limiting the foregoing, the Credit Parties acknowledge that the
Administrative Agent may but shall have no obligation to except as otherwise instructed by the Required Lenders, in its discretion,
undertake additional appraisals at the Credit Parties’ expense during the continuance of an Event of Default.
SECTION 6.14 Additional Subsidiaries.
(a) Additional
Subsidiaries. Promptly notify the Administrative Agent of (i) the re-designation of an Excluded Subsidiary as a Subsidiary
Guarantor in accordance with Section 6.14(d) below or (ii) subject to clause (f) of this Section 6.14, the creation or
acquisition (including by division) of any Subsidiary and in any event, unless in the case of any newly acquired or created
Subsidiary, such Subsidiary has been designated as an Excluded Subsidiary in accordance with Section 6.14(d)(i) below, within
thirty (30) days after such re-designation, creation or acquisition (as such time period may be extended by the Administrative Agent
in its sole discretion), cause such Person to (A) become a Subsidiary Guarantor by delivering to the Administrative Agent a duly
executed supplement to the Collateral Agreement or such other document as the Administrative Agent shall deem appropriate for such
purpose, (B) grant a security interest in all Collateral (subject to the exceptions specified in the Collateral Agreement) owned by
such Subsidiary by delivering to the Administrative Agent a duly executed supplement to each applicable Security Document or such
other document as the Administrative Agent shall deem appropriate for such purpose and comply with the terms of each applicable
Security Document, (C) deliver to the Administrative Agent such opinions, documents and certificates referred to in Section
4.1 as may be reasonably requested by the Administrative Agent, (D) if such Equity Interests are certificated, deliver to the
Administrative Agent such original certificated Equity Interests or other certificates and stock or other transfer powers evidencing
the Equity Interests of such Person, (E) deliver to the Administrative Agent such updated Schedules to the Loan Documents as
requested by the Administrative Agent with respect to such Person (subject to the exceptions in the Collateral Agreement), and (F)
deliver to the Administrative Agent such other documents as may be reasonably requested by the Administrative Agent, all in form,
content and scope reasonably satisfactory to the Administrative Agent.
(b) Additional
First-Tier Foreign Subsidiaries. Notify the Administrative Agent promptly after any Person becomes a First Tier Foreign
Subsidiary, and promptly thereafter (and, in any event, within forty five (45) days after such notification, as such time period may
be extended by the Administrative Agent in its sole discretion), cause (i) the applicable Credit Party to deliver to the
Administrative Agent Security Documents pledging sixty-five percent (65%) of the total outstanding voting Equity Interests (and one
hundred percent (100%) of the non-voting Equity Interests) of any such new First Tier Foreign Subsidiary and a consent thereto
executed by such new First Tier Foreign Subsidiary (including, without limitation, if applicable, original certificated Equity
Interests (or the equivalent thereof pursuant to the Applicable Laws and practices of any relevant foreign jurisdiction) evidencing
the Equity Interests of such new First Tier Foreign Subsidiary, together with an appropriate undated stock or other transfer power
for each certificate duly executed in blank by the registered owner thereof), (ii) such Person to deliver to the Administrative
Agent such opinions, documents and certificates referred to in Section 4.1 as may be reasonably requested by the
Administrative Agent, (iii) such Person to deliver to the Administrative Agent such updated Schedules to the Loan Documents as
requested by the Administrative Agent with regard to such Person and (iv) such Person to deliver to the Administrative Agent such
other documents as may be reasonably requested by the Administrative Agent, all in form, content and scope reasonably satisfactory
to the Administrative Agent.
(c) [Reserved].
(d) Designation
and Re-designation of Excluded Subsidiaries.
(i) At
any time after the Closing Date, the Borrower may designate any Subsidiary (including any existing Subsidiary and any Subsidiary
acquired or formed after the Closing Date) to be an Excluded Subsidiary by providing written notice to the Administrative Agent
specifically identifying the Subsidiary or Subsidiaries subject to such designation; provided that (1) before and immediately
after such designation, no Default or Event of Default shall have occurred and be continuing; (2) before and immediately after
giving effect on a Pro Forma Basis to such designation, the Borrower shall be in compliance with the Financial Covenant; and (3) no
Subsidiary that itself or through any of its Subsidiaries owns, directly or indirectly, any Equity Interests or Indebtedness of, or
owns or holds any Lien on any property of, a Credit Party may at any time be an Excluded Subsidiary. The designation of any
Subsidiary as an Excluded Subsidiary shall constitute an Investment by a Credit Party therein at the date of designation in an
amount equal to the fair market value as determined by the Borrower in good faith of each applicable Credit Party’s Investment
therein.
(ii) At
any time after the Closing Date, the Borrower may designate or reclassify any Excluded Subsidiary to be a Subsidiary; provided that
(1) before and immediately after such designation, no Default or Event of Default shall have occurred and be continuing and (2)
before and immediately after giving pro forma effect to such designation, the Borrower shall be in compliance with the Financial
Covenant. Upon the redesignation or reclassification of any Excluded Subsidiary (x) all outstanding Indebtedness and Liens (if any)
of such re-designated or reclassified Subsidiary shall be deemed to have been incurred by such Subsidiary on such date of
re-designation or reclassification and (y) all outstanding Investments of such re-designated or reclassified Subsidiary shall be
deemed to be an Investment of a Credit Party as of such date of re-designation or reclassification.
(e) Merger
Subsidiaries. Notwithstanding the foregoing, to the extent any new Subsidiary is created solely for the purpose of consummating
a merger transaction pursuant to a Permitted Acquisition, and such new Subsidiary at no time holds any assets or liabilities other
than any merger consideration contributed to it contemporaneously with the closing of such merger transaction, such new Subsidiary
shall not be required to take the actions set forth in Section 6.14(a) or (b), as applicable, until the consummation
of such Permitted Acquisition (at which time, the surviving entity of the respective merger transaction shall be required to so
comply with Section 6.14(a) or (b), as applicable, within ten (10) Business Days of the consummation of such Permitted
Acquisition, as such time period may be extended by the Administrative Agent in its sole discretion).
(f) Immaterial
Subsidiaries. Notwithstanding the foregoing, solely in the case of any newly created or acquired Subsidiary that has de minimis
operations and assets, (i) the Credit Parties shall not be required to provide the notice required under clause (a) of this Section
6.14 until the earlier of (A) the capitalization of such Subsidiary or (B) the required date of delivery of the financial
statements for the first Fiscal Year or fiscal quarter (as applicable) ended after the date of creation or acquisition of such
Subsidiary and (ii) such Subsidiary shall, to the extent it satisfies all of the requirements of Section 6.14(d)(i) with
respect to Excluded Subsidiaries, be deemed to be an Excluded Subsidiary without further action by the Borrower or any other Credit
Party, in each case until such time as such Subsidiary is re-designated in accordance with Section 6.14(d)(ii).
SECTION 6.15 Use of Proceeds.
(a) The
Borrower shall use the proceeds of the Initial Term Loan to (i) finance a portion of the consideration for the Alliant Acquisition,
(ii) consummate the Existing Credit Agreement Refinancing and (iii) pay fees and expenses incurred in connection with the
Transactions.
(b) The
Borrower shall use the proceeds of the Incremental Term B Loans (i) to make an Investment in an Excluded Subsidiary pursuant to Section
7.3(l) of this Agreement in order to repay Indebtedness of such Excluded Subsidiary, (ii) to pay all fees and expenses incurred
in connection with Amendment No. 1 and the transactions contemplated thereby and (iii) for other general corporate purposes.
(c) The
Borrower shall use the proceeds of the Additional Initial Term Loans on the Amendment No. 2 Effective Date to repay all Incremental
Term B Loans of each Incremental Term B Lender that is not an Amendment No. 2 Converting Lender.
(d) (c)
The Borrower shall use the proceeds of any Incremental Term Loan as permitted pursuant to Section 3.13, as applicable.
SECTION 6.16 Maintenance of Debt Ratings. Use commercially
reasonable efforts to maintain Debt Ratings (but not any specific Debt Rating) from both Moody’s and S&P.
SECTION 6.17 Compliance with Anti-Corruption Laws; Beneficial
Ownership Regulation, Anti-Money Laundering Laws and
Sanctions. The Borrower will (a) maintain in effect and enforce policies and procedures designed to promote and achieve
compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with all
Anti-Corruption Laws, Anti-Money Laundering Laws and applicable Sanctions, (b) notify
the Administrative Agent and each Lender that previously received a Beneficial Ownership Certification of any change in the
information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners
identified therein, and (c) promptly upon the reasonable request of the Administrative Agent or any Lender, provide the
Administrative Agent or such Lender, as the case may be, any information or documentation requested by it for purposes of complying
with the Beneficial Ownership Regulation.
SECTION 6.18 Further Assurances.
(a) Execute
any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the
filing and recording of financing statements and other documents), which may be required under any Applicable Law, or which the
Administrative Agent or the Required Lenders may reasonably request, to effectuate the transactions contemplated by the Loan
Documents or to grant, preserve, protect or perfect the Liens created or intended to be created by the Security Documents or the
validity or priority of any such Lien, all at the expense of the Credit Parties. The Borrower also agrees to provide to the
Administrative Agent, from time to time upon the reasonable request by the Administrative Agent, evidence reasonably satisfactory to
the Administrative Agent as to the perfection and priority of the Liens created or intended to be created by the Security
Documents.
(b) Furnish
to the Administrative Agent at least thirty (30) days’ prior written notice of any change in: (i) any Credit Party’s
name; (ii) the location of any Credit Party’s chief executive office, its principal place of business or any office in which
it maintains books or records relating to Collateral owned by it (it being understood that on or around January 1, 2022, the
Borrower’s chief executive office shall move to 7272 Wisconsin Avenue, Suite 1300 Bethesda, MD 20814 and the Administrative
Agent acknowledges that no further notice of this change shall be required); (iii) any Credit Party’s organizational structure
or jurisdiction of incorporation or formation; or (iv) any Credit Party’s Federal Taxpayer Identification Number or
organizational identification number assigned to it by its state of organization. The Credit Parties agree that in connection with
any change referred to in the preceding sentence to cooperate with the Administrative Agent in preparing and making all filings
under the UCC or otherwise that are required in order for the Administrative Agent to continue at all times following such change to
have a valid, legal and perfected first priority security interest in all the Collateral for its own benefit and the benefit of the
Secured Parties.
(c) Cause the Secured Obligations to rank at least senior in priority of payment to all Subordinated Indebtedness and be designated
as “Senior Indebtedness” (or the equivalent term) under all instruments and documents, now or in the future, relating to
all Subordinated Indebtedness.
SECTION
6.19 Post-Closing Items. Unless waived or
the time periods are extended by the Administrative Agent in its sole discretion, execute and deliver the documents and complete the
tasks set forth on Schedule 6.19, in each case within the time limits specified on such Schedule 6.19.
ARTICLE VII
NEGATIVE COVENANTS
Until all of
the Obligations (other than contingent, indemnification obligations not then due) have been paid and satisfied in full in cash and the
Term Loan Commitments terminated, the Borrower and its Subsidiaries (other than, except with respect to Section 7.16, Excluded
Subsidiaries) will not:
SECTION
7.1 Indebtedness.
Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Obligations;
(b) Indebtedness
and obligations owing under Hedge Agreements entered into in order to manage existing or anticipated interest rate, exchange rate or
commodity price risks and not for speculative purposes;
(c) Indebtedness
existing on the Closing Date and listed on Schedule 7.1; and any refinancings, refundings, renewals or extensions thereof; provided
that (i) the principal amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension
except by an amount equal to unpaid accrued interest and a reasonable premium or other reasonable amount paid, and fees and expenses
reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder,
(ii) the final maturity date and weighted average life of such refinancing, refunding, renewal or extension shall not be prior to or
shorter than that applicable to the Indebtedness prior to such refinancing, refunding, renewal or extension and (iii) any
refinancing, refunding, renewal or extension of subordinated Indebtedness shall be (A) on subordination terms at least as favorable
to the Lenders, (B) no more restrictive on the Credit Parties than the subordinated Indebtedness being refinanced, refunded, renewed
or extended and (C) in an amount not less than the amount outstanding at the time of such refinancing, refunding, renewal or
extension;
(d) Indebtedness
incurred in connection with Capital Lease Obligations and purchase money Indebtedness in an aggregate amount not to exceed the
greater of (i) $50,000,000 and (ii) 20.0% of Consolidated Adjusted EBITDA as of the most recent Test Period ended on or immediately
prior to the date of incurrence thereof;
(e) Indebtedness
of a Person existing at the time such Person became a Subsidiary or assets were acquired from such Person in connection with an
Investment permitted pursuant to Section 7.3, to the extent that (i) such Indebtedness was not incurred in connection with,
or in contemplation of, such Person becoming a Subsidiary or the acquisition of such assets, (ii) neither the Borrower nor any
Subsidiary (other than such Person or any other Person that such Person merges with or that acquires the assets of such Person)
shall have any liability or other obligation with respect to such Indebtedness and (iii) the Consolidated Corporate Leverage Ratio
shall not exceed 4.00 to 1.00 calculated on a Pro Forma Basis for the Test Period ended on or immediately prior to the date of
incurrence thereof;
(f) Guarantees
with respect to Indebtedness of a Credit Party otherwise permitted by this Section 7.1 (other than (i) Non-Recourse
Indebtedness (except to the extent expressly permitted in clause (a) of the definition of “Non-Recourse Indebtedness”)
and (ii) Indebtedness permitted by subsections (j) and (k) of this Section 7.1); provided that any Guarantees of
Subordinated Indebtedness or other Indebtedness that is subordinated to the Obligations and/or the Secured Obligations, as the case
may be, shall also be subordinated to the Obligations and/or the Secured Obligations, as the case may be, on the same basis as the
Indebtedness being Guaranteed;
(g) unsecured intercompany Indebtedness:
(i) owed by any Credit Party to another Credit Party; and
(ii) owed by any Credit Party to any Excluded Subsidiary (provided that such Indebtedness shall be subordinated to the Secured
Obligations in a manner reasonably satisfactory to the Administrative Agent);
(h) Indebtedness
arising from the honoring by a bank or other financial institution of a check, draft or other similar instrument drawn against
insufficient funds in the ordinary course of business;
(i) Indebtedness under letters of credit, performance bonds, surety bonds, release, appeal and similar bonds, statutory obligations
or with respect to workers’ compensation claims, in each case incurred in the ordinary course of business, and reimbursement obligations
in respect of any of the foregoing;
(j) Permitted Funding Indebtedness and any Permitted Guarantee; provided that no Event of Default shall have occurred and be
continuing or would result from the incurrence thereof at the time any lending commitment or increase therein is obtained (determined
as if such commitment or increase was fully funded at such time);
(k) Guarantees in the form of WDLLC’s or, as may be applicable, WD Capital’s respective loss sharing agreements with Fannie
Mae or similar loss sharing agreements in favor of third party holders of Mortgage Loans originated or brokered by a Credit Party or
an Excluded Subsidiary under a program or arrangement comparable to the loss sharing arrangements with Fannie Mae;
(l) Subordinated Indebtedness; provided, that in the case of each incurrence of such Subordinated Indebtedness, (i) the Borrower
would be in compliance with the Financial Covenant on a Pro Forma Basis immediately after giving effect to the issuance of any such Subordinated
Indebtedness, (ii) no Event of Default shall have occurred and be continuing or would result from the incurrence of such Subordinated
Indebtedness, (iii) such Subordinated Indebtedness is not subject to any scheduled amortization, mandatory redemption, mandatory repayment
or mandatory prepayment, sinking fund or similar payment (other than, in each case, reasonable and customary offers to repurchase upon
a change of control or asset sale and acceleration rights after an event of default) or have a final maturity date, in either case prior
to the date occurring one year following the Term Loan Maturity Date and, if applicable, one year after the latest maturity date of any
then outstanding Incremental Term Loan, (iv) the indenture or other applicable agreement governing such Subordinated Indebtedness (including
any related guaranties and any other related documentation) shall not include any financial performance “maintenance” covenants
(whether stated as a covenant, default or otherwise, although “incurrence-based” financial tests may be included) or cross-defaults
(but may include cross-defaults at the final stated maturity thereof and cross-acceleration), (v) the terms of such Subordinated Indebtedness
(including, without limitation, all covenants, defaults, guaranties and remedies, but excluding as to interest rate, call protection
and redemption premiums), taken as a whole, are no more restrictive or onerous than the terms applicable to the Credit Parties under
this Agreement and the other Loan Documents, (vi) such Subordinated Indebtedness shall not be recourse or guaranteed by any Person that
is not a Credit Party and (vii) prior to the incurrence of such Subordinated Indebtedness the Borrower shall have delivered to the Administrative
Agent a certificate from a Responsible Officer of the Borrower certifying as to compliance with the requirements of the preceding clauses
(i) through (vi) above and containing calculations, in form and substance satisfactory to the Administrative Agent with respect to clause
(i) above;
(m) unsecured contingent liabilities in respect of customary arrangements providing for indemnification, adjustment of purchase price,
earn-outs, non-compete, consulting, deferred compensation and similar obligations of any Credit Party incurred in connection with Permitted
Acquisitions and other Investments permitted hereby;
(n) unsecured Indebtedness of any Credit Party; provided that (i) no Event of Default shall have occurred and be continuing
or would result from the incurrence thereof at the time any lending commitment or increase therein is obtained (determined as if such
commitment or increase was fully funded at such time), (ii) the Borrower shall be in compliance with the Financial Covenant on a Pro
Forma Basis at the time any lending commitment or increase therein is obtained (determined as if such commitment or increase was fully
funded at such time), (iii) the Consolidated Corporate Leverage Ratio shall not exceed 4.00 to 1.00 calculated on a Pro Forma Basis after
giving effect to any such lending commitment (determined as if such commitment was fully funded at such time) and determined as of the
most recent Test Period ended prior to the date such lending commitment is obtained, (iv) such Indebtedness does not mature, require
any scheduled payment of principal, require any mandatory payment, redemption or repurchase prior to the date that is 91 days after the
latest of the maturity dates of all Term Loans or Term Loan Commitments in effect at the time of issuance of such Indebtedness (other
than a customary mandatory prepayment or mandatory offer to repurchase in connection with a change of control or asset sale that requires
the prior payment in full of, and termination of all commitments with respect to, the Obligations as a condition to such mandatory prepayment
or mandatory offer to repurchase); provided that (x) any Indebtedness that automatically converts to, or is exchangeable into,
notes or other Indebtedness that meet this clause (iv) shall be deemed to satisfy this condition so long as the Borrower or applicable
Credit Party irrevocably agrees at the time of the issuance thereof to take all actions necessary to convert or exchange such Indebtedness),
(v) such Indebtedness shall not include any financial performance “maintenance” covenants (whether stated as a covenant,
default or otherwise, although “incurrence-based” financial tests may be included) or cross-defaults (but may include cross-payment
defaults and cross-defaults at the final stated maturity thereof and cross-acceleration), (vi) the terms of such Indebtedness (including,
without limitation, all covenants, defaults, guaranties and remedies, but excluding as to interest rate, call protection and redemption
premiums), taken as a whole, are no more restrictive or onerous than the terms applicable to the Credit Parties under this Agreement
and the other Loan Documents, (vii) such Indebtedness shall not be recourse or guaranteed by any Person that is not a Credit Party, and
(viii) prior to the incurrence of such Indebtedness the Borrower shall have delivered to the Administrative Agent a certificate from
a Responsible Officer of the Borrower certifying as to compliance with the requirements of the preceding clauses (i) through (vii) above
and containing calculations, in form and substance satisfactory to the Administrative Agent with respect to clauses (ii) and (iii) above;
(o) unsecured Indebtedness owing to any insurance company in the ordinary course of business in connection with the financing of any
insurance premiums permitted by such insurance company;
(p) Securitization Transaction Attributed Indebtedness;
(q) Indebtedness of any Credit Party not otherwise permitted pursuant to this Section 7.1
in an aggregate principal amount not to exceed the greater of (i) $100,000,000 and (ii) 40.0% of Consolidated Adjusted EBITDA
as of the most recent Test Period ended on or immediately prior to the date of incurrence thereof; provided that no Event of Default
shall have occurred and be continuing or would result from the incurrence thereof; and
(r) Incremental Equivalent Debt.
SECTION 7.2 Liens. Create, incur, assume or suffer to exist,
any Lien on or with respect to any of its Property, whether now owned or hereafter acquired, except:
(a) Liens created pursuant to the Loan Documents;
(b) Liens in existence on the Closing Date and described on Schedule 7.2, and the replacement, renewal or extension thereof
(including Liens incurred, assumed or suffered to exist in connection with any refinancing, refunding, renewal or extension of Indebtedness
pursuant to Section 7.1(c) (solely to the extent that such Liens were in existence on the Closing Date and described on Schedule
7.2)); provided that the scope of any such Lien shall not be increased, or otherwise expanded, to cover any additional property
or type of asset, as applicable, beyond that in existence on the Closing Date, except for products and proceeds of the foregoing;
(c) Liens for taxes, assessments and other governmental charges or levies (excluding any Lien imposed pursuant to any of the provisions
of ERISA or Environmental Laws) (i) not yet due or as to which the period of grace (not to exceed ninety (90) days), if any, related
thereto has not expired or (ii) which are being contested in good faith and by appropriate proceedings if adequate reserves are maintained
to the extent required by GAAP and the failure to make payment pending such contest could not reasonably be expected to result in a Material
Adverse Effect;
(d) the claims of materialmen, mechanics, carriers, warehousemen, processors or landlords for labor, materials, supplies or rentals
incurred in the ordinary course of business, which (i) are not overdue for a period of more than thirty (30) days, or if more than thirty
(30) days overdue, no action has been taken to enforce such Liens and such Liens are being contested in good faith and by appropriate
proceedings if adequate reserves are maintained to the extent required by GAAP and (ii) do not, individually or in the aggregate, materially
impair the operation of the business of the Borrower or any of the other Credit Parties;
(e) deposits
or pledges made in the ordinary course of business in connection with, or to secure payment of, letters of credit, obligations under
workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the
performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety bonds (other than bonds
related to judgments or litigation), performance bonds and other obligations of a like nature incurred in the ordinary course of
business, in each case, so long as no foreclosure sale or similar proceeding has been commenced with respect to any portion of the
Collateral on account thereof;
(f) encumbrances in the nature of zoning restrictions, easements and rights or restrictions of record on the use of real property,
which in the aggregate are not substantial in amount and which do not, in any case, detract from the value of such property or impair
the use thereof in the ordinary conduct of business;
(g) Liens arising from the filing of precautionary UCC financing statements relating solely to personal property leased pursuant to
operating leases entered into in the ordinary course of business of the Credit Parties;
(h) Liens securing Indebtedness permitted under Section 7.1(d); provided that (i) such Liens shall be created substantially
simultaneously with the acquisition, repair, improvement or lease, as applicable, of the related Property, (ii) such Liens do not at
any time encumber any property other than the Property financed by such Indebtedness, and (iii) the principal amount of Indebtedness
secured by any such Lien shall at no time exceed one hundred percent (100%) of the original price for the purchase, repair improvement
or lease amount (as applicable) of such Property at the time of purchase, repair, improvement or lease (as applicable);
(i) Liens securing judgments for the payment of money not constituting an Event of Default under Section 9.1(m) or securing
appeal or other surety bonds relating to such judgments;
(j) (i) Liens on Property (i) of any Subsidiary which are in existence at the time that such Subsidiary is acquired pursuant to a
Permitted Acquisition and (ii) of the Borrower or any of its Subsidiaries existing at the time such tangible property or tangible assets
are purchased or otherwise acquired by the Borrower or such Subsidiary thereof pursuant to a transaction permitted pursuant to this Agreement;
provided that, with respect to each of the foregoing clauses (i) and (ii), (A) such Liens are not incurred in connection with,
or in anticipation of, such Permitted Acquisition, purchase or other acquisition, (B) such Liens are applicable only to specific Property,
(C) such Liens are not “blanket” or all asset Liens, (D) such Liens do not attach to any other Property of the Borrower or
any of its Subsidiaries and (E) the Indebtedness secured by such Liens is permitted under Section 7.1(e) of this Agreement);
(k) (i)
Liens of a collecting bank arising in the ordinary course of business under Section 4-210 of the Uniform Commercial Code in effect
in the relevant jurisdiction and (ii) Liens of any depositary bank in connection with statutory, common law and contractual rights
of set-off and recoupment with respect to any deposit account of a Credit Party;
(l) (i) contractual or statutory Liens of landlords to the extent relating to the property and assets relating to any lease agreements
with such landlord, and (ii) contractual Liens of suppliers (including sellers of goods) or customers granted in the ordinary course
of business to the extent limited to the property or assets relating to such contract;
(m) any interest or title of a licensor, sublicensor, lessor or sublessor with respect to any assets under any license or lease agreement
entered into in the ordinary course of business which do not (i) interfere in any material respect with the business of the Borrower
or the other Credit Parties or materially detract from the value of the relevant assets of the Borrower or the other Credit Parties or
(ii) secure any Indebtedness;
(n) Liens on Permitted Funding Collateral securing Permitted Funding Indebtedness permitted pursuant to Section 7.1(j);
(o) without limiting the Agency Security Interests, Liens in favor of an Agency (or a custodian on behalf of such Agency) under the
Agency Agreements;
(p) Liens on the Equity Interests issued by an Excluded Subsidiary to secure any Permitted Guarantee with respect to Indebtedness
of such Excluded Subsidiary;
(q) Liens on the Securitization Assets purported to be sold to a Securitization Entity in a Qualified Securitization Transaction or
securing Securitization Transaction Attributed Indebtedness;
(r) Liens
not otherwise permitted hereunder securing Indebtedness or other obligations in an aggregate principal amount not to exceed the
greater of (x) $100,000,000 and (y) 40.0% of Consolidated Adjusted EBITDA as of the most recent Test Period ended on or immediately
prior to the date of incurrence thereof at any time outstanding; and
(s) Liens securing
Incremental Equivalent Debt.
SECTION 7.3 Investments. Purchase, own, invest in or otherwise
acquire (in one transaction or a series of transactions), directly or indirectly, any Equity Interests, interests in any partnership
or joint venture (including, without limitation, the creation or capitalization of any Subsidiary), evidence of Indebtedness or other
obligation or security, substantially all or a portion (consisting of a division, business line or unit) of the business or assets of
any other Person or any other investment or interest whatsoever in any other Person, or make or permit to exist, directly or indirectly,
any loans, advances or extensions of credit to, or any investment in cash or by delivery of Property in, any Person (all the foregoing,
“Investments”) except:
(a) (i)
Investments existing on the Closing Date in Subsidiaries existing on the Closing Date;
(ii) Investments existing on the Closing Date (other than Investments in Subsidiaries existing on the Closing Date) and described on
Schedule 7.3;
(iii) Investments made after the Closing Date by any Credit Party in any other Credit Party; and
(iv) Investments
made by any Credit Party in and to one or more of a Credit Party’s Subsidiaries which are not Credit Parties in an aggregate
principal amount at any time outstanding not to exceed, together with the aggregate consideration paid for Permitted Acquisitions of
Persons who do not become Credit Parties, the greater of (x) $125,000,000 and (y) 50.0%
of Consolidated Adjusted EBITDA as of the most recent Test Period ended on or immediately prior to the date of such Investment; provided
that (A) no Event of Default has occurred and is continuing or would result therefrom and (B) the Borrower would be in compliance
with the Financial Covenant on a Pro Forma Basis after giving effect to such Investment.
(b) Investments in the ordinary course of business in cash, Cash Equivalents and self-funded Mortgage Loans that are not subject to
any Liens (other than Liens under the Loan Documents) or any restriction on the creation, incurrence, assumption or existence of Liens
thereon;
(c) Investments by the Borrower or any other Credit Party consisting of Capital Expenditures not otherwise prohibited by this Agreement;
(d) deposits made in the ordinary course of business to secure the performance of leases or other obligations as permitted by Section
7.2;
(e) Hedge Agreements permitted pursuant to Section 7.1;
(f) purchases of assets in the ordinary course of business;
(g) Investments
by the Borrower or any Credit Party in the form of Permitted Acquisitions;
(h) Investments in the form of loans and advances to officers, directors and employees (1) in the ordinary course of business in an
aggregate amount not to exceed at any time outstanding $7,500,000 (determined without regard to any write-downs or write-offs of such
loans or advances), and (2) in connection with the recruitment and engagement of such officers, directors and employees that are forgivable
subject to continued employment;
(i)
Investments in the form of Restricted Payments permitted pursuant to Section
7.6;
(j) Guarantees permitted pursuant to Section 7.1;
(k) Investments in an aggregate amount at any time outstanding not to exceed the Available Amount; provided that immediately
prior to and immediately after giving effect on a Pro Forma Basis to such Investment and any Indebtedness incurred in connection therewith,
(A) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Covenant and (B) no Event of Default shall have occurred
and be continuing;
(l) additional Investments so long as immediately prior to and after giving effect on a Pro Forma Basis to such Investment and any
Indebtedness incurred in connection therewith, (i) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Covenant,
(ii) no Event of Default shall have occurred and be continuing, and (iii) the Consolidated Secured Leverage Ratio will not exceed 3.00
to 1.00 calculated on a Pro Forma Basis and determined as of the most recent Test Period ended on or prior to the date of such Investment;
(m) so long as (i) no Event of Default has occurred and is continuing or would result therefrom and (ii) the Borrower would be in
compliance with the Financial Covenant on a Pro Forma Basis after giving effect to such Investment, any Investments in or by a Securitization
Entity in connection with a Qualified Securitization Transaction; and
(n) Investments not otherwise permitted pursuant to this Section 7.3 in an aggregate amount at any time outstanding not to
exceed the greater of (i) $50,000,000 and (ii) 20.0% of Consolidated Adjusted EBITDA as of the most recent Test Period ended on or immediately
prior to the date of such Investment.
For purposes
of determining the amount of any Investment outstanding for purposes of this Section 7.3, such amount shall be deemed to be the
amount of such Investment when made, purchased or acquired (without adjustment for subsequent increases or decreases in the value of such
Investment) less any amount realized in respect of such Investment upon the sale, collection or return of capital (not to exceed
the original amount invested).
SECTION 7.4 Fundamental
Changes. Merge, consolidate or enter into any similar combination with, or enter into any Asset Disposition of all or substantially
all of its assets (whether in a single transaction or a series of transactions) with, any other Person or liquidate, wind-up or dissolve
itself (or suffer any liquidation or dissolution) except:
(a) (i)
any Wholly-Owned Subsidiary of the Borrower may be merged, amalgamated or consolidated with or into the Borrower (provided that
the Borrower shall be the continuing or surviving entity) or (ii) any Subsidiary of the Borrower may be merged, amalgamated or
consolidated with or into any Subsidiary Guarantor (provided that the Subsidiary Guarantor shall be the continuing or
surviving entity or simultaneously with such transaction, the continuing or surviving entity shall become a Subsidiary Guarantor and
the Borrower shall comply with Section 6.14 in connection therewith);
(b) any Subsidiary may dispose of all or substantially all of its assets (upon voluntary liquidation, dissolution, winding up or otherwise)
to the Borrower or any Subsidiary Guarantor; provided that, with respect to any such disposition by any Subsidiary that is not
a Credit Party at the time of such disposition, the consideration for such disposition shall not exceed the fair value of such assets;
(c) any Subsidiary of the Borrower may merge with or into the Person such Subsidiary was formed to acquire in connection with any
acquisition permitted hereunder (including, without limitation, any Permitted Acquisition permitted pursuant to Section 7.3(g));
provided that the continuing or surviving entity shall comply with Section 6.14 in connection therewith;
(d) any Person may merge into the Borrower or any of its Wholly-Owned Subsidiaries in connection with a Permitted Acquisition permitted
pursuant to Section 7.3(g); provided that (i) in the case of a merger involving the Borrower or a Subsidiary Guarantor,
the continuing or surviving Person shall be (A) the Borrower (if a merger with the Borrower) or (B) such Subsidiary Guarantor or simultaneously
with such transaction, the continuing or surviving entity shall become a Subsidiary Guarantor (if a merger with a Subsidiary Guarantor
and not involving the Borrower) and (ii) the continuing or surviving Person shall be the Borrower or a Wholly-Owned Subsidiary of the
Borrower; and
(e) Asset Dispositions permitted by Section 7.5 (other than clause (e) thereof).
SECTION 7.5 Asset Dispositions. Make any Asset Disposition
except:
(a) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Credit Parties;
(b) non-exclusive
licenses and sublicenses of intellectual property rights in the ordinary course of business not interfering, individually or in the
aggregate, in any material respect with the conduct of the business of the Credit Parties;
(c) leases, subleases, licenses or sublicenses of real or personal property granted by the Credit Parties to others in the ordinary
course of business not detracting from the value of such real or personal property or interfering in any material respect with the business
of the Credit Parties;
(d) Asset Dispositions in connection with Insurance and Condemnation Events; provided
that the requirements of Section 2.4(b) are complied with in connection therewith;
(e) Assets Dispositions in connection with transactions permitted by Section 7.4;
(f) Asset Dispositions of Mortgage Loans in the ordinary course of business and substantially consistent with past practice;
(g) Asset Dispositions in the form of a foreclosure by any Credit Party of the Lien securing any Mortgage Loan or the granting of
a deed in lieu of such foreclosure (including any subsequent sale of the underlying property) in the ordinary course of business;
(h) Asset Dispositions in the form of the sale of all or any portion of the servicing rights arising under Servicing Contracts for
Mortgage Loans being originated after the Closing Date in a manner consistent with any Credit Party’s ordinary operating practices
so long as (i) after giving effect to such Asset Disposition and any optional prepayment of the Term Loans pursuant to Section 2.4
the Asset Coverage Ratio shall not be less than 1.50 to 1.00 on a Pro Forma Basis, (ii) before and immediately after giving effect
to any such sale no Event of Default shall have occurred and be continuing, (iii)(A) prior to any such sale, the applicable Agency or
Investor, as the case may be, shall have delivered to the applicable Credit Party a written consent thereto (it being understood and
agreed that such consent may be granted or withheld by such Agency or Investor, as applicable, in its sole discretion) and (B) such sale
shall be effected in strict compliance with the applicable Agency Agreements or Investor Agreements, including, without limitation, the
applicable Guides (as such term is defined in the Collateral Agreement) and (iv) such sale shall be entirely in cash and for fair market
value (as determined by the Borrower in good faith);
(i) [Reserved];
(j) Asset Dispositions not otherwise permitted pursuant to this Section 7.5; provided that (i) at the time of such Asset
Disposition, no Event of Default shall exist or would result from such Asset Disposition, (ii) such Asset Disposition is made for fair
market value and the consideration received shall be no less than seventy five percent (75%) in cash, (iii) after giving effect to such
Asset Disposition and the required prepayment of the Term Loans pursuant to this clause (j), the Credit Parties shall be in compliance
with the Financial Covenant on a Pro Forma Basis and (iv) the Net Cash Proceeds (if any) of such Asset Disposition shall be applied to
prepay the Term Loans (or be reinvested) in accordance with Section 2.4(b); and
(k) so long as (i) no Event of Default has occurred and is continuing or would result therefrom and (ii) the Borrower would be in
compliance with the Financial Covenant on a Pro Forma Basis after giving effect to such Asset Disposition, Asset Dispositions to a Securitization
Entity of assets in Qualified Securitization Transactions so long as the Credit Parties after remain in compliance with the Asset Coverage
Ratio set forth in Section 7.14 on a Pro Forma Basis.
SECTION 7.6 Restricted Payments. Declare or pay any dividend
on, or make any payment or other distribution on account of, or purchase, redeem, retire or otherwise acquire (directly or indirectly),
or set apart assets for a sinking or other analogous fund for the purchase, redemption, retirement or other acquisition of, any class
of Equity Interests of any Credit Party or any Subsidiary thereof (other than an Excluded Subsidiary), or make any distribution of cash,
property or assets to the holders of shares of any Equity Interests of any Credit Party or any Subsidiary thereof (other than an Excluded
Subsidiary) (all of the foregoing, the “Restricted Payments”); provided that:
(a) so long as no Event of Default has occurred and is continuing or would result therefrom, the Credit Parties may pay dividends
in shares of their own Qualified Equity Interests;
(b) any Subsidiary of the Borrower may pay cash dividends to the Borrower or any Subsidiary Guarantor (and, if applicable, to other
holders of its outstanding Qualified Equity Interests on a pro rata basis);
(c) the Borrower may repurchase or redeem its Equity Interests (x) in connection with the “cashless” exercise of stock
options or restricted stock awards solely to the extent that such Equity Interests represent all or a portion of the exercise price thereof,
(y) that are deemed to occur upon the withholding of a portion of such Equity Interests issued to directors, officers or employees of
the Borrower or any Subsidiary under any stock option plan or other benefit plan or agreement for directors, officers and employees of
the Borrower and its Subsidiaries to cover withholding tax obligations of such Persons in respect of such issuance, or (z) in accordance
with the Borrower’s rights or obligations under customary equity incentive plans or agreements for directors, officers and employees
of the Borrower and its Subsidiaries in an aggregate amount with respect to this clause (z) not exceeding $20,000,000 per Fiscal Year;
(d) the Borrower may make additional Restricted Payments in an amount not to exceed the Available Amount; provided that immediately
prior to and immediately after giving effect on a Pro Forma Basis to such Restricted Payment and any Indebtedness incurred in connection
therewith, (A) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Covenant, and (B) no Event of Default has
occurred and is continuing;
(e) the Borrower may make additional Restricted Payments; provided that immediately prior to and immediately after giving effect
on a Pro Forma Basis to such Restricted Payment and any Indebtedness incurred in connection therewith, (i) the Borrower shall be in compliance
on a Pro Forma Basis with the Financial Covenant, (ii) no Event of Default shall have occurred and be continuing, and (iii) the Consolidated
Secured Leverage Ratio will not exceed 1.75 to 1.00 calculated on a Pro Forma Basis and determined as of the most recent Test Period
ended on or prior to the date of such Restricted Payment;
(f) the Borrower may make additional Restricted Payments in an amount not to exceed $75,000,000 in any Fiscal Year, which amount shall
be prorated (on the basis of a 360-day year) for the Fiscal Year in which the Closing Date occurs; provided that (i) immediately
prior to and immediately after giving effect on a Pro Forma Basis to such Restricted Payment and any Indebtedness incurred in connection
therewith, (A) the Borrower shall be in compliance with the Financial Covenant, and (B) no Event of Default has occurred and is continuing;
and
(g) the
Borrower may make additional Restricted Payments in an amount not to exceed, together with all payments and prepayments of Junior
Indebtedness made pursuant to Section 7.9(b)(vi), the greater of (x) $50,000,000 and (y) and 20.0% of Consolidated Adjusted
EBITDA for the most recently ended Test Period; provided that immediately prior to and immediately after giving effect on a
Pro Forma Basis to such Restricted Payment and any Indebtedness incurred in connection therewith, no Event of Default has occurred
and is continuing.
SECTION 7.7 Transactions with Affiliates. Directly or indirectly
enter into any transaction, including, without limitation, any purchase, sale, lease or exchange of Property, the rendering of any service
or the payment of any management, advisory or similar fees, with (a) any officer, director, holder of any Equity Interests in, or other
Affiliate of, the Borrower or any other Credit Party or (b) any Affiliate of any such officer, director or holder, other than:
(i) transactions permitted by Sections 7.1, 7.3, 7.4, 7.5, 7.6 and 7.13;
(ii) transactions existing on the Closing Date and described on Schedule 7.7;
(iii) transactions among Credit Parties;
(iv) other transactions in the ordinary course of business (including servicing and corporate management transactions) on terms not
less favorable to such Credit Party as would be obtained by it on a comparable arm’s-length transaction with an independent, unrelated
third party;
(v) employment and severance arrangements (including equity incentive plans and employee benefit plans and arrangements) with their
respective officers and employees in the ordinary course of business; and
(vi) payment of customary fees and reasonable out of pocket costs to, and indemnities for the benefit of, directors, officers and employees
of any Credit Party in the ordinary course of business to the extent attributable to the ownership or operation of such Credit Party.
SECTION 7.8 Accounting Changes; Organizational Documents.
(a)
Change its Fiscal Year end, or make (without the consent of the Administrative Agent) any material change in its accounting treatment
and reporting practices except as required by GAAP.
(b)
Amend, modify or change its articles of incorporation (or corporate charter or other similar organizational documents) or amend,
modify or change its bylaws (or other similar documents) in any manner materially adverse to the rights or interests of the Lenders.
SECTION 7.9 Payments and Modifications of Junior Indebtedness.
(a) Amend, modify, waive or supplement (or permit the modification, amendment, waiver or supplement of) any of the terms or provisions
of any Junior Indebtedness in any respect which would materially and adversely affect the rights or interests of the Administrative Agent
and Lenders hereunder or would violate the subordination terms thereof.
(b) Cancel, forgive, make any payment or prepayment on, or redeem or acquire for value (including, without limitation, (x) by way
of depositing with any trustee with respect thereto money or securities before due for the purpose of paying when due and (y) at the
maturity thereof) any Junior Indebtedness, except:
(i) refinancings, refundings, renewals, extensions or exchange of any Junior Indebtedness permitted by Section 7.1(c), (g)(ii),
(l), (n) or (q) and by any subordination provisions applicable thereto;
(ii) payments and prepayments of any Junior Indebtedness made solely with the proceeds of Qualified Equity Interests and other Junior
Indebtedness that has a Weighted Average Life to Maturity no shorter than the Junior Indebtedness being repaid;
(iii) the payment of interest, expenses and indemnities in respect of Junior Indebtedness incurred under Section 7.1(c), (g)(ii),
(l), (n) or (q) (other than any such payments prohibited by any subordination provisions applicable thereto);
(iv) payments and prepayments of any Junior Indebtedness in an amount not to exceed the Available Amount; provided that (A)
immediately prior to and immediately after giving effect on a Pro Forma Basis to such payment or prepayment of Junior Indebtedness and
any Indebtedness incurred in connection therewith, (1) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Covenant,
and (2) no Event of Default has occurred and is continuing;
(v) payments and prepayments of any Junior Indebtedness; provided that immediately prior to and immediately after giving effect
on a Pro Forma Basis to such payment or prepayment of Junior Indebtedness and any Indebtedness incurred in connection therewith, (i)
no Event of Default shall have occurred and be continuing, (ii) the Borrower shall be in compliance on a Pro Forma Basis with the Financial
Covenant, and (iii) the Consolidated Secured Leverage Ratio will not exceed 1.75 to 1.00 calculated on a Pro Forma Basis and determined
as of the most recent Test Period ended on or prior to the date of such payment or prepayment of Junior Indebtedness; and
(vi) the Borrower may make additional payment or prepayment of any Junior Indebtedness in an amount not to exceed, together with all
Restricted Payments made pursuant to Section 7.6(g), the greater of (x) $50,000,000 and (y) and 20.0% of Consolidated Adjusted
EBITDA for the most recently ended Test Period; provided that immediately prior to and immediately after giving effect on a Pro
Forma Basis to such payment or prepayment and any Indebtedness incurred in connection therewith, no Event of Default has occurred and
is continuing.
SECTION 7.10 No Further Negative Pledges; Restrictive
Agreements.
(a) Enter into, assume or be subject to any agreement prohibiting or otherwise restricting the creation or assumption of any Lien
upon its properties or assets (excluding the Equity Interests issued by any Excluded Subsidiary that are held by a Credit Party) to secure
the Secured Obligations, whether now owned or hereafter acquired, or requiring the grant of any security for such obligation if security
is given for some other obligation, except (i) pursuant to this Agreement and the other Loan Documents or the Incremental Equivalent
Debt, (ii) pursuant to any document or instrument governing Indebtedness incurred pursuant to Section 7.1(d) (provided
that any such restriction contained therein relates only to the asset or assets financed thereby), (iii) customary restrictions contained
in the organizational documents of any Excluded Subsidiary as of the Closing Date and (iv) customary restrictions in connection with
any Permitted Lien or any document or instrument governing any Permitted Lien (provided that any such restriction contained therein
relates only to the asset or assets subject to such Permitted Lien).
(b) Create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any
Credit Party to (i) pay dividends or make any other distributions to any Credit Party on its Equity Interests or with respect to any
other interest or participation in, or measured by, its profits, (ii) pay any Indebtedness or other obligation owed to any Credit Party
or (iii) make loans or advances to any Credit Party, except in each case for such encumbrances or restrictions existing under or by reason
of (A) this Agreement and the other Loan Documents or the Incremental Equivalent Debt, (B) Permitted Funding Indebtedness and (C) Applicable
Law.
(c) Create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any
Credit Party to (i) sell, lease or transfer any of its properties or assets to any Credit Party or (ii) act as a Credit Party pursuant
to the Loan Documents or any renewals, refinancings, exchanges, refundings or extension thereof, except in each case for such encumbrances
or restrictions existing under or by reason of (A) this Agreement and the other Loan Documents or the Incremental Equivalent Debt, (B)
Applicable Law, (C) any document or instrument governing Indebtedness incurred pursuant to Section 7.1(d) (provided that
any such restriction contained therein relates only to the asset or assets acquired in connection therewith), (D) any Permitted Lien
or any document or instrument governing any Permitted Lien (provided that any such restriction contained therein relates only
to the asset or assets subject to such Permitted Lien), (E) obligations that are binding on a Subsidiary at the time such Subsidiary
first becomes a Subsidiary of the Borrower, so long as such obligations are not entered into in contemplation of such Person becoming
a Subsidiary, (F) customary restrictions contained in an agreement related to the sale of Property (to the extent such sale is permitted
pursuant to Section 7.5) that limit the transfer of such Property pending the consummation of such sale, (G)
customary restrictions in leases, subleases, licenses and sublicenses or asset sale agreements otherwise permitted by this Agreement
so long as such restrictions relate only to the assets subject thereto, (H) customary restrictions in any documentation governing any
Permitted Funding Indebtedness or Material Contract restricting any sale, assignment, lease, conveyance, transfer or other disposition
of all or any substantial part of a Credit Party’s business which would not prevent the granting of the Liens on the Collateral
as contemplated by the Loan Documents, and (I) customary provisions restricting assignment of any agreement entered into in the ordinary
course of business.
SECTION 7.11 Nature of Business. Engage in any business other
than the business conducted by the Borrower and the other Credit Parties as of the Closing Date and business activities reasonably related
or ancillary thereto.
SECTION 7.12 Amendments of Material Contracts. Amend, modify,
waive or supplement (or permit modification, amendment, waiver or supplement of) any of the terms or provisions any Material Contract,
in any respect which (a) would materially and adversely affect the rights or interests of the Administrative Agent and the Lenders hereunder
or (b) could reasonably be expected to have a Material Adverse Effect. Without limiting the generality of the foregoing, subject to the
provisions of Section 8.4, (i) nothing in this Agreement or any other Loan Document will prohibit or otherwise limit WDLLC or
WD Capital from amending, restating, supplementing, modifying or waiving any default by an underlying obligor or related to the servicing
of an underlying Mortgage Loan pursuant to any Agency Agreement if such prohibition or limitation could have a material adverse effect
on the performance by WDLLC or WD Capital of any of its duties or obligations with respect to servicing of Mortgage Loans thereunder;
and (ii) no provision of this Agreement or any other Loan Document will prohibit or otherwise limit WDLLC or WD Capital from consenting
to or otherwise effecting or implementing any amendment, restatement, supplement or other modification to or of any applicable Agency
Agreement required or requested by the subject Agency or consistent with modifications generally applicable to the subject Agency Agreements
or to a seller/servicer thereunder, if such amendment, restatement supplement or other modification is required or requested by the applicable
Agency; provided however, the foregoing shall not be deemed to or construed to modify, amend or limit the provisions of any of
the Agency Consents.
SECTION 7.13 [Reserved].
SECTION 7.14 Financial Covenant – Asset Coverage Ratio. Beginning
with the fiscal quarter ended December 31, 2021, permit the Asset Coverage Ratio as of the last day of any Test Period to be less than
1.50 to 1.00.
SECTION 7.15 Voting Agreements. Enter into any agreement or
other arrangement that would provide any shareholder or group of shareholders owning fifty percent (50%) or less of the Equity Interests
of the Borrower the ability to veto, control or otherwise direct the general corporate management or other fundamental actions of the
Borrower in any manner that is adverse to the rights and interests of the Administrative Agent or the Lenders.
SECTION 7.16 Special Covenant Regarding Excluded Subsidiaries. No
Excluded Subsidiary shall (i) engage in any transaction with any Affiliate of the Borrower (other than a Credit Party or another Excluded
Subsidiary) that would not be permitted by Section 7.7 if such Excluded Subsidiary were a Credit Party or (ii) or purchase, redeem,
retire or otherwise acquire (directly or indirectly) any Equity Interests of the Borrower.
ARTICLE VIII
SPECIAL PROVISIONS REGARDING
AGENCY MATTERS
To induce the
Administrative Agent and Lenders to enter into this Agreement and to induce the Lenders to make the Term Loans, the Credit Parties hereby
(x) represent and warrant to the Administrative Agent and the Lenders both before and after giving effect to the transactions contemplated
hereunder to the following and (y) agree that until all of the Obligations (other than contingent, indemnification obligations not then
due) have been paid and satisfied in full in cash and the Term Loan Commitments terminated it shall cause the following to occur:
SECTION 8.1 Special Representations, Warranties and Covenants Concerning
Eligibility as Seller/Issuer and Service of Mortgage Loans.
To the extent required in the conduct of its business each Credit Party is approved, qualified and in good standing as a lender, seller/servicer
or issuer, as set forth below, and meets and shall meet all requirements applicable to: (i) its status as a Fannie Mae-approved seller/servicer
of Mortgage Loans, eligible to originate, purchase, hold, sell and service Mortgage Loans to be sold to Fannie Mae under any Fannie Mae
Program; (ii) its status as a Freddie Mac Program Plus seller/servicer of Mortgage Loans, eligible to originate, purchase, hold, sell
and service Mortgage Loans to be sold to Freddie Mac under any Freddie Mac Program; (iii) its status as a Ginnie Mae-approved issuer/servicer
of Mortgage Loans, eligible to originate, purchase, hold, sell and service Mortgage Loans, to be guaranteed by Ginnie Mae under any Ginnie
Mae Program; (iv) its status as a FHA/HUD approved mortgagee and HUD MAP Lender with respect to Mortgage Loans under any FHA/HUD Program;
and (v) its status as an approved seller/issuer/servicer of Mortgage Loans to be sold to or guaranteed by any other Investor pursuant
to any program established under any Investor Agreement which is a Material Contract, as applicable.
SECTION 8.2 Special Representations, Warranties and Covenants Concerning
Agency Agreements. Without limiting the provisions
of Sections 5.12 and 6.12, no Credit Party is or will be in breach or in default in any material respect of, or under,
any of the Fannie Mae Agreements, the Freddie Mac Agreements, the Ginnie Mae Agreements, the FHA/HUD Agreements, and/or any Investor
Agreement which is a Material Contract, including, without limitation, as further provided in the Collateral Agreement.
(a) Without limiting the provisions of Section 6.12, each Credit Party shall perform and observe all the respective terms and
provisions of each of the Fannie Mae Agreements, the Freddie Mac Agreements, the Ginnie Mae Agreements, the FHA/HUD Agreements, and any
other Investor Agreement which is a Material Contract to be performed or observed by it in all material respects, and maintain each such
Material Contract, including, without limitation, as further provided in each Collateral Agreement.
SECTION 8.3 Special Representation, Warranty and Covenant with respect
to Fannie Mae Program Reserve Requirements.
(a) Each Credit Party will have met the Fannie Mae Program requirements for lender reserves for each Fannie Mae Mortgage Loan originated
by it, at such time as required by Fannie Mae under any Fannie Mae Program.
(b) Upon the occurrence and during the continuance of any Default or Event of Default, any and all reserves relating to Fannie Mae
Program requirements for lender reserves returned or to be returned to any Credit Party, shall be applied to repayment of the Obligations
in accordance with Section 9.4.
Nothing in this
Agreement will limit (i) Fannie Mae’s rights to set reserve and capital requirements of any Credit Party, under the Fannie Mae Agreements
and applicable Fannie Mae Guides or (ii) any Credit Party’s obligation to comply with such reserve and capital requirements. The
foregoing provisions of this Section 8.3 are in addition to, and not in limitation of, the provisions of Section 8.2 and/or
the provisions of the Collateral Agreement.
SECTION 8.4 Special Provisions Regarding Agency Collateral. With
respect to the Pledged Equity Interests in WDLLC and WD Capital and the respective Agency Security Interests granted to Administrative
Agent (for the benefit of Lenders) in the respective Agency Collateral relating to the respective Agency Designated Loans under the Collateral
Agreement, each of Credit Parties, Administrative Agent and Lenders expressly acknowledge and agree as follows:
(a) Fannie
Mae Collateral.
(i) The provisions of the Collateral Agreement, respecting the Pledged Equity Interest in WDLLC and WD Capital and the Fannie Mae
Collateral, as set forth in Section 8.01 of the Collateral Agreement, are specifically incorporated herein by reference, including, without
limitation, with respect to the terms, conditions, notice requirements, limitations, and agreements with respect to the Fannie Mae Security
Interests granted to Administrative Agent (for the benefit of Lenders) in the Fannie Mae Collateral relating to the Fannie Mae Designated
Loans under the Collateral Agreement; and
(ii) In providing its Agency Consent, Fannie Mae is relying fully, and such Agency Consent is conditioned, upon the terms and conditions
of this Section 8.4(a), Section 7.12, Section 9.7, the final paragraph of Section 11.1(a), the final paragraph
of Section 11.2, and Section 11.25 hereof, and Section 8.01 of the Collateral Agreement.
(b) Freddie
Mac Collateral.
(i) The provisions of the Collateral Agreement, respecting the Pledged Equity Interest in WDLLC and WD Capital and the Freddie Mac
Collateral, as set forth in Section 8.02 of the Collateral Agreement, are specifically incorporated herein by reference, including,
without limitation, with respect to the terms, conditions, notice requirements, limitations, and agreements with respect to the Freddie
Mac Security Interests granted to Administrative Agent (for the benefit of Lenders) in the Freddie Mac Collateral relating to the Freddie
Mac Designated Loans under the Collateral Agreement; and
(ii) In providing its Agency Consent, Freddie Mac is relying fully, and such Agency Consent is conditioned, upon the terms and conditions
of this Section 8.4(b), Section 7.12 and Section 9.8 hereof, and Section 8.02 of the Collateral Agreement.
(c) Ginnie
Mae Collateral.
(i) The provisions of the Collateral Agreement, respecting the Pledged Equity Interest in WDLLC and WD Capital and the Ginnie Mae
Collateral, as set forth in Section 8.03 of the Collateral Agreement, are specifically incorporated herein by reference, including, without
limitation, with respect to the terms, conditions, notice requirements, limitations, and agreements with respect to the Ginnie Mae Security
Interests granted to Administrative Agent (for the benefit of Lenders) in the Ginnie Mae Collateral relating to the Ginnie Mae Designated
Loans under the Collateral Agreement; and
(ii) In providing its Agency Consent, Ginnie Mae is relying fully, and such Agency Consent is conditioned, upon the terms and conditions
of this Section 8.4(c), Section 7.12, and Section 9.9 hereof, and Section 8.03 of the Collateral Agreement.
ARTICLE IX
DEFAULT AND REMEDIES
SECTION 9.1 Events
of Default. Each of the following shall constitute an Event of Default:
(a) Default in Payment of Principal of Loans. The Borrower or any Credit Party shall default in any payment of principal of
any Term Loan when and as due (whether at maturity, by reason of acceleration or otherwise).
(b) Other Payment Default. The Borrower or any other Credit Party shall default in the payment when and as due (whether at
maturity, by reason of acceleration or otherwise) of interest on any Term Loan or the payment of any other Obligation (other than as
set forth in Section 9.1(a)), and such default shall continue for a period of five (5) calendar days.
(c) Misrepresentation. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf
of any Credit Party in this Agreement, in any other Loan Document, or in any document delivered in connection herewith or therewith that
is subject to materiality or Material Adverse Effect qualifications, shall be incorrect or misleading in any respect when made or deemed
made or any representation, warranty, certification or statement of fact made or deemed made by or on behalf of any Credit Party in this
Agreement, any other Loan Document, or in any document delivered in connection herewith or therewith that is not subject to materiality
or Material Adverse Effect qualifications, shall be incorrect or misleading in any material respect when made or deemed made.
(d) Default in Performance of Certain Covenants. Any Credit Party shall default in the performance or observance of any covenant
or agreement contained in Sections 6.3(a) or 6.14 (only with respect to the Borrower) or Article VII.
(e) Default in Performance of Other Covenants and Conditions. Any Credit Party shall default in the performance or observance
of any term, covenant, condition or agreement contained in this Agreement (other than as specifically provided for in this Section
9.1) or any other Loan Document and such default shall continue for a period of thirty (30) days after the Administrative Agent’s
delivery of written notice thereof to the Borrower.
(f) Indebtedness Cross-Default. Any Credit Party shall (i) default in the payment of any Indebtedness (excluding the Term Loans,
but including any Securitization Transaction Attributed Indebtedness) the aggregate principal amount (or, with respect Securitization
Transaction Attributed Indebtedness, the aggregate amount that would be characterized as principal if such Qualified Securitization Transaction
were required to be structured as a secured lending transaction), or with respect to any Hedge Agreement, the Hedge Termination Value,
of which is in excess of the Threshold Amount beyond the period of grace if any, provided in the instrument or agreement under which
such Indebtedness was created, or (ii) default in the observance or performance of any other agreement or condition relating to any Indebtedness
(excluding the Term Loans, but including any Securitization Transaction Attributed Indebtedness) the aggregate principal amount (including
undrawn committed or available amounts) (or, with respect Securitization Transaction Attributed Indebtedness, the aggregate amount that
would be characterized as principal if such Qualified Securitization Transaction were required to be structured as a secured lending
transaction), or with respect to any Hedge Agreement, the Hedge Termination Value, of which is in excess of the Threshold Amount or contained
in any instrument or agreement evidencing, securing or relating thereto or any other event shall occur or condition exist, in each case,
the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a trustee
or agent on behalf of such holder or holders) to cause, with the giving of notice and/or lapse of time, if required, any such Indebtedness
to become due prior to its stated maturity (any applicable grace period having expired).
(g) Other Cross-Defaults. Any Credit Party or any Subsidiary thereof (other than an Excluded Subsidiary) shall default in the
payment when due, or in the performance or observance, of any obligation or condition of any Material Contract, unless, but only as long
as, the existence of any such default is being contested by such Credit Party or any such Subsidiary in good faith by appropriate proceedings
and adequate reserves in respect thereof have been established on the books of the Borrower or such Credit Party to the extent required
by GAAP.
(h) Change
in Control. Any Change in Control shall occur.
(i) Voluntary Bankruptcy Proceeding. Any Credit Party or any Subsidiary thereof (other than an Excluded Subsidiary) shall (i)
commence a voluntary case under any Debtor Relief Laws, (ii) file a petition seeking to take advantage of any Debtor Relief Laws, (iii)
consent to or fail to contest in a timely and appropriate manner any petition filed against it in an involuntary case under any Debtor
Relief Laws, (iv) apply for or consent to, or fail to contest in a timely and appropriate manner, the appointment of, or the taking of
possession by, a receiver, custodian, trustee, or liquidator of itself or of a substantial part of its property, domestic or foreign,
(v) admit in writing its inability to pay its debts as they become due, (vi) make a general assignment for the benefit of creditors,
or (vii) take any corporate action for the purpose of authorizing any of the foregoing.
(j) Involuntary Bankruptcy Proceeding. A case or other proceeding shall be commenced against any Credit Party or any Subsidiary
thereof (other than an Excluded Subsidiary) in any court of competent jurisdiction seeking (i) relief under any Debtor Relief Laws, or
(ii) the appointment of a trustee, receiver, custodian, liquidator or the like for any Credit Party or any Subsidiary thereof (other
than an Excluded Subsidiary) or for all or any substantial part of their respective assets, domestic or foreign, and such case or proceeding
shall continue without dismissal or stay for a period of sixty (60) consecutive days, or an order granting the relief requested in such
case or proceeding (including, but not limited to, an order for relief under such federal bankruptcy laws) shall be entered.
(k) Failure of Agreements. Any provision of this Agreement or any provision of any other Loan Document shall for any reason
cease to be valid and binding on any Credit Party or any Subsidiary thereof party thereto or any such Person shall so state in writing,
or any Loan Document shall for any reason cease to create a valid and perfected first priority Lien (subject to Permitted Liens) on,
or security interest in, any of the Collateral purported to be covered thereby, in each case other than in accordance with the express
terms hereof or thereof.
(l) ERISA Events. The occurrence of any of the following events: (i) any Credit Party or any ERISA Affiliate fails to make
full payment when due of all amounts which, under the provisions of any Pension Plan or Sections 412 or 430 of the Code, any Credit Party
or any ERISA Affiliate is required to pay as contributions thereto and such unpaid amounts are in excess of the Threshold Amount, (ii)
a Termination Event or (iii) any Credit Party or any ERISA Affiliate as employers under one or more Multiemployer Plans makes a complete
or partial withdrawal from any such Multiemployer Plan and the plan sponsor of such Multiemployer Plans notifies such withdrawing employer
that such employer has incurred a withdrawal liability requiring payments in an amount exceeding the Threshold Amount.
(m) Judgment. A judgment or order for the payment of money which causes the aggregate amount of all such judgments or orders
(net of any amounts paid or fully covered by independent third party insurance as to which the relevant insurance company does not dispute
coverage) to exceed the Threshold Amount shall be entered against any Credit Party or any Subsidiary thereof (other than an Excluded
Subsidiary) by any court and such judgment or order shall continue without having been discharged, vacated or stayed for a period of
thirty (30) consecutive days after the entry thereof.
SECTION 9.2 Remedies. Upon the occurrence and during the continuance
of an Event of Default, with the consent of the Required Lenders, the Administrative Agent may, or upon the request of the Required Lenders,
the Administrative Agent shall, by notice to the Borrower:
(a) Acceleration; Termination of Term Loan Facility. Declare the principal of and interest on the Term Loans and all other
amounts owed to the Lenders and to the Administrative Agent under this Agreement or any of the other Loan Documents and all other Obligations,
to be forthwith due and payable, whereupon the same shall immediately become due and payable without presentment, demand, protest or
other notice of any kind, all of which are expressly waived by each Credit Party, anything in this Agreement or the other Loan Documents
to the contrary notwithstanding, and terminate the Term Loan Facility; provided, that upon the occurrence of an Event of Default
specified in Section 9.1(i) or (j), the Term Loan Facility shall be automatically terminated and all Obligations shall
automatically become due and payable without presentment, demand, protest or other notice of any kind, all of which are expressly waived
by each Credit Party, anything in this Agreement or in any other Loan Document to the contrary notwithstanding.
(b) General Remedies. Exercise on behalf of the Secured Parties all of its other rights and remedies under this Agreement,
the other Loan Documents and Applicable Law, in order to satisfy all of the Secured Obligations.
SECTION 9.3 Rights and Remedies Cumulative; Non-Waiver;
Etc.
(a) The enumeration of the rights and remedies of the Administrative Agent and the Lenders set forth in this Agreement is not intended
to be exhaustive and the exercise by the Administrative Agent and the Lenders of any right or remedy shall not preclude the exercise
of any other rights or remedies, all of which shall be cumulative, and shall be in addition to any other right or remedy given hereunder
or under the other Loan Documents or that may now or hereafter exist at law or in equity or by suit or otherwise. No delay or failure
to take action on the part of the Administrative Agent or any Lender in exercising any right, power or privilege shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof
or the exercise of any other right, power or privilege or shall be construed to be a waiver of any Event of Default. No course of dealing
between the Borrower, the Administrative Agent and the Lenders or their respective agents or employees shall be effective to change,
modify or discharge any provision of this Agreement or any of the other Loan Documents or to constitute a waiver of any Event of Default.
(b) Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies
hereunder and under the other Loan Documents against the Credit Parties or any of them shall be vested exclusively in, and all actions
and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent
in accordance with Section 9.2 for the benefit of all the Lenders; provided that the foregoing shall not prohibit (i) the
Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative
Agent) hereunder and under the other Loan Documents, (ii) any Lender from exercising setoff rights in accordance with Section 11.4
(subject to the terms of Section 3.6), or (iii) any Lender from filing proofs of claim or appearing and filing pleadings on
its own behalf during the pendency of a proceeding relative to any Credit Party under any Debtor Relief Law; and provided, further,
that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (A) the Required
Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 9.2 and (B) in addition to the
matters set forth in clauses (ii) and (iii) of the preceding proviso and subject to Section 3.6, any Lender may, with the consent
of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.
SECTION 9.4 Crediting of Payments and Proceeds. In the event
that the Obligations have been accelerated pursuant to Section 9.2 or the Administrative Agent or any Lender has exercised any
remedy set forth in this Agreement or any other Loan Document, all payments received on account of the Secured Obligations and all net
proceeds from the enforcement of the Secured Obligations shall be applied by the Administrative Agent as follows, subject to the Pari
Passu Intercreditor Agreement, if any:
First,
to payment of that portion of the Secured Obligations constituting fees, indemnities, expenses and other amounts, including attorneys’
fees, payable to the Administrative Agent in its capacity as such;
Second,
to payment of that portion of the Secured Obligations constituting fees, indemnities and other amounts (other than principal and interest)
payable to the Lenders under the Loan Documents, including attorneys’ fees, ratably among the Lenders in proportion to the respective
amounts described in this clause Second payable to them;
Third,
to payment of that portion of the Secured Obligations constituting accrued and unpaid interest on the Term Loans, ratably among the Lenders
in proportion to the respective amounts described in this clause Third payable to them;
Fourth,
to payment of that portion of the Secured Obligations constituting unpaid principal of the Term Loans and payment obligations then owing
under Secured Hedge Agreements and Secured Cash Management Agreements, ratably among the Lenders, the Hedge Banks and the Cash Management
Banks in proportion to the respective amounts described in this clause Fourth payable to them; and
Last,
the balance, if any, after all of the Secured Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required
by Applicable Law.
Notwithstanding
the foregoing, Secured Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements shall be excluded from
the application described above if the Administrative Agent has not received written notice thereof, together with such supporting documentation
as the Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be. Each Cash Management
Bank or Hedge Bank not a party to this Agreement that has given the notice contemplated by the preceding sentence shall, by such notice,
be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of Article X for
itself and its Affiliates as if a “Lender” party hereto.
SECTION 9.5 Administrative Agent May File Proofs of Claim. In
case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Credit Party, the
Administrative Agent (irrespective of whether the principal of any Term Loan shall then be due and payable as herein expressed or by
declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled
and empowered (but not obligated) by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Term Loans and
all other Secured Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to
have the claims of the Lenders and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements
and advances of the Lenders and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders
and the Administrative Agent under Sections 3.3 and 11.3) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make
such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections
3.3 and 11.3.
SECTION 9.6 Credit Bidding.
(a) The Administrative Agent, on behalf of itself and the Secured Parties, shall have the right (but not the obligation) to credit
bid and purchase for the benefit of the Administrative Agent and the Secured Parties all or any portion of Collateral at any sale thereof
conducted by the Administrative Agent or its designee under the provisions of the UCC, including pursuant to Sections 9-610 or 9-620
of the UCC, at any sale thereof conducted under the provisions of the United States Bankruptcy Code, including Section 363 thereof, or
a sale under a plan of reorganization, or at any other sale or foreclosure conducted by the Administrative Agent or its designee (whether
by judicial action or otherwise) in accordance with Applicable Law. Such credit bid or purchase may be completed through one or more
acquisition vehicles formed by the Administrative Agent to make such credit bid or purchase and, in connection therewith, the Administrative
Agent is authorized, on behalf of itself and the other Secured Parties, to adopt documents providing for the governance of the acquisition
vehicle or vehicles, and assign the applicable Secured Obligations to any such acquisition vehicle in exchange for Equity Interests and/or
debt issued by the applicable acquisition vehicle (which shall be deemed to be held for the ratable account of the applicable Secured
Parties on the basis of the Secured Obligations so assigned by each Secured Party); provided that any actions by the Administrative
Agent with respect to such acquisition vehicle or vehicles, including any disposition of the assets or Equity Interests thereof, shall
be governed, directly or indirectly, by the vote of the Required Lenders, irrespective of the termination of this Agreement and without
giving effect to the limitations on actions by the Required Lenders contained in Section 11.2.
(b) Each Lender hereby agrees, on behalf of itself and each of its Affiliates that is a Secured Party, that, except as otherwise provided
in any Loan Document or with the written consent of the Administrative Agent and the Required Lenders, it will not take any enforcement
action, accelerate obligations under any of the Loan Documents, or exercise any right that it might otherwise have under Applicable Law
to credit bid at foreclosure sales, UCC sales or other similar dispositions of Collateral.
SECTION 9.7 Fannie Mae Limitations. Notwithstanding any provision
of this Agreement or any Security Document to the contrary: (i) the provisions of Section 8.01 of the Collateral Agreement are specifically
incorporated herein by reference; and (ii) the terms and conditions of Section 8.4(a) hereof and Section 8.01 of the Collateral
Agreement shall at all times be applicable, including, without limitation, with respect to all limitations and requirements for consent
by Fannie Mae therein contained.
SECTION 9.8 Freddie Mac Limitations. Notwithstanding any provision
of this Agreement or any Security Document to the contrary: (i) the provisions of Section 8.02 of the Collateral Agreement are specifically
incorporated herein by reference; and (ii) the terms and conditions of Section 8.4(b) hereof and Section 8.02 of the Collateral
Agreement shall at all times be applicable, including, without limitation, with respect to all limitations and requirements for consent
by Freddie Mac therein contained.
SECTION 9.9 Ginnie Mae Limitations. Notwithstanding any provision
of this Agreement or any Security Document to the contrary: (i) the provisions of Section 8.03 of the Collateral Agreement are specifically
incorporated herein by reference; and (ii) the terms and conditions of Section 8.4(c) hereof and Section 8.03 of the Collateral
Agreement shall at all times be applicable, including, without limitation, with respect to all limitations and requirements for consent
by Ginnie Mae therein contained.
ARTICLE X
THE ADMINISTRATIVE AGENT
SECTION 10.1 Appointment and Authority.
(a) Each of the Lenders hereby irrevocably appoints JPMorgan to act on its behalf as the Administrative Agent hereunder and under
the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental
thereto. The provisions of this Article X are solely for the benefit of the Administrative Agent and the Lenders, and neither
the Borrower nor any Subsidiary thereof shall have rights as a third-party beneficiary of any of such provisions. It is understood and
agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference
to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine
of any Applicable Law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative
relationship between contracting parties.
(b) The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders
(including in its capacity as a potential Hedge Bank or Cash Management Bank and on behalf of any Affiliate thereof which is a Hedge
Bank or Cash Management Bank, each of which Affiliate shall in any event be deemed to have joined in such appointment by its acceptance
of the benefits conferred to it herein and in the Security Documents) hereby irrevocably appoints and authorizes the Administrative Agent
to act as the agent of such Lender or other Secured Party for purposes of acquiring, holding and enforcing any and all Liens on Collateral
granted by any of the Credit Parties to secure any of the Secured Obligations, together with such powers and discretion as are reasonably
incidental thereto (including, without limitation, to enter into additional Loan Documents or supplements to existing Loan Documents
on behalf of the Secured Parties). In this connection, the Administrative Agent, as “collateral agent” and any co-agents,
sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to this Article X for purposes of holding or enforcing
any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder
at the direction of the Administrative Agent), shall be entitled to the benefits of all provisions of Articles X and XI
(including Section 11.3, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under
the Loan Documents) as if set forth in full herein with respect thereto.
SECTION 10.2 Rights as a Lender. The Person serving as the
Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise
the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its
individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial
advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrower or any Subsidiary or other
Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.
SECTION 10.3 Exculpatory Provisions.
(a) The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan
Documents, and its duties hereunder and thereunder shall be administrative in nature. Without limiting the generality of the foregoing,
the Administrative Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred
and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and
powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed
in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in
the other Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion
or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or Applicable
Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that
may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and
(iii) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable
for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries or Affiliates that is communicated to
or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity.
(b) The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe
in good faith shall be necessary, under the circumstances as provided in Section 11.2 and Section 9.2) or (ii) in the absence
of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final non-appealable judgment.
The Administrative Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until notice describing
such Default or Event of Default is given to the Administrative Agent by the Borrower or a Lender.
(c) The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty
or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report
or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any
of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event of Default,
(iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument
or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt
of items expressly required to be delivered to the Administrative Agent.
SECTION 10.4 Reliance by the Administrative Agent. The Administrative
Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution)
believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall
not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Term Loan that
by its terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition is satisfactory
to such Lender unless the Administrative Agent shall have received notice to the contrary from such Lender prior to the making of such
Term Loan. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and
other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
SECTION 10.5 Delegation of Duties. The Administrative Agent
may perform any and all of its duties and exercise its rights and powers (including as collateral agent) hereunder or under any other
Loan Document by or through any one or more sub-agents or attorneys-in-fact appointed by the Administrative Agent. The Administrative
Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective
Related Parties. The exculpatory provisions of this Article X shall apply to any such sub-agent and to the Related Parties of
the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of
the Term Loan Facility as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence
or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non-appealable
judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.
SECTION 10.6 Resignation of Administrative
Agent.
(a) The
Administrative Agent may at any time give notice of its resignation to the Lenders and the Borrower. Upon receipt of any such notice
of resignation, the Required Lenders shall have the right, with the Borrower’s prior written consent so long as no Event of Default
has occurred and is then continuing, to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate
of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation (or such earlier
day as shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then the retiring Administrative
Agent may (but shall not be obligated to), on behalf of the Lenders, appoint a successor Administrative Agent meeting the qualifications
set forth above. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice
on the Resignation Effective Date.
(b) If
the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (b)
of the definition thereof, the Required Lenders may, to the extent permitted by Applicable Law, by notice in writing to the Borrower
and such Person, remove such Person as Administrative Agent and, in consultation with the Borrower, appoint a successor. If no such successor
shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (or such earlier day as
shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become
effective in accordance with such notice on the Removal Effective Date.
(c) With
effect from the Resignation Effective Date or the Removal Effective Date (as applicable), (1) the retiring or removed Administrative
Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any
collateral security held by the Administrative Agent on behalf of the Lenders under any of the Loan Documents, the retiring or removed
Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed)
and (2) except for any indemnity payments owed to the retiring or removed Administrative Agent, all payments, communications and determinations
provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, until such time,
if any, as the Required Lenders appoint a successor Administrative Agent as provided for above. Upon the acceptance of a successor’s
appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges
and duties of the retiring or removed Administrative Agent (other than any rights to indemnity payments owed to the retiring or removed
Administrative Agent), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder
or under the other Loan Documents. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring or removed Administrative Agent’s
resignation or removal hereunder and under the other Loan Documents, the provisions of this Article X and Section 11.3
shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them while the retiring or removed Administrative Agent was
acting as Administrative Agent.
SECTION 10.7 Non-Reliance on
Administrative Agent and Other Lenders. Each Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based
on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or
not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished
hereunder or thereunder. Each Lender expressly acknowledges that neither the Administrative Agent nor any of its Related Parties has
made any representations or warranties to it and that no act by the Administrative Agent or any such Related Party hereinafter
taken, including any review of the affairs of the Borrower or any other Credit Party, shall be deemed to constitute any
representation or warranty by the Administrative Agent or any Related Party to any Lender. Without limiting the generality of the
foregoing or any other provision of this Article X each of the Lenders hereby acknowledges that it has received and reviewed
a copy of the Agency Consents (and, to the extent applicable, any consent or acknowledgment of an Agency in connection with an
Incremental Term Loan) and agrees to be bound by the terms thereof as if a signatory thereto. Each Lender (and each assignee of a
Lender that becomes a party hereto after the Closing Date) including in its capacity as a potential Hedge Bank or Cash Management
Bank and on behalf of any Affiliate thereof which is a Hedge Bank or Cash Management Bank, hereby authorizes and directs the
Administrative Agent to enter into the Agency Consents (and, to the extent applicable, any consent or acknowledgment of an Agency in
connection with an Incremental Term Loan) on behalf of such Lender (or other Secured Parties) and agrees that the Administrative
Agent may take such actions on its behalf as is contemplated by the terms of any such Agency Consent (or other consent or
acknowledgement, as the case may be). Each Affiliate of a Lender shall in any event be deemed to have by its acceptance of the
benefits conferred to it herein and in the Security Documents agreed to the provisions of this Section 10.7.
SECTION
10.8 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the syndication agents, documentation agents,
co-agents, arrangers or bookrunners listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement
or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent or a Lender hereunder.
SECTION 10.9 Collateral
and Guaranty Matters.
(a) Each
of the Lenders (including in its or any of its Affiliate’s capacities as a potential Hedge Bank or Cash Management Bank) irrevocably
authorizes the Administrative Agent, at its option and in its discretion:
(i) to
release any Lien on any Collateral granted to or held by the Administrative Agent, for the ratable benefit of the Secured Parties,
under any Loan Document (A) upon the payment in full of all Secured Obligations (other than (1) contingent indemnification
obligations and (2) obligations and liabilities under Secured Cash Management Agreements or Secured Hedge Agreements), (B) that is
sold or otherwise disposed of or to be sold or otherwise disposed of as part of or in connection with any sale or other disposition
permitted under the Loan Documents, or (C) if approved, authorized or ratified in writing in accordance with Section
11.2;
(ii) to
subordinate any Lien on any Collateral granted to or held by the Administrative Agent under any Loan Document to the holder of any
Lien permitted pursuant to Section 7.2(h); and
(iii) to
release any Subsidiary Guarantor from its obligations under any Loan Documents if such Person ceases to be a Subsidiary or becomes
an Excluded Subsidiary as a result of a transaction permitted under the Loan Documents.
Upon request by the
Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release
or subordinate its interest in particular types or items of property, or to release any Subsidiary Guarantor from its obligations
under the Collateral Agreement pursuant to this Section 10.9. In each case as specified in this Section 10.9, the
Administrative Agent will, at the Borrower’s expense and upon delivery to the Administrative Agent of a certificate of a
Responsible Officer certifying that such release or subordination is permitted by the Loan Documents (including this Section
10.9), execute and deliver to the applicable Credit Party such documents as such Credit Party may reasonably request to evidence
the release of such item of Collateral from the assignment and security interest granted under the Security Documents or to
subordinate its interest in such item, or to release such Guarantor from its obligations under the Collateral Agreement, in each
case in accordance with the terms of the Loan Documents and this Section 10.9. In the case of any such sale, transfer or
disposal of any property constituting Collateral in a transaction constituting an Asset Disposition permitted pursuant to Section
7.5, the Liens created by any of the Security Documents on such property shall be automatically released without need for
further action by any person.
(b) The
Administrative Agent shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty
regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Administrative
Agent’s Lien thereon, or any certificate prepared by any Credit Party in connection therewith, nor shall the Administrative
Agent be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
SECTION
10.10 Secured Hedge Agreements and Secured Cash Management Agreements. No Cash Management Bank or Hedge Bank that obtains the benefits
of Section 9.4 or any Collateral by virtue of the provisions hereof or of any Security Document shall have any right to notice
of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of
the Collateral (including the release or impairment of any Collateral) other than in its capacity as a Lender and, in such case, only
to the extent expressly provided in the Loan Documents. Notwithstanding any other provision of this Article X to the contrary,
the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with
respect to, Secured Cash Management Agreements and Secured Hedge Agreements unless the Administrative Agent has received written notice
of such Secured Cash Management Agreements and Secured Hedge Agreements, together with such supporting documentation as the Administrative
Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be.
SECTION 10.11 Acknowledgement of Lenders.
(a) Each
Lender represents and warrants that (i) the Loan Documents set forth the terms of a commercial lending facility, (ii) it is engaged
in making, acquiring or holding commercial loans and in providing other facilities set forth herein as may be applicable to such
Lender in the ordinary course of business, and not for the purpose of purchasing, acquiring or holding any other type of financial
instrument (and each Lender agrees not to assert a claim in contravention of the foregoing), (iii) it has, independently and without
reliance upon the Administrative Agent, the Arranger or any other Lender, or any of the Related Parties of any of the foregoing, and
based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this
Agreement as a Lender, and to make, acquire or hold Loans hereunder and (iv) it is sophisticated with respect to decisions to make,
acquire and/or hold commercial loans and to provide other facilities set forth herein, as may be applicable to such Lender, and
either it, or the Person exercising discretion in making its decision to make, acquire and/or hold such commercial loans or to
provide such other facilities, is experienced in making, acquiring or holding such commercial loans or providing such other
facilities. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent, the
Arranger or any other Lender, or any of the Related Parties of any of the foregoing, and based on such documents and information
(which may contain material, non-public information within the meaning of the United States securities laws concerning the Borrower
and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking
action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or
thereunder.
(b) Each
Lender, by delivering its signature page to this Agreement on the Closing Date, or delivering its signature page to an Assignment
and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged
receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by
or satisfactory to, the Administrative Agent or the Lenders on the Closing Date.
(c) Each
Lender hereby agrees that (x) if the Administrative Agent notifies such Lender that the Administrative Agent has determined in its
sole discretion that any funds received by such Lender from the Administrative Agent or any of its Affiliates (whether as a payment,
prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Payment”)
were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Payment (or a
portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to the Administrative
Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with
interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender to
the date such amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect, and (y) to the
extent permitted by applicable law, such Lender shall not assert, and hereby waives, as to the Administrative Agent, any claim,
counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative
Agent for the return of any Payments received, including without limitation any defense based on “discharge for value”
or any similar doctrine. A notice of the Administrative Agent to any Lender under this Section 10.11(c) shall be conclusive,
absent manifest error.
(i) Each
Lender hereby further agrees that if it receives a Payment from the Administrative Agent or any of its Affiliates (x) that is in a
different amount than, or on a different date from, that specified in a notice of payment sent by the Administrative Agent (or any
of its Affiliates) with respect to such Payment (a “Payment Notice”) or (y) that was not preceded or accompanied
by a Payment Notice, it shall be on notice, in each such case, that an error has been made with respect to such Payment. Each Lender
agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such
Lender shall promptly notify the Administrative Agent of such occurrence and, upon demand from the Administrative Agent, it shall
promptly, but in no event later than one Business Day thereafter, return to the Administrative Agent the amount of any such Payment
(or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day
from and including the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to the
Administrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation from time to time in effect.
(ii) The
Borrower and each other Credit Party hereby agrees that (x) in the event an erroneous Payment (or portion thereof) are not recovered
from any Lender that has received such Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to
all the rights of such Lender with respect to such amount and (y) an erroneous Payment shall not pay, prepay, repay, discharge or
otherwise satisfy any Obligations owed by the Borrower or any other Credit Party, except, in each case, to the extent such erroneous
Payment is, and solely with respect to the amount of such erroneous Payment that is, comprised of funds of the Borrower or any other
Credit Party intended to pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Credit
Party.
(iii) Each
party’s obligations under this Section 10.11(c) shall survive the resignation or replacement of the Administrative
Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Term Loan Commitments or
the repayment, satisfaction or discharge of all Obligations under any Loan Document.
ARTICLE
XI
MISCELLANEOUS
SECTION 11.1 Notices.
| (a) | Notices Generally. All notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by facsimile as follows: |
|
If to the Borrower:
Walker & Dunlop, Inc.
75017272
Wisconsin Avenue, Suite 1200E1300
Bethesda, MD 20814
Attention of: Stephen
P. TheobaldIssa Bannourah
Telephone No.: (301) 215-5575202-3298
Facsimile No.: (301) 500-1223
E-mail: STheobaldibannourah@walkerdunlop.com
With copies to:
Walker & Dunlop, Inc.
Until
January 1, 2022:
7501 Wisconsin Avenue, Suite 1200E
Bethesda, MD 20814
From
and after January 1, 2022:
7272 Wisconsin Avenue, Suite 1300
Bethesda, MD 20814
Attention of: Richard M. Lucas
Telephone No.: (301)
634-2146
Facsimile No.: (301) 500-1223
E-mail: RLucas@walkerdunlop.com
and
Morgan, Lewis & Bockius LLP
17012222
Market Street
Philadelphia, Pennsylvania 19103-2921
Attention of: Michael J. Pedrick
Telephone No.: (215)
963-4808
Facsimile No.: (215) 963-5001
E-mail: mpedrick@morganlewis.com
|
|
If to JPMorgan as Administrative Agent:
JPMorgan Chase Bank, N.A.
500
Stanton Christiana Rd.
NCC5
/ 1st
Floor131 S Dearborn St,
Floor 04
Newark, DE 19713
Chicago,
IL, 60603-5506
Attention:
Loan & Agency Servicing
Email: jpm.agency.cri@jpmorgan.com
Agency Withholding
Tax Inquiries:
Email:
agency.tax.reporting@jpmorgan.com
Agency Compliance/Financials/Intralinks:
Email: covenant.compliance@jpmchase.com
If
Issuing Bank:
JPMorgan
Chase Bank, N.A.
10 South Dearborn, Floor L2
Suite IL1-0480
Chicago,
IL, 60603-2300
Attention:
LC Agency Team
Tel: 800-364-1969
Fax:
856-294-5267
Email:
chicago.lc.agency.activity.team@jpmchase.com
With
a copy to:
JPMorgan
Chase Bank, N.A.
10 South Dearborn, Floor L2
Suite IL1-0480
Chicago,
IL, 60603-2300
Attention: Loan & Agency Services Group
Tel:
(302) 552-0161
Fax: (201) 244-3647
Email: samuel.stasio@jpmorganchase.com
with a copy to
elijah.mills@chase.com
With copies to:
JPMorgan
Chase & Co.
CIB DMO WLO
Mail code NY1-C413
4 CMC, Brooklyn, NY, 11245-0001
United States
Email: ib.collateral.services@jpmchase.com
|
|
If to any Lender:
To the address of such Lender set forth on the Register
with respect to deliveries of notices and other documentation that may contain material non-public information.
|
Notices sent
by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices
sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient,
shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices delivered through electronic
communications to the extent provided in paragraph (b) below, shall be effective as provided in said paragraph (b).
All notices
received or delivered by the Borrower in accordance with this Section 11.1(a) relating to (i) any of Section 7.12, Section
8.4(a), Section 9.7, or Section 11.25 of this Agreement or Section 8.01 of the Collateral Agreement, or any other provision
of this Agreement, the Collateral Agreement, or any other Loan Document which relates to such sections, (ii) the Borrower’s request
to establish one or more Incremental Term Loan Commitments for the incurrence of one or more Incremental Term Loans, (iii) any notice
of Default or Event of Default, (iv) any amendment, modification, waiver, supplement or other change to any of Section 7.12, Section
8.4(a), Section 9.7, or Section 11.25 of this Agreement or Section
8.01 of the Collateral Agreement
or any other amendment or modification of this Agreement or the Collateral Agreement affecting such Sections, or (v) any amendment or
modification of this Agreement or the Collateral Agreement or any other event or occurrence that could reasonably be expected to result
in a default under or breach by any Credit Party of the Fannie Mae Agreements or the Fannie Mae Program, or adversely affect any right,
obligation or other interest of any Credit Party or of Fannie Mae under any Fannie Mae Agreements shall be provided by the Borrower to
Fannie Mae to the address set forth in Section 8.01(d) of the Collateral Agreement.
(b) Electronic
Communications. Notices and other communications to the Lenders hereunder may be delivered or furnished by
electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent,
provided that the foregoing shall not apply to notices to any Lender pursuant to Article II if such Lender has notified
the Administrative Agent that is incapable of receiving notices under such Article by electronic communication. The Administrative Agent
or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed
received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested”
function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet or
intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the
foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor; provided
that, for both clauses (i) and (ii) above, if such notice, email or other communication is not sent during the normal business hours
of the recipient, such notice, email or other communication shall be deemed to have been sent at the opening of business on the next
Business Day for the recipient.
(c) Administrative
Agent’s Office. The Administrative Agent hereby designates its office located at the address set forth in Section 11.1(a),
or any subsequent office which shall have been specified for such purpose by written notice to the Borrower and Lenders, as the Administrative
Agent’s Office referred to herein, to which payments due are to be made and at which Term Loans will be disbursed.
(d) Change
of Address, Etc. Any party hereto may change its address or facsimile number for notices and other communications hereunder by notice
to the other parties hereto.
(e) Platform.
(i) Each
Credit Party agrees that the Administrative Agent may, but shall not be obligated to, make the Borrower Materials available to the
Lenders by posting the Borrower Materials on the Platform.
(ii) The
Platform is provided “as is” and “as available.” The Agent Parties (as defined below) do not warrant the accuracy
or completeness of the Borrower Materials or the adequacy of the Platform, and expressly disclaim liability for errors or omissions in
the Borrower Materials. No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability,
fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any
Agent Party in connection with the Borrower Materials or the Platform. In no event shall the Administrative Agent or any of its Related
Parties (collectively, the “Agent Parties”) have any liability to any Credit Party, any Lender or any other Person
or entity for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of any
Credit Party’s or the Administrative Agent’s transmission of communications through the Internet (including, without limitation,
the Platform), except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent
jurisdiction by final and non-appealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party;
provided that in no event shall any Agent Party have any liability to any Credit Party, any Lender or any other Person for indirect,
special, incidental, consequential or punitive damages, losses or expenses (as opposed to actual damages, losses or expenses).
(f) Private
Side Designation. Each Public-Sider agrees to cause at least one individual at or on behalf of such Public-Sider to at all times
have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in
order to enable such Public-Sider or its delegate, in accordance with such Public-Sider’s compliance procedures and Applicable
Law, including United States Federal and state securities Applicable Laws, to make reference to Borrower Materials that are not made
available through the “Public Side Information” portion of the Platform and that may contain material non-public information
with respect to the Borrower or its securities for purposes of United States Federal or state securities Applicable Laws.
SECTION 11.2 Amendments, Waivers and Consents. Except
as set forth below or as specifically provided in any Loan Document (including Sections 3.8(b) and (c)), any term, covenant,
agreement or condition of this Agreement or any of the other Loan Documents may be amended or waived by the Lenders, and any consent
given by the Lenders, if, but only if, such amendment, waiver or consent is in writing signed by the Required Lenders (or by the Administrative
Agent with the consent of the Required Lenders) and delivered to the Administrative Agent and, in the case of an amendment, signed by
the Borrower; provided, that no amendment, waiver or consent shall:
(a) increase
the Term Loan Commitment of any Lender (or reinstate any Term Loan Commitment terminated pursuant to Section 9.2) or the
amount of Term Loans of any Lender, in any case, without the written consent of such Lender;
(b) waive,
extend or postpone any date fixed by this Agreement or any other Loan Document for any payment (it being understood that a waiver of
a mandatory prepayment under Section 2.4(b)
shall only require the consent of the Required Lenders) of principal, interest, fees or other amounts due to the Lenders (or any of
them) hereunder or under any other Loan Document without the written consent of each Lender directly and adversely affected
thereby;
(c) reduce
the principal of, or the rate of interest specified herein on, any Term Loan, or (subject to clause (ii) of the proviso set forth in
the paragraph below) any fees or other amounts payable hereunder without the written consent of each Lender directly and adversely affected
thereby; provided that only the consent of the Required Lenders shall be necessary to waive any obligation of the Borrower to
pay interest at the rate set forth in Section 3.1(b) during the continuance of an Event of Default;
(d) change Section
3.6 or Section 9.4 in a manner that would alter the pro rata sharing of payments or order of application required
thereby without the written consent of each Lender directly and adversely affected thereby;
(e) change
Section 2.4(b)(v) in a manner that would alter the order of application of amounts prepaid pursuant thereto without the written
consent of each Lender directly and adversely affected thereby;
(f) except
as otherwise permitted by this Section 11.2 change any provision of this Section
11.2 or reduce the percentages specified in the definitions of “Required Lenders” or any other provision hereof
specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination
or grant any consent hereunder, without the written consent of each Lender directly affected thereby;
(g) consent
to the assignment or transfer by any Credit Party of such Credit Party’s rights and obligations under any Loan Document to
which it is a party (except as permitted pursuant to Section 7.4), in each case, without the written consent of each
Lender;
(h) release
(i) all of the Subsidiary Guarantors or (ii) Subsidiary Guarantors comprising substantially all of the credit support for the Secured
Obligations, in any case, from the Collateral Agreement (other than as authorized in Section 10.9), without the written consent
of each Lender;
(i) release
all or substantially all of the Collateral or release any Security Document (other than as authorized in Section 10.9 or as otherwise
specifically permitted or contemplated in this Agreement or the applicable Security Document) without the written consent of each Lender;
or
(j) subordinate
(x) the Liens securing any of the Obligations on all or substantially all of the Collateral (“Existing Liens”) to
the Liens securing any other Indebtedness or other obligations or (y) any Obligations in contractual right of payment to any other
Indebtedness or other obligations (any such other Indebtedness or other obligations, to which such Liens securing any of the
Obligations or such Obligations, as applicable, are subordinated, “Senior Indebtedness”), in either the case of
the foregoing subclause (x) or (y), (1) except with respect to the approval of a debtor-in-possession financing or (2) unless each
adversely affected Lender has been offered a bona fide opportunity to fund or otherwise provide its pro rata share (based on
the amount of Obligations that are adversely affected thereby held by each Lender) of the Senior Indebtedness on the same terms
(other than bona fide backstop fees and reimbursement of counsel fees and other expenses in connection with the negotiation
of the terms of such transaction; such fees and expenses, “Ancillary Fees”) as offered to all other providers (or
their Affiliates) of the Senior Indebtedness and to the extent such adversely affected Lender decides to participate in the Senior
Indebtedness, receive its pro rata share of the fees and any other similar benefit (other than Ancillary Fees) of the Senior
Indebtedness afforded to the providers of the Senior Indebtedness (or any of their Affiliates) in connection with providing the
Senior Indebtedness pursuant to a written offer made to each such adversely affected Lender describing the material terms of the
arrangements pursuant to which the Senior Indebtedness is to be provided, which offer shall remain open to each adversely affected
Lender for a period of not less than five (5) Business Days;
provided
further, that (i) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the
Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document, (ii)
any waiver, amendment or modification of this Agreement that by its terms affects the rights or duties under this Agreement of Lenders
holding Term Loans or Term Loan Commitments of a particular Class (but not the Lenders holding Term Loans or Term Loan Commitments of
any other Class) may be effected by an agreement or agreements in writing entered into by the Borrower and the requisite percentage in
interest of the affected Class of Lenders that would be required to consent thereunder under this Section 11.2 if such Class of
Lenders were the only Class of Lenders hereunder at the time, (iii) the Administrative Agent and the Borrower shall be permitted to amend
any provision of the Loan Documents (and such amendment shall become effective without any further action or consent of any other party
to any Loan Document) if the Administrative Agent and the Borrower shall have jointly identified an obvious error or any error, ambiguity,
defect or inconsistency or omission of a technical or immaterial nature in any such provision, including technical, administrative or
operational changes that the Administrative Agent and the Borrower decide may be appropriate to reflect the implementation of the Term
SOFR Rate or a Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent
with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively
feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists,
in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration
of this Agreement and the other Loan Documents) and (iv) the Administrative Agent and the Borrower may, without the consent of any Lender,
enter into amendments or modifications to this Agreement or any of the other Loan Documents or to enter into additional Loan Documents
as the Administrative Agent reasonably deems appropriate in order to implement any Benchmark Replacement or otherwise effectuate the terms
of Section 3.8(c) in accordance with the terms of Section 3.8(c). Notwithstanding anything to the contrary herein, no Defaulting
Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder.
Notwithstanding
anything in this Agreement to the contrary, each Lender hereby irrevocably authorizes the Administrative Agent on its behalf, and
without further consent of any Lender (but with the consent of the Borrower and the Administrative Agent), to (x) amend and restate
this Agreement if, upon giving effect to such amendment and restatement, such Lender shall no longer be a party to this Agreement
(as so amended and restated), the Term Loan Commitment of such Lender shall have terminated, such Lender shall have no other
commitment or other obligation hereunder and shall have been paid in full all principal, interest and other amounts owing to it or
accrued for the its account under this Agreement, and (y) enter into amendments or modifications to this Agreement (including,
without limitation, amendments to this Section 11.2) or any of the other Loan Documents or to enter into additional Loan
Documents as the Administrative Agent reasonably deems appropriate in order to effectuate the terms of Sections 3.13, 3.15
and 3.16 (including, without limitation, as applicable, (1) to permit the Incremental Term Loans, Extended Term Loans or
Refinancing Term Loans, as applicable, to share ratably in the benefits of this Agreement and the other Loan Documents, and (2) to
include the Incremental Term Loan Commitments or outstanding Incremental Term Loans, Extended Term Loans or Refinancing Term Loans,
as applicable, in any determination of (i) Required Lenders or (ii) similar required lender terms applicable thereto; provided
that no amendment or modification shall result in any increase in the amount of any Lender’s Term Loan Commitment or any
increase in any Lender’s pro rata share of any Class, in each case, without the written consent of such affected
Lender, and (3) to make amendments to any outstanding Class of Term Loans to permit any Incremental Term Loan Commitments and
Incremental Term Loans to be “fungible” (including, without limitation, for purposes of the Code) with such Class of
Term Loans, including, without limitation, increases in the Applicable Margin or any fees payable to such outstanding tranche of
Term Loans or providing such outstanding Class of Term Loans with the benefit of any call protection or covenants that are
applicable to the proposed Incremental Term Loan Commitments or Incremental Term Loans; provided that any such amendments or
modifications to such outstanding Class of Term Loans shall not directly adversely affect the Lenders holding such Class of Term
Loans without their consent.
It shall be a
condition precedent to the Borrower entering into any amendment to, or other agreement or modification with has the effect of changing,
any of Section 7.12, Section 8.4(a), Section 9.7, the final paragraph of Section 11.1(a), this final paragraph
of this Section 11.2 or Section 11.25 of this Agreement or Section 8.01 of the Collateral Agreement, or any other provision
of this Agreement, the Collateral Agreement, or any other Loan Document which relates to such sections, that the Borrower shall have obtained
the prior written approval of Fannie Mae, and the Administrative Agent and the Lenders hereby acknowledge (without acceptance of any responsibility
or liability in connection with such acknowledgement) such condition precedent to the Borrower’s right to amend.
SECTION 11.3 Expenses; Indemnity; Limitation of Liability.
(a) Costs
and Expenses. The Borrower and any other Credit Party, jointly and severally, shall pay (i) all reasonable out of pocket fees,
expenses and disbursements incurred by the Administrative Agent, the Arranger and their respective Affiliates (including the
reasonable fees, charges and disbursements of one firm of counsel for the Administrative Agent and the Arranger and, if reasonably
necessary, one firm of counsel in any relevant jurisdiction and special counsel in each appropriate specialty for the Administrative
Agent and the Arranger), in connection with the syndication of the Term Loan Facility, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated) and (ii) all
reasonable out of pocket expenses incurred by the Administrative Agent or any Lender (including the fees, charges and disbursements
of (x) any counsel for the Administrative Agent or any Lender and (y) any counsel for the Lenders, which solely in the case of this
clause (y) and absent an actual or perceived conflict of interest shall be limited to one primary counsel to the Lenders plus
one local counsel to the Lenders in each relevant jurisdiction and one special counsel in each appropriate specialty and in the case
of an actual or perceived conflict of interest by any of the aforementioned counsel, one additional such counsel to each group of
affected Lenders, similarly situated), in connection with the enforcement or protection of its rights (A) in connection with this
Agreement and the other Loan Documents, including its rights under this Section 11.3, or (B) in connection with the Term
Loans made hereunder, including all such out of pocket expenses incurred during any workout, restructuring or negotiations in
respect of such Term Loans.
(b) Indemnification
by the Borrower. The Borrower shall indemnify the Administrative Agent (and any sub-agent or attorney-in-fact thereof), the Arranger,
each Lender and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, and shall pay or reimburse any such Indemnitee for, any and all losses, claims (including,
without limitation, any Environmental Claims), penalties, damages, liabilities and related expenses (including the reasonable fees, charges
and disbursements of any counsel for any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any Person (including
the Borrower or any other Credit Party), other than such Indemnitee and its Related Parties, arising out of, in connection with, or as
a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby
or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the
transactions contemplated hereby or thereby (including, without limitation, the Transactions), (ii) any Term Loan or the use or proposed
use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or
operated by any Credit Party or any Subsidiary thereof, or any Environmental Claim related in any way to any Credit Party or any Subsidiary,
(iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract,
tort or any other theory, whether brought by a third party or by any Credit Party or any Subsidiary thereof, and regardless of whether
any Indemnitee is a party thereto, or (v) any claim (including, without limitation, any Environmental Claims), investigation, litigation
or other proceeding (whether or not the Administrative Agent or any Lender is a party thereto) and the prosecution and defense thereof,
arising out of or in any way connected with the Term Loans, this Agreement, any other Loan Document, or any documents contemplated by
or referred to herein or therein or the transactions contemplated hereby or thereby, including without limitation, reasonable attorneys
and consultant’s fees, provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses (A) are determined by a court of competent jurisdiction by final and non-appealable
judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (B) result from a claim brought by any
Credit Party or any Subsidiary thereof against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder
or under any other Loan Document, if such Credit Party or such Subsidiary has obtained a final and non-appealable judgment in its favor
on such claim as determined by a court of competent jurisdiction. This Section 11.3(b) shall not apply with respect to Taxes other
than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
(c) Reimbursement
by Lenders. To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under clause (a) or (b)
of this Section 11.3 to be paid by it to the Administrative Agent (or any sub-agent or attorney-in-fact thereof) or any Related
Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent) or such Related
Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense
or indemnity payment is sought based on each Lender’s share of the Term Loans at such time, or if the Term Loans have been reduced
to zero, then based on such Lender’s share of the Term Loans immediately prior to such reduction) of such unpaid amount (including
any such unpaid amount in respect of a claim asserted by such Lender). The obligations of the Lenders under this clause (c) are subject
to the provisions of Section 3.7.
(d) Limitation
on Liability. To the fullest extent permitted by Applicable Law, the Borrower and each other Credit Party shall not assert, and hereby
waives, any claim against the Administrative Agent (and any sub-agent or attorney-in-fact thereof), the Arranger, each Lender and each
Related Party of any of the foregoing Persons (each such Person being called a “Lender-Related Party”), on any theory
of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection
with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions
contemplated hereby or thereby, any Term Loan or the use of the proceeds thereof. No Lender-Related Party referred to in clause (b) above
shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it
through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan
Documents or the transactions contemplated hereby or thereby.
(e) Payments.
All amounts due under this Section 11.3 shall be payable promptly after demand therefor.
(f) Survival.
Each party’s obligations under this Section 11.3 shall survive the termination of the Loan Documents and payment of the
obligations hereunder.
SECTION 11.4 Right of
Setoff. If an Event of Default shall have occurred and be continuing, each Lender and each of its respective Affiliates is
hereby authorized at any time and from time to time, to the fullest extent permitted by Applicable Law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations
(in whatever currency) at any time owing by such Lender or any such Affiliate to or for the credit or the account of the Borrower or
any other Credit Party against any and all of the obligations of the Borrower or such Credit Party now or hereafter existing under
this Agreement or any other Loan Document to such Lender or any of its respective Affiliates, irrespective of whether or not such
Lender or any such Affiliate shall have made any demand under this Agreement or any other Loan Document and although such
obligations of the Borrower or such Credit Party may be contingent or unmatured or are owed to a branch or office of such Lender or
such Affiliate different from the branch, office or Affiliate holding such deposit or obligated on such indebtedness; provided
that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over
immediately to the Administrative Agent for further application in accordance with the provisions of Section 9.4 and, pending
such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the
Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement
describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The
rights of each Lender and its respective Affiliates under this Section 11.4 are in addition to other rights and remedies
(including other rights of setoff) that such Lender or their respective Affiliates may have. Each Lender agrees to notify the
Borrower and the Administrative Agent promptly after any such setoff and application; provided that the failure to give such
notice shall not affect the validity of such setoff and application.
SECTION 11.5 Governing Law; Jurisdiction, Etc.
(a) Governing
Law. This Agreement and the other Loan Documents and any claim, controversy, dispute or cause of action (whether in contract
or tort or otherwise) based upon, arising out of or relating to this Agreement or any other Loan Document (except, as to any other
Loan Document, as expressly set forth therein) and the transactions contemplated hereby and thereby shall be governed by, and
construed in accordance with, the law of the State of New York.
(b) Submission
to Jurisdiction. The Borrower and each other Credit Party irrevocably and unconditionally agrees that it will not commence any
action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or in tort or otherwise,
against the Administrative Agent, any Lender or any Related Party of the foregoing in any way relating to this Agreement or any
other Loan Document or the transactions relating hereto or thereto, in any forum other than the courts of the State of New York
sitting in New York County, and of the United States District Court of the Southern District of New York, and any appellate court
from any thereof, and each of the parties hereto irrevocably and unconditionally submits to the jurisdiction of such courts and
agrees that all claims in respect of any such action, litigation or proceeding may be heard and determined in such New York State
court or, to the fullest extent permitted by Applicable Law, in such federal court. Each of the parties hereto agrees that a final
judgment in any such action, litigation or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement or in any other Loan Document shall affect any right that
the Administrative Agent or any Lender may otherwise have to bring any action or proceeding relating to this Agreement or any other
Loan Document against the Borrower or any other Credit Party or its properties in the courts of any jurisdiction.
(c) Waiver
of Venue. The Borrower and each other Credit Party irrevocably and unconditionally waives, to the fullest extent permitted by
Applicable Law, any objection that it may now or hereafter have to the laying of venue of any action or proceeding arising out of or
relating to this Agreement or any other Loan Document in any court referred to in paragraph (b) of this Section 11.5. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted by Applicable Law, the defense of an inconvenient forum
to the maintenance of such action or proceeding in any such court.
(d) Service
of Process. Each party hereto irrevocably consents to service of process in the manner provided for notices in Section 11.1.
Nothing in this Agreement will affect the right of any party hereto to serve process in any other manner permitted by Applicable Law.
SECTION 11.6 Waiver of Jury
Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO
A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER
PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 11.6.
SECTION 11.7 Reversal of
Payments. To the extent any Credit Party makes a payment or payments to the Administrative Agent for the ratable benefit of any
of the Secured Parties or to any Secured Party directly or the Administrative Agent or any Secured Party exercises its right of set
off or the Administrative Agent receives any payment or proceeds of the Collateral which payments, set-off amounts or proceeds or
any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to
a trustee, receiver or any other party (including pursuant to any settlement) under any Debtor Relief Law, other Applicable Law or
equitable cause, then, to the extent of such payment or proceeds repaid, the Secured Obligations or part thereof intended to be
satisfied shall be revived and continued in full force and effect as if such payment or proceeds had not been received by the
Administrative Agent or as through such set-off had not been made, as applicable.
SECTION 11.8 Injunctive Relief.
The Borrower recognizes that, in the event the Borrower fails to perform, observe or discharge any of its obligations or liabilities
under this Agreement, any remedy of law may prove to be inadequate relief to the Lenders. Therefore, the Borrower agrees that the
Lenders, at the Lenders’ option, shall be entitled to temporary and permanent injunctive relief in any such case without the
necessity of proving actual damages.
SECTION 11.9 Successors and Assigns; Participations.
(a) Successors
and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns permitted hereby, except that neither the Borrower nor any other Credit Party may assign or
otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each
Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in
accordance with the provisions of paragraph (b) of this Section 11.9, (ii) by way of participation in accordance with the
provisions of paragraph (d) of this Section 11.9 or (iii) by way of pledge or assignment of a security interest subject to
the restrictions of paragraph (e) of this Section 11.9 (and any other attempted assignment or transfer by any party hereto
shall be prohibited). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in paragraph (d) of
this Section 11.9 and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent
and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments
by Lenders. Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Term Loans at the time owing to it); provided that any such assignment shall be subject
to the following conditions:
(i) Minimum Amounts.
(A) in
the case of an assignment of the entire remaining amount of the assigning Lender’s Term Loan Commitment and/or the Term Loans at
the time owing to it (in each case with respect to any Class) or contemporaneous assignments to related Approved Funds that equal at
least the amount specified in paragraph (b)(i)(B) of this Section 11.9 in the aggregate or in the case of an assignment to a Lender,
an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and
(B) in
any case not described in paragraph (b)(i)(A) of this Section 11.9, the aggregate amount of the Term Loan Commitment (which
for this purpose includes Term Loans outstanding thereunder) or, if the applicable Term Loan Commitment is not then in effect, the
principal outstanding balance of the Term Loans of the assigning Lender subject to each such assignment (determined as of the date
the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if a “Trade
Date” is specified in the Assignment and Assumption, as of the Trade Date) shall not be less than $1,000,000, unless each of
the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consents (each
such consent not to be unreasonably withheld or delayed); provided that the Borrower shall be deemed to have given its
consent five (5) Business Days after the date written notice thereof has been delivered by the assigning Lender (through the
Administrative Agent) unless such consent is expressly refused by the Borrower prior to such fifth (5th) Business Day.
(ii) Proportionate
Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights
and obligations under this Agreement with respect to the Class assigned, except that this clause (ii) shall not prohibit any Lender from
assigning all or a portion of its rights and obligations among separate classes on a non-pro rata basis.
(iii) Required
Consents. No consent shall be required for any assignment except to the extent required by paragraph (b)(i)(B) of this Section
11.9 and, in addition:
(A) the
consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (x) an Event of Default has
occurred and is continuing at the time of such assignment, (y) such assignment is to a Lender, an Affiliate of a Lender or an Approved
Fund or (z) the assignment is made in connection with the primary syndication of the Term Loan Facility and during the period commencing
on the Closing Date and ending on the date that is ninety (90) days following the Closing Date; provided, that the Borrower shall
be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within
5 Business Days after having received notice thereof; and
(B) the
consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments to a
Person who is not a Lender.
(iv) Assignment
and Assumption. The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and
Assumption, together with a processing and recordation fee of $3,500 for each assignment; provided that (A) only one such fee
will be payable in connection with simultaneous assignments to two or more related Approved Funds by a Lender and (B) the
Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment.
The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.
(v) No
Assignment to Certain Persons. No such assignment shall be made to (A) the Borrower or any of its Subsidiaries or Affiliates
(other than pursuant to Section 11.9(g)) or (B) any Defaulting Lender or any of its Subsidiaries, or any Person who, upon
becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B).
(vi) No
Assignment to Natural Persons. No such assignment shall be made to a natural Person (or a holding company, investment vehicle or
trust for, or owned and operated for the primary benefit of, a natural Person).
(vii) Certain
Additional Payments. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment
shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall
make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate
(which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including
funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Term Loans previously
requested, but not funded by, the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent),
to (A) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent and each other
Lender hereunder (and interest accrued thereon), and (B) acquire (and fund as appropriate) its full pro rata share of all Term
Loans. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall
become effective under Applicable Law without compliance with the provisions of this paragraph (vii), then the assignee of such interest
shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Subject to acceptance
and recording thereof by the Administrative Agent pursuant to paragraph (c) of
this Section 11.9, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder
shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights
and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned
by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a
party hereto) but shall continue to be entitled to the benefits of Sections 3.8, 3.9, 3.10, 3.11 and 11.3
with respect to facts and circumstances occurring prior to the effective date of such assignment; provided, that except to
the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or
release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph
(d) of this Section 11.9 (other than a purported assignment to a natural Person or the Borrower or any of the
Borrower’s Subsidiaries or Affiliates (except as permitted pursuant to Section 11.9(g)), which shall be null and
void).
(c) Register.
The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its
offices in New York, New York, a copy of each Assignment and Assumption and each Lender Joinder Agreement delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the Term Loan Commitment of, and principal amounts of
(and related interest on) the Term Loans owing to, each Lender pursuant to the terms hereof from time to time (the
“Register”). The entries in the Register shall be conclusive, absent manifest error, and the Borrower, the
Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as
a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(d) Participations.
Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to
any Person (other than a natural Person (or a holding company, investment vehicle or trust for, or owned and operated for the
primary benefit of, a natural Person) or the Borrower or any of the Borrower’s Subsidiaries or Affiliates) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement
(including all or a portion of its Term Loan Commitment and/or the Term Loans owing to it); provided that (i) such
Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent and the other Lenders
shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this
Agreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 11.3(c) with respect
to any payments made by such Lender to its Participant(s).
Any
agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided
that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver or modification described in Section 11.2(a), (b), (c) or (d) that
directly and adversely affects such Participant. The Borrower agrees that each Participant shall be entitled to the benefits of Sections
3.9, 3.10 and 3.11 (subject to the requirements and limitations therein, including the requirements under Section
3.11(g) (it being understood that the documentation required under Section 3.11(g) shall be delivered solely to the
participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph
(b) of this Section 11.9; provided that such Participant (A) shall be subject to the provisions of Section 3.12
as if it were an assignee under paragraph (b) of this Section 11.9; and (B) shall not be entitled to receive any greater
payment under Sections 3.10 or 3.11, with respect to any participation, than its participating Lender would have been
entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs
after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrower's
request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 3.12(b)
with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section
11.4 as though it were a Lender; provided that such Participant agrees to be subject to Section 3.6 as though it
were a Lender.
Each Lender
that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which
it enters the name and address of each Participant and the principal amounts of (and related interest on) each Participant’s interest
in the Term Loans or other obligations under the Loan Documents (the “Participant Register”); provided that
no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant
or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under
any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other
obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register
shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register
as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of
doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(e) Certain
Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement
to secure obligations of such Lender, including without limitation any pledge or assignment to secure obligations to a Federal Reserve
Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute
any such pledgee or assignee for such Lender as a party hereto.
(f) Cashless
Settlement. Notwithstanding anything to the contrary contained in this Agreement, any Lender may exchange, continue or rollover
all or a portion of its Term Loans in connection with any refinancing, extension, loan modification or similar transaction permitted
by the terms of this Agreement, pursuant to a cashless settlement mechanism approved by the Borrower, the Administrative Agent and such
Lender.
(g) Borrower
Buybacks. Notwithstanding anything in this Agreement to the contrary, any Lender may, at any time, assign all or a portion of its
Term Loans on a non-pro rata basis to the Borrower or any of its Subsidiaries (x) in accordance with the procedures set forth
on Exhibit H, pursuant to an offer made available to all Lenders of the applicable Class of Term Loans on a pro rata basis
(a “Dutch Auction”) or (y) open market purchases, in each case, subject to the following limitations:
(i) the
Borrower shall represent and warrant, as of the date of the launch of the Dutch Auction and on the date of any such assignment, that
neither it, its Affiliates nor any of its respective directors or executive officers has any Excluded Information that has not been disclosed
to the Lenders generally (other than to the extent any such Lender does not wish to receive material non-public information with respect
to the Borrower or its Subsidiaries or any of their respective securities) prior to such date;
(ii) immediately
and automatically, without any further action on the part of the Borrower, any Lender, the Administrative Agent or any other Person,
upon the effectiveness of such assignment of Term Loans from a Lender to the Borrower or any of its Subsidiaries, such Term Loans
and all rights and obligations as a Lender related thereto shall, for all purposes under this Agreement, the other Loan Documents
and otherwise, be deemed to be irrevocably prepaid, terminated, extinguished, cancelled and of no further force and effect and the
Borrower or any of its Subsidiaries shall neither obtain nor have any rights as a Lender hereunder or under the other Loan Documents
by virtue of such assignment;
(iii) no Lender shall be required to assign its Term Loans to the Borrower or any of its Subsidiaries; and
(iv) no
Default or Event of Default shall have occurred and be continuing before or immediately after giving effect to such assignment.
SECTION
11.10 Treatment of Certain Information; Confidentiality. Each
of the Administrative Agent and the Lenders agree to maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its Affiliates and to its Related Parties (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent required or requested by, or required to be disclosed to, any regulatory or similar authority
purporting to have jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the
National Association of Insurance Commissioners), (c) to the extent required by Applicable Laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies under this Agreement,
under any other Loan Document or under any Secured Hedge Agreement or Secured Cash Management Agreement, or any action or proceeding
relating to this Agreement, any other Loan Document or any Secured Hedge Agreement or Secured Cash Management Agreement, or the
enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of
this Section 11.10, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its
rights and obligations under this Agreement, (ii) any actual or prospective party (or its Related Parties) to any swap, derivative
or other transaction under which payments are to be made by reference to the Borrower and its obligations, this Agreement or
payments hereunder, (iii) an investor or prospective investor in an Approved Fund that also agrees that Information shall be used
solely for the purpose of evaluating an investment in such Approved Fund, (iv) a trustee, collateral manager, servicer, backup
servicer, noteholder or secured party in an Approved Fund in connection with the administration, servicing and reporting on the
assets serving as collateral for an Approved Fund, or (v) a nationally recognized rating agency that requires access to information
regarding the Borrower and its Subsidiaries, the Term Loans and the Loan Documents in connection with ratings issued with respect to
an Approved Fund, (g) on a confidential basis to (i) any rating agency in connection with rating the Borrower or its Subsidiaries or
the Term Loan Facility or (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of
CUSIP numbers with respect to the Term Loan Facility, (h) with the consent of the Borrower, (i) deal terms and other information
customarily reported to Thomson Reuters, other bank market data collectors and similar service providers to the lending industry and
service providers to the Administrative Agent and the Lenders in connection with the administration of the Loan Documents, (j) to
the extent such Information (i) becomes publicly available other than as a result of a breach of this Section
11.10 or (ii) becomes available to the Administrative Agent, any Lender or any of their respective Affiliates from a
third party that is not, to such Person’s knowledge, subject to confidentiality obligations to the Borrower, (k) to
governmental regulatory authorities in connection with any regulatory examination of the Administrative Agent or any Lender or in
accordance with the Administrative Agent’s or any Lender’s regulatory compliance policy if the Administrative Agent or
such Lender deems necessary for the mitigation of claims by those authorities against the Administrative Agent or such Lender or any
of its subsidiaries or affiliates, (l) to the extent that such information is independently developed by such Person, or (m) for
purposes of establishing a “due diligence” defense. For purposes of this Section 11.10,
“Information” means all information received from any Credit Party or any Subsidiary thereof relating to any
Credit Party or any Subsidiary thereof or any of their respective businesses, other than any such information that is available to
the Administrative Agent, any Lender on a non-confidential basis prior to disclosure by any Credit Party or any Subsidiary thereof; provided
that, in the case of information received from a Credit Party or any Subsidiary thereof after the date hereof, such information is
clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as
provided in this Section 11.10 shall be considered to have complied with its obligation to do so if such Person has exercised
the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential
information.
SECTION 11.11 Performance of
Duties. Each of the Credit Party’s obligations under this Agreement and each of the other Loan Documents shall be
performed by such Credit Party at its sole cost and expense.
SECTION
11.12 All Powers Coupled with Interest. All powers of attorney and other authorizations granted to the Lenders, the Administrative
Agent and any Persons designated by the Administrative Agent or any Lender pursuant to any provisions of this Agreement or any of the
other Loan Documents shall be deemed coupled with an interest and shall be irrevocable so long as any of the Obligations remain unpaid
or unsatisfied, any of the Term Loan Commitments remain in effect or the Term Loan Facility has not been terminated.
SECTION 11.13 Survival.
(a) All
representations and warranties set forth in Articles V and VIII and all representations and warranties contained in any
certificate, or any of the Loan Documents (including, but not limited to, any such representation or warranty made in or in connection
with any amendment thereto) shall constitute representations and warranties made under this Agreement. All representations and warranties
made under this Agreement shall be made or deemed to be made at and as of the Closing Date (except those that are expressly made as of
a specific date), shall survive the Closing Date and shall not be waived by the execution and delivery of this Agreement, any investigation
made by or on behalf of the Lenders or any borrowing hereunder.
(b) Notwithstanding
any termination of this Agreement, the indemnities to which the Administrative Agent and the Lenders are entitled under the provisions
of this Article XI and any other provision of this Agreement and the other Loan Documents shall continue in full force and effect
and shall protect the Administrative Agent and the Lenders against events arising after such termination as well as before.
SECTION
11.14 Titles and Captions. Titles and captions of Articles, Sections and subsections in, and the table of contents of, this
Agreement are for convenience only, and neither limit nor amplify the provisions of this Agreement.
SECTION 11.15 Severability of
Provisions. Any provision of this Agreement or any other Loan Document which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective only to the extent of such prohibition or unenforceability without invalidating the
remainder of such provision or the remaining provisions hereof or thereof or affecting the validity or enforceability of such
provision in any other jurisdiction. In the event that any provision is held to be so prohibited or unenforceable in any
jurisdiction, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such provision to
preserve the original intent thereof in such jurisdiction (subject to the approval of the Required Lenders).
SECTION
11.16 Counterparts; Integration; Effectiveness; Electronic Execution.
(a) Counterparts;
Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts),
each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement and
the other Loan Documents, and any separate letter agreements with respect to fees payable to the Administrative Agent and/or the Arranger,
constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements
and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 4.1, this Agreement
shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received
counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by facsimile or in electronic (i.e., “pdf” or “tif”) format shall be effective
as delivery of a manually executed counterpart of this Agreement.
(b) Electronic
Execution. Delivery of an executed counterpart of a signature page of (x) this Agreement, (y) any other Loan Document and/or (z)
any document, amendment, approval, consent, information, notice (including, for the avoidance of doubt, any notice delivered
pursuant to Section 11.1), certificate, request, statement, disclosure or authorization related to this Agreement, any other
Loan Document and/or the transactions contemplated hereby and/or thereby (each an “Ancillary Document”) that is
an Electronic Signature transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual
executed signature page shall be effective as delivery of a manually executed counterpart of this Agreement, such other Loan
Document or such Ancillary Document, as applicable. The words “execution,” “signed,”
“signature,” “delivery,” and words of like import in or relating to this Agreement, any other Loan Document
and/or any Ancillary Document shall be deemed to include Electronic Signatures, deliveries or the keeping of records in any
electronic form (including deliveries by telecopy, emailed .pdf or any other electronic means that reproduces an image of an actual
executed signature page), each of which shall be of the same legal effect, validity or enforceability as a manually executed
signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be; provided that
nothing herein shall require the Administrative Agent to accept Electronic Signatures in any form or format without its prior
written consent and pursuant to procedures approved by it; provided, further, without limiting the foregoing, (i) to
the extent the Administrative Agent has agreed to accept any Electronic Signature, the Administrative Agent and each of the Lenders
shall be entitled to rely on such Electronic Signature purportedly given by or on behalf of the Borrower or any other Credit Party
without further verification thereof and without any obligation to review the appearance or form of any such Electronic signature
and (ii) upon the request of the Administrative Agent or any Lender, any Electronic Signature shall be promptly followed by a
manually executed counterpart. Without limiting the generality of the foregoing, the Borrower and each other Credit Party hereby (A)
agrees that, for all purposes, including without limitation, in connection with any workout, restructuring, enforcement of remedies,
bankruptcy proceedings or litigation among the Administrative Agent, the Lenders, the Borrower and the other Credit Parties,
Electronic Signatures transmitted by telecopy, emailed .pdf or any other electronic means that reproduces an image of an actual
executed signature page and/or any electronic images of this Agreement, any other Loan Document and/or any Ancillary Document shall
have the same legal effect, validity and enforceability as any paper original, (B)
the Administrative Agent and each of the Lenders may, at its option, create one or more copies of this Agreement, any other Loan
Document and/or any Ancillary Document in the form of an imaged electronic record in any format, which shall be deemed created in
the ordinary course of such Person’s business, and destroy the original paper document (and all such electronic records shall
be considered an original for all purposes and shall have the same legal effect, validity and enforceability as a paper record), (C)
waives any argument, defense or right to contest the legal effect, validity or enforceability of this Agreement, any other Loan
Document and/or any Ancillary Document based solely on the lack of paper original copies of this Agreement, such other Loan Document
and/or such Ancillary Document, respectively, including with respect to any signature pages thereto and (D) waives any claim against
any Related Party of any Lender for any liabilities arising solely from the Administrative Agent’s and/or any Lender’s
reliance on or use of Electronic Signatures and/or transmissions by telecopy, emailed pdf. or any other electronic means that
reproduces an image of an actual executed signature page, including any liabilities arising as a result of the failure of the
Borrower and/or any other Credit Party to use any available security measures in connection with the execution, delivery or
transmission of any Electronic Signature.
SECTION 11.17 Term of Agreement.
This Agreement shall remain in effect from the Closing Date through and including the date upon which all Obligations (other than
contingent indemnification obligations not then due) arising hereunder or under any other Loan Document shall have been indefeasibly
and irrevocably paid and satisfied in full and the Term Loan Commitments have been terminated. No termination of this Agreement
shall affect the rights and obligations of the parties hereto arising prior to such termination or in respect of any provision of
this Agreement which survives such termination.
SECTION 11.18 USA PATRIOT Act;
Anti-Money Laundering Laws. The Administrative Agent and each Lender hereby notifies the Borrower that pursuant to the
requirements of the PATRIOT Act or any other Anti-Money Laundering Laws, each of them is required to obtain, verify and record
information that identifies each Credit Party, which information includes the name and address of each Credit Party and other
information that will allow such Lender to identify each Credit Party in accordance with the PATRIOT Act or such Anti-Money
Laundering Laws.
SECTION 11.19 Independent Effect of
Covenants. The Borrower expressly acknowledges and agrees that each covenant contained in Article VI, VII or VIII
hereof shall be given independent effect. Accordingly, the Borrower shall not engage in any transaction or other act otherwise
permitted under any covenant contained in Article VI, VII or VIII, before or after giving effect to such
transaction or act, the Borrower shall or would be in breach of any other covenant contained in Article VI, VII or VIII.
SECTION
11.20 Inconsistencies with Other Documents. In the event there is a conflict or inconsistency between this Agreement and any other
Loan Document, the terms of this Agreement shall control; provided that any provision of the Security Documents which imposes
additional burdens on the Borrower or any of its Subsidiaries or further restricts the rights of the Borrower or any of its Subsidiaries
or gives the Administrative Agent or Lenders additional rights shall not be deemed to be in conflict or inconsistent with this Agreement
and shall be given full force and effect.
SECTION 11.21 No Advisory or Fiduciary Responsibility.
(a) In
connection with all aspects of each transaction contemplated hereby, each Credit Party acknowledges and agrees, and acknowledges its
Affiliates’ understanding, that (i) the facilities provided for hereunder and any related arranging or other services in connection
therewith (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document) are an arm’s-length
commercial transaction between the Borrower and its Affiliates, on the one hand, and the Administrative Agent, the Arranger and the Lenders,
on the other hand, and the Borrower is capable of evaluating and understanding and understands and accepts the terms, risks and conditions
of the transactions contemplated hereby and by the other Loan Documents (including any amendment, waiver or other modification hereof
or thereof), (ii) in connection with the process leading to such transaction, each of the Administrative Agent, the Arranger and the
Lenders is and has been acting solely as a principal and is not the financial advisor, agent or fiduciary, for the Borrower or any of
its Affiliates, stockholders, creditors or employees or any other Person, (iii) none of the Administrative Agent, the Arranger or the
Lenders has assumed or will assume an advisory, agency or fiduciary responsibility in favor of the Borrower with respect to any of the
transactions contemplated hereby or the process leading thereto, including with respect to any amendment, waiver or other modification
hereof or of any other Loan Document (irrespective of whether the Arranger or any Lender has advised or is currently advising the Borrower
or any of its Affiliates on other matters) and none of the Administrative Agent, the Arranger or the Lenders has any obligation to the
Borrower or any of its Affiliates with respect to the financing transactions contemplated hereby except those obligations expressly set
forth herein and in the other Loan Documents, (iv) the Arranger and the Lenders and their respective Affiliates may be engaged in a broad
range of transactions that involve interests that differ from, and may conflict with, those of the Borrower and its Affiliates, and none
of the Administrative Agent, the Arranger or the Lenders has any obligation to disclose any of such interests by virtue of any advisory,
agency or fiduciary relationship and (v) the Administrative
Agent, the Arranger and the Lenders have not provided and will not provide any legal, accounting, regulatory or tax advice with respect
to any of the transactions contemplated hereby (including any amendment, waiver or other modification hereof or of any other Loan Document)
and the Credit Parties have consulted their own legal, accounting, regulatory and tax advisors to the extent they have deemed appropriate.
(b) Each
Credit Party acknowledges and agrees that each Lender, the Arranger and any Affiliate thereof may lend money to, invest in, and
generally engage in any kind of business with, any of the Borrower, any Affiliate thereof or any other person or entity that may do
business with or own securities of any of the foregoing, all as if such Lender, Arranger or Affiliate thereof were not a Lender or
Arranger or an Affiliate thereof (or an agent or any other person with any similar role under the Term Loan Facility) and without
any duty to account therefor to any other Lender, the Arranger, the Borrower or any Affiliate of the foregoing. Each Lender, the
Arranger and any Affiliate thereof may accept fees and other consideration from the Borrower or any Affiliate thereof for services
in connection with this Agreement, the Term Loan Facility or otherwise without having to account for the same to any other Lender,
Arranger, the Borrower or any Affiliate of the foregoing.
SECTION 11.22 Acknowledgement and
Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other
agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA
Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the Write-Down
and Conversion Powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and
(b) the effects of any Bail-in Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii) the
variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of any EEA
Resolution Authority.
SECTION 11.23 Certain ERISA Matters.
(a) Each
Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date
such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the
Administrative Agent and the Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of
the Borrower or any other Credit Party, that at least one of the following is and will be true:
(i) such
Lender is not using “plan assets” (within the meaning of the Plan Asset Regulations) of one or more Benefit Plans in connection
with the Term Loans, or the Term Loan Commitments,
(ii) the
transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by
independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance
company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate
accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class
exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s
entrance into, participation in, administration of and performance of the Term Loans, the Term Loan Commitments and this
Agreement,
(iii) (A)
such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of
PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into,
participate in, administer and perform the Term Loans, the Term Loan Commitments and this Agreement, (C) the
entrance into, participation in, administration of and performance of the Term Loans, the Term Loan Commitments and this Agreement
satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the
requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation
in, administration of and performance of the Term Loans, the Term Loan Commitments and this Agreement, or
(iv) such
other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion,
and such Lender.
(b) In
addition, unless sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or such Lender has provided
another representation, warranty and covenant as provided in sub-clause (iv) in the immediately preceding clause (a), such Lender
further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date
such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the
Administrative Agent, and the Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit
of the Borrower or any other Credit Party, that none of the Administrative Agent or the Arranger or any of their respective
Affiliates is a fiduciary with respect to the Collateral or the assets of such Lender (including in connection with the reservation
or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related to hereto or
thereto).
(c) The
Administrative Agent and the Arranger hereby inform the Lenders that each such Person is not undertaking to provide investment advice
or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial
interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments
with respect to the Term Loans, the Term Loan Commitments, this Agreement and any other Loan Documents (ii) may recognize a gain if it
extended the Term Loans or the Term Loan Commitments for an amount less than the amount being paid for an interest in the Term Loans
or the Term Loan Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated
hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees,
underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter
of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s
acceptance fees, breakage or other early termination fees or fees similar to the foregoing.
SECTION 11.24 Acknowledgement
Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for Swap
Obligations or any other agreement or instrument that is a QFC (such support “QFC Credit Support” and each such
QFC a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the
Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and
Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution
Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding
that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of
the United States or any other state of the United States):
In the event
a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a
U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation
in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit
Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution
Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the
laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes
subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to
such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater
extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents
were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood
and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered
Party with respect to a Supported QFC or any QFC Credit Support.
SECTION
11.25 Limitation of Fannie Mae’s Agency Consent. The parties hereto acknowledge that Fannie Mae’s Agency
Consent is not and shall not extend to, be deemed to be or be construed as, Fannie Mae’s consent, approval, or acknowledgment
to any amendment, waiver, modification or other alteration to any of Section 7.12, Section 8.4(a), Section 9.7,
the final paragraph of Section 11.1(a), the final paragraph of Section 11.2 or this Section 11.25 of this
Agreement, or Section 8.01 of the Collateral Agreement, or any other provision of this Agreement, the Collateral Agreement, or any
other Loan Document which references or relates to such sections, or relates to or refers to Fannie Mae, the Fannie Mae Agreements,
the Fannie Mae Program, or any right, obligation or other interest of Credit Party under any Fannie Mae Agreements, which amendments
or modifications shall be subject to the restrictions contained herein (including without limitation set forth in the final
paragraph of Section 11.2) and the terms of the Fannie Mae Agreements.
SECTION
11.26 Pari Passu Intercreditor Agreement. Notwithstanding anything to the contrary set forth herein, to the extent the Administrative
Agent enters into a Pari Passu Intercreditor Agreement in accordance with the terms hereof, this Agreement will be subject to the terms
and provisions of such Pari Passu Intercreditor Agreement. In the event of any inconsistency between the provisions of this Agreement
and any such Pari Passu Intercreditor Agreement, the provisions of the Pari Passu Intercreditor Agreement shall govern and control. The
Lenders acknowledge and agree that the Administrative Agent is authorized to, and the Administrative Agent agrees that with respect to
any applicable Incremental Equivalent Debt permitted to be incurred and secured under this Agreement and contemplated to be subject to
a Pari Passu Intercreditor Agreement under this Agreement, upon request by the Borrower, it shall, enter into a Pari Passu Intercreditor
Agreement in accordance with the terms hereof. The Lenders hereby authorize the Administrative Agent to (a) enter into any such Pari
Passu Intercreditor Agreement, (b) bind the Lenders on the terms set forth in such Pari Passu Intercreditor Agreement and (c) perform
and observe its obligations under such Pari Passu Intercreditor agreement.
[Signature pages to
followintentionally omitted]
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Grafico Azioni Walker & Dunlop (NYSE:WD)
Storico
Da Ago 2024 a Set 2024
Grafico Azioni Walker & Dunlop (NYSE:WD)
Storico
Da Set 2023 a Set 2024