WD Walker & Dunlop Inc

 

 

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): March 14, 2025

 

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.)

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class	Trading Symbol	Name of each exchange on which registered
Common Stock, $0.01 Par Value Per Share	WD	New York Stock Exchange

  

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))

 

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.

 

Issuance of Senior Unsecured Notes

 

General

 

On March 14, 2025, Walker & Dunlop, Inc. (the “Company”) completed its previously announced offering of $400 million aggregate principal amount of senior unsecured notes due 2033 (the “Notes”). The Notes were issued pursuant to an indenture, dated as of March 14, 2025 (the “Indenture”), among the Company, the Guarantors (as defined below) and U.S. Bank Trust Company, National Association, as trustee.

 

The Notes bear interest at a fixed rate of 6.625% per annum, accruing from March 14, 2025. Interest is payable semiannually in arrears on April 1 and October 1 of each year, commencing on October 1, 2025. The Notes mature on April 1, 2033. The Notes are guaranteed on a senior unsecured basis by the Guarantors.

 

The Company used the proceeds of the Notes offering, together with the Term Loan (as defined below) proceeds to refinance and reduce the Prior Term Loan (as defined below) and for general corporate purposes.

 

Redemption

 

The Company may redeem some or all of the Notes at its option prior to April 1, 2028, at a redemption price equal to 100% of the principal amount of the Notes redeemed, plus a “make-whole” premium described in the Indenture, plus accrued and unpaid interest, if any, to, but excluding, the redemption date.

 

At any time prior to April 1, 2028, the Company may also redeem up to 40% of the aggregate principal amount of the Notes with the net cash proceeds from certain public equity offerings of the Company’s common stock at a redemption price equal to 106.625% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest, if any, to, but excluding, the redemption date; provided that (i) at least 60% of the principal amount of all Notes issued under the Indenture remains outstanding immediately after any such redemption, and (ii) the Company makes such redemption not more than 120 days after the consummation of any such equity offering.

 

The Company may redeem the Notes at its option, in whole at any time or in part from time to time, at the following redemption prices: from April 1, 2028 to March 31, 2029, at a redemption price equal to 103.313% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest, if any, to but excluding the redemption date; from April 1, 2029 to March 31, 2030, at a redemption price equal to 101.656% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest, if any, to, but excluding the redemption date; and from April 1, 2030 and thereafter, at a redemption price equal to 100.000% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest, if any, to, but excluding, the redemption date.

 

Certain Covenants

 

The Indenture contains certain covenants that are binding on the Company and certain of its subsidiaries, including, but not limited to, restrictions (subject to certain exceptions, limitations, and qualifications as set forth in the Indenture) on the ability of the Company and certain of its subsidiaries to make certain restricted payments, declare or pay dividends or make related distributions, make investments, incur indebtedness, merge, consolidate or enter into any similar combination, enter into any asset disposition of all or substantially all assets, or liquidate, wind-up or dissolve, to make asset dispositions, enter into certain transactions with affiliates, create liens on their property, make certain guarantees, or enter into sale and leaseback transactions. Additionally, upon the occurrence of a “Change of Control” (as defined in the Indenture), the Company will be required to make an offer to repurchase all of the outstanding notes at a price in cash equal to 101% of the aggregate principal amount of the notes to be redeemed, plus accrued and unpaid interest, if any, to, but excluding, the date of purchase.

 

 

Other Terms

 

The Indenture contains customary events of default (which are in some cases subject to certain exceptions, thresholds, notice requirements and grace periods), including, but not limited to, non-payment of principal or interest or other amounts, failure to make an offer to repurchase upon a “Change of Control” and thereafter accept and pay for any Notes tendered when required, failure to perform or observe covenants, cross-defaults with certain other material indebtedness, voluntary or involuntary bankruptcy proceedings and certain judgments.

 

The Notes were offered only to persons reasonably believed to be qualified institutional buyers in reliance on Rule 144A under the Securities Act of 1933 (as amended, the “Securities Act”), or to non-U.S. investors in reliance on Regulation S under the Securities Act. The Notes were not, and will not be, registered under the Securities Act or any state securities laws and may not be offered or sold in the United States absent registration or an applicable exemption from the registration requirements of the Securities Act and applicable state laws.

 

The foregoing description of the Indenture does not purport to be complete and is qualified in its entirety by reference to the Indenture, which is filed as Exhibit 4.1 to this Current Report on Form 8-K.

 

Amended and Restated Credit Agreement

 

On March 14, 2025, the Company entered into a senior secured amended and restated credit agreement (the “Credit Agreement”) with the lenders referred to therein, JPMorgan Chase Bank, N.A., as administrative agent (the “Agent”), sole lead arranger and bookrunner for the Term Loan (as defined below) and joint lead arranger for the Revolving Credit Facility (as defined below), and Bank of America, N.A., as joint lead arranger for the Revolving Credit Facility (as defined below). The Credit Agreement amends and restates the Company’s $800 million term loan, which was governed by that certain Credit Agreement, dated as of December 16, 2021, by and among the Company, the lenders party thereto, and JPMorgan Chase Bank, N.A., as administrative agent, as amended by Amendment No. 1 dated as of January 12, 2023, and Amendment No. 2 dated as of May 22, 2024 (the “Prior Term Loan”). The Credit Agreement provides for a $450 million term loan (the “Term Loan”) and a $50 million revolving credit facility (the “Revolving Credit Facility”). At any time, the Company may also elect to request the establishment of one or more incremental term loan facilities and/or one or more incremental revolving credit facilities (any such additional loan, an “Incremental Loan”) in an aggregate principal amount for all such Incremental Loans not to exceed the sum of (i) the greater of $325 million and 100% of Consolidated Adjusted EBITDA (as defined in the Credit Agreement) as of the most recent test period under the Credit Agreement ending on or immediately prior to such date plus (ii) the maximum amount of indebtedness that could be incurred at such time that would not cause the Consolidated Net Secured Leverage Ratio (as defined in the Credit Agreement) to exceed 3.00 to 1.00, subject to certain conditions and receipt of commitments by existing or additional lenders.

 

The Company used the Term Loan proceeds, together with the proceeds of the Notes, to refinance and reduce the Prior Term Loan and for general corporate purposes, and will use Revolving Credit Facility proceeds for general corporate purposes and working capital, in each case as permitted by the Credit Agreement.

 

The Company is required to repay the aggregate outstanding principal amount of the Term Loan in consecutive quarterly installments equal to 0.25% of the aggregate principal amount of such Term Loan (subject to certain adjustments for prepayments of the Term Loan) on the last business day of each of March, June, September and December commencing on June 30, 2025. The final principal installment of the Term Loan is required to be paid in full on March 14, 2032 (or, if earlier, the date of acceleration of the Term Loan pursuant to the terms of the Credit Agreement) and will be in an amount equal to the aggregate outstanding principal of the Term Loan on such date (together with all accrued interest thereon). The final outstanding principal amount of the Revolving Credit Loans (as defined in the Credit Agreement) is required to be paid in full on March 14, 2028, together with all accrued but unpaid interest thereon (or, if earlier, the date of acceleration of the Revolving Credit Loans pursuant to the terms of the Credit Agreement).

 

 

At the Company’s election, the Term Loan will bear interest at either (i) the Alternate Base Rate (as defined in the Credit Agreement) plus an interest margin of 1.00% or (ii) a Term SOFR Rate (as defined in the Credit Agreement) plus an interest margin of 2.00%, in each case, with a reduction of 0.25% if the Company’s Consolidated Corporate Leverage Ratio (as defined in the Credit Agreement) is equal to or less than 2.00 to 1.00. The loans under the Revolving Credit Facility will bear interest at a rate equal to, at the Company’s option, either: (A) the Alternate Base Rate plus an interest margin of 0.75%, (B) a Term SOFR Rate plus an interest margin of 1.75%, or (C) Daily Simple SOFR (as defined in the Credit Agreement) plus an interest margin of 1.75%.  The Revolving Credit Facility will be subject to a commitment fee equal to 0.25% per annum of the daily undrawn portion of the commitments thereunder. The Company will also be required to pay customary letter of credit and agency fees under the Credit Agreement.

 

The obligations of the Company under the Credit Agreement are guaranteed by Walker & Dunlop Multifamily, Inc., Walker & Dunlop, LLC, Walker & Dunlop Capital, LLC, W&D BE, Inc., and Walker & Dunlop Investment Sales, LLC, each of which is a direct or indirect wholly owned subsidiary of the Company (the “Guarantors” and, together with the Company, the “Loan Parties”), pursuant to that certain Amended and Restated Guarantee and Collateral Agreement entered into on March 14, 2025 among the Loan Parties and the Agent (the “Guarantee and Collateral Agreement”), which amends and restates in its entirety the Guarantee and Collateral Agreement, dated as of December 16, 2021, entered into in connection with the Prior Term Loan. Subject to certain exceptions and qualifications contained in the Credit Agreement, the Company is required to cause any newly created or acquired subsidiary, unless such subsidiary has been designated as an Excluded Subsidiary (as defined in the Credit Agreement) by the Company in accordance with the terms of the Credit Agreement, to guarantee the obligations of the Company under the Credit Agreement and become a party to the Guarantee and Collateral Agreement. The Company may designate a newly created or acquired subsidiary as an Excluded Subsidiary so long as certain conditions and requirements provided for in the Credit Agreement are met. In addition, under the Guarantee and Collateral Agreement, the obligations of the Loan Parties under and in respect of the Credit Agreement are secured by each Loan Party’s equity interest in direct or indirect subsidiaries owned on the date of the Credit Agreement (excluding Excluded Subsidiaries) and certain other assets and personal property of the Loan Parties other than Excluded Assets (as defined in the Guarantee and Collateral Agreement). Collateral with respect to any Permitted Funding Indebtedness (as defined in the Credit Agreement) and Agency Repurchase Indebtedness (as defined in the Credit Agreement) is not included in the collateral securing the Credit Agreement, provided that in no event shall such collateral include (a) any right to payments owed to any Loan Party under any of the Servicing Contracts (as defined in the Credit Agreement) or (b) any MSR Assets (as defined in the Credit Agreement), other than such rights to payment and MSR Assets relating to loans included in such collateral.

 

The Credit Agreement contains certain affirmative and negative covenants that are binding on the Loan Parties, including, but not limited to, restrictions (subject to specified exceptions and qualifications) on the ability of the Loan Parties to incur indebtedness, to create liens on their property, to make investments, to merge, consolidate or enter into any similar combination, or enter into any asset disposition of all or substantially all assets, or liquidate, wind-up or dissolve, to make asset dispositions, to declare or pay dividends or make related distributions, to enter into certain transactions with affiliates, to enter into any negative pledges or other restrictive agreements, and to engage in any business other than the business of the Loan Parties as of the date of the Credit Agreement and business activities reasonably related or ancillary thereto, or to amend certain material contracts.

 

In addition, the Credit Agreement contains a financial covenant requiring the Company not to permit its Asset Coverage Ratio (as defined in the Credit Agreement) to be less than 1.50 to 1.00, tested quarterly.

 

The Credit Agreement contains customary events of default (which are in some cases subject to certain exceptions, thresholds, notice requirements and grace periods), including, but not limited to, non-payment of principal or interest or other amounts, misrepresentations, failure to perform or observe covenants, cross-defaults with certain other indebtedness or material agreements, certain change in control events, voluntary or involuntary bankruptcy proceedings, failure of the Credit Agreement or other loan documents to be valid and binding, and certain ERISA events and judgments.

 

The foregoing descriptions of the Credit Agreement and the Guarantee and Collateral Agreement do not purport to be complete and are qualified in their entirety by reference to the Credit Agreement and the Guarantee and Collateral Agreement, which are filed as Exhibits 10.1 and 10.2, respectively, to this Current Report on Form 8-K.

 

 

Some of the lenders under the Credit Agreement and the Guarantee and Collateral Agreement and their affiliates have various relationships with the Loan Parties involving the provision of financial services, including other credit facilities with affiliates of the Company, cash management, investment banking, trust, hedging and other services. In addition, certain subsidiaries of the Company have entered into forward delivery commitments in the ordinary course of business and interest rate or other derivative arrangements with some of the lenders and their affiliates.

 

Amendment to Master Repurchase Agreement

 

On March 14, 2025, the Company and Walker & Dunlop, LLC (“WDLLC”), as seller (the “Seller”), entered into that certain Consent and Amendment (the “Repurchase Agreement Amendment”) with JPMorgan Chase Bank, N.A. (the “Buyer”). The Repurchase Agreement Amendment amends that certain Master Repurchase Agreement, dated as of August 26, 2019 (as previously amended, the “Repurchase Agreement”), by and among the Company, WDLLC, and the Buyer to, among other things, permit WDLLC to enter into the Guarantee and Collateral Agreement and to guarantee the Notes. The Company continues to guarantee the Seller’s obligations under the Repurchase Agreement, as amended by the Repurchase Agreement Amendment.

 

The foregoing description of the Repurchase Agreement Amendment does not purport to be complete and is qualified in its entirety by reference to the Repurchase Agreement Amendment, which is filed as Exhibit 10.3 to this Current Report on Form 8-K.

 

The Buyer and its affiliates have various relationships with the Company and its affiliates involving the provision of financial services, including another credit facility under which the Company is a borrower and investment banking.

 

Amendment to Second Amended and Restated Warehousing Credit and Security Agreement

 

On March 14, 2025, the Company and WDLLC, as borrower, entered into that certain Consent and Amendment (the “Warehousing Agreement Amendment”) with PNC Bank, National Association, as lender (“PNC”). The Warehousing Agreement Amendment amends that certain Second Amended and Restated Warehousing Credit and Security Agreement, dated as of September 11, 2017, as previously amended, by and among WDLLC, the Company and PNC to, among other things, permit WDLLC to enter into the Guarantee and Collateral Agreement and to guarantee the Notes.

 

The foregoing description of the Warehousing Agreement Amendment does not purport to be complete and is qualified in its entirety by reference to the Warehousing Agreement Amendment, which is filed as Exhibit 10.4 to this Current Report on Form 8-K.

 

PNC and its affiliates have various relationships with the Company and its affiliates involving the provision of financial services, including cash management, trust and other services. In addition, affiliates of the Company have entered into forward delivery commitments and other derivative arrangements in the ordinary course of business with PNC and its affiliates.

 

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.

 

(d)

Exhibits.

 

The following exhibits are filed with this Current Report on Form 8-K:

 

Exhibit Number		Description
4.1		Indenture, dated as of March 14, 2025, by and among Walker & Dunlop, Inc., the guarantors from time to time party thereto, and U.S. Bank Trust Company, National Association, as trustee.
10.1*		Amended and Restated Credit Agreement, dated as of March 14, 2025, by and among Walker & Dunlop, Inc., as borrower, the lenders referred to therein and JPMorgan Chase Bank, N.A., as administrative agent.
10.2*		Amended and Restated Guarantee and Collateral Agreement, dated as of March 14, 2025, by and among Walker & Dunlop, Inc., as borrower, certain subsidiaries of Walker & Dunlop, Inc., as subsidiary guarantors, and JPMorgan Chase Bank, N.A., as administrative agent.
10.3		Consent and Amendment, dated as of March 14, 2025, by and among Walker & Dunlop, LLC, Walker & Dunlop, Inc., and JPMorgan Chase Bank, N.A.
10.4		Consent and Amendment, dated as of March 14, 2025, by and among Walker & Dunlop, LLC, Walker & Dunlop, Inc., and PNC Bank, National Association, as lender.
104	​	Cover Page Interactive Data File (formatted as inline XBRL and contained in Exhibit 101).

  

*The exhibits and schedules to this exhibit have been omitted in accordance with Regulation S-K Item 601(a)(5). The Company agrees to furnish a copy of all omitted exhibits and schedules to the U.S. Securities and Exchange Commission upon its request.

 

 

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: March 14, 2025	By:	/s/ Gregory A. Florkowski
		Gregory A. Florkowski
		Executive Vice President and Chief Financial Officer

 

 

 

 

Exhibit 4.1

 

 

INDENTURE

 

Dated as of March 14, 2025

 

Among

 

WALKER & DUNLOP, INC.,

as the Company,

 

the GUARANTORS from time to time party hereto

 

and

 

U.S. Bank Trust Company, National Association,
as Trustee

 

6.625% SENIOR NOTES DUE 2033

 

 

 

TABLE OF CONTENTS

 

		Page
ARTICLE 1
DEFINITIONS; RULES OF CONSTRUCTION; ACTS OF HOLDERS
SECTION 1.01.	Definitions	1
SECTION 1.02.	Other Definitions	34
SECTION 1.03.	Rules of Construction	35
SECTION 1.04.	Acts of Holders	36
SECTION 1.05.	Limited Condition Transactions	37
ARTICLE 2
THE NOTES
SECTION 2.01.	Form and Dating; Terms	38
SECTION 2.02.	Execution and Authentication	39
SECTION 2.03.	Registrar and Paying Agent	39
SECTION 2.04.	Paying Agent to Hold Money in Trust	39
SECTION 2.05.	Holder Lists	40
SECTION 2.06.	Transfer and Exchange	40
SECTION 2.07.	Replacement Notes	50
SECTION 2.08.	Outstanding Notes	50
SECTION 2.09.	Treasury Notes	50
SECTION 2.10.	Temporary Notes	51
SECTION 2.11.	Cancellation	51
SECTION 2.12.	CUSIP and ISIN Numbers	51
ARTICLE 3
REDEMPTION
SECTION 3.01.	Notices to Trustee	51
SECTION 3.02.	Selection of Notes to Be Redeemed or Purchased	52
SECTION 3.03.	Notice of Redemption	52
SECTION 3.04.	Effect of Notice of Redemption	53
SECTION 3.05.	Deposit of Redemption or Purchase Price	53
SECTION 3.06.	Notes Redeemed or Purchased in Part	54
SECTION 3.07.	Optional Redemption	54
SECTION 3.08.	Mandatory Redemption	55
SECTION 3.09.	Offers to Repurchase by Application of Excess Proceeds	55
ARTICLE 4
COVENANTS
SECTION 4.01.	Payment of Notes	57
SECTION 4.02.	Maintenance of Office or Agency	57
SECTION 4.03.	Reports and Other Information	58
SECTION 4.04.	Compliance Certificate	60
SECTION 4.05.	Taxes	60
SECTION 4.06.	Stay, Extension and Usury Laws	60
SECTION 4.07.	Limitation on Restricted Payments	60
SECTION 4.08.	Limitation on Dividend and Other Payment Restrictions Affecting Subsidiaries	64

 

 

		Page
SECTION 4.09.	Limitation on Incurrence of Indebtedness and Issuance of Preferred Stock	66
SECTION 4.10.	Asset Sales	66
SECTION 4.11.	Limitation on Transactions with Affiliates	68
SECTION 4.12.	Limitation on Liens	70
SECTION 4.13.	[Reserved]	70
SECTION 4.14.	Offer to Repurchase Upon Change of Control	70
SECTION 4.15.	Limitation on the Issuance of Guarantees by Subsidiaries	72
SECTION 4.16.	Limitation on Sale and Leaseback Transactions	72
SECTION 4.17.	Designation of Excluded Subsidiaries	72
SECTION 4.18.	Covenant Suspension	73
SECTION 4.19.	Limitation Regarding Excluded Subsidiaries	74
ARTICLE 5
SUCCESSORS
SECTION 5.01.	Merger, Consolidation or Sale of All or Substantially All Assets	74
SECTION 5.02.	Surviving Entity Substituted	75
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01.	Events of Default	76
SECTION 6.02.	Acceleration	77
SECTION 6.03.	Other Remedies	78
SECTION 6.04.	Waiver of Past Defaults	78
SECTION 6.05.	Control by Majority	79
SECTION 6.06.	Rights of Holders of Notes to Receive Payment	79
SECTION 6.07.	Collection Suit by Trustee	79
SECTION 6.08.	Restoration of Rights and Remedies	79
SECTION 6.09.	Rights and Remedies Cumulative	79
SECTION 6.10.	Delay or Omission Not Waiver	80
SECTION 6.11.	Trustee May File Proofs of Claim	80
SECTION 6.12.	Undertaking for Costs	80
SECTION 6.13.	Trustee May Enforce Claims without Possession of Notes	80
SECTION 6.14.	Limitation on Suits	81
SECTION 6.15.	Priorities	81
ARTICLE 7
TRUSTEE
SECTION 7.01.	Duties of Trustee	81
SECTION 7.02.	Rights of Trustee	82
SECTION 7.03.	Individual Rights of Trustee	84
SECTION 7.04.	Trustee’s Disclaimer	84
SECTION 7.05.	Notice of Defaults	84
SECTION 7.06.	Compensation and Indemnity	84
SECTION 7.07.	Replacement of Trustee	85
SECTION 7.08.	Successor Trustee by Merger, etc.	86
SECTION 7.09.	Eligibility; Disqualification	86

 

 

		Page
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01.	Option to Effect Legal Defeasance or Covenant Defeasance	86
SECTION 8.02.	Legal Defeasance and Discharge	86
SECTION 8.03.	Covenant Defeasance	87
SECTION 8.04.	Conditions to Legal or Covenant Defeasance	87
SECTION 8.05.	Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions	89
SECTION 8.06.	Repayment to Company	89
SECTION 8.07.	Reinstatement	89
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01.	Without Consent of Holders of Notes	90
SECTION 9.02.	With Consent of Holders of Notes	91
SECTION 9.03.	Revocation and Effect of Consents	92
SECTION 9.04.	Notation on or Exchange of Notes	93
SECTION 9.05.	Trustee to Sign Amendments, etc.	93
ARTICLE 10
NOTE GUARANTEES
SECTION 10.01.	Note Guarantee	93
SECTION 10.02.	Limitation on Guarantor Liability	95
SECTION 10.03.	Execution and Delivery	95
SECTION 10.04.	Subrogation	95
SECTION 10.05.	Benefits Acknowledged	96
SECTION 10.06.	Merger, Consolidation or Sale of All or Substantially All Assets of Subsidiary Guarantors	96
SECTION 10.07.	Release of Note Guarantees	96
ARTICLE 11
SATISFACTION AND DISCHARGE
SECTION 11.01.	Satisfaction and Discharge	97
SECTION 11.02.	Application of Trust Money	98
ARTICLE 12
MISCELLANEOUS
SECTION 12.01.	Inapplicability of the Trust Indenture Act	98
SECTION 12.02.	Notices	98
SECTION 12.03.	Certificate and Opinion as to Conditions Precedent	100
SECTION 12.04.	Statements Required in Certificate or Opinion	100
SECTION 12.05.	Rules by Trustee and Agents	100
SECTION 12.06.	No Personal Liability of Directors, Officers, Employees and Stockholders	100
SECTION 12.07.	Governing Law; Consent to Jurisdiction and Service	100
SECTION 12.08.	Waiver of Jury Trial	101
SECTION 12.09.	Force Majeure	101
SECTION 12.10.	No Adverse Interpretation of Other Agreements	101
SECTION 12.11.	Successors	101
SECTION 12.12.	Severability	101
SECTION 12.13.	Counterpart Originals	101
SECTION 12.14.	Table of Contents, Headings, etc.	102
SECTION 12.15.	U.S.A. Patriot Act	102
SECTION 12.16.	FATCA	102

 

 

EXHIBITS
Exhibit A	Form of Note
Exhibit B	Form of Certificate of Transfer
Exhibit C	Form of Certificate of Exchange
Exhibit D	Form of Supplemental Indenture to Be Delivered by Subsequent Guarantors
Exhibit E	Form of Free Transferability Certificate

 

 

INDENTURE, dated as of March 14, 2025, among Walker & Dunlop, Inc., a Maryland corporation (collectively with its successors and assigns, the “Company”), each of the Guarantors party hereto from time to time and U.S. Bank Trust Company, National Association, as Trustee.

 

W I T N E S S E T H

 

WHEREAS, the Company has duly authorized the creation of an issue of $400,000,000 aggregate principal amount of its 6.625% Senior Notes due 2033 (the “Initial Notes”);

 

WHEREAS, the Company and the Guarantors have duly authorized the execution and delivery of this Indenture.

 

NOW, THEREFORE, the Company, the Guarantors from time to time party hereto and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders of the Notes.

 

ARTICLE 1
DEFINITIONS; RULES OF CONSTRUCTION; ACTS OF HOLDERS

 

SECTION 1.01.      Definitions.

 

“144A Global Note” means a Global Note, substantially in the form of Exhibit A hereto, bearing the Global Note Legend, the Private Placement Legend and, if applicable, the OID Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that will be issued in a denomination equal to the outstanding principal amount of the Notes sold in reliance on Rule 144A.

 

“Acquired Indebtedness” means, with respect to any specified Person, (a) Indebtedness of any other Person existing at the time such other Person (x) is merged, amalgamated or consolidated with or into such specified Person or a Subsidiary of such specified Person or (y) becomes a Subsidiary of such specified Person, and (b) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person and/or assumed by such specified Person in connection with such acquisition, and, in each case, whether or not Indebtedness is incurred by such other Person in connection with, or in anticipation or contemplation of, such Person becoming a Subsidiary of the Company or such acquisition, merger, amalgamation or consolidation.

 

“Additional Notes” means additional Notes (other than the Initial Notes) issued from time to time under this Indenture in accordance with Sections 2.01 and 4.09 hereof, whether or not they bear the same CUSIP or ISIN number.

 

“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 Consents” means, singly and collectively, the written consent (and in the case of Ginnie Mae and HUD, acknowledgement) 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) to the exercise by the Trustee of its rights and remedies in such capacity under this Indenture with respect to the Note Guarantee of the applicable MSR Subsidiary, in each case as the same may be amended, restated, modified or supplemented from time to time.

 

 

“Agency Repurchase Indebtedness” means Indebtedness representing obligations to repurchase Mortgage Loans from an Agency under the terms of the relevant Agency Agreements.

 

“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 specified Person. The term “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; and the terms “controlling” and “controlled” have meanings correlative of the foregoing.

 

“Agent” means any Registrar or Paying Agent.

 

“Applicable Premium” means, with respect to any Note on any applicable redemption date, the greater of (i) 1.0% of the then outstanding principal amount of such Note and (ii) the excess of:

 

(1)            the present value at such redemption date of the sum of (i) the redemption price of such Note at April 1, 2028 (such redemption price being set forth in Section 3.07(c) hereof) plus (ii) all required interest payments due on such Notes through April 1, 2028 (excluding accrued but unpaid interest, if any, to, but excluding, such redemption date), such present value to be computed using a discount rate equal to the Treasury Rate as of such redemption date plus 50 basis points; over

 

(2)            the then outstanding principal amount of such Notes.

 

The Applicable Premium shall be calculated by the Company, and the Trustee shall have no responsibility to verify such amount.

 

“Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the Depositary, Euroclear and/or Clearstream, as applicable, that apply to such transfer or exchange.

 

“Asset Sale” means the sale, lease (other than Operating Leases entered in the ordinary course of business), conveyance or other disposition (including a Partial Interest Asset Sale) of any assets or rights (including the sale or issuance of Equity Interests in any of the Company’s Subsidiaries (other than Excluded Subsidiaries), whether effected pursuant to a Division or otherwise); provided that the sale, lease (other than Operating Leases entered in the ordinary course of business), conveyance or other disposition of all or substantially all of the assets of the Company and its Subsidiaries taken as a whole, will be governed by Section 4.14 and/or Section 5.01 hereof and not by Section 4.10 hereof; provided, further, that a transaction otherwise meeting the requirements of an “Asset Sale” under this definition will be deemed to be an Asset Sale notwithstanding its treatment under GAAP.

 

Notwithstanding the foregoing, none of the following will be deemed to be an Asset Sale:

 

(1)            any single transaction or series of related transactions that involves assets having a Fair Market Value of less than the greater of (x) $16.25 million and (y) 5.0% of Consolidated Adjusted EBITDA as of the most recently ended LTM Period;

 

(2)            a transfer of assets between or among the Company and any Subsidiary (other than an Excluded Subsidiary) of the Company;

 

 

(3)            an issuance of Equity Interests by a Subsidiary of the Company to the Company or to another Subsidiary (other than an Excluded Subsidiary) of the Company;

 

(4)            the sale of advances, mortgages, other loans, customer receivables, mortgage-related securities or derivatives or other assets (or any interests in any of the foregoing) in the ordinary course of business, the sale, transfer or discount of accounts receivable or other assets that by their terms convert into cash and any sale of securities in respect of additional fundings under reverse mortgage loans, in each case, in the ordinary course of business;

 

(5)            the sale or other disposition of cash or Cash Equivalents or Investment Grade Securities;

 

(6)            dispositions of Mortgage Loans or Mortgage Securities in the ordinary course of business and substantially consistent with past practice;

 

(7)            a Restricted Payment that does not violate Section 4.07 hereof, or a Permitted Investment;

 

(8)            disposals, liquidations or replacements of damaged, worn out or obsolete equipment or other assets no longer used or useful in the business of the Company and its Subsidiaries;

 

(9)            assets sold, conveyed or otherwise disposed of pursuant to the terms of Permitted Funding Indebtedness or Agency Repurchase Indebtedness;

 

(10)            so long as no Event of Default has occurred and is continuing or would result therefrom a sale, conveyance or other disposition (i) of Securitization Assets in the ordinary course of business in connection with the origination, acquisition, securitization and/or sale of loans that are purchased, insured, guaranteed, or securitized or (ii) to a Securitization Entity of assets in Qualified Securitization Transactions;

 

(11)            a sale, conveyance or other disposition of Equity Interests of an Excluded Subsidiary;

 

(12)            the creation of a Lien (but not the sale or other disposition of the property subject to such Lien) permitted by Section 4.12 hereof;

 

(13)            transactions pursuant to repurchase agreements entered into in the ordinary course of business;

 

(14)            any sale or other disposition of a minority interest in any Person that is not a Subsidiary, that constituted a Restricted Payment or Permitted Investment; provided that (x) the majority interests in such Person shall also be concurrently sold or transferred on the same terms and the holder or holders of such majority interests shall have required such sale or disposition of such minority interest pursuant to the exercise of any applicable drag-along rights and (y) the Net Proceeds from the sale or transfer of such minority interest are applied in accordance with Section 4.10 hereof;

 

(15)            any lease, sublease, license or sublicense of real or personal property 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 Company or the Guarantors;

 

 

(16)            any surrender or waiver of contract rights or settlement, release, recovery on or surrender of contract, tort or other claims in the ordinary course of business;

 

(17)            inventory (other than Servicing Agreements and Mortgage Loans) sold, leased or licensed in the ordinary course of business;

 

(18)            the sale, lease, conveyance or other disposition of any assets or rights required or advisable as a result of statutory or regulatory changes or requirements (including any settlements with any regulatory agencies) as determined in good faith by the senior management of the Company; provided that any cash or Cash Equivalents received must be applied as Net Proceeds in accordance with Section 4.10 hereof;

 

(19)            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;

 

(20)            the disposition of any Hedge Agreement;

 

(21)            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 Company or the Guarantors;

 

(22)            sales or dispositions of any real property in the ordinary course of business or sales or dispositions in the form of a foreclosure by the Company or any of its Subsidiaries 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;

 

(23)            sales or dispositions in the form of the sale of all or any portion of the servicing rights arising under Servicing Agreements for Mortgage Loans being originated after the Issue Date in a manner consistent with the Company’s or any Guarantor’s ordinary operating practices so long as (i) before and immediately after giving effect to any such sale no Event of Default shall have occurred and be continuing, (ii) (A) prior to any such sale, the applicable Agency or Investor, as the case may be, shall have delivered to the applicable 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 and (iii) such sale shall be entirely in cash and for fair market value (as determined by the Company in good faith); and

 

(24)            a transfer of assets constituting Permitted Investments.

 

“Asset Swap” means an exchange (or concurrent purchase and sale) of property, plant, equipment or other assets (excluding working capital or current assets) of the Company or any of its Subsidiaries for the assets of a Person or the Capital Stock of a Person conducting a Permitted Business; provided that, in the case of any such exchange for Capital Stock of a Person conducting a Permitted Business, such Person is or becomes a Subsidiary; provided, further, that any unrestricted cash or Cash Equivalents received must be applied as Net Proceeds in accordance with Section 4.10 hereof.

 

“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..

 

 

“Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief of debtors.

 

“Board of Directors” means, as to any Person, the Board of Directors, or similar governing body, of such Person or any duly authorized committee thereof, including, but not limited to, the audit committee.

 

“Board Resolution” means, with respect to any Person, a copy of a resolution certified by the Secretary or an Assistant Secretary of such Person to have been duly adopted by the Board of Directors of such Person and to be in full force and effect on the date of such certification, and delivered to the Trustee.

 

“Business Day” means each day that is not a Saturday, a Sunday or a day on which commercial banking institutions are not required to be open in the State of New York, Minnesota or New Jersey or the place of payment.

 

“Capital Stock” means:

 

(1)            with respect to any Person that is a corporation, any and all shares, interests, participations or other equivalents (however designated and whether or not voting) of corporate stock, including each class of Common Stock and Preferred Stock of such Person; or

 

(2)            with respect to any Person that is not a corporation, any and all partnership, membership or other equity interests (whether general or limited) of such Person,

 

but, in each case, excluding any debt security that is convertible or exchangeable for Capital Stock.

 

“Capitalized Lease Obligation” means, as to any Person, the obligations of such Person as lessee under a lease that are required to be classified and accounted for as capital lease obligations under GAAP and, for purposes of this definition, the amount of such obligations at any date shall be the capitalized amount of such obligations at such date, determined in accordance with GAAP; provided, for the avoidance of doubt, that any obligations of the Company and its Subsidiaries either existing on the Issue Date or created prior to the recharacterization described below that were not included on the consolidated balance sheet of the Company as Capitalized Lease Obligations and that are subsequently recharacterized as Capitalized Lease Obligations due to a change in GAAP shall for purposes of this Indenture not be treated as Capitalized Lease Obligations or Indebtedness.

 

“Cash Equivalents” means:

 

(1)            Dollars;

 

(2)            securities or any evidence of indebtedness issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality of the United States government (provided that the full faith and credit of the United States is pledged in support of those securities or such evidence of indebtedness);

 

 

(3)            marketable direct obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition, having one of the three highest ratings obtainable from either S&P or Moody’s;

 

(4)            certificates of deposit with maturities of twelve months or less from the date of acquisition, bankers’ acceptances with maturities not exceeding twelve months and overnight bank deposits with any domestic commercial bank having capital and surplus in excess of $500.0 million and a Moody’s or S&P rating of “B” or better;

 

(5)            repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clauses (2), (3) and (4) above entered into with any financial institution meeting the qualifications specified in clause (4) above;

 

(6)            commercial paper having one of the two highest ratings obtainable from Moody’s or S&P and in each case maturing within twelve months after the date of acquisition; and

 

(7)            money market funds (i) at least 95.0% of the assets of which constitute Cash Equivalents of the kinds described in clauses (1) through (6) of this definition or (ii) that comply with the criteria under Rule 2a-7 of the Investment Company Act of 1940 and are rated at least AAA by S&P or Aaa by Moody’s.

 

“Change of Control” means the occurrence of any of the following:

 

(1)            the sale, lease or transfer, in one or a series of related transactions, of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole; or

 

(2)            any Person, entity or “group” (within the meaning of Section 13(d) or 14(d) of the Exchange Act, but excluding any employee benefit plan of such Person, entity or “group” and their respective 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 (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act, or any successor provision), directly or indirectly, of more than fifty percent (50%) of the Equity Interests of the Company entitled to vote in the election of members of the board of directors (or equivalent governing body) of the Company; provided that (i)  a Person, entity or “group” shall not be deemed to beneficially own Voting Stock to be acquired by such Person, entity or “group” pursuant to a stock or asset purchase agreement, merger agreement, option agreement, warrant agreement or similar agreement (or voting or option or similar agreement related thereto) until the consummation of the acquisition of the Voting Stock in connection with the transactions contemplated by such agreement and (ii) a Person, entity or “group” shall not be deemed to beneficially own the Voting Stock of another Person as a result of its ownership of Capital Stock or other securities of such other Person’s parent (or related contractual rights) unless it owns a majority of the Voting Stock of such other Person’s parent.

 

“Clearstream” means Clearstream Banking, Société Anonyme, or any successor securities clearing agency.

 

“Code” means the Internal Revenue Code of 1986, as amended.

 

 

“Collateral Transaction Document” means any pooling and servicing agreement, securitization servicing agreement, sale and servicing agreement, servicing agreement, transfer and servicing agreement, seller/servicer or securities issuer guide or handbook, sub-servicing agreement, trust agreement, indenture, collateral management agreement, collateral administration agreement, disposition consultation agreement and other agreement (in each case, howsoever denominated) pursuant to which the Company or any Subsidiary is the servicer, master servicer, primary servicer or special servicer (or similar role, however denominated) of Mortgage Loans for and on behalf of an MBS Trust, Agency, or other Investor or a collateral manager, collateral administrator or disposition consultant (or similar role, however denominated), each as may be amended, modified or supplemented from time to time.

 

“Common Stock” of any Person means any and all shares, interests or other participations in, and other equivalents (however designated and whether voting or non-voting) of such Person’s common stock, whether outstanding on the Issue Date or issued after the Issue Date, and includes, without limitation, all series and classes of such common stock.

 

“Company Order” means a written request or order signed on behalf of the Company by an Officer of the Company and delivered to the Trustee.

 

“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 Company and the Guarantors 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 Agreements) (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 4.09 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) if paid within six (6) months of the relevant closing, transaction costs related to the Senior Secured Credit Facilities or a permitted acquisition 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 increasing Consolidated Corporate Net Income, (iv) capitalized amounts attributable to origination of Servicing Agreements 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 Indenture, 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 Company and the Guarantors on a Consolidated basis without duplication, the sum of all Indebtedness of the Company and the Guarantors which shall exclude (a) any Non-Recourse Indebtedness to the extent not constituting Excess Permitted Guarantees, (b) any Permitted Funding Indebtedness or Agency Repurchase 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 of the Company and the Guarantors 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 Company and the Guarantors in accordance with GAAP, interest expense (including, without limitation, interest expense attributable to Capitalized Lease Obligations and all net payment obligations pursuant to Permitted Hedging Transactions) for such period, but excluding any Consolidated Interest Expense with respect to Non-Recourse Indebtedness, Permitted Funding Indebtedness, or Agency Repurchase Indebtedness.

 

“Consolidated Net Corporate Leverage Ratio” means, as of any date of determination, the ratio of (a) (i) Consolidated Corporate Indebtedness less (ii) Unrestricted Cash on such date to (b) Consolidated Adjusted EBITDA for the most recently ended LTM Period.

 

“Consolidated Corporate Net Income” means, for any period, the net income (or loss) of the Company and the Guarantors 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 the Company or a Guarantor or any other Person in which any Guarantor or the Company has a joint interest with a third party, in each case except to the extent such net income is actually paid in cash to the Company or a Guarantor 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 Guarantor or is merged into or consolidated with the Company or a Guarantor or that Person’s assets are acquired by the Company or a Guarantor except to the extent included pursuant to the foregoing clause (a), (c) any gain or loss from any sale, lease, license, transfer or other disposition of Property during such period and (d) non-cash stock-based award compensation expenses.

 

“Consolidated Interest Expense” means, for any period, determined on a Consolidated basis, without duplication, for the Company 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 Permitted Hedging Transactions) for such period.

 

“Consolidated Secured Corporate 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 Company or any of its Subsidiaries.

 

“Consolidated Net Secured Leverage Ratio” means, as of any date of determination, the ratio of (a) (i) the Consolidated Secured Indebtedness less (ii) Unrestricted Cash on such date to (b) Consolidated Adjusted EBITDA for the most recently ended LTM Period.

 

“Corporate Trust Office of the Trustee” shall be at the address of the Trustee specified in Section 12.02 hereof or such other address as to which the Trustee may give notice to the Holders and the Company.

 

“Credit Facilities” means, one or more debt facilities, indentures or agreements (including, without limitation, the Senior Secured Credit Facilities) or commercial paper facilities, in each case, with banks or other institutional lenders, commercial finance companies, creditors, investors or other lenders providing for revolving credit loans, term loans, bonds, debentures, hedging, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables) or letters of credit, pursuant to agreements or indentures, in each case, as amended, restated, modified, renewed, refunded, replaced (whether upon or after termination or otherwise) or refinanced (including by means of sales of debt securities to institutional investors) in whole or in part from time to time (and without limitation as to amount, terms, conditions, covenants and other provisions, including increasing the amount of available borrowings thereunder, changing or replacing agent banks and lenders thereunder or adding, removing or reclassifying Subsidiaries of the Company as borrowers or guarantors thereunder).

 

 

“Custodian” means the Trustee, as custodian with respect to the Notes in global form, or any successor entity thereto.

 

“Default” means an event or condition the occurrence of which is, or with the lapse of time or the giving of notice or both would be, an Event of Default.

 

“Definitive Note” means a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 2.06(c) hereof, substantially in the form of Exhibit A hereto, except that such Note shall not bear the Global Note Legend and shall not have the “Schedule of Exchanges of Interests in the Global Note” attached thereto.

 

“Depositary” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.03 hereof as the Depositary with respect to the Notes, and any and all successors thereto appointed as Depositary hereunder and having become such pursuant to the applicable provision of this Indenture.

 

“Designated Non-cash Consideration” means the Fair Market Value of any non-cash consideration received by the Company or one of its Subsidiaries in connection with an Asset Sale that is designated as Designated Non-cash Consideration pursuant to an Officer’s Certificate of the Company at the time of such Asset Sale less the amount of cash and Cash Equivalents received in connection with a subsequent sale of or collection on such Designated Non-cash Consideration.

 

“Disqualified Capital Stock” means that portion of any Capital Stock that, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable at the option of the holder thereof), or upon the happening of any event (other than an event which would constitute a Change of Control), matures or is mandatorily redeemable (other than for Qualified Capital Stock), pursuant to a sinking fund obligation or otherwise, or is redeemable at the sole option of the holder thereof (except, in each case, upon the occurrence of a Change of Control) on or prior to the date that is 91 days after the final maturity date of the Notes.

 

“Dividing Person” has the meaning assigned to it in the definition of “Division.”

 

“Division” means the division of the assets, liabilities and/or obligations of a Person (the “Dividing Person”) among two or more Persons (whether pursuant to a “plan of division” or similar arrangement), which may or may not include the Dividing Person and pursuant to which the Dividing Person may or may not survive.

 

“Dollar” or “$” means the lawful money of the United States of America.

 

“Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).

 

“Equity Offering” means any issuance by the Company of common shares of its Equity Interests to any person other than a Subsidiary of the Company (including, without limitation, in connection with the exercise of options or warrants or the conversion of any debt securities to equity) and other than with respect to any such common stock registered on Form S-8.

 

 

“Euroclear” means Euroclear S.A./N.V., as operator of the Euroclear system, or any successor securities clearing agency.

 

“Excess Permitted Guarantees” means any Permitted Guarantee to the extent that the value of such Guarantee 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, as amended, or any successor statute or statutes thereto.

 

“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, 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; and various entities controlled or majority owned directly/indirectly by Walker & Dunlop Investment Partners, Inc.), JCR Capital Investment Company, LLC (and various fund entities controlled or majority owned directly/indirectly by JCR Capital Investment Company, LLC), Enodo, Inc., W&D KBP, LLC, W&D ETE, LLC, WD-IC JV GP LLC, WD-IC JV Investor, LLC, WDIS WA, LLC, WDIB-Investor, LLC, WDIB, LLC, Zelman Partners, LLC, WDAAC, LLC (and various entities controlled or majority owned directly/ indirectly by WDAAC, LLC), W&D STCI, LLC, W&D RPS HoldCo, LLC, WD-GTE, LLC, GeoPhy B.V., GeoPhy Inc, WD-Geophy HoldCo, LLC, WD-GeoPhy CRE Valuation LLC, WD-KA JV Investor LLC, WDIS, Inc, WD-Alliant TCBI, LLC, 2388 North Main Street, LLC, Shelby Pref Investor, LLC, WD-IC JV GP II LLC, WD-IC JV Investor II, LLC, WD 2360 HoldCo, LLC, WD 46-110 HoldCo, LLC, WD CVFG HoldCo, LLC, WD-UK HoldCo, LLC, W&D UK Holdco Limited, W&D UK Pvt Ltd and their respective Subsidiaries, but, in each case, only for so long as such Person continues to satisfy the requirements of Section 4.17;

 

(b)            any Subsidiary designated in accordance with Section 4.17 that has not been re-designated or reclassified in accordance with Section 4.17;

 

(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 Company (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 Company 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 Indenture, (i) no Person that is a Guarantor as of the Issue 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, the Company or a Guarantor shall be an Excluded Subsidiary.

 

 

“Fair Market Value” means, with respect to any asset (including any Equity Interests of any Person), the price at which a willing buyer that is not an Affiliate of the seller and a willing seller would reasonably be expected to agree to purchase and sell such asset, as determined in good faith by the Company or the Subsidiary purchasing or selling such asset. For the avoidance of doubt, any sale, contribution, assignment or other transfer shall not be deemed to be for less than Fair Market Value solely because such sale, contribution, assignment or transfer was made at a discount to par.

 

“Fannie Mae” means Fannie Mae, also known as The Federal National Mortgage Association, or any successor thereto.

 

“Fannie Mae Agreements” means all applicable selling and servicing agreements (including the Fannie Mae Servicing Contracts) between Fannie Mae and the Company or any Guarantor under any Fannie Mae Program, together with any other present or future contracts, agreements, instruments or indentures to which Fannie Mae and the Company or any Guarantor are parties or pursuant to which the Company or any Guarantor 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 the Company or any Guarantor is subject.

 

“Fannie Mae Guide” means the Fannie Mae Multifamily Selling and Servicing Guide, the Fannie Mae Delegated Underwriting and Servicing Guide, the Fannie Mae Negotiated Transactions Guide, and the Fannie Mae Multifamily Program Rules, including any exhibits, appendices or other referenced forms, as any of the foregoing are amended, modified, supplemented, restated or superseded from time to time, as the context and Fannie Mae Agreements require.

 

“Fannie Mae Loans” means each of the Mortgage Loans serviced by WDLLC or, as may be applicable, WD Capital on behalf of Fannie Mae.

 

“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 the Company or any Guarantor is a party as of the Issue Date pursuant to a Fannie Mae Agreement and (b) any other program offered by Fannie Mae at any time and from time to time after the Issue Date in which the Company or any Guarantor participates pursuant to the Fannie Mae Agreements.

 

“Fannie Mae Servicing Contracts” means any Servicing Agreement between the Company or any Guarantor and Fannie Mae.

 

“FHA” means the United States Federal Housing Administration.

 

“FHA/HUD Agreements” means the Multifamily Accelerated Processing Guide, with respect to the Company or any Guarantor under any FHA/HUD Program, together with any other present or future contracts, agreements, instruments or indentures to which FHA and/or HUD and the Company or any Guarantor are parties or pursuant to which the Company or any Guarantor 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 the Company or any Guarantor is subject.

 

“FHA/HUD Guide” means each guide used by FHA and HUD, respectively, applicable to the FHA/HUD Loans, as may be amended, restated, supplemented or otherwise modified from time to time.

 

 

“FHA/HUD Loans” means a Mortgage Loan that is insured or co-insured and/or otherwise guaranteed by FHA and/or HUD.

 

“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 the Company or any Guarantor participates.

 

“Fixed Dollar Incurrence” has the meaning specified in the definition of “Permitted Indebtedness.”

 

“Foreign Subsidiary” means, with respect to any Person, any Subsidiary of such Person that is not organized or existing under the laws of the United States, any state thereof or the District of Columbia.

 

“Freddie Mac” means Freddie Mac, also known as The Federal Home Loan Mortgage Corporation, or any successor thereto.

 

“Freddie Mac Agreements” means all applicable selling and servicing agreements (including the Freddie Mac Servicing Contracts) between Freddie Mac and the Company or any Guarantor under any Freddie Mac Program, together with any other present or future contracts, agreements, instruments or indentures to which Freddie Mac and the Company or any Guarantor are parties or pursuant to which the Company or any Guarantor 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 the Company or any Guarantor is subject.

 

“Freddie Mac CME Securitization” means the pooling of Mortgage Loans held by Freddie Mac into a real estate mortgage investment conduit pursuant to which WDLLC or, as may be applicable, WD Capital, respectively, retains servicing responsibilities.

 

“Freddie Mac Guide” means the Freddie Mac Multifamily Seller/Servicer Guide (including, as applicable, the Freddie Mac Delegated Underwriting for Targeted Affordable Housing Guide), as may be amended, restated, supplemented or otherwise modified from time to time.

 

“Freddie Mac Loan” means each of the Mortgage Loans serviced by WDLLC or, as may be applicable, WD Capital for or on behalf of Freddie Mac or a Freddie Mac CME Securitization.

 

“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 the Company or any Guarantor participates.

 

“Freddie Mac Servicing Contracts” means any Servicing Agreement between the Company or any Guarantor and Freddie Mac.

 

“GAAP” means generally accepted accounting principles set forth in the opinions and pronouncements of the Financial Accounting Standards Board Accounting Standards Codification or in such other statements by such other entity as may be approved by a significant segment of the accounting profession of the United States, which are in effect as of the Issue Date.

 

“Ginnie Mae” means Ginnie Mae, also known as The Government National Mortgage Association, or any successor thereto.

 

 

“Ginnie Mae Agreements” means all applicable agreements, including servicing agreements between Ginnie Mae and the Company or any Guarantor under any Ginnie Mae Program, together with any other present or future contracts, agreements, instruments or indentures to which Ginnie Mae and the Company or any Guarantor are parties or pursuant to which the Company or any Guarantor 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 the Company or any Guarantor is subject.

 

“Ginnie Mae Guide” means Ginnie Mae Mortgage-Backed Securities Guide, as may be amended, restated, supplemented or otherwise modified from time to time.

 

“Ginnie Mae Program” means any program offered by Ginnie Mae at any time and from time to time in which the Company or any Guarantor participates.

 

“Global Note Legend” means the legend set forth in Section 2.06(g)(ii) hereof, which is required to be placed on all Global Notes issued under this Indenture.

 

“Global Notes” means, individually and collectively, each of the Restricted Global Notes and the Unrestricted Global Notes, substantially in the form of Exhibit A hereto, issued in accordance with Article 2 hereof.

 

“Government Securities” means securities that are:

 

(1) direct obligations of the United States of America for the timely payment of which its full faith and credit is pledged; or

 

(2) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case, are not callable or redeemable at the option of the issuers thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with respect to any such Government Securities or a specific payment of principal of or interest on any such Government Securities held by such custodian for the account of the holder of such depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the Government Securities or the specific payment of principal of or interest on the Government Securities evidenced by such depository receipt.

 

“guarantee” means a guarantee (other than by endorsement of negotiable instruments for collection in the ordinary course of business), direct or indirect, in any manner including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness (whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take or pay or to maintain financial statement conditions or otherwise).

 

“Guarantor” means each Subsidiary Guarantor.

 

“Guide” means, singly and collectively, as may be applicable from time to time, each Fannie Mae Guide, each Freddie Mac Guide, each Ginnie Mae Guide, each FHA/HUD Guide, and, as may be applicable, any guide pertaining to any Investor Agreements.

 

 

“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.

 

“Holder” means the Person in whose name the Note is registered on the Registrar’s book.

 

“HUD” means the United States Department of Housing and Urban Development.

 

“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 Capital Stock;

 

(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, 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.

 

“Indenture” means this Indenture, as amended or supplemented from time to time.

 

“Indirect Participant” means a Person who holds a beneficial interest in a Global Note through a Participant.

 

“Initial Notes” has the meaning given to such term in the recitals hereto.

 

“Initial Purchaser” means J.P. Morgan Securities LLC.

 

“Interest Payment Date” means April 1 and October 1 of each year, commencing on October 1, 2025.

 

“Investment” means, with respect to any Person, any direct or indirect loan or other extension of credit (including, without limitation, a guarantee), advance or capital contribution by (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others), or any purchase or acquisition by such Person of any Capital Stock, bonds, notes, debentures or other securities. “Investment” shall exclude (w) mortgage loans in the ordinary course of business, warehouse loans secured by mortgage loans and related assets, drawing accounts and similar expenditures in the ordinary course of business, (x) accounts receivable, extensions of trade credit or advances by the Company and its Subsidiaries (other than an Excluded Subsidiary) on commercially reasonable terms in accordance with the Company or its Subsidiaries’ (other than an Excluded Subsidiary’s) normal trade practices, as the case may be, (y) deposits made in the ordinary course of business and customary deposits into reserve accounts related to Securitizations and (z) commission, moving, entertainment and travel expenses and similar advances to officers, directors, managers and employees, in each case, made in the ordinary course of business. Except as otherwise provided in this Indenture, the amount of an Investment will be determined at the time the Investment is made and without giving effect to subsequent changes in value. For the avoidance of doubt, expenditures of the Company and its Subsidiaries that, in accordance with GAAP, are or should be included in “purchase of property and equipment” or similar items reflected in the consolidated statement of cash flows of the Company and its Subsidiaries shall not constitute Investments.

 

“Investment Grade” means a rating of the Notes by both S&P and Moody’s, each such rating being one of such agency’s four highest generic rating categories that signifies investment grade (i.e., BBB- (or the equivalent) or higher by S&P and Baa3 (or the equivalent) or higher by Moody’s); provided that, in each case, such ratings are publicly available; provided, further, that in the event Moody’s or S&P is no longer in existence for purposes of determining whether the Notes are rated “Investment Grade,” such organization may be replaced by a nationally recognized statistical rating organization (as defined in Section 3(a)(62) of the Exchange Act) designated by the Company, notice of which shall be given to the Trustee.

 

 

“Investment Grade Securities” means marketable securities of a Person (other than the Company or its Subsidiaries, an Affiliate or joint venture of the Company or any Subsidiary), acquired by the Company or any of its Subsidiaries in the ordinary course of business that are rated, at the time of acquisition, BBB- (or the equivalent) or higher by S&P and Baa3 (or the equivalent) or higher by Moody’s.

 

“Investor” means any Person (other than Fannie Mae, Freddie Mac, Ginnie Mae, FHA, or HUD) that (a) purchases Mortgage Loans serviced by the Company or any Guarantor, or (b) insures or unconditionally guarantees Mortgage Loans serviced by the Company or any Guarantor.

 

“Investor Agreements” means all applicable selling and servicing agreements (including the Investor Servicing Contracts) between an Investor and the Company or any Guarantor, together with any other present or future contracts, agreements, instruments or indentures to which such Investor and the Company or any Guarantor are parties or pursuant to which the Company or any Guarantor 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 the Company or any Guarantor is subject.

 

“Investor Servicing Contracts” means any Servicing Agreements between the Company or any Guarantor and an Investor.

 

“Issue Date” means March 14, 2025.

 

“Lien” means any lien, mortgage, deed of trust, pledge, security interest, charge or encumbrance of any kind (including any conditional sale or other title retention agreement having substantially the same economic effect as any of the foregoing, any lease in the nature thereof and any agreement to give any security interest).

 

“Limited Condition Transaction” means any acquisition, Investment or other transaction, including by way of merger, amalgamation or consolidation, by the Company or one or more of its Subsidiaries, with respect to which the Company or such Subsidiaries have entered into an agreement or are otherwise contractually committed to consummate, the consummation of which is not expressly conditioned upon the availability of, or on obtaining, financing from a third party non-Affiliate.

 

“LTM Period” means the most recent four consecutive fiscal quarters of the Company 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 Company), in each case, prior to such date of determination.

 

“Material Corporate Indebtedness” means any (i) Credit Facility, including the Senior Secured Credit Facilities, incurred pursuant to clause (2) of the definition of “Permitted Indebtedness” or (ii) capital markets debt securities of the Company or any Guarantor of the Notes, in each case, constituting Material Indebtedness.

 

“Material Indebtedness” means Indebtedness (other than the Notes) of any one or more of the Company or any of its Subsidiaries in an individual principal amount of $250.0 million at any time.

 

 

“MBS Trust” means any of the trusts or trust estates in which any Mortgage Loan, being serviced or specially serviced by the Company or any Guarantor pursuant to the terms and provisions of the applicable Collateral Transaction Documents, are held by the related trustee

 

“Moody’s” means Moody’s Investors Service, Inc., a subsidiary of Moody’s Corporation, and its successors.

 

“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” means any mortgage-backed security, pass-through certificate, collateralized mortgage obligation, participation certificate, or any other instrument or beneficial interest in a pool of mortgage loans or secured by or referencing mortgage loans, whether issued or guaranteed by an Agency, other governmental authority, or any private entity.

 

“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” means all rights, title and interests of the Company or the applicable Guarantor in its capacity as servicer, primary servicer, master servicer or special servicer (or similar capacity, howsoever denominated), as applicable, in, to and under the related Collateral Transaction Document and/or Servicing Agreements, whether now or hereafter existing, acquired or created, whether or not yet accrued, earned, due or payable, as well as all other present and future right and interest under such Collateral Transaction Document and/or Servicing Agreements, including, without limitation: (a) the rights to service or special service, as applicable, the related Mortgage Loans; (b) the right to receive compensation (whether direct or indirect) for such servicing or special servicing, as applicable, including the right to receive and retain the servicing fee and all other income, as applicable; (c) the right to hold and administer related custodial accounts, escrow accounts, reserve accounts and any other accounts and the right to hold, administer and, if applicable, receive earnings on the funds and investments related to any such accounts and the related servicing file arising from or connected to the servicing or special servicing of the related Mortgage Loans under such Collateral Transaction Document and/or Servicing Agreement; (d) all rights, powers and privileges incidental to the foregoing, together with all tiles, material documents, instruments, surveys (if available), certificates, correspondence, appraisals, computer records, computer storage media, accounting records and other books and records relating thereto; and (e) the nonexclusive right to use (in common with the Company or such Guarantor) the Company’s or such Guarantor’s operating systems to manage and administer the Mortgage Loans and any of the data and information related thereto, or that otherwise relates to the Mortgage Loans, together with the media on which the same are stored to the extent stored with material information or data that relates to property other than the Mortgage Loans, and the Company’s or such Guarantor’s rights to access the same, whether exclusive or nonexclusive, to the extent that such access rights may lawfully be transferred or used by the Company’s or such Guarantor’s assignees or designees, and any computer programs that are owned by the Company or such Guarantor (or licensed to the Company or such Guarantor under licenses that may lawfully be transferred or used by the Company’s or such Guarantor’s assignees or designees) and that are used or useful to access, organize, input, read, print or otherwise output and otherwise handle or use such information and data.

 

 

“MSR Subsidiary” means, each of WDLLC and WD Capital.

 

“Net Proceeds” means, with respect to any Asset Sale, an amount equal to: (i) aggregate cash payments (including any cash received by way of deferred payment pursuant to a note receivable or otherwise, and the conversion of any non-cash asset to cash, but only as and when so received) received by the Company or any of its Subsidiaries (other than an Excluded Subsidiary) from such Asset Sale, minus (ii) any bona fide direct costs incurred in connection with such Asset Sale, including (1) income or gains taxes paid or payable by the seller, (2) payment of the outstanding principal amount of, premium or penalty, if any, and interest on any Indebtedness that is secured by a Lien on the stock or assets (or the equity of any Subsidiary (other than an Excluded Subsidiary) owning the assets) in question and that is required to be repaid under the terms thereof as a result of such Asset Sale, (3) reasonable and customary out-of-pocket legal, underwriting and other fees and expenses incurred in connection therewith and (4) a reasonable reserve for any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by the Company or any of its Subsidiaries (other than an Excluded Subsidiary) in connection with such Asset Sale or for adjustments to the sale price in connection therewith; provided if all or any portion of any such reserve is not used or is released, then the amount not used or released shall comprise Net Proceeds, minus (iii) mandated fees and penalties by any Agency, if any, and all customary or reasonable commissions, discounts, fees, costs and expenses associated therewith.

 

“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, the Company or any Guarantor (and for which none of the Company nor any Guarantor 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 the Company or any Guarantor or the assets thereof (other than (i) usual and customary carve out matters for which the Company 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 Company in accordance with GAAP), (b) is owing to a Person that is not the Company, a Subsidiary of the Company or an Affiliate of the Company 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.

 

“Non-U.S. Person” means a Person who is not a U.S. Person.

 

“Note Guarantee” means the guarantee by each Guarantor of the Company’s obligations under this Indenture and the Notes pursuant to the provisions of this Indenture.

 

“Notes” means the Initial Notes and more particularly means any Note authenticated and delivered under this Indenture. For all purposes of this Indenture, the term “Notes” shall also include any Additional Notes that may be issued in accordance with the terms of this Indenture.

 

“Obligations” means all obligations for principal, premium, interest, penalties, fees, indemnification, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness.

 

 

“OID Legend” means the legend set forth in Section 2.06(g)(iv) hereof to be placed on each Note issued hereunder that has more than a de minimis amount of original issue discount for U.S. federal income tax purposes.

 

“Offering Memorandum” means the Company’s offering memorandum dated March 4, 2025, relating to the sale of the Initial Notes.

 

“Officer” means the Chairman of the Board, the Chief Executive Officer, the Chief Financial Officer, the President, any Executive Vice President, Senior Vice President, Vice President (or the equivalent thereof) or Treasurer, of the Company. A reference to an “Officer” of a Guarantor has a correlative meaning.

 

“Officer’s Certificate” means a certificate signed by or on behalf of a Person by an Officer of such Person and delivered to the Trustee.

 

“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 Capitalized Lease Obligation.

 

“Opinion of Counsel” means a written opinion from legal counsel who is reasonably acceptable to the Trustee. The counsel may be an employee of or counsel to the Company.

 

“Pari Passu Debt” means Indebtedness of the Company or its Subsidiary (other than an Excluded Subsidiary) that is pari passu in right of payment with the Notes or a Note Guarantee. For the purposes of this definition, no Indebtedness will be considered to be senior or junior by virtue of being secured on a first or junior priority basis.

 

“Partial Interest Asset Sale” means the sale by the Company or any Guarantor to a third party of a partial interest in an asset, which sale is permitted pursuant to Section 4.10 hereof.

 

“Participant” means, with respect to the Depositary, Euroclear or Clearstream, a Person who has an account with the Depositary, Euroclear or Clearstream, respectively (and, with respect to DTC, shall include Euroclear and Clearstream).

 

“Permitted Business” means the businesses of the Company and its Subsidiaries as described in this offering memorandum and businesses that are reasonably related, ancillary or complementary thereto or reasonable developments or extensions thereof.

 

“Permitted Funding Collateral” means, with respect to any Permitted Funding Indebtedness or Agency Repurchase Indebtedness, such assets of the borrower thereunder as are pledged to support such Permitted Funding Indebtedness or Agency Repurchase Indebtedness, as applicable. For the avoidance of doubt, in no event shall Permitted Funding Collateral include (a) any right to payments owed to the Company or any Guarantor under any of the Servicing Agreements 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 the Company or any Guarantor 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 the Company or any Guarantor: (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 the Company or the Guarantor, as applicable, that is providing such guarantee, (b) unsecured guarantees of Permitted Funding Indebtedness or Agency Repurchase Indebtedness and (c) guarantees of obligations of an entity in which the Company, any Guarantor 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 the Company, the Guarantors or such entity.

 

“Permitted Hedging Transactions” means entering into instruments and contracts and making margin calls thereon by the Company or any of its Subsidiaries (other than an Excluded Subsidiary) in reasonable relation to a Permitted Business that are entered into for bona fide hedging purposes and not for speculative purposes (as determined in good faith by the Board of Directors or senior management of the Company or such Subsidiary (other than an Excluded Subsidiary)) and shall include, without limitation, interest rate swaps, caps, floors, collars and forward hedge or mortgage sale contracts and similar instruments, “interest only” mortgage derivative assets or other mortgage derivative products, future contracts and options on futures contracts on the Eurodollar, Federal Funds, Treasury bills and Treasury rates and similar financial instruments.

 

“Permitted Indebtedness” means, without duplication, each of the following:

 

(1)            Indebtedness under the Notes issued on the Issue Date and the Note Guarantees;

 

(2)            Indebtedness of the Company or any Subsidiary under Credit Facilities in an aggregate principal amount not to exceed the sum of (x) $500.0 million plus, if and to the extent approved by Fannie Mae where Fannie Mae consent is required (y) the greater of (i) $325.0 million and (ii) 100.0% of Consolidated Adjusted EBITDA as of the most recently ended LTM Period plus (z) an amount (with any amounts incurred under this clause (z) deemed to be Consolidated Net Secured Corporate Indebtedness for this purpose) such that, after giving pro forma effect to the incurrence of such additional amount and the application of proceeds therefrom, the Consolidated Net Secured Leverage Ratio would not exceed 3.00 to 1.00, in each case at any one time outstanding;

 

(3)            other Indebtedness and Preferred Stock of the Company and its Subsidiaries outstanding on the Issue Date (excluding Indebtedness described in clauses (1) and (2) above);

 

(4)            Permitted Hedging Transactions;

 

(5)            Indebtedness under Hedge Agreements (excluding Hedge Agreements entered into for speculative purposes);

 

(6)            unsecured intercompany Indebtedness (i) owed by the Company or any Subsidiaries to the Company or a Subsidiary and (ii) owed by the Company or any Subsidiaries to any Excluded Subsidiary; provided, however, that in respect with this subsection 6(ii), if the Company or any Guarantor is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations with respect to the Notes;

 

 

(7)            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 the Company or a Guarantor or an Excluded Subsidiary under a program or arrangement comparable to the loss sharing arrangements with Fannie Mae;

 

(8)            Subordinated Indebtedness; provided, that in the case of each incurrence of such Subordinated Indebtedness, (i) no Event of Default shall have occurred and be continuing or would result from the incurrence of such Subordinated Indebtedness and (ii) such Subordinated Indebtedness shall not be recourse or guaranteed by any Person that is not the Company or a Guarantor;

 

(9)            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;

 

(10)            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);

 

(11)            Securitization Transaction Attributed Indebtedness;

 

(12)            Refinancing Indebtedness;

 

(13)            any guarantee by the Company or a Subsidiary of Indebtedness or other obligations of any Subsidiary of the Company (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 clauses (7) and (10) of this definition) so long as the incurrence of such Indebtedness incurred by such Subsidiary of the Company is permitted under the terms of this Indenture; provided that any Guarantees of Subordinated Indebtedness or other Indebtedness that is subordinated to the notes shall also be subordinated to the notes on the same basis as the Indebtedness being guaranteed.

 

(14)            Non-Recourse Indebtedness;

 

(15)            [reserved];

 

(16)            Indebtedness incurred in connection with Capital Lease Obligations and purchase money Indebtedness in an aggregate amount not to exceed the greater of (i) $100.0 million and (ii) 30.0% of Consolidated Adjusted EBITDA as of the most recently ended LTM Period;

 

(17)            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, in each case, incurred or assumed in connection with the disposition or purchase of assets permitted by this Indenture;

 

 

(18)            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;

 

(19)            (x) Acquired Indebtedness and Indebtedness incurred by the Company or any Subsidiary of the Company (other than an Excluded Subsidiary) in connection with the acquisition of a Permitted Business or its assets and (y) Indebtedness of a Person or any of its Subsidiaries existing at the time such Person becomes a Subsidiary of the Company (other than an Excluded Subsidiary) or at the time it merges or consolidates with the Company or any of its Subsidiaries (other than an Excluded Subsidiary) or assumed in connection with the acquisition of assets by the Company or any of its Subsidiary (other than an Excluded Subsidiary) or secured by a Lien encumbering any asset acquired by the Company or any of its Subsidiary (other than an Excluded Subsidiary) and, in each case, not incurred by, in connection with, or in anticipation or contemplation of, such Person becoming a Subsidiary of the Company or such acquisition, merger or consolidation in connection with the acquisition of a Permitted Business or such assets; provided that, in each case, on the date of the assumption or incurrence of such Indebtedness, after giving effect to the assumption or incurrence thereof and the use of proceeds therefrom, either:

 

(a)            the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Net Corporate Leverage Ratio set forth in Section 4.09(b); or

 

(b)            the Consolidated Corporate Leverage Ratio would not be higher than the ratio of Consolidated Corporate Leverage Ratio immediately prior to the incurrence or assumption of such Indebtedness;

 

(20)            shares of Preferred Stock of a Subsidiary of the Company issued to the Company or another Subsidiary; provided that any subsequent issuance or transfer of any Capital Stock or any other event which results in any such Subsidiary ceasing to be a Subsidiary or any other subsequent transfer of any such share of Preferred Stock (except to the Company or another Subsidiary) shall be deemed in each case to be an issuance of such shares or Preferred Stock not permitted by this clause (20);

 

(21)            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;

 

(22)            Obligations in respect of, or Indebtedness that may be deemed to exist pursuant to, any guarantees, performance, surety, statutory, appeal or similar obligations (including Obligations under any letter of credit incurred for such purposes) incurred in the ordinary course of business or in connection with judgments that do not result in an Event of Default;

 

(23)            additional Indebtedness incurred by the Company and the Subsidiaries in an aggregate principal amount not to exceed the greater of (i) $130.0 million and (ii) 40.0% of Consolidated Adjusted EBITDA as of the most recently ended LTM Period; provided that no Event of Default shall have occurred and be continuing or would result from the incurrence thereof; and

 

 

(24)            Agency Repurchase Indebtedness.

 

For purposes of determining compliance with Section 4.09 hereof, (x) in the event that an item of Indebtedness or Preferred Stock meets the criteria of more than one of the categories of Permitted Indebtedness described in clauses (1) through (24) above or is entitled to be incurred pursuant to 4.09(b), the Company shall, in its sole discretion, classify (and may later reclassify) such item of Indebtedness or Preferred Stock or any portion thereof in any manner that complies with Section 4.09; provided that Indebtedness under the Senior Secured Credit Facilities outstanding on the Issue Date shall be deemed incurred pursuant to clause (2)(x) above and may not be reclassified and (y) in the event an item of Indebtedness (or any portion thereof) is incurred other than in reliance on an applicable ratio (such Indebtedness, the “Fixed Dollar Incurrence”) on the same date that an item of Indebtedness (or any portion thereof) is incurred in reliance on an applicable ratio, then the applicable ratio will be calculated with respect to such incurrence without regard to any concurrent Fixed Dollar Incurrence. Accrual of interest, accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Capital Stock in the form of additional shares of the same class of Disqualified Capital Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Capital Stock for purposes of Section 4.09 hereof.

 

Notwithstanding any other provision of this Indenture to the contrary, for all purposes during the term of this Indenture, each lease in existence on the Issue Date shall have the same characterization as a Capitalized Lease Obligation or an Operating Lease as the characterization of that lease in the most recent financial statements in existence on the Issue Date, notwithstanding any change in characterization of that lease subsequent to the Issue Date by the Company based on changes in GAAP or its interpretation of GAAP.

 

“Permitted Investments” means:

 

(1)            any Investment in the Company or in a Subsidiary (other than an Excluded Subsidiary) (including, for the avoidance of doubt, an acquisition of assets useful in a Permitted Business, if as a result of such acquisition, such assets become owned by the Company or a Subsidiary (other than an Excluded Subsidiary));

 

(2)            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 documentation for Credit Facilities) or any restriction on the creation, incurrence, assumption or existence of Liens thereon;

 

(3)            any Investment by the Company or any Subsidiary (other than an Excluded Subsidiary) of the Company in a Person, if as a result of such Investment (x) such Person becomes a Subsidiary (other than an Excluded Subsidiary) of the Company (including by means of a Division) or (y) such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, the Company or a Subsidiary (other than an Excluded Subsidiary) of the Company;

 

(4)            So long as no Event of Default has occurred and is continuing or would result therefrom, Investments by the Company or any Subsidiary in Securitization Entities in connection with a Qualified Securitization Transaction, or Investments in mortgage-related securities or charge-off receivables in the ordinary course of business;

 

(5)            Investments arising out of purchases of all remaining outstanding asset-backed securities of any Securitization Entity and/or Securitization Assets of any Securitization Entity in the ordinary course of business or for the purpose of relieving the Company or a Subsidiary of the Company of the administrative expense of servicing such Securitization Entity;

 

(6)            Investments by the Company or any Subsidiary in the form of loans extended to non-Affiliate borrowers in connection with any loan origination business of the Company or such Subsidiary in the ordinary course of business;

 

 

(7)            any Investment made as a result of the receipt of securities or other assets of non-cash consideration from any disposition of assets not constituting an Asset Sale or from an Asset Sale that was made pursuant to and in compliance with Section 4.10 hereof;

 

(8)            Investments made solely in exchange for the issuance of Equity Interests (other than Disqualified Capital Stock) of the Company or any Excluded Subsidiary;

 

(9)            any Investments received in compromise or resolution of (a) obligations of trade creditors or customers that were incurred in the ordinary course of business of the Company or any of its Subsidiaries, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer, or (b) litigation, arbitration or other disputes with Persons who are not Affiliates;

 

(10)            Investments in connection with Hedging Agreements and Permitted Hedging Transactions;

 

(11)            repurchases of the Notes;

 

(12)            guarantees of Indebtedness permitted under Section 4.09 hereof;

 

(13)            any transaction to the extent it constitutes an Investment that is permitted and made in accordance with Section 4.11(b) hereof (except transactions described in clauses (vii) and (ix) of such Section 4.11(b) hereof);

 

(14)            purchases of assets in the ordinary course of business;

 

(15)            deposits made in the ordinary course of business to secure the performance of leases or other obligations with respect to Permitted Liens;

 

(16)            any Investment existing on the Issue Date or made pursuant to binding commitments in effect on the Issue Date or an Investment consisting of any replacement, refinancing, refunding, extension, modification or renewal of any of the foregoing; provided that the amount of any such Investment may only be increased pursuant to this clause (16) to the extent required by the terms of such Investment or the binding commitments therefor, as applicable, as in existence on the Issue Date or as otherwise permitted under this Indenture;

 

(17)            any Investment by the Company or any Subsidiary of the Company in any Person where such Investment was acquired by the Company or any Subsidiary (other than an Excluded Subsidiary) of the Company (a) in exchange for any other Investment or accounts receivable held by the Company or any such Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of the issuer of such other Investment or accounts receivable, or (b) as a result of a foreclosure by the Company or any Subsidiary of the Company with respect to any secured Investment or other transfer of title with respect to any secured Investment in default;

 

(18)            other Investments not to exceed the greater of (i) $85.0 million and (ii) 25.0% of Consolidated Adjusted EBITDA as of the most recently ended LTM Period;

 

(19)            purchases of mortgage-backed securities or similar debt instruments related to a Permitted Business;

 

 

(20)            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 $25.0 million (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;

 

(21)            Investments (i) in any securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors and (ii) consisting of deposits, prepayments and other credits to suppliers made in the ordinary course of business consistent with the past practices of the Company and its Subsidiaries;

 

(22)            Investments in Excluded Subsidiaries (including, for the avoidance of doubt, (i) an acquisition of assets, if as a result of such acquisition, such assets become owned by an Excluded Subsidiary and (ii) any Investment by an Excluded Subsidiary in a Person, if as a result of such Investment (x) such Person becomes an Excluded Subsidiary of the Company (including by means of a Division) or (y) such Person is merged, consolidated, or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, an Excluded Subsidiary of the Company) in an aggregate principal amount at any time outstanding not to exceed the greater of (x) $162.5 million and (y) 50.0% of Consolidated Adjusted EBITDA as of the most recently ended LTM Period; provided that no Event of Default has occurred and is continuing or would result therefrom;

 

(23)            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) no Event of Default shall have occurred and be continuing, and (ii) the Consolidated Net Corporate Leverage Ratio will not exceed 3.00 to 1.00 calculated on a Pro Forma Basis and determined as of the most recently ended LTM Period; and

 

(24)            Investments by the Company or any Guarantor consisting of capital expenditures not otherwise prohibited by this Indenture.

 

“Permitted Liens” means the following types of Liens:

 

(1)            Liens for taxes, assessments or governmental charges or claims either (a) not yet delinquent for a period of more than 90 days, or (b) contested in good faith by appropriate proceedings promptly instituted and diligently conducted 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;

 

(2)            (i) contractual or statutory Liens of landlords to the extent relating to the property and assets relating to any lease agreements with such landlord, (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 and (iii) the claims of materialmen, mechanics, carriers, warehousemen, processors or landlords for labor, materials, supplies or rentals incurred in the ordinary course of business, which (a) 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 (b) do not, individually or in the aggregate, materially impair the operation of the business of the Company or any of the other Guarantors;

 

(3)            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 Property of the Company or its Subsidiaries on account thereof;

 

 

(4)            Liens existing on the Issue Date (excluding Liens securing Indebtedness permitted to be incurred pursuant to clause (2) of the definition of “Permitted Indebtedness”);

 

(5)            (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 Company or any of its Subsidiaries existing at the time such tangible property or tangible assets are purchased or otherwise acquired by the Company or such Subsidiary thereof pursuant to a transaction permitted pursuant to this Indenture; 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 Company or any of its Subsidiaries and (E) the Indebtedness secured by such Liens is permitted by clause 19 of the definition of “Permitted Indebtedness”);

 

(6)            Liens securing Indebtedness permitted to be incurred pursuant to clause (16) of the definition of “Permitted Indebtedness”; 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);

 

(7)            Liens on Permitted Funding Collateral securing Permitted Funding Indebtedness or Agency Repurchase Indebtedness permitted pursuant to clauses (10) and (24) of the definition of “Permitted Indebtedness”;

 

(8)            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 Guarantors or materially detract from the value of the relevant assets of the Borrower or the other Guarantors or (ii) secure any Indebtedness;

 

(9)            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 Company or its Subsidiaries;

 

(10)            Liens securing Indebtedness permitted to be incurred pursuant to clause (2) of the definition of “Permitted Indebtedness”;

 

(11)            Liens on the Equity Interests issued by an Excluded Subsidiary to secure any Permitted Guarantee with respect to Indebtedness of such Excluded Subsidiary;

 

(12)            Liens securing Non-Recourse Indebtedness so long as such Lien shall encumber only (i) any Equity Interests of the Subsidiary which owes such Indebtedness, (ii) the assets originated, acquired or funded with the proceeds of such Non-Recourse Indebtedness and (iii) any intangible contract rights and other accounts, documents, records and other property directly related to the foregoing;

 

 

(13)            grants of software and other technology licenses in the ordinary course of business;

 

(14)            Liens to secure any refinancing, refunding, extension, renewal or replacement (or successive refinancings, refundings, extensions, renewals or replacements) as a whole, or in part, of any Indebtedness secured by any Lien referred to in clauses (4), (5), (6) and (10) of this definition; provided, however, that (x) such new Lien shall be limited to all or part of the same property that secured the original Lien (plus improvements on such property), and (y) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (A) the outstanding principal amount or, if greater, committed amount of the Indebtedness described under clauses (4), (5), (6) and (10) of this definition at the time the original Lien became a Permitted Lien under this Indenture, and (B) an amount necessary to pay any accrued and unpaid interest, fees and expenses, including premiums, related to such refinancing, refunding, extension, renewal or replacement;

 

(15)            Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale or purchase of goods entered into in the ordinary course of business;

 

(16)            Liens incurred to secure cash management services or to implement cash pooling arrangements in the ordinary course of business and Liens arising by virtue of any statutory or common law provisions relating to banker’s Liens, rights of setoff or similar rights and remedies as to deposit accounts, securities accounts or other funds maintained with a depository or financial institution or securities intermediary;

 

(17)            any encumbrance or restriction (including put and call arrangements) with respect to Capital Stock of any joint venture or similar arrangement pursuant to any joint venture or similar agreement;

 

(18)            Liens securing judgments for the payment of money not constituting an Event of Default or securing appeal or other surety bonds relating to such judgments;

 

(19)            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;

 

(20)            Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;

 

(21)            Liens securing reimbursement obligations with respect to letters of credit which encumber documents and other property relating to such letters of credit and products and proceeds thereof;

 

(22)            Liens encumbering deposits made to secure obligations arising from statutory, regulatory, contractual, or warranty requirements of the Company or any of its Subsidiaries, including rights of offset and setoff;

 

(23)            Liens securing Permitted Hedging Transactions or Indebtedness under Hedge Agreements and the costs thereof;

 

 

(24)            Liens in favor of an Agency (or a custodian on behalf of such Agency) under the Agency Agreements;

 

(25)            Liens with respect to obligations at any one time outstanding that do not exceed the greater of (x) $130.0 million and (y) 40.0% of Consolidated Adjusted EBITDA as of the most recently ended LTM Period at any time outstanding;

 

(26)            Liens on the Securitization Assets purported to be sold to a Securitization Entity in a Qualified Securitization Transaction or securing Securitization Transaction Attributed Indebtedness;

 

(27)            (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 the Company or a Guarantor; and

 

(28)            (i) Liens (a) on cash advances or escrow deposits in favor of the seller of any property to be acquired in an Investment to be applied against the purchase price for such Investment or otherwise in connection with any escrow arrangements with respect to any such Investment (including any letter of intent or purchase agreement with respect to such Investment), or (b) consisting of an agreement to sell, transfer, lease or otherwise dispose of any property in a transaction permitted by Section 4.10 hereof or which does not constitute an Asset Sale, in each case, solely to the extent such Investment or sale, disposition, transfer or lease, as the case may be, would have been permitted under this Indenture on the date of the creation of such Lien and (ii) Liens in connection with escrow arrangements for the proceeds of Indebtedness intended to fund an acquisition or other Investment (or refinance, replace, modify, repay, redeem, refund, renew or extend Indebtedness in connection therewith) and related costs and expenses (including any refinancing, replacement, modification, repayment, redemption, refunding, renewal or extension thereof).

 

For purposes of determining compliance with Section 4.12 hereof, (x) in the event that a Lien meets the criteria of more than one of the categories of Liens described in clauses (1) through (28) above, the Company shall, in its sole discretion, classify (and may later reclassify) such Lien or any portion thereof in any manner that complies with Section 4.12 hereof and (y) in the event a Lien is created pursuant to a Fixed Dollar Incurrence, or secures Indebtedness (or any portion thereof) that is incurred pursuant to a Fixed Dollar Incurrence, in each case, on the same date that a Lien is created securing an item of Indebtedness (or any portion thereof) incurred in reliance on an applicable ratio, then the applicable ratio will be calculated with respect to such incurrence without regard to any concurrent Fixed Dollar Incurrence.

 

“Person” means an individual, partnership, corporation, limited liability company, unincorporated organization, trust or joint venture, or a governmental agency or political subdivision thereof.

 

“Private Placement Legend” means the legend set forth in Section 2.06(g)(i) hereof to be placed on all Notes issued under this Indenture, except where otherwise permitted by the provisions of this Indenture.

 

“Preferred Stock” of any Person means any Capital Stock of such Person that has preferential rights to any other Capital Stock of such Person with respect to dividends or redemptions or upon liquidation.

 

 

“Pro Forma Basis” means, for purposes of calculating the Consolidated Net Corporate Leverage Ratio or the Consolidated Net Secured Leverage 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 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 Sale 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;

 

(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 Adjusted EBITDA as of the most recently ended LTM Period (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 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.

 

“QIB” means a “qualified institutional buyer” as defined in Rule 144A.

 

“Qualified Capital Stock” means any Capital Stock that is not Disqualified Capital Stock.

 

“Qualified Securitization Transaction” means, any Securitization Transaction, provided that (a) the consideration for the Asset Sale of Securitization Assets by the Company or any Guarantor to any Securitization Entity is not less than fair market value, (b) the board of directors (or equivalent) of the Company 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 Company and/or such Guarantor, (c) except for the Standard Securitization Undertakings related thereto, the obligations under such Securitization Transaction are non-recourse to the Company 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.

 

“Rating Agencies” means Moody’s and S&P.

 

“Realizable Value” means, with respect to any asset of the Company or any of its Subsidiaries, (a) in the case of any real property owned by the Company 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 Company 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 Company 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 Company 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 Company 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 Company and its Subsidiaries have a binding commitment to purchase from a Person that is not the Company, a Subsidiary of the Company or an Affiliate of the Company or its Subsidiaries shall be the minimum price payable to the Company and its Subsidiaries for such asset pursuant to the terms of such contractual commitment.

 

 

“Record Date” for the interest payable on any applicable Interest Payment Date means March 15 or September 15 (whether or not a Business Day) next preceding such Interest Payment Date.

 

“Refinance” means, in respect of any security or Indebtedness, to refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue a security or Indebtedness in exchange or replacement for, such security or Indebtedness in whole or in part. “Refinanced” and “Refinancing” shall have correlative meanings.

 

“Refinancing Indebtedness” means any Refinancing by the Company or any Subsidiary of the Company of Indebtedness incurred in accordance with clause (1), (3), (10), (12), (15), (16), (19) and (24) of the definition of “Permitted Indebtedness” or incurred pursuant to Section 4.09(b) hereof, and in each case that does not:

 

(1)            result in an increase in the aggregate principal amount of Indebtedness of such Person as of the date of such proposed Refinancing (or, if such Refinancing Indebtedness is issued with original issue discount, the aggregate issue price of such Indebtedness is not more than the aggregate principal amount of Indebtedness being refinanced), assuming any existing commitments under the Indebtedness being Refinanced are fully drawn, except by an amount equal to unpaid accrued interest, premium and other defeasance costs on the Indebtedness being Refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such Refinancing and amounts of Indebtedness otherwise permitted to be incurred under this Indenture); or

 

(2)            create Indebtedness with a Weighted Average Life to Maturity that is less than the Weighted Average Life to Maturity of the Indebtedness being Refinanced; or a scheduled final maturity earlier than the scheduled final maturity of the Indebtedness being Refinanced;

 

provided that (i) (a) if the Indebtedness being Refinanced is Indebtedness of the Company or a Subsidiary Guarantor, such Refinancing Indebtedness is incurred by the Company or any Subsidiary Guarantor or (b) if the Indebtedness being Refinanced is Indebtedness of a Subsidiary (other than the Company) that is not a Guarantor, such Refinancing Indebtedness is incurred by the Company or any Subsidiary, (ii) if the Indebtedness being Refinanced is subordinate or junior to the Notes or any Note Guarantee, then such Refinancing Indebtedness shall be subordinate to the Notes or such Note Guarantee at least to the same extent and in the same manner as the Indebtedness being Refinanced and (iii) if the Indebtedness being Refinanced was incurred pursuant to clause (10) or clause (24) of the definition of “Permitted Indebtedness,” then such Refinancing Indebtedness must be Permitted Funding Indebtedness or Agency Repurchase Indebtedness, as applicable.

 

“Regulation S” means Regulation S promulgated under the Securities Act.

 

 

“Regulation S Global Note” means a Global Note, substantially in the form of Exhibit A hereto, bearing the Global Note Legend and, if applicable, the OID Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued in a denomination equal to the outstanding principal amount of the Notes initially sold in reliance on Rule 903..

 

“Responsible Officer” means, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice president, any assistant vice president, any trust officer, any assistant trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such Person’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.

 

“Restricted Definitive Note” means a Definitive Note bearing, or that is required to bear, the Private Placement Legend and, if applicable, the OID Legend.

 

“Restricted Global Note” means a Global Note bearing, or that is required to bear, the Private Placement Legend and, if applicable, the OID Legend.

 

“Restricted Investment” means an Investment other than a Permitted Investment.

 

“Restricted Note” means a Restricted Definitive Note or a Restricted Global Note, as the case may be.

 

“Rule 144” means Rule 144 promulgated under the Securities Act.

 

“Rule 144A” means Rule 144A promulgated under the Securities Act.

 

“Rule 903” means Rule 903 promulgated under the Securities Act.

 

“Rule 904” means Rule 904 promulgated under the Securities Act.

 

“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and its successors.

 

“SEC” means the United States Securities and Exchange Commission and any successor governmental authority performing a similar function.

 

“Secured Debt” means any Indebtedness that is secured by a Lien on any assets, property or Equity Interests of the Company or any of its Subsidiaries (regardless of the Realizable Value of such assets, property or Equity Interests).

 

“Securities Act” means the Securities Act of 1933, as amended, or any successor statute or statutes thereto.

 

“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 the Company or any Guarantor under any of the Servicing Agreement 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 Company (or another Person formed for the purposes of engaging in a Qualified Securitization Transaction with the Company or a Guarantor in which the Company or such Guarantor makes an Investment or to which the Company or such Guarantor 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 the Company or any Guarantor (excluding unsecured guarantees of obligations pursuant to Standard Securitization Undertakings);

 

(2)            is recourse to or obligates the Company or any Guarantor in any way other than pursuant to unsecured guarantees of Standard Securitization Undertakings, or

 

(3)            is secured by any property or asset of the Company or any Guarantor, directly or indirectly, contingently or otherwise, for the satisfaction thereof;

 

(b)            with which neither the Company nor any Guarantor 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 Company reasonably believes to be no less favorable to the Company or such Guarantor than those that might be obtained at the time from Persons that are not Affiliates of the Company, and

 

(c)            to which neither the Company nor any Guarantor 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 the Company or a Guarantor (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.

 

“Senior Secured Credit Facilities” means the credit facilities, consisting on the Issue Date of a revolving facility and a term loan facility, incurred under the Amended and Restated Credit Agreement, dated as of the Issue Date, among the Company, as the borrower, the lenders that are from time to time parties thereto and JPMorgan Chase Bank, N.A., as administrative agent, as such agreement may be amended (including any amendment and restatement thereof), supplemented or otherwise modified from time to time, including any agreement extending the maturity of, increasing the interest rate or fees applicable thereto, refinancing, replacing or otherwise restructuring (including adding Subsidiaries of the Company as additional borrowers or guarantors thereunder) all or any portion of the Indebtedness under any such agreement or any successor or replacement agreement and any indentures or other credit facilities and whether by the same or any other agent, lender or group of lenders.

 

 

“Servicing Agreements” means, with respect to any Person, the arrangement, whether or not in writing, under which that Person has the right to service Mortgage Loans.

 

“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 this Indenture 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 the Company or any Guarantor which are customary in similar securitization transactions.

 

“Subordinated Indebtedness” means the collective reference to any Indebtedness incurred by the Company or any of its Subsidiaries (other than Excluded Subsidiaries) that is contractually subordinated or junior in right of payment to the notes or any Notes Guarantee.

 

“Subsidiary,” with respect to any Person, means:

 

(1)            any corporation of which the outstanding Capital Stock having at least a majority of the votes entitled to be cast in the election of directors under ordinary circumstances shall at the time be owned, directly or indirectly, by such Person; or

 

(2)            any other Person of which at least a majority of the voting interest under ordinary circumstances is at the time, directly or indirectly, owned by such Person.

 

“Subsidiary Guarantor” means each Subsidiary of the Company that is not an Excluded Subsidiary and that provides a Note Guarantee in accordance with the provisions of this Indenture and its successors and assigns, until the Note Guarantee of such Person has been released in accordance with the provisions of this Indenture.

 

“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.

 

“Treasury Rate” means, as determined by the Company, with respect to any redemption date, the weekly average rounded to the nearest 1/100th of a percentage point (for the most recently completed week for which such information is available as of the date that is two Business Days prior to such redemption date) of the yield to maturity of United States Treasury securities with a constant maturity (as compiled and published in Federal Reserve Statistical Release H. 15 with respect to each applicable day during such week (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the redemption date to April 1, 2028; provided, however, that if the period from such redemption date to April 1, 2028 is less than one year, the weekly average yield on actively traded United States Treasury securities adjusted to a constant maturity of one year will be used.

 

“Trustee” means U.S. Bank Trust Company, National Association, as trustee, until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder.

 

 

“Unrestricted Cash” means, at any time, cash and Cash Equivalents reflected on the consolidated balance sheet of the Company and the Guarantors at such time to the extent such cash or Cash Equivalent is not reflected as “restricted”.

 

“Unrestricted Definitive Note” means one or more Definitive Notes, substantially in the form of Exhibit A hereto, that bear, if applicable, the OID Legend and that do not bear and are not required to bear the Private Placement Legend.

 

“Unrestricted Global Note” means a permanent Global Note, substantially in the form of Exhibit A hereto, that bears the Global Note Legend and, if applicable, the OID Legend and that has the “Schedule of Exchanges of Interests in the Global Note” attached thereto, and that is deposited with or on behalf of and registered in the name of the Depositary, representing Notes that do not bear and are not required to bear the Private Placement Legend.

 

“U.S. Person” means a U.S. person as defined in Rule 902(k) under the Securities Act.

 

“Voting Stock” of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.

 

“Weighted Average Life to Maturity” means, when applied to any Indebtedness, Disqualified Capital Stock or Preferred Stock, as the case may be, at any date, the number of years obtained by dividing: (1) the then outstanding aggregate principal amount of such Indebtedness or redemption or similar payment with respect to such Disqualified Capital Stock or Preferred Stock into (2) the sum of the total of the products obtained by multiplying (i) the amount of each then remaining scheduled installment, sinking fund, serial maturity or other required scheduled payment of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) which will elapse between such date and the making of such payment.

 

“WD Capital” means Walker & Dunlop Capital, LLC, a Massachusetts limited liability company.

 

“WDLLC” means Walker & Dunlop, LLC, a Delaware limited liability company.

 

“Wholly Owned Subsidiary” of any Person means any Subsidiary of such Person of which all the outstanding voting securities (other than in the case of a Foreign Subsidiary, directors’ qualifying shares or an immaterial amount of shares required to be owned by other Persons pursuant to applicable law) are owned by such Person or any Wholly Owned Subsidiary of such Person.

 

SECTION 1.02.      Other Definitions.

 

Term	Defined in Section
“Acceptable Commitment”	4.10
“Affiliate Transaction”	4.11
“Applicable Premium Deficit”	11.01
“Applicable Law”	12.16
“Authentication Order”	2.02
“Asset Sale Offer”	4.10
“Change of Control Offer”	4.14
“Change of Control Payment”	4.14
“Change of Control Payment Date”	4.14

 

 

Term	Defined in Section
“Covenant Defeasance”	8.03
“DTC”	2.03
“Event of Default”	6.01
“Excess Proceeds”	4.10
“incur”	4.09
“Legal Defeasance”	8.02
“Note Register”	2.03
“notice of acceleration”	6.02
“Offer Amount”	3.09
“Offer Period”	3.09
“Paying Agent”	2.03
“Permitted Parties”	4.03
“Purchase Date”	3.09
“Registrar”	2.03
“Restricted Payment”	4.07
“Reversion Date”	4.18
“Surviving Entity”	5.01
“Suspended Covenants”	4.18
“Suspension Period”	4.18
“Trust Indenture Act”	12.01

 

SECTION 1.03.      Rules of Construction. Unless the context otherwise requires:

 

a term has the meaning assigned to it;

 

an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;

 

“or” is not exclusive;

 

words in the singular include the plural, and in the plural include the singular;

 

“including” means including without limitation;

 

“will” shall be interpreted to express a command;

 

provisions apply to successive events and transactions;

 

references to sections of, or rules under, the Securities Act shall be deemed to include substitute, replacement or successor sections or rules adopted by the SEC from time to time;

 

unless the context otherwise requires, any reference to an “Article,” “Section” or “clause” refers to an Article, Section or clause, as the case may be, of this Indenture; and

 

the words “herein,” “hereof’ and “hereunder” and other words of similar import refer to this Indenture as a whole and not any particular Article, Section, clause or other subdivision.

 

 

SECTION 1.04.      Acts of Holders.

 

(a)            Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee and, where it is hereby expressly required, to the Company. Proof of execution of any such instrument or of a writing appointing any such agent, or the holding by any Person of a Note, shall be sufficient for any purpose of this Indenture and (subject to Section 7.01) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section 1.04.

 

(b)            The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by the certificate of any notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by or on behalf of any legal entity other than an individual, such certificate or affidavit shall also constitute proof of the authority of the Person executing the same. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner that the Trustee deems sufficient.

 

(c)            The ownership of Notes shall be proved by the Note Register.

 

(d)            Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Note shall bind every future Holder of the same Note and the Holder of every Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof, in respect of any action taken, suffered or omitted by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Note.

 

(e)            The Company may set a record date for purposes of determining the identity of Holders entitled to give any request, demand, authorization, direction, notice, consent, waiver or take any other act, or to vote or consent to any action by vote or consent authorized or permitted to be given or taken by Holders. Unless otherwise specified, if not set by the Company prior to the first solicitation of a Holder made by any Person in respect of any such action, or in the case of any such vote, prior to such vote, any such record date shall be the later of 30 days prior to the first solicitation of such consent or the date of the most recent list of Holders furnished to the Trustee prior to such solicitation.

 

(f)            Without limiting the foregoing, a Holder entitled to take any action hereunder with regard to any particular Note may do so with regard to all or any part of the principal amount of such Note or by one or more duly appointed agents, each of which may do so pursuant to such appointment with regard to all or any part of such principal amount. Any notice given or action taken by a Holder or its agents with regard to different parts of such principal amount pursuant to this paragraph shall have the same effect as if given or taken by separate Holders of each such different part.

 

(g)            Without limiting the generality of the foregoing, a Holder, including any Depositary that is the Holder of a Global Note, may make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders, and DTC that is the Holder of a Global Note may provide its proxy or proxies to the beneficial owners of interests in any such Global Note through such Depositary’s standing instructions and customary practices.

 

 

(h)            The Company may fix a record date for the purpose of determining the Persons who are beneficial owners of interests in any Global Note held by any Depositary entitled under the procedures of such depositary to make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders. If such a record date is fixed, the Holders on such record date or their duly appointed proxy or proxies, and only such Persons, shall be entitled to make, give or take such request, demand, authorization, direction, notice, consent, waiver or other action, whether or not such Holders remain Holders after such record date. No such request, demand, authorization, direction, notice, consent, waiver or other action shall be valid or effective if made, given or taken more than 90 days after such record date.

 

SECTION 1.05.      Limited Condition Transactions.

 

When calculating the availability under any threshold or basket based on a dollar amount, percentage or other financial measure (a “basket” or “cap”) or ratio under this Indenture, in each case, in connection with a Limited Condition Transaction, the date of determination of such basket, cap or ratio and of any requirement that there be no Default or Event of Default may, at the option of the Company, be the date the definitive agreement(s) for such Limited Condition Transaction is entered into. Any such ratio, basket, cap or requirement shall be calculated on a Pro Forma Basis, after giving effect to such Limited Condition Transaction and other transactions related thereto (including any incurrence or issuance of Indebtedness and the use of proceeds thereof) as if they had been consummated at the beginning of the applicable period or as of the date of determination (e.g., the ratio of Consolidated Corporate Indebtedness to Consolidated Adjusted EBITDA), as applicable, for purposes of determining the ability to consummate any such Limited Condition Transaction and any such related transactions; provided that if the Company elects to make such determination as of the date of such definitive agreement(s), then (i) if any of such ratios are no longer complied with or caps or baskets are exceeded as a result of fluctuations in such ratio, cap or basket (including due to fluctuations in the ratio of Consolidated Corporate Indebtedness to Consolidated Adjusted EBITDA of the Company or the target company) subsequent to such date of determination and at or prior to the consummation of the relevant Limited Condition Transaction and any such related transactions, such ratios, caps or baskets will not be deemed to have been no longer complied with or exceeded as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction and such related transactions are permitted under this Indenture, (ii) such ratios, caps or baskets shall not be tested at the time of consummation of such Limited Condition Transaction and such related transactions, and (iii) during the period on and following the date of any such election by the Company with respect to a given Limited Condition Transaction and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, for purposes of determining whether any unrelated subsequent transaction (including, without limitation, the incurrence of Indebtedness or Liens, the making of Restricted Payments, the making of any Investment, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of the Company, the prepayment, redemption, purchase, defeasance or other satisfaction of Indebtedness, or the designation of an Excluded Subsidiary) is permitted under this Indenture, any applicable ratio, cap or basket shall be required to be satisfied giving pro forma effect to such Limited Condition Transaction and other related transactions (including any incurrence of Indebtedness and the use of proceeds thereof).

 

 

ARTICLE 2
THE NOTES

 

SECTION 2.01.      Form and Dating; Terms.

 

(a)            General. The Notes and the Trustee’s certificate of authentication shall be substantially in the form of Exhibit A hereto. The Notes may have notations, legends or endorsements required by law, stock exchange rules or usage. Each Note shall be dated the date of its authentication. The Notes shall be in minimum denominations of $2,000 and any integral multiple of $1,000 in excess thereof.

 

(b)            Global Notes. Global Notes shall be substantially in the form of Exhibit A hereto (including the Global Note Legend thereon and the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Definitive Notes shall be substantially in the form of Exhibit A hereto (but without the Global Note Legend thereon and without the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Each Global Note shall represent such of the outstanding Notes as shall be specified therein and each shall represent the aggregate principal amount of outstanding Notes from time to time endorsed thereon and the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect transfers, exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06 hereof.

 

(c)            Terms. The aggregate principal amount of Notes that may be authenticated and delivered under this Indenture is unlimited, subject to the limitation in Section 4.09. Notwithstanding anything to the contrary, in no event shall the aggregate principal amount of Notes authenticated and delivered under this Indenture exceed $450,000,000 and, together with the aggregate principal amount of the Senior Secured Credit Facilities, exceed $850,000,000, in each case without Fannie Mae’s prior written consent.

 

The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture and the Company, the Guarantors, if any, and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.

 

The Notes shall be subject to repurchase by the Company pursuant to an Asset Sale Offer as provided in Section 4.10 hereof or a Change of Control Offer as provided in Section 4.14 hereof. The Notes shall not be redeemable, other than as provided in Article 3 hereof.

 

Additional Notes ranking pari passu with the Initial Notes may be created and issued from time to time by the Company without notice to or consent of the Holders and shall be consolidated with and form a single class with the Initial Notes and shall have the same terms as to status, waivers, amendments, offers to repurchase, redemption or otherwise as the Initial Notes (but not as to issue date, issue price, first payment date or interest accruing prior to such first payment date); provided that if any such Additional Notes are not fungible with the Initial Notes for U.S. federal income tax purposes, such Additional Notes shall have a separate CUSIP number; provided, further, that the Company’s ability to issue Additional Notes shall be subject to the Company’s compliance with Section 4.09 hereof.

 

(d)            Euroclear and Clearstream Applicable Procedures. The provisions of the “Operating Procedures of the Euroclear System” and “Terms and Conditions Governing Use of Euroclear” and the “General Terms and Conditions of Clearstream Banking” and “Customer Handbook” of Clearstream shall be applicable to transfers of beneficial interests in the the Regulation S Global Notes that are held by Participants through Euroclear or Clearstream and such provisions shall supersede the provisions in Section 2.06 hereof to the extent that they conflict with such provisions, with respect to such transfers.

 

 

SECTION 2.02.      Execution and Authentication. At least one Officer of the Company shall execute the Notes on behalf of the Company by manual or facsimile signature.

 

If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note shall nevertheless be valid.

 

A Note shall not be entitled to any benefit under this Indenture or be valid or obligatory for any purpose until authenticated substantially in the form of Exhibit A hereto, as the case may be, by the manual signature of the Trustee. The signature shall be conclusive evidence that the Note has been duly authenticated and delivered under this Indenture.

 

On the Issue Date, the Trustee shall, upon receipt of a Company Order to authenticate (an “Authentication Order”) the Initial Notes, authenticate and deliver the Initial Notes. In addition, at any time, from time to time, the Trustee shall, upon receipt of a Board Resolution and an Authentication Order, authenticate and deliver any Additional Notes for an aggregate principal amount specified in such Authentication Order for such Additional Notes issued hereunder. Such Authentication Order shall specify the amount of the Notes to be authenticated and, in case of any issuance of Additional Notes pursuant to Section 2.01 hereof, shall certify that such issuance is in compliance with Section 4.09 hereof.

 

The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of the Company.

 

SECTION 2.03.      Registrar and Paying Agent. The Company shall (a) maintain an office or agency where Notes may be presented for registration of transfer or for exchange (“Registrar”) and (b) an office or agency where Notes may be presented for payment (“Paying Agent”). The Registrar shall keep a register of the Notes (“Note Register”) and of their transfer and exchange. The registered Holder of a Note shall be treated as the owner of the Note for all purposes. The Company may appoint one or more co-registrars and one or more additional paying agents. The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any additional paying agent. The Company may change any Paying Agent or Registrar without prior notice to any Holder. The Company shall notify the Trustee in writing of the name and address of any Agent not a party to this Indenture. If the Company fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.

 

The Company initially appoints The Depository Trust Company (“DTC”) to act as Depositary with respect to the Global Notes representing the Notes.

 

The Company initially appoints the Trustee to act as the Paying Agent and Registrar for the Notes and to act as Custodian with respect to the Global Notes.

 

SECTION 2.04.      Paying Agent to Hold Money in Trust. The Company shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal, premium, if any, and interest on the Notes, and will notify the Trustee in writing of any default by the Company in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it with respect to the Notes to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it with respect to the Notes to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary) shall have no further liability for the money. If the Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Company, the Trustee shall serve as Paying Agent for the Notes.

 

 

SECTION 2.05.      Holder Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders. If the Trustee is not the Registrar, the Company shall furnish to the Trustee at least five Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders of Notes.

 

SECTION 2.06.      Transfer and Exchange.

 

(a)            Transfer and Exchange of Global Notes. Except as otherwise set forth in this Section 2.06, a Global Note may be transferred, in whole and not in part, only to another nominee of the Depositary or to a successor Depositary or a nominee of such successor Depositary. A beneficial interest in a Global Note may not be exchanged for a Definitive Note unless (i) the Depositary (x) notifies the Company that it is unwilling or unable to continue as Depositary for such Global Note or (y) has ceased to be a clearing agency registered under the Exchange Act and, in either case, a successor Depositary is not appointed by the Company within 90 days after the date of such notice from the Depositary, (ii) subject to the procedures of the Depositary, the Company, at its option, notifies the Trustee in writing that it elects to cause the issuance of the Definitive Notes, (iii) there shall have occurred and be continuing a Default or Event of Default with respect to the Notes, or (iv) upon prior written notice given to the Trustee by or on behalf of the Depositary in accordance with this Indenture. Upon the occurrence of any of the preceding events in clauses (i), (ii), (iii) or (iv), Definitive Notes delivered in exchange for any Global Note or beneficial interests in Global Notes will be registered in the names, and issued in any approved denominations, requested by or on behalf of the Depositary (in accordance with its customary procedures) and will bear the applicable restricted legends required pursuant to Section 2.01 hereof and this Section 2.06. Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06 or Sections 2.07 or 2.10 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Note, except for Definitive Notes issued subsequent to any of the preceding events in clauses (i), (ii), (iii) or (iv) and pursuant to Section 2.06(c) hereof. A Global Note may not be exchanged for another Note other than as provided in this Section 2.06; provided, however, that beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b) or (c) hereof.

 

(b)            Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and exchange of beneficial interests in the Global Notes shall be effected through the Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial interests in the Restricted Global Notes shall be subject to restrictions on transfer comparable to those set forth herein to the extent required by the Securities Act. Transfers of beneficial interests in the Global Notes also shall require compliance with either subparagraph (i) or (ii) below, as applicable, as well as one or more of the other following subparagraphs, as applicable:

 

 

(i)            Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in any Restricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Note in accordance with the transfer restrictions set forth in the Private Placement Legend. No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 2.06(b)(i).

 

(ii)            All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In connection with all transfers and exchanges of beneficial interests that are not subject to Section 2.06(b)(i) hereof, the transferor of such beneficial interest must deliver to the Registrar either (A) (1) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase or (B) (1) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given by the Depositary to the Registrar containing information regarding the Person in whose name such Definitive Note shall be registered to effect the transfer or exchange referred to in (1) above. Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in this Indenture and the Notes or otherwise applicable under the Securities Act, the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant to Section 2.06(i) hereof.

 

(iii)            Transfer of Beneficial Interests to Another Restricted Global Note. A beneficial interest in any Restricted Global Note may be transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Note if the transfer complies with the requirements of Section 2.06(b)(ii) hereof and the Registrar receives the following:

 

(A)            if the transferee will take delivery in the form of a beneficial interest in the 144A Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof; or

 

(B)            if the transferee will take delivery in the form of a beneficial interest in the Regulation S Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof.

 

(iv)            Transfer and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial Interests in an Unrestricted Global Note. A beneficial interest in any Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer complies with the requirements of Section 2.06(b)(ii) hereof and the Registrar receives the following:

 

(1)            if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a beneficial interest in an Unrestricted Global Note, a certificate from such Holder substantially in the form of Exhibit C hereto, including the certifications in item (1)(a) thereof; or

 

(2)            if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;

 

 

and, in each such case set forth in this subparagraph (iv), if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

 

If any such transfer is effected pursuant to subparagraph (iv) above at a time when an Unrestricted Global Note has not yet been issued, the Company shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests transferred pursuant to subparagraph (iv) above.

 

Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global Note.

 

(c)            Transfer or Exchange of Beneficial Interests for Definitive Notes.

 

Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes. If any holder of a beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then, upon the occurrence of any of the events in clauses (i), (ii), (iii) or (iv) of Section 2.06(a) hereof and receipt by the Registrar of the following documentation:

 

if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note, a certificate from such holder substantially in the form of Exhibit C hereto, including the certifications in item (2)(a) thereof;

 

if such beneficial interest is being transferred to a QIB in accordance with Rule 144A, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (1) thereof;

 

if such beneficial interest is being transferred to a Non U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (2) thereof;

 

if such beneficial interest is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (3)(a) thereof;

 

if such beneficial interest is being transferred to the Company or any of its Subsidiaries, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (3)(b) thereof; or

 

if such beneficial interest is being transferred pursuant to an effective registration statement under the Securities Act, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (3)(c) thereof,

 

 

the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the Company shall execute and the Trustee, upon receipt of an Authentication Order, shall authenticate and mail to the Person designated in the instructions a Definitive Note in the applicable principal amount. Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from the Depositary and the Participant or Indirect Participant. The Trustee shall mail such Definitive Notes to the Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c)(i) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained herein and therein.

 

[Reserved].

 

Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes. A holder of a beneficial interest in a Restricted Global Note may exchange such beneficial interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note only upon the occurrence of any of the events in clauses (i), (ii), (iii) or (iv) of Section 2.06(a) hereof and if the Registrar receives the following:

 

(1)            if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive Note, a certificate from such holder substantially in the form of Exhibit C hereto, including the certifications in item (1)(b) thereof; or

 

(2)            if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such holder substantially in the form of Exhibit B hereto, including the certifications in item (4) thereof;

 

and, in each case set forth in this subparagraph (iii), if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

 

Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive Notes. If any holder of a beneficial interest in an Unrestricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note, then, upon the occurrence of any of the events in clauses (i), (ii), (iii) or (iv) of Section 2.06(a) hereof and satisfaction of the conditions set forth in Section 2.06(b)(ii) hereof, the Trustee shall cause the aggregate principal amount of the applicable Unrestricted Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the Company shall execute and the Trustee, upon receipt of an Authentication Order, shall authenticate and mail to the Person designated in the instructions an Unrestricted Definitive Note in the applicable principal amount. Any Unrestricted Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iv) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from or through the Depositary and the Participant or Indirect Participant. The Trustee shall mail such Unrestricted Definitive Notes to the Persons in whose names such Notes are so registered. Any Unrestricted Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iv) shall not bear the Private Placement Legend.

 

 

(d)            Transfer and Exchange of Definitive Notes for Beneficial Interests.

 

Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes. If any Holder of a Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note or to transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global Note, then, upon receipt by the Registrar of the following documentation:

 

if the Holder of such Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note, a certificate from such Holder substantially in the form of Exhibit C hereto, including the certifications in item (2)(b) thereof;

 

if such Restricted Definitive Note is being transferred to a QIB in accordance with Rule 144A, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (1) thereof;

 

if such Restricted Definitive Note is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (2) thereof;

 

if such Restricted Definitive Note is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (3)(a) thereof; or

 

if such Restricted Definitive Note is being transferred to the Company or any of its Subsidiaries, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (3)(b) thereof,

 

the Trustee shall cancel the Restricted Definitive Note and increase or cause to be increased the aggregate principal amount of, in the case of clause (A) above, the applicable Restricted Global Note, in the case of clause (B) above, the applicable 144A Global Note, and in the case of clause (C) above, the applicable Regulation S Global Note.

 

Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of a Restricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note only if the Registrar receives the following:

 

(1)            if the Holder of such Restricted Definitive Notes proposes to exchange such Notes for a beneficial interest in the Unrestricted Global Note, a certificate from such Holder substantially in the form of Exhibit C hereto, including the certifications in item (1)(c) thereof; or

 

(2)            if the Holder of such Restricted Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of a beneficial interest in the Unrestricted Global Note, a certificate from such Holder substantially in the form of Exhibit B hereto, including the certifications in item (4) thereof;

 

 

and, in each such case set forth in this subparagraph (ii) if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

 

Upon satisfaction of the conditions in this Section 2.06(d)(ii), the Trustee shall cancel the Restricted Definitive Notes and increase or cause to be increased the aggregate principal amount of the Unrestricted Global Note.

 

Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Unrestricted Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note at any time. Upon receipt of a request for such an exchange or transfer, the Trustee shall cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the aggregate principal amount of one of the Unrestricted Global Notes.

 

If any such exchange or transfer from a Definitive Note to a beneficial interest is effected pursuant to subparagraph (d)(ii) or (d)(iii) above at a time when an Unrestricted Global Note has not yet been issued, the Company shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of Definitive Notes so transferred.

 

(e)            Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder of Definitive Notes and such Holder’s compliance with this Section 2.06(e), the Registrar shall register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange, the requesting Holder shall present or surrender to the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized in writing. In addition, the requesting Holder shall provide any additional certifications, documents and information, as applicable, required pursuant to the following provisions of this Section 2.06(e):

 

(i)            Restricted Definitive Notes to Restricted Definitive Notes. Any Restricted Definitive Note may be transferred to and registered in the name of Persons who take delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the following:

 

(A)            if the transfer will be made pursuant to a QIB in accordance with Rule 144A, then the transferor must deliver a certificate substantially in the form of Exhibit B hereto, including the certifications in item (1) thereof;

 

(B)            if the transfer will be made pursuant to Rule 903 or Rule 904 then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof; or

 

(C)            if the transfer will be made pursuant to any other exemption from the registration requirements of the Securities Act, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications required by item (3) thereof, if applicable.

 

 

(ii)            Restricted Definitive Notes to Unrestricted Definitive Notes. Any Restricted Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note or transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted Definitive Note if the Registrar receives the following:

 

(1)            if the Holder of such Restricted Definitive Notes proposes to exchange such Notes for an Unrestricted Definitive Note, a certificate from such Holder substantially in the form of Exhibit C hereto, including the certifications in item (1)(d) thereof; or

 

(2)            if the Holder of such Restricted Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such Holder substantially in the form of Exhibit B hereto, including the certifications in item (4) thereof;

 

and, in each such case set forth in this subparagraph (ii), if the Registrar so requests, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

 

(iii)            Unrestricted Definitive Notes to Unrestricted Definitive Notes. A Holder of Unrestricted Definitive Notes may transfer such Notes to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note. Upon receipt of a request to register such a transfer, the Registrar shall register the Unrestricted Definitive Notes pursuant to the instructions from the Holder thereof.

 

(f)            [Reserved].

 

(g)            Legends. The following legends shall appear on the face of all Global Notes and Definitive Notes issued under this Indenture unless specifically stated otherwise in the applicable provisions of this Indenture:

 

(i)            Private Placement Legend.

 

Except as permitted by subparagraph (B) below, each Global Note and each Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the legend in substantially the following form:

 

“THE NOTES EVIDENCED HEREBY AND THE RELATED GUARANTEES, IF ANY, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT, PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (4) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (5) TO WALKER & DUNLOP, INC. OR A SUBSIDIARY OF WALKER & DUNLOP, INC. AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES, AND ANY SELLER AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.”

 

 

Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant to subparagraph (b)(iv), (c)(iii), (c)(iv), (d)(ii), (d)(iii), (e)(ii) or (e)(iii) of this Section 2.06 (and all Notes issued in exchange therefor or substitution thereof) shall not bear the Private Placement Legend.

 

(ii)            Global Note Legend. Each Global Note shall bear a legend in substantially the following form (with appropriate changes in the last sentence if DTC is not the Depositary):

 

“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”

 

(iii)            [Reserved].

 

(iv)            OID Legend. Each Note issued hereunder that has more than a de minimis amount of original issue discount for U.S. federal income tax purposes shall bear a legend in substantially the following form:

 

“THIS NOTE IS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF SECTION 1271 ET SEQ. OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. A HOLDER MAY OBTAIN THE ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE AND YIELD TO MATURITY FOR SUCH NOTE BY SUBMITTING A REQUEST FOR SUCH INFORMATION TO WALKER & DUNLOP, INC., 7272 WISCONSIN AVENUE, SUITE 1300, BETHESDA, MARYLAND 20814, ATTENTION: ISSA M. BANNOURAH.”

 

(v)            Applicable Procedures for Delegending. After one year has elapsed following (1) the Issue Date or (2) if the Company has issued any Additional Notes with the same terms and the same CUSIP number as the Notes within one year following the Issue Date, the date of original issuance of such Additional Notes, if the Notes are freely tradable pursuant to Rule 144 under the Securities Act by Holders who are not Affiliates of the Company where no conditions of Rule 144 are then applicable (other than the holding period requirement in paragraph (d)(1)(ii) of Rule 144 so long as such holding period requirement is satisfied), the Company shall, at its option:

 

 

(A)            instruct the Trustee in writing to remove the Private Placement Legend from the Notes by delivering to the Trustee a certificate in the form of Exhibit E hereto, and upon such instruction the Private Placement Legend shall be deemed removed from any Global Notes representing such Notes without further action on the part of Holders;

 

(B)            notify Holders of the Notes that the Private Placement Legend has been removed or deemed removed; and

 

(C)            instruct DTC to change the CUSIP number for the Notes to the unrestricted CUSIP number for the Notes.

 

In no event will the failure of the Company to provide any notice set forth in this paragraph or of the Trustee to remove the Private Placement Legend constitute a failure by the Company or Trustee to comply with any of its covenants or agreements set forth in this Indenture. Any Restricted Note (or security issued in exchange or substitution therefor) as to which such restrictions on transfer shall have expired in accordance with their terms shall, upon the Trustee’s receipt of the certificate required by clause (A) above and surrender of such Restricted Note for exchange to the Registrar in accordance with the provisions of Article 2 of this Indenture, be exchanged for a new Note or Notes, of like tenor and aggregate principal amount, which shall not bear the Private Placement Legend.

 

Notwithstanding any provision herein to the contrary, in the event that Rule 144 as promulgated under the Securities Act (or any successor rule) is amended to change the one-year holding period thereunder (or the corresponding period under any successor rule), (1) each reference in this Section 2.06(g)(v) to “one year” shall be deemed for all purposes hereof to be references to such changed period, and (2) all corresponding references in the Notes shall be deemed for all purposes hereof to be references to such changed period; provided, that such changes shall not become effective if they are otherwise prohibited by, or would otherwise cause a violation of, the then applicable federal securities laws. This Section 2.06(g)(v) shall apply to successive amendments to Rule 144 (or any successor rule) changing the holding period thereunder.

 

(h)            Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note shall be returned to or retained and canceled by the Trustee in accordance with Section 2.11 hereof. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note or for Definitive Notes, the principal amount of Notes represented by such Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note shall be increased accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.

 

 

(i)            General Provisions Relating to Transfers and Exchanges.

 

To permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate Global Notes and Definitive Notes upon receipt of an Authentication Order in accordance with Section 2.02 hereof or at the Registrar’s request.

 

No service charge shall be made to a holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.07, 2.10, 3.06, 3.09, 4.10, 4.14 and 9.04 hereof).

 

Neither the Registrar nor the Company shall be required to register the transfer of or exchange any Note selected for redemption or tendered for repurchase pursuant to a Change of Control Offer or Asset Sale Offer in whole or in part, except the portion of any Note being redeemed or repurchased in part that is not redeemed or repurchased.

 

All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.

 

The Company shall not be required (A) to issue, to register the transfer of or to exchange any Notes during a period beginning at the opening of business 15 days before the day of delivery of a notice of redemption of Notes under Section 3.02 hereof and ending at the close of business on the day of such delivery, (B) to register the transfer of or to exchange any Note so selected for redemption or tendered (and not validly withdrawn) for purchase in connection with a Change of Control Offer or an Asset Sale Offer, in each case in whole or in part, except the unredeemed or unpurchased portion of any Note being redeemed or purchased in part or (C) to register the transfer of or to exchange a Note between a Record Date and the next succeeding Interest Payment Date.

 

Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Company may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of, premium, if any, and interest on such Notes and for all other purposes, and none of the Trustee, any Agent or the Company shall be affected by notice to the contrary.

 

Upon surrender for registration of transfer of any Note at the office or agency of the Company designated pursuant to Section 4.02 hereof, the Company shall execute, and the Trustee shall authenticate and mail, in the name of the designated transferee or transferees, one or more replacement Notes of any authorized denomination or denominations of a like aggregate principal amount.

 

At the option of the Holder, Notes may be exchanged for other Notes of any authorized denomination or denominations of a like aggregate principal amount upon surrender of the Notes to be exchanged at such office or agency. Whenever any Global Notes or Definitive Notes are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and mail, the replacement Global Notes and Definitive Notes which the Holder making the exchange is entitled to in accordance with Section 2.02 hereof.

 

 

All certifications, certificates and Opinions of Counsel required to be submitted to the Registrar pursuant to this Section 2.06 to effect a registration of transfer or exchange may be submitted by electronic transmission.

 

The Trustee (in each of its capacities hereunder, including without limitation as Registrar) shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Depositary participants or beneficial owners of interests in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.

 

The Trustee (in each of its capacities hereunder, including without limitation as Registrar) shall have no responsibility for any actions taken or not taken by the Depositary.

 

SECTION 2.07.      Replacement Notes. If any mutilated Note is surrendered to the Trustee, the Registrar or the Company and the Trustee receives evidence to its satisfaction of the ownership and destruction, loss or theft of any Note, the Company shall issue and the Trustee, upon receipt of an Authentication Order, shall authenticate a replacement Note if the Trustee’s requirements are met. If required by the Trustee or the Company, any indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Company to protect the Company, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced. The Company and the Trustee may charge the Holder for their expenses in replacing a Note.

 

Every replacement Note is a contractual obligation of the Company and shall be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.

 

SECTION 2.08.      Outstanding Notes. The Notes outstanding at any time are all the Notes authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof, and those described in this Section 2.08 as not outstanding. Except as set forth in Section 2.09 hereof, a Note does not cease to be outstanding because the Company or an Affiliate of the Company holds the Note.

 

If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser.

 

If the principal amount of any Note is considered paid under Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.

 

If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any thereof) holds, on a redemption date or maturity date, money sufficient to pay Notes payable on that date, then on and after that date such Notes shall be deemed to be no longer outstanding and shall cease to accrue interest.

 

SECTION 2.09.      Treasury Notes. In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Company, or by any Affiliate of the Company, shall be considered as though not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes that a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded. Notes so owned which have been pledged in good faith shall not be disregarded if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right to deliver any such direction, waiver or consent with respect to the Notes and that the pledgee is not the Company, a Guarantor, if any, or any Affiliate of the Company or a Guarantor, if any.

 

 

SECTION 2.10.      Temporary Notes. Until certificates representing Notes are ready for delivery, the Company may prepare and the Trustee, upon receipt of an Authentication Order, shall authenticate temporary Notes. Temporary Notes shall be substantially in the form of certificated Notes but may have variations that the Company consider appropriate for temporary Notes and as shall be reasonably acceptable to the Trustee. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate Definitive Notes in exchange for temporary Notes.

 

Holders and beneficial holders, as the case may be, of temporary Notes shall be entitled to all of the benefits accorded to Holders, or beneficial holders, respectively, of Notes under this Indenture.

 

SECTION 2.11.      Cancellation. The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee or, at the direction of the Trustee, the Registrar or the Paying Agent and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and shall dispose of such cancelled Notes in accordance with its customary procedures. The Company may not issue new Notes to replace Notes that they have paid or that have been delivered to the Trustee for cancellation.

 

SECTION 2.12.      CUSIP and ISIN Numbers. The Company in issuing the Notes may use CUSIP numbers and/or ISIN numbers (if then generally in use) and, if so, the Trustee shall use CUSIP numbers and/or ISIN numbers in notices of redemption, Change of Control Offers and Asset Sale Offers as a convenience to Holders; provided, that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any such notice and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption or repurchase pursuant to a Change of Control Offer or Asset Sale Offer shall not be affected by any defect in or omission of such numbers. The Company shall as promptly as practicable notify the Trustee in writing of any change in the CUSIP number and ISIN numbers.

 

ARTICLE 3
REDEMPTION

 

SECTION 3.01.      Notices to Trustee.

 

(a)            If the Company elects to redeem Notes pursuant to Section 3.07 hereof, it shall furnish to the Trustee, at least five Business Days before notice of redemption is required to be given or caused to be given to Holders pursuant to Section 3.03 hereof (unless a shorter notice shall be agreed to by the Trustee), an Officer’s Certificate from the Company setting forth (i) the paragraph or subparagraph of such Note and/or Section of this Indenture pursuant to which the redemption shall occur, (ii) the redemption date, (iii) the principal amount of the Notes to be redeemed and (iv) the redemption price.

 

(b)            Except as otherwise provided in this Indenture or the Notes, any redemption notice may, at the Company’s discretion, be subject to one or more conditions precedent, including completion of an Equity Offering or other corporate transaction. If such redemption is subject to the satisfaction of one or more conditions precedent, in the Company’s discretion and as set forth in an Officer’s Certificate delivered to the Trustee, the redemption date may be delayed (including more than 60 days after the date the notice of redemption was mailed or delivered in accordance with DTC’s standard procedures) until as any or all such conditions shall have been satisfied or waived or the redemption may be rescinded in the event any such conditions shall not have been satisfied or waived by the original redemption date or by the redemption date as so delayed.

 

 

(c)            The Trustee shall not be liable for any actions taken or not taken by DTC or any other Depositary.

 

SECTION 3.02.      Selection of Notes to Be Redeemed or Purchased. If less than all of the Notes are to be redeemed or purchased in an offer to purchase at any time, the Company shall select the Notes to be redeemed or purchased on a pro rata basis, by lot or by such other method; provided that if the Notes are in global form, interest in such global notes will be selected for redemption or purchase by DTC in accordance with its standard procedures (with such adjustments as may be appropriate so that only Notes in minimum denominations of $2,000, or integral multiples of $1,000 in excess of $2,000, shall be redeemed or purchased). In the event of partial redemption or purchase by lot, the particular Notes to be redeemed or purchased shall be selected, unless otherwise provided herein, not less than 10 nor more than 60 days prior to the redemption date by the Company or DTC, as applicable, from the outstanding Notes not previously called for redemption or purchase. If a partial redemption is made with the proceeds of an Equity Offering, the Company shall select the Notes on a pro rata basis, by lot, or by such other method; provided that if the Notes are in global form, interest in such global notes will be selected for redemption by DTC in accordance with its standard procedures (with such adjustments as may be appropriate so that only Notes in minimum denominations of $2,000, or integral multiples of $1,000 in excess of $2,000, shall be redeemed).

 

The Company shall promptly notify the Trustee in writing of the Notes selected for redemption or purchase and, in the case of any Note selected for partial redemption or purchase, the principal amount thereof to be redeemed or purchased. Notes and portions of Notes selected shall be in minimum amounts of $2,000 or whole multiples of $1,000 in excess of $2,000; no Notes of $2,000 or less may be redeemed or purchased in part, except that if all of the Notes of a Holder are to be redeemed or purchased, the entire outstanding amount of Notes held by such Holder, even if not $2,000 or a multiple of $1,000 in excess thereof, shall be redeemed or purchased. Except as provided in the preceding sentence, provisions of this Indenture that apply to Notes called for redemption or purchase also apply to portions of Notes called for redemption or purchase.

 

SECTION 3.03.      Notice of Redemption. Subject to Section 3.09 hereof, the Company shall mail or cause to be mailed by first-class mail (or, in the case of Global Notes, in accordance with the Applicable Procedures) notices of redemption at least 10 days but not more than 60 days before the redemption date to each Holder of Notes to be redeemed at such Holder’s registered address, with a copy to the Trustee.

 

The notice shall identify the Notes to be redeemed (including CUSIP number(s)) and shall state:

 

the redemption date;

 

the redemption price;

 

 

if any Note is to be redeemed in part only, the portion of the principal amount of that Note that is to be redeemed and that, after the redemption date upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion of the original Note representing the same indebtedness to the extent not redeemed will be issued in the name of the Holder of the Notes upon cancellation of the original Note;

 

the name and address of the Paying Agent;

 

that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price;

 

that, unless the Company defaults in making such redemption payment, interest on Notes called for redemption ceases to accrue on and after the redemption date;

 

the Section of this Indenture pursuant to which the Notes called for redemption are being redeemed;

 

that no representation is made as to the correctness or accuracy of the CUSIP number and ISIN number, if any, listed in such notice or printed on the Notes; and

 

if in connection with a redemption pursuant to Section 3.01(b) or 3.07(b) hereof, any condition to such redemption.

 

At the Company’s request, the Trustee shall give the notice of redemption in the Company’s name and at its expense; provided that the Company shall have delivered to the Trustee, at least five Business Days before notice of redemption is required to be mailed or caused to be mailed to Holders pursuant to this Section 3.03 (unless a shorter notice shall be agreed to by the Trustee), an Officer’s Certificate of the Company requesting that the Trustee give such notice and attaching a copy of the notice to be delivered to each Holder of Notes.

 

SECTION 3.04.      Effect of Notice of Redemption. Once notice of redemption is given in accordance with Section 3.03 hereof, Notes called for redemption become irrevocably due and payable on the redemption date at the redemption price (except as provided for in Section 3.01(b) or Section 3.07(b) hereof). The notice, if given in a manner herein provided, shall be conclusively presumed to have been given, whether or not the Holder receives such notice. In any case, failure to give such notice by mail or any defect in the notice to the Holder of any Note designated for redemption in whole or in part shall not affect the validity of the proceedings for the redemption of any other Note. Subject to Section 3.05 hereof, on and after the redemption date, interest ceases to accrue on Notes or portions of Notes called for redemption, as long as the Company has deposited with the Paying Agent funds in satisfaction of the applicable redemption price.

 

SECTION 3.05.      Deposit of Redemption or Purchase Price. Prior to noon (New York City time) on the redemption or purchase date, the Company shall deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption or purchase price of and accrued and unpaid interest, if any, to, but excluding, such date, on all Notes to be redeemed or purchased on that date. The Trustee or the Paying Agent shall promptly return to the Company any money deposited with the Trustee or the Paying Agent by the Company in excess of the amounts necessary to pay the redemption or purchase price of, and accrued and unpaid interest on, all Notes to be redeemed or purchased.

 

 

If the Company complies with the provisions of the preceding paragraph, on and after the redemption or purchase date, interest shall cease to accrue on the Notes or the portions of Notes called for redemption or purchase. If a Note is redeemed or purchased on or after a Record Date but on or prior to the related Interest Payment Date, then any accrued and unpaid interest to, but excluding, the redemption or purchase date shall be paid to the Person in whose name such Note was registered at the close of business on such Record Date. If any Note called for redemption or purchase shall not be so paid upon surrender for redemption or purchase because of the failure of the Company to comply with the preceding paragraph, interest shall be paid on the unpaid principal, from the redemption or purchase date until such principal is paid, and to the extent lawful on any interest accrued to the redemption or purchase date not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01 hereof.

 

SECTION 3.06.      Notes Redeemed or Purchased in Part. Upon surrender of a Note that is redeemed or purchased in part, the Company shall issue and the Trustee shall authenticate for the Holder at the expense of the Company a new Note equal in principal amount to the unredeemed or unpurchased portion of the Note surrendered representing the same indebtedness to the extent not redeemed or purchased; provided that each new Note will be in a minimum principal amount of $2,000 or an integral multiple of $1,000 in excess of $2,000.

 

SECTION 3.07.      Optional Redemption.

 

(a)            At any time prior to April 1, 2028, the Company may on any one or more occasions redeem all or a part of the Notes, at a redemption price equal to 100.0% of the principal amount of the Notes redeemed, plus the Applicable Premium for the Notes, plus accrued and unpaid interest, if any, on the Notes redeemed, to, but excluding, the applicable date of redemption (subject to the rights of Holders of Notes on the relevant regular Record Date to receive interest due on the relevant Interest Payment Date that is on or prior to the applicable date of redemption).

 

(b)            At any time, or from time to time, on or prior to April 1, 2028, the Company may, at its option, use the net cash proceeds of one or more Equity Offerings to redeem up to 40.0% of the aggregate principal amount of the Notes issued at a redemption price equal to 106.625% of the principal amount of the Notes redeemed, plus accrued and unpaid interest, if any, to, but excluding, the date of redemption (subject to the rights of Holders of Notes on the relevant regular Record Date to receive interest due on the relevant Interest Payment Date that is on or prior to the applicable date of redemption); provided that:

 

(i)            at least 60.0% of the principal amount of all Notes issued under this Indenture remains outstanding immediately after any such redemption; and

 

(ii)            the Company makes such redemption not more than 120 days after the consummation of any such Equity Offering.

 

Notice of any redemption with the net cash proceeds of any Equity Offering may be given prior to the completion thereof, and any such redemption or notice may, at the Company’s discretion, be subject to one or more conditions precedent, including completion of the relevant Equity Offering or other corporate transactions.

 

 

(c)            On or after April 1, 2028, the Company may on any one or more occasions redeem all or a part of the Notes, at the redemption prices (expressed as percentages of principal amount) set forth below, plus accrued and unpaid interest, if any, on the Notes redeemed to, but excluding, the applicable date of redemption, if redeemed during the twelve-month period beginning on April 1 of the years indicated below (subject to the rights of Holders of Notes on the relevant regular Record Date to receive interest due on the relevant Interest Payment Date that is on or prior to the applicable date of redemption):

 

Year			Percentage
2028				103.313	%
2029				101.656	%
2030 and thereafter				100.000	%

 

(d)            Any redemption pursuant to this Section 3.07 shall be made pursuant to Sections 3.01 through 3.06 hereof.

 

(e)            In addition to the Company’s rights to redeem Notes pursuant to Sections 3.07(a), (b) and (c) hereof, the Company may at any time and from time to time purchase Notes in open-market transactions, tender offers, exchange offers, negotiated transactions or otherwise.

 

SECTION 3.08.      Mandatory Redemption. The Company shall not be required to make mandatory redemption or sinking fund payments with respect to the Notes. The Company may acquire the Notes by means other than a redemption, whether by tender offer, exchange offer, open-market purchases, negotiated transactions or otherwise.

 

SECTION 3.09.      Offers to Repurchase by Application of Excess Proceeds.

 

(a)            In the event that, pursuant to Section 4.10 hereof, the Company shall be required to commence an Asset Sale Offer, it shall follow the procedures specified below.

 

(b)            The Asset Sale Offer shall remain open for a period of 20 Business Days following its commencement and no longer, except to the extent that a longer period is required by applicable law (the “Offer Period”). Promptly after the termination of the Offer Period (the “Purchase Date”), the Company shall apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes and Pari Passu Debt, as provided in Section 4.10 hereof. Payment for any Notes so purchased shall be made in the same manner as interest payments are made.

 

(c)            If the Purchase Date is on or after a Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest up to but excluding the Purchase Date shall be paid to the Person in whose name a Note is registered at the close of business on such Record Date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer.

 

(d)            Upon the commencement of an Asset Sale Offer, the Company shall send, by first-class mail, a notice to each of the Holders, with a copy to the Trustee, or otherwise in accordance with the Applicable Procedures. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The Asset Sale Offer shall be made to all Holders and holders of Pari Passu Debt. The notice, which shall govern the terms of the Asset Sale Offer, shall state:

 

(i)            that an Asset Sale Offer is being made pursuant to this Section 3.09 and Section 4.10 hereof and the length of time the Asset Sale Offer shall remain open (which shall be for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law);

 

(ii)           the Offer Amount, the purchase price and the Purchase Date;

 

(iii)          that any Note not tendered or accepted for payment shall continue to accrue interest;

 

 

(iv)          that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest on and after the Purchase Date;

 

(v)           that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in a minimum denomination of $2,000 or an integral multiple of $1,000 in excess of $2,000;

 

(vi)          that Holders electing to have a Note purchased pursuant to an Asset Sale Offer shall be required to surrender the Note, with the form titled “Option of Holder to Elect Purchase” on the reverse of the Note which is attached as Exhibit A hereto, completed, to the Paying Agent at the address specified in the notice (or transfer by book-entry transfer to the Depositary, as applicable) prior to the close of business on the third Business Day prior to the Purchase Date;

 

(vii)         that Holders shall be entitled to withdraw their tendered Notes and their election, if any, to require the Company to purchase such Notes; provided that the Paying Agent receives, not later than the close of business on the last day of the Offer Period, a facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of the Notes tendered for purchase and a statement that such Holder is withdrawing its tendered Notes and its election to have such Note purchased;

 

(viii)        that, if the aggregate principal amount of Notes and Pari Passu Debt surrendered by the holders thereof exceeds the Offer Amount, the Company will determine the amount of the Notes and such Pari Passu Debt to be purchased on a pro rata basis or as nearly a pro rata basis as is practicable (subject to the Applicable Procedures), and the Company will select the Notes to be purchased on a pro rata basis, by lot or by such other method; provided that if the Notes are in global form, interest in such global notes will be selected for purchase by DTC in accordance with its standard procedures (with such adjustments as may be appropriate so that only Notes in minimum denominations of $2,000, or integral multiples of $1,000 in excess of $2,000, shall be purchased);

 

(ix)          that Holders whose certificated Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer) representing the same indebtedness to the extent not repurchased; and

 

(x)           any other instructions, as determined by the Company, consistent with this 3.09 and Section 4.10 hereof, that a Holder must follow.

 

(e)            On or before the Purchase Date, the Company shall, to the extent lawful, (i) accept for payment, on a pro rata basis as described in clause (d)(viii) of this Section 3.09, the Offer Amount of Notes and, if required, Pari Passu Debt or portions thereof validly tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes and Pari Passu Debt tendered and (ii) deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officer’s Certificate of the Company stating the aggregate principal amount of Notes or portions thereof so tendered.

 

(f)            The Company, the Depositary or the Paying Agent, as the case may be, shall promptly mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes properly tendered by such Holder and accepted by the Company for purchase, and the Company shall promptly issue a new Note, and the Trustee, upon receipt of an Authentication Order, shall authenticate and mail or deliver (or cause to be transferred by book-entry) such new Note to such Holder in a principal amount equal to any unpurchased portion of the Note surrendered representing the same indebtedness to the extent not repurchased; provided, that each such new Note shall be in a minimum principal amount of $2,000 or an integral multiple of $1,000, in excess of $2,000. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Purchase Date.

 

 

(g)            Prior to noon New York City time on the Purchase Date, the Company shall deposit with the Trustee or with the Paying Agent, money sufficient to pay the purchase price of and accrued and unpaid interest, if any, to, but excluding, such Purchase Date on all Notes to be purchased on that Purchase Date. The Trustee or the Paying Agent shall promptly return to the Company any money deposited with the Trustee or the Paying Agent, as applicable, by the Company in excess of the amount necessary to pay the purchase price of, and accrued and unpaid interest on, all Notes to be purchased.

 

(h)            Other than as specifically provided in this Section 3.09 or Section 4.10 hereof, any purchase pursuant to this Section 3.09 shall be made pursuant to the applicable provisions of Sections 3.01 through 3.06 hereof.

 

ARTICLE 4
COVENANTS

 

SECTION 4.01.      Payment of Notes. The Company shall pay or cause to be paid the principal of, premium, if any, and interest on the Notes on the dates and in the manner provided in the Notes; provided that, all payments of principal, premium, if any, and interest with respect to the Notes represented by one or more Global Notes registered in the name or held by DTC or its nominee will be made in accordance with DTC’s applicable procedures. Principal, premium, if any, and interest shall be considered paid on the date due if the Paying Agent, if other than the Company or a Subsidiary of the Company, holds as of noon (New York City time) on the due date money deposited by the Company in immediately available funds and designated for and sufficient to pay all principal, premium, if any, and interest then due. If an Interest Payment Date is not a Business Day at a place of payment, payment may be made at that place on the next succeeding day that is a Business Day, and no interest on such payment will accrue in respect of the delay.

 

The Company shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at the rate equal to the then applicable interest rate on the Notes to the extent lawful. The Company shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace period) at the same rate to the extent lawful.

 

SECTION 4.02.      Maintenance of Office or Agency. The Company shall maintain in the United States an office or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) required under Section 2.03 hereof where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served. The Company shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands (but not service of process) may be made at the Corporate Trust Office of the Trustee.

 

The Company may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in the United States for such purposes. The Company shall give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.

 

 

The Company hereby designates the Corporate Trust Office of the Trustee as one such office or agency of the Company in accordance with Section 2.03 hereof.

 

SECTION 4.03.      Reports and Other Information.

 

(a)            Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Company will furnish to the Trustee

 

(i)            within 15 days after the time period specified in the SEC’s rules and regulations for non-accelerated filers, annual reports for such fiscal year containing the information that would have been required to be contained in an Annual Report on Form 10-K (or any successor or comparable form) if the Company had been a reporting company under the Exchange Act, except to the extent permitted to be excluded by the SEC;

 

(ii)            within 15 days after the time period specified in the SEC’s rules and regulations for non-accelerated filers, quarterly reports for such fiscal quarter containing the information that would have been required to be contained in a Quarterly Report on Form 10-Q (or any successor or comparable form) if the Company had been a reporting company under the Exchange Act, except to the extent permitted to be excluded by the SEC; and

 

(iii)            within 15 days after the time period specified in the SEC’s rules and regulations for filing Current Reports on Form 8-K, current reports containing substantially all of the information that would be required to be filed in a Current Report on Form 8-K under the Exchange Act on the Issue Date pursuant to Items 1, 2 and 4, Items 5.01, 5.02(a)-(c) (other than compensation information) and Item 9.01 (only to the extent relating to any of the foregoing) of Form 8-K if the Company had been a reporting company under the Exchange Act; provided, however, that no such current reports (or Items thereof or all or a portion of the financial statements that would have otherwise been required thereby) will be required to be provided (or included) if the Company determines in its good faith judgment that such event (or information) is not material to holders or the business, assets, operations, financial position or prospects of the Company and its Subsidiaries, taken as a whole, or if the Company determines in its good faith judgment that such disclosure would otherwise cause competitive harm to the business, assets, operations, financial position or prospects of the Company and its Subsidiaries, taken as a whole (in which event such nondisclosure shall be limited only to specific provisions that would cause material harm and not the occurrence of the event itself).

 

Notwithstanding the foregoing, (a) such reports shall not be required to comply with Section 302, Section 404 or Section 906 of the Sarbanes-Oxley Act of 2002, as amended, or related Items 307, 308 and 308T of Regulation S-K promulgated by the SEC, or Item 10(e), Item 402 and Item 601 of Regulation S-K and information regarding executive compensation and related party disclosure related to SEC Release Nos. 33-8732A and 34-54302A, (b) such reports shall not be required to comply with Rule 3-09, Rule 3-10, Rule 3-16, Rule 13-01 or Rule 13-02 of Regulation S-X, (c) such reports shall not be required to comply with any conflict minerals rules of the SEC or similar rules and regulations of any other government agency, (d) such reports shall not be required to include financial statements in interactive data format using the eXtensible Business Reporting Language and such reports shall be subject to exceptions, exclusions and other differences consistent with the presentation of financial and other information in this offering memorandum and shall not be required to present compensation or beneficial ownership information

 

 

(b)            In addition, the Company will, for so long as any Notes remain outstanding, use its commercially reasonable efforts to hold and participate in quarterly conference calls with the holders of the Notes, beneficial owners of the Notes, bona fide prospective investors, securities analysts and market makers to discuss such financial information no later than 10 Business Days after distribution of such financial information required by clauses (i) and (ii) of Section 4.03(a). If the Company holds a publicly accessible quarterly conference call with its investors, it shall be deemed to satisfy the obligation of the foregoing sentence.

 

(c)            For the avoidance of doubt, if the Company files with or furnishes to the SEC (a) an Annual Report on Form 10-K with respect to a fiscal year that complies in all material respects with the rules and regulations of the SEC regarding such filing, then such filing shall be deemed to satisfy the requirements of clause (i) of Section 4.03(a) with respect to the relevant fiscal year; (b) a quarterly report on Form 10-Q with respect to a fiscal quarter that complies in all material respects with the rules and regulations of the SEC regarding such filing, then such filing shall be deemed to satisfy the requirements of clause (ii) of Section 4.03(a) with respect to the relevant fiscal quarter; and (c) a current report on Form 8-K with respect to any of the events described in clause (iii) of Section 4.03(a) that complies in all material respects with the rules and regulations of the SEC regarding such filing, then such filing shall be deemed to satisfy the requirements of clause (iii) of Section 4.03(a) with respect to such event.

 

(d)            Notwithstanding the foregoing, the Company will be deemed to have delivered such reports and information referred to above to the holders, prospective investors, market makers, securities analysts and the trustee for all purposes of this Indenture if the Company has filed such reports with the SEC via the EDGAR filing system (or any successor system) and such reports are publicly available. In addition, the requirements of this covenant will be deemed satisfied and the Company will be deemed to have delivered such reports and information referred to above to the trustee for all purposes of this Indenture by the posting of reports and information that would be required to be provided on the Company’s website.

 

(e)            In addition, the Company agrees that, for so long as any Notes remain outstanding, during a period in which the Company is not subject to Section 13 or Section 15(d) of the Exchange Act, or otherwise permitted to furnish the SEC with certain information pursuant to Rule 12g3-2(b) of the Exchange Act, it will furnish to the holders of Notes, beneficial owners of the Notes, bona fide prospective investors, securities analysts and market makers, upon their request, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.

 

(f)            Any and all Defaults or Events of Default arising from a failure to furnish or file in a timely manner a report or other information or conduct a conference call required by this Section 4.03 shall be deemed cured (and the Company shall be deemed to be in compliance with this Section 4.03) upon furnishing or filing such report or other information or conducting a conference call as contemplated by this Section 4.03 (but without regard to the date on which such report or other information is so furnished or filed); provided that such cure shall not otherwise affect the rights of Holders under Article 6 if payment of any Notes has been accelerated in accordance with the terms of this Indenture and such acceleration has not been rescinded or cancelled prior to such cure.

 

 

(g)            Delivery of such reports, information and documents to the Trustee is for informational purposes only, and the Trustee’s receipt thereof shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s, any Guarantor’s or any other Person’s compliance with any of its covenants under this Indenture or the Notes (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates). The Trustee shall not be obligated to monitor, examine or confirm, on a continuing basis or otherwise, the Company’s, any Guarantor’s or any other Person’s compliance with this Section 4.03 or with respect to any reports or other documents filed under this Indenture. The Trustee shall have no obligation whatsoever to determine whether reports and information have been posted.

 

SECTION 4.04.      Compliance Certificate.

 

(a)            The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year ending after the Issue Date, a certificate from an Officer of the Company stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officer with a view to determining whether the Company and its Subsidiaries have kept, observed, performed and fulfilled their obligations under this Indenture, and further stating, as to such Officer signing such certificate, that to the best of his or her knowledge, the Company and its Subsidiaries have kept, observed, performed and fulfilled each and every condition and covenant contained in this Indenture and are not in default in the performance or observance of any of the terms, provisions, covenants and conditions of this Indenture (or, if a Default shall have occurred, describing all such Defaults of which he or she may have knowledge and what action the Company and its Subsidiaries are taking or propose to take with respect thereto).

 

(b)            When any Default has occurred and is continuing under this Indenture, or if the Trustee or the holder of any other evidence of Indebtedness of the Company or any Subsidiary of the Company gives any notice or takes any other action with respect to a claimed Default, the Company shall, within five Business Days after becoming aware of such Default (provided that such Officers shall provide such certification at least annually whether or not they know of any Default), deliver written notice to the Trustee and notice to Fannie Mae and Freddie Mac specifying such event and what action the Company proposes to take with respect thereto.

 

SECTION 4.05.      Taxes. The Company shall pay, and shall cause their Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and governmental levies except such as are contested in good faith and by appropriate negotiations or proceedings or where the failure to effect such payment is not adverse in any material respect to the Holders of the Notes.

 

SECTION 4.06.      Stay, Extension and Usury Laws. Each of the Company and any other Guarantor covenants (to the extent that they may lawfully do so) that they shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and each of the Company and any other Guarantor (to the extent that they may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that they shall not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law has been enacted.

 

SECTION 4.07.      Limitation on Restricted Payments.

 

(a)            The Company shall not, and shall not cause or permit any of its Subsidiaries (other than any Excluded Subsidiaries) to, directly or indirectly:

 

(i)            declare or pay any dividend or make any distribution (other than dividends or distributions payable in Qualified Capital Stock of the Company or dividends or distributions by a Subsidiary (other than an Excluded Subsidiary) so long as, in the case of any dividend or distribution payable on, or in respect of, any class or series of securities issued by a Subsidiary other than a Wholly Owned Subsidiary, the Company or a Subsidiary (other than an Excluded Subsidiary) receives at least its pro rata share of such dividend or distribution in accordance with its Equity Interests in such class or series of securities) on or in respect of shares of the Company’s Capital Stock to holders of such Capital Stock;

 

 

(ii)            purchase, redeem or otherwise acquire or retire for value any Capital Stock of the Company or any warrants, rights or options to purchase or acquire shares of any class of such Capital Stock (other than in exchange for Qualified Capital Stock of the Company) held by Persons other than the Company or its Subsidiaries (other than an Excluded Subsidiary);

 

(iii)            make any principal payment on, purchase, defease, redeem, prepay, decrease or otherwise acquire or retire for value, prior to any scheduled final maturity, scheduled repayment or scheduled sinking fund payment, any Subordinated Indebtedness (other than Subordinated Indebtedness owed by the Company or any Subsidiary (other than an Excluded Subsidiary) of the Company to another Subsidiary of the Company or the Company, or any such payment on Indebtedness due within one year of the date of purchase, defeasance, redemption, prepayment, decrease or other acquisition or retirement); or

 

(iv)            make any Restricted Investment,

 

if, at the time of such action (each such payment and other actions set forth in clauses (i) through (iv) of this Section 4.07(a) being collectively referred to as a “Restricted Payment”), or immediately after giving effect thereto:

 

a Default or an Event of Default shall have occurred and be continuing; or

 

immediately after giving effect thereto on a Pro Forma Basis, the Company is not able to incur at least $1.00 of additional Indebtedness pursuant to the ratio of Consolidated Net Leverage Ratio test set forth in Section 4.09(b); or

 

the aggregate amount of Restricted Payments (including such proposed Restricted Payment) made subsequent to the Issue Date (the amount expended for such purposes, if other than in cash, being the Fair Market Value of such property) shall exceed the sum of:

 

(1)            50.0% of the cumulative amount of Consolidated Corporate Net Income of the Company for the period (taken as one accounting period) from January 1, 2025 to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (provided that in no event shall such amount be less than zero); plus

 

(2)            100.0% of the aggregate net cash proceeds and the Fair Market Value of marketable securities or other property received by the Company from any Person after the Issue Date including:

 

(x)            any contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Capital Stock); and

 

 

(y)            the issuance or sale of convertible or exchangeable Disqualified Capital Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Capital Stock or debt securities) sold to a Subsidiary of the Company); plus

 

(3)            to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the lesser of (x) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any), and (y) the initial amount of such Restricted Investment; plus

 

(4)            to the extent that any Excluded Subsidiary of the Company is designated as a Subsidiary of the Company (or is merged, consolidated or amalgamated with or into, or otherwise transfers or conveys assets to, the Company or any of its Subsidiaries) after the Issue Date, the Fair Market Value of the Company’s Investment in such Subsidiary as of the date of such designation or transaction; plus

 

(5)            the greater of (x) $85.0 million and (y) 25% of Consolidated Adjusted EBITDA for the most recently ended LTM Period; plus

 

(6)            $285.0 million.

 

(b)            Section 4.07(a) hereof shall not prohibit:

 

(i)            the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend or notice of such redemption if the dividend or payment of the redemption price, as the case may be, would have been permitted on the date of declaration or notice under this Indenture;

 

(ii)            so long as no Event of Default has occurred and is continuing or would result therefrom, the Company and the Guarantors may pay dividends in shares of their own Qualified Capital Stock;

 

(iii)            the purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness (including the acquisition of any shares of Disqualified Capital Stock of the Company) in exchange for, or out of the net cash proceeds from a substantially concurrent incurrence of Refinancing Indebtedness (with an incurrence being deemed substantially concurrent if such Restricted Payment occurs within 60 days of such incurrence); provided, however, that such purchase, repurchase, redemption, defeasance or other acquisition or retirement for value shall be excluded in the calculation of the amount of Restricted Payments;

 

(iv)            the repurchase or redemption by the Company of 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 Company or any Subsidiary under any stock option plan or other benefit plan or agreement for directors, officers and employees of the Company and its Subsidiaries to cover withholding tax obligations of such Persons in respect of such issuance, or (z) in accordance with the Company’s rights or obligations under customary equity incentive plans or agreements for directors, officers and employees of the Company and its Subsidiaries in an aggregate amount with respect to this clause (z) not exceeding $50.0 million per Fiscal Year;

 

 

(v)            (A) the repurchase of Equity Interests deemed to occur upon the exercise of stock options, warrants or other convertible or exchangeable securities to the extent such Equity Interests represent a portion of the exercise price of those stock options, warrants or other convertible or exchangeable securities and (B) repurchases of Equity Interests or options to purchase Equity Interests deemed to occur in connection with the exercise of stock options, warrants or other convertible or exchangeable securities to the extent necessary to pay applicable withholding taxes;

 

(vi)            any payment of cash by the Company in respect of fractional shares of the Company’s Capital Stock upon the exercise, conversion or exchange of any stock options, warrants, other rights to purchase Capital Stock or other convertible or exchangeable securities;

 

(vii)            so long as no Default or Event of Default shall have occurred and be continuing, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Capital Stock of the Company or Preferred Stock of any Subsidiary (other than an Excluded Subsidiary) of the Company issued on or after the Issue Date in accordance with Section 4.09 hereof;

 

(viii)            any repricing or issuance of employee stock options or other awards or the adoption of bonus arrangements, in each case in connection with the issuance of the Notes, and payments pursuant to such arrangements;

 

(ix)            payments and prepayments of any Subordinated Indebtedness made solely with the proceeds of Qualified Equity Interests;

 

(x)            Restricted Payments made with Net Proceeds from Asset Sales remaining after application thereof as required by Section 4.10 hereof (including after the making by the Company of any Asset Sale Offer required to be made by the Company pursuant to such covenant and the purchase of all Notes tendered therein);

 

(xi)            upon occurrence of a Change of Control or Asset Sale and within 60 days after the completion of the Change of Control Offer or Asset Sale Offer pursuant to Section 4.14 or Section 4.10 hereof, as applicable (including the purchase of all Notes tendered), any purchase or redemption of Obligations of the Company that are subordinate or junior in right of payment to the Notes required pursuant to the terms thereof as a result of such Change of Control or Asset Sale at a purchase or redemption price not to exceed 101.0% (in the case of a Change of Control) or 100.0% (in the case of an Asset Sale) of the outstanding principal amount thereof, plus accrued and unpaid interest thereon, if any; provided, however, that (A) at the time of such purchase or redemption, no Default or Event of Default shall have occurred and be continuing (or would result therefrom) and (B) such purchase or redemption is not made, directly or indirectly, from the proceeds of (or made in anticipation of) any issuance of Indebtedness by the Company or any Subsidiary of the Company;

 

(xii)            Restricted Payments in an amount not to exceed $125.0 million per fiscal year; 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;

 

(xiii)            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) no Event of Default shall have occurred and be continuing and (ii) the Consolidated Corporate Leverage Ratio will not exceed 2.00 to 1.00 calculated on a Pro Forma Basis and determined as of the most recently ended LTM Period; and

 

 

(xiv)            additional Restricted Payments in an amount not to exceed the greater of (x) $85.0 million and (y) and 25.0% of Consolidated Adjusted EBITDA for the most recently ended LTM 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.

 

In determining the aggregate amount of Restricted Payments made subsequent to the Issue Date in accordance with clause (C) of Section 4.07(a) hereof, amounts expended pursuant to clauses (i) and (vii) of this Section 4.07(b) shall be included in such calculation to the extent not otherwise permitted hereunder.

 

For purposes of determining compliance with this Section 4.07, if any Investment or Restricted Payment would be permitted pursuant to one or more of the provisions described in Section 4.07(b) and/or one or more exceptions contained in the definition of “Permitted Investments,” the Company may classify all or any portion of such Investment or Restricted Payment in any manner that complies with this Section 4.07 or the definition of “Permitted Investments” and may later reclassify all or any portion of any such Investment or Restricted Payment in any manner that complies with this Section 4.07 or the definition of “Permitted Investments” so long as the Investment or Restricted Payment (as so reclassified) would be permitted to be made in reliance on the applicable exceptions as of the date of such reclassification.

 

SECTION 4.08.      Limitation on Dividend and Other Payment Restrictions Affecting Subsidiaries.

 

(a)            The Company shall not, and shall not cause or permit any of its Subsidiaries (other than any Excluded Subsidiary) to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Subsidiary (other than any Excluded Subsidiary) of the Company to:

 

(i)            pay dividends or make any other distributions on or in respect of its Capital Stock to the Company or any of its Subsidiaries; or

 

(ii)           make loans or advances or to pay any Indebtedness or other obligation owed to the Company or any Subsidiary of the Company;

 

(b)            Section 4.08(a) hereof shall not apply to encumbrances or restrictions existing under or by reason of:

 

(i)            applicable law, rule, regulation or order;

 

(ii)           this Indenture, the Notes and any Note Guarantees;

 

(iii)          customary provisions of any contract, lease or license restricting assignments, subservicing, subcontracting or other transfers;

 

(iv)          obligations that are binding on a Subsidiary at the time such Subsidiary first becomes a Subsidiary of the Company, so long as such obligations are not entered into in contemplation of such Person becoming a Subsidiary;

 

(v)            agreements existing on the Issue Date, including the Senior Secured Credit Facilities, to the extent and in the manner such agreements are in effect on the Issue Date;

 

 

(vi)          restrictions on the transfer of assets (other than cash) held in a Subsidiary of the Company imposed under any agreement governing Indebtedness incurred in accordance with this Indenture;

 

(vii)         provisions in agreements evidencing Permitted Funding Indebtedness or Agency Repurchase Indebtedness that impose restrictions on the collateral securing such Indebtedness, provide for financial covenants, limitations on affiliate transactions, the transfer of all or substantially all assets, other fundamental changes or other customary limitations which, in each case as determined in good faith by the Company, are customary or will not materially affect the ability of the Company to pay the principal, interest and premium, if any, on the Notes;

 

(viii)        restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien;

 

(ix)          restrictions imposed by any agreement to sell assets or Capital Stock permitted under this Indenture to any Person pending the closing of such sale;

 

(x)           any agreement or instrument governing Capital Stock of any Person that is acquired;

 

(xi)          customary provisions in joint venture and other similar agreements relating solely to the assets or the Equity Interests of such joint venture;

 

(xii)         customary provisions in leases, licenses, asset sale agreements and other agreements entered into in the ordinary course of business so long as such restrictions relate only to the assets subject thereto;

 

(xiii)        restrictions on cash or other deposits or net worth imposed by customers or other counterparties of the Company and its Subsidiaries under contracts entered into in the ordinary course of business;

 

(xiv)        purchase money obligations and Capitalized Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (iii) of Section 4.08(a);

 

(xv)         restrictions that are or were created by virtue of any transfer of, agreement to transfer or option or right with respect to any property not otherwise prohibited under this Indenture that limit the transfer of such Property pending consummation of such sale;

 

(xvi)        other Indebtedness, Disqualified Capital Stock or Preferred Stock permitted to be incurred subsequent to the Issue Date pursuant to Section 4.09 hereof; provided that the restrictions will not materially affect the ability of the Company to pay the principal, interest and premium, if any, on the Notes, as determined in good faith by the Company; and

 

(xvii)       any encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (ii) through through (xvii) of this Section 4.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company’s Board of Directors whose judgment shall be conclusively binding, not materially more restrictive with respect to such dividend and other payment restrictions, taken as a whole, than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.

 

 

SECTION 4.09.      Limitation on Incurrence of Indebtedness and Issuance of Preferred Stock.

 

(a)            The Company shall not, and shall not permit any of its Subsidiaries (other than any Excluded Subsidiaries) to, directly or indirectly, create, incur, assume, guarantee, become liable, contingently or otherwise, with respect to, or otherwise become responsible for payment of (collectively, “incur”) any Indebtedness (including, without limitation, Acquired Indebtedness) and the Company shall not permit any of its Subsidiaries (other than any Excluded Subsidiaries) to issue any shares of Preferred Stock, in each case other than Permitted Indebtedness.

 

(b)            Notwithstanding Section 4.09(a) hereof, if no Default or Event of Default shall have occurred and be continuing at the time of or as a consequence of the incurrence of any such Indebtedness, the Company or any of its Subsidiaries may incur Indebtedness (including, without limitation, Acquired Indebtedness), and the Company’s Subsidiaries may issue Preferred Stock, in each case if on the date of the incurrence of such Indebtedness or Preferred Stock, after giving effect to the incurrence thereof and the use of proceeds thereof, the Consolidated Net Corporate Leverage Ratio of the Company and its Subsidiaries shall not exceed 4.00 to 1.00 calculated on a Pro Forma Basis.

 

SECTION 4.10.      Asset Sales.

 

(a)            The Company shall not, and shall not permit any of its Subsidiaries (other than any Excluded Subsidiary) to, consummate an Asset Sale, unless:

 

(i)            The Company (or the Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and

 

(ii)            except in the case of an Asset Swap, at least 75.0% of the consideration received in the Asset Sale by the Company or such Subsidiary is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash:

 

(A)            any liabilities, as shown on the Company’s or such Subsidiary’s most recent consolidated balance sheet, of the Company or any Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or all Note Guarantees, if any) that are assumed by the transferee of any such assets (or a third party on behalf of such transferee) pursuant to a customary novation or other agreement that releases the Company or such Subsidiary from further liability;

 

(B)            any securities, notes or other obligations or assets received by the Company or any such Subsidiary from such transferee that are converted by the Company or such Subsidiary into cash within 180 days of the receipt thereof, to the extent of the cash received in that conversion;

 

(C)            any Designated Non-cash Consideration received by the Company or any of its Subsidiaries in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (C) that is at that time outstanding, not to exceed the greater of (x) $48.75 million and (y) 15.0% of Consolidated Adjusted EBITDA as of the most recently ended LTM Period, at the time of the receipt of such Designated Non-cash Consideration (with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value); and

 

 

(D)            any stock or assets of the kind referred to in clauses (iv) and (v) of Section 4.10(b).

 

(b)            Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable Subsidiary, as the case may be) may apply such Net Proceeds at its option, in any combination of the following:

 

(i)            to prepay or repay Secured Debt of the Company or any Guarantor or Indebtedness of any Subsidiary of the Company that is not a Guarantor and, in the case of Secured Debt under revolving credit facilities or other similar Indebtedness, to correspondingly reduce commitments with respect thereto; provided, however, that Net Proceeds may not be applied to the prepayment or repayment of Non-Recourse Indebtedness or Indebtedness under Permitted Funding Indebtedness or Agency Repurchase Indebtedness, other than Non-Recourse Indebtedness or Indebtedness under Permitted Funding Indebtedness or Agency Repurchase Indebtedness, in each case, secured by a Lien on the asset or assets that were subject to such Asset Sale;

 

(ii)            to prepay or repay Pari Passu Debt permitted to be incurred pursuant to this Indenture to the extent required by the terms thereof, and, in the case of Pari Passu Debt under revolving credit facilities or other similar Indebtedness, to correspondingly reduce commitments with respect thereto; provided that if the Company (or the applicable Subsidiary) prepays or repays Pari Passu Debt pursuant to this clause (ii), the Company shall make an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all holders to equally and ratably purchase their Notes at 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of such Notes that would otherwise be prepaid;

 

(iii)            to make one or more offers to the holders of the Notes (and, at the option of the Company, the holders of Pari Passu Debt) to purchase Notes (and such other Pari Passu Debt) pursuant to and subject to the conditions applicable to Asset Sale Offers described below;

 

(iv)            to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Subsidiary of the Company; or

 

(v)            to acquire other assets that are used or useful in a Permitted Business (including, without limitation, MSR Assets, mortgages and other loans, mortgage related securities and derivatives, other mortgage related receivables, and other similar assets (or any interest in any of the foregoing) that are used to support or pledged to secured Permitted Funding Indebtedness or Agency Repurchase Indebtedness) or to make capital expenditures;

 

provided that, in the case of clauses (iv) and (v) above, a binding commitment entered into within such 365-day period shall be treated as a permitted application of the Net Proceeds from the date of such commitment so long as the Company or such Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”); provided, further, that if any Acceptable Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Proceeds.

 

 

(c)            Pending the final application of any Net Proceeds, the Company (or the applicable Subsidiary) may temporarily reduce revolving credit borrowings and/or borrowings under Permitted Funding Indebtedness or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture.

 

(d)            Any Net Proceeds from Asset Sales that are not applied or invested within 365 days (as extended by any Acceptable Commitment) as provided in Section 4.10(b) will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds the greater of (x) $32.5 million and (y) 10.0% of Consolidated Adjusted EBITDA as of the most recently ended LTM Period, within 30 days thereof, the Company shall make an offer to all Holders of Notes and all holders of Pari Passu Debt containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such Pari Passu Debt that may be purchased out of the Excess Proceeds (an “Asset Sale Offer”). The offer price in any Asset Sale Offer shall be equal to 100.0% of the principal amount (or, in the case of any other Pari Passu Debt offered at a significant original issue discount, 100.0% of the accreted value thereof, if permitted by the relevant indenture or other agreement governing such Pari Passu Debt) plus accrued and unpaid interest, if any, to, but excluding, the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and Pari Passu Debt tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Company shall determine the amount of the Notes and such Pari Passu Debt to be purchased on a pro rata basis or as nearly a pro rata basis as is practicable (subject to the Applicable Procedures), and the Company will select the Notes to be purchased on a pro rata basis, by lot or by such other method; provided that if the Notes are in global form, interest in such global notes will be selected for purchase by DTC in accordance with its standard procedures (with such adjustments as may be appropriate so that only Notes in minimum denominations of $2,000, or integral multiples of $1,000 in excess of $2,000, shall be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.

 

(e)            The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Asset Sale provisions of this Indenture by virtue of such compliance.

 

SECTION 4.11.      Limitation on Transactions with Affiliates.

 

(a)            The Company will not, and will not permit any of its Subsidiaries (other than any Excluded Subsidiary) to, directly or indirectly, enter into any transaction or series of related transactions (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service or the payment of any management, advisory or similar fees) with any officer, director, holder of any Equity Interests in, or other Affiliate of, the Company or any other Guarantor (each, an “Affiliate Transaction”), in each case having an aggregate value in excess of $10.0 million unless the terms of the Affiliate Transaction are no less favorable in any material respect to the Company or such Subsidiary than those that could reasonably be obtained at the time of the Affiliate Transaction in arm’s-length dealings with a Person who is not an Affiliate.

 

For purposes of this Section 4.11(a), with respect to the modification, amendment or replacement of an Affiliate Transaction in existence as of the Issue Date on substantially comparable terms, such threshold shall be calculated only with respect to the amount of any net increase in the value of the Affiliate Transaction as a result of such modification, amendment or replacement rather than the aggregate value.

 

 

(b)            The restrictions set forth in Section 4.11(a) hereof shall not apply to:

 

(i)            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;

 

(ii)           transactions between or among the Company and any of its Subsidiaries (other than any Excluded Subsidiary) or between or among such Subsidiaries (other than any Excluded Subsidiary);

 

(iii)          transactions between the Company or one of its Subsidiaries (other than any Excluded Subsidiary) or any Person in which the Company or one of its Subsidiaries (other than any Excluded Subsidiary) has made an Investment in the ordinary course of business and such Person is an Affiliate solely because of such Investment;

 

(iv)          transactions between the Company or one of its Subsidiaries (other than any Excluded Subsidiary) and any Person in which the Company or one of its Subsidiaries (other than any Excluded Subsidiary) holds an interest as a joint venture partner and such Person is an Affiliate solely because of such interest;

 

(v)           any agreement or arrangement as in effect as of the Issue Date or any amendment or replacement agreement thereto or any transactions or payments contemplated thereby (including pursuant to any amendment or replacement agreement thereto) so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date (as determined by the Company in good faith);

 

(vi)          an agreement between a Person and an Affiliate of such Person existing at the time such Person is acquired by, or merged into, the Company or a Subsidiary (other than any Excluded Subsidiary) and not entered into in contemplation of such acquisition or merger;

 

(vii)         Indebtedness, Restricted Payments or Investments (other than pursuant to clause (13) of the definition of “Permitted Investments”), or mergers, acquisitions, divisions or dispositions or Asset Sales permitted by this Indenture;

 

(viii)        sales of Qualified Capital Stock by the Company or any Subsidiary and capital contributions to the Company from Affiliates;

 

(ix)           transactions in which the Company or any Subsidiary of the Company, as the case may be, receives an opinion from a nationally recognized investment banking, appraisal or accounting firm that such Affiliate Transaction is fair, from a financial standpoint, to the Company or such Subsidiary;

 

(x)           (a) the provision of mortgage servicing, mortgage loan origination, real estate logistics, brokerage and management and similar services to Affiliates in the ordinary course of business and otherwise not prohibited by this Indenture that are fair to the Company and its Subsidiaries (as determined by the Company in good faith) or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party (as determined by the Company in good faith), and (b) transactions with customers, clients, suppliers, vendors, contractors, joint venture partners or purchasers or sellers of assets or services that are Affiliates, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture that are fair to the Company and its Subsidiaries or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party (as determined by the Company in good faith);

 

 

(xi)          payment of customary fees and reasonable out of pocket costs to, and indemnities for the benefit of, directors, officers and employees of the Company or any of its Subsidiaries in the ordinary course of business to the extent attributable to the ownership or operation of the Company or such Subsidiary; and

 

(xii)         sales of accounts receivable, or participations therein, or Securitization Assets or related assets in connection with any Qualified Securitization Transaction, Permitted Funding Indebtedness, or Agency Repurchase Indebtedness.

 

SECTION 4.12.      Limitation on Liens. The Company shall not, and shall not cause or permit any of its Subsidiaries (other than any Excluded Subsidiary) to, directly or indirectly, create, incur, assume or permit or suffer to exist any Liens (other than Permitted Liens) of any kind on the assets of the Company or any of its Subsidiaries securing Indebtedness of the Company or its Subsidiaries unless:

 

in the case of Liens securing Subordinated Indebtedness, the Notes or such Guarantor’s Note Guarantee are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens; and

 

in all other cases, the Notes and any Note Guarantees are equally and ratably secured.

 

Any Lien created for the benefit of Holders pursuant to this Section 4.12 shall be automatically and unconditionally released and discharged upon the release and discharge of each of the related Liens described in Section 4.12(a) or Section 4.12(b) hereof.

 

SECTION 4.13.      [Reserved].

 

SECTION 4.14.      Offer to Repurchase Upon Change of Control.

 

(a)            Upon the occurrence of a Change of Control, each Holder shall have the right to require that the Company purchase all or a portion of such Holder’s Notes pursuant to the offer described below (the “Change of Control Offer”), at a purchase price equal to 101.0% of the principal amount of the Notes purchased, plus accrued and unpaid interest, if any, to, but excluding, the date of purchase (subject to the rights of Holders of Notes on the relevant regular Record Date to receive interest due on the relevant Interest Payment Date that is on or prior to the applicable date of purchase).

 

(b)            Within 30 days following the date upon which a Change of Control occurs, the Company must send, by first class mail, a notice to each Holder, with a copy to the Trustee, or otherwise in accordance with the procedures of DTC, which notice shall govern the terms of the Change of Control Offer. Such notice shall state the following information:

 

(i)            that a Change of Control Offer is being made pursuant to this Section 4.14 and that all Notes properly tendered pursuant to such Change of Control Offer will be accepted for payment by the Company;

 

 

(ii)           the purchase price (the “Change of Control Payment”);

 

(iii)          the purchase date, which must be no earlier than 30 days nor later than 60 days from the date such notice is mailed (or, in the case of Global Notes, delivered), other than as may be required by law (the “Change of Control Payment Date”);

 

(iv)          that any Note not tendered or accepted for payment will remain outstanding and continue to accrue interest;

 

(v)           that unless the Company defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment Date;

 

(vi)          that Holders electing to have a Note purchased pursuant to a Change of Control Offer shall be required to surrender the Note, with the form titled “Option of Holder to Elect Purchase,” which is attached to the form of Note attached as Exhibit A hereto, on the reverse of the Note completed, to the Paying Agent at the address specified in the notice (or transfer by book-entry transfer to the Depositary, as applicable) prior to the close of business on the third Business Day prior to the Change of Control Payment Date;

 

(vii)         that Holders shall be entitled to withdraw their tendered Notes and their election to require the Company to purchase such Notes; provided that the Paying Agent receives, not later than the close of business on the last day of the offer period, a facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of the Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased; and

 

(viii)        any other instructions, as determined by the Company, consistent with this Section 4.14, that a Holder must follow.

 

(c)            The Company shall not be required to make a Change of Control Offer upon a Change of Control if (i) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes properly tendered and not withdrawn under the Change of Control Offer, or (ii) an unconditional notice of redemption as to all outstanding Notes has been given pursuant to Sections 3.07(a) and 3.07(c) hereof, unless and until there is a default in payment of the applicable redemption price.

 

(d)            Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control conditioned upon such Change of Control if at the time of making of the Change of Control Offer a definitive agreement is in place with respect to such Change of Control.

 

(e)            The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with this Section 4.14, the Company shall comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.14 by virtue thereof.

 

(f)            The Company will have the right to redeem the Notes at 101.0% of the principal amount thereof following the consummation of a Change of Control if at least 90.0% of the Notes outstanding prior to such consummation are purchased pursuant to a Change of Control Offer with respect to such Change of Control.

 

 

SECTION 4.15.      Limitation on the Issuance of Guarantees by Subsidiaries.

 

(a)            If any Subsidiary of the Company that is not an Excluded Subsidiary guarantees any Material Corporate Indebtedness (other than a Permitted Guarantee), then within 30 days of the date on which such Subsidiary guaranteed such Material Corporate Indebtedness of the Company or such Guarantor, as applicable, the Company shall cause such Subsidiary to fully and unconditionally guarantee the Notes, jointly and severally with any other Guarantors, and to execute a supplemental indenture, the form of which is attached as Exhibit D hereto (together with Opinions of Counsel as to the enforceability of such Note Guarantee); provided, however, that if the guarantee of such Subsidiary is provided in respect of Material Corporate Indebtedness that is expressly subordinated in right of payment to the Notes or any Note Guarantee, then such guarantee of such Subsidiary shall be subordinated in right of payment to such Subsidiary’s Note Guarantee to the same extent such other Material Corporate Indebtedness is subordinated to the Notes or such other Note Guarantee.

 

(b)            The Note Guarantees shall be joint and several obligations of the Guarantors.

 

(c)            Any Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, other than the Company or another Subsidiary Guarantor, other than in compliance with Section 10.06.

 

(d)            Any Note Guarantee of a Subsidiary Guarantor will be automatically and unconditionally released and discharged in accordance with Section 10.07.

 

SECTION 4.16.      Limitation on Sale and Leaseback Transactions. The Company shall not, and shall not permit any of its Subsidiaries (other than any Excluded Subsidiary) to, enter into any sale and leaseback transaction; provided that the Company and any Subsidiary of the Company may enter into a sale and leaseback transaction if:

 

the Company or the Subsidiary, as applicable, could have (i) incurred Indebtedness in an amount equal to the Attributable Indebtedness relating to such sale and leaseback transaction pursuant to Section 4.09 hereof and (ii) incurred a Lien to secure such Indebtedness pursuant to Section 4.12 hereof; and

 

the transfer of assets in that sale and leaseback transaction is permitted by, and the Company or the Subsidiary, as applicable, applies the proceeds of such transaction in compliance with, Section 4.10 hereof.

 

SECTION 4.17.      Designation of Excluded Subsidiaries.

 

(a)            The Company may designate any Subsidiary of the Company to be an Excluded Subsidiary if (i) that designation would not cause a Default or Event of Default, (ii) before and immediately after giving effect on a Pro Forma Basis to such designation, the Company shall be in compliance with the Consolidated Net Corporate Leverage Ratio set forth in Section 4.09(b) hereof and (iii) 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, the Company or any Guarantor may at any time be an Excluded Subsidiary. If a Subsidiary of the Company is designated as an Excluded Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by the Company and its Subsidiaries in the Subsidiary designated as an Excluded Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the definition of “Permitted Investments.” That designation will only be permitted if the Investment would be permitted at that time and if the Subsidiary otherwise meets the definition of an “Excluded Subsidiary”.

 

 

(b)            Any designation of a Subsidiary of the Company as an Excluded Subsidiary will be evidenced to the Trustee by filing with the Trustee an Officer’s Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof or is otherwise a Permitted Investment. Subject to Section 4.17(a) above, the Company may at any time designate any Excluded Subsidiary to be a Subsidiary of the Company if (i) that designation would not cause a Default or Event of Default, and (ii) before and immediately after giving effect on a Pro Forma Basis to such designation, the Company shall be in compliance with the Consolidated Net Corporate Leverage Ratio set forth Section 4.09(b); provided that 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 the Company or a Guarantor as of such date of re-designation or reclassification.

 

(c)            Notwithstanding the foregoing, solely in the case of any newly created or acquired Subsidiary that has de minimis operations and assets, such Subsidiary shall, to the extent it satisfies all of the requirements set forth above with respect to Excluded Subsidiaries, be deemed to be an Excluded Subsidiary without further action by the Company or any other Guarantor, in each case until such time as such Subsidiary is re-designated as a Subsidiary in accordance Section 4.17(b) above.

 

SECTION 4.18.      Covenant Suspension. During any period of time that the Notes are rated Investment Grade and no Default or Event of Default has occurred and is then continuing, the Company and its Subsidiaries will not be subject to Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.15, 4.19 and 5.01(a)(B) hereof (collectively, the “Suspended Covenants”). In the event that the Company and its Subsidiaries are not subject to the Suspended Covenants for any period of time (the “Suspension Period”) as a result of the preceding sentence and, subsequently, one or both of the Rating Agencies, as applicable, withdraws its ratings or downgrades the ratings assigned to the Notes such that the Notes are not rated Investment Grade (the “Reversion Date”), then the Company and its Subsidiaries will thereafter again be subject to the Suspended Covenants, it being understood that no actions taken by (or omissions of) the Company or any of its Subsidiaries during the suspension period shall constitute a Default or an Event of Default under the Suspended Covenants. Furthermore, after the Reversion Date, (a) calculations with respect to Restricted Payments will be made in accordance with the terms of Section 4.07 hereof as though such covenant had been in effect prior to and throughout the Suspension Period and accordingly, Restricted Payments made during the Suspension Period will reduce the amount available to be made as Restricted Payments under Section 4.07(a) hereof, (b) all Indebtedness incurred during the Suspension Period will be classified to have been incurred or issued pursuant to clause (3) of the definition of “Permitted Indebtedness,” (c) for purposes of Section 4.08 hereof, on the Reversion Date, any consensual encumbrances or restrictions of the type specified in Section 4.08(a)(i), (ii) or (iii) hereof entered into during the Suspension Period will be deemed to have been in effect on the Issue Date, so that they are permitted by Section 4.08(b)(v) hereof, (d) for purposes of Section 4.10 hereof, on the Reversion Date, the unutilized Excess Proceeds amount will be reset to zero and (e) for purposes of Section 4.11 hereof, any Affiliate Transaction entered into after the Reversion Date pursuant to a contract, agreement, loan, advance or guaranty with, or for the benefit of, any Affiliate of the Company entered into during the Suspension Period will be deemed to have been in effect as of the Issue Date for purposes of Section 4.11(b)(v) hereof.

 

 

During a Suspension Period, the Company may not designate any of the Company’s Subsidiaries that are Guarantors immediately before the Suspension Period as Excluded Subsidiaries. The Company will provide the Trustee with an Officer’s Certificate stating the commencement of any Suspension Period or Reversion Date.

 

SECTION 4.19.      Limitation Regarding Excluded Subsidiaries.

 

No Excluded Subsidiary shall (i) engage in any transaction with any Affiliate of the Company (other than the Company, a Guarantor or another Excluded Subsidiary) that would not be permitted Section 4.11 hereof if such Excluded Subsidiary were a Subsidiary or (ii) or purchase, redeem, retire or otherwise acquire (directly or indirectly) any Equity Interests of the Company

 

ARTICLE 5
SUCCESSORS

 

SECTION 5.01.      Merger, Consolidation or Sale of All or Substantially All Assets.

 

(a)            The Company shall not, in a single transaction or series of related transactions, consolidate or merge with or into any Person, consummate a Division as the Dividing Person (whether or not the Company is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Subsidiary of the Company to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of assets of the Company and its Subsidiaries (determined on a consolidated basis for the Company and the Company’s Subsidiaries, and, in each case, net of any associated non-recourse or secured obligations), whether as an entirety or substantially as an entirety, to any Person unless:

 

either:

 

(1)            The Company shall be the surviving or continuing entity; or

 

(2)            the Person (if other than the Company) formed by such consolidation or Division or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Subsidiaries substantially as an entirety (the “Surviving Entity”):

 

(i)            shall be a Person organized and validly existing under the laws of the United States or any State thereof or the District of Columbia; and

 

(ii)           shall expressly assume, by supplemental indenture satisfactory to the Trustee, executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium, if any, and interest on all of the Notes and the performance of every covenant of the Notes and this Indenture on the part of the Company to be performed or observed;

 

immediately after giving effect to such transaction and the assumption contemplated by clause (A)(2)(ii) of this Section 5.01(a) (including giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction), the Company or such Surviving Entity of the Company, as the case may be, shall be able to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Net Corporate Leverage Ratio set forth in Section 4.09(b) hereof;

 

 

immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (A)(2)(ii) of this Section 5.01(a) (including, without limitation, giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default shall have occurred or be continuing; and

 

(D)            The Company or the Surviving Entity, as applicable, shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, sale, assignment, transfer, lease, conveyance, Division or other disposition and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with the applicable provisions of this Indenture, are the legal, valid, and binding obligations of the Company or the Surviving Entity, as applicable, enforceable against it in accordance with its terms, and that all conditions precedent in this Indenture relating to such transaction have been satisfied.

 

(b)            For purposes of Section 5.01(a), the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.

 

(c)            Notwithstanding the foregoing, Section 5.01(a) shall not apply to:

 

(i)            a merger of the Company with an Affiliate solely for the purpose of reorganizing the Company in another jurisdiction; or

 

(ii)           any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Subsidiaries (other than any Excluded Subsidiary), or, so long as the Company is a surviving Person and any other surviving Person is a Subsidiary (other than any Excluded Subsidiary) of the Company, any Division of the Company as the Dividing Person.

 

SECTION 5.02.      Surviving Entity Substituted. Upon any consolidation, combination, Division or merger or any transfer of all or substantially all of the assets of the Company in accordance with Section 5.01 hereof, in which the Company is not the continuing entity, the successor Person formed by such consolidation or Division or into which the Company is merged or to which such conveyance, lease or transfer is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Surviving Entity had been named as such.

 

 

ARTICLE 6
DEFAULTS AND REMEDIES

 

SECTION 6.01.      Events of Default. An “Event of Default” wherever used herein, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):

 

(i)            the failure to pay interest on any Notes when the same becomes due and payable and the default continues for a period of 30 days;

 

(ii)           the failure to pay the principal on any Notes, when such principal becomes due and payable, at maturity, upon redemption or otherwise;

 

(iii)          the Company fails to make an Asset Sale Offer or a Change of Control Offer, as applicable, and thereafter accept and pay for Notes tendered when and as required pursuant to Section 4.10 or Section 4.14 hereof, as applicable, or the Company or any Subsidiary (other than an Excluded Subsidiary) fails to comply with Article 5 hereof;

 

(iv)          a default in the observance or performance of any other covenant or agreement contained in this Indenture and such default continues for a period of 60 days (or, in the case of Section 4.03 hereof, 120 days) after the Company receives written notice specifying the default (and demanding that such default be remedied) from the Trustee or the Holders of at least 30.0% of the then outstanding principal amount of all Notes issued under this Indenture;

 

(v)           the failure to pay at final maturity (giving effect to any applicable grace periods and any extensions thereof) the principal amount of any Indebtedness (other than Non-Recourse Indebtedness) of the Company or any Subsidiary of the Company (other than an Excluded Subsidiary), or the acceleration of the final stated maturity of any such Indebtedness if the aggregate principal amount of such Indebtedness, together with the principal amount of any other such Indebtedness in default for failure to pay principal at final maturity or which has been accelerated, aggregates $100.0 million or more at any time; provided that in connection with any series of convertible or exchangeable securities (A) any conversion or exchange of such securities by a holder thereof into shares of Capital Stock, cash or a combination of cash and shares of Capital Stock, (B) the rights of holders of such securities to convert or exchange into shares of Capital Stock, cash or a combination of cash and shares of Capital Stock and (C) the rights of holders of such securities to require any repurchase by the Company of such securities in cash shall not, in itself, constitute an Event of Default under this clause (v); provided, further, that no Event of Default shall occur under this clause (v) as a result of any such failure to pay with respect to any such Indebtedness described in this clause (v), if such failure to pay shall have been cured or waived by the holder or holders of such Indebtedness (or a trustee on behalf of such holder or holders) prior to any declaration of acceleration of the Notes because of such failure to pay such Indebtedness;

 

(vi)          one or more judgments in an aggregate amount in excess of $100.0 million shall have been rendered against the Company or any of its Subsidiaries (other than an Excluded Subsidiary) and such judgments remain undischarged, unpaid or unstayed for a period of 60 days after such judgment or judgments become final and non-appealable (other than any judgments as to which, and only to the extent, a solvent and unaffiliated insurance company has acknowledged coverage of such judgments in writing);

 

(vii)         the Company or any Subsidiary of the Company (other than an Excluded Subsidiary) pursuant to or within the meaning of any Bankruptcy Law:

 

(A)            commences proceedings to be adjudicated bankrupt or insolvent;

 

 

(B)            consents to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under applicable Bankruptcy Law;

 

(C)            consents to the appointment of a receiver, liquidator, assignee, trustee, sequestrator or other similar official of it or for all or substantially all of its property;

 

(D)            makes a general assignment for the benefit of its creditors; or

 

(E)             generally is not paying its material debts as they become due;

 

(viii)            a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:

 

(A)            is for relief against the Company or any Subsidiary of the Company (other than an Excluded Subsidiary) in a proceeding in which the Company or any such Subsidiary or any such group of Excluded Subsidiaries of the Company is to be adjudicated bankrupt or insolvent;

 

(B)            appoints a receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or any Subsidiary of the Company (other than an Excluded Subsidiary)for all or substantially all of the property of the Company or any such Subsidiary of the Company; or

 

(C)            orders the liquidation of the Company or any Subsidiary of the Company (other than an Excluded Subsidiary);

 

and the order or decree remains unstayed and in effect for 60 consecutive days; or

 

(ix)            the Note Guarantee of any Guarantor shall for any reason cease to be in full force and effect or be declared null and void or any responsible officer of any Guarantor denies that it has any further liability under its Note Guarantee or gives notice to such effect, other than by reason of the termination of this Indenture or, in the case of a Note Guarantee of a Subsidiary Guarantor, the release of any such Note Guarantee in accordance with this Indenture.

 

In the event of a declaration of acceleration of the Notes because an Event of Default specified in clause (v) of this Section 6.01 has occurred and is continuing, the declaration of acceleration of the Notes shall be automatically annulled if the default triggering such Event of Default pursuant to clause (v) of this Section 6.01 shall be remedied or cured by the Company or the applicable Subsidiary of the Company or waived by the holders of the relevant Indebtedness within 20 days after the declaration of acceleration with respect thereto and if (1) the annulment of the acceleration of the Notes would not conflict with any judgment or decree of a court of competent jurisdiction and (2) all existing Events of Default, except nonpayment of principal, premium, if any, or interest on the Notes that became due solely because of the acceleration of the Notes, have been cured or waived.

 

SECTION 6.02.      Acceleration.

 

(a)            If an Event of Default (other than, with respect to the Company, an Event of Default specified in clause (vii) or (viii) of Section 6.01 hereof) shall occur and be continuing, the Trustee or the Holders of at least 30.0% in principal amount of the then outstanding Notes issued under this Indenture may declare the principal of, premium, if any, and accrued and unpaid interest on all the Notes issued under this Indenture to be due and payable by notice in writing to the Company and the Trustee specifying the respective Event of Default and that it is a “notice of acceleration,” and the Notes shall become immediately due and payable.

 

 

(b)            If an Event of Default specified in clause (vii) or (viii) of Section 6.01 hereof with respect to the Company occurs and is continuing, then all unpaid principal of, and premium, if any, and accrued and unpaid interest on all of the then outstanding Notes issued under this Indenture shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.

 

(c)            At any time after a declaration of acceleration with respect to the Notes as described in Section 6.02(a) or 6.02(b) hereof, the Holders of a majority in principal amount of all outstanding Notes issued under this Indenture may rescind and cancel such declaration and its consequences:

 

(i)            if the rescission would not conflict with any judgment or decree;

 

(ii)           if all existing Events of Default have been cured or waived except nonpayment of principal or interest that has become due solely because of the acceleration;

 

(iii)          to the extent the payment of such interest is lawful, interest on overdue installments of interest and overdue principal, which has become due otherwise than by such declaration of acceleration, has been paid;

 

(iv)          if the Company has paid the Trustee (including its agents and counsel) its reasonable compensation and reimbursed the Trustee for its expenses, disbursements and advances; and

 

(v)           in the event of the cure or waiver of an Event of Default of the type described in clause (vii) or (viii) of Section 6.01 hereof, the Trustee shall have received an Officer’s Certificate and an Opinion of Counsel that such Event of Default has been cured or waived.

 

No such rescission shall affect any subsequent Default or impair any right consequent thereto.

 

SECTION 6.03.      Other Remedies.

 

(a)            If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal, premium, if any, and interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture.

 

(b)            The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a Note in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.

 

SECTION 6.04.      Waiver of Past Defaults. Holders of a majority in aggregate principal amount of the then outstanding Notes by written notice to the Trustee may, on behalf of the Holders of all of the Notes, waive any existing Default or Event of Default and its consequences hereunder, except a continuing Default in the payment of the principal of, premium, if any, or interest on any Note held by a non-consenting Holder (including in connection with an Asset Sale Offer or a Change of Control Offer); provided, subject to Section 6.02 hereof, that the Holders of a majority in aggregate principal amount of the then outstanding Notes may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration, that is not the result of a failure by the Company to make a Change of Control Offer. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall affect any subsequent or other Default or impair any right consequent thereto.

 

 

SECTION 6.05.      Control by Majority. Subject to all provisions of this Indenture and applicable law, the Holders of a majority in principal amount of the then outstanding Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee, and, subject to Article 8, the Trustee may act at the discretion of the Holders without liability. The Trustee, however, may refuse to follow any direction that conflicts with law or this Indenture or that the Trustee determines is unduly prejudicial to the rights of any other Holder of a Note (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not any such direction is unduly prejudicial to such holders) or that would involve the Trustee in personal liability.

 

SECTION 6.06.      Rights of Holders of Notes to Receive Payment. Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to receive payment of principal, premium, if any, and interest on the Note, on or after the respective due dates expressed in the Note (including in connection with an Asset Sale Offer or a Change of Control Offer), or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.

 

SECTION 6.07.      Collection Suit by Trustee. If an Event of Default specified in Section 6.01(i) or (ii) hereof occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an express trust against the Company for the whole amount of principal of, premium, if any, and interest remaining unpaid on the Notes and interest on overdue principal and, to the extent lawful, interest and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.

 

SECTION 6.08.      Restoration of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceedings, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding has been instituted.

 

SECTION 6.09.      Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in Section 2.07 hereof, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.

 

 

SECTION 6.10.      Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Note to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.

 

SECTION 6.11.      Trustee May File Proofs of Claim. The Trustee is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Company (or any other obligor upon the Notes including any Guarantor), its creditors or its property and shall be entitled and empowered to participate as members in any official committee of creditors appointed in such matter and to collect, receive and distribute any money or other property payable or deliverable on any such claims, and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.06 hereof. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.06 hereof out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.

 

SECTION 6.12.      Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.12 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.06 hereof, or a suit by Holders of more than 10.0% in principal amount of the then outstanding Notes.

 

SECTION 6.13.      Trustee May Enforce Claims without Possession of Notes. All rights of action and claims under this Indenture or any of the Notes may be prosecuted and enforced by the Trustee without the possession of any of the Notes or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery or judgment, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, shall be for the ratable benefit of each and every Holder of a Note in respect of which such judgment has been recovered.

 

 

SECTION 6.14.      Limitation on Suits. Subject to Section 6.06 hereof, no Holder may pursue any remedy with respect to this Indenture or the Notes unless:

 

such Holder has previously given the Trustee notice that an Event of Default is continuing;

 

Holders of at least 30.0% of the then outstanding principal amount of all Notes issued under this Indenture have requested the Trustee to pursue the remedy;

 

Holders have offered the Trustee security or indemnity satisfactory to it against any loss, liability or expense;

 

the Trustee has not complied with such request within 60 days after the receipt thereof and the offer of security or indemnity; and

 

Holders of a majority in principal amount of the total outstanding Notes have not given the Trustee a written direction inconsistent with such request within such 60-day period.

 

A Holder of Notes may not use this Indenture to prejudice the rights of another Holder of Notes or to obtain a preference or priority over another Holder.

 

SECTION 6.15.      Priorities. If the Trustee or any agent collects any money or property pursuant to this Article 6, it shall pay out the money in the following order:

 

FIRST, to the Trustee (acting in any capacity hereunder), each Agent, their agents and attorneys for amounts due hereunder, including payment of all fees, expenses and liabilities incurred, and all advances made, by the Trustee or such Agent and the costs and expenses of collection;

 

SECOND, to Holders of the Notes for amounts due and unpaid on the Notes for principal, premium, if any, and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, and interest, respectively; and

 

THIRD, to the Company or to such party as a court of competent jurisdiction shall direct including any Guarantor, if applicable.

 

The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 6.15.

 

ARTICLE 7
TRUSTEE

 

SECTION 7.01.      Duties of Trustee.

 

(a)            If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.

 

 

(b)            Except during the continuance of an Event of Default:

 

(i)            the duties of the Trustee shall be determined solely by the express provisions of this Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

 

(ii)           in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).

 

(c)            The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:

 

(i)            this paragraph does not limit the effect of paragraph (b) of this Section 7.01;

 

(ii)           the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved in a court of competent jurisdiction that the Trustee was negligent in ascertaining the pertinent facts; and

 

(iii)          the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05 hereof.

 

(d)            Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.01.

 

(e)            The Trustee shall be under no obligation to exercise any of its rights or powers under this Indenture at the request or direction of any of the Holders of the Notes unless the Holders have offered to the Trustee indemnity or security satisfactory to the Trustee against any loss, liability or expense.

 

(f)            The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.

 

SECTION 7.02.      Rights of Trustee.

 

(a)            The Trustee may conclusively rely upon, and shall be fully protected in acting or refraining from acting upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the sole cost of the Company and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.

 

(b)            Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate of the Company or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel. The Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.

 

 

(c)            The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent or attorney appointed with due care.

 

(d)            The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.

 

(e)            Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company shall be sufficient if signed by an Officer of the Company.

 

(f)            None of the provisions of this Indenture shall require the Trustee to expend or risk its own funds or otherwise to incur any liability, financial or otherwise, in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not assured to it.

 

(g)            The Trustee shall not be deemed to have notice of any Default or Event of Default unless written notice of any event which is in fact such a Default is received by a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture.

 

(h)            In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.

 

(i)            The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder.

 

(j)            The Trustee may request that the Company and any Guarantor deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers (with specimen signatures) authorized at such times to take specific actions pursuant to this Indenture, which Officer’s Certificate may be signed by any person specified as so authorized in any such certificate previously delivered and not superseded.

 

(k)            The permissive rights of the Trustee to take certain actions under this Indenture shall not be construed as a duty unless so specified herein.

 

(l)            The Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder.

 

(m)          The Trustee shall have no duty to inquire as to the performance of the Company with respect to the covenants contained in Article 4 or to make any calculation in connection therewith or in connection with any redemption of the Notes. In addition, except as otherwise expressly provided herein, the Trustee shall have no obligation to monitor or verify compliance by the Company or any Guarantor with any other obligation or covenant under this Indenture.

 

 

SECTION 7.03.      Individual Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or any Affiliate of the Company with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest, it must eliminate such conflict within 90 days or resign as Trustee. Any Agent may do the same with like rights and duties. The Trustee is also subject to Section 7.09 hereof.

 

SECTION 7.04.      Trustee’s Disclaimer. The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall not be accountable for the Company’s use of the proceeds from the Notes or any money paid to the Company or upon the Company’s direction under any provision of this Indenture, it shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it shall not be responsible for any statement or recital herein or any statement in the Notes or any other document in connection with the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.

 

SECTION 7.05.      Notice of Defaults. If a Default occurs and is continuing and the Trustee has received written notice thereof, the Trustee shall give to Holders of Notes a notice of the Default within 90 days of having received such notice. Except in the case of a Default relating to the payment of principal, premium, if any, or interest, if any, on any Note, the Trustee may withhold from the Holders notice of any continuing Default if and so long as the Trustee determines that withholding the notice is in the interests of the Holders of the Notes. The Trustee shall not be deemed to have received notice of any Default unless written notice of any event which is such a Default is received by a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee.

 

SECTION 7.06.      Compensation and Indemnity. The Company shall pay to the Trustee (acting in any capacity hereunder) from time to time such compensation for its acceptance of this Indenture and services hereunder as the parties shall agree in writing from time to time. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee (acting in any capacity hereunder) promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it in addition to the compensation for its services. Such expenses shall include the reasonable fees, disbursements and expenses of the Trustee’s agents and counsel.

 

The Company and the Guarantors, jointly and severally, shall indemnify the Trustee or any predecessor Trustee in each of its capacities hereunder (including Paying Agent, and Registrar), and each of their officers, directors, employees, counsel and agents, for, and hold the Trustee or any predecessor Trustee in each of its capacities hereunder (including Paying Agent, and Registrar), and each of their officers, directors, employees, counsel and agents, harmless against, any and all loss, damage, claims, liability or expense (including attorneys’ fees and expenses) incurred by it in connection with the acceptance or administration of this trust and the performance of its duties hereunder (including the costs and expenses of enforcing this Indenture against the Company or any Guarantor (including this Section 7.06) or defending itself against any claim whether asserted by any Holder, the Company or any Guarantor, or liability in connection with the acceptance, exercise or performance of any of its powers or duties hereunder). The Trustee shall notify the Company promptly of any third-party claim for which it may seek indemnity. Failure by the Trustee to so notify the Company shall not relieve the Company of its obligations hereunder. The Company shall defend the claim and the Trustee may have separate counsel and the Company shall pay the fees and expenses of such counsel. The Company need not reimburse any expense or indemnify against any loss, liability or expense incurred by the Trustee through the Trustee’s own willful misconduct or negligence (as determined by a court of competent jurisdiction in a final and non-appealable order).

 

 

Notwithstanding Section 4.12 hereof, to secure the payment obligations of the Company and the Guarantors in this Section 7.06, the Trustee shall have a Lien prior to the Notes on all money or property held or collected by the Trustee from the Company or any Guarantor, except that held in trust to pay principal and interest on particular Notes. Such Lien shall survive the satisfaction and discharge of this Indenture.

 

When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(vii) or (viii) hereof occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.

 

The obligations of the Company under this Section 7.06 shall survive the satisfaction and discharge of this Indenture or the earlier resignation or removal of the Trustee.

 

SECTION 7.07.      Replacement of Trustee. A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section 7.07. The Trustee may resign in writing at any time and be discharged from the trust hereby created by so notifying the Company. The Holders of a majority in principal amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Company in writing not less than 30 days prior to the effective date of such removal. The Trustee shall be permitted to rely in good faith on customary certificates of beneficial ownership as evidence of holdings (and shall not require the provision of DTC proxies, medallion-stamped guarantees or other similar evidence) in connection with any determination with respect to the Holders of Notes giving any consent, instruction or authorization under this Indenture. The Company may remove the Trustee if:

 

the Trustee fails to comply with Section 7.09 hereof;

 

the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;

 

a custodian or public officer takes charge of the Trustee or its property; or

 

the Trustee becomes incapable of acting.

 

If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Company.

 

If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee (at the Company’s expense), the Company or the Holders of at least 10.0% in principal amount of the then outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee.

 

If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply with Section 7.09 hereof, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.

 

 

A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee; provided all sums owing to the Trustee hereunder have been paid and subject to the Lien provided for in Section 7.06 hereof. Notwithstanding replacement of the Trustee pursuant to this Section 7.07, the Company’s obligations under Section 7.06 hereof shall continue for the benefit of the retiring Trustee. The retiring or removed Trustee shall have no responsibility or liability for the action or inaction of any successor Trustee.

 

SECTION 7.08.      Successor Trustee by Merger, etc. If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act shall be the successor Trustee.

 

SECTION 7.09.      Eligibility; Disqualification. There shall at all times be a Trustee hereunder that is a corporation, national association, or other type of legal entity organized and doing business under the laws of the United States of America or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition.

 

ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE

 

SECTION 8.01.      Option to Effect Legal Defeasance or Covenant Defeasance. The Company may, at its option and at any time, elect to have either Section 8.02 or Section 8.03 hereof applied to all outstanding Notes upon compliance with the conditions set forth below in this Article 8.

 

SECTION 8.02.      Legal Defeasance and Discharge. Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section 8.02, the Company and the Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to have been discharged from their obligations with respect to all outstanding Notes and any Note Guarantees on the date the conditions set forth below are satisfied (“Legal Defeasance”). For this purpose, Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 hereof and the other Sections of this Indenture referred to in (a) and (b) below, and to have satisfied all its other obligations under such Notes and this Indenture including that of the Guarantors (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same (in form and substance satisfactory to the Trustee)), except for the following provisions which shall survive until otherwise terminated or discharged hereunder:

 

the rights of Holders to receive payments in respect of the principal of, premium, if any, and interest on the Notes when such payments are due solely out of the trust created pursuant to this Indenture referred to in Section 8.04 hereof;

 

the Company’s obligations with respect to the Notes concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payments under Article 2 and money for security payments held in trust;

 

 

the rights, powers, trusts, duties and immunities of the Trustee and the Company’s obligations in connection therewith; and

 

this Section 8.02.

 

Subject to compliance with this Article 8, the Company may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof.

 

SECTION 8.03.      Covenant Defeasance. Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section 8.03, the Company and the Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be released from their obligations under the covenants contained in Sections 4.03, 4.04, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.14, 4.15, 4.16 and 4.17 hereof and Section 5.01(a)(B) hereof with respect to the outstanding Notes on and after the date the conditions set forth in Section 8.04 hereof are satisfied (“Covenant Defeasance”), and the Notes shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document, and such omission to comply shall not constitute a Default or an Event of Default under Section 6.01 hereof, but, except as specified above, the remainder of this Indenture and such Notes and any Note Guarantees shall be unaffected thereby. In addition, upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section 8.03 hereof, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, Sections 6.01(iii) (solely with respect to the covenants, or portions thereof, that are released upon a Covenant Defeasance) or (iv) (solely with respect to the covenants that are released upon a Covenant Defeasance), 6.01(v), 6.01(vi), 6.01(vii) (other than with respect to the Company or any Subsidiary of the Company (other than an Excluded Subsidiary)), 6.01(viii) (other than with respect to the Company or any Subsidiary of the Company (other than an Excluded Subsidiary)) and 6.01(ix) (other than with respect to the Company or any Subsidiary of the Company) hereof shall not constitute Events of Default.

 

SECTION 8.04.      Conditions to Legal or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 or Section 8.03 hereof to the outstanding Notes:

 

In order to exercise either Legal Defeasance or Covenant Defeasance with respect to the Notes:

 

the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the applicable Holders cash in Dollars, non-callable U.S. government obligations, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, premium, if any, and interest on the Notes on the stated date for payment thereof or on the applicable redemption date, as the case may be, and any other amounts owing under this Indenture (in the case of an optional redemption date prior to electing to exercise either Legal Defeasance or Covenant Defeasance, the Company has delivered to the Trustee an irrevocable notice to redeem all of the outstanding Notes on such redemption date); provided that with respect to the exercise of either Legal Defeasance or Covenant Defeasance in connection with any redemption that requires the payment of the Applicable Premium, the amount deposited will be sufficient for purposes of this Indenture to the extent that an amount is deposited with the Trustee equal to the Applicable Premium calculated as of the date of the notice of redemption, with any Applicable Premium Deficit only required to be deposited with the Trustee on or prior to the date of redemption; any Applicable Premium Deficit shall be set forth in an Officer’s Certificate delivered to the Trustee simultaneously with the deposit of such Applicable Premium Deficit that confirms that such Applicable Premium Deficit will be applied toward such redemption;

 

 

in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States confirming that, subject to customary assumptions and exclusions:

 

the Company has received from, or there has been published by, the Internal Revenue Service a ruling; or

 

since the date of this Indenture, there has been a change in the applicable U.S. federal income tax law,

 

in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, subject to customary assumptions and exclusions, the beneficial owners of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;

 

in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States confirming that, subject to customary assumptions and exclusions, the beneficial owners of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;

 

no Default or Event of Default shall have occurred and be continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit (and any similar concurrent deposit relating to other Indebtedness) (and the incurrence of Liens associated with any such borrowings));

 

such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under any material agreement or instrument (other than this Indenture and the agreements governing any other Indebtedness being defeased, discharged or replaced) to which the Company or any of its Subsidiaries (other than any Excluded Subsidiary) is a party or by which the Company or any of its Subsidiaries is bound;

 

the Company shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others; and

 

 

the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel (which Opinion of Counsel may be subject to customary assumptions and exclusions), each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance have been complied with.

 

Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) of this Section 8.04 with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable, or (y) will become due and payable on the maturity date within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.

 

SECTION 8.05.      Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions. Subject to Section 8.06 hereof, all money and Government Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 hereof in respect of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company or any Guarantor acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium, if any, and interest, but such money need not be segregated from other funds except to the extent required by law.

 

The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or Government Securities deposited pursuant to Section 8.04 hereof or the principal, and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes.

 

Anything in this Article 8 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time, upon the written request of the Company, any money or Government Securities held by it as provided in Section 8.04 hereof which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(a) hereof), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.

 

SECTION 8.06.      Repayment to Company. Subject to any abandoned property law, any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of, premium, if any, or interest on any Note and remaining unclaimed for two years after such principal, and premium, if any, or interest has become due and payable shall be paid to the Company on its written request or (if then held by the Company) shall be discharged from such trust; and the Holder of such Note shall thereafter look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease.

 

SECTION 8.07.      Reinstatement. If the Trustee or Paying Agent is unable to apply any United States dollars or Government Securities in accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.02 or 8.03 hereof, as the case may be; provided that, if the Company makes any payment of principal of, premium, if any, or interest on any Note following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee or Paying Agent.

 

 

ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER

 

SECTION 9.01.      Without Consent of Holders of Notes. Notwithstanding Section 9.02 hereof, the Company, the Guarantors (with respect to any Note Guarantee or this Indenture) and the Trustee may amend or supplement this Indenture and any Note Guarantee or Notes without the consent of any Holder to:

 

cure any mistakes, ambiguities, defects or inconsistencies;

 

provide for uncertificated Notes in addition to or in place of certificated Notes or to alter the provisions of this Indenture relating to the form of the Notes (including the related definitions) in a manner that does not materially adversely affect any Holder as set forth in an Officer’s Certificate delivered to the Trustee;

 

provide for the assumption of the Company’s or a Guarantor’s obligations to the Holders of the Notes by a successor to the Company or such Guarantor and the release of the Company or such Guarantor, in each case pursuant to Article 5 hereof or Section 10.07 hereof, as applicable;

 

make any change that would provide any additional rights or benefits to the Holders of the Notes or that does not materially adversely affect the legal rights under this Indenture of any Holder of the Notes (as evidenced by an Officer’s Certificate delivered to the Trustee) or to add covenants for the benefit of the Holders or to surrender any right or power conferred upon the Company or any Guarantor;

 

provide for the issuance of Additional Notes issued after the Issue Date in accordance with the limitations set forth in this Indenture;

 

allow any Guarantor to execute a supplemental indenture and/or a Note Guarantee or to effect the release of any Subsidiary Guarantor from any of its obligations under its Note Guarantee or this Indenture (to the extent permitted by this Indenture);

 

secure the Notes without the consent of the Holders;

 

provide for the issuance of exchange notes or private exchange notes;

 

conform the text of this Indenture, the Note Guarantees or the Notes to any provision of the “Description of Notes” section of the Offering Memorandum to the extent that such provision in such “Description of Notes” section was intended to conform to a provision of this Indenture, the Note Guarantees or the Notes (as evidenced in an Officer’s Certificate delivered to the Trustee); or

 

evidence and provide for the acceptance and appointment under this Indenture of a successor Trustee thereunder pursuant to the requirements thereof.

 

 

Upon the request of the Company accompanied by a resolution of its Board of Directors authorizing the execution of any such amended or supplemental indenture, and upon receipt by the Trustee of the documents described in Section 9.05 hereof, the Trustee shall join with the Company and the Guarantors in the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to enter into such amended or supplemental indenture that affects its own rights, duties or immunities under this Indenture or otherwise.

 

SECTION 9.02.      With Consent of Holders of Notes. Except as provided below in this Section 9.02, the Company, any Subsidiary Guarantors and the Trustee may amend or supplement this Indenture, the Notes and the Note Guarantees with the consent of the Holders of at least a majority in principal amount of the Notes (including Additional Notes, if any) then outstanding voting as a single class (including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes), and, subject to Sections 6.04 and 6.06 hereof, any existing Default or Event of Default (other than a Default or Event of Default in the payment of the principal of, premium, if any, or interest on the Notes, except a payment default resulting from an acceleration with respect to a non-payment default that has been rescinded) or compliance with any provision of this Indenture, the Notes or the Note Guarantees may be waived with the consent of the Holders of a majority in principal amount of the then outstanding Notes (including Additional Notes, if any) voting as a single class (including consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes). Sections 2.08 and 2.09 hereof shall determine which Notes are considered to be “outstanding” for the purposes of this Section 9.02.

 

Upon the request of the Company accompanied by a resolution of its Board of Directors authorizing the execution of any such amended or supplemental indenture, and upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of the documents described in Section 9.05 hereof, the Trustee shall join with the Company and any Subsidiary Guarantors, if applicable, in the execution of such amended or supplemental indenture unless such amended or supplemental indenture directly affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such amended or supplemental indenture.

 

It shall not be necessary for the consent of the Holders of Notes under this Section 9.02 to approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such consent approves the substance thereof.

 

After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Company shall deliver to the Holders of Notes affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Company to deliver such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amended or supplemental indenture or waiver.

 

Without the consent of each affected Holder of Notes, an amendment or waiver under this Section 9.02 may not (with respect to any Notes held by a non-consenting Holder):

 

reduce the principal amount of Notes whose Holders must consent to an amendment, supplement or waiver;

 

reduce the rate of or change or have the effect of changing the time for payment of interest, including defaulted interest once due, on any Notes;

 

 

reduce the principal of or change or have the effect of changing the fixed final maturity of any Notes, or change the date on which any Notes may be subject to redemption or reduce the redemption price therefor (other than the provisions relating to Sections 4.10 and 4.14 hereof;

 

make any Notes payable in money other than that stated in the Notes;

 

make any change in provisions of this Indenture protecting the right of each Holder to receive payment of principal of and interest on the Notes on or after the due date thereof or to bring suit to enforce such payment, or permitting Holders of a majority in principal amount of Notes to waive Defaults or Events of Default;

 

waive a Default or Event of Default in the payment of principal of, premium, if any, or interest on the Notes (except a rescission of acceleration of the Notes by the holders of at least a majority in aggregate principal amount of the Notes with respect to a non-payment default and a waiver of the payment default that resulted from such acceleration);

 

after the Company’s obligation to purchase Notes arises thereunder, amend, change or modify in any material respect the obligation of the Company to make and consummate a Change of Control Offer in the event of a Change of Control or modify any of the provisions or definitions with respect thereto;

 

modify or change any provision of this Indenture or the related definitions affecting the ranking of the Notes in a manner which adversely affects the Holders;

 

(i)            release any Guarantor from any of its obligations under its Note Guarantee or this Indenture, except in accordance with the terms of this Indenture; or

 

(j)            make any change in the preceding amendment and waiver provisions.

 

Notwithstanding anything to the contrary herein, the Company shall not (x) enter into any amendment to, or other agreement or modification that has the effect of changing, any of the provisions of Section 2.01(c), Section 4.04(b) or this paragraph of Section 9.02, and/or (y) pledge, hypothecate, transfer, encumber or grant a lien on or a security interest in any assets of the Company, any equity interests in the Company or any subsidiaries of the Company, or otherwise provide any collateral support for payment and performance of the obligations of the Company under this Indenture or the Notes without the prior written approval of Fannie Mae and Freddie Mac, and the Trustee and the Holders acknowledge (without acceptance of any responsibility or liability in connection with such acknowledgement) (i) such condition precedent to and restriction on the Company’s right to amend and (ii) that Fannie Mae’s and Freddie Mac’s Agency Consent is not and shall not extend to, be deemed to be or be construed as, Fannie Mae’s or Freddie Mac’s consent, approval, or acknowledgment to any amendment, waiver, modification or other alteration such provisions, or any right, obligation or other interest of the Company or any Guarantor under any Fannie Mae Agreements or Freddie Mac Agreements, which amendments or modifications shall be subject to the terms of the Fannie Mae Agreements or Freddie Mac Agreements, as applicable.

 

SECTION 9.03.      Revocation and Effect of Consents. Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder.

 

 

The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to consent to any amendment, supplement, or waiver. If a record date is fixed, then, notwithstanding the preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only such Persons, shall be entitled to consent to such amendment, supplement, or waiver or to revoke any consent previously given, whether or not such Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 90 days after such record date unless the consent of the requisite number of Holders has been obtained.

 

SECTION 9.04.      Notation on or Exchange of Notes. The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Company in exchange for all Notes may issue and the Trustee shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment, supplement or waiver.

 

Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver.

 

SECTION 9.05.      Trustee to Sign Amendments, etc. The Trustee shall sign any amendment, supplement or waiver authorized pursuant to this Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee. In executing any amendment, supplement or waiver, the Trustee shall receive and (subject to Section 7.01 hereof) shall be fully protected in conclusively relying upon, in addition to the documents required by Section 12.03 hereof, an Officer’s Certificate of the Company and an Opinion of Counsel each stating that the execution of such amendment, supplement or waiver is authorized or permitted by this Indenture, that such amendment, supplement or waiver is the legal, valid and binding obligation of the Company and any Subsidiary Guarantors party thereto, enforceable against them in accordance with its terms, and that all conditions precedent (with regard to an Opinion of Counsel, aside from such factual matters or statements of fact as to which the Trustee may rely conclusively on an Officer’s Certificate) relating to such amendment, supplement or waiver have been complied with, subject to customary exceptions.

 

ARTICLE 10
NOTE GUARANTEES

 

SECTION 10.01.      Note Guarantee. Subject to this Article 10, each of the Guarantors party hereto or that joins this Indenture pursuant to Section 4.15 or otherwise hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its respective successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal of, premium, if any, and interest on the Notes shall be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and accrued and unpaid interest on the Notes, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof, and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.

 

 

The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives (to the extent it may lawfully do so) diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that the Note Guarantee of such Guarantor shall not be discharged except by full payment or complete performance of the obligations contained in the Notes and this Indenture.

 

Each Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.

 

If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid either to the Trustee or such Holder, each Note Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.

 

Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of each Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of each Note Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Trustee and Holders under the Note Guarantees.

 

Each Note Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation, reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Note Guarantees, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.

 

In case any provision of any Note Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

 

 

The Note Guarantee issued by each Guarantor shall be a general unsecured senior obligation of such Guarantor and shall rank equally in right of payment with all existing and future unsubordinated indebtedness of such Guarantor, if any.

 

Each payment to be made by a Guarantor in respect of its Note Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.

 

SECTION 10.02.      Limitation on Guarantor Liability. Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law or fraudulent conveyance laws to the extent applicable to any Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of each Guarantor shall be limited to the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Article 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent conveyance or fraudulent transfer under, applicable law. Each Guarantor that makes a payment under its Note Guarantee shall be entitled upon payment in full of all guaranteed obligations under this Indenture to a contribution from each other Guarantor in an amount equal to such other Guarantor’s pro rata portion of such payment based on the respective net assets of all the Guarantors at the time of such payment determined in accordance with GAAP.

 

SECTION 10.03.      Execution and Delivery. To evidence its Note Guarantee set forth in Section 10.01 hereof, (x) the Company hereby agrees that this Indenture has been executed on behalf of such Guarantor by an Officer or person holding an equivalent title and (y) each other Guarantor hereby agrees that a supplemental indenture attached hereto as Exhibit D shall be executed on behalf of such Guarantor by an Officer of such Guarantor.

 

Each Guarantor hereby agrees that its Note Guarantee set forth in Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.

 

If an Officer whose signature is on a supplemental indenture attached hereto as Exhibit D no longer holds that office at the time the Trustee authenticates the Note, such Note Guarantee shall be valid nevertheless.

 

The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of the Guarantors.

 

If required by Section 4.15 hereof, the Company shall cause any newly created or acquired Subsidiary to comply with Section 4.15 hereof and this Article 10, to the extent applicable.

 

SECTION 10.04.      Subrogation. Each Guarantor shall be subrogated to all rights of Holders of Notes against the Company in respect of any amounts paid by any Guarantor pursuant to Section 10.01 hereof; provided that, if an Event of Default has occurred and is continuing, no Guarantor shall be entitled to enforce or receive any payments arising out of, or based upon, such right of subrogation until all amounts then due and payable by the Company under this Indenture or the Notes shall have been paid in full.

 

 

SECTION 10.05.      Benefits Acknowledged. Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that the guarantee and waivers made by it pursuant to its Note Guarantee are knowingly made in contemplation of such benefits.

 

SECTION 10.06.      Merger, Consolidation or Sale of All or Substantially All Assets of Subsidiary Guarantors. No Subsidiary Guarantor may sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, other than the Company or another Subsidiary Guarantor (or Subsidiary that becomes a Subsidiary Guarantor contemporaneous with such transaction), unless:

 

except in the case of a merger entered into solely for the purpose of reincorporating a Subsidiary Guarantor in another jurisdiction, immediately after giving effect to that transaction, no Default or Event of Default shall have occurred and be continuing;

 

either:

 

the Person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation or merger (if not the Subsidiary Guarantor), within 30 days of the date of such acquisition or merger or consolidation, assumes all the obligations of that Subsidiary Guarantor under this Indenture and its Note Guarantee pursuant to a supplemental indenture satisfactory to the Trustee; or

 

such sale or other disposition or consolidation or merger does not violate Section 4.10 hereof; and

 

the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such sale, disposition, consolidation or merger and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture will comply with the applicable provisions of this Indenture, is the legal, valid, and binding obligation of the Company and/or such surviving entity, as applicable, enforceable against the Company and/or such surviving entity, as applicable, in accordance with its terms, and that all conditions precedent in this Indenture relating to such transaction have been satisfied.

 

This Section 10.06 will not apply to a sale or disposition of assets not prohibited by, or otherwise in compliance with Section 4.10.

 

SECTION 10.07.      Release of Note Guarantees. A Note Guarantee by a Guarantor shall be automatically, with written notice to the Trustee (however, failure to deliver such notice shall not affect any such release), and unconditionally released and discharged, and no further action by such Guarantor, the Company or the Trustee is required for the release of such Guarantor’s Note Guarantee (other than delivery of the Officer’s Certificate referred to in this Section 10.07; however, failure to deliver such Officer’s Certificate shall not affect any such release), in the following circumstances:

 

in connection with any sale, transfer or other disposition of all or substantially all of the assets of such Guarantor (including by way of merger or consolidation) to a Person that is not (either before or after giving effect to such transaction) the Company or a Subsidiary of the Company, if the sale or other disposition does not violate Section 4.10 hereof;

 

 

in connection with any sale, transfer or other disposition of all of the Capital Stock of such Guarantor (including by way of merger or consolidation) to a Person that is not (either before or after giving effect to such transaction) the Company or a Subsidiary of the Company, if the sale or other disposition does not violate Section 4.10 hereof;

 

if such Person ceases to be a Subsidiary as a result of a transaction permitted under this Indenture or if the Company designates such Guarantor to be an Excluded Subsidiary of the Company in accordance with Section 4.17 hereof;

 

if such Guarantor is released from its guarantee which caused such Subsidiary to become a Guarantor pursuant to Section 4.15; or

 

upon Legal Defeasance, satisfaction and discharge of this Indenture or Covenant Defeasance pursuant to Article 8 or Article 11 hereof.

 

In connection with any such release, the Company shall deliver to the Trustee an Officer’s Certificate of such Guarantor confirming the effective date of such release and stating that all conditions precedent provided for in this Indenture relating to such transaction have been complied with; however, failure to deliver such Officer’s Certificate shall not affect any such release.

 

ARTICLE 11
SATISFACTION AND DISCHARGE

 

SECTION 11.01.      Satisfaction and Discharge. This Indenture shall be discharged and shall cease to be of further effect (except as to surviving rights or registration of transfer or exchange of the Notes, as expressly provided for in this Indenture) as to all Notes when:

 

either:

 

all the Notes theretofore authenticated and delivered (except lost, stolen or destroyed Notes that have been replaced or paid and Notes for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust) have been delivered to the Trustee for cancellation; or

 

all Notes not theretofore delivered to the Trustee for cancellation have become due and payable by reason of delivering of a notice of redemption or otherwise or will become due and payable within one year or are to be called for redemption within one year under irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Company, and the Company or any Guarantor has irrevocably deposited or caused to be deposited with the Trustee funds in an amount sufficient, as determined by the Company, to pay and discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee for cancellation, for principal of, premium, if any, and interest on the Notes to, but excluding, the date of maturity or redemption, as applicable, together with irrevocable instructions from the Company directing the Trustee to apply such funds to the payment thereof at maturity or redemption, as the case may be; provided that in a discharge in connection with any redemption that requires the payment of the Applicable Premium, the amount deposited shall be sufficient for purposes of this Indenture to the extent that an amount is deposited with the Trustee equal to the Applicable Premium calculated as of the date of the notice of redemption, with any deficit on the date of redemption (the “Applicable Premium Deficit”) only required to be deposited with the Trustee on or prior to the date of the redemption; any Applicable Premium Deficit shall be set forth in an Officer’s Certificate delivered to the Trustee simultaneously with the deposit of such Applicable Premium Deficit that confirms that such Applicable Premium Deficit shall be applied toward such redemption;

 

 

the Company or any Guarantor has paid all other sums payable under this Indenture by the Company; and

 

the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel stating that all conditions precedent under this Indenture relating to the satisfaction and discharge of this Indenture have been complied with.

 

Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 7.06 and, if money shall have been deposited with the Trustee pursuant to clause (a)(ii) of this Section 11.01, Section 11.02 and Section 8.06 hereof shall survive.

 

SECTION 11.02.      Application of Trust Money. Subject to Section 8.06 hereof, all funds deposited with the Trustee pursuant to Section 11.01 hereof shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company or any Guarantor acting as their own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal of, premium, if any, and interest for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.

 

If the Trustee or Paying Agent is unable to apply any funds in accordance with Section 11.01 hereof by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company’s and any Guarantor’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.01 hereof; provided that if the Company has made any payment of principal of, premium, if any, or interest on any Notes because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the funds held by the Trustee or Paying Agent.

 

ARTICLE 12
MISCELLANEOUS

 

SECTION 12.01.      Inapplicability of the Trust Indenture Act. This Indenture is not and will not be qualified under, and does not and will not incorporate or include any of the provisions of, the U.S. Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”).

 

SECTION 12.02.      Notices. Any notice or communication by the Company, any Guarantor or the Trustee to the others is duly given if in writing and delivered in person or mailed by first-class mail (registered or certified, return receipt requested), PDF transmission, fax or overnight air courier guaranteeing next day delivery, to the others’ address:

 

If to the Company or a Guarantor:

 

Walker & Dunlop, Inc.

7272 Wisconsin Avenue, Suite 1300

Bethesda, Maryland 20814

Attention: Issa M. Bannourah

 

If to the Trustee:

 

U.S. Bank Trust Company, National Association

ATTN:  Melody Scott
Three James Center

1051 East Cary Street, Suite 600

Richmond, VA 23219

 

 

The Company, any Guarantor or the Trustee, by notice to the others, may designate additional or different addresses for subsequent notices or communications.

 

All notices and communications (other than those sent to Holders) shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five calendar days after being deposited in the mail, postage prepaid, if mailed by first-class mail; when receipt acknowledged, if faxed; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery; provided that any notice or communication delivered to the Trustee shall be deemed effective upon actual receipt thereof. Notice otherwise given in accordance with the procedures of DTC will be deemed given on the date sent to DTC.

 

Any notice or communication to a Holder shall be mailed by first-class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to its address (or, in the case of Global Notes, in accordance with the Applicable Procedures) shown on the register kept by the Registrar. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. Notwithstanding anything to the contrary contained herein, as long as the Notes are in the form of a Global Note, notice to the Holders may be made electronically in accordance with the procedures of the Depositary for such Note.

 

If a notice or communication is mailed in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it; provided that any notices or communications to the Trustee shall be deemed effective only upon actual receipt thereof by a Responsible Officer of the Trustee.

 

If the Company mails a notice or communication to Holders, it shall mail a copy to the Trustee and each Agent at the same time.

 

The Trustee agrees to accept and act upon notices, instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods. If the Company and the Guarantors elect to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The Company and the Guarantors agree to assume all risks arising out of the use of such electronic methods, including the use of electronic signatures, to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.

 

 

SECTION 12.03.      Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Company or any of the Guarantors to the Trustee to take any action under this Indenture, the Company or such Guarantor, as the case may be, shall furnish to the Trustee:

 

An Officer’s Certificate of the Company in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 12.04 hereof) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been satisfied; and

 

An Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 12.04 hereof) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied.

 

SECTION 12.04.      Statements Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to Section 4.04 hereof) shall include:

 

a statement that the Person making such certificate or opinion has read such covenant or condition;

 

a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

 

a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with (and, in the case of an Opinion of Counsel, may be limited to reliance on an Officer’s Certificate as to factual matters or statements of fact); and

 

a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.

 

SECTION 12.05.      Rules by Trustee and Agents. The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.

 

SECTION 12.06.      No Personal Liability of Directors, Officers, Employees and Stockholders. No director, officer, employee, incorporator, member, partner or stockholder of the Company or any Guarantors shall have any liability for any obligation of the Company or any Guarantors, respectively, under the Notes, the Note Guarantees and this Indenture or for any claim based on, in respect of, or by reason of such obligations or their creation; provided that the foregoing shall not limit any Guarantor’s obligations under its Note Guarantee. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. Such waiver may not be effective to waive liabilities under the Federal securities laws, and it is the view of the SEC that such a waiver is against public policy.

 

SECTION 12.07.      Governing Law; Consent to Jurisdiction and Service. THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS INDENTURE, THE NOTES OR THE NOTE GUARANTEES, WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

 

 

To the fullest extent permitted by applicable law, the Company and each Guarantor hereby irrevocably submits to the jurisdiction of any federal or State court located in the Borough of Manhattan in The City of New York, New York in any suit, action or proceeding based on or arising out of or relating to this Indenture or any Notes and irrevocably agrees that all claims in respect of such suit or proceeding may be determined in any such court. The Company and each Guarantor irrevocably waives, to the fullest extent permitted by law, any objection which they may have to the laying of the venue of any such suit, action or proceeding brought in an inconvenient forum. The Company and each Guarantor agrees that final judgment in any such suit, action or proceeding brought in such a court shall be conclusive and binding upon it, and may be enforced in any courts to the jurisdiction of which it is subject by a suit upon such judgment; provided, that service of process is effected upon it in the manner specified herein or as otherwise permitted by law. To the extent the Company or any Guarantor has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, executor or otherwise) with respect to itself or its property, it hereby irrevocably waives such immunity in respect of its obligations under this Indenture to the extent permitted by law.

 

SECTION 12.08.      Waiver of Jury Trial. EACH OF THE COMPANY, THE GUARANTORS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.

 

SECTION 12.09.      Force Majeure. In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services.

 

SECTION 12.10.      No Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.

 

SECTION 12.11.      Successors. All agreements of the Company in this Indenture and the Notes shall bind its successors. All agreements of the Trustee in this Indenture shall bind its successors. All agreements of each Guarantor in this Indenture shall bind its successors, except as otherwise provided in Sections 10.06 and 10.07 hereof.

 

SECTION 12.12.      Severability. In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

 

SECTION 12.13.      Counterpart Originals. This Indenture may be executed in two or more counterparts, which when so executed shall constitute one and the same agreement. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Indenture or any document to be signed in connection with this Indenture shall be deemed to include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf,” “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign) and such signatures shall be deemed to be original signatures for all purposes. The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.

 

 

SECTION 12.14.      Table of Contents, Headings, etc. The Table of Contents and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.

 

SECTION 12.15.      U.S.A. Patriot Act. The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. Patriot Act.

 

SECTION 12.16.      FATCA In order to comply with Sections 1471 through 1474 of the Code, any regulations or official interpretations thereof, and any intergovernmental agreements and related laws, rules or regulations to implement any of the foregoing (inclusive of directives, guidelines and interpretations promulgated by competent authorities) in effect from time to time (“Applicable Law”) a foreign financial institution, issuer, trustee, paying agent, holder or other institution is or has agreed to be subject to related to this Indenture, the Company and Guarantors agree (i) to provide to U.S. Bank Trust Company, National Association sufficient information, to the extent it has such information in its possession, about holders or other applicable parties and/or transactions (including any modification to the terms of such transactions) so U.S. Bank Trust Company, National Association can determine whether it has tax related obligations under Applicable Law, (ii) that U.S. Bank Trust Company, National Association shall be entitled to make any withholding or deduction from payments under this Indenture to the extent necessary to comply with Applicable Law for which U.S. Bank Trust Company, National Association shall not have any liability, and (iii) to hold harmless U.S. Bank Trust Company, National Association for any losses it may suffer due to the actions it takes to comply with such Applicable Law, other than any loss suffered as a result of its own willful misconduct or negligence. The terms of this section shall survive the termination of this Indenture.

 

[Signature Pages Follow]

 

 

	WALKER & DUNLOP, INC., as Company
	By:	/s/ Gregory A. Florkowski
		Name:	Gregory A. Florkowski
		Title:	Executive Vice President & Chief Financial Officer
	WALKER & DUNLOP MULTIFAMILY, INC., as a Guarantor
	By:	/s/ Gregory A. Florkowski
		Name:	Gregory A. Florkowski
		Title:	Executive Vice President & Chief Financial Officer
	WALKER & DUNLOP, LLC, as a Guarantor
	By:	/s/ Gregory A. Florkowski
		Name:	Gregory A. Florkowski
		Title:	Executive Vice President & Chief Financial Officer
	WALKER & DUNLOP CAPITAL, LLC, as a Guarantor
	By:	/s/ Gregory A. Florkowski
		Name:	Gregory A. Florkowski
		Title:	Executive Vice President & Chief Financial Officer
	W&D BE, INC., as a Guarantor
	By:	/s/ Gregory A. Florkowski
		Name:	Gregory A. Florkowski
		Title:	Executive Vice President & Chief Financial Officer

 

Signature page to Indenture

 

 

	WALKER & DUNLOP INVESTMENT SALES, LLC, as a Guarantor
	By:	WALKER & DUNLOP, INC., as Manager
	By:	/s/ Gregory A. Florkowski
		Name:	Gregory A. Florkowski
		Title:	Executive Vice President & Chief Financial Officer
	U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee
	By:	/s/ Melody M. Scott
		Name:	Melody M. Scott
		Title:	Assistant Vice President

 

Signature page to Indenture

 

 

Exhibit A

 

FORM OF NOTE

 

[FACE OF NOTE]

 

[Insert the Global Note Legend, if applicable pursuant to the provisions of the Indenture]

 

[Insert the Private Placement Legend, if applicable pursuant to the provisions of the Indenture]

 

[Insert the OID Legend, if applicable pursuant to the provisions of the Indenture]

 

 

CUSIP [          ]
ISIN [          ]¹

 

[RULE 144A][REGULATION S] GLOBAL NOTE
6.625% Senior Notes due 2033

 

No.	[Initially][$       ]

 

WALKER & DUNLOP, INC.

 

Walker & Dunlop, Inc., a Maryland corporation (the “Company,” which term includes any successor under the Indenture hereinafter referred to), for value received, promises to pay to [               ][CEDE & CO.], or its registered assigns, the principal sum [of             United States Dollars][as set forth on the Schedule of Exchanges of Interests in the Global Note attached hereto] on April 1, 2033.

 

Interest Payment Dates:	April 1 and October 1 of each year, commencing on [October 1, 2025]2
Record Dates:	March 15 and September 15

 

Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which will for all purposes have the same effect as if set forth at this place.

 

[Signature Page Follows]

 

1	Rule 144A Note CUSIP / ISIN: 93148P AA0 / US93148PAA03
	Regulation S Note CUSIP / ISIN: U93111 AA7 / USU93111AA77
	Unrestricted Global Note CUSIP / ISIN: [     ] / [     ]
2	With respect to the Initial Notes.

 

 

IN WITNESS HEREOF, the Company has caused this instrument to be duly executed as of the [          ] day of [          ], 20[    ].

 

	WALKER & DUNLOP, INC.,
	By:
		Name:
		Title:

 

 

This is one of the 6.625% Senior Notes due 2033 referred to in the within mentioned Indenture:

 

	U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee
	By:
		Authorized signatory
	Date: [          ], 20[    ]

 

 

[REVERSE OF NOTE]

 

6.625% Senior Notes due 2033

 

Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.

 

1.            INTEREST. The Company promises to pay interest on the principal amount of this Note at 6.625% per annum until maturity. The Company shall pay interest semiannually in arrears on April 1 and October 1 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from [March 14, 2025]³; provided that the first Interest Payment Date shall be [October 1, 2025]⁴. The Company shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at the interest rate on the Notes; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace periods) from time to time on demand at the interest rate on the Notes. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months.

 

2.            METHOD OF PAYMENT. The Company shall pay interest on the Notes to the Persons who are registered Holders of Notes at the close of business on March 15 and September 15 (each, a “Record Date”) (whether or not a Business Day), as the case may be, next preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in the Indenture with respect to defaulted interest. Payment of interest will be made at the Trustee’s corporate trust office in the United States; provided that payment by wire transfer of immediately available funds will be required with respect to principal of and premium, if any, and interest on all Global Notes and all other Notes the Holders of which shall have provided wire transfer instructions to the Company or the Paying Agent. Such payment shall be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.

 

3.            PAYING AGENT AND REGISTRAR. Initially, U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, the Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to the Holders. The Company or any of its Subsidiaries may act in any such capacity.

 

4.            INDENTURE. The Company issued the Notes under an Indenture, dated as of March 14, 2025 (the “Indenture”), among the Company, the Guarantors party thereto, and the Trustee. This Note is one of a duly authorized issue of notes of the Company designated as its 6.625% Senior Notes due 2033. The Company shall be entitled to issue Additional Notes pursuant to Sections 2.01 and 4.09 of the Indenture. The Notes are subject to all such terms, and Holders are referred to the Indenture for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.

 

3	With respect to the Initial Notes.
4	With respect to the Initial Notes.

 

 

5.            OPTIONAL REDEMPTION.

 

(a)            This Note is subject to the optional redemption provisions set forth in Section 3.07 of the Indenture.

 

(b)            Any redemption pursuant to Section 3.07 of the Indenture shall be made pursuant to Sections 3.01 through 3.07 of the Indenture.

 

(c)            In addition to the Company’s rights to redeem Notes pursuant to Section 3.07 of the Indenture, the Company may at any time and from time to time purchase Notes in open-market transactions, tender offers or otherwise.

 

6.            MANDATORY REDEMPTION. The Company shall not be required to make mandatory redemption or sinking fund payments with respect to the Notes. The Company may acquire the Notes by means other than a redemption, whether by tender offer, exchange offer, open-market purchases, negotiated transactions or otherwise.

 

7.            OFFERS TO REPURCHASE.

 

(a)            Upon the occurrence of a Change of Control, the Company shall make an offer (a “Change of Control Offer”) to each Holder to purchase all or a portion of such Holder’s Notes (equal to a minimum denomination of $2,000 or an integral multiple of $1,000 in excess of $2,000) at a purchase price equal to 101.0% of the principal amount of the Notes purchased, plus accrued and unpaid interest thereon, if any, to, but excluding, the date of purchase (the “Change of Control Payment”). The Change of Control Offer shall be made in accordance with Section 4.14 of the Indenture.

 

(b)            If the Company or any of its Subsidiaries consummates an Asset Sale, within 30 days after each date that the aggregate amount of Excess Proceeds from such Asset Sales exceeds the greater of (x) $32.5 million and (y) 10.0% of Consolidated Adjusted EBITDA, the Company shall make an offer to all Holders of Notes and all holders of Pari Passu Debt containing provisions similar to those set forth in the Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such Pari Passu Debt that may be purchased out of the Excess Proceeds (an “Asset Sale Offer”). The offer price in any Asset Sale Offer shall be equal to 100.0% of the principal amount (or, in the case of any other Pari Passu Debt offered at a significant original issue discount, 100.0% of the accreted value thereof, if permitted by the relevant indenture or other agreement governing such Pari Passu Debt) plus accrued and unpaid interest, if any, to, but excluding, the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by the Indenture. If the aggregate principal amount of Notes and Pari Passu Debt tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Company shall determine the amount of the Notes and such Pari Passu Debt to be purchased on a pro rata basis or as nearly a pro rata basis as is practicable (subject to the Applicable Procedures), and the Company shall select the Notes to be repurchased on a pro rata basis, by lot or by such other method; provided that if the Notes are in global form, interest in such global notes will be selected for purchase by DTC in accordance with its standard procedures (with such adjustments as may be appropriate so that only Notes in minimum denominations of $2,000, or integral multiples of $1,000 in excess of $2,000, shall be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. Holders of Notes that are the subject of an offer to purchase will receive an Asset Sale Offer from the Company prior to any related purchase date and may elect to have such Notes purchased by completing the form titled “Option of Holder to Elect Purchase” attached to this Note. The Asset Sale Offer shall be made in accordance with Sections 3.09 and 4.10 of the Indenture.

 

 

8.            DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in minimum denominations of $2,000 and integral multiples of $1,000 in excess of $2,000. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Company need not exchange or register the transfer of any Note or portion of a Note selected for redemption or tendered (and not validly withdrawn) for purchase, except for the unredeemed or unpurchased portion of any Note being redeemed or purchased in part. Also, the Company need not exchange or register the transfer of any Notes for a period beginning at the opening of 15 days before the day of delivery of a notice of redemption of Notes and ending at the close of business on the day of such delivery.

 

9.            PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as its owner for all purposes.

 

10.            AMENDMENT, SUPPLEMENT AND WAIVER. The Indenture, the Note Guarantees and the Notes may be amended or supplemented as provided in the Indenture.

 

11.            DEFAULTS AND REMEDIES. The Events of Default relating to the Notes are defined in Section 6.01 of the Indenture.

 

12.            AUTHENTICATION. This Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose until authenticated by the manual signature of the Trustee.

 

13.            GOVERNING LAW. THE NOTES, THE INDENTURE AND THE NOTE GUARANTEES, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THE NOTES, THE INDENTURE OR THE NOTE GUARANTEES, WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

 

14.            CUSIP AND ISIN NUMBERS. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers and ISIN numbers to be printed on the Notes and the Trustee may use CUSIP numbers and ISIN numbers in notices of redemption, Change of Control Offers and Asset Sale Offers as a convenience to Holders. No representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any such notice and reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption or repurchase pursuant to a Change of Control Offer or Asset Sale Offer shall not be affected by any defect in or omission of such numbers.

 

15.            NOTE GUARANTEE. The Company’s obligations under the Notes are fully and unconditionally guaranteed, jointly and severally, by the Company and any Guarantors that execute a supplement to the Indenture, setting forth such Note Guarantee.

 

16.            ADDITIONAL INFORMATION. The Company shall furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to the Company at the following address:

 

Walker & Dunlop, Inc.

7272 Wisconsin Avenue, Suite 1300

Bethesda, Maryland 20814

Attention: Issa M. Bannourah

 

In the case of any conflict between this Note and the Indenture, the provisions of the Indenture shall govern and control.

 

 

ASSIGNMENT FORM

 

To assign this Note, fill in the form below:

 

(I) or (we) assign and transfer this Note to:
	(Insert assignee’ legal name)

 

(Insert assignee’s soc. sec. or tax I.D. no.)

 

(Print or type assignee’s name, address and zip code)

 

 

and irrevocably appoint

 

to transfer this Note on the books of the Company. The agent may substitute another to act for him.

 

Date:

 

	Your Signature:
		(Sign exactly as your name appears on the face of this Note)

 

Signature Guarantee*:

 

* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

 

OPTION OF HOLDER TO ELECT PURCHASE

 

If you want to elect to have this Note purchased by the Company pursuant to Section 4.10 or Section 4.14 of the Indenture, check the appropriate box below:

 

¨ Section 4.10         ¨ Section 4.14

 

If you want to elect to have only part of this Note purchased by the Company pursuant to Section 4.10 or Section 4.14 of the Indenture, state the amount you elect to have purchased:

 

$

 

Date:

 

	Your Signature:
		(Sign exactly as your name appears on the face of this Note)

 

Tax Identification No.:

 

Signature Guarantee*:

  

* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

 

SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*

 

The initial outstanding principal amount of this Global Note is $          . The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global or Definitive Note for an interest in this Global Note, have been made:

 

Date of Exchange	Amount of decrease in Principal Amount of this Global Note	Amount of increase in Principal Amount of this Global Note	Principal Amount of this Global Note following such decrease or increase	Signature of authorized signatory of Trustee or Note Custodian

 

*This schedule should be included only if the Note is issued in global form.

 

 

Exhibit B

 

FORM OF CERTIFICATE OF TRANSFER

 

Walker & Dunlop, Inc.

7272 Wisconsin Avenue, Suite 1300

Bethesda, Maryland 20814

Attention: Issa M. Bannourah

 

U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
ATTN: Melody Scott

Three James Center

1051 East Cary Street, Suite 600

Richmond, VA 23219

 

Re: 6.625% Senior Notes due 2033

 

Reference is hereby made to the Indenture, dated as of March 14, 2025 (the “Indenture”), among Walker & Dunlop, Inc., the Guarantors party thereto and the Trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.

 

(the “Transferor”) owns and proposes to transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in the principal amount of $        in such Note[s] or interests (the “Transfer”), to                (the “Transferee”), as further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby certifies that:

 

[CHECK ALL THAT APPLY]

 

1.            ¨ CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE 144A GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO RULE 144A. The Transfer is being effected pursuant to and in accordance with Rule 144A under the United States Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, the Transferor hereby further certifies that the beneficial interest or Definitive Note is being transferred to a Person that the Transferor reasonably believes is purchasing the beneficial interest or Definitive Note for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and such Transfer is in compliance with any applicable blue sky securities laws of any state of the United States.

 

2.            ¨ CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE REGULATION S GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO REGULATION S. The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a person in the United States and (x) at the time the buy order was originated, the Transferee was outside the United States or such Transferor and any Person acting on its behalf reasonably believed and believes that the Transferee was outside the United States or (y) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such Transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act and (iii) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act. Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on Transfer enumerated in the Indenture and the Securities Act.

 

 

3.            ¨ CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE DEFINITIVE NOTE PURSUANT TO ANY PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The Transfer is being effected in compliance with the transfer restrictions applicable to beneficial interests in Restricted Global Notes and Restricted Definitive Notes and pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws of any state of the United States, and accordingly the Transferor hereby further certifies that (check one):

 

(a)            ¨ such Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act;

 

or

 

(b)            ¨ such Transfer is being effected to the Company or a Subsidiary thereof;

 

or

 

(c)            ¨ such Transfer is being effected pursuant to an effective registration statement under the Securities Act and in compliance with the prospectus delivery requirements of the Securities Act.

 

4.            ¨ CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.

 

(a)          ¨ CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.

 

(b)          ¨ CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.

 

 

(c)          ¨ CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The Transfer is being effected pursuant to and in compliance with an exemption from the registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any State of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will not be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture.

 

This certificate and the statements contained herein are made for your benefit and the benefit of the Company.

 

	[Insert Name of Transferor]
	By:
		Name:
		Title:

 

Dated:

 

 

ANNEX A TO CERTIFICATE OF TRANSFER

 

1.

The Transferor owns and proposes to transfer the following:

 

[CHECK ONE OF (a) OR (b)]

 

(a)            ¨ a beneficial interest in the:

 

(i)

¨ 144A Global Note (CUSIP: [  ]), or

 

(ii)

¨ Regulation S Global Note (CUSIP: [  ]), or

 

(b)            ¨ a Restricted Definitive Note.

 

2.            After the Transfer the Transferee will hold:

 

[CHECK ONE]

 

(a)            ¨ a beneficial interest in the:

 

(i)

¨ 144A Global Note (CUSIP: [  ]), or

 

(ii)

¨ Regulation S Global Note (CUSIP: [  ]), or

 

(iii)

¨ Unrestricted Global Note (CUSIP: [      ]); or

 

(b)            ¨ a Restricted Definitive Note; or

 

(c)            ¨ an Unrestricted Definitive Note,

 

in accordance with the terms of the Indenture.

 

 

Exhibit C

 

FORM OF CERTIFICATE OF EXCHANGE

 

Walker & Dunlop, Inc.

7272 Wisconsin Avenue, Suite 1300

Bethesda, Maryland 20814

Attention: Issa M. Bannourah

 

U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
ATTN: Melody Scott

Three James Center

1051 East Cary Street, Suite 600

Richmond, VA 23219

 

Re: 6.625% Senior Notes due 2033

 

Reference is hereby made to the Indenture, dated as of March 14, 2025 (the “Indenture”), among Walker & Dunlop, Inc., the Guarantors party thereto and the Trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.

 

                         (the “Owner”) owns and proposes to exchange the Note[s] or interest in such Note[s] specified herein, in the principal amount of $        in such Note[s] or interests (the “Exchange”). In connection with the Exchange, the Owner hereby certifies that:

 

1)            EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE

 

a)            ¨ CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Global Notes and pursuant to and in accordance with the United States Securities Act of 1933, as amended (the “Securities Act”), (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

 

b)            ¨ CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

 

 

c)            ¨ CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the Owner’s Exchange of a Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

 

d)            ¨ CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner’s Exchange of a Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

 

2)            EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES

 

a)            ¨ CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s own account without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and in the Indenture and the Securities Act.

 

b)            ¨ CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the Exchange of the Owner’s Restricted Definitive Note for a beneficial interest in the [CHECK ONE] [  ] 144A Global Note [  ] Regulation S Global Note, with an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, and in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial interest issued will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities Act.

 

 

This certificate and the statements contained herein are made for your benefit and the benefit of the Company and are dated               .

 

	[Insert Name of Transferor]
	By:
		Name:
		Title:

 

Date:

 

 

Exhibit D

 

FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED BY SUBSEQUENT GUARANTORS

 

Supplemental Indenture (this “Supplemental Indenture”), dated as of           , by and between             (the “Guaranteeing Subsidiary”), a subsidiary of Walker & Dunlop, Inc. and U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as trustee (the “Trustee”).

 

W I T N E S S E T H

 

WHEREAS, Walker & Dunlop, Inc., a Maryland corporation (the “Company”), heretofore executed and delivered to the Trustee an indenture (the “Indenture”), dated as of March 14, 2025, providing for the issuance of 6.625% Senior Notes due 2033 (the “Notes”);

 

WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee all of the Company’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein and under the Indenture (the “Note Guarantee”); and

 

WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.

 

NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:

 

(1)            Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.

 

(2)            Agreement to Guarantee. The Guaranteeing Subsidiary acknowledges that it has received and reviewed a copy of the Indenture and all other documents it deems necessary to review in order to enter into this Supplemental Indenture, and acknowledges and agrees to (i) join and become a party to the Indenture as indicated by its signature below; (ii) be bound by the Indenture, as of the date hereof, as if made by, and with respect to, each signatory hereto; and (iii) perform all obligations and duties required of a Guarantor pursuant to the Indenture. The Guaranteeing Subsidiary hereby agrees to provide an unconditional Guarantee on the terms and subject to the conditions set forth in the Indenture, including, but not limited to, Article 10 and Section 4.15 thereof.

 

(3)            Execution and Delivery. The Guaranteeing Subsidiary agrees that the Note Guarantee shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.

 

(4)            No Recourse Against Others. No director, officer, employee, incorporator, member, partner or stockholder of the Guaranteeing Subsidiary shall have any liability for any obligations of the Company or the Guarantors (including the Guaranteeing Subsidiary), respectively, under the Notes, the Note Guarantees, the Indenture or this Supplemental Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation; provided that the foregoing shall not limit any Guarantor’s obligations under its Note Guarantees. Each Holder by accepting Notes waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.

 

 

(5)            Governing Law. THIS SUPPLEMENTAL INDENTURE, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS SUPPLEMENTAL INDENTURE, WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

 

(6)            Counterpart Originals. This Supplemental Indenture may be executed in two or more counterparts, which when so executed shall constitute one and the same agreement. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or other electronic format (including, without limitation, “pdf,” “tif” or “jpg”) transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. The words “execution,” “signed,” “signature,” and words of like import in this Supplemental Indenture or in any document to be signed in connection with this Supplemental Indenture shall be deemed to include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf,” “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign) and such signatures shall be deemed to be original signatures for all purposes. The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.

 

(7)            Effect of Headings. The Sections of this Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part of this Supplemental Indenture and shall in no way modify or restrict any of the terms or provisions hereof.

 

(8)            The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary.

 

(9)            Benefits Acknowledged. The Guaranteeing Subsidiary acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and this Supplemental Indenture and that the guarantee and waivers made by it pursuant to this Note Guarantee are knowingly made in contemplation of such benefits.

 

(10)            Successors. All agreements of the Guaranteeing Subsidiary in this Supplemental Indenture shall bind its successors, except as otherwise set forth in this Supplemental Indenture. All agreements of the Trustee in this Supplemental Indenture shall bind its successors.

 

[Signature Page Follows]

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first above written.

 

	[GUARANTEEING SUBSIDIARY]
	By:
		Name:
		Title:
	U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee
	By:
		Name:
		Title:

 

 

Exhibit E

 

FORM OF FREE TRANSFERABILITY CERTIFICATE

 

[Date]

 

Walker & Dunlop, Inc.

7272 Wisconsin Avenue, Suite 1300

Bethesda, Maryland 20814

Attention: Issa M. Bannourah

 

U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
ATTN: Melody Scott

Three James Center

1051 East Cary Street, Suite 600

Richmond, VA 23219

 

Re: 6.625% Senior Notes due 2033

 

Reference is hereby made to the Indenture, dated as of March 14, 2025 (the “Indenture”), among Walker & Dunlop, Inc., the Guarantors party thereto and the Trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.

 

Whereas the 6.625% Senior Notes due 2033 (the “Notes”) have become freely tradable without restrictions by non-affiliates of the Company pursuant to Rule 144(b)(1) under the Securities Act, in accordance with Section 2.06(g)(v) of the Indenture, pursuant to which the Notes were issued, the Company hereby instructs you that:

 

(i)            the Private Placement Legend described in Section 2.06(g)(i) of the Indenture and set forth on the Notes shall be deemed removed from the Notes, in accordance with the terms and conditions of the Notes and as provided in the Indenture, without further action on the part of Holders; and

 

(ii)            the restricted CUSIP number and restricted ISIN number for the Notes shall be deemed removed from the Notes and replaced with the unrestricted CUSIP number ([         ]) and unrestricted ISIN number ([         ]), respectively, set forth therein, in accordance with the terms and conditions of the Notes and as provided in the Indenture, without further action on the part of Holders.

 

[Signature Pages Follow]

 

 

	WALKER & DUNLOP, INC.
	By:
		Name:
		Title:

 

 

 

Exhibit 10.1

 

Execution Version

 

 

AMENDED AND RESTATED CREDIT AGREEMENT

 

dated as of March 14, 2025,

 

by and among

 

WALKER & DUNLOP, INC.,
as Borrower,

 

the Lenders referred to herein,
as Lenders,

 

and

 

JPMORGAN CHASE BANK, N.A.,
as Administrative Agent,

 

JPMORGAN CHASE BANK, N.A.,
as Sole Lead Arranger and Bookrunner for the Term Loan Facility

as Joint Lead Arranger for the Revolving Credit Facility,

 

and

 

BANK OF AMERICA, N.A.,

as Joint Lead Arranger for the Revolving Credit Facility

 

 

 

TABLE OF CONTENTS

 

Page

 

ARTICLE I
DEFINITIONS
SECTION 1.1	Definitions	2
SECTION 1.2	Other Definitions and Provisions	48
SECTION 1.3	Accounting Terms	48
SECTION 1.4	UCC Terms	49
SECTION 1.5	Rounding	49
SECTION 1.6	References to Agreement and Laws	49
SECTION 1.7	Times of Day; Rates	50
SECTION 1.8	Guarantees	50
SECTION 1.9	Covenant Compliance Generally	50
SECTION 1.10	Divisions	50
SECTION 1.11	Limited Condition Acquisitions	50
SECTION 1.12	Certain Determinations	51
SECTION 1.13	Interest Rates; Benchmark Notification	52
SECTION 1.14	Letter of Credit Amounts	52
SECTION 1.15	Classification of Loans and Borrowings	53
ARTICLE II
Revolving Credit Facility
SECTION 2.1	Revolving Credit Loans	53
SECTION 2.2	Swingline Loans	53
SECTION 2.3	Procedure for Advances of Revolving Credit Loans	55
SECTION 2.4	Repayment and Prepayment of Revolving Credit and Swingline Loans	55
SECTION 2.5	Permanent Reduction of the Revolving Credit Commitment	57
SECTION 2.6	Termination of Revolving Credit Facility	57
ARTICLE III
Letter of Credit Facility
SECTION 3.1	General	57
SECTION 3.2	Notice of Issuance, Amendment, Extension; Certain Conditions	58
SECTION 3.3	Expiration Date	58
SECTION 3.4	Participations	59
SECTION 3.5	Reimbursement	59
SECTION 3.6	Obligations Absolute	60
SECTION 3.7	Disbursement Procedures	60
SECTION 3.8	Interim Interest	60
SECTION 3.9	Replacement and Resignation of an Issuing Bank	60
SECTION 3.10	Cash Collateralization	61
SECTION 3.11	Letters of Credit Issued for Account of Subsidiaries	61

 

 

TABLE OF CONTENTS

(continued)

 

Page

 

ARTICLE IV
TERM LOAN FACILITY
SECTION 4.1	Initial Term Loans and Incremental Term Loans	62
SECTION 4.2	Procedure for Advance of Term Loans	62
SECTION 4.3	Repayment of Term Loans	63
SECTION 4.4	Prepayments of Term Loans	63
ARTICLE V
GENERAL LOAN PROVISIONS
SECTION 5.1	Interest	67
SECTION 5.2	Notice and Manner of Conversion or Continuation of Loans	68
SECTION 5.3	Fees	69
SECTION 5.4	Manner of Payment	70
SECTION 5.5	Evidence of Indebtedness	70
SECTION 5.6	Sharing of Payments by Lenders	71
SECTION 5.7	Funding by Lenders; Administrative Agent’s Clawback	71
SECTION 5.8	Alternate Rate of Interest	73
SECTION 5.9	Indemnity	75
SECTION 5.10	Increased Costs	75
SECTION 5.11	Taxes	76
SECTION 5.12	Mitigation Obligations; Replacement of Lenders	80
SECTION 5.13	Incremental Increases	81
SECTION 5.14	Defaulting Lenders	84
SECTION 5.15	Extension of Term Loan Maturity Date	86
SECTION 5.16	Extension of Revolving Credit Maturity Date	88
SECTION 5.17	Refinancing Amendments	89
ARTICLE VI
CONDITIONS OF CLOSING AND BORROWING
SECTION 6.1	Conditions to Closing and Initial Extensions of Credit	92
SECTION 6.2	Conditions to Each Extension of Credit	95
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIES
SECTION 7.1	Organization; Power; Qualification	96
SECTION 7.2	Ownership; Voting Agreements	96
SECTION 7.3	Authorization; Enforceability	96
SECTION 7.4	Compliance of Agreement, Loan Documents and Borrowing with Laws, Etc.	96
SECTION 7.5	Compliance with Law; Governmental Approvals	97
SECTION 7.6	Tax Returns and Payments	97
SECTION 7.7	Intellectual Property Matters	97

 

 

TABLE OF CONTENTS

(continued)

 

Page

 

SECTION 7.8	Environmental Matters	98
SECTION 7.9	Employee Benefit Matters	99
SECTION 7.10	Margin Stock	100
SECTION 7.11	Government Regulation	100
SECTION 7.12	Material Contracts	100
SECTION 7.13	Employee Relations	100
SECTION 7.14	Burdensome Provisions	100
SECTION 7.15	[Reserved]	101
SECTION 7.16	No Material Adverse Change	101
SECTION 7.17	Solvency	101
SECTION 7.18	Title to Properties	101
SECTION 7.19	Litigation	101
SECTION 7.20	Anti-Terrorism; Anti-Money Laundering; Anti-Corruption and Sanctions	101
SECTION 7.21	Absence of Defaults	101
SECTION 7.22	Disclosure	102
SECTION 7.23	Outbound Investment Rules	102
ARTICLE VIII
AFFIRMATIVE COVENANTS
SECTION 8.1	Financial Statements and Budgets	102
SECTION 8.2	Certificates; Other Reports	103
SECTION 8.3	Notice of Litigation and Other Matters	105
SECTION 8.4	Preservation of Corporate Existence and Related Matters	106
SECTION 8.5	Maintenance of Property and Licenses	106
SECTION 8.6	Insurance	106
SECTION 8.7	Accounting Methods and Financial Records	106
SECTION 8.8	Payment of Taxes and Other Obligations	106
SECTION 8.9	Compliance with Laws and Approvals	107
SECTION 8.10	Environmental Laws	107
SECTION 8.11	Compliance with ERISA	107
SECTION 8.12	Material Contracts	107
SECTION 8.13	Visits and Inspections; Appraisals	108
SECTION 8.14	Additional Subsidiaries	108
SECTION 8.15	Use of Proceeds	110
SECTION 8.16	Maintenance of Debt Ratings	110
SECTION 8.17	Compliance with Anti-Corruption Laws; Beneficial Ownership Regulation, Anti-Money Laundering Laws and Sanctions	110
SECTION 8.18	Further Assurances	111
SECTION 8.19	Post-Closing Items	111
ARTICLE IX
NEGATIVE COVENANTS
SECTION 9.1	Indebtedness	111
SECTION 9.2	Liens	114

 

 

TABLE OF CONTENTS

(continued)

 

Page

 

SECTION 9.3	Investments	116
SECTION 9.4	Fundamental Changes	118
SECTION 9.5	Asset Dispositions	119
SECTION 9.6	Restricted Payments	120
SECTION 9.7	Transactions with Affiliates	121
SECTION 9.8	Accounting Changes; Organizational Documents	121
SECTION 9.9	Payments and Modifications of Junior Indebtedness	121
SECTION 9.10	No Further Negative Pledges; Restrictive Agreements	122
SECTION 9.11	Nature of Business	123
SECTION 9.12	Amendments of Material Contracts	123
SECTION 9.13	[Reserved]	124
SECTION 9.14	Financial Covenant – Asset Coverage Ratio	124
SECTION 9.15	Voting Agreements	124
SECTION 9.16	Special Covenant Regarding Excluded Subsidiaries	124
SECTION 9.17	Outbound Investment Rules	124
ARTICLE X
SPECIAL PROVISIONS REGARDING AGENCY MATTERS
SECTION 10.1	Special Representations, Warranties and Covenants Concerning Eligibility as Seller/Issuer and Service of Mortgage Loans	125
SECTION 10.2	Special Representations, Warranties and Covenants Concerning Agency Agreements	125
SECTION 10.3	Special Representation, Warranty and Covenant with respect to Fannie Mae Program Reserve Requirements	125
SECTION 10.4	Special Provisions Regarding Agency Collateral	125
ARTICLE XI
DEFAULT AND REMEDIES
SECTION 11.1	Events of Default	127
SECTION 11.2	Remedies	129
SECTION 11.3	Rights and Remedies Cumulative; Non-Waiver; Etc.	130
SECTION 11.4	Crediting of Payments and Proceeds	130
SECTION 11.5	Administrative Agent May File Proofs of Claim	131
SECTION 11.6	Credit Bidding	132
SECTION 11.7	Fannie Mae Limitations	132
SECTION 11.8	Freddie Mac Limitations	132
SECTION 11.9	Ginnie Mae Limitations	132
ARTICLE XII
THE ADMINISTRATIVE AGENT
SECTION 12.1	Appointment and Authority	133
SECTION 12.2	Rights as a Lender and an Issuing Bank	133

 

 

TABLE OF CONTENTS

(continued)

 

Page

 

SECTION 12.3	Exculpatory Provisions	134
SECTION 12.4	Reliance by the Administrative Agent	135
SECTION 12.5	Delegation of Duties	135
SECTION 12.6	Resignation of Administrative Agent	135
SECTION 12.7	Non-Reliance on Administrative Agent and Other Lenders	136
SECTION 12.8	No Other Duties, Etc.	137
SECTION 12.9	Collateral and Guaranty Matters	137
SECTION 12.10	Secured Hedge Agreements and Secured Cash Management Agreements	138
SECTION 12.11	Acknowledgement of Lenders and Issuing Banks	138
SECTION 12.12	Borrower Communications	140
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1	Notices	141
SECTION 13.2	Amendments, Waivers and Consents	144
SECTION 13.3	Expenses; Indemnity; Limitation of Liability	148
SECTION 13.4	Right of Setoff	150
SECTION 13.5	Governing Law; Jurisdiction, Etc.	150
SECTION 13.6	Waiver of Jury Trial	151
SECTION 13.7	Reversal of Payments	151
SECTION 13.8	Injunctive Relief	151
SECTION 13.9	Successors and Assigns; Participations	151
SECTION 13.10	Treatment of Certain Information; Confidentiality	156
SECTION 13.11	Performance of Duties	157
SECTION 13.12	All Powers Coupled with Interest	157
SECTION 13.13	Survival	157
SECTION 13.14	Titles and Captions	157
SECTION 13.15	Severability of Provisions	157
SECTION 13.16	Counterparts; Integration; Effectiveness; Electronic Execution	158
SECTION 13.17	Term of Agreement	159
SECTION 13.18	USA PATRIOT Act; Anti-Money Laundering Laws	159
SECTION 13.19	Independent Effect of Covenants	159
SECTION 13.20	Inconsistencies with Other Documents	159
SECTION 13.21	No Advisory or Fiduciary Responsibility	160
SECTION 13.22	Amendment and Restatement; No Novation	160
SECTION 13.23	Acknowledgement and Consent to Bail-In of Affected Financial Institutions	161
SECTION 13.24	Certain ERISA Matters	161
SECTION 13.25	Acknowledgement Regarding Any Supported QFCs	162
SECTION 13.26	Limitation of Fannie Mae’s Agency Consent	163
SECTION 13.27	Pari Passu Intercreditor Agreement	163

 

 

EXHIBITS
		Form of:
Exhibit A-1	-	Revolving Credit Note
Exhibit A-2	-	Swingline Note
Exhibit A-3	-	Term Loan Note
Exhibit B	-	Notice of Prepayment
Exhibit C	-	Officer’s Compliance Certificate
Exhibit D	-	Assignment and Assumption
Exhibit E-1	-	U.S. Tax Compliance Certificate (Non-Partnership Foreign Lenders)
Exhibit E-2	-	U.S. Tax Compliance Certificate (Non-Partnership Foreign Participants)
Exhibit E-3	-	U.S. Tax Compliance Certificate (Foreign Participant Partnerships)
Exhibit E-4	-	U.S. Tax Compliance Certificate (Foreign Lender Partnerships)
Exhibit F	-	Auction Procedures
Exhibit G	-	Pari Passu Intercreditor Agreement
SCHEDULES
Schedule 1.1	-	Fannie Mae, Freddie Mac, Ginnie Mae and FHA/HUD Agreements
Schedule 1.2	-	Commitments and Commitment Percentages
Schedule 6.1	-	Investors
Schedule 7.1	-	Jurisdictions of Organization and Qualification
Schedule 7.2	-	Subsidiaries and Capitalization
Schedule 7.6	-	Tax Matters
Schedule 7.9	-	ERISA Plans
Schedule 7.12	-	Material Contracts
Schedule 7.13	-	Labor and Collective Bargaining Agreements
Schedule 7.18	-	Real Property
Schedule 8.19	-	Post-Closing Items
Schedule 9.1	-	Existing Indebtedness
Schedule 9.2	-	Existing Liens
Schedule 9.3	-	Existing Loans, Advances and Investments
Schedule 9.7	-	Transactions with Affiliates

 

 

This AMENDED AND RESTATED CREDIT AGREEMENT, dated as of March 14, 2025 (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

 

WHEREAS, the Borrower, the Lenders under and as defined in the Original Credit Agreement (as defined below) (the “Original Credit Agreement Lenders”) and JPMorgan, as administrative agent, entered into that certain 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, and as further amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date, the “Original Credit Agreement”);

 

WHEREAS, the Borrower has requested, and subject to the terms and conditions set forth in this Agreement, the Administrative Agent and the Initial Term Loan Lenders party hereto on the Closing Date have agreed to extend Initial Term Loans on the Closing Date to the Borrower in an aggregate principal amount equal to $450,000,000, in each case, as set forth herein;

 

WHEREAS, the Term Loan Lenders party hereto on the Closing Date have made and are willing to make the requested Initial Term Loans available on the terms and conditions set forth herein;

 

WHEREAS, the proceeds of the Initial Term Loans and a portion of the proceeds of the Senior Notes (as hereinafter defined) on the Closing Date, will be used, among other things, to finance (i) the Original Credit Agreement Refinancing (as hereinafter defined) and (ii) Transaction Costs (as herein defined);

 

WHEREAS, the Borrower has requested that the Original Credit Agreement be amended and restated and be replaced in its entirety with this Agreement without constituting a novation of any indebtedness or other obligations owing to the Original Credit Agreement Lenders or the Administrative Agent under the Original Credit Agreement based on facts or events occurring or existing prior to the execution and delivery of this Agreement;

 

WHEREAS, the Borrower has requested, and subject to the terms and conditions set forth in this Agreement, the Administrative Agent and the Revolving Credit Lenders have agreed to extend a revolving credit facility to the Borrower on or after the Closing Date in an aggregate principal amount of $50,000,000; and

 

WHEREAS, the Original Credit Agreement Lenders party hereto, constituting all of the Original Credit Agreement Lenders immediately prior to the Closing Date, have consented to the amendment and restatement of the Original Credit Agreement in the form hereof on the terms and subject to the conditions 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 Borrowing” means, as to any Borrowing, the ABR Loans comprising such Borrowing.

 

“ABR Loan” means a Loan bearing interest based upon the Alternate Base Rate.

 

“Administrative Agent” means JPMorgan Chase Bank, N.A., in its capacity as Administrative Agent hereunder, and any successor thereto appointed pursuant to Section 12.6.

 

“Administrative Agent’s Office” means the office of the Administrative Agent specified in or determined in accordance with the provisions of Section 13.1(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, (i) 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, Ginnie Mae and HUD (which in the case of Ginnie Mae and HUD is a limited acknowledgment and is expressly not a consent) and (ii) the certificate regarding amendment pursuant to that certain approval letter dated as of December 13, 2021, in form and substance satisfactory to the Arranger, of Freddie Mac, provided to the Administrative Agent pursuant to Section 6.1(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 Repurchase Indebtedness” means any Indebtedness representing obligations to repurchase Mortgage Loans from an Agency under the terms of the relevant Agency Agreements.

 

 

“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 13.1(e)(ii).

 

“Agreement” has the meaning assigned thereto in the preamble to this Agreement.

 

“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 1.00% and (c) the 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 U.S. Government Securities Business Day, the immediately preceding U.S. Government Securities Business Day) plus 1.00%; provided that for the purpose of this definition, the 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 Term SOFR Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Term SOFR Rate, respectively. If the Alternate Base Rate is being used as an alternate rate of interest pursuant to Section 5.8 (for the avoidance of doubt, only until the Benchmark Replacement has been determined pursuant to Section 5.8), 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 1.00%, such rate shall be deemed to be 1.00% for purposes of this Agreement.

 

“Ancillary Document” has the meaning assigned thereto in Section 13.16(b).

 

“Ancillary Fees” has the meaning assigned thereto in Section 13.2(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 7.20.

 

“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:

 

(a)           with respect to any Term Loan, (i) initially, (x) 1.00%, in the case of ABR Loans and (y) 2.00%, in the case of Term SOFR Rate Loans and (ii) from and after the date on which the Borrower delivers the financial statements for the first full fiscal quarter ending after the Closing Date, the applicable rate per annum set forth below under the caption “Term Benchmark Loans” and “ABR Loans” based upon the Consolidated Corporate Leverage Ratio as of the end of the most recently ended period of four consecutive fiscal quarters for which financial statements have been or were required to be delivered pursuant to Section 8.1(a) or (b):

 

Level	Consolidated Corporate Leverage Ratio	Term Benchmark Loans	ABR Loans
I	> 2.00 to 1.00	2.00%	1.00%
II	< 2.00 to 1.00	1.75%	0.75%

 

and

 

(b)           with respect to any Revolving Credit Loan, (x) 0.75%, in the case of ABR Loans, (y) 1.75%, in the case of Term SOFR Rate Loans and (z) 1.75%, in the case of RFR Loans.

 

For purposes of this definition, each change in the Applicable Margin resulting from a change in the Consolidated Corporate Leverage Ratio shall be effective during the period commencing on and including the date that is three (3) Business Days after the date of delivery to the Administrative Agent pursuant to Section 8.1(a) or 8.1(b) of the Consolidated financial statements indicating such change and ending on the date immediately preceding the effective date of the next such change; provided that the Consolidated Corporate Leverage Ratio shall be deemed to be in Level I at the option of the Administrative Agent or at the request of the Required Lenders if the Borrower fails to deliver the Consolidated financial statements required to be delivered by it pursuant to Section 8.1(a) or 8.1(b) or the certificate required to be delivered by it pursuant to Section 8.2 during the period from the expiration of the time for delivery thereof until such Consolidated financial statements and such certificate are delivered. The Applicable Margin shall be increased as, and to the extent, required by Section 5.13.

 

“Applicable Maturity Date” means (a) with respect to any Revolving Credit Loan or Swingline Loan, the Revolving Credit Maturity Date, (b) with respect to the Initial Term Loans, the Term Loan Maturity Date or (c) with respect to any Incremental Term Loan (if any), the date as determined pursuant to, and in accordance with, Section 5.13.

 

“Applicable Parties” has the meaning assigned thereto in Section 12.12(c).

 

“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 8.13(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 Borrower Portal” has the meaning assigned thereto in Section 12.12(a).

 

“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 Chase Bank, N.A., in its capacity as sole lead arranger and bookrunner.

 

 

“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 Secured 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 9.4 (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 13.9), and accepted by the Administrative Agent, in substantially the form attached as Exhibit D 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.

 

“Availability Period” means the period from and including the Closing Date to but excluding the earlier of (x) the Revolving Credit Maturity Date and (y) the date of termination of the Revolving Credit Commitments, the Letter of Credit Commitments and the Swingline Commitment, as applicable.

 

“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)           $285,000,000; plus

 

the greater of (x) $85,000,000 and (y) 25.0% of Consolidated Adjusted EBITDA for the most recently ended Test Period, plus

 

(b)           50% of cumulative amount of Consolidated Corporate Net Income for the period (taken as one accounting period) commencing on the first day of the fiscal quarter in which the Closing Date occurs and ending on the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements have been or were required to be delivered pursuant to Section 8.1(a) or (b); provided that in no event shall such amount be less than zero, 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 9.3(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 9.3(k) at the time it is redesignated as or merged into a Subsidiary pursuant to Section 8.14(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 9.3(k), (ii) Restricted Payments made pursuant to Section 9.6(d) and (iii) payments and prepayments of Junior Indebtedness made pursuant to Section 9.9(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, as applicable, 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 5.8.

 

“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 (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, 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 (i) RFR Loan, Daily Simple SOFR or (ii) 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 Daily Simple SOFR or the Term SOFR Rate, as applicable, 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 5.8.

 

 

“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 Dollar-denominated syndicated credit facilities 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 the 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 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 Dollar-denominated syndicated credit facilities at such time.

 

“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement and/or any Term Benchmark Loan, 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,” the definition of “Interest Payment Date,” 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 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 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 or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or component thereof), have 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 (3) and even if such Benchmark (or component thereof) or, if such Benchmark is a term rate, 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 such Benchmark (or such component thereof) or, if such Benchmark is a term rate, 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 such Benchmark (or such component thereof) or, if such Benchmark is a term rate, 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 such Benchmark (or such component thereof) or, if such Benchmark is a term rate, 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 such Benchmark (or such component thereof) or, if such Benchmark is a term rate, 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 5.8 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 5.8.

 

“Beneficial Ownership Certification” means a certification regarding beneficial ownership or control 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 or an Approved Borrower Portal.

 

“Borrower Communications” means, collectively, any Notice of Borrowing, Notice of Conversion/Continuation, Notice of Prepayment, notice requesting the issuance, amendment or extension of a Letter of Credit or other notice, demand, communication, information, document or other material provided by or on behalf of any Credit Party pursuant to any Loan Document or the transactions contemplated therein which is distributed by the Borrower to the Administrative Agent through an Approved Borrower Portal.

 

“Borrowing” means 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 or a Sunday) on which banks are open for business in New York City; provided that, in addition to the foregoing, a Business Day shall be any such day that is a U.S. Government Securities Business Day (a) in relation to RFR Loans and any interest rate settings, fundings, disbursements, settlements or payments of any such RFR Loan, or any other dealings of such RFR Loan and (b) in relation to Loans referencing the Term SOFR Rate and any interest rate settings, fundings, disbursements, settlements or payments of any such Loans referencing the Term SOFR Rate or any other dealings of such Loans referencing the Term SOFR Rate.

 

“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 Loan, whether such Loan is a Revolving Credit Loan, Swingline Loan or Term Loan, (b) any Commitment, whether such Commitment is a Revolving Credit Commitment or a Term Loan Commitment, and (c) any Lender, whether such Lender is a Revolving Credit Lender or a Term Loan Lender. Incremental Term Loans, Extended Term Loans, Refinancing Term Loans and Replacement Revolving Credit Facilities that have different terms and conditions shall be construed to be in different Classes.

 

“Closing Date” means March 14, 2025, 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 Account” has the meaning assigned thereto in Section 3.10(a).

 

“Collateral Agreement” means the Amended and Restated Guarantee 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.

 

“Commitment Fee” has the meaning assigned thereto in Section 5.3(b).

 

 

“Commitment Percentage” means, as to any Lender, such Lender’s Revolving Credit Commitment Percentage or Term Loan Percentage, as applicable.

 

“Commitments” means, collectively, as to all Lenders, the Revolving Credit Commitments and Term Loan Commitments of such Lenders.

 

“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 9.1(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 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 or Agency Repurchase 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, Permitted Funding Indebtedness or Agency Repurchase 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), (c) any gain or loss from any sale, lease, license, transfer or other disposition of Property during such period and (d) non-cash stock-based award compensation expenses.

 

“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 Corporate Indebtedness” means, as of any date of determination, (a) the aggregate principal amount of all Consolidated Corporate Indebtedness minus (b) Unrestricted Cash of the Credit Parties on such date, in each case determined on a consolidated basis in accordance with GAAP.

 

“Consolidated Net Corporate Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Net 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 Net Secured Indebtedness” means, as of any date of determination, (a) the aggregate principal amount of all Consolidated Secured Indebtedness minus (b) Unrestricted Cash of the Credit Parties on such date, in each case determined on a consolidated basis in accordance with GAAP.

 

“Consolidated Net Secured Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Net Secured Indebtedness on such date to (b) Consolidated Adjusted EBITDA for the most recent Test Period ending on or immediately prior to such date.

 

“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.

 

“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.

 

“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 13.25.

 

“Credit Facility” means, collectively, the Revolving Credit Facility, the Term Loan Facility, the Swingline Facility and the Letter of Credit Facility.

 

“Credit Parties” means, collectively, the Borrower and the Subsidiary Guarantors.

 

“Daily Simple SOFR” means, for any day (a “SOFR Rate Day”), a rate per annum equal to SOFR for the day (such day, a “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; provided that if Daily Simple SOFR as so determined shall ever be less than the Floor, then Daily Simple SOFR shall be deemed to be the Floor. 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. If by 5:00 p.m. (New York City time) on the second (2nd) U.S. Government Securities Business Day immediately following any SOFR Determination Date, SOFR in respect of such SOFR Determination Date has not been published on the SOFR Administrator’s Website and a Benchmark Replacement Date with respect to the Daily Simple SOFR has not occurred, then SOFR for such SOFR Determination Date will be SOFR as published in respect of the first preceding U.S. Government Securities Business Day for which such SOFR was published on the SOFR Administrator’s Website.

 

“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 11.1 which with the passage of time, the giving of notice or any other condition, would constitute an Event of Default.

 

“Default Rights” 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 5.14(b), any Lender that (a) has failed to (i) fund all or any portion of the Revolving Credit Loans or any Term Loan required to be funded by it hereunder within two (2) Business Days of the date such 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, any Issuing Bank, the Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of participations in Letters of Credit or Swingline Loans) within two (2) Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent, any Issuing Bank or the Swingline Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (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) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 5.14(b)) upon delivery of written notice of such determination to the Borrower, each Issuing Bank, the Swingline Lender 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 Loans and all other Obligations that are accrued and payable and the termination of the 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 Loans and all other Obligations that are accrued and payable and the termination of the 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 of clauses (a) through (d), prior to the date that is 91 days after the latest scheduled maturity date of the Loans and Commitments; 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 13.9(g).

 

“ECF Percentage” means, for any Excess Cash Flow Period or Fiscal Year, as the case may be, (a) 50%, if the Asset Coverage Ratio as of the last day of such Excess Cash Flow Period or Fiscal Year, as the case may be, is less than 1.50 to 1.00 and (b) 0%, if the Asset Coverage Ratio as of the last day of such Excess Cash Flow Period or Fiscal Year, as the case may be, is greater than or equal to 1.50 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 EEA Financial Institution.

 

“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 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 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 13.9(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required under Section 13.9(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 11.1; 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 4.3, 4.4(b)(ii) or 4.4(b)(iii) (to the extent the Asset Disposition or Insurance and 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 March 31, 2025.

 

“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 Term Loan Lender’s decision to assign Term Loans or a purchasing Term Loan 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, 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; and various entities controlled or majority owned directly/indirectly by Walker & Dunlop Investment Partners, Inc.), JCR Capital Investment Company, LLC (and various fund entities controlled or majority owned directly/indirectly by JCR Capital Investment Company, LLC), Enodo, Inc., W&D KBP, LLC, W&D ETE, LLC, WD-IC JV GP LLC, WD-IC JV Investor, LLC, WDIS WA, LLC, WDIB-Investor, LLC, WDIB, LLC, Zelman Partners, LLC, WDAAC, LLC (and various entities controlled or majority owned directly/ indirectly by WDAAC, LLC), W&D STCI, LLC, W&D RPS HoldCo, LLC, WD-GTE, LLC, GeoPhy B.V., GeoPhy Inc, WD-Geophy HoldCo, LLC, WD-GeoPhy CRE Valuation LLC, WD-KA JV Investor LLC, WDIS, Inc, WD-Alliant TCBI, LLC, 2388 North Main Street, LLC, Shelby Pref Investor, LLC, WD-IC JV GP II LLC, WD-IC JV Investor II, LLC, WD 2360 HoldCo, LLC, WD 46-110 HoldCo, LLC, WD CVFG HoldCo, LLC, WD-UK HoldCo, LLC, W&D UK Holdco Limited, W&D UK Pvt Ltd 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 8.14(d);

 

(b)           any Subsidiary designated in accordance with Section 8.14(d)(i) that has not been re-designated or reclassified in accordance with Section 8.14(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 Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the applicable Commitment (or, in the case of a Loan not funded pursuant to a prior Commitment, acquired such interest in such Loan), other than pursuant to an assignment request by the Borrower under Section 5.12(b)) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 5.11, 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 Loan or Commitment or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 5.11(g) and (d) any United States federal withholding Taxes imposed under FATCA.

 

“Existing Liens” has the meaning assigned thereto in Section 13.2(j).

 

“Existing Revolving Credit Maturity Date” has the meaning assigned thereto in Section 5.16(a).

 

“Existing Revolving Credit Loan Tranche” has the meaning assigned thereto in Section 5.16(a).

 

“Existing Term Loan Maturity Date” has the meaning assigned thereto in Section 5.15(a).

 

“Existing Term Loan Tranche” has the meaning assigned thereto in Section 5.15(a).

 

“Extended Revolving Credit Loan Maturity Date” has the meaning assigned thereto in Section 5.16(c).

 

“Extended Revolving Credit Loans” has the meaning assigned thereto in Section 5.16(a).

 

“Extended Term Loan Maturity Date” has the meaning assigned thereto in Section 5.15(c).

 

“Extended Term Loans” has the meaning assigned thereto in Section 5.15(a).

 

“Extension Amendment” has the meaning assigned thereto in Section 5.15(e).

 

“Extensions of Credit” means, as to any Lender at any time, (a) an amount equal to the sum of (i) the aggregate principal amount of all Revolving Credit Loans made by such Lender then outstanding, (ii) such Lender’s Revolving Credit Commitment Percentage of the LC Exposures then outstanding, (iii) such Lender’s Revolving Credit Commitment Percentage of the Swingline Loans then outstanding and (iv) the aggregate principal amount of the Term Loans made by such Lender then outstanding, or (b) the making of any Loan or participation in any Letter of Credit by such Lender, as the context requires.

 

 

“Extension Request” has the meaning assigned thereto in Section 5.15(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 the 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 Loan” 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 9.14.

 

“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 a rate of interest equal to 0.00%.

 

“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 IX, 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 5.13(a).

 

“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 Increases; provided that (i) the aggregate principal amount of all Incremental Equivalent Debt at the time of issuance or incurrence shall not exceed the Incremental Facilities 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, (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 8.1(a) or 8.1(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) solely as to term loans, 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).

 

 

“Incremental Facilities Limit” means, with respect to any proposed incurrence of any Incremental Increase or Incremental Equivalent Debt under Section 5.13, an amount equal to the sum of (a) the greater of (i) $325,000,000 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 Increases 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 Net 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 Increase 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 Increase or Incremental Equivalent Debt (assuming that such Incremental Increase or Incremental Equivalent Debt, including, without limitation, any Incremental Revolving Credit Facility Increase or any other 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 Increase or Incremental Equivalent Debt. Unless the Borrower otherwise notifies the Administrative Agent, if all or any portion of any Incremental Increase or Incremental Equivalent Debt would be permitted under clause (b) above on the applicable date of incurrence, such Incremental Increase 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.

 

“Incremental Increases” has the meaning assigned thereto in Section 5.13(a)(2).

 

“Incremental Lender” has the meaning assigned thereto in Section 5.13(a).

 

“Incremental Revolving Credit Facility Increase” has the meaning assigned thereto in Section 5.13(a)(2).

 

“Incremental Term Loan” has the meaning assigned thereto in Section 5.13(a).

 

“Incremental Term Loan Commitment” has the meaning assigned thereto in Section 5.13(a).

 

“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 13.3(b).

 

“Information” has the meaning assigned thereto in Section 13.10.

 

“Initial Term Loans” means the term loans made to the Borrower on the Closing Date.

 

“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 Payment Date” means (a) with respect to any ABR Loan (other than a Swingline Loan), the last day of each March, June, September and December and the Applicable Maturity Date, (b) with respect to any RFR Loan, (1) each date that is on the numerically corresponding day in each calendar month that is one month after the Borrowing of such Loan (or, if there is no such numerically corresponding day in such month, then the last day of such month) and (2) the Applicable Maturity Date, (c) with respect to any Term Benchmark Loan, the last day of each Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Term Benchmark Borrowing with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period, and the Applicable Maturity Date and (d) with respect to any Swingline Loan, the day that such Loan is required to be repaid and the Applicable Maturity Date.

 

“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 Loan or 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 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 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 5.8(e) shall be available for specification in such Notice of Borrowing or Notice of Conversion/Continuation. 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 9.3.

 

“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.

 

“Issuing Bank” means JPMorgan Chase Bank, N.A. and any other Revolving Credit Lender that agrees to act as an Issuing Bank (in each case, through itself or through one of its designated affiliates or branch offices), each in its capacity as the issuer of Letters of Credit hereunder, and its successors in such capacity as provided in Section 3.9. Any Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of such Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate. Each reference herein to the “Issuing Bank” in connection with a Letter of Credit or other matter shall be deemed to be a reference to the relevant Issuing Bank with respect 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 9.1(n) and any Indebtedness that is secured by a Lien on Collateral that is junior to the Liens securing the Term Loans.

 

“LC Disbursement” means a payment made by an Issuing Bank pursuant to a Letter of Credit.

 

“LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time, plus (b) the aggregate amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of any Revolving Credit Lender at any time shall be its Commitment Percentage of the LC Exposure at such time. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Article 29(a) of the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce Publication No. 600 (or such later version thereof as may be in effect at the applicable time) or Rule 3.13 or Rule 3.14 of the International Standby Practices, International Chamber of Commerce Publication No. 590 (or such later version thereof as may be in effect at the applicable time) or similar terms in the governing rules or laws or of the Letter of Credit itself, or if compliant documents have been presented but not yet honored, such Letter of Credit shall be deemed to be “outstanding” and “undrawn” in the amount so remaining available to be paid, and the obligations of the Borrower and each Revolving Credit Lender shall remain in full force and effect until the Issuing Banks and the Revolving Credit Lenders shall have no further obligations to make any payments or disbursements under any circumstances with respect to any Letter of Credit.

 

“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 5.13, other than any Person that ceases to be a party hereto as a Lender pursuant to an Assignment and Assumption. Unless the context otherwise requires, the term “Lenders” includes the Swingline Lender.

 

“Lender Joinder Agreement” means a joinder agreement in form and substance reasonably satisfactory to the Administrative Agent delivered in connection with Section 5.13.

 

“Lender-Related Party” has the meaning assigned thereto in Section 13.3(d).

 

“Lending Office” means, with respect to any Lender, the office of such Lender maintaining such Lender’s Extensions of Credit.

 

“Letters of Credit” means any letter of credit issued pursuant to this Agreement.

 

“Letter of Credit Agreement” has the meaning assigned thereto in Section 3.2(a).

 

“Letter of Credit Commitment” means, with respect to each Issuing Bank, the commitment of such Issuing Bank to issue Letters of Credit hereunder. The initial amount of each Issuing Bank’s Letter of Credit Commitment is set forth on Schedule 1.2(C), or if an Issuing Bank has entered into an Assignment and Assumption or has otherwise assumed a Letter of Credit Commitment after the Closing Date, the amount set forth for such Issuing Bank as its Letter of Credit Commitment in the Register maintained by the Administrative Agent. The Letter of Credit Commitment of an Issuing Bank may be modified from time to time by agreement between such Issuing Bank and the Borrower, and notified to the Administrative Agent.

 

“Letter of Credit Facility” means the letter of credit facility established pursuant to Article III.

 

 

“Liabilities” means any losses, claims (including intraparty claims), demands, damages or liabilities of any kind.

 

“License” has the meaning assigned thereto in Section 8.5(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, the Original Loan Documents, as modified hereby or pursuant to the documents delivered on the Closing Date, including this Agreement, the Pari Passu Intercreditor Agreement, if any, each Term Loan Note, each Revolving Credit Note, each Swingline Note, the Security Documents, each Refinancing Amendment, each Extension Amendment, each Lender Joinder Agreement, all letter of credit applications and any agreements between the Borrower and an Issuing Bank regarding the issuance by such Issuing Bank of Letters of Credit hereunder and/or the respective rights and obligations between the Borrower and such Issuing Bank in connection thereunder 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).

 

“Loans” means the collective reference to the Revolving Credit Loans, the Term Loans and the Swingline Loans, and “Loan” means any of such Loans.

 

“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.

 

“Minimum Collateral Amount” means, at any time, (a) with respect to cash collateral consisting of cash or deposit account balances provided to reduce or eliminate LC Exposure during the existence of a Defaulting Lender, an amount equal to 105% of the LC Exposure of each of the Issuing Banks with respect to Letters of Credit issued by it and outstanding at such time, (b) with respect to cash collateral consisting of cash or deposit account balances provided in accordance with the provisions of Section 11.2(b), an amount equal to 105% of the aggregate outstanding amount of all LC Exposures and (c) otherwise, an amount determined by the Administrative Agent and each of the applicable Issuing Banks that is entitled to cash collateral hereunder at such time in their sole discretion.

 

 

“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 13.2 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.

 

 

“Notes” means the collective reference to the Revolving Credit Notes, the Swingline Note and the Term Loan Notes.

 

“Notice of Borrowing” means a request by the Borrower for a Borrowing in accordance with Section 2.3(a) or 4.2(e), which shall be substantially in the form approved by the Administrative Agent and separately provided to the Borrower.

 

“Notice of Conversion/Continuation” means a request by the Borrower to convert or continue a Borrowing in accordance with Section 5.2, which shall be substantially in the form approved by the Administrative Agent and separately provided to the Borrower.

 

“Notice of Prepayment” has the meaning assigned thereto in Section 2.4(c).

 

“NYFRB” means the Federal Reserve Bank of New York.

 

“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 would be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

 

“NYFRB’s Website” means the website of the NYFRB at http://www.newyorkfed.org, or any successor source.

 

“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 Loans, (b) the LC Exposures and (c) 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, the Issuing Banks, the Administrative Agent or any other Secured Party (other than any Hedge Banks or Cash Management Banks in their capacities as such), in each case under any Loan Document, with respect to any Loan, Commitment or Letter of Credit 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, fees and other amounts 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, fees and other amounts 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 C.

 

 

“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.

 

“Original Credit Agreement” has the meaning assigned thereto in the preliminary statements hereto.

 

“Original Credit Agreement Lenders” has the meaning assigned thereto in the preliminary statements.

 

“Original Credit Agreement Refinancing” has the meaning assigned thereto in the definition of “Transactions.”

 

“Original Loan Documents” has the meaning assigned to the term “Loan Documents” in the Original Credit Agreement.

 

“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 Loan, Letter of Credit or Loan Document).

 

“Other Taxes” means all present or future stamp, court or 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 5.12).

 

“Outbound Investment Rules” means the regulations administered and enforced, together with any related public guidance issued, by the United States Treasury Department under U.S. Executive Order 14105 of August 9, 2023, or any similar law or regulation, as of the date of this Agreement, and as codified at 31 C.F.R. § 850.101, et seq.

 

“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 G (with such changes thereto as are reasonably acceptable to the Administrative Agent and the Borrower).

 

“Participant” has the meaning assigned thereto in Section 13.9(d).

 

“Participant Register” has the meaning assigned thereto in Section 13.9(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 12.11(c)(i).

 

“Payment Notice” has the meaning assigned thereto in Section 12.11(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 9.11;

 

(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 8.14, 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 9.3(a)(iii), shall not exceed the greater of (x) $162,500,000 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 8.14; 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 or Agency Repurchase Indebtedness, such assets of the borrower thereunder as are pledged to support such Permitted Funding Indebtedness or Agency Repurchase 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 or Agency Repurchase 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 or Agency Repurchase 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 Incremental Equivalent Debt in the form of a revolving credit facility in an aggregate principal amount not to exceed the greater of (x) $162,500,000 and (y) 50.0% of Consolidated Adjusted EBITDA as of the most recent Test Period ended on or immediately prior to the date of incurrence thereof at any time outstanding.

 

“Permitted Liens” means the Liens permitted pursuant to Section 9.2.

 

“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 ClearPar, 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 the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent). Each change in the Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective.

 

 

“Pro Forma Basis” means, for purposes of calculating the Consolidated Net Corporate Leverage Ratio, the Consolidated Net 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 Adjusted EBITDA (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 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 13.25.

 

“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 8.13(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 (i) if such Benchmark is the Term SOFR Rate, 5:00 a.m. (Chicago time) on the day that is two (2) U.S. Government Securities Business Days preceding the date of such setting, (ii) if such Benchmark is Daily Simple SOFR, then four (4) U.S. Government Securities Business Days preceding the date of such setting or (iii) if such Benchmark is neither the Term SOFR Rate nor Daily Simple SOFR, the time determined by the Administrative Agent in its reasonable discretion.

 

“Recipient” means (a) the Administrative Agent, (b) any Lender or (c) any Issuing Bank, as applicable.

 

“Refinance” has the meaning specified in Section 5.17(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 or Replacement Revolving Credit Facilities pursuant to Section 5.17, which shall be consistent with the applicable provisions of this Agreement (including Sections 5.17(a) and 5.17(d)) 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 5.17 (but not any other Lender not specified in Section 5.17), but shall not affect any amendments that would require the consent of each affected Lender or all Lenders pursuant to Section 13.2 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 Term Loan Effective Date” has the meaning specified in Section 5.17(b).

 

“Refinancing Term Lender” has the meaning specified in Section 5.17(c).

 

 

“Refinancing Term Loan Series” has the meaning specified in Section 5.17(c).

 

“Refinancing Term Loans” has the meaning specified in Section 5.17(a).

 

“Register” has the meaning assigned thereto in Section 13.9(c).

 

“Regulatory Authority” has the meaning assigned thereto in Section 13.10.

 

“Reimbursement Obligation” means the obligation of the Borrower to reimburse any Issuing Bank pursuant to Section 3.5 for amounts drawn under Letters of Credit issued by such Issuing Bank.

 

“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 8.2.

 

“Relevant Governmental Body” means the Federal Reserve Board and/or the NYFRB, or a committee officially endorsed or convened by the Federal Reserve Board and/or the NYFRB or, in each case, any successor thereto.

 

“Relevant Rate” means (i) with respect to any Term Benchmark Borrowing, the Term SOFR Rate or (ii) with respect to any RFR Borrowing, Daily Simple SOFR, as applicable.

 

“Removal Effective Date” has the meaning assigned thereto in Section 12.6(b).

 

“Replacement Revolving Credit Commitments” has the meaning assigned thereto in Section 5.17(d).

 

“Replacement Revolving Credit Facilities” has the meaning assigned thereto in Section 5.17(d).

 

“Replacement Revolving Credit Facility Effective Date” has the meaning assigned thereto in Section 5.17(d).

 

“Replacement Revolving Credit Lender” has the meaning assigned thereto in Section 5.17(e).

 

“Repricing Transaction” has the meaning assigned thereto in Section 4.4(c).

 

“Required Lenders” means, at any time, Lenders having Total Credit Exposure representing more than fifty percent (50%) of the Total Credit Exposure of all Lenders. The Total Credit Exposure of any Defaulting Lender shall be disregarded in determining Required Lenders at any time.

 

“Required Revolving Credit Lenders” means, at any time, Revolving Credit Lenders having unused Revolving Credit Commitments and Revolving Credit Exposure representing more than fifty percent (50%) of the aggregate unused Revolving Credit Commitments and Revolving Credit Exposure of all Revolving Credit Lenders. The unused Revolving Credit Commitment of, and Revolving Credit Exposure held or deemed held by, any Defaulting Lender shall be disregarded in determining Required Revolving Credit Lenders at any time.

 

“Required Term Loan Lenders” means, at any time, Lenders having outstanding Term Loans, representing more than fifty percent (50%) of the sum of the aggregate outstanding Term Loans at such time. The outstanding Term Loans of any Defaulting Lender shall be disregarded in determining Required Term Loan Lenders at any time.

 

 

“Resignation Effective Date” has the meaning assigned thereto in Section 12.6(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 9.6.

 

“Revolving Credit Commitment” means (a) as to any Revolving Credit Lender, the obligation of such Revolving Credit Lender to make Revolving Credit Loans to, and to purchase participations in LC Exposures and Swingline Loans for the account of, the Borrower hereunder in an aggregate principal amount at any time outstanding not to exceed the amount set forth opposite such Revolving Credit Lender’s name on the Register, as such amount may be modified at any time or from time to time pursuant to the terms hereof (including Section 5.13) and (b) as to all Revolving Credit Lenders, the aggregate commitment of all Revolving Credit Lenders to make Revolving Credit Loans, as such amount may be modified at any time or from time to time pursuant to the terms hereof (including Section 5.13). The aggregate Revolving Credit Commitment of all the Revolving Credit Lenders on the Closing Date shall be $50,000,000. The Revolving Credit Commitment of each Revolving Credit Lender on the Closing Date is set forth opposite the name of such Lender on Schedule 1.2(A).

 

“Revolving Credit Commitment Percentage” means, with respect to any Revolving Credit Lender at any time, the percentage of the total Revolving Credit Commitments of all the Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment. If the Revolving Credit Commitments have terminated or expired, the Revolving Credit Commitment Percentages shall be determined based upon the Revolving Credit Commitments most recently in effect, giving effect to any assignments. The Revolving Credit Commitment Percentage of each Revolving Credit Lender on the Closing Date is set forth opposite the name of such Lender on Schedule 1.2(A).

 

“Revolving Credit Exposure” means, with respect to any Revolving Credit Lender at any time, the sum of the outstanding principal amount of such Revolving Credit Lender’s Revolving Credit Loans, its LC Exposure and its Swingline Exposure at such time.

 

“Revolving Credit Extension Request” has the meaning assigned thereto in Section 5.16(a).

 

“Revolving Credit Facility” means the revolving credit facility established pursuant to Article II (including any increase in such revolving credit facility pursuant to Section 5.13).

 

“Revolving Credit Lenders” means, collectively, all of the Lenders with a Revolving Credit Commitment or if the Revolving Credit Commitment has been terminated, all Lenders having Revolving Credit Exposure.

 

 

“Revolving Credit Loan” means any revolving loan made to the Borrower pursuant to Section 2.1, and all such revolving loans collectively as the context requires.

 

“Revolving Credit Maturity Date” means the earliest to occur of (a) March 14, 2028, (b) the date of termination of the entire Revolving Credit Commitment by the Borrower pursuant to Section 2.5, and (c) the date of termination of the Revolving Credit Commitment pursuant to Section 11.2(a).

 

“Revolving Credit Note” means a promissory note made by the Borrower in favor of a Revolving Credit Lender evidencing the Revolving Credit Loans made by such Revolving Credit Lender, substantially in the form attached as Exhibit A-1, and any substitutes therefor, and any replacements, restatements, renewals or extension thereof, in whole or in part.

 

“Revolving Credit Outstandings” means the sum of (a) with respect to Revolving Credit Loans and Swingline Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Revolving Credit Loans and Swingline Loans, as the case may be, occurring on such date; plus (b) with respect to any LC Exposures on any date, the aggregate outstanding amount thereof on such date after giving effect to any Extensions of Credit occurring on such date and any other changes in the aggregate amount of the LC Exposures as of such date, including as a result of any reimbursements of outstanding unpaid drawings under any Letters of Credit or any reductions in the maximum amount available for drawing under Letters of Credit taking effect on such date.

 

“Revolving Borrowing” means Revolving Credit Loans of the same 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.

 

“Revolving Extension Amendment” has the meaning assigned thereto in Section 5.16(e).

 

“RFR Borrowing” means, as to any Borrowing, the RFR Loans comprising such Borrowing.

 

“RFR Loan” means a Loan that bears interest at a rate based on Daily Simple SOFR.

 

“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, so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region of Ukraine, Cuba, Iran, North Korea and Syria).

 

“Sanctioned Person” means, at any time, any Person subject or target of any Sanctions, including (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 U.S. Department of Commerce, the United Nations Security Council, the European Union, any European Union member state, His 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, any European Union member state, His 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 Issuing Banks, 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 12.5, 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 13.2(j).

 

“Senior Notes” means the $400,000,000 in aggregate principal amount of 6.625% senior unsecured notes due 2033 issued by the Borrower.

 

“Senior Notes Documents” means the Senior Notes Indenture and all other documents executed and delivered with respect to the Senior Notes or the Senior Notes Indenture, as the same may be amended, amended and restated, modified, supplemented, extended or renewed from time to time in accordance with the terms hereof and thereof.

 

“Senior Notes Indenture” means that certain Indenture as in effect on the Closing Date and as the same may be amended, amended and restated, modified, supplemented, extended or renewed from time to time in accordance with the terms hereof and thereof, among the Borrower, as issuer, the guarantors party thereto and U.S. Bank Trust Company, National Association, as trustee, pursuant to which the Senior Notes were issued.

 

“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 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 8.14.

 

“Supported QFC” has the meaning assigned thereto in Section 13.25.

 

“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.

 

“Swingline Borrowing” means a borrowing of a Swingline Loan.

 

“Swingline Commitment” means as to any Lender (i) the amount set forth opposite such Lender’s name on Schedule 1.2(B) attached hereto or (ii) if such Lender has entered into an Assignment and Assumption or has otherwise assumed a Swingline Commitment after the Closing Date, the amount set forth for such Lender as its Swingline Commitment in the Register maintained by the Administrative Agent pursuant to Section 13.9(c).

 

 

“Swingline Exposure” means, at any time, the aggregate principal amount of all Swingline Loans outstanding at such time. The Swingline Exposure of any Lender at any time shall be the sum of (a) its Commitment Percentage of the aggregate principal amount of all Swingline Loans outstanding at such time (excluding, in the case of any Lender that is the Swingline Lender, Swingline Loans made by it that are outstanding at such time to the extent that the other Lenders shall not have funded their participations in such Swingline Loans), adjusted to give effect to any reallocation under Section 5.14 of the Swingline Exposure of Defaulting Lenders in effect at such time, and (b) in the case of any Lender that is the Swingline Lender, the aggregate principal amount of all Swingline Loans made by such Lender outstanding at such time, less the amount of participations funded by the other Lenders in such Swingline Loans.

 

“Swingline Facility” means the swingline facility established pursuant to Section 2.2.

 

“Swingline Lender” means JPMorgan Chase Bank, N.A. (or in each case, any of its designated branch offices or affiliates), each in its capacity as a lender of Swingline Loans hereunder.

 

“Swingline Loan” means a Loan made pursuant to Section 2.2.

 

“Swingline Note” means a promissory note made by the Borrower in favor of the Swingline Lender evidencing the Swingline Loans made by the Swingline Lender, substantially in the form attached as Exhibit A-2, and any substitutes therefor, and any replacements, restatements, renewals or extensions thereof, in whole or in part.

 

“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 Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Term SOFR Rate.

 

“Term Loan Commitment” means (a) as to any Term Loan Lender, the obligation of such Term Loan Lender to make a portion of the Initial Term Loans and/or Incremental Term Loans, as applicable, to the account of the Borrower hereunder on the Closing Date (in the case of the Initial Term 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 Term Loan Lender’s name on Schedule 1.2(D), 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 Term Loan Lenders, the aggregate commitment of all Term Loan Lenders to make such Term Loans. The aggregate Term Loan Commitment with respect to the Initial Term Loans of all Term Loan Lenders on the Closing Date shall be $450,000,000. The Term Loan Commitment of each Term Loan Lender as of the Closing Date is set forth opposite the name of such Term Loan Lender on Schedule 1.2(D).

 

“Term Loan Facility” means the term loan facility established pursuant to Article IV (including any new term loan facility established pursuant to Section 5.13). 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 Lender” means any Lender with a Term Loan Commitment and/or outstanding Term Loans.

 

 

“Term Loan Maturity Date” means the first to occur of (a) March 14, 2032, and (b) the date of acceleration of the Term Loans pursuant to Section 11.2(a).

 

“Term Loan Note” means a promissory note made by the Borrower in favor of a Term Loan Lender evidencing the portion of the Term Loans made by such Term Loan Lender, substantially in the form attached as Exhibit A-3, and any substitutes therefor, and any replacements, restatements, renewals or extensions thereof, in whole or in part.

 

“Term Loan Percentage” means, with respect to any Term Loan Lender at any time, the percentage of the total outstanding principal balance of the Term Loans represented by the outstanding principal balance of such Term Loan Lender’s Term Loans. The Term Loan Percentage of each Term Loan Lender as of the Closing Date is set forth opposite the name of such Lender on Schedule 1.2(D).

 

“Term Loans” means the Initial Term 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 (2) 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; provided that if the Term SOFR Rate as so determined shall ever be less than the Floor, then the Term SOFR Rate shall be deemed to be the Floor.

 

“Term SOFR Rate Loan” means a 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 denominated in Dollars and for any tenor comparable to the applicable Interest Period, the rate per annum published by the CME Term SOFR Administrator and identified by the Administrative Agent as the forward-looking term rate based on SOFR. If by 5:00 pm (New York City time) on such 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, so long as such day is otherwise a U.S. Government Securities Business Day, 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 U.S. Government Securities Business Day is not more than five (5) U.S. Government Securities 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 within 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 8.1(a) or Section 8.1(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 $100,000,000.

 

“Total Credit Exposure” means, as to any Lender at any time, the unused Commitments, Revolving Credit Exposure and outstanding Term Loans of such Lender at such time.

 

“Transaction Costs” means all transaction fees, charges and other amounts related to the Transactions, 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 Credit Facility, such Permitted Acquisition or such Investment, as applicable.

 

“Transactions” means, collectively, (a) the refinancing all indebtedness of the Borrower and the Subsidiary Guarantors under the Original Credit Agreement without constituting a novation or otherwise terminating the liens or guarantees in connection therewith (the “Original Credit Agreement Refinancing”), (b) the incurrence of the Initial Term Loans on the Closing Date, (c) the issuance of the Senior Notes on the Closing Date and (d) the payment of fees and expenses incurred in connection therewith.

 

“Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the applicable Term Benchmark, the Alternate Base Rate or Daily Simple SOFR.

 

“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 (i) for purposes of Sections 7.23 and 9.17 hereof, any United States citizen, lawful permanent resident, entity organized under the laws of the United States or any jurisdiction within the United States, including any foreign branch of any such entity, or any Person in the United States and (ii) for all other purposes, 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 13.25.

 

“U.S. Tax Compliance Certificate” has the meaning assigned thereto in Section 5.11(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 8.1(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,” “Daily Simple SOFR” or “Alternate Base 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 9.1, 9.2, 9.3, 9.5 and 9.6, 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 8.1(a). Notwithstanding the foregoing, for purposes of determining compliance with Sections 9.1, 9.2 and 9.3, 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 11.1(a), 11.1(b), 11.1(i) or 11.1(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 9.14 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 IX 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 IX, the Borrower (i) shall in its sole discretion determine under which category such Lien (other than Liens with respect to the Credit Facility), Investment, Indebtedness (other than Indebtedness consisting of the Credit Facility), 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 Net Corporate Leverage Ratio or Consolidated Net 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 Facilities Limit” in connection with any Incremental Increase or Incremental Equivalent Debt or whether any incurrence of Indebtedness or Lien is permitted pursuant to Section 9.1 or 9.2, 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 Facilities Limit”, under Section 9.1 or under Section 9.2 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 Loan denominated in Dollars 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 5.8(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.

 

SECTION 1.14      Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit available to be drawn at such time; provided that with respect to any Letter of Credit that, by its terms, provides for one or more automatic increases in the available amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum amount is available to be drawn at such time.

 

 

SECTION 1.15      Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a “Revolving Credit Loan”) or by Type (e.g., a “Term Benchmark Loan” or an “RFR Loan”) or by Class and Type (e.g., a “Term Benchmark Revolving Credit Loan” or an “RFR Revolving Credit Loan”). Borrowings also may be classified and referred to by Class (e.g., a “Revolving Borrowing”) or by Type (e.g., a “Term Benchmark Borrowing” or an “RFR Borrowing”) or by Class and Type (e.g., a “Term Benchmark Revolving Borrowing” or an “RFR Revolving Borrowing”).

 

ARTICLE II

 

Revolving Credit Facility

 

SECTION 2.1      Revolving Credit Loans. Subject to the terms and conditions of this Agreement and the other Loan Documents, and in reliance upon the representations and warranties set forth in this Agreement and the other Loan Documents, each Revolving Credit Lender severally agrees to make Revolving Credit Loans in Dollars to the Borrower from time to time from the Closing Date to, but not including, the Revolving Credit Maturity Date as requested by the Borrower in accordance with the terms of Section 2.3; provided, that (a) the Revolving Credit Outstandings shall not exceed the Revolving Credit Commitment and (b) the Revolving Credit Exposure of any Revolving Credit Lender shall not at any time exceed such Revolving Credit Lender’s Revolving Credit Commitment. Each Revolving Credit Loan by a Revolving Credit Lender shall be in a principal amount equal to such Revolving Credit Lender’s Revolving Credit Commitment Percentage of the aggregate principal amount of Revolving Credit Loans requested on such occasion. Subject to the terms and conditions hereof, the Borrower may borrow, repay and reborrow Revolving Credit Loans hereunder until the Revolving Credit Maturity Date.

 

SECTION 2.2      Swingline Loans.

 

(a)            Subject to the terms and conditions set forth herein, from time to time during the Availability Period, the Swingline Lender agrees to make Swingline Loans to the Borrower in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $25,000,000, (ii) the aggregate principal amount of outstanding Swingline Loans made by the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or (iii) any Revolving Credit Lender’s Revolving Credit Exposure exceeding its Revolving Credit Commitment; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.

 

(b)            To request a Swingline Loan, the Borrower shall submit a written notice to the Administrative Agent by telecopy or electronic mail (or transmit by electronic communication including an Approved Borrower Portal, if arrangements for such transmission have been approved by the Administrative Agent) not later than 1:00 p.m., New York City time, on the day of a proposed Swingline Loan. Each such notice shall be in a form approved by the Administrative Agent, shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. Each Swingline Loan shall be in an amount that is an whole multiple of $100,000 and no less than $100,000. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make the requested Swingline Loan available to the Borrower by means of a credit to an account of the Borrower with the Administrative Agent designated for such purpose (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 3.5, by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. Each Swingline Loan shall be an ABR Loan. The Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of the Swingline Lender the then unpaid principal amount of each Swingline Loan on the earlier of the Revolving Credit Maturity Date and the fifth (5th) Business Day after such Swingline Loan is made; provided that on each date that a Revolving Borrowing is made, the Borrower shall repay all Swingline Loans then outstanding and the proceeds of any such Borrowing shall be applied by the Administrative Agent to repay any Swingline Loans outstanding.

 

 

(c)            The Swingline Lender may by written notice given to the Administrative Agent require the Lenders to acquire participations in all or a portion of its Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Commitment Percentage of such Swingline Loans. Each Lender hereby absolutely and unconditionally agrees, promptly upon receipt of such notice from the Administrative Agent (and in any event, if such notice is received by 1:00 p.m., New York City time, on a Business Day no later than 5:00 p.m. New York City time on such Business Day and if received after 1:00 p.m., New York City time, on a Business Day shall mean no later than 10:00 a.m. New York City time on the immediately succeeding Business Day), to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Commitment Percentage of such Swingline Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this Section 2.2 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or reduction or termination of the Revolving Credit Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this clause (c) by wire transfer of immediately available funds, in the same manner as provided in Section 5.7(a) with respect to Loans made by such Lender (and Section 5.7(a) shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this Section 2.2(d), and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this Section 2.2(d) and to the Swingline Lender, as its interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this Section 2.2 shall not relieve the Borrower of any default in the payment thereof.

 

(d)            The Swingline Lender may be replaced at any time by written agreement among the Borrower, the Administrative Agent, the replaced Swingline Lender and the successor Swingline Lender. The Administrative Agent shall notify the Lenders of any such replacement of the Swingline Lender. At the time any such replacement shall become effective, the Borrower shall pay all unpaid interest accrued for the account of the replaced Swingline Lender pursuant to Section 5.1(a)(ii). From and after the effective date of any such replacement, (x) the successor Swingline Lender shall have all the rights and obligations of the replaced Swingline Lender under this Agreement with respect to Swingline Loans made thereafter and (y) references herein to the term “Swingline Lender” shall be deemed to refer to such successor or to any previous Swingline Lender, as the context shall require. After the replacement of the Swingline Lender hereunder, the replaced Swingline Lender shall remain a party hereto and shall continue to have all the rights and obligations of the Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to its replacement, but shall not be required to make additional Swingline Loans.

 

 

(e)            Subject to the appointment and acceptance of a successor Swingline Lender, the Swingline Lender may resign as the Swingline Lender at any time upon thirty days’ prior written notice to the Administrative Agent, the Borrower and the Lenders, in which the Swingline Lender shall be replaced in accordance with Section 2.2(d) above.

 

SECTION 2.3      Procedure for Advances of Revolving Credit Loans.

 

(a)            Notices of Borrowing. The Borrower shall give the Administrative Agent a Notice of Borrowing not later than 11:00 a.m. (i) on the same Business Day as each ABR Loan, (ii) at least five (5) U.S. Government Securities Business Days before each Daily Simple SOFR Loan and (iii) at least three (3) U.S. Government Securities Business Days before each Term SOFR Rate Loan, of its intention to borrow, specifying (A) the date of such borrowing, which shall be a Business Day, (B) the amount of such borrowing, which shall be, (x) with respect to ABR Loans (other than Swingline Loans) in an aggregate principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof and (y) with respect to SOFR Loans in an aggregate principal amount of $2,000,000 or a whole multiple of $1,000,000 in excess thereof (or, in each case, the remaining amount of the Revolving Credit Commitment), (C) whether such Revolving Credit Loan is to be a Daily Simple SOFR Loan, a Term SOFR Rate Loan or an ABR Loan, and (D) in the case of a Term SOFR Rate Loan, the duration of the Interest Period applicable thereto. If the Borrower fails to specify a type of Loan in a Notice of Borrowing, then the applicable Loans shall be made as ABR Loans. If the Borrower requests a borrowing of a Term SOFR Rate Loan in any such Notice of Borrowing, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. A Notice of Borrowing received after 11:00 a.m. shall be deemed received on the next Business Day or U.S. Government Securities Business Day, as applicable. The Administrative Agent shall promptly notify the Revolving Credit Lenders of each Notice of Borrowing.

 

(b)            Disbursement of Revolving Credit Loans. Not later than 1:00 p.m. on the proposed borrowing date, each Revolving Credit Lender will make available to the Administrative Agent, for the account of the Borrower, at the Administrative Agent’s Office in funds immediately available to the Administrative Agent, such Revolving Credit Lender’s Revolving Credit Commitment Percentage of the Revolving Credit Loans to be made on such borrowing date. The Borrower hereby irrevocably authorizes the Administrative Agent to disburse the proceeds of each borrowing requested pursuant to this Section 2.3 in immediately available funds by crediting or wiring such proceeds to the deposit account of the Borrower identified in the most recent notice delivered by the Borrower to the Administrative Agent or as may be otherwise agreed upon by the Borrower and the Administrative Agent from time to time. Subject to Section 5.7 hereof, the Administrative Agent shall not be obligated to disburse the portion of the proceeds of any Revolving Credit Loan requested pursuant to this Section 2.3 to the extent that any Revolving Credit Lender has not made available to the Administrative Agent its Revolving Credit Commitment Percentage of such Loan. Revolving Credit Loans to be made for the purpose of refunding Swingline Loans shall be made by the Revolving Credit Lenders as provided in Section 2.2(c).

 

SECTION 2.4      Repayment and Prepayment of Revolving Credit and Swingline Loans.

 

(a)            Repayment on Termination Date. The Borrower hereby agrees to repay the outstanding principal amount of (i) all Revolving Credit Loans in full on the Revolving Credit Maturity Date, and (ii) all Swingline Loans in accordance with Section 2.2(b) (but, in any event, no later than the Revolving Credit Maturity Date), together, in each case, with all accrued but unpaid interest thereon.

 

 

(b)            Mandatory Prepayments.

 

(i)            If at any time the Revolving Credit Outstandings exceed the Revolving Credit Commitment, the Borrower agrees to repay immediately upon notice from the Administrative Agent, by payment to the Administrative Agent for the account of the Revolving Credit Lenders, Extensions of Credit in an amount equal to such excess.

 

(ii)            If, as of the last day of any fiscal quarter (commencing with the fiscal quarter ending June 30, 2025), the ratio of Consolidated Adjusted EBITDA to Consolidated Corporate Interest Expense for the most recently ended Test Period is less than 2.00 to 1.00, the Borrower shall, within ten (10) Business Days after the delivery of the financial statements and related Officer’s Compliance Certificate for such fiscal quarter are required to be delivered pursuant to Section 8.1(b) and Section 8.2(a), make a mandatory principal prepayment of the Revolving Credit Loans in the manner set forth in clause (iii) below in an amount sufficient to cause such ratio, on a Pro Forma Basis calculated after giving effect to such prepayment as of the first day of the relevant Test Period, to be equal to or greater than 2.00 to 1.00. Notwithstanding the foregoing, no such prepayment nor the triggering of a prepayment under this clause (ii) shall reduce the Revolving Credit Commitment.

 

(iii)            Each repayment made pursuant to this Section 2.4(b) shall be applied first, to the principal amount of outstanding Swingline Loans, second to the principal amount of outstanding Revolving Credit Loans and third, with respect to any Letters of Credit then outstanding, as a payment of cash collateral into a Collateral Account opened by the Administrative Agent, for the benefit of the Revolving Credit Lenders, in an amount equal to such excess (such cash collateral to be applied in accordance with Section 11.2(b)).

 

(c)            Optional Prepayments. The Borrower may at any time and from time to time prepay Revolving Credit Loans and Swingline Loans, in whole or in part, without premium or penalty, with irrevocable prior written notice to the Administrative Agent substantially in the form attached as Exhibit B (a “Notice of Prepayment”) given not later than 11:00 a.m. (i) on the same Business Day as prepayment of each ABR Loan and each Swingline Loan, (ii) at least five (5) U.S. Government Securities Business Days before prepayment of each Daily Simple SOFR Loan and (iii) at least three (3) U.S. Government Securities Business Days before prepayment of each Term SOFR Rate Loan, specifying the date and amount of prepayment and whether the prepayment is of Daily Simple SOFR Loans, Term SOFR Rate Loans, ABR Loans or a combination thereof, and, if of a combination thereof, the amount allocable to each. Upon receipt of such notice, the Administrative Agent shall promptly notify each Revolving Credit Lender. If any such notice is given, the amount specified in such notice shall be due and payable on the date set forth in such notice. Partial prepayments shall be in an aggregate amount of $1,000,000 or a whole multiple of $500,000 in excess thereof with respect to ABR Loans (other than Swingline Loans), $2,000,000 or a whole multiple of $1,000,000 in excess thereof with respect to SOFR Loans and $100,000 or a whole multiple of $100,000 in excess thereof with respect to Swingline Loans. A Notice of Prepayment received after 11:00 a.m. shall be deemed received on the next Business Day or U.S. Government Securities Business Day, as applicable. Each such repayment shall be accompanied by any amount required to be paid pursuant to Section 5.9 hereof.

 

(d)            Limitation on Prepayment of SOFR Loans. The Borrower may not prepay any Term SOFR Rate Loan on any day other than on the last day of the Interest Period applicable thereto, unless such prepayment is accompanied by any amount required to be paid pursuant to Section 5.9 hereof.

 

(e)            Hedge Agreements. No repayment or prepayment of the Loans pursuant to this Section 2.4 shall affect any of the Borrower’s obligations under any Hedge Agreement entered into with respect to the Loans.

 

 

SECTION 2.5      Permanent Reduction of the Revolving Credit Commitment.

 

(a)            Voluntary Reduction. The Borrower shall have the right at any time and from time to time, upon at least five (5) Business Days prior irrevocable written notice to the Administrative Agent, to permanently reduce, without premium or penalty, (i) the entire Revolving Credit Commitment at any time or (ii) portions of the Revolving Credit Commitment, from time to time, in an aggregate principal amount not less than $1,000,000 or any whole multiple of $1,000,000 in excess thereof. Any reduction of the Revolving Credit Commitment shall be applied to the Revolving Credit Commitment of each Revolving Credit Lender according to its Revolving Credit Commitment Percentage. All Commitment Fees accrued until the effective date of any termination of the Revolving Credit Commitment shall be paid on the effective date of such termination).

 

(b)            Corresponding Payment. Each permanent reduction permitted pursuant to this Section 2.5 shall be accompanied by a payment of principal sufficient to reduce the aggregate outstanding Revolving Credit Loans, Swingline Loans and LC Exposures, as applicable, after such reduction to the Revolving Credit Commitment as so reduced, and if the aggregate amount of all outstanding Letters of Credit exceeds the Revolving Credit Commitment as so reduced, the Borrower shall be required to deposit cash collateral in a Collateral Account opened by the Administrative Agent in an amount equal to such excess. Such cash collateral shall be applied in accordance with Section 11.2(b). Any reduction of the Revolving Credit Commitment to zero shall be accompanied by payment of all outstanding Revolving Credit Loans and Swingline Loans (and furnishing of cash collateral satisfactory to the Administrative Agent for all LC Exposures or other arrangements satisfactory to the respective Issuing Banks) and shall result in the termination of the Revolving Credit Commitment and the Swingline Commitment and the Revolving Credit Facility. If the reduction of the Revolving Credit Commitment requires the repayment of any SOFR Loan, such repayment shall be accompanied by any amount required to be paid pursuant to Section 5.9 hereof.

 

SECTION 2.6      Termination of Revolving Credit Facility. The Revolving Credit Facility and the Revolving Credit Commitments shall terminate on the Revolving Credit Maturity Date.

 

ARTICLE III

 

Letter of Credit Facility

 

SECTION 3.1      General. Subject to the terms and conditions set forth herein, the Borrower may request any Issuing Bank to issue Letters of Credit as the applicant thereof for the support of its or its Subsidiaries’ obligations, in a form reasonably acceptable to such Issuing Bank, at any time and from time to time during the Availability Period; provided no Issuing Bank shall be under any obligation to issue a Letter of Credit that would result in more than a total of 20 Letters of Credit outstanding.

 

 

SECTION 3.2      Notice of Issuance, Amendment, Extension; Certain Conditions.

 

(a)            To request the issuance of a Letter of Credit (or the amendment or extension of an outstanding Letter of Credit), the Borrower shall hand deliver or telecopy (or transmit by electronic communication, including an Approved Borrower Portal, if arrangements for doing so have been approved by the respective Issuing Bank) to an Issuing Bank selected by it and to the Administrative Agent (reasonably in advance of the requested date of issuance, amendment or extension, but in any event no less than three (3) Business Days) a written notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended or extended, and specifying the date of issuance, amendment or extension (which shall be a Business Day), the date on which such Letter of Credit is to expire (which shall comply with Section 3.3), the amount of such Letter of Credit, the name and address of the beneficiary thereof and such other information as shall be necessary to prepare, amend or extend such Letter of Credit. In addition, as a condition to any such Letter of Credit issuance, the Borrower shall have entered into a continuing agreement (or other letter of credit agreement) for the issuance of letters of credit and/or shall submit a letter of credit application, in each case, as required by the respective Issuing Bank and using such Issuing Bank’s standard form (each, a “Letter of Credit Agreement”). In the event of any conflict between the terms and conditions of this Agreement and the terms and conditions of any Letter of Credit Agreement, the terms and conditions of this Agreement shall control. A Letter of Credit shall be issued, amended or extended only if (and upon issuance, amendment or extension of each Letter of Credit the Borrower shall be deemed to represent and warrant that), after giving effect to such issuance, amendment or extension (i) (x) the aggregate undrawn amount of all outstanding Letters of Credit issued by any Issuing Bank at such time plus (y) the aggregate amount of all LC Disbursements made by such Issuing Bank that have not yet been reimbursed by or on behalf of the Borrower at such time shall not exceed its Letter of Credit Commitment, (ii) the LC Exposure shall not exceed the total Letter of Credit Commitments and (iii) no Lender’s Revolving Credit Exposure shall exceed its Revolving Credit Commitment. The Borrower may, at any time and from time to time, reduce the Letter of Credit Commitment of any Issuing Bank with the consent of such Issuing Bank; provided that the Borrower shall not reduce the Letter of Credit Commitment of any Issuing Bank if, after giving effect of such reduction, the conditions set forth in clauses (i) through (iii) above shall not be satisfied.

 

(b)            An Issuing Bank shall not be under any obligation to issue, amend or extend any Letter of Credit if:

 

(i)            any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such Issuing Bank from issuing, amending or extending such Letter of Credit, or request that such Issuing Bank refrain from issuing, amending or extending such Letter of Credit, or any law applicable to such Issuing Bank shall prohibit, the issuance, amendment or extension of letters of credit generally or such Letter of Credit in particular, or any such order, judgment or decree, or law shall impose upon such Issuing Bank with respect to such Letter of Credit any restriction, reserve or capital or liquidity requirement (for which such Issuing Bank is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such Issuing Bank any unreimbursed loss, cost or expense that was not applicable on the Closing Date and that such Issuing Bank in good faith deems material to it; or

 

(ii)            the issuance, amendment or extension of such Letter of Credit would violate one or more policies of such Issuing Bank applicable to letters of credit generally.

 

SECTION 3.3      Expiration Date. Each Letter of Credit shall expire (or be subject to termination by notice from the applicable Issuing Bank to the beneficiary thereof) at or prior to the close of business on the earlier of (i) the date one year after the date of the issuance of such Letter of Credit (or, in the case of any extension of the expiration date thereof, one year after such extension) and (ii) the date that is five (5) Business Days prior to the Revolving Credit Maturity Date.

 

 

SECTION 3.4      Participations. By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount or extending the term thereof) and without any further action on the part of the applicable Issuing Bank or the Lenders, such Issuing Bank hereby grants to each Lender, and each Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to such Lender’s Commitment Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the respective Issuing Bank, such Lender’s Commitment Percentage of each LC Disbursement made by such Issuing Bank and not reimbursed by the Borrower on the date due as provided in Section 3.5, or of any reimbursement payment required to be refunded to the Borrower for any reason, including after the Revolving Credit Maturity Date. Each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender acknowledges and agrees that its obligations to acquire participations pursuant to this Section 3.4 in respect of Letters of Credit and to make payments in respect of such acquired participations are absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment or extension of any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the Commitments.

 

SECTION 3.5      Reimbursement. If an Issuing Bank shall make any LC Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the Administrative Agent an amount equal to such LC Disbursement not later than 12:00 noon, New York City time, on the date that such LC Disbursement is made, if the Borrower shall have received notice of such LC Disbursement prior to 10:00 a.m., New York City time, on such date, or, if such notice has not been received by the Borrower prior to such time on such date, then not later than 12:00 noon, New York City time, on the Business Day immediately following the day that the Borrower receives such notice, if such notice is not received prior to such time on the day of receipt; provided that the Borrower may, subject to the conditions to borrowing set forth herein, request in accordance with Section 2.3(a) or 2.2 that such payment be financed with an ABR Revolving Borrowing or a Swingline Loan in an equivalent amount, to the extent so financed, the Borrower’s obligation to make such payment shall be discharged and replaced by the resulting ABR Revolving Borrowing or Swingline Loan, as applicable. If the Borrower fails to make such payment when due, the Administrative Agent shall notify each Lender of the applicable LC Disbursement, the payment then due from the Borrower in respect thereof and such Lender’s Commitment Percentage thereof. Promptly following receipt of such notice, each Lender shall pay to the Administrative Agent its Commitment Percentage of the payment then due from the Borrower, in the same manner as provided in Section 5.7(a) with respect to Loans made by such Lender (and Section 5.7(a) shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the respective Issuing Bank the amounts so received by it from the Lenders. Promptly following receipt by the Administrative Agent of any payment from the Borrower pursuant to this Section 3.5, the Administrative Agent shall distribute such payment to the respective Issuing Bank or, to the extent that Lenders have made payments pursuant to this Section 3.5 to reimburse such Issuing Bank, then to such Lenders and such Issuing Bank as their interests may appear. Any payment made by a Lender pursuant to this Section 3.5 to reimburse an Issuing Bank for any LC Disbursement (other than the funding of ABR Revolving Credit Loans or a Swingline Loan as contemplated above) shall not constitute a Loan and shall not relieve the Borrower of its obligation to reimburse such LC Disbursement.

 

 

SECTION 3.6      Obligations Absolute. The Borrower’s obligation to reimburse LC Disbursements as provided in Section 3.5 shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit, any Letter of Credit Agreement or this Agreement, or any term or provision therein, (ii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the respective Issuing Bank under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 3.6, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor any Issuing Bank, nor any of their respective Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, document, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms, any error in translation or any consequence arising from causes beyond the control of the respective Issuing Bank; provided that the foregoing shall not be construed to excuse an Issuing Bank from liability to the Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by such Issuing Bank’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on the part of an Issuing Bank (as finally determined by a court of competent jurisdiction), such Issuing Bank shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, an Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.

 

SECTION 3.7      Disbursement Procedures. The Issuing Bank for any Letter of Credit shall, within the time allowed by applicable law or the specific terms of the Letter of Credit following its receipt thereof, examine all documents purporting to represent a demand for payment under such Letter of Credit. Such Issuing Bank shall promptly after such examination notify the Administrative Agent and the Borrower by telephone (confirmed by telecopy or electronic mail) of such demand for payment if such Issuing Bank has made or will make an LC Disbursement thereunder; provided that such notice need not be given prior to payment by the Issuing Bank and any failure to give or delay in giving such notice shall not relieve the Borrower of its obligation to reimburse such Issuing Bank and the Lenders with respect to any such LC Disbursement.

 

SECTION 3.8      Interim Interest. If the Issuing Bank for any Letter of Credit shall make any LC Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such LC Disbursement is made to but excluding the date that the reimbursement is due and payable at the rate per annum then applicable to ABR Revolving Credit Loans and such interest shall be due and payable on the date when such reimbursement is payable; provided that, if the Borrower fails to reimburse such LC Disbursement when due pursuant to Section 3.5, then Section 5.1(b) shall apply. Interest accrued pursuant to this Section 3.8 shall be for the account of such Issuing Bank, except that interest accrued on and after the date of payment by any Lender pursuant to Section 3.5 to reimburse such Issuing Bank for such LC Disbursement shall be for the account of such Lender to the extent of such payment.

 

SECTION 3.9      Replacement and Resignation of an Issuing Bank.

 

(a)            An Issuing Bank may be replaced at any time by written agreement among the Borrower, the Administrative Agent, the replaced Issuing Bank and the successor Issuing Bank. The Administrative Agent shall notify the Lenders of any such replacement of an Issuing Bank. At the time any such replacement shall become effective, the Borrower shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section 5.3(c). From and after the effective date of any such replacement, (x) the successor Issuing Bank shall have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit to be issued by it thereafter and (y) references herein to the term “Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, or to such successor and all previous Issuing Banks, as the context shall require. After the replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such replacement, but shall not be required to issue additional Letters of Credit or extend or otherwise amend any existing Letter of Credit.

 

 

(b)            Subject to the appointment and acceptance of a successor Issuing Bank, any Issuing Bank may resign as an Issuing Bank at any time upon thirty days’ prior written notice to the Administrative Agent, the Borrower and the Lenders, in which case, such resigning Issuing Bank shall be replaced in accordance with Section 3.9(a) above.

 

SECTION 3.10      Cash Collateralization.

 

(a)            If any Event of Default shall occur and be continuing, on the Business Day that the Borrower receives notice from the Administrative Agent or the Required Lenders (or, if the maturity of the Loans has been accelerated, Lenders with LC Exposure representing greater than 50% of the total LC Exposure) demanding the deposit of cash collateral pursuant to this Section 3.10, the Borrower shall deposit in an account or accounts with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Lenders (the “Collateral Account”), an amount in cash equal to 105% of the LC Exposure as of such date plus any accrued and unpaid interest thereon; provided that the obligation to deposit such cash collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default with respect to the Borrower described in Section 11.1(i) or (j). Such deposit shall be held by the Administrative Agent as collateral for the payment and performance of the obligations of the Borrower under this Agreement. In addition, and without limiting the foregoing or Section 3.3, if any LC Exposure remain outstanding after the expiration date specified in Section 3.3, the Borrower shall immediately deposit into the Collateral Account an amount in cash equal to 105% of such LC Exposure as of such date plus any accrued and unpaid interest thereon.

 

(b)            The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. Other than any interest earned on the investment of such deposits, which investments shall be made at the option and sole discretion of the Administrative Agent and at the Borrower’s risk and expense, such deposits shall not bear interest. Interest or profits, if any, on such investments shall accumulate in such account. Moneys in such account shall be applied by the Administrative Agent to reimburse each Issuing Bank for LC Disbursements for which it has not been reimbursed, together with related fees, costs and customary processing charges, and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Borrower for the LC Exposure at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of Lenders with LC Exposure representing greater than 50% of the total LC Exposure), be applied to satisfy other Obligations. If the Borrower is required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower within three (3) Business Days after all Events of Default have been cured or waived.

 

SECTION 3.11      Letters of Credit Issued for Account of Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder supports any obligations of, or is for the account of, a Subsidiary, or states that a Subsidiary is the “account party,” “applicant,” “customer,” “instructing party,” or the like of or for such Letter of Credit, and without derogating from any rights of the applicable Issuing Bank (whether arising by contract, at law, in equity or otherwise) against such Subsidiary in respect of such Letter of Credit, the Borrower (i) shall reimburse, indemnify and compensate the applicable Issuing Bank hereunder for such Letter of Credit (including to reimburse any and all drawings thereunder) as if such Letter of Credit had been issued solely for the account of the Borrower and (ii) irrevocably waives any and all defenses that might otherwise be available to it as a guarantor or surety of any or all of the obligations of such Subsidiary in respect of such Letter of Credit.  The Borrower hereby acknowledges that the issuance of such Letters of Credit for its Subsidiaries inures to the benefit of the Borrower, and that the Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.

 

 

ARTICLE IV

 

TERM LOAN FACILITY

 

SECTION 4.1      Initial Term Loans and Incremental Term Loans. Subject to the terms and conditions set forth herein and in the other Loan Documents (i) each Term Loan 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 Term Loan Lender’s Term Loan Commitment and (ii) each Term Loan 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 Term Loan 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 of the Initial Term Loans must be drawn in a single drawing on the Closing Date. Amounts repaid or prepaid in respect of Term Loans may not be re-borrowed.

 

SECTION 4.2      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 Term Loan Lenders ratably in accordance with their respective Term Loan Commitments under such Term Loan Facility. The failure of any Term Loan Lender to make any Term Loan required to be made by it shall not relieve any other Term Loan Lender of its obligations hereunder; provided that the Term Loan Commitments of the Term Loan Lenders are several and no Term Loan Lender shall be responsible for any other Term Loan Lender’s failure to make Loans as required hereunder.

 

(b)            Subject to Section 5.8, each Term Loan Borrowing shall be comprised entirely of ABR Loans or Term Benchmark Term Loans as the Borrower may request in accordance herewith. Each Term Loan Lender at its option may make any Term Benchmark Term Loan by causing any domestic or foreign branch or Affiliate of such Term Loan Lender to make such Term Loan (and in the case of an Affiliate, the provisions of Sections 5.1, 5.4, 5.6, 5.7, 5.8, 5.9, 5.10 and 5.13 shall apply to such Affiliate to the same extent as to such Term Loan 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 of Term Loans (other than a continuation or conversion, which is governed by Section 3.2), the Borrower shall give the Administrative Agent 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) U.S. Government Securities 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 5.9, 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 4.2:

 

 

(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 5.7(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 4.2, 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 4.3      Repayment of Term Loans.

 

(a)            Initial Term Loans. The Borrower shall repay the aggregate outstanding principal amount of the Initial Term Loans in consecutive quarterly installments on the last Business Day of each of March, June, September and December, commencing June 30, 2025, in an amount equal to 0.25% of the aggregate principal amount of such Initial Term Loans incurred on the Closing Date, except as the amounts of individual installments may be adjusted pursuant to Section 4.4 hereof; provided that the final principal installment of the Initial Term Loans shall be paid in full on the Term Loan Maturity Date in an amount equal to the aggregate outstanding principal of the Initial Term Loans on such date (together with all accrued interest thereon).

 

(b)            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 5.13.

 

SECTION 4.4      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 4.4), to prepay the Term Loans, in whole or in part, upon delivery to the Administrative Agent of a Notice of Prepayment not later than 11:00 a.m. (i) on the same Business Day as each ABR Loan and (ii) at least three (3) U.S. Government Securities 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 Loans or a combination thereof, and if a combination thereof, the amount allocable to each and whether the repayment is of the Initial Term Loans 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 Loans 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 5.9 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 Term Loan Lenders of each Notice of Prepayment. Notwithstanding the foregoing, any Notice of Prepayment delivered in connection with any refinancing of all of the Credit 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 5.9).

 

 

(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 9.1. 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 9.5 to the extent that the aggregate amount of such Net Cash Proceeds exceed $25,000,000 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 Section 4.4(b)(ii) 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 $25,000,000 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 Section 4.4(b)(iii) 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, 2026), 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 8.1(a) and Section 8.2(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 Revolving Credit Loans during such Fiscal Year (solely to the extent accompanied by permanent optional reductions in the Revolving Credit Commitments) and all optional prepayments of any Term Loans pursuant to Section 4.4(a) during such Fiscal Year and (ii) purchases of Term Loans pursuant to Section 13.9(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 Term Loan Lenders. Each prepayment of the Term Loans under this Section 4.4 shall be applied on a pro rata basis among the Initial Term 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 4.4(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 (B) as determined by the Borrower and the applicable Class of Term Loan 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 5.9.

 

(vi)            No Reborrowings. Amounts prepaid under the Term Loan pursuant to this Section 4.4 may not be reborrowed.

 

(c)            Call Premium. In the event that, on or prior to the six (6) month anniversary of the Closing Date, the Borrower (i) makes any prepayment or repayment of the Initial Term 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 Term Loan 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 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 outstanding immediately prior to such amendment that are subject to such amendment (including, without limitation, any Initial Term Loans of a Non-Consenting Lender that is replaced pursuant to Section 5.12(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 with the proceeds of, or any conversion of the Initial Term 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 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 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 V

 

GENERAL LOAN PROVISIONS

 

SECTION 5.1      Interest.

 

(a)            Interest Rate Options. Subject to the provisions of this Section 5.1, 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 Term SOFR Rate plus the Applicable Margin, (ii) the Revolving Credit Loans shall bear interest at (A) the Alternate Base Rate plus the Applicable Margin, (B) Daily Simple SOFR plus the Applicable Margin or (C) the Term SOFR Rate plus the Applicable Margin and (iii) Swingline Loans shall bear interest at the Alternate Base Rate plus the Applicable Margin. The Borrower shall select the rate of interest and Interest Period, if any, applicable to any Loan at the time a Notice of Borrowing is given or at the time a Notice of Conversion/Continuation is given pursuant to Section 5.2.

 

(b)            Default Rate. Subject to Section 11.3, immediately upon the occurrence and during the continuance of an Event of Default under Section 11.1(a), (b), (i) or (j), (A) the Borrower shall no longer have the option to request SOFR Loans, Swingline Loans or Letters of Credit, (B) all outstanding Daily Simple SOFR 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 Daily Simple SOFR Loans until the end of the applicable calendar month and thereafter at a rate equal to two percent (2%) in excess of the rate (including the Applicable Margin) then applicable to ABR Loans, (C) 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 per annum equal to two percent (2%) in excess of the rate (including the Applicable Margin) then applicable to ABR Loans, (D) all outstanding ABR 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 Loans or such other Obligations arising hereunder or under any other Loan Document and (E) 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 Loan and each RFR Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto commencing March 31, 2025; and interest on each Term SOFR Rate Loan shall be due and payable on each Interest Payment Date 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. All computations of interest for ABR Loans when the Alternate Base Rate is determined by the Prime Rate and RFR Loans 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 5.2      Notice and Manner of Conversion or Continuation of Loans.

 

(a)            Each Borrowing initially shall be of the Type specified in the applicable Notice of Borrowing and, in the case of a Term Benchmark Borrowing, shall have an initial Interest Period as specified in such Notice of Borrowing. Thereafter, the Borrower may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a Term Benchmark Revolving Borrowing, may elect Interest Periods therefor, all as provided in this Section 5.2. The Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing. This Section 5.2 shall not apply to Swingline Borrowings, which may not be converted or continued.

 

(b)            To make an election pursuant to this Section 5.2, the Borrower shall notify the Administrative Agent of such election by the time that a Notice of Borrowing would be required under Section 2.3 or 4.2 if the Borrower were requesting a Borrowing of the Type resulting from such election to be made on the effective date of such election. Each such Notice of Conversion/Continuation shall be irrevocable and shall be signed by a Responsible Officer of the Borrower; provided that, if such Notice of Conversion/Continuation is submitted through an Approved Borrower Portal, the foregoing signature requirement may be waived at the sole discretion of the Administrative Agent.

 

(c)            Each Notice of Conversion/Continuation shall specify the following information in compliance with Section 2.1 or 4.1:

 

(i)            the Borrowing to which such Notice of Conversion/Continuation applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing):

 

(ii)            the effective date of the election made pursuant to such Notice of Conversion/Continuation, which shall be a Business Day;

 

(iii)            whether the resulting Borrowing is to be an ABR Borrowing or a Term Benchmark Borrowing or, in the case of a Revolving Borrowing, an RFR Borrowing; and

 

(iv)            if the resulting Borrowing is a Term Benchmark Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of “Interest Period.”

 

If any such Notice of Conversion/Continuation requests a Term Benchmark Borrowing but does not specify an Interest Period, then the Borrowing shall be deemed to have selected an Interest Period of one month’s duration.

 

(d)            Promptly following the receipt of a Notice of Conversion/Continuation, the Administrative Agent shall advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.

 

 

(e)            If the Borrower fails to deliver a timely Notice of Conversion/Continuation with respect to a Term Benchmark Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be deemed to have an Interest Period that is one month. Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the request of the Lenders, so notifies the Borrower, then, so long as an Event of Default is continuing (i) no outstanding Borrowing may be converted to or continued as a Term Benchmark Borrowing or, in the case of a Revolving Borrowing, an RFR Borrowing, and (ii) unless repaid, (A) each Term Benchmark Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto and (B) each RFR Borrowing shall be converted to an ABR Borrowing on the last day of the calendar month.

 

SECTION 5.3      Fees.

 

(a)            Fees Generally. 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.

 

(b)            Commitment Fee. Subject to Section 5.14(a)(iii)(A), the Borrower shall pay to the Administrative Agent, for the account of the Revolving Credit Lenders, a non-refundable commitment fee (the “Commitment Fee”) at a rate per annum equal to 0.25% per annum on the actual daily unused portion of the Revolving Credit Commitment of the Revolving Credit Lenders (other than the Defaulting Lenders, if any); provided, that the amount of outstanding Swingline Loans shall not be considered usage of the Revolving Credit Commitment for the purpose of calculating the Commitment Fee. The Commitment Fee accrued through and including the last day of March, June, September and December of each year shall be payable on the fifteenth (15th) day following such last day, commencing on the first such date to occur after the Closing Date; provided, that, for avoidance of doubt, the Borrower shall only pay the pro rata share of the Commitment Fee due for the relevant calendar quarter for the period starting on the Closing Date and ending on last day of such calendar quarter; provided, further, that all such Commitment Fees shall be payable on the date upon which all Obligations (other than contingent indemnification obligations not then due) arising under the Revolving Credit Facility shall have been indefeasibly and irrevocably paid and satisfied in full, all Letters of Credit have been terminated or expired (or been cash collateralized) and the Revolving Credit Commitment has been terminated. The Commitment Fee shall be distributed by the Administrative Agent to the Revolving Credit Lenders (other than any Defaulting Lender) pro rata in accordance with such Revolving Credit Lenders’ respective Revolving Credit Commitment Percentages.

 

(c)            Letter of Credit Fees. The Borrower agrees to pay (i) to the Administrative Agent for the account of each Lender a participation fee with respect to its participations in each outstanding Letter of Credit, which shall accrue on the daily maximum stated amount then available to be drawn under such Letter of Credit at the same Applicable Margin used to determine the interest rate applicable to Term Benchmark Revolving Credit Loans, during the period from and including the Closing Date to but excluding the later of the date on which such Lender’s Revolving Credit Commitment terminates and the date on which such Lender ceases to have any LC Exposure, and (ii) to each Issuing Bank for its own account a fronting fee with respect to each Letter of Credit issued by such Issuing Bank, which shall accrue at the rate of 0.125% per annum on the daily maximum stated amount then available to be drawn under such Letter of Credit, during the period from and including the Closing Date to but excluding the later of the date of termination of the Revolving Credit Commitments and the date on which there ceases to be any LC Exposure with respect to Letters of Credit issued by such Issuing Bank, as well as such Issuing Bank’s standard fees with respect to the issuance, amendment or extension of any Letter of Credit and other processing fees, and other standard costs and charges, of such Issuing Bank relating the Letters of Credit as from time to time in effect. Participation fees and fronting fees accrued through and including the last day of March, June, September and December of each year shall be payable on the fifteenth (15th) day following such last day, commencing on the first such date to occur after the Closing Date; provided that all such fees shall be payable on the date on which the Revolving Credit Commitments terminate and any such fees accruing after the date on which the Revolving Credit Commitments terminate shall be payable on demand. Any other fees payable to an Issuing Bank pursuant to this Section 5.3(c) shall be payable within ten (10) days after demand. All participation fees and fronting fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).

 

 

SECTION 5.4      Manner of Payment. Each payment by the Borrower on account of the principal of or interest on the Loans or of any fee, commission or other amounts (including the Reimbursement Obligations) 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 11.1, 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 Commitment Percentage in respect of the relevant Credit Facility (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 on account of the principal of or interest on the Swingline Loans or of any fee, commission or other amounts payable to the Swingline Lender shall be made in like manner, but for the account of the Swingline Lender. Each payment to the Administrative Agent for any Issuing Bank’s fees shall be made in like manner, but for the account of such Issuing Bank. 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 5.9, 5.10, 5.11 or 13.3 shall be paid to the Administrative Agent for the account of the applicable Lender. Subject to the definitions of “Interest Period” and “Interest Payment Date,” 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 5.14(a)(ii).

 

SECTION 5.5      Evidence of Indebtedness.

 

(a)            Extensions of Credit. The Extensions of Credit made by each Lender and each Issuing Bank shall be evidenced by one or more accounts or records maintained by such Lender or such Issuing Bank and by the Administrative Agent in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Lender or the applicable Issuing Bank shall be conclusive absent manifest error of the amount of the Extensions of Credit made by the Lenders or such Issuing Bank to the Borrower and its Subsidiaries 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 or any Issuing Bank 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 Revolving Credit Note, Term Loan Note and/or Swingline Note, as applicable, which shall evidence such Lender’s Revolving Credit Loans, Term Loans and/or Swingline Loans, as applicable, in addition to such accounts or records. Each Lender may attach schedules to its Notes and endorse thereon the date, amount and maturity of its Loans and payments with respect thereto.

 

 

(b)            Participations. In addition to the accounts and records referred to in clause (a), each Revolving Credit Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Revolving Credit Lender of participations in Letters of Credit and Swingline Loans. In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Revolving Credit Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.

 

SECTION 5.6      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 Loans or other obligations hereunder resulting in such Lender’s receiving payment of a proportion of the aggregate amount of its Loans and accrued interest thereon or other such obligations (other than pursuant to Sections 5.9, 5.10, 5.11 or 13.3) 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 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 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), (B) the application of cash collateral provided for in Section 3.10 or (C) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in Swingline Loans and Letters of Credit to any assignee or participant, other than, except to the extent provided in Section 13.9(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 5.6 shall be treated as having acquired such participation on the earlier date(s) on which such Lender acquired an interest in the Commitment(s) or Loan(s) to which such participation relates.

 

SECTION 5.7      Funding by Lenders; Administrative Agent’s Clawback.

 

(a)            Funding by Lenders. Each Lender shall make each 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 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 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 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 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, the Issuing Banks or the Swingline Lender 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 Issuing Banks or the Swingline Lender, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders, the Issuing Banks or the Swingline Lender, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender, such Issuing Bank or the Swingline 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 Loans, to issue or participate in Letters of Credit and to make payments under this Section 5.7, Section 5.11(e), Section 12.11(c), Section 13.3(c) or Section 13.7, as applicable, are several and are not joint or joint and several. The failure of any Lender to make available its Commitment Percentage of any Loan requested by the Borrower shall not relieve it or any other Lender of its obligation, if any, hereunder to make its Commitment Percentage of such Loan available on the borrowing date, but no Lender shall be responsible for the failure of any other Lender to make its Commitment Percentage of such Loan available on the borrowing date.

 

 

SECTION 5.8      Alternate Rate of Interest.

 

(a)            Subject to clauses (b), (c), (d), (e) and (f) of this Section 5.8, if

 

(i)            the Administrative Agent determines (which determination shall be conclusive absent manifest error) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining 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 (B) at any time, that adequate and reasonable means do not exist for ascertaining the applicable Daily Simple SOFR; or

  

(ii)            the Administrative Agent is advised by the Required Lenders that (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Term SOFR Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period or (B) at any time, Daily Simple SOFR will not adequately and fairly reflect the cost to such Lender (or Lenders) of making or maintaining their Loans (or its Loan) included in such Borrowing;

 

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 Conversion/Continuation in accordance with the terms of Section 5.2 or new Notice of Borrowing in accordance with the terms of Section 2.3 or 4.2(e), (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 (x) an RFR Borrowing so long as Daily Simple SOFR is not also the subject of Section 5.8(a)(i) or (ii) above or (y) an ABR Borrowing if Daily Simple SOFR also is the subject of Section 5.8(a)(i) or (ii) above and (2) any Notice of Borrowing that requests an RFR Borrowing shall instead be deemed to be a Notice of Borrowing, as applicable, for an ABR Borrowing if Daily Simple SOFR also is subject to Section 5.8(a)(i) or (ii) above; provided if the circumstances giving rise to such notice affect only one Type of Borrowing, then all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan or RFR Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 5.8(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR Loan, 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 Conversion/Continuation in accordance with the terms of Section 5.2 or new Notice of Borrowing in accordance with the terms of Section 2.3 or 4.2(e), (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as Daily Simple SOFR is not also the subject of Section 5.8(a)(i) or (ii) above or (y) an ABR Loan if Daily Simple SOFR is also subject of Section 5.8(a)(i) or (ii) above, on such date, and (2) any RFR Loan shall on and from such date be converted by the Administrative Agent to, and shall constitute, an ABR Loan if Daily Simple SOFR also is subject to Section 5.8(a)(i) or (ii) above.

 

(b)            Notwithstanding anything to the contrary herein or in any other Loan Document (and any Swap Obligation shall be deemed not to be a “Loan Document” for purposes of this Section 5.8), 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 (including any related adjustments) 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 5.8, 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 5.8.

 

(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 (i) a Term Benchmark Borrowing, conversion to or continuation of Term Benchmark Loans to be made, converted or continued or (ii) a RFR Borrowing or conversion to RFR Loans, during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any request for a Term Benchmark Borrowing or RFR Borrowing, as applicable, into a request for a Borrowing of or conversion to (A) solely with respect to any such request for a Term Benchmark Borrowing, an RFR Borrowing so long as Daily Simple SOFR is not the subject of a Benchmark Transition Event or (B) an ABR Borrowing if Daily Simple SOFR is the subject of a Benchmark Transition Event. 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 Alternate Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the Alternate Base Rate. Furthermore, if any Term Benchmark Loan or RFR Loan is outstanding on the date of the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 5.8, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as Daily Simple SOFR is not the subject of a Benchmark Transition Event or (y) an ABR Loan if Daily Simple SOFR is the subject of a Benchmark Transition Event, on such day and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Loan.

 

 

SECTION 5.9      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 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 SOFR Loan or convert to a SOFR Loan on a date specified therefor in a Notice of Borrowing or Notice of Conversion/Continuation, (c) due to any failure of the Borrower to prepay any SOFR Loan on a date specified therefor in any Notice of Prepayment (regardless of whether any such Notice of Prepayment may be revoked under Section 2.4(c) or 4.4(a) and is revoked in accordance therewith), (d) due to any payment, prepayment or conversion of any Term SOFR Rate Loan on a date other than, with respect to any Term SOFR Rate Loan, the last day of the Interest Period therefor (including as a result of an Event of Default) or (e) the assignment of any SOFR Loan other than on, with respect to any Term SOFR Rate Loan, the last day of the Interest Period therefor, as a result of a request by the Borrower pursuant to Section 5.12(b). 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.

 

SECTION 5.10      Increased Costs.

 

(a)            Increased Costs Generally. If any Change in Law shall:

 

(i)            impose, modify or deem applicable any reserve, special deposit, liquidity 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 or any Issuing Bank; 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 or any Issuing Bank any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation therein;

 

 

and the result of any of the foregoing shall be to increase the cost to such Lender, any Issuing Bank or such other Recipient of making, converting to, continuing or maintaining any Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender, such Issuing Bank or such other Recipient of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender, such Issuing Bank or such other Recipient hereunder (whether of principal, interest or any other amount) then, upon written request of such Lender, such Issuing Bank or such other Recipient, the Borrower shall promptly pay to any such Lender, such Issuing Bank or such other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender, such Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.

 

(b)            Capital Requirements. If any Lender or any Issuing Bank determines that any Change in Law affecting such Lender or such Issuing Bank or any Lending Office of such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’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 or such Issuing Bank’s capital or on the capital of such Lender’s or such Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Revolving Credit Commitment of such Lender or the Loans made by, or participations in Letters of Credit or Swingline Loans held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a level below that which such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or such Issuing Bank’s policies and the policies of such Lender’s or such Issuing Bank’s holding company with respect to capital adequacy and liquidity), then from time to time upon written request of such Lender or such Issuing Bank the Borrower shall promptly pay to such Lender or such Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company for any such reduction suffered.

 

(c)            Certificates for Reimbursement. A certificate of a Lender, or an Issuing Bank or such other Recipient setting forth the amount or amounts necessary to compensate such Lender or such Issuing Bank, 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 5.10 and delivered to the Borrower, shall be conclusive absent manifest error. The Borrower shall pay such Lender or such Issuing Bank 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 any Issuing Bank or such other Recipient to demand compensation pursuant to this Section 5.10 shall not constitute a waiver of such Lender’s or such Issuing Bank’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 Issuing Bank or any other Recipient pursuant to this Section 5.10 for any increased costs incurred or reductions suffered more than nine (9) months prior to the date that such Lender or such Issuing Bank 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 Issuing Bank’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 5.11      Taxes.

 

(a)            Defined Terms. For purposes of this Section 5.11, the term “Lender” includes any Issuing Bank and the term “Applicable Law” includes FATCA.

 

 

(b)            Payments Free of Taxes. All payments by or on account of any obligation of any Credit Party 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 5.11), 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 5.11) 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 13.9(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 5.11(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 5.11, 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 E-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 E-2 or Exhibit E-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 E-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 5.11(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 5.11(g), no Lender shall not be required to deliver any documentation pursuant to this Section 5.11(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 5.11(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 5.11 (including by the payment of additional amounts pursuant to this Section 5.11), 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 5.11 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 5.11(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 5.11(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 5.11(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 5.11 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 Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.

 

SECTION 5.12      Mitigation Obligations; Replacement of Lenders.

 

(a)            Designation of a Different Lending Office. If any Lender requests compensation under Section 5.10, 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 5.11, then such Lender shall, at the request of the Borrower, use reasonable efforts to designate a different Lending Office for funding or booking its 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 5.10 or Section 5.11, 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 5.10, 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 5.11, and, in each case, such Lender has declined or is unable to designate a different Lending Office in accordance with Section 5.12(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 13.9), all of its interests, rights (other than its existing rights to payments pursuant to Section 5.10 or Section 5.11) 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 13.9;

 

(ii)            such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and participations in LC Disbursements and Swingline 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 5.9) 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 4.4(c));

 

(iii)            in the case of any such assignment resulting from a claim for compensation under Section 5.10 or payments required to be made pursuant to Section 5.11, 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 5.13      Incremental Increases.

 

(a)            At any time after the Closing Date, the Borrower may by written notice to the Administrative Agent elect to request (1) 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”) and/or (2) one or more increases in the Revolving Credit Commitments (each, an “Incremental Revolving Credit Facility Increase” and, together with the Incremental Term Loan Commitments and Incremental Term Loans, the “Incremental Increases”); provided that (i) the total aggregate principal amount of such Incremental Increases shall not exceed the Incremental Facilities Limit and (ii) the aggregate initial amount for each Incremental Increase (and any 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 Increase 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 Increase or any portion thereof (any such Person, an “Incremental Lender”); provided that the Administrative Agent, each Issuing Bank and/or the Swingline Lender, as applicable, shall have consented (such consent not to be unreasonably withhold or delayed) to such Incremental Lender’s providing such Incremental Increases to the extent such consent would be required under Section 13.9(b) for an assignment of Loans or Commitments, as applicable, to such Incremental Lender. Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Increase may elect or decline, in its sole discretion, to provide such Incremental Increase. Any Incremental Increase 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, any Incremental Revolving Credit Facility Increase 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 8.1(a) or 8.1(b), as applicable, both before and after giving effect (on a Pro Forma Basis) to any Incremental Term Loan Commitments or Incremental Revolving Credit Facility Increase, the making of any Incremental Increases pursuant thereto (with any Incremental Increase being deemed to be fully funded), and any Specified Transactions consummated in connection therewith and Borrower has obtained the prior written consent of Fannie Mae;

 

 

(C)            each of the representations and warranties contained in Articles VII and X 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 Increase 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) and each Incremental Revolving Credit Facility Increase shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other 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 Loans 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 six (6) 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, 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);

 

 

(G)            any Incremental Revolving Credit Facility Increase shall have the same terms (other than upfront fees and any arrangement or similar fees payable in connection with such Incremental Revolving Credit Facility Increase) as the Revolving Credit Commitments in effect on the Closing Date, and shall form part of the same Class of Revolving Credit Commitments and Revolving Credit Loans; provided that, if required to establish an Incremental Revolving Credit Facility Increase, the pricing, interest rate margins, rate floors and fees (other than any upfront fees and any arrangement or similar fees payable in connection with such Incremental Revolving Credit Facility Increase) applicable to the Revolving Credit Commitments in effect on the Closing Date may be increased such that the Incremental Revolving Credit Facility Increase and Revolving Credit Commitments in effect on the Closing Date shall form part of the same Class of Revolving Credit Commitments and Revolving Credit Loans;

 

(H)            such Incremental Increases 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 5.13); and

 

(I)            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/or Incremental Revolving Credit Facility Increase) and such written consent or acknowledgement, if any, from each Agency with respect to such Incremental Increase 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 5.13 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 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.

 

 

(d)            On any Increased Amount Date on which any Incremental Revolving Credit Facility Increase becomes effective, the outstanding Revolving Credit Loans and Revolving Credit Commitment Percentages of Swingline Loans and LC Exposures will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Revolving Credit Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Facility Increase) in accordance with their revised Revolving Credit Commitment Percentages (and the Revolving Credit Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Facility Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to Section 5.10 in connection with such reallocation as if such reallocation were a repayment).

 

SECTION 5.14      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,” “Required Revolving Credit Lenders” or “Required Term Loan Lenders” and Section 13.2.

 

(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 XI or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 13.4 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, to the payment, on a pro rata basis, of any amounts owing by such Defaulting Lender to any Issuing Bank or the Swingline Lender hereunder; third, to cash collateralize LC Exposure with respect to such Defaulting Lender in accordance with Section 3.10; fourth, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (A) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (B) cash collateralize future LC Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 3.10; sixth, to the payment of any amounts owing to the Lenders, the Issuing Banks or the Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the Issuing Banks or the Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement or any other Loan Document; seventh, 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 or any other Loan Document; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans, funded participations in Swingline Loans or LC Disbursements in respect of which such Defaulting Lender has not fully funded its appropriate share and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Sections 6.1 and 6.2 were satisfied or waived, such payment shall be applied solely to pay the Loans of, funded participations in Swingline Loans and LC Disbursements owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, funded participations in Swingline Loans or LC Disbursements owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to Section 5.14(a)(iv). 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 or to post cash collateral pursuant to this Section 5.14(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

 

 

(iii)            Certain Fees.

 

(A)            No Defaulting Lender shall be entitled to receive any Commitment Fee for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).

 

(B)            Each Defaulting Lender shall be entitled to receive Letter of Credit fees pursuant to Section 5.3 for any period during which that Lender is a Defaulting Lender only to the extent allocable to its Revolving Credit Commitment Percentage of the stated amount of Letters of Credit for which it has provided cash collateral pursuant to Section 3.10.

 

(C)            With respect to any Commitment Fee or Letter of Credit fee not required to be paid to any Defaulting Lender pursuant to clause (A) or (B) above, the Borrower shall (1) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in LC Exposures or Swingline Loans that has been reallocated to such Non-Defaulting Lender pursuant to clause (iv) below, (2) pay to each applicable Issuing Bank and Swingline Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such Issuing Bank’s LC Exposure or the Swingline Lender’s Swingline Exposure to such Defaulting Lender, and (3) not be required to pay the remaining amount of any such fee.

 

(iv)            Reallocation of Participations to Reduce Exposure. All or any part of such Defaulting Lender’s participation in LC Exposures and Swingline Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Revolving Credit Commitment Percentages (calculated without regard to such Defaulting Lender’s Revolving Credit Commitment) but only to the extent that such reallocation does not cause the aggregate Revolving Credit Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving Credit Commitment. Subject to Section 13.23, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.

 

(v)            Cash Collateral, Repayment of Swingline Loans. If the reallocation described in clause (iv) above cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under law, (x) first, repay Swingline Loans in an amount equal to the Swingline Lender’s Revolving Credit Exposure and (y) second, cash collateralize the Issuing Banks’ LC Exposure in accordance with the procedures set forth in Section 3.10.

 

 

(vi)            Voting. The Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 13.2); provided that this clause (vi) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby.

 

(b)            Defaulting Lender Cure. If the Borrower, the Administrative Agent, the Issuing Banks and the Swingline Lender 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 (which may include arrangements with respect to any cash collateral), such Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swingline Loans to be held pro rata by the Lenders in accordance with the Commitments under the applicable Credit Facility (without giving effect to Section 5.14(a)(iv)), 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 Non-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.

 

SECTION 5.15      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 Term Loan 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 Term Loan Lender shall notify the Administrative Agent whether it consents to such extension (which consent may be given or withheld in such Term Loan Lender’s sole and absolute discretion). Each Term Loan 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 Term Loan Lender of the Existing Term Loan Tranche pursuant to procedures established by, or reasonably acceptable to, the Administrative Agent and the Borrower. Any Term Loan 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 Term Loan Lenders of such Term Loan Lenders’ responses. If the aggregate principal amount of the Existing Term Loan Tranche in respect of which the applicable Term Loan Lenders that have accepted the Extension Request exceeds the amount set forth in such Extension Request, then such accepting Term Loan 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 Term Loan 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 Term Loan Lenders that have consented thereto (it being understood and agreed that no other Term Loan 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 Term Loan Lenders such extension, specifying the effective date of such extension 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 Term Loan 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 13.2, 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 5.15) 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 5.15.

 

 

SECTION 5.16      Extension of Revolving Credit Maturity Date.

 

(a)            The Borrower may, upon written notice to the Administrative Agent (a “Revolving Credit Extension Request”), which shall promptly notify the applicable Revolving Credit Lenders, request one or more extensions of the maturity date applicable to the Revolving Credit Loans of such Class (each, an “Existing Revolving Credit Loan Tranche” and the extended loans of such Class, the “Extended Revolving Credit Loans”) then in effect (such existing maturity date applicable to such Class of Revolving Credit Loans being the “Existing Revolving Credit Maturity Date”) to a date specified in such Extension Request.

 

(b)            Each Revolving Credit 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 Revolving Credit Extension Request (or such longer or shorter periods as the Administrative Agent shall agree in its sole discretion), (ii) the Existing Revolving Credit Loan Tranche to be extended, (iii) the amount of the Existing Revolving Credit Loan Tranche that is subject to such Revolving Credit Extension Request and (iv) the proposed maturity date of such Extended Revolving Credit Loan. Within the time period specified in such Revolving Credit Extension Request, each applicable Revolving Credit Lender shall notify the Administrative Agent whether it consents to such extension (which consent may be given or withheld in such Revolving Credit Lender’s sole and absolute discretion). Each Revolving Credit Lender of the Existing Revolving Credit 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 Revolving Credit Lender of the Existing Revolving Credit Loan Tranche pursuant to procedures established by, or reasonably acceptable to, the Administrative Agent and the Borrower. Any Revolving Credit 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 Revolving Credit Lenders of such Revolving Credit Lenders’ responses. If the aggregate principal amount of the Existing Revolving Credit Loan Tranche in respect of which the applicable Revolving Credit Lenders that have accepted the Revolving Credit Extension Request exceeds the amount set forth in such Revolving Credit Extension Request, then such accepting Revolving Credit Lenders’ Revolving Credit Loans of the Existing Revolving Credit Loan Tranche shall be extended ratably up to such maximum amount based on the respective principal amounts with respect to which such Revolving Credit Lenders have accepted such Revolving Credit Extension Request.

 

(c)            The maturity date applicable to any Class of Revolving Credit Loans shall be extended only with respect to such Existing Revolving Credit Loan Tranche held by such Revolving Credit Lenders that have consented thereto (it being understood and agreed that no other Revolving Credit Lender consents shall be required hereunder for such extensions). If so extended, the scheduled maturity date with respect to the Revolving Credit Loans of the relevant Class so extended shall be the date specified in the Revolving Credit Extension Request, which shall become the new maturity date of the applicable Class of Revolving Credit Loans established pursuant to such extension (such maturity date for the Revolving Credit Loans so affected, the “Extended Revolving Credit Loan Maturity Date”). The Administrative Agent shall promptly confirm to the applicable Revolving Credit Lenders such extension, specifying the effective date of such extension and the Extended Revolving Credit Loan Maturity Date (after giving effect to such extension) applicable to the Extended Revolving Credit Loans.

 

(d)            The proposed terms of the Extended Revolving Credit Loans to be established shall be identical to the Revolving Credit Loans under the Existing Revolving Credit Loan Tranche from which such Extended Revolving Credit Loans are to be amended, except that:

 

(i)            the maturity date of the Extended Revolving Credit Loans shall be later than the maturity date of the applicable Existing Revolving Credit Loan Tranche; and

 

(ii)            the Effective Yield with respect to the Extended Revolving Credit 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 Revolving Credit Loans of such Existing Revolving Credit Loan Tranche, in each case, to the extent provided in the applicable Revolving Extension Amendment.

 

 

(e)            Notwithstanding the terms of Section 13.2, 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 5.16) to enter into any amendments (a “Revolving 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 Revolving Credit Loans pursuant to this Section 5.16.

 

SECTION 5.17      Refinancing Amendments.

 

(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, and together with any replacement of Revolving Credit Commitments pursuant to Section 5.17(d), “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 pursuant to Section 5.17(a) shall specify the date (each, a “Refinancing Term Loan 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 13.9 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 Term Loan 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)            Notwithstanding anything to the contrary in this Agreement, the Borrower may by written notice to the Administrative Agent establish one or more additional facilities (“Replacement Revolving Credit Facilities”) providing for revolving commitments (“Replacement Revolving Credit Commitments”) under this Agreement, in each case, which replace in whole or in part any Class of Revolving Credit Commitments under this Agreement. Each such notice shall specify the date (each, a “Replacement Revolving Credit Facility Effective Date”) on which the Borrower proposes that the Replacement Revolving Credit Commitments shall become effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion); provided that (i) immediately before and immediately after giving effect to the establishment of such Replacement Revolving Credit Commitments on the Replacement Revolving Credit Facility Effective Date, each of the conditions set forth in Section 6.2 shall be satisfied, (ii) after giving effect to the establishment of any Replacement Revolving Credit Commitments and any concurrent reduction in the aggregate amount of any other Revolving Credit Commitments, the aggregate amount of Revolving Credit Commitments shall not exceed the aggregate amount of the Revolving Credit Commitments outstanding immediately prior to the applicable Replacement Revolving Credit Facility Effective Date plus amounts used to pay fees, premiums, costs and expenses (including upfront fees) and accrued interest associated therewith; (iii) other than Permitted Inside Maturity Debt, no Replacement Revolving Credit Commitments shall have a final maturity date (or require commitment reductions or amortizations) prior to the Revolving Credit Maturity Date for the Revolving Credit Commitments being replaced; (iv) all other terms applicable to such Replacement Revolving Credit Facility (other than provisions relating to fees, interest rates and other pricing terms, and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and the Lenders providing such Replacement Revolving Credit Commitments), shall be consistent in all material respects with the terms of the corresponding Class of Revolving Credit Commitments so replaced or, if not consistent in any material respect with the terms of the corresponding Class of Revolving Credit Commitments so replaced, at the option of the Borrower, either (x) reflect market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith) of such Replacement Revolving Credit Commitments, or (y) not be materially more restrictive to the Borrower and its Subsidiaries (as determined by the Borrower in good faith), when taken as a whole, than the terms applicable to the Revolving Credit Commitments so replaced (except, as to this clause (y), to the extent such covenants and other terms (1) are also added for the benefit of the Lenders holding the other Revolving Credit Commitments then outstanding, which shall not require consent of the Lenders holding Term Loans or Revolving Credit Commitments then outstanding and which the Administrative Agent shall add to this Agreement upon the applicable Replacement Revolving Credit Facility Effective Date, (2) apply solely to any period after the latest final maturity date of the Revolving Credit Facility existing at the time of incurrence or (3) are otherwise reasonably acceptable to the Administrative Agent); provided that any such Replacement Revolving Credit Facilities may contain any financial maintenance covenants, so long as any such covenant shall not be more restrictive to the Borrower than (or in addition to) those applicable to the other Revolving Credit Commitments outstanding on the Replacement Revolving Credit Facility Effective Date (unless such covenants are also added for the benefit of the Lenders holding the other Revolving Credit Commitments outstanding on the Replacement Revolving Credit Facility Effective Date, which shall not require consent of the Lenders holding Term Loans or Revolving Credit Commitments then outstanding and which the Administrative Agent shall add to this Agreement upon the applicable Replacement Revolving Credit Facility Effective Date); (v) there shall be no borrower and no guarantors other than the Credit Parties in respect of such Replacement Revolving Credit Facility; and (vi) Replacement Revolving Credit Commitments and extensions of credit thereunder shall not be secured by any asset of the Borrower and its Subsidiaries other than the Collateral.

 

 

(e)            The Borrower may approach any Lender or any other Person that would be an Eligible Assignee of a Revolving Credit Commitment pursuant to Section 13.9 to provide all or a portion of the Replacement Revolving Credit Commitments (each, a “Replacement Revolving Credit Lender”); provided that any Lender offered or approached to provide all or a portion of the Replacement Revolving Credit Commitments may elect or decline, in its sole discretion, to provide a Replacement Revolving Credit Commitment. Any Replacement Revolving Credit Commitment made on any Replacement Revolving Credit Facility Effective Date shall be designated an additional Class of Revolving Credit Commitments for all purposes of this Agreement; provided that any Replacement Revolving Credit Commitments may, to the extent provided in the applicable Refinancing Amendment, be designated as an increase in any previously established Class of Revolving Credit Commitments.

 

(f)            The Administrative Agent and the Lenders hereby consent to the transactions contemplated by this Section 5.17 (including, for the avoidance of doubt, the payment of interest, fees, amortization or premium, as applicable, in respect of the Refinancing Term Loans and/or Replacement Revolving Credit Facilities on the terms specified by the Borrower) and hereby waive the requirements of this Agreement (including Section 5.6 and Section 13.2) or any other Loan Document that may otherwise prohibit such Refinancing or any other transaction contemplated by this Section 5.17. The Refinancing Term Loans and/or Replacement Revolving Credit Facilities shall be established pursuant to a 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 5.17, including in order to establish new tranches or sub-tranches in respect of the Refinancing Term Loans and/or Replacement Revolving Credit Commitments and such technical amendments as may be necessary or appropriate in connection therewith and, with respect to the Refinancing Term Loans, to adjust the amortization set forth in Section 4.3 (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 Sections 6.1 and 6.2 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 and/or Replacement Revolving Credit Facility 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 and/or Replacement Revolving Credit Facility (which such consents or acknowledgments shall be in form and substance reasonably satisfactory to the Administrative Agent and the Refinancing Term Lenders or the Replacement Revolving Credit Lenders, as applicable).

 

 

ARTICLE VI

 

CONDITIONS OF CLOSING AND BORROWING

 

SECTION 6.1      Conditions to Closing and Initial Extensions of Credit. The obligation of the Lenders to close this Agreement and to make the initial Loans or issue or participate in the initial Letters of Credit, if any, is subject to the satisfaction of each of the following conditions:

 

(a)            Executed Loan Documents. This Agreement, a Revolving Credit Note in favor of each Revolving Credit Lender requesting a Revolving Credit Note, a Term Loan Note in favor of each Term Loan Lender requesting a Term Loan Note, a Swingline Note in favor of the Swingline Lender (in each case, if requested thereby) 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, 2024, 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 6.1(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 6.1(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 (or reaffirm the perfection of) 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 (or continue to constitute) valid and perfected first priority Liens thereon (subject to Permitted Liens).

 

(ii)            Pledged Collateral. To the extent not already held by the Administrative Agent, 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) (i) written consent of Fannie Mae and (ii) a certificate regarding amendment provided to Freddie Mac pursuant to that certain approval letter dated as of December 13, 2021, 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 6.1 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 and certificate regarding amendment 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 or Agency Repurchase Indebtedness to the extent required by the documentation governing such Permitted Funding Indebtedness or Agency Repurchase Indebtedness and (2) any other Person whose consent is required as a condition to the consents otherwise required by this Section 6.1(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 5.3 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)            Senior Notes Indenture. The Borrower and the Subsidiaries of the Borrower party thereto shall have delivered to the Administrative Agent the executed Senior Notes Indenture.

 

(g)            Miscellaneous.

 

(i)            Original Credit Agreement Refinancing. On or contemporaneously with the funding of the Initial Term Loans on the Closing Date, the Original Credit Agreement Refinancing shall have occurred.

 

(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, 2024, 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 Loans to be made on the Closing Date.

 

Without limiting the generality of the provisions of the last paragraph of Section 12.3, for purposes of determining compliance with the conditions specified in this Section 6.1, 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.

 

SECTION 6.2      Conditions to Each Extension of Credit. The obligation of each Lender to make a Loan on the occasion of any Borrowing, and of each Issuing Bank to issue, amend or extend any Letter of Credit, is subject to the satisfaction of the following conditions:

 

(a)            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 the date of such Borrowing or the date of issuance, amendment or extension of such Letter of Credit, as applicable, 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).

 

(b)            At the time of and immediately after giving effect to such Borrowing or the issuance, amendment or extension of such Letter of Credit, as applicable, no Default or Event of Default shall have occurred and be continuing.

 

 

Each Borrowing and each issuance, amendment or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in Sections 6.2(a) and (b).

 

ARTICLE VII

 

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 Extensions of Credit, 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 7.1      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 7.1. No Credit Party nor any Subsidiary thereof is an EEA Financial Institution.

 

SECTION 7.2      Ownership; Voting Agreements. Each Subsidiary of each Credit Party as of the Closing Date is listed on Schedule 7.2. 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 7.2. 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 7.2. 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 7.2.

 

SECTION 7.3      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 7.4      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 Extensions of Credit 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 6.2(b) and are in full force and effect.

 

 

SECTION 7.5      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 7.6      Tax Returns and Payments. Each Credit Party has duly filed or caused to be filed all federal and material state and other tax returns required by Applicable Law to be filed, and has paid, or made adequate provision for the payment of, all federal, material state and other 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 7.6, 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, material state and other 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 7.7      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 7.8      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 interfere with the continued operation of such properties or impair the fair saleable value thereof, except as could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect;

 

(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 7.9      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 7.9;

 

(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 Loans, the Letters of Credit or the Commitments.

 

SECTION 7.10      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 any Extension of Credit 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 Extension of Credit, 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 9.2 or Section 9.5 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 7.11      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 Extension of Credit 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 7.12      Material Contracts. Schedule 7.12 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 7.12, 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 7.12 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 7.13      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 7.13. As of the Closing Date, the Borrower knows of no pending, threatened or contemplated strikes, work stoppage or other collective labor disputes involving its employees.

 

SECTION 7.14      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, Agency Repurchase 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 7.15      [Reserved].

 

SECTION 7.16      No Material Adverse Change. Since December 31, 2024, 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 7.17      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 7.18      Title to Properties. As of the Closing Date, the real property listed on Schedule 7.18 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 7.19      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 7.20      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 Extension of Credit 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 7.21      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 7.22      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.

 

SECTION 7.23      Outbound Investment Rules. Neither the Borrower nor any of its Subsidiaries is a “covered foreign person: as that term is used in the Outbound Investment Rules. Neither the Borrower nor any of its Subsidiaries currently engages, or has any present intention to engage in the future, directly or indirectly, in (i) a “covered activity” or a “covered transaction”, as each such term is defined in the Outbound Investment Rules, (ii) any activity or transaction that would constitute a “covered activity” or a “covered transaction”, as each such term is defined in the Outbound Investment Rules, if the Borrower were a U.S. Person or (iii) any other activity that would cause the Administrative Agent, any Lender or any Issuing Bank to be in violation of the Outbound Investment Rules or cause the Administrative Agent, any Lender or any Issuing Bank to be legally prohibited by the Outbound Investment Rules from performing under this Agreement.

 

ARTICLE VIII

 

AFFIRMATIVE COVENANTS

 

Until all of the Obligations (other than contingent indemnification obligations not then due) have been paid and satisfied in full in cash, all Letters of Credit have been terminated or expired (or been cash collateralized), all LC Disbursements have been reimbursed and the Commitments terminated, each Credit Party will, and will cause each of its Subsidiaries (other than the Excluded Subsidiaries) to:

 

SECTION 8.1      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, 2025), 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 March 31, 2025), 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 8.2      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 8.1(a) or (b), commencing with the financial statements for the fiscal quarter ended March 31, 2025, 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 March 31, 2025, the Borrower’s reasonably detailed calculations of Excess Cash Flow (to the extent applicable for such fiscal quarter) 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 8.1(a) or (b) or Section 8.2(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 13.1; 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 8.1(a) and (b) and 8.2(c) shall be deemed satisfied upon the 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 Sections.

 

 

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 8.1(a) and 8.1(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 8.3      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 8.3 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 8.3(a) shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached.

 

 

SECTION 8.4      Preservation of Corporate Existence and Related Matters. Except as permitted by Section 9.4, 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 8.5      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 8.6      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 8.19) 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 8.7      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 8.8      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 8.9      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 8.10      Environmental Laws. In addition to and without limiting the generality of Section 8.9, (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 8.11      Compliance with ERISA. In addition to and without limiting the generality of Section 8.9, (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 8.12      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 8.13           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 8.1(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 8.14           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 8.14(d) below or (ii) subject to clause (f) of this Section 8.14, 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 8.14(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 6.1 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 6.1 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 8.14(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 8.14(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 8.14 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 8.14(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 8.14(d)(ii).

 

SECTION 8.15           Use of Proceeds.

 

(a)            The Borrower shall use the proceeds of the Initial Term Loans, together with the proceeds of the Senior Notes, (i) to consummate the Original Credit Agreement Refinancing, (ii) to pay fees and expenses incurred in connection with the Transactions and (iii) for general corporate purposes.

 

(b)           The Borrower shall use the proceeds of the Revolving Credit Facility for general corporate purposes and working capital.

 

(c)            The Borrower shall use the proceeds of any Incremental Term Loan and any Incremental Revolving Credit Facility Increase as permitted pursuant to Section 5.13, as applicable.

 

SECTION 8.16           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 8.17           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 ensure 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 8.18           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; (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 8.19           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 8.19, in each case within the time limits specified on such Schedule 8.19.

 

ARTICLE IX

 

NEGATIVE COVENANTS

 

Until all of the Obligations (other than contingent, indemnification obligations not then due) have been paid and satisfied in full in cash, all Letters of Credit have been terminated or expired (or have been cash collateralized), all LC Disbursements have been reimbursed and the Commitments terminated, the Borrower and its Subsidiaries (other than, except with respect to Section 9.16, Excluded Subsidiaries) will not:

 

SECTION 9.1         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 9.1; 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) $100,000,000 and (ii) 30.0% 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 9.3, 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 Net 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 9.1 (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 9.1); 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, Agency Repurchase 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 Net 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 9.1 in an aggregate principal amount not to exceed the greater of (i) $130,000,000 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;

 

(r)            Incremental Equivalent Debt; and

 

(s)            Indebtedness incurred pursuant to the Senior Notes and the other Senior Notes Documents in an aggregate principal amount not to exceed $400,000,000.

 

SECTION 9.2             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 (including Liens in favor of the Swingline Lender and/or the Issuing Banks, as applicable, on cash collateral granted pursuant to the Loan Documents);

 

(b)            Liens in existence on the Closing Date and described on Schedule 9.2, 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 9.1(c) (solely to the extent that such Liens were in existence on the Closing Date and described on Schedule 9.2)); 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 9.1(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 11.1(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 9.1(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 or Agency Repurchase Indebtedness permitted pursuant to Section 9.1(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) $130,000,000 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 9.3              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)            Investments existing on the Closing Date in Subsidiaries existing on the Closing Date;

 

(i)            Investments existing on the Closing Date (other than Investments in Subsidiaries existing on the Closing Date) and described on Schedule 9.3;

 

(ii)           Investments made after the Closing Date by any Credit Party in any other Credit Party; and

 

(iii)          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) $162,500,000 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 9.2;

 

(e)            Hedge Agreements permitted pursuant to Section 9.1;

 

(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 $25,000,000 (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 9.6;

 

(j)             Guarantees permitted pursuant to Section 9.1;

 

(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 Net Corporate 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 9.3 in an aggregate amount at any time outstanding not to exceed the greater of (i) $85,000,000 and (ii) 25.0% 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 9.3, 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 9.4             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 8.14 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 9.3(g)); provided that the continuing or surviving entity shall comply with Section 8.14 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 9.3(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 9.5 (other than clause (e) thereof).

 

SECTION 9.5             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 4.4(b) are complied with in connection therewith;

 

(e)            Assets Dispositions in connection with transactions permitted by Section 9.4;

 

(f)            Asset Dispositions of Mortgage Loans and real estate 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 4.4 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 9.5; 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 4.4(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 9.14 on a Pro Forma Basis.

 

SECTION 9.6             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 $50,000,000 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 Net Corporate Leverage Ratio will not exceed 2.00 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 Restricted Payment;

 

 

(f)             the Borrower may make additional Restricted Payments in an amount not to exceed $125,000,000 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 9.9(b)(vi), the greater of (x) $85,000,000 and (y) and 25.0% 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 9.7             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 9.1, 9.3, 9.4, 9.5, 9.6 and 9.13;

 

(ii)            transactions existing on the Closing Date and described on Schedule 9.7;

 

(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 9.8         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 9.9         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 9.1(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 9.1(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 Net Corporate Leverage Ratio will not exceed 2.00 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 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 9.6(g), the greater of (x) $85,000,000 and (y) and 25.0% 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 9.10           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 9.1(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 or Agency Repurchase 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 9.1(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 9.5) 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, Agency Repurchase 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 9.11           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 9.12           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 10.4, (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 9.13           [Reserved].

 

SECTION 9.14           Financial Covenant – Asset Coverage Ratio. Beginning with the fiscal quarter ended March 31, 2025, permit the Asset Coverage Ratio as of the last day of any Test Period to be less than 1.50 to 1.00.

 

SECTION 9.15           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 9.16           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 9.7 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.

 

SECTION 9.17           Outbound Investment Rules. The Borrower will not, and will not permit any of its Subsidiaries to, (a) be or become a “covered foreign person”, as that term is defined in the Outbound Investment Rules, or (b) engage, directly or indirectly, in (i) a “covered activity” or a “covered transaction”, as each such term is defined in the Outbound Investment Rules, (ii) any activity or transaction that would constitute a “covered activity” or a “covered transaction”, as each such term is defined in the Outbound Investment Rules, if the Borrower were a U.S. Person or (iii) any other activity that would cause the Administrative Agent, any Lender or any Issuing Bank to be in violation of the Outbound Investment Rules or cause the Administrative Agent, any Lender or any Issuing Bank to be legally prohibited by the Outbound Investment Rules from performing under this Agreement.

 

ARTICLE X

 

SPECIAL PROVISIONS REGARDING AGENCY MATTERS

 

To induce the Administrative Agent, the Lenders and the Issuing Banks to enter into this Agreement and to induce the Lenders and the Issuing Banks to make Extensions of Credit, 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, all Letters of Credit have been terminated or expired (or have been cash collateralized), all LC Disbursements have been reimbursed and the Commitments terminated it shall cause the following to occur:

 

 

SECTION 10.1           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 10.2           Special Representations, Warranties and Covenants Concerning Agency Agreements.

 

(a)            Without limiting the provisions of Sections 7.12 and 8.12, 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.

 

(b)            Without limiting the provisions of Section 8.12, 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 10.3           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 11.4.

 

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 10.3 are in addition to, and not in limitation of, the provisions of Section 10.2 and/or the provisions of the Collateral Agreement.

 

SECTION 10.4           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 the Secured Parties) in the respective Agency Collateral relating to the respective Agency Designated Loans under the Collateral Agreement, each of Credit Parties, the Administrative Agent, each of the Lenders and each of the Issuing Banks 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 the Secured Parties) in the Fannie Mae Collateral relating to the Fannie Mae Designated Loans under the Collateral Agreement;

 

 

(ii)           Notwithstanding anything to the contrary contained in this Agreement, the Collateral Agreement or any other documents executed in connection with this Agreement or the Collateral Agreement, in no event shall (i) any Incremental Term Loans or Incremental Revolving Credit Facility Increases be advanced to the Borrower without the prior written consent of Fannie Mae, (ii) the aggregate amount of Term Loans and Refinancing Term Loans taking together exceed the aggregate amount of up to $450,000,000 (but together with the Senior Notes not to exceed $850,000,000) without the prior written consent of Fannie Mae, (iii) the aggregate amount of the Revolving Credit Facility and Replacement Revolving Credit Facilities taken together exceed $50,000,000 without the prior written consent of Fannie Mae, and/or (iv) the aggregate principal amount of Senior Notes exceed up to $450,000,000 (but together with the Term Loans not to exceed $850,000,000) without the prior written consent of Fannie Mae; and

 

(iii)          In providing its Agency Consent, Fannie Mae is relying fully, and such Agency Consent is conditioned, upon the terms and conditions of this Section 10.4(a), Section 9.12, Section 11.7, the final paragraph of Section 13.1(a), the final paragraph of Section 13.2, and Section 13.26 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 the Secured Parties) 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 10.4(b), Section 9.12 and Section 11.8 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 the Secured Parties) 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 10.4(c), Section 9.12, and Section 11.9 hereof, and Section 8.03 of the Collateral Agreement.

 

 

ARTICLE XI

 

DEFAULT AND REMEDIES

 

SECTION 11.1           Events of Default. Each of the following shall constitute an Event of Default:

 

(a)            Default in Payment of Principal of Loans and Reimbursement Obligations. The Borrower or any other Credit Party shall default in any payment of principal of any Loan or Reimbursement Obligations when and as due (whether at maturity, by reason of acceleration or otherwise) or fail to provide cash collateral pursuant to Section 3.10.

 

(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 Loan or Reimbursement Obligation or the payment of any other Obligation (other than as set forth in Section 11.1(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 8.3(a) or 8.14 (only with respect to the Borrower) or Article IX.

 

(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 11.1) 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 Loans or any Reimbursement Obligation, 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 Loans or any Reimbursement Obligation, 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 (A) become due prior to its stated maturity (any applicable grace period having expired) or (B) be cash collateralized.

 

 

(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 11.2           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 Credit Facility. Terminate the Commitments and declare the principal of and interest on the Loans and the Reimbursement Obligations at the time outstanding and all other amounts owed to the Lenders and to the Administrative Agent under this Agreement or any of the other Loan Documents (including all LC Exposures, whether or not the beneficiaries of the then-outstanding Letters of Credit shall have presented or shall be entitled to present the documents required thereunder) 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 Credit Facility and any right of the Borrower to request borrowings or Letters of Credit thereunder; provided, that upon the occurrence of an Event of Default specified in Section 11.1(i) or (j), the Credit 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)            Letters of Credit. With respect to all Letters of Credit with respect to which presentment for honor shall not have occurred at the time of an acceleration pursuant to Section 11.2(a), demand that the Borrower shall at such time deposit in a Collateral Account opened by the Administrative Agent an amount equal to the Minimum Collateral Amount of the aggregate then undrawn and unexpired amount of such Letter of Credit. Amounts held in such Collateral Account shall be applied by the Administrative Agent to the payment of drafts drawn under such Letters of Credit, and the unused portion thereof after all such Letters of Credit shall have expired or been fully drawn upon, if any, shall be applied to repay the other Secured Obligations in accordance with Section 11.4. After all such Letters of Credit shall have expired or been fully drawn upon, the Reimbursement Obligation shall have been satisfied and all other Secured Obligations shall have been paid in full, the balance, if any, in such Collateral Account shall be returned to the Borrower.

 

(c)            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 11.3           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 11.2 for the benefit of all the Secured Parties; 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 Issuing Banks or the Swingline Lender from exercising the rights and remedies that inure to its benefit (solely in its capacity as an Issuing Bank or Swingline Lender, as the case may be) hereunder and under the other Loan Documents, (iii) any Lender from exercising setoff rights in accordance with Section 13.4 (subject to the terms of Section 5.6), or (iv) 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 11.2 and (B) in addition to the matters set forth in clauses (ii), (iii) and (iv) of the preceding proviso and subject to Section 5.6, 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 11.4           Crediting of Payments and Proceeds. In the event that the Obligations have been accelerated pursuant to Section 11.2 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 (other than Commitment Fees and Letter of Credit fees payable to the Revolving Credit Lenders), indemnities and other amounts (other than principal and interest) payable to the Lenders, the Issuing Banks and the Swingline Lender (but excluding any amounts owing to Hedge Banks or Cash Management Banks in their capacities as such) under the Loan Documents, including attorneys’ fees, ratably among the Lenders, the Issuing Banks and the Swingline Lender 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 Commitment Fees, Letter of Credit fees payable to the Revolving Credit Lenders and interest on the Loans and Reimbursement Obligations, ratably among the Lenders, the Issuing Banks and the Swingline Lender 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 Loans and Reimbursement Obligations and payment obligations then owing under Secured Hedge Agreements and Secured Cash Management Agreements and to cash collateralize any LC Exposures then outstanding, 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;

 

Fifth, to the payment in full of all other Secured Obligations, in each case ratably among the Administrative Agent, the Lenders, the Issuing Banks and the Swingline Lender based upon the respective aggregate amounts of all such Secured Obligations owing to them in accordance with the respective amounts thereof then due and payable; 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 XII for itself and its Affiliates as if a “Lender” party hereto.

 

SECTION 11.5           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 Loan or LC Exposure 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 Loans, LC Disbursements 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, the Issuing Banks and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the Issuing Banks and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the Issuing Banks and the Administrative Agent under Sections 5.3 and 13.3) 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 and each Issuing Bank 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 and the Issuing Banks, 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 5.3 and 13.3.

 

SECTION 11.6           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 13.2.

 

(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 11.7           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 10.4(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 11.8           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 10.4(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 11.9           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 10.4(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 XII

 

THE ADMINISTRATIVE AGENT

 

SECTION 12.1           Appointment and Authority.

 

(a)            Each of the Lenders and each Issuing Bank 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 XII are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Banks, 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) and each of the Issuing Banks hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and such Issuing Bank or such 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 XII 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 XII and XIII (including Section 13.3, 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 12.2           Rights as a Lender and an Issuing Bank. 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 in its capacity as an Issuing Bank as any other Issuing Bank and may exercise the same as though it were not the Administrative Agent and the term “Lender,” “Lenders,” “Issuing Bank” or “Issuing Banks” 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 or the Issuing Banks.

 

 

SECTION 12.3           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 13.2 and Section 11.2) 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, a Lender or an Issuing Bank.

 

(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, (v) the satisfaction of any condition set forth in Article VI or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or (iv) the utilization of any Issuing Bank’s Letter of Credit Commitment (it being understood and agreed that each Issuing Bank shall monitor compliance with its own Letter of Credit Commitment without any further action by the Administrative Agent). Notwithstanding anything herein to the contrary, the Administrative Agent shall not be liable for, or be responsible for any Liabilities, costs or expenses suffered by the Borrower, any Subsidiary, any Lender or any Issuing Bank as a result of any determination of the Revolving Credit Exposure, any of the component amounts thereof or any portion thereof attributable to each Lender or Issuing Bank.

 

 

SECTION 12.4           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 Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. 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 12.5           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 XII 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 Credit 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 12.6           Resignation of Administrative Agent.

 

(a)            The Administrative Agent may at any time give notice of its resignation to the Lenders, the Issuing Banks 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 and the Issuing Banks, 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 Secured Parties 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 and each Issuing Bank 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 XII and Section 13.3 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.

 

(d)            Any resignation by, or removal of, JPMorgan as Administrative Agent pursuant to this Section 12.6 shall also constitute its resignation as an Issuing Bank and the Swingline Lender. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, (i) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Bank, if in its sole discretion it elects to, and Swingline Lender, (ii) the retiring Issuing Bank and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (iii) the successor Issuing Bank, if in its sole discretion it elects to, shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring Issuing Bank to effectively assume the obligations of the retiring Issuing Bank with respect to such Letters of Credit.

 

SECTION 12.7           Non-Reliance on Administrative Agent and Other Lenders or Issuing Banks. Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or Issuing Bank or any of their respective 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 and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or Issuing Bank or any of their respective 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 and each Issuing Bank 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 or any Issuing Bank. Without limiting the generality of the foregoing or any other provision of this Article XII each of the Lenders and each of the Issuing Banks 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) and each Issuing Bank (and each assignee of an Issuing Bank 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 Increase) on behalf of such Lender or such Issuing Bank (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 or an Issuing Bank 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 12.7.

 

 

SECTION 12.8           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, a Lender or an Issuing Bank hereunder.

 

SECTION 12.9           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) and each of the Issuing Banks 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 termination of the Revolving Credit Commitments and 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) and the expiration or termination of all Letters of Credit (other than Letters of Credit which have been cash collateralized in accordance with the terms hereof or as to which other arrangements satisfactory to the Administrative Agent and the applicable Issuing Bank shall have been made), (B) that is sold or otherwise disposed of or to be sold or otherwise disposed of to a Person that is not a Credit Party, 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 13.2;

 

(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 9.2(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 12.9. In each case as specified in this Section 12.9, 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 12.9), 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 Subsidiary Guarantor from its obligations under the Collateral Agreement, in each case in accordance with the terms of the Loan Documents and this Section 12.9. In the case of any such sale, transfer or disposal of any property constituting Collateral to a Person that is not a Credit Party, in a transaction constituting an Asset Disposition permitted pursuant to Section 9.5, 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. Any document executed and delivered by the Administrative Agent pursuant to this Section 12.9 shall be without recourse to, or representation or warranty by, the Administrative Agent.

 

SECTION 12.10         Secured Hedge Agreements and Secured Cash Management Agreements. No Cash Management Bank or Hedge Bank that obtains the benefits of Section 11.4 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 XII 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 12.11         Acknowledgement of Lenders and Issuing Banks.

 

(a)            Each Lender and each Issuing Bank 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 or such Issuing Bank, in each case, 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 and each Issuing Bank 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 Issuing Bank, 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 or an Issuing Bank, 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 or such Issuing Bank, 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 and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent, the Arranger or any other Lender or Issuing Bank, 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 and each Issuing Bank, 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 or an Issuing Bank 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, the Lenders or the Issuing Banks on the Closing Date.

 

(c)            (i) Each Lender and each Issuing Bank hereby agrees that (x) if the Administrative Agent notifies such Lender or such Issuing Bank that the Administrative Agent has determined in its sole discretion that any funds received by such Lender or such Issuing Bank 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 or such Issuing Bank (whether or not known to such Lender or such Issuing Bank, as applicable), and demands the return of such Payment (or a portion thereof), such Lender or such Issuing Bank shall promptly, but in no event later than one (1) Business Day thereafter (or such later date as the Administrative Agent may, in its sole discretion, agree in writing), 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 (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender or such Issuing Bank 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 or such Issuing Bank 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 or any Issuing Bank under this Section 12.11(c) shall be conclusive, absent manifest error.

 

(ii)            Each Lender and each Issuing Bank 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 and each Issuing Bank 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 or such Issuing Bank 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 (1) Business Day thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), 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 (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender or such Issuing Bank 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.

 

 

(iii)           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 or any Issuing Bank that has received such Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights of such Lender or such Issuing Bank 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.

  

(iv)           Each party’s obligations under this Section 12.11(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 or an Issuing Bank, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document.

 

(d)            The Lenders and Issuing Banks acknowledge that there may be a constant flow of information (including information which may be subject to confidentiality obligations in favor of the Credit Parties) between the Credit Parties and their Affiliates, on the one hand, and JPMorgan Chase Bank, N.A. and its Affiliates, on the other hand. Without limiting the foregoing, the Credit Parties or their Affiliates may provide information, including updates to previously provided information to JPMorgan Chase Bank, N.A. and/or its Affiliates acting in different capacities, including as a Lender or an Issuing Bank, lead bank, arranger or potential securities investor, independent of such entity’s role as administrative agent hereunder. The Lenders and Issuing Banks acknowledge that neither JPMorgan Chase Bank, N.A. nor its Affiliates shall be under any obligation to provide any of the foregoing information to them. Notwithstanding anything to the contrary set forth herein or in any other Loan Document, except for notices, reports and other documents expressly required to be furnished to the Lenders or the Issuing Banks by the Administrative Agent herein, the Administrative Agent shall not have any duty or responsibility to provide, and shall not be liable for the failure to provide, any Lender or any Issuing Bank, as applicable, with any credit or other information concerning the Loans, the Lenders, the Issuing Banks, the business, prospects, operations, property, financial and other condition or creditworthiness of any of the Credit Parties or any of their respective Affiliates that is communicated to, obtained by, or in the possession of, the Administrative Agent or any of its Affiliates in any capacity, including any information obtained by the Administrative Agent in the course of communications among the Administrative Agent and any Credit Party, any Affiliate thereof or any other Person. Notwithstanding the foregoing, subject to any confidentiality provisions in agreements between any Credit Party and the Administrative Agent, any such information may (but shall not be required to) be shared by the Administrative Agent with one or more Lenders or one or more Issuing Banks, or any formal or informal committee or ad hoc group of such Lenders or such Issuing Banks, as applicable, including at the direction of a Credit Party.

 

SECTION 12.12         Borrower Communications.

 

(a)            The Administrative Agent, the Lenders and the Issuing Banks agree that the Borrower may, but shall not be obligated to, make any Borrower Communications to the Administrative Agent through an electronic platform chosen by the Administrative Agent to be its electronic transmission system (the “Approved Borrower Portal”).

 

(b)            Although the Approved Borrower Portal and its primary web portal are secured with generally-applicable security procedures and policies implemented or modified by the Administrative Agent from time to time (including, as of the Closing Date, a user ID/password authorization system), each of the Lenders, each of the Issuing Banks and the Borrower acknowledges and agrees that the distribution of material through an electronic medium is not necessarily secure, that the Administrative Agent is not responsible for approving or vetting the representatives or contacts of the Borrower that are added to the Approved Borrower Portal, and that there may be confidentiality and other risks associated with such distribution. Each of the Lenders, each of the Issuing Banks and the Borrower hereby approves distribution of Borrower Communications through the Approved Borrower Portal and understands and assumes the risks of such distribution.

 

 

(c)            THE APPROVED BORROWER PORTAL IS PROVIDED “AS IS” AND “AS AVAILABLE”. THE APPLICABLE PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER COMMUNICATION, OR THE ADEQUACY OF THE APPROVED BORROWER PORTAL AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE APPROVED BORROWER PORTAL AND THE BORROWER COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE APPLICABLE PARTIES IN CONNECTION WITH THE BORROWER COMMUNICATIONS OR THE APPROVED BORROWER PORTAL. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT, THE ARRANGER OR ANY OF THEIR RESPECTIVE RELATED PARTIES (COLLECTIVELY, “APPLICABLE PARTIES”) HAVE ANY LIABILITY TO ANY CREDIT PARTY, ANY LENDER, ANY ISSUING BANK OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND, INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWER’S TRANSMISSION OF BORROWER COMMUNICATIONS THROUGH THE INTERNET OR THE APPROVED BORROWER PORTAL.

 

(d)            Each of the Lenders, each of the Issuing Banks and the Borrower agrees that the Administrative Agent may, but (except as may be required by applicable law) shall not be obligated to, store the Borrower Communications on the Approved Borrower Portal in accordance with the Administrative Agent’s generally applicable document retention procedures and policies.

 

(e)            Nothing herein shall prejudice the right of the Borrower to give any notice or other communication pursuant to any Loan Document in any other manner specified in such Loan Document.

 

ARTICLE XIII

 

MISCELLANEOUS

 

SECTION 13.1           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 telecopy or e-mail, as follows:

 

If to the Borrower:

 

Walker & Dunlop, Inc.

7272 Wisconsin Avenue, Suite 1300

Bethesda, MD 20814

 

Attention of: Issa Bannourah
Telephone No.: (301) 202-3298
Facsimile No.: (301) 500-1223
E-mail: ibannourah@walkerdunlop.com

 

 

With copies to:

 

Walker & Dunlop, Inc.

7272 Wisconsin Avenue, Suite 1300

Bethesda, MD 20814

 

Attention of: Daniel J. Groman
Telephone No.: (301) 202-3277
Facsimile No.: (301) 500-1223
E-mail: DGroman@walkerdunlop.com

 

and

 

Morgan, Lewis & Bockius LLP

2222 Market Street

Philadelphia, Pennsylvania 19103-2921

 

Attention of: Michael J. Pedrick
Telephone No.: (215) 963-4808
Facsimile No.: (215) 963-5001
E-mail: michael.pedrick@morganlewis.com

 

If to JPMorgan as Administrative Agent from the Borrower, to the address or addresses separately provided to the Borrower.

 

If to JPMorgan as Administrative Agent from the Lenders:

 

JPMorgan Chase Bank, N.A.

131 S Dearborn St, Floor 04

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 to any Issuing Bank, to it at the address separately provided to the Borrower.

 

If to the Swingline Lender, at the address separately provided to the Borrower.

 

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 communication, a Platform or an Approved Borrower Portal, 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 13.1(a) relating to (i) any of Section 9.12, Section 10.4(a), Section 11.7, or Section 13.26 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 Increase, (iii) any notice of Default or Event of Default, (iv) any amendment, modification, waiver, supplement or other change to any of Section 9.12, Section 10.4(a), Section 11.7, or Section 13.26 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 Borrower, any other Credit Party, the Lenders, the Administrative Agent and the Issuing Banks hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites), using a Platform or an Approved Borrower Portal (as applicable), in each case, pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices pursuant to Article II, III or IV unless otherwise agreed by the Administrative Agent and the applicable Lender or Issuing Bank. 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 13.1(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 Loans will be disbursed and Letters of Credit requested.

 

(d)            Change of Address, Etc. Any party hereto may change its address or telecopy 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 and the Issuing Banks 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. Each of the Lenders, Issuing Bank, any Credit Party acknowledge and agree that the distribution of material though an electronic medium is not necessarily secure, that the Administrative Agent is not responsible for approving or vetting the representatives or contacts of any Lender that are added to the Platform, and that there may be confidentiality and other risks associate with such distribution. Each of the Lenders, Issuing Bank and the Credit Parties hereby approve distribution of the Borrower Materials through the Platform and understands and assumes the risks of such distribution. 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, any Issuing Bank 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, any Issuing Bank 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 13.2           Amendments, Waivers and Consents. Except as set forth below or as specifically provided in any Loan Document (including Sections 5.8(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 Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 11.2) or the amount of 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 4.4(b) shall only require the consent of the Required Term Loan 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 Loan or Reimbursement Obligation, or (subject to clause (iv) of the proviso set forth in the paragraph below) any fees or other amounts payable hereunder, or change the manner of computation of any financial ratio (including any change in any applicable defined term) used in determining the Applicable Margin that would result in a reduction of any interest rate on any Loan or any fee 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 5.1(b) during the continuance of an Event of Default;

 

(d)            change Section 5.6, Section 5.14(a)(ii) or Section 11.4 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 4.4(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 13.2, change any provision of this Section 13.2 or reduce the percentages specified in the definitions of “Required Lenders,” “Required Revolving Credit Lenders” or “Required Term Loan 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 9.4), 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 12.9), 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 12.9 or as otherwise specifically permitted or contemplated in this Agreement or the applicable Security Document) without the written consent of each Lender;

 

 

(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; or

 

(k)            amend or otherwise modify Section 6.2 solely with respect to any Extension of Credit under the Revolving Credit Commitments, waive any representation made or deemed made in connection with any Extension of Credit under the Revolving Credit Commitments, waive or consent to any Default or Event of Default relating solely to the Revolving Credit Loans and Revolving Credit Commitments (including Defaults and Events of Default relating to the foregoing), in each case, without the written consent of the Required Revolving Credit Lenders; provided, however, that the amendments, supplements, modifications, waivers and consents described in this clause (k) shall not require the consent of any Lenders other than the Required Revolving Credit Lenders;

 

provided further, that (i) no amendment, waiver or consent shall, unless in writing and signed by each affected Issuing Bank in addition to the Lenders required above, affect the rights or duties of such Issuing Bank under this Agreement or any Letter of Credit Agreement relating to any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by the Swingline Lender in addition to the Lenders required above, affect the rights or duties of the Swingline Lender under this Agreement; (iii) 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; (iv) any waiver, amendment or modification of this Agreement that by its terms affects the rights or duties under this Agreement of Lenders holding Loans or Commitments of a particular Class (but not the Lenders holding Loans or 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 13.2 if such Class of Lenders were the only Class of Lenders hereunder at the time; (v) each Letter of Credit Agreement may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto; provided that a copy of such amended Letter of Credit Agreement, cash collateral agreement or other document, as the case may be, shall be promptly delivered to the Administrative Agent upon such amendment or waiver; (vi) 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 (vii) 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 5.8(c) in accordance with the terms of Section 5.8(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 Commitments 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 13.2) 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 5.13, 5.15 5.16 and 5.17 (including, without limitation, as applicable, (1) to permit the Incremental Increases, Extended Term Loans, Extended Revolving Credit Loans, Refinancing Term Loans or Replacement Revolving Credit Facilities, as applicable, to share ratably in the benefits of this Agreement and the other Loan Documents, and (2) to include an Incremental Increase, Extended Term Loans, Extended Revolving Credit Loans, Refinancing Term Loans or Replacement Revolving Credit Facility, as applicable, in any determination of (i) Required Lenders or Required Revolving Credit Lenders, as applicable, (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 Commitment or any increase in any Lender’s Commitment Percentage, 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 9.12, Section 10.4(a), Section 11.7, the final paragraph of Section 13.1(a), this final paragraph of this Section 13.2 or Section 13.26 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, the Lenders and the Issuing Banks 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 13.3           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 Credit 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 any Issuing Bank in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and all reasonable out of pocket expenses incurred by the Administrative Agent, any Issuing Bank or any Lender (including the fees, charges and disbursements of (x) any counsel for the Administrative Agent, any Issuing Bank or any Lender and (y) any counsel for the Lenders or the Issuing Banks, 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 or the Issuing Banks plus one local counsel to the Lenders or the Issuing Banks 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 or Issuing Banks, similarly situated), in connection with the enforcement, collection or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section 13.3, or (B) in connection with the Loans made or Letters of Credit issued hereunder, including all such out of pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.

 

(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 Issuing Bank, 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 Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by any Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (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 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 13.3(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 13.3 to be paid by it to the Administrative Agent (or any sub-agent or attorney-in-fact thereof), the Arranger, any Issuing Bank, the Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), the Arranger, such Issuing Bank, the Swingline Lender 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 Total Credit Exposure at such time, or if the Total Credit Exposure have been reduced to zero, then based on such Lender’s share of the Total Credit Exposure immediately prior to such reduction) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); provided that with respect to such unpaid amounts owed to any Issuing Bank or the Swingline Lender solely in its capacity as such, only the Revolving Credit Lenders shall be required to pay such unpaid amounts, such payment to be made severally among them based on such Revolving Credit Lenders’ Revolving Credit Commitment Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought or, if the Revolving Credit Commitment has been reduced to zero as of such time, determined immediately prior to such reduction); provided, further, that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent), the Arranger, such Issuing Bank or the Swingline Lender in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent), the Arranger, such Issuing Bank or the Swingline Lender in connection with such capacity. The obligations of the Lenders under this clause (c) are subject to the provisions of Section 5.7.

 

(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, each Issuing Bank, the Swingline 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 Loan or Letter of Credit 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 13.3 shall be payable promptly after demand therefor.

 

(f)            Survival. Each party’s obligations under this Section 13.3 shall survive the termination of the Loan Documents and payment of the obligations hereunder.

 

 

SECTION 13.4           Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender, each Issuing Bank, the Swingline Lender and each of their 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, such Issuing Bank, the Swingline 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, such Issuing Bank or the Swingline Lender or any of their respective Affiliates, irrespective of whether or not such Lender, such Issuing Bank or the Swingline 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, such Issuing Bank, the Swingline 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 11.4 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, the Issuing Banks, the Swingline Lender 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, each Issuing Bank, the Swingline Lender and their respective Affiliates under this Section 13.4 are in addition to other rights and remedies (including other rights of setoff) that such Lender or their respective Affiliates may have. Each Lender, each Issuing Bank and the Swingline Lender agree 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 13.5           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, any Issuing Bank, the Swingline 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, any Issuing Bank or the Swingline 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 13.5. 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 13.1. Nothing in this Agreement will affect the right of any party hereto to serve process in any other manner permitted by Applicable Law.

 

SECTION 13.6           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 13.6.

 

SECTION 13.7           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 are 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 13.8           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 13.9           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 (including any Affiliate of an Issuing Bank that issues any Letter of Credit), 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, each Lender and each Issuing Bank and no Lender or Issuing Bank 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 13.9, (ii) by way of participation in accordance with the provisions of paragraph (d) of this Section 13.9 or (iii) by way of pledge or assignment of a security interest subject to the restrictions of paragraph (e) of this Section 13.9 (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 (including any Affiliate of an Issuing Bank that issues any Letter of Credit), their respective successors and assigns permitted hereby, Participants to the extent provided in paragraph (d) of this Section 13.9 and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Banks 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 Revolving Credit Commitment, participations in Letters of Credit and the Loans at the time owing to it); provided that, in each case with respect to any Credit Facility, 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 Commitment and/or the Loans at the time owing to it (in each case, with respect to any Credit Facility) or contemporaneous assignments to related Approved Funds that equal at least the amount specified in paragraph (b)(i)(B) of this Section 13.9 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 13.9, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the applicable Commitment is not then in effect, the principal outstanding balance of the 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 $5,000,000 (the “Minimum Revolver Transfer Amount”), in the case of any assignment in respect of the Revolving Credit Facility, or $1,000,000 (the “Minimum Term Loan Transfer Amount” and, together with the Minimum Revolver Transfer Amount, each, a “Minimum Transfer Amount”), in the case of any assignment in respect of the Term Loan Facility, 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; provided, further, that any such assignment shall be aggregated amongst Affiliates and Approved Funds for the purpose of determining if the Minimum Transfer Amount is met.

 

(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 Loan or the Commitment 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 13.9 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 or (y) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; 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;

 

 

(B)          the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect of (i) the Revolving Credit Facility if such assignment is to a Person that is not a Lender with a Revolving Credit Commitment, an Affiliate of such Lender or an Approved Fund with respect to such Lender or (ii) the Term Loans to a Person who is not a Lender, an Affiliate of a Lender or an Approved Fund; and

 

(C)          the consents of the Issuing Banks and the Swingline Lender (such consents not to be unreasonably withheld or delayed) shall be required for any assignment in respect of the Revolving Credit Facility.

 

(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 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 13.9(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 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, the Issuing Banks, the Swingline Lender and each other Lender hereunder (and interest accrued thereon), and (B) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swingline Loans in accordance with its Revolving Credit Commitment Percentage. 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 13.9, 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 5.8, 5.9, 5.10, 5.11 and 13.3 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 13.9 (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 13.9(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 Commitments of, and principal amounts of (and related interest on) the Loans and LC Disbursements 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, the Issuing Banks and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower, any Issuing Bank 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, the Administrative Agent, the Issuing Banks or the Swingline Lender, 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 Commitment and/or the 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, the Issuing Banks 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 13.3(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 13.2(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 5.9, 5.10 and 5.11 (subject to the requirements and limitations therein, including the requirements under Section 5.11(g) (it being understood that the documentation required under Section 5.11(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 13.9; provided that such Participant (A) shall be subject to the provisions of Section 5.12 as if it were an assignee under paragraph (b) of this Section 13.9; and (B) shall not be entitled to receive any greater payment under Sections 5.10 or 5.11, 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 5.12(b) with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 13.4 as though it were a Lender; provided that such Participant agrees to be subject to Section 5.6 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 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, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and 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 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 F, 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 13.10         Treatment of Certain Information; Confidentiality. Each of the Administrative Agent, the Lenders and the Issuing Banks 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 13.10, 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 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 Credit 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 Credit 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 13.10 or (ii) becomes available to the Administrative Agent, any Lender, any Issuing Bank 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, any Lender or any Issuing Bank or in accordance with the Administrative Agent’s, any Lender’s or any Issuing Bank’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, such Lender or such Issuing Bank 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 13.10, “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, any Issuing Bank 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 13.10 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.

 

 

For the avoidance of doubt, nothing in this Section 13.10 shall prohibit any Person from voluntarily disclosing or providing any Information within the scope of this confidentiality provision to any governmental, regulatory or self-regulatory organization (any such entity, a “Regulatory Authority”) to the extent that any such prohibition on disclosure set forth in this Section 13.10 shall be prohibited by the laws or regulations applicable to such Regulatory Authority.

 

SECTION 13.11         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 13.12         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 Commitments remain in effect or the Credit Facility has not been terminated.

 

SECTION 13.13         Survival.

 

(a)            All representations and warranties set forth in Articles VII and X 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 XIII 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 13.14         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 13.15         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, the Issuing Banks 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 13.16         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, any Issuing Bank, any Lender and/or the Arranger and the reductions of the Letter of Credit Commitment of any Issuing Bank, 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 6.1, 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 13.1), 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 Lender-Related Party 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 13.17         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, all Letters of Credit have been terminated or expired (or been cash collateralized) or otherwise satisfied in a manner acceptable to the applicable Issuing Bank and the 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 13.18         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 13.19         Independent Effect of Covenants. The Borrower expressly acknowledges and agrees that each covenant contained in Article VIII, IX or X 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 VIII, IX or X, 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 VIII, IX or X.

 

SECTION 13.20         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, Lenders or Issuing Banks additional rights shall not be deemed to be in conflict or inconsistent with this Agreement and shall be given full force and effect.

 

 

SECTION 13.21         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, the Lenders and the Issuing Banks, 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, the Lenders and the Issuing Banks 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, the Lenders or the Issuing Banks 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, any Lender or any Issuing Bank has advised or is currently advising the Borrower or any of its Affiliates on other matters) and none of the Administrative Agent, the Arranger, the Lenders or the Issuing Banks 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, the Lenders and the Issuing Banks 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, the Lenders or the Issuing Banks 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, the Lenders and the Issuing Banks 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, each Issuing Bank, 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, such Issuing Bank, the Arranger or such Affiliate thereof were not a Lender, Issuing Bank or Arranger or an Affiliate thereof (or an agent or any other person with any similar role under the Credit Facility) and without any duty to account therefor to any other Lender, any other Issuing Bank the Arranger, the Borrower or any Affiliate of the foregoing. Each Lender, each Issuing Bank, 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 Credit Facility or otherwise without having to account for the same to any other Lender, any other Issuing Bank, the Arranger, the Borrower or any Affiliate of the foregoing.

 

SECTION 13.22         Amendment and Restatement; No Novation. This Agreement constitutes an amendment and restatement of the Original Credit Agreement, effective from and after the Closing Date. The execution and delivery of this Agreement shall not constitute a novation of any indebtedness or other obligations owing to the Lenders or the Administrative Agent under the Original Credit Agreement based on facts or events occurring or existing prior to the execution and delivery of this Agreement. On the Closing Date, the credit facilities described in the Original Credit Agreement, shall be amended, supplemented, modified and restated in their entirety by the facilities described herein, and all loans and other obligations of the Borrower outstanding as of such date under the Original Credit Agreement, shall be deemed to be loans and obligations outstanding under the corresponding facilities described herein, without any further action by any Person.

 

Each Credit Party (i) reaffirms its obligations under the Loan Documents to which it is party, (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 the amendment and restatement of the Original Credit Agreement and, as applicable, the amendment and restatement or other modification of the other Loan Documents, including, without limitation, the Revolving Credit Loans and Letters of Credit and (iii) in the case of each Subsidiary Guarantor, ratifies and reaffirms its guaranty of the Secured Obligations pursuant to the Collateral Agreement, as amended and restated in connection herewith. 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 and restated or otherwise modified hereby or in connection herewith.

 

 

SECTION 13.23         Acknowledgement and Consent to Bail-In of Affected 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 Affected Financial Institution arising under any Loan Document may be subject to the Write-Down and Conversion Powers of the applicable 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 the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected 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 Affected Financial Institution, its parent entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or

 

(iii)          the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution Authority.

 

SECTION 13.24         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 Loans, the Letters of Credit, the 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 Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the 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 Loans, the Letters of Credit, the 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 Loans, the Commitments, this Agreement and any other Loan Documents (ii) may recognize a gain if it extended the Loans or the Commitments for an amount less than the amount being paid for an interest in the Loans or the 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 13.25         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 FDIC 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 13.26         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 9.12, Section 10.4(a), Section 11.7, the final paragraph of Section 13.1(a), the final paragraph of Section 13.2 or this Section 13.26 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 13.2) and the terms of the Fannie Mae Agreements.

 

SECTION 13.27         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 follow]

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed under seal by their duly authorized officers, all as of the day and year first written above.

 

	WALKER & DUNLOP, INC., as Borrower
	By:	/s/ Gregory A. Florkowski
	Name:	Gregory A. Florkowski
	Title:	Executive Vice President & Chief Financial Officer

 

Walker & Dunlop, Inc.

Amended and Restated Credit Agreement

Signature Page

 

 

	AGENTS AND LENDERS:
	JPMORGAN CHASE BANK, N.A., as Administrative Agent
	By:	/s/ Neil Laird Troeger
	Name:	Neil Laird Troeger
	Title:	Authorized Signatory

 

Walker & Dunlop, Inc.

Amended and Restated Credit Agreement

Signature Page

 

 

	JPMORGAN CHASE BANK, N.A., as a Revolving Credit Lender, Term Loan Lender, Issuing Bank and Swingline Lender
	By:	/s/ Neil Laird Troeger
	Name:	Neil Laird Troeger
	Title:	Authorized Signatory

 

Walker & Dunlop, Inc.

Amended and Restated Credit Agreement

Signature Page

 

 

	BANK OF AMERICA, N.A., as a Revolving Credit Lender
	By:	/s/ David H. Craig
	Name:	David H. Craig
	Title:	Senior Vice President

 

Walker & Dunlop, Inc.

Amended and Restated Credit Agreement

Signature Page

 

 

Exhibit 10.2

 

Execution Version

 

AMENDED AND RESTATED GUARANTEE AND COLLATERAL AGREEMENT

 

dated as of

 

March 14, 2025

 

among

 

WALKER & DUNLOP, INC.,
as Borrower,

 

Certain Subsidiaries of WALKER & DUNLOP, INC., 

each as a Subsidiary Guarantor,

 

and

 

JPMORGAN CHASE BANK, N.A.,
as Administrative Agent 

 

 

TABLE OF CONTENTS

 

Page

 

ARTICLE 1.
DEFINITIONS
Section 1.01	Credit Agreement	1
Section 1.02	Other Defined Terms	2
Section 1.03	Effect of this Agreement	9
ARTICLE 2.
GUARANTEE
Section 2.01	Guarantee	10
Section 2.02	Amendments, etc. with respect to the Guaranteed Obligations	11
Section 2.03	Guarantee Absolute and Unconditional	12
Section 2.04	Reinstatement	13
Section 2.05	Payments	14
Section 2.06	Information	14
Section 2.07	Specified Guarantors	14
Section 2.08	Keepwell	14
ARTICLE 3.
PLEDGE OF SECURITIES
Section 3.01	Pledge	14
Section 3.02	Delivery of the Pledged Securities	15
Section 3.03	Representations, Warranties and Covenants	16
Section 3.04	Registration in Nominee Name; Denominations	18
Section 3.05	Voting Rights; Dividends and Interest	18
Section 3.06	Uniform Commercial Code Financing Statements, etc.	20
Section 3.07	Specified Ownership Interest Pledge	20
Section 3.08	Partnership/LLC Interests	20
ARTICLE 4.
SECURITY INTERESTS IN PERSONAL PROPERTY
Section 4.01	Security Interest	21
Section 4.02	Representations and Warranties	24
Section 4.03	Covenants	27
Section 4.04	Other Actions	30
Section 4.05	Covenants Regarding Patent, Trademark and Copyright Collateral	31
Section 4.06	Covenants Related to Agency Collateral and MSR Assets	32
Section 4.07	Deposit Accounts and Securities Accounts	33
ARTICLE 5.
REMEDIES
Section 5.01	Remedies upon Default	34

 

 

Page

 

Section 5.02	Application of Proceeds	36
Section 5.03	Grant of License To Use Intellectual Property	36
Section 5.04	Securities Act	37
Section 5.05	Agency Collateral	37
ARTICLE 6.
INDEMNITY, SUBROGATION AND SUBORDINATION
Section 6.01	Indemnity and Subrogation	37
Section 6.02	Contribution and Subrogation	38
Section 6.03	Subordination	38
ARTICLE 7.
MISCELLANEOUS
Section 7.01	Notices	38
Section 7.02	Waivers; Amendment	39
Section 7.03	Indemnification	39
Section 7.04	Successors and Assigns	39
Section 7.05	Survival of Agreement	40
Section 7.06	Counterparts; Effectiveness; Several Agreement; Other	40
Section 7.07	Severability	40
Section 7.08	Right of Set-Off	40
Section 7.09	Governing Law; Jurisdiction; Venue; Service of Process	41
Section 7.10	Waiver of Jury Trial	41
Section 7.11	Injunctive Relief	42
Section 7.12	Headings	42
Section 7.13	Security Interest Absolute	42
Section 7.14	Termination or Release	42
Section 7.15	Additional Subsidiaries	43
Section 7.16	Administrative Agent Appointed Attorney-in-Fact	44
Section 7.17	Further Assurances	44
Section 7.18	Administrative Agent	44
Section 7.19	Advice of Counsel, No Strict Construction	44
Section 7.20	Acknowledgements	44
Section 7.21	Amendment and Restatement; No Novation	45
Section 7.22	Secured Parties	45
ARTICLE 8.
SPECIAL PROVISIONS RESPECTING AGENCY COLLATERAL
Section 8.01	Special Fannie Mae Provisions	45
Section 8.02	Special Freddie Mac Provisions	53
Section 8.03	Special Ginnie Mae Provisions	61

 

 

Exhibits

 

	Form of:
Exhibit I	Supplement
Exhibit II	Grant of Security Interest in United States Trademarks
Exhibit III	Grant of Security Interest in United State Patents
Exhibit IV	Grant of Security Interest in United States Copyrights
Exhibit V	Fannie Mae Agency Consent
Exhibit VI	Freddie Mac Agency Consent
Exhibit VII	Applicable Investor Agency Consent
Schedules
Schedule I	Subsidiary Guarantors
Schedule II	Pledged Securities
Schedule III	Intellectual Property
Schedule IV	Commercial Tort Claims
Schedule V	Deposit Accounts
Schedule V.2	Excluded Accounts
Schedule VI	Securities Accounts

 

 

This AMENDED AND RESTATED GUARANTEE AND COLLATERAL AGREEMENT (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, this “Agreement”), dated as of March 14, 2025, among Walker & Dunlop, Inc., a Maryland corporation (the “Borrower”), certain Subsidiaries of the Borrower from time to time party hereto (each, a “Subsidiary Guarantor” and, collectively, the “Subsidiary Guarantors” and, together with the Borrower, the “Credit Parties” and sometimes, each such party, individually, a “Credit Party”) and JPMorgan Chase Bank, N.A., on behalf of itself and the other Lenders as the Administrative Agent (as defined and otherwise described in the Credit Agreement and so referred to herein).

 

The Borrower, the Guarantors (as defined in the Original Credit Agreement (as hereinafter defined)) from time to time party thereto, the Lenders (as defined in the Original Credit Agreement) from time to time party thereto, JPMorgan Chase Bank, N.A., in its capacity as administrative agent, and the other agents, arrangers and financial institutions party thereto are party to that certain Credit Agreement, dated as of December 16, 2021 (as amended, restated, amended and restated, supplemented or otherwise modified as of the date hereof, the “Original Credit Agreement”).

 

In connection with the Original Credit Agreement, the Borrower and certain of its Subsidiaries entered into that certain Guarantee and Collateral Agreement, dated as of December 16, 2021 (as amended, restated, amended and restated, supplemented or otherwise modified as of the date hereof, the “Existing Guarantee and Collateral Agreement”), in favor of the Administrative Agent.

 

Reference is made to the Amended and Restated Credit Agreement, dated as of the date hereof (as amended, amended and restated, waived, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among the Borrower, the lenders party thereto and the lenders who may become party thereto pursuant to the terms thereof (each, a “Lender” and, collectively, the “Lenders”) and the Administrative Agent, which amends and restates in its entirety the Original Credit Agreement. The Lenders have agreed to extend credit to the Borrower subject to the terms and conditions set forth in the Credit Agreement. The obligations of the Lenders to extend such credit and for the Issuing Banks to issue Letters of Credit are conditioned upon, among other things, the execution and delivery of this Agreement. The Cash Management Banks’ agreement to enter into and/or maintain one or more Secured Cash Management Agreements and the Hedge Banks’ agreement to enter into and/or maintain one or more Secured Hedge Agreements are conditioned upon, among other things, the execution and delivery of this Agreement. The Subsidiary Guarantors are affiliates of the Borrower, will derive substantial benefits from the extension of credit to the Borrower pursuant to the Credit Agreement and are willing to execute and deliver this Agreement, which amends and restates in its entirety the Existing Guarantee and Collateral Agreement, in order to induce the Lenders and the other Secured Parties to extend such credit. Accordingly, the parties hereto agree as follows:

 

ARTICLE 1.
DEFINITIONS

 

Section 1.01             Credit Agreement.

 

(a)            Capitalized terms used in this Agreement and not otherwise defined in this Agreement have the meanings specified in the Credit Agreement. All terms defined in the UCC and not defined in this Agreement have the meanings specified therein.

 

(b)            The rules of construction specified in the Credit Agreement also apply to this Agreement, mutatis mutandis.

 

 

Section 1.02             Other Defined Terms. As used in this Agreement, the following terms have the meanings specified below:

 

“Account Debtor” means any Person who is or who may become obligated to any Credit Party under, with respect to, or on account of, any account receivable.

 

“Administrative Agent” has the meaning specified in the introductory paragraph herein.

 

“Agency Consent” means, (i) with respect to the Fannie Mae Agreements, an acknowledgment agreement acknowledging and consenting to the Loans and Commitments in substantially the form of Exhibit V hereto, (ii) with respect to the Freddie Mac Agreements, an acknowledgment agreement acknowledging and consenting to the Loans and Commitments substantially the form of Exhibit VI.1 hereto and related certificate of amendment in substantially the form of Exhibit VI.2 hereto and (iii) with respect to any applicable Investor Agreements that are Material Contracts, to the extent required, an acknowledgment agreement acknowledging and consenting to the Loans and Commitments in substantially the form of Exhibit VII.

 

“Agency Loans” means the Fannie Mae Loans, the Freddie Mac Loans, the FHA/HUD Loans and the Ginnie Mae Loans, as applicable.

 

“Agency Mortgage Loan Transactions” means (a) the purchase or funding of Mortgage Loans (or participations therein) by WDLLC or, as may be applicable, WD Capital, respectively, that are subject to unconditional purchase commitments from an Agency, or, to the extent an Agency has committed to insure or guaranty such Mortgage Loans, other Investors, in its sole discretion, and (b) the related rights of WDLLC or, as may be applicable, WD Capital to originate, purchase, hold, sell and service such Mortgage Loans.

 

“Agency Requirements” means any and all requirements of any Agency that are applicable to any Agency Loan (and/or the origination, sale, commitment to insure or guarantee, and/or servicing thereof), including the requirements set forth in the Agency Agreements, as such requirements may have been waived and/or modified with the written or electronic approval of the applicable Agency.

 

“Ancillary Income” means all amounts payable to a Credit Party pursuant to a Collateral Transaction Document, other than the Servicing Fees, and specifically including, without limitation, beneficiary statement charges, late charge fees, default interest, assignment fees, assumption fees, modification fees, release fees, insufficient funds check charges, amortization schedule fees, interest and earnings on permitted investments from escrow and custodial accounts and all other incidental fees and charges related to such accounts, amendment fees, consent fees, extension fees, loan service transaction fees, demand fees, subordinate financing fees, transfer fees, servicing maintenance prepayment fees, additional servicing fees and similar items.

 

“Article 8 Matter” has the meaning specified in Section 3.05.

 

“Article 9 Collateral” has the meaning specified in Section 4.01(a).

 

“ASAP Plus Agreement” means, singly and collectively: (i) with respect to CWC, (1) that certain Multifamily As Soon As Pooled Plus Agreement dated as of May 16, 2008 between CWC, as lender, and Fannie Mae to allow CWC to deliver to Fannie Mae certain closed and funded multifamily mortgage loans (either to be securitized or sold to Fannie Mae as whole loans) from time to time under the Fannie Mae Delegated Underwriting and Servicing Program, and (2) that certain Multifamily As Soon As Pooled Agreement dated as of May 1, 2009 between CWC, as lender, and Fannie Mae to allow CWC to deliver to Fannie Mae certain closed and funded multifamily mortgage loans and to assign a designated forward trade for the delivery of mortgage-backed securities to Fannie Mae or a third party and (ii) with respect to WDLLC, (1) ASAP Plus with WDLLC dated February 3, 2009, (2) ASAP Sale with WDLLC dated February 3, 2009, (3) ASAP Plus Amendment with WDLLC dated June 29, 2011, and (4) Second Amendment to ASAP Plus Agreement with WDLLC dated December 27, 2011.

 

 

“Collateral” means Article 9 Collateral and Pledged Securities.

 

“Collateral Transaction Document” means any pooling and servicing agreement, securitization servicing agreement, sale and servicing agreement, servicing agreement, transfer and servicing agreement, seller/servicer or securities issuer guide or handbook, sub-servicing agreement, trust agreement, indenture, collateral management agreement, collateral administration agreement, disposition consultation agreement and other agreement (in each case, howsoever denominated) pursuant to which any Credit Party is the servicer, master servicer, primary servicer or special servicer (or similar role, however denominated) of Mortgage Loans for and on behalf of an MBS Trust, Agency, or other Investor or a collateral manager, collateral administrator or disposition consultant (or similar role, however denominated), each as may be amended, modified or supplemented from time to time.

 

“Contract Rights” means all rights of any Credit Party under each Contract, including, without limitation, (a) any and all rights to receive and demand payments under any or all Contracts, (b) any and all rights to receive and compel performance under any or all Contracts and (c) any and all other rights, interests and claims now existing or in the future arising in connection with any or all Contracts.

 

“Contracts” means, with respect to any Credit Party, all contracts, agreements, instruments and indentures in any form and portions thereof, to which such Credit Party is a party or under which such Credit Party or any property of such Credit Party is subject, as the same may from time to time be amended, supplemented, waived or otherwise modified, including, without limitation, (a) all rights of such Credit Party to receive moneys due and to become due to it thereunder or in connection therewith, (b) all rights of such Credit Party to damages arising thereunder, and (c) all rights of such Credit Party to perform and to exercise all remedies thereunder.

 

“Control” means (a) in the case of each Deposit Account, “control,” as such term is defined in Section 9-104 of the UCC and (b) in the case of any Securities Account, “control,” as such term is defined in Section 8-106 of the UCC.

 

“Control Agreements” means, collectively, the Deposit Account Control Agreements and the Securities Account Control Agreements.

 

“Copyright License” means any agreement now or hereafter in existence naming any Credit Party as licensor or licensee, including, without limitation, those listed on Schedule III, granting any right under any Copyright, including, without limitation, the grant of rights to manufacture, distribute, exploit and sell materials derived from any Copyright.

 

“Copyrights” means, collectively, all of the following of any Credit Party: (a) all copyrights, works protectable by copyright, copyright registrations and copyright applications anywhere in the world, including, without limitation, those listed on Schedule III hereto, (b) all reissues, extensions, continuations (in whole or in part) and renewals of any of the foregoing, (c) all income, royalties, damages and payments now or hereafter due and/or payable under any of the foregoing or with respect to any of the foregoing, including, without limitation, damages or payments for past, present and future infringements of any of the foregoing, (d) the right to sue for past, present and future infringements of any of the foregoing and (e) all rights corresponding to any of the foregoing throughout the world.

 

 

“Credit Agreement” has the meaning specified in the preliminary statement of this Agreement.

 

“Credit Agreement Default” has the meaning specified in Section 8.01(b)(i) and Section 8.02(b)(i), respectively and as applicable.

 

“Credit Party” has the meaning specified in the preliminary statement of this Agreement.

 

“Delivery Date” means, as of any date of determination, the immediately succeeding date on which financial statements are delivered pursuant to Article VIII of the Credit Agreement.

 

“Deposit Account Control Agreement” means an agreement in form and substance reasonably satisfactory to the Administrative Agent and the Borrower establishing the Administrative Agent’s Control with respect to any Deposit Account required to be subject to a Control Agreement by this Agreement.

 

“Deposit Accounts” means, collectively, with respect to each Credit Party, (a) all “deposit accounts” as such term is defined in the UCC and in any event shall include the accounts listed on Schedule V hereof and all accounts and sub-accounts relating to any of the foregoing accounts and (b) all cash, funds, checks, notes and instruments from time to time on deposit in any of the accounts or sub-accounts described in clause (a) of this definition.

 

“Effective Endorsement and Assignment” means, with respect to any specific type of Collateral, all such endorsements, assignments and other instruments of transfer reasonably requested by the Administrative Agent with respect to the security interest granted in such Collateral, and in each case, in form and substance satisfactory to the Administrative Agent.

 

“Enforcement Actions Respecting Fannie Mae Collateral” has the meaning specified in Section 8.01(a)(iii).

 

“Enforcement Actions Respecting Freddie Mac Collateral” has the meaning specified in Section 8.02(a)(iii).

 

“Excluded Accounts” has the meaning specified in Section 4.07(c). As of the Closing Date, Schedule V.2 attached hereto identifies each of the Excluded Accounts.

 

“Excluded Assets” has the meaning specified in Section 4.01(a), and includes, without limitation, the Excluded Property.

 

“Excluded Freddie Mac-Related Assets” has the meaning specified in Section 8.02(a)(i).

 

“Excluded Property” means (a) the Excluded Accounts other than any accounts specified in clause (A) of the definition thereof, (b) Permitted Funding Collateral, (c) all amounts in respect of Agency loss and risk sharing reserves (whether subject to Liens or use restrictions), and (d) all assets excluded from the Lien granted to the Administrative Agent hereunder pursuant to Article 8.

 

“Fannie Mae Collateral” has the meaning specified in Section 8.01(a)(i).

 

“Fannie Mae Designated Loans” has the meaning specified in Section 8.01(a)(i).

 

“Fannie Mae Disposition Period” has the meaning specified in Section 8.01(a)(viii).

 

 

“Fannie Mae Guide” means the Fannie Mae Multifamily Selling and Servicing Guide, the Fannie Mae Delegated Underwriting and Servicing Guide, the Fannie Mae Negotiated Transactions Guide, and the Fannie Mae Multifamily Program Rules, including any exhibits, appendices or other referenced forms, as any of the foregoing are amended, modified, supplemented, restated or superseded from time to time, as the context and Fannie Mae Agreements require.

 

“Fannie Mae Loans” means each of the Mortgage Loans serviced by WDLLC or, as may be applicable, WD Capital on behalf of Fannie Mae.

 

“Fannie Mae Notice of Default” has the meaning specified in Section 8.01(b)(i).

 

“Fannie Mae Program Assets” has the meaning specified in Section 8.01(a)(vi).

 

“Fannie Mae Security Interest” has the meaning specified in Section 8.01(a)(i).

 

“Federal Securities Laws” has the meaning specified in Section 5.04.

 

“FHA/HUD Guide” means each guide used by FHA and HUD, respectively, applicable to the FHA/HUD Loans, as may be amended, restated, supplemented or otherwise modified from time to time.

 

“FHA/HUD Loan” means a Mortgage Loan that is insured or co-insured and/or otherwise guaranteed by FHA and/or HUD.

 

“Freddie Mac CME Securitization” means the pooling of Mortgage Loans held by Freddie Mac into a real estate mortgage investment conduit pursuant to which WDLLC or, as may be applicable, WD Capital, respectively, retains servicing responsibilities.

 

“Freddie Mac Collateral” has the meaning specified in Section 8.02(a)(i).

 

“Freddie Mac Designated Loans” has the meaning specified in Section 8.02(a)(i).

 

“Freddie Mac Guide” means the Freddie Mac Multifamily Seller/Servicer Guide (including, as applicable, the Freddie Mac Delegated Underwriting for Targeted Affordable Housing Guide), as may be amended, restated, supplemented or otherwise modified from time to time. All references to “Guide” (including the Freddie Mac Guide herein) or in any of the other Loan Documents shall be to the Guide as in effect at any and all times relevant hereto. All references herein or in any of the other Loan Documents to particular chapters or sections of the Guide shall be to the chapters or sections of the Guide, as in effect at such times, that correspond to the referenced chapters or sections of the Guide in effect on the date hereof.

 

“Freddie Mac Loans” means each of the Mortgage Loans serviced by WDLLC or, as may be applicable, WD Capital for or on behalf of Freddie Mac or a Freddie Mac CME Securitization.

 

“Freddie Mac Notice of Default” has the meaning specified in Section 8.02(b)(i).

 

“Freddie Mac Program Assets” has the meaning specified in Section 8.02(b)(iv).

 

“Freddie Mac Security Interest” has the meaning specified in Section 8.02(a)(i).

 

“Ginnie Mae Collateral” has the meaning specified in Section 8.03(a).

 

“Ginnie Mae Designated Loans” has the meaning specified in Section 8.03(a).

 

 

“Ginnie Mae Guide” means Ginnie Mae Mortgage-Backed Securities Guide, as may be amended, restated, supplemented or otherwise modified from time to time.

 

“Ginnie Mae Loans” means each of the Mortgage Loans serviced by WDLLC or, as may be applicable, WD Capital under the Ginnie Mae Agreements.

 

“Ginnie Mae Program Assets” has the meaning specified in Section 8.03(e).

 

“Ginnie Mae Security Interest” has the meaning specified in Section 8.03(a).

 

“Guaranteed Obligations” has the meaning specified in Section 2.01(a).

 

“Guide” means, singly and collectively, as may be applicable from time to time, each Fannie Mae Guide, each Freddie Mac Guide, each Ginnie Mae Guide, each FHA/HUD Guide, and, as may be applicable, any guide pertaining to any Investor Agreements.

 

“Income” means, (a) with respect to the Agency Collateral and MSR Assets, all Servicing Fees, Ancillary Income and any excess servicing rights or retained yield and any and all other income that may be related to servicing activities that is payable to a Credit Party under the applicable Collateral Transaction Documents; and (b) with respect to any MBS Trust, as may be applicable, any and all payments, distributions and other income payable to any Credit Party in its capacity as the holder of any class of securities in such MBS Trust, as the case may be.

 

“Intellectual Property” means all of the Credit Parties’ rights and interests in intellectual and similar property of any such Credit Party of every kind and nature now owned or hereafter acquired by any such Credit Party, including inventions, designs, Patents, Copyrights, Licenses, Trademarks, trade secrets, confidential or proprietary technical and business information, know-how or other data or information, software and databases and all embodiments or fixations thereof and related documentation, provided that software shall not include “off-the-shelf,” “shrink wrap,” “click-through,” “click-wrap,” or other commercially available software, registrations and franchises, and all additions, improvements and accessions to, and books and records describing or used in connection with, any of the foregoing.

 

“Investor” means, with respect to each Collateral Transaction Document, the MBS Trust, Agency or other investor for which the applicable Credit Party provides services thereunder.

 

“Investor Loans” means each of the Mortgage Loans serviced by WDLLC or, as may be applicable, WD Capital on behalf of an Investor.

 

“JPMorgan” means JPMorgan Chase Bank, N.A.

 

“License” means any Patent License, Trademark License, Copyright License or other license or sublicense agreement to which any Credit Party is a party, including those listed on Schedule III.

 

“MBS Trust” means any of the trusts or trust estates in which any Mortgage Loan, being serviced or specially serviced by a Credit Party pursuant to the terms and provisions of the applicable Collateral Transaction Documents, are held by the related trustee.

 

“Mortgage Loans” means any and all Mortgage Loans (as defined in the Credit Agreement) or real property acquired by the related MBS Trust that is serviced or specially-serviced by WDLLC or, as may be applicable, WD Capital pursuant to a Collateral Transaction Document or otherwise on account of any other Agency Mortgage Loan Transaction.

 

 

“MSR Assets” means all rights, title and interests of the applicable Credit Party in its capacity as servicer, primary servicer, master servicer or special servicer (or similar capacity, howsoever denominated), as applicable, in, to and under the related Collateral Transaction Document and/or Servicing Contracts, whether now or hereafter existing, acquired or created, whether or not yet accrued, earned, due or payable, as well as all other present and future right and interest under such Collateral Transaction Document and/or Servicing Contracts, including, without limitation: (a) the rights to service or special service, as applicable, the related Mortgage Loans; (b) the right to receive compensation (whether direct or indirect) for such servicing or special servicing, as applicable, including the right to receive and retain the Servicing Fee and all other Income, as applicable; (c) the right to hold and administer related custodial accounts, escrow accounts, reserve accounts and any other accounts and the right to hold, administer and, if applicable, receive earnings on the funds and investments related to any such accounts and the related servicing file arising from or connected to the servicing or special servicing of the related Mortgage Loans under such Collateral Transaction Document and/or Servicing Contract; (d) all rights, powers and privileges incidental to the foregoing, together with all tiles, material documents, instruments, surveys (if available), certificates, correspondence, appraisals, computer records, computer storage media, accounting records and other books and records relating thereto; and (e) the nonexclusive right to use (in common with such Credit Party) such Credit Party’s operating systems to manage and administer the Mortgage Loans and any of the data and information related thereto, or that otherwise relates to the Mortgage Loans, together with the media on which the same are stored to the extent stored with material information or data that relates to property other than the Mortgage Loans, and such Credit Party’s rights to access the same, whether exclusive or nonexclusive, to the extent that such access rights may lawfully be transferred or used by such Credit Party’s assignees or designees, and any computer programs that are owned by such Credit Party (or licensed to such Credit Party under licenses that may lawfully be transferred or used by such Credit Party’s assignees or designees) and that are used or useful to access, organize, input, read, print or otherwise output and otherwise handle or use such information and data.

 

“Negative Pledge” means an agreement by a Person with any other Person not to create, incur, assume, or suffer to exist any Lien upon any of its property, assets or revenues, however characterized for UCC or other purposes.

 

“Partnership/LLC Agreement” has the meaning specified in Section 3.08.

 

“Patent License” means any written agreement, now or hereafter in effect, granting to any third party any right to make, use or sell any invention on which a patent, now or hereafter owned by any Credit Party or that any such Credit Party otherwise has the right to license, is in existence, or granting to any such Credit Party any right to make, use or sell any invention on which a patent, now or hereafter owned by any third party, is in existence, and all rights of any such Credit Party under any such agreement.

 

“Patents” means all of the following now owned or hereafter acquired by any Credit Party: (a) all letters patent of the United States or the equivalent thereof in any other country, all registrations and recordings thereof, and all applications for letters patent of the United States or the equivalent thereof in any other country, including registrations, recordings and pending applications in the United States Patent and Trademark Office or any similar offices in any other country, including those listed on Schedule III; and (b) all reissues, continuations, divisions, continuations-in-part, renewals or extensions thereof, and the inventions disclosed or claimed therein, including the right to make, use and/or sell the inventions disclosed or claimed therein.

 

 

“Perfection Certificate” means the Perfection Certificate provided by each Credit Party to the Administrative Agent on the Closing Date and each additional Perfection Certificate, as and to the extent required hereunder.

 

“Pledged Debt” has the meaning specified in Section 3.01.

 

“Pledged Equity Interests” has the meaning specified in Section 3.01.

 

“Pledged Securities” has the meaning specified in Section 3.01.

 

“Qualified ECP Guarantor” has the meaning specified in Section 2.08.

 

“Representative” has the meaning specified in Section 5.02(d).

 

“Retention of Fannie Mae Program Assets” has the meaning specified in Section 8.01(a)(vi).

 

“Retention of Freddie Mac Program Assets” has the meaning specified in Section 8.02(b)(iv).

 

“Securities Account” means, collectively, with respect to each Credit Party, (a) all “securities accounts” as such term is defined in the UCC and, (b) all cash, funds, checks, notes and instruments from time to time on deposit in any of the accounts or sub-accounts described in clause (a) of this definition.

 

“Securities Account Control Agreement” means an agreement in form and substance reasonably satisfactory to the Administrative Agent and the Borrower establishing the Administrative Agent’s Control with respect to any Securities Account required to be subject to a Control Agreement by this Agreement.

 

“Security Interest” has the meaning specified in Section 4.01(a).

 

“Servicing Contracts” has the meaning specified in the Credit Agreement and includes, without limitation, those Servicing Contracts comprising Agency Agreements.

 

“Servicing Fees” means, with respect to Agency Collateral and MSR Assets pledged hereunder, any and all servicing fees, primary servicing fees, master servicing fees, loss sharing fees, termination fees, special servicing fees, workout fees, liquidation fees, principal recovery fees and/or standby fees that are payable to a Credit Party under the related Collateral Transaction Documents or Servicing Contracts, as applicable.

 

“Specified Fannie Mae Enforcement Actions” has the meaning specified in Section 8.01(a)(viii).

 

“Specified Guarantee” has the meaning specified in Section 8.01(c).

 

“Specified Guarantors” has the meaning specified in Section 8.01(c).

 

“Specified Ownership Interest Pledge” has the meaning specified in Section 8.01(b).

 

“Specified Pledged Entities” has the meaning specified in Section 8.01(b).

 

“Specified Pledged Equity Interests” has the meaning specified in Section 8.01(b).

 

“Specified Sale of Fannie Mae Program Assets” has the meaning specified in Section 8.01(a)(vi).

 

 

“Specified Sale of Freddie Mac Program Assets” has the meaning specified in Section 8.02(b)(iv).

 

“Specified Sale of Ginnie Mae Program Assets” has the meaning specified in Section 8.03(e).

 

“Subsidiary Guarantor(s)” has the meaning specified in the preliminary statement of this Agreement.

 

“Trademark License” means any written agreement, now or hereafter in effect, granting to any third party any right to use any trademark now or hereafter owned by any Credit Party or that any such Credit Party otherwise has the right to license, or granting to any such Credit Party any right to use any trademark now or hereafter owned by any third party, and all rights of any such Credit Party under any such agreement.

 

“Trademarks” means all of the following now owned or hereafter acquired by any Credit Party: (a) all trademarks, service marks, trade names, domain names, corporate names, company names, business names, fictitious business names, trade styles, trade dress, logos, other source or business identifiers, designs and general intangibles of like nature, now existing or hereafter adopted or acquired, all registrations and recordings thereof, and all registration and recording applications filed in connection therewith, including registrations and registration applications in the United States Patent and Trademark Office or any similar offices in any State of the United States or any other country or any political subdivision thereof, and all extensions or renewals thereof, including those listed on Schedule III; and (b) all goodwill associated therewith or symbolized thereby. Notwithstanding the foregoing, “Trademarks” shall not include “intent to use” trademark applications for which a statement of use has not been filed (but only until such statement is filed).

 

“Voting Equity Interests” of any Person means all classes of Equity Interests of such Person entitled to vote.

 

Section 1.03             Effect of this Agreement. This Agreement amends and restates in its entirety the Existing Guarantee and Collateral Agreement. Nothing in this Agreement is intended by any party, or may be construed by any party, to affect the continuing guarantees provided by or the priority of the Liens granted by any Credit Party under the Existing Guarantee and Collateral Agreement, as amended and restated by this Agreement, and nothing herein shall impair or adversely affect the continuation of the liability of the Credit Parties for the guarantees, obligations or the security interests and Liens heretofore provided, granted, pledged or assigned to the Administrative Agent for itself and the benefit of the applicable Secured Parties pursuant to the Existing Guarantee and Collateral Agreement. The guarantees provided for and the Liens and security interests of the Administrative Agent of the Credit Parties granted under the Existing Guarantee and Collateral Agreement shall not be impaired, extinguished or released hereby and shall be deemed to be continuously provided, granted and perfected, as applicable, from the earliest date such guarantee was provided or such Liens and security interests were granted and perfected and shall remain in full force and effect and in furtherance of the foregoing, and each Credit Party party to the Existing Guarantee and Collateral Agreement hereby reaffirms, renews and brings forward the guarantees provided by and the security interests granted by such Credit Party pursuant thereto. Without limiting the generality of the foregoing, each Credit Party hereby acknowledges that all of the obligations under the Revolving Credit Loans, the Revolving Credit Commitments, the Swingline Loans, the Swingline Commitments, the LC Exposures and the Letters of Credit constitute “Guaranteed Obligations” and “Secured Obligations”. This Agreement shall not constitute a novation of the Existing Guarantee and Collateral Agreement or any of the obligations or security interests granted thereunder. To the extent applicable, the Credit Party hereby acknowledge, confirm and agree that any financing statements or other instrument under any applicable law covering all or any part of the collateral previously filed in favor of the Administrative Agent are in full force and effect as of the date hereof and each Credit Party hereby ratifies its authorization for the Administrative Agent to file in any relevant jurisdictions any such financing statement or other instrument relating to all or any part of the collateral if filed prior to the date hereof. All references to the Existing Guarantee and Collateral Agreement in any Loan Document (other than this Agreement) or other document or instrument delivered in connection therewith shall be deemed to refer to this Agreement and the provisions hereof.

 

 

ARTICLE 2.
GUARANTEE

 

Section 2.01             Guarantee.

 

(a)            Each of the Credit Parties hereby, jointly and severally, unconditionally and irrevocably, guarantees and reaffirms and confirms its guarantee provided pursuant to the Existing Guarantee and Collateral Agreement as a primary obligor and not merely as a surety to the Administrative Agent, for the ratable benefit of the Secured Parties, and to the Secured Parties and their respective permitted successors, endorsees, transferees and assigns the prompt and complete payment and performance when due and payable (whether at the stated maturity, by acceleration or otherwise) of all Secured Obligations, whether now existing or hereafter arising, whether or not from time to time reduced or extinguished (except by payment thereof) or hereafter increased or incurred, whether enforceable or unenforceable as against any Credit Party, whether or not discharged, stayed or otherwise affected by any Debtor Relief Law or proceeding thereunder, whether created directly with the Administrative Agent or any other Secured Party or acquired by the Administrative Agent or any other Secured Party through assignment or endorsement or otherwise, whether matured or unmatured, whether joint or several, as and when the same become due and payable (whether at maturity or earlier, by reason of acceleration, mandatory repayment or otherwise), in accordance with the terms of any such instruments evidencing any such obligations, including all renewals, extensions or modifications thereof (all of the foregoing being hereafter collectively referred to as the “Guaranteed Obligations”).

 

(b)            Anything herein or in any of the other Loan Documents to the contrary notwithstanding, the maximum liability of each Credit Party with respect to the Guaranteed Obligations (or any other obligations of such Credit Party to the Secured Parties) hereunder (including proceeds of Collateral of such Credit Party applied hereunder) shall in no event exceed the amount that can be guaranteed by such Credit Party under Applicable Law, including Debtor Relief Laws; provided that, to the maximum extent permitted under Applicable Law, it is the intent of the parties hereto that the rights of contribution of each Credit Party provided in Section 6.02 below be included as an asset of the respective Credit Party in determining the maximum liability of such Credit Party hereunder. To that end, but only in the event and to the extent that after giving effect to Section 6.02, such Credit Party’s obligations with respect to the Guaranteed Obligations (or any other obligations of such Credit Party to the Secured Parties) or any payment made pursuant to such Guaranteed Obligations (or any other obligations of such Credit Party to the Secured Parties) would, but for the operation of the first sentence of this Section 2.01(b), be subject to avoidance or recovery in any such proceeding under Debtor Relief Laws after giving effect to Section 6.02, the amount of such Credit Party’s obligations with respect to the Guaranteed Obligations (or any other obligations of such Credit Party to the Secured Parties) shall be limited to the largest amount which, after giving effect thereto, would not, under Debtor Relief Laws, render such Credit Party’s obligations with respect to the Guaranteed Obligations (or any other obligations of such Credit Party to the Secured Parties) unenforceable or avoidable or otherwise subject to recovery under Debtor Relief Laws. To the extent any payment actually made pursuant to the Guaranteed Obligations exceeds the limitation of the first sentence of this Section 2.01(b) and is otherwise subject to avoidance and recovery in any such proceeding under Debtor Relief Laws, the amount subject to avoidance shall in all events be limited to the amount by which such actual payment exceeds such limitation and the Guaranteed Obligations as limited by the first sentence of this Section 2.01(b) shall in all events remain in full force and effect and be fully enforceable against such Credit Party. The first sentence of this Section 2.01(b) is intended solely to preserve the rights of the Secured Parties hereunder against such Credit Party in such proceeding to the maximum extent permitted by Debtor Relief Laws and no Credit Party nor any other Person shall have any right or claim under such sentence that would not otherwise be available under Debtor Relief Laws in such proceeding.

 

 

(c)            No payment made by any Credit Party, any other guarantor or any other Person or received or collected by the Administrative Agent or any other Secured Party from any Credit Party, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of any of the Guaranteed Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of any Credit Party hereunder which shall, notwithstanding any such payment (other than any payment made by such Credit Party in respect of the Guaranteed Obligations or any payment received or collected from such Credit Party in respect of any of the Guaranteed Obligations), remain liable for the Guaranteed Obligations guaranteed by it hereunder up to the maximum liability of such Credit Party hereunder until (but subject to Section 2.04 in the case of following clause (i)) the earlier to occur of (i) the first date on which the Loans and all other Guaranteed Obligations (other than contingent indemnification obligations and obligations under Secured Hedge Agreements or Secured Cash Management Agreements) are paid in full in cash and all Commitments terminated and all Letters of Credit have expired or been terminated other than Letters of Credit which have been cash collateralized in accordance with the terms of the Credit Agreement or as to which other arrangements satisfactory to the Administrative Agent and the applicable Issuing Bank have been made or (ii) the release of such Credit Party from this Agreement in accordance with the express provisions of Section 7.14(b).

 

(d)            The Credit Parties further agree to pay, without limitation as otherwise set forth in this Article 2, any and all expenses (including, without limitation, all reasonable fees and disbursements of counsel) which may be paid or incurred by the Administrative Agent or any other Secured Party in enforcing any rights with respect to, or collecting, any or all of the Guaranteed Obligations described in the Loan Documents and/or enforcing any rights with respect to, or collecting against, the Credit Parties under this Agreement. The terms and provisions of this Article 2 shall remain in full force and effect until the Guaranteed Obligations (other than contingent indemnification obligations and obligations under Secured Hedge Agreements or Secured Cash Management Agreements) are paid in full and all Commitments are terminated and all Letters of Credit have expired or been terminated other than Letters of Credit which have been cash collateralized in accordance with the terms of the Credit Agreement or as to which other arrangements satisfactory to the Administrative Agent and the applicable Issuing Bank have been made, notwithstanding that from time to time prior thereto any Credit Party may be free from any Guaranteed Obligations.

 

Section 2.02             Amendments, etc. with respect to the Guaranteed Obligations. To the maximum extent permitted by Applicable Law, each Credit Party shall remain obligated hereunder notwithstanding that, without any reservation of rights against any Credit Party and without notice to or further assent by any Credit Party, any demand for payment of any of the Guaranteed Obligations made by the Administrative Agent or any other Secured Party may be rescinded by the Administrative Agent or such other Secured Party and any of the Guaranteed Obligations continued, and the Guaranteed Obligations, or the liability of any other Person upon or for any part thereof, or any collateral security or guarantee therefor or right of offset with respect thereto, may, from time to time, in whole or in part, be renewed, extended, amended, waived, modified, accelerated, compromised, subordinated, surrendered or released by the Administrative Agent or any other Secured Party, and the Credit Agreement, the other Loan Documents, any Cash Management Agreement and any Hedge Agreement and any other documents executed and delivered in connection therewith may be amended, waived, modified, supplemented or terminated, in whole or in part, as the Administrative Agent (or the Required Lenders under the Credit Agreement, or the applicable Lender(s) or Secured Party, as the case may be) may deem advisable from time to time, and any collateral security, guarantee or right of offset at any time held by the Administrative Agent or any other Secured Party for the payment of any of the Guaranteed Obligations may be sold, exchanged, waived, surrendered or released. Neither the Administrative Agent nor any other Secured Party shall have any obligation to protect, secure, perfect or insure any Lien at any time held by it as security for any of the Guaranteed Obligations or for the guarantee contained in this Article 2 or any property subject thereto, except to the extent required by Applicable Law.

 

 

Section 2.03             Guarantee Absolute and Unconditional. Each Credit Party waives, to the maximum extent permitted by Applicable Law, any and all notice of the creation, renewal, extension or accrual of any of the Guaranteed Obligations and notice of or proof of reliance by the Administrative Agent or any other Secured Party upon the guarantee contained in this Article 2 or acceptance of the guarantee contained in this Article 2; each of the Guaranteed Obligations, and any matters contained therein, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guarantee contained in this Article 2; and all dealings between the Credit Parties, on the one hand, and the Administrative Agent and the other Secured Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guarantee contained in this Article 2. Each Credit Party waives, to the maximum extent permitted by Applicable Law, diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon any of the Credit Parties with respect to any of the Guaranteed Obligations. Each Credit Party understands and agrees, to the extent permitted by Applicable Law, that the guarantee contained in this Article 2 shall be construed as a continuing, absolute and unconditional guarantee of payment and performance and not of collection. Each Credit Party hereby waives, to the maximum extent permitted by Applicable Law, any and all defenses that it may have arising out of or in connection with any and all of the following:

 

(a)              the genuineness, legality, validity, regularity or enforceability of the Credit Agreement or any other Loan Document, any Cash Management Agreement or any Hedge Agreement or any of the Guaranteed Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Administrative Agent or any other Secured Party;

 

(b)             any action under or in respect of the Credit Agreement, any other Loan Document, any Cash Management Agreement or any Hedge Agreement in the exercise of any remedy, power or privilege contained therein or available to any of them at law, in equity or otherwise, or waiver or refraining from exercising any such remedies, power or privileges (including any manner of sale, disposition or any application of any sums by whomever paid or however realized to any Guaranteed Obligations owing by any Credit Party to the Administrative Agent or any other Secured Party in such manner as the Administrative Agent or any other Secured Party shall determine in its reasonable discretion);

 

(c)              the existence, value or condition of, or failure to perfect its Lien against, any security for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent or any other Secured Party in respect of such security or guaranty (including, without limitation, the release of any such security or guaranty);

 

(d)             any (i) election of remedies by the Administrative Agent or any other Secured Party that in any manner impairs, reduces, releases or otherwise adversely affects the subrogation, reimbursement, exoneration, contribution or indemnification rights of such Credit Party or other rights of such Credit Party to proceed against any other guarantor or any other Person or any Collateral, (ii) right to compel the Administrative Agent or any other Secured Party to proceed in respect of the Guaranteed Obligations against the Borrower, any other Credit Party or any other Person or any security for the payment and performance of the Guaranteed Obligations, (iii) failure by the Administrative Agent or any other Secured Party to commence an action in respect of the Guaranteed Obligations against any Credit Party or any other Person or any security for the payment and performance of the Guaranteed Obligations, and (iv) right of setoff or counterclaim against or in respect of the Guaranteed Obligations of such Credit Party;

 

 

(e)              any change in the time, place, manner or place of payment, amendment, or waiver or increase in any of the Guaranteed Obligations;

 

(f)              any exchange, taking, or release of Collateral;

 

(g)             any change in the structure or existence of, restructuring of or other similar organizational change of any Credit Party;

 

(h)             any application of Collateral to any of the Guaranteed Obligations;

 

(i)               any law, regulation or order of any jurisdiction, or any other event, affecting any term of any Guaranteed Obligation or the rights of the Administrative Agent or any other Secured Party with respect thereto; and/or

 

(j)               any other circumstance whatsoever (other than payment in full of the Guaranteed Obligations guaranteed by it hereunder) that constitutes, or might be construed to constitute, an equitable or legal discharge of any Credit Party for their respective Guaranteed Obligations, or of such Credit Party under the guarantee contained in this Article 2, in bankruptcy or in any other instance.

 

When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Credit Party, the Administrative Agent or any other Secured Party may, but shall be under no obligation to, make a similar demand on or otherwise pursue such rights and remedies as it may have against any other Credit Party or any other Person or against any collateral security or guarantee for the Guaranteed Obligations guaranteed by such Credit Party hereunder or any right of offset with respect thereto, and any failure by the Administrative Agent or any other Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments from any other Credit Party or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of any other Credit Party or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Credit Party of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Administrative Agent or any other Secured Party against any Credit Party. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.

 

Section 2.04             Reinstatement. The guarantee of any Credit Party contained in this Article 2 shall continue to be effective, or be reinstated (together with all Liens or Collateral securing such guarantee), as the case may be, if at any time payment, or any part thereof, of any of the Guaranteed Obligations guaranteed by such Credit Party hereunder is rescinded or must otherwise be restored or returned by the Administrative Agent or any other Secured Party upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of any Credit Party, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, any Credit Party or any substantial part of their property, or otherwise, all as though such payments had not been made.

 

 

Section 2.05             Payments. Each Credit Party hereby guarantees that payments hereunder will be paid to the Administrative Agent, for the benefit of the Secured Parties, without set-off or counterclaim, in dollars, at the Administrative Agent’s office specified in Section 13.1(a) of the Credit Agreement or such other address as may be designated in writing by the Administrative Agent to such Credit Party from time to time in accordance with Section 13.1(c) of the Credit Agreement.

 

Section 2.06             Information. Each Credit Party assumes all responsibility for being and keeping itself informed of each other Credit Party’s financial condition and assets and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that such Credit Party assumes and incurs hereunder and agrees that none of the Administrative Agent or the other Secured Parties will have any duty to advise such Credit Party of information known to it or any of them regarding such circumstances or risks.

 

Section 2.07             Specified Guarantors. The provisions of Article 8 shall also be applicable with respect to the Specified Guarantee provided by each Specified Guarantor.

 

Section 2.08             Keepwell. Each Qualified ECP Guarantor (as defined below) hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds and other support as may be needed from time to time by each other Credit Party to honor all of its obligations under this Agreement and the other Loan Documents in respect of Swap Obligations (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section 2.08 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 2.08, or otherwise under this Agreement or any other Loan Document, voidable under Debtor Relief Laws and not for any greater amount). Subject to Section 2.05, the obligations of each Qualified ECP Guarantor under this Section 2.08 shall remain in full force and effect until all of the Guaranteed Obligations and all the obligations of the Credit Parties shall have been paid in full in cash, all Commitments have been terminated and all Letters of Credit have expired or been terminated other than Letters of Credit which have been cash collateralized in accordance with the terms of the Credit Agreement or as to which other arrangements satisfactory to the Administrative Agent and the applicable Issuing Bank have been made. Each Qualified ECP Guarantor intends that this Section 2.08 constitute, and this Section 2.08 shall be deemed to constitute, a “keepwell, support or other agreement” for the benefit of each other Credit Party for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act. For purposes of this Section 2.08, “Qualified ECP Guarantor” means, in respect of any Swap Obligation, each Credit Party that has total assets exceeding $10,000,000 at the time the relevant guarantee or grant of the relevant security interest becomes effective with respect to such Swap Obligation or such other Person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another Person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

 

ARTICLE 3.
PLEDGE OF SECURITIES

 

Section 3.01             Pledge. As security for the payment or performance, as applicable, in full of the Secured Obligations, each Credit Party hereby reaffirms and confirms the security interest granted pursuant to the Existing Guarantee and Collateral Agreement and also grants to the Administrative Agent for the benefit of the Secured Parties a security interest in all of such Credit Party’s right, title and interest in, to and under: (a) all Equity Interests to and in any Subsidiary directly or indirectly owned by each such Credit Party on the date hereof (other than Excluded Subsidiaries described in clauses (a) through (c) of such definition) or at any time thereafter acquired by each such Credit Party (other than Excluded Subsidiaries described in clauses (a) through (c) of such definition), and in all certificates at any time representing any such Equity Interest, and any other shares, stock certificates, options or rights of any nature whatsoever in respect of each such Person that may be issued or granted to, or held by, such Credit Party while this Agreement is in effect (collectively, the “Pledged Equity Interests”); (b) all debt securities and promissory notes held by, or owed to, such Credit Party on the Closing Date or at any time thereafter, and all securities, promissory notes and any other instruments evidencing the debt securities or promissory notes described above (collectively, the “Pledged Debt”); (c) subject to Section 3.05, all payments of principal or interest, dividends, distributions, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of, in exchange for or upon the conversion of, and all other Proceeds received in respect of, the securities and other property referred to in clauses (a) and (b) above; (d) subject to Section 3.05, all rights and privileges of such Credit Party with respect to the securities and other property referred to in clauses (a), (b), and (c) above; and (e) all Proceeds of any of the foregoing (the items referred to in clauses (a) through (e) above being collectively referred to as the “Pledged Securities”). Notwithstanding the foregoing, no pledge, lien or security interest is hereby granted or required to be granted in the Excluded Assets. Any pledge of any promissory note or other Pledged Debt with respect to any Mortgage Loan intended for sale to Freddie Mac shall be effected in strict compliance with the provisions of Chapter 33 of the Freddie Mac Guide relating to pledged mortgages.

 

 

Section 3.02             Delivery of the Pledged Securities.

 

(a)            Each Credit Party represents and warrants that each certificate, agreement or instrument with a face amount or attributable value of at least $5,000,000 representing or evidencing the Pledged Securities in existence on the date hereof (other than any promissory note with respect to loans and advances to officers, directors, and employees in connection with recruitment and engagement of such officers, directors, and employees that are forgivable subject to continued employment, or other Pledged Debt with respect to any Mortgage Loan originated or acquired in the ordinary course of business) have been delivered to the Administrative Agent in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank. For the duration of this Agreement and the other Loan Documents, each Credit Party agrees promptly (and in any event within twenty (20) days after receipt thereof) to deliver or cause to be delivered to the Administrative Agent each certificate, agreement or instrument representing or evidencing the Pledged Equity Interests and all debt securities and promissory notes constituting Pledged Debt (other than, at any time that no Default or Event of Default has occurred and is continuing, any promissory note with respect to loans and advances to officers, directors, and employees in connection with recruitment and engagement of such officers, directors, and employees that are forgivable subject to continued employment, or other Pledged Debt with respect to any Mortgage Loan originated or acquired in the ordinary course of business), in each case if the face amount or attributable value thereof is at least $5,000,000. Notwithstanding the foregoing, certificated Pledged Securities representing the Equity Interest of a Subsidiary required to be pledged hereunder shall be delivered to the Administrative Agent irrespective of the face amount or attributable value thereof.

 

(b)            Upon delivery to the Administrative Agent: (i) any Pledged Securities shall be accompanied by undated stock or other transfer powers duly executed in blank or other undated instruments of transfer sufficient to effect the transfer of such Pledged Securities and otherwise reasonably satisfactory to the Administrative Agent and by such other instruments and documents as the Administrative Agent or the Required Lenders (acting through the Administrative Agent) may reasonably request and (ii) all other property comprising part of the Pledged Securities shall be accompanied by proper instruments of assignment duly executed by the applicable Credit Party sufficient to effect the transfer of such other property and such other instruments or documents as the Administrative Agent may reasonably request. Each delivery of Pledged Securities shall be accompanied by a schedule describing such Pledged Securities, which schedule shall be attached hereto as a supplement to Schedule II and made a part hereof; provided, that failure to attach any such schedule hereto shall not affect the validity of such pledge of such Pledged Securities. Each schedule so delivered shall supplement any prior schedules so delivered.

 

 

(c)            If any Credit Party shall, as a result of its ownership of the Pledged Equity Interests, become entitled to receive or shall receive a membership certificate (including, without limitation, any certificate representing a distribution in connection with any reclassification, increase or reduction of capital, or any certificate issued in connection with any reorganization), options or rights, whether in addition to, in substitution of, as a conversion of, or in exchange for any of such Pledged Equity Interests, or otherwise in respect thereof, such Credit Party shall accept the same as the Secured Parties’ agent, hold the same in trust for the Secured Parties and deliver the same forthwith to the Administrative Agent, on behalf of the Secured Parties, in the exact form received, duly endorsed by such Credit Party in blank, together with an undated membership interest power covering such certificate duly executed in blank, to be held by the Administrative Agent, on behalf of the Secured Parties, hereunder as additional security for the Secured Obligations. Any sums paid upon or in respect of Pledged Equity Interests upon the liquidation or dissolution of the issuer thereof shall be paid over to the Administrative Agent, on behalf of the Secured Parties, to be promptly applied by it pursuant to Section 5.02. If any sums of money or property so paid or distributed in respect of Pledged Securities shall be received by any Credit Party, such Credit Party shall, until such money or property is paid or delivered to the Administrative Agent, on behalf of the Secured Parties, hold such money or property in trust for the Administrative Agent, on behalf of the Secured Parties, segregated from other funds of such Credit Party, as additional security for the Secured Obligations.

 

Section 3.03             Representations, Warranties and Covenants. The Credit Parties jointly and severally represent, warrant and covenant to and with the Administrative Agent, for the benefit of the Secured Parties that:

 

(a)              as of Closing Date, Schedule I correctly sets forth each Subsidiary Guarantor and the following information with respect to each Subsidiary Guarantor: (i) the true and correct legal name of such Subsidiary Guarantor, (ii) its jurisdiction of formation, (iii) its Federal Taxpayer Identification Number or its organizational identification number and (iv) the location of its chief executive office.

 

(b)              as of Closing Date, Schedule II correctly sets forth the percentage of the issued and outstanding shares (or units or other comparable measure) of each class of the Equity Interests of the issuer thereof represented by the Pledged Equity Interests and includes all Equity Interests owned by the Borrower and the other Credit Parties as of the Closing Date; provided, however, that the Equity Interests owned by the Borrower and the other Credit Parties of Excluded Subsidiaries described in clauses (a) through (c) of such definition, Persons that are not Subsidiaries, or other Persons not required to be pledged hereunder shall be separately identified on Schedule II;

 

(c)              the Pledged Equity Interests issued by any Credit Party and the Pledged Debt have, in each case, been duly and validly authorized and issued by the issuers thereof and (i) in the case of Pledged Equity Interests issued by any such Credit Party, are fully paid and non-assessable (to the extent applicable), are beneficially owned as of record by such Credit Party and constitute all of the issued and outstanding shares of all classes of the Equity Interests issued to such Credit Party and (ii) in the case of Pledged Debt issued by any such Credit Party, are legal, valid and binding obligations of the issuers thereof;

 

 

(d)             except for the security interests granted hereunder, each of the Credit Parties: (i) is and, subject to any transfers or other dispositions permitted by the Credit Agreement (including any Freddie Mac CME Securitization), will continue to be the direct owner, beneficially and of record, of the Pledged Securities indicated on Schedule II as owned by such Credit Party, (ii) holds the same free and clear of all Liens, other than Liens created by any Loan Documents and Liens permitted by the Credit Agreement, (iii) will make no assignment, pledge, hypothecation or transfer of or create or permit to exist any security interest in or other Lien on, the Pledged Securities, other than Liens created by any Loan Document, Liens permitted by the Credit Agreement and transfers or other dispositions permitted by the Credit Agreement (including any Freddie Mac CME Securitization), and (iv) will defend its title or interest thereto or therein against any and all Liens (other than Permitted Liens), however arising, of all Persons whomsoever;

 

(e)              except as set forth in the Agency Consents and except for restrictions and limitations imposed by (i) the Loan Documents or (ii) securities laws generally, the Pledged Securities issued by any of the Credit Parties are and will continue to be freely transferable and assignable, and none of the Pledged Securities issued by any such Credit Parties are or will be subject to any option, right of first refusal, shareholders agreement, charter or bylaw provision or contractual restriction of any nature that might prohibit, impair, delay or otherwise affect the pledge of such Pledged Securities hereunder, the sale or disposition thereof pursuant hereto or the exercise by the Administrative Agent of rights and remedies hereunder (including, without limitation, the right, where applicable, to be substituted as a member, manager or partner under any partnership agreement, limited liability company agreement, operating agreement or other organizational documents of any Credit Party and to receive the benefits of a manager, member or partner thereunder (including, without limitation, all voting rights and rights of an economic interest holder));

 

(f)              each of the Credit Parties has the power and authority to pledge the Pledged Securities pledged by it hereunder in the manner hereby done or contemplated;

 

(g)             no consent or approval of any Governmental Authority, any securities exchange or any other Person was or is necessary to the validity of the pledge effected hereby on the date hereof (other than such as have been obtained and are in full force and effect);

 

(h)             upon (i) the filing of the UCC financing statements as described in Section 4.02(b), the Administrative Agent shall have a legal, valid and perfected lien upon and security interest in all of the Pledged Securities that may be perfected by filing as security for the payment and performance of the Secured Obligations, (ii) with respect to that portion of the Pledged Securities that are “certificated securities” or “instruments” (as each such term is defined in the UCC), upon the delivery to the Administrative Agent of the original of such Pledged Securities together with an effective endorsement or undated stock power with respect thereto duly indorsed in blank by the applicable Credit Party, the Administrative Agent shall have a legal, valid and perfected first priority lien upon and security interest in such Pledged Securities as security for the payment and performance of the Secured Obligations and (iii) with respect to that portion of the Pledged Securities that are “uncertificated securities” (as such term is defined in the UCC), upon the agreement of the issuer thereto to comply with the instructions originated by the Administrative Agent with respect to such Pledged Securities without further consent by the registered owners of such Pledged Securities, the Administrative Agent shall have a legal, valid and perfected first priority lien upon and security interest in such Pledged Securities as security for the payment and performance of the Secured Obligations;

 

(i)               all Pledged Debt as of the Closing Date (other than any promissory note with respect to loans and advances to officers, directors, and employees in connection with recruitment and engagement of such officers, directors, and employees that are forgivable subject to continued employment, or other Pledged Debt with respect to any Mortgage Loan originated or acquired in the ordinary course of business) is described on Schedule II;

 

 

(j)               none of the Pledged Securities are held in a Securities Account; and

 

(k)              without limiting the generality of the representations and warranties set forth in the Credit Agreement, the representations and warranties of each Credit Party set forth in Section 9.10 of the Credit Agreement (including, without limitation, with respect to the restrictions on granting any so-called Negative Pledges respecting any Excluded Subsidiary) shall at all times be true and accurate.

 

Section 3.04             Registration in Nominee Name; Denominations. The Administrative Agent, on behalf of the Secured Parties, shall have the right (in its sole and absolute discretion) to hold the Pledged Securities in the name of the applicable Credit Party, endorsed or assigned in blank or, upon the occurrence and during the continuation of an Event of Default, in its own name as pledgee or the name of its nominee (as pledgee or as sub-agent). The Administrative Agent shall at all times upon the occurrence and during the continuation of an Event of Default have the right to exchange any certificates representing Pledged Securities issued by any Credit Party for certificates of smaller or larger denominations for any purpose consistent with this Agreement.

 

Section 3.05             Voting Rights; Dividends and Interest.

 

(a)            Unless and until an Event of Default shall have occurred and be continuing and the Administrative Agent shall have notified the Credit Parties that their rights under this Section 3.05 are being suspended:

 

(i)       Each Credit Party shall be entitled to exercise any and all voting and other consensual rights and powers inuring to an owner of Pledged Securities or any part thereof for any purpose, subject to any limitations thereon as may be provided for in the Credit Agreement and otherwise consistent with the terms and provisions of this Agreement, the Credit Agreement and the other Loan Documents; provided, that no Credit Party shall vote to (A) enable or take other action to permit any issuer of Pledged Equity Interests to issue any additional Equity Interests except for additional Equity Interests that (1) in the case of any such issuer that is a holder or owner of any Agency Collateral, are issued ratably to all existing holders of the Equity Interests of such issuer and (2) to the extent issued to a Credit Party, will subject to the security interest of the Administrative Agent granted herein or (B) enter into any agreement or undertaking restricting the right or ability of such Credit Party or the Administrative Agent to sell, assign or transfer any Equity Interests.

 

(ii)      The Administrative Agent, at the Credit Party’s expense, shall execute and deliver to each Credit Party, or cause to be executed and delivered to such Credit Party, all such proxies, powers of attorney and other instruments as such Credit Party may reasonably request for the purpose of enabling such Credit Party to exercise the voting and other consensual rights and powers it is entitled to exercise pursuant to subparagraph (i) above.

 

(iii)     Each Credit Party shall be entitled to pay dividends and distributions solely to the extent permitted by the Credit Agreement, and each Credit Party shall be entitled to receive and retain any and all dividends, interest, principal and other distributions paid on or distributed in respect of the Pledged Securities to the extent and only to the extent that such dividends, interest, principal and other distributions are permitted by, and otherwise paid or distributed in accordance with, the terms and conditions of the Credit Agreement, the other Loan Documents and applicable laws; provided, that (x) any noncash dividends, interest, principal or other distributions that would constitute Pledged Securities, whether resulting from a subdivision, combination or reclassification of the outstanding Equity Interest of the issuer of any Pledged Securities or received in exchange for Pledged Securities or any part thereof, or in redemption thereof, or as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer may be a party or otherwise, shall be and become part of the Pledged Securities, and, if received by any Credit Party, shall not be commingled by such Credit Party with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Administrative Agent and the other Secured Parties and shall be promptly, and in any event on the next Delivery Date after receipt of same, delivered to the Administrative Agent in the same form as so received (with any necessary endorsement as described in Section 3.02(c) or otherwise) and (y) any Article 9 Collateral so received shall be subject to the applicable provisions of Article 4 hereof.

 

 

(b)            Upon the occurrence and during the continuation of an Event of Default, after the Administrative Agent shall have notified the Credit Parties of the suspension of their rights under this Section 3.05, all rights of any Credit Party to dividends, interest, principal or other distributions that such Credit Party is authorized to receive pursuant to paragraph (a)(iii) of this Section 3.05 shall cease, and all such rights shall thereupon become vested in the Administrative Agent, which shall have the sole and exclusive right and authority to receive and retain such dividends, interest, principal or other distributions. All dividends, interest, principal or other distributions received by any Credit Party contrary to the provisions of this Section 3.05 shall be held in trust for the benefit of the Administrative Agent and the other Secured Parties, shall be segregated from other property or funds of such Credit Party and shall be forthwith delivered to the Administrative Agent upon demand in the same form as so received (with any necessary endorsement). Any and all money and other property paid over to or received by the Administrative Agent pursuant to the provisions of this paragraph (b) shall be retained by the Administrative Agent in an account to be established by the Administrative Agent upon receipt of such money or other property and shall be applied in accordance with the provisions of Section 5.02. After all Events of Default have been cured or waived, as may be applicable, and the Borrower has delivered to the Administrative Agent a certificate to that effect, the Administrative Agent shall promptly repay to each Credit Party (without interest) all dividends, interest, principal or other distributions that such Credit Party would otherwise be permitted to retain pursuant to the terms of paragraph (a)(iii) of this Section 3.05 and that remain in such account.

 

(c)            Upon the occurrence and during the continuation of an Event of Default, after the Administrative Agent shall have notified the Credit Parties of the suspension of their rights under this Section 3.05, all rights of any Credit Party to exercise the voting and other consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section 3.05, and the obligations of the Administrative Agent under paragraph (a)(ii) of this Section 3.05, shall cease, and all such rights shall thereupon become vested in the Administrative Agent, which shall have the sole and exclusive right and authority to exercise such voting and other consensual rights and powers; provided that, unless otherwise directed by the Required Lenders, the Administrative Agent shall have the right from time to time following and during the continuation of an Event of Default to permit the Credit Parties to exercise such rights. After all Events of Default have been cured or waived, as may be applicable, the Credit Parties shall have the right to exercise the voting and consensual rights and powers that they would otherwise be entitled to exercise pursuant to the terms of paragraph (a)(i) above.

 

(d)            Any notice given by the Administrative Agent to the Credit Parties suspending their rights under this Section 3.05 (i) may be given to one or more of the Credit Parties at the same or different times, and (ii) may suspend the rights of the Credit Parties under paragraph (a)(i) or (a)(iii) of this Section 3.05 in part without suspending all such rights (as specified by the Administrative Agent in its sole and absolute discretion) and without waiving or otherwise affecting the Administrative Agent’s rights to give additional notices from time to time suspending other rights so long as an Event of Default has occurred and is continuing.

 

 

(e)            Solely with respect to Article 8 Matters (as defined below), each Credit Party hereby irrevocably grants and appoints the Administrative Agent, on behalf of the Secured Parties, from the date of this Agreement until the termination of this Agreement in accordance with its terms, as such Credit Party’s true and lawful proxy, for and in such Credit Party’s name, place and stead to vote all Pledged Equity Interests, whether directly or indirectly, beneficially or of record, now owned or hereafter acquired, with respect to such Article 8 Matters. The proxy granted and appointed in this Section 3.05(e) shall include the right to sign such Credit Party’s name to any consent, certificate or other document relating to an Article 8 Matter and the Pledged Equity Interests that applicable law may permit or require, to cause the Pledged Equity Interests to be voted in accordance with the preceding sentence. Each Credit Party hereby represents and warrants that there are no other proxies and powers of attorney with respect to an Article 8 Matter and the Pledged Equity Interests that such Credit Party may have granted or appointed. Each Credit Party will not give a subsequent proxy or power of attorney or enter into any other voting agreement with respect to the Pledged Equity Interests with respect to any Article 8 Matter and any attempt to do so with respect to an Article 8 Matter shall be void and of no effect.

 

As used herein, “Article 8 Matter” means any action, decision, determination or election by an issuer of Pledged Equity Interests or its member that its membership interests or other equity interests, or any of them, be, or cease to be, a “security” as defined in and governed by Article 8 of the UCC, and all other matters related to any such action, decision, determination or election.

 

The proxies and powers granted by each Credit Party pursuant to this Agreement are coupled with an interest and are given to secure the performance of such Credit Party’s obligations hereunder.

 

Section 3.06             Uniform Commercial Code Financing Statements, etc. The provisions of the first two paragraphs of Section 4.01(b) and the provisions of Section 4.02(b) are hereby incorporated by reference. Each Credit Party understands and agrees that the Administrative Agent may file UCC financing statements that include the Pledged Securities as well as the Article 9 Collateral, including any such financing statements that indicate the Collateral as “all assets” of such Credit Party, or other similar description, in each case so long as such UCC financing statements so contain any language required to be contained therein pursuant to the Agency Consents.

 

Section 3.07             Specified Ownership Interest Pledge. The terms of Article 3 shall be subject to the provisions of Article 8 which shall also be applicable with respect to the Specified Ownership Interest Pledged provided hereunder with respect to each of the Specified Pledged Entities.

 

Section 3.08             Partnership/LLC Interests. Subject to Section 7.13, each limited liability agreement, operating agreement, membership agreement, partnership agreement or similar agreement relating to any Partnership/LLC Interests included in the Collateral (a “Partnership/LLC Agreement”) shall be amended in a manner satisfactory to the Administrative Agent to the extent necessary to permit each member, manager and partner that is a Credit Party to pledge all of the Partnership/LLC Interests in which such Credit Party has rights to, and grant and collaterally assign to, the Secured Parties a lien and security interest in its Partnership/LLC Interests in which such Credit Party has rights without any further consent, approval or action by any other party, including, without limitation, any other party to any Partnership/LLC Agreement or otherwise, with the effect that, upon the occurrence and during the continuance of an Event of Default, the Secured Parties or their respective designees shall have the right (but not the obligation) to be substituted for the applicable Credit Party as a member, manager or partner under the applicable Partnership/LLC Agreement and the Secured Parties shall have all rights, powers and benefits of such Credit Party as a member, manager or partner, as applicable, under such Partnership/LLC Agreement (which for the avoidance of doubt, such rights, powers and benefits of a substituted member shall include all voting and other rights and not merely the rights of an economic interest holder).

 

 

ARTICLE 4.
SECURITY INTERESTS IN PERSONAL PROPERTY

 

Section 4.01             Security Interest.

 

(a)            As security for the payment or performance, as applicable, in full of the Secured Obligations, each Credit Party hereby reaffirms and confirms the security interest granted pursuant to the Existing Guarantee and Collateral Agreement and also grants to the Administrative Agent, its successors and assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title and interest in or to any and all of the following assets and properties now owned or at any time hereafter acquired by such Credit Party or in which such Credit Party now has or at any time in the future may acquire any right, title or interest (collectively, the “Article 9 Collateral”):

 

(i)       the Deposit Accounts and all cash or other assets or proceeds deposited therein;

 

(ii)      all Agency Collateral;

 

(iii)     all MSR Assets, whether or not yet accrued, earned, due or payable, as well as all other present and future rights and interests of the Credit Parties in MSR Assets;

 

(iv)    all Income in respect of the MSR Assets;

 

(v)     all Intellectual Property;

 

(vi)    all Contracts and all Contract Rights;

 

(vii)   the “commercial tort claims” (as defined in the UCC) specified on Schedule IV;

 

(viii)  all books and records pertaining to the Article 9 Collateral;

 

(ix)     to the extent not otherwise included above, any and all other Property held at any time by any of the Credit Parties;

 

(x)      all “accounts,” “chattel paper,” “documents,” “equipment,” “fixtures,” “general intangibles,” “goods,” “instruments,” “inventory,” “investment property,” “letter of credit rights” and “securities accounts” as each of those terms is defined in the UCC and all cash and Cash Equivalents and all products and proceeds relating to or constituting any or all of the foregoing; and

 

(xi)      to the extent not otherwise included above, all other assets of each Credit Party (other than Excluded Assets) and all proceeds and products of any and all of the foregoing and all accessions (as such term is defined in the UCC) to any of the foregoing, collateral security, supporting obligations and guarantees given by any Person with respect to any of the foregoing.

 

Notwithstanding the foregoing, neither the Article 9 Collateral nor the Pledged Securities shall include the following (collectively, the “Excluded Assets”):

 

 

(i)       any obligation or property of any kind due from, owed by or belonging to any Sanctioned Person,

 

(ii)      any assets that are subject to a purchase money lien or capital lease permitted under the Credit Agreement to the extent the documents relating to such purchase money lien or capital lease would not permit such assets to be subject to the Security Interests created hereby or the grant or perfection of additional Lien would result in a breach or termination of, or constitutes a default under, the documentation governing such Liens or the obligations secured by such Liens,

 

(iii)     any lease, license or other contract, including, without limitation, all Collateral Transaction Documents, if the grant of a security interest therein under the terms thereof or under applicable law, rule or regulation, is prohibited, or would give any other party thereto (other than a Credit Party) the right to terminate such lease, license or other contract,

 

(iv)     any tangible or intangible asset if (but only to the extent that) the grant of a security interest therein would be prohibited by applicable law, rule or regulation, and binding judicial interpretations in connection therewith,

 

(v)      motor vehicles;

 

(vi)     Excluded Property,

 

(vii)    any United States federal intent-to-use Trademark or service mark application prior to the filing of a statement or use or amendment to allege use, or any other intellectual property, to the extent that applicable law or regulation prohibits the creation of a security interest or would otherwise result in the loss of rights from the creation of such security interest or from the assignment of such rights upon the occurrence and continuance of a Default or Event of Default;

 

(viii)   those assets (including, without limitation, MSR Assets) as to which both the Administrative Agent and the Borrower reasonably determine that the cost of obtaining such a security interest or perfection thereof are excessive in relation to the benefit to the Secured Parties of the security to be afforded thereby;

 

(ix)     all Equity Interests in any Excluded Subsidiary described in clauses (a) through (c) of such definition;

 

(x)      with respect to any Fannie Mae Designated Loans, any MSR Assets and other assets of WDLLC and WD Capital expressly excluded from the definition of Fannie Mae Collateral pursuant to the provisions of Section 8.01(a) or otherwise under any applicable Agency Consent provided by Fannie Mae (but only as and to the limited extent, and only for so long as, any such assets are expressly excluded);

 

(xi)     with respect to any Freddie Mac Designated Loans, all Excluded Freddie Mac-Related Assets;

 

(xii)    with respect to any Ginnie Mae Designated Loans, any MSR Assets and other assets of WDLLC and WD Capital expressly excluded from the definition of Ginnie Mae Collateral pursuant to the provisions of Section 8.03(a) or otherwise under any applicable Agency Consent provided by Ginnie Mae (but only as and to the limited extent, and only for so long as, any such assets are expressly excluded); and

 

 

(xiii)    any Equity Interests of each First Tier Foreign Subsidiary in excess of 65% of the outstanding Voting Equity Interests and 100% of the non-Voting Equity Interests of each such First Tier Foreign Subsidiary;

 

provided, that the exclusions in clauses (ii), (iii), and (iv) shall not apply to the extent that, and for so long as (x) such prohibition or restriction is not enforceable or is otherwise ineffective under Applicable Law (including the UCC) or (y) consent to such security interest has been obtained from any applicable third party; provided that (1) nothing in this Agreement or any other Loan Document shall affect, limit, restrict or impair the grant by any Credit Party of a Security Interest in any corresponding account or any corresponding money or other amounts due and payable to any Credit Party or to become due and payable to any Credit Party under any lease, instrument, contract or agreement, a security interest in which is prohibited or restricted as described in clauses (ii), (iii) or (iv) above, unless such security interest in such corresponding account, money or other amount due and payable is also specifically prohibited or restricted by the terms of such lease, instrument, contract or other agreement or such security interest in such corresponding account, money or other amount due and payable would expressly constitute a default under or would expressly grant a party a termination right under any such lease, instrument, contract or agreement governing such right unless, in each case, (x) such prohibition is not enforceable or is otherwise ineffective under Applicable Law (including the UCC) or (y) consent to such security interest has been obtained from any applicable third party; and (2) the Security Interests granted herein shall immediately and automatically attach to and the term “Collateral” shall immediately and automatically include the rights under any such lease, instrument, contract or agreement and in any corresponding account, money, or other amounts due and payable to any Credit Party at such time as such prohibition, restriction, event of default or termination right terminates or is waived or consent to such security interest has been obtained from any applicable third party;

 

(b)            Pursuant to Section 9-509 of the UCC and any Applicable Law, each Credit Party hereby irrevocably authorizes the Administrative Agent at any time and from time to time to file in any relevant jurisdiction any financing statements with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets other than Excluded Assets” of such Credit Party or such other similar description and (ii) contain the information required by Article 9 of the UCC of each applicable jurisdiction for the filing of any financing statement or amendment, including whether such Credit Party is an organization, the type of organization and any organizational identification number issued to such Credit Party, in each case so long as such financing statements also contain any language required to be contained therein pursuant to the Agency Consents. Each Credit Party agrees to provide such information to the Administrative Agent promptly upon request. The authorization granted in this Section 4.01 does not in any way limit the obligations of the Credit Parties set forth in Sections 4.01(e) and 4.03(d).

 

Each Credit Party also ratifies its authorization for the Administrative Agent to file in any relevant jurisdictions any financing statements (including fixture filings, as applicable) or other appropriate filings, recordings or registrations or amendments thereto.

 

On or prior to the Closing Date, each Credit Party shall indicate on their respective internal records that the Administrative Agent, on behalf of the Secured Parties, has acquired a security interest therein as provided in this Agreement.

 

 

(c)            Subject to Section 8.19 of the Credit Agreement, on or before the Closing Date (or promptly but in no event more than twenty (20) days after the date of acquisition thereof if acquired after the Closing Date), the related Credit Party shall provide to the Administrative Agent:

 

(i)       in the case of MSR Assets related to an Agency Contract, an Agency Consent, duly executed by the Administrative Agent, Lenders, the applicable Credit Party and the related Agency; and

 

(ii)      in the case of any MSR Assets (or Deposit Accounts permitted pursuant to Article 8 hereunder with respect to Agency Collateral): (A) a Deposit Account Control Agreement for the Deposit Accounts into which all related Income shall be deposited in accordance with Section 4.06(a), reasonably acceptable to the Administrative Agent and duly executed by the related parties, and (B) in cases where the applicable Credit Party receives payments directly from the obligors on the related Mortgage Loans, an agreement with the lock box/clearing account bank into which such payments are made, pursuant to which such lock box/clearing account bank agrees to sweep all Income related to such Mortgage Loans into a Deposit Account described in clause (A) of this Section 4.01(c)(ii).

 

(d)            Each Credit Party shall, from time to time, at its expense, execute, deliver, file and record all statements, continuation statements, amendments, specific assignments or other instruments or documents and take any other action that may be necessary, or that the Administrative Agent or the Required Lenders, may reasonably request, to create, evidence, preserve, perfect or validate the Security Interest or to enable such requesting party to exercise and enforce its rights hereunder and under the Credit Agreement with respect to any of the Collateral.

 

(e)            The Administrative Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Credit Party, without the signature of any Credit Party, and naming any Credit Party or the Credit Parties as debtors and the Administrative Agent as secured party.

 

(f)             The Security Interest is granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Credit Party with respect to or arising out of the Collateral and notwithstanding anything in this Agreement or any Loan Document to the contrary, (i) each Credit Party shall remain liable to perform all of its duties and obligations under the contracts and agreements included in the Collateral to the same extent as if this Agreement had not been executed, (ii) the exercise by the Administrative Agent or any other Secured Party of any of the rights hereunder shall not release any Credit Party from any of its duties or obligations under the contracts and agreements included in the Collateral, (iii) the Administrative Agent and each other Secured Party shall not have any obligation or liability under the contracts and agreements included in the Collateral by reason of this Agreement, and shall not be obligated to perform any of the obligations or duties of any Credit Party thereunder or to take any action to collect or enforce any claim for payment assigned hereunder, and (iv) neither the Administrative Agent nor any other Secured Party shall have any liability in contract or tort for any Credit Party’s acts or omissions.

 

Section 4.02             Representations and Warranties. The Credit Parties jointly and severally represent and warrant to the Administrative Agent and the other Secured Parties that:

 

(a)            Each Credit Party has good and valid rights in and title to the Collateral and has full power and authority to grant to the Administrative Agent, for the ratable benefit of the Secured Parties the Security Interest in such Collateral pursuant hereto and to execute, deliver and perform its obligations in accordance with the terms of this Agreement, without the consent or approval of any other Person other than any consent or approval that has been obtained or any consent or approval which, if not obtained, could not reasonably be expected to have a Material Adverse Effect.

 

 

(b)              Each Perfection Certificate, as and to the extent required by the Administrative Agent from time to time, shall be duly prepared, completed and executed and the information set forth therein, including the exact legal name of each Credit Party, is correct and complete in all material respects as of the Closing Date. The UCC financing statements are prepared based upon the information provided to the Administrative Agent for filing in each governmental, municipal or other office specified in the applicable Perfection Certificates delivered to the Administrative Agent on the Closing Date (and as may be applicable, from time to time, after the Closing Date), are in appropriate form for filing in the appropriate offices of the states specified in the applicable Perfection Certificate, contain an adequate description of the Collateral for purposes of perfecting a security interest in such Collateral to the extent that a security interest in such Collateral may be perfected by filing in such offices and are all the filings, recordings and registrations (other than (x) filings, if any, required to be made in the United States Patent and Trademark Office and the United States Copyright Office in order to perfect the Security Interest in Article 9 Collateral consisting of United States registered Patents, United States registered Trademarks (and Trademarks for which United States registration applications are pending) and United States registered Copyrights and (y) fixture filings relating to Article 9 Collateral consisting of fixtures, which filings are not required to be made hereunder or pursuant hereto) that are necessary to publish notice of and protect the validity of and to establish a legal, valid and perfected security interest in favor of the Administrative Agent, for the ratable benefit of the Secured Parties in respect of all Collateral in which a security interest may be perfected by filing, recording or registration in the United States (or any political subdivision thereof) and its territories and possessions, and no further or subsequent filing, re-filing, recording, rerecording, registration or re-registration is necessary in any such jurisdiction, except as provided under the UCC with respect to the filing of continuation statements. Each Credit Party represents and warrants that a fully executed agreement in the form of Exhibit II, Exhibit III or Exhibit IV hereof, as applicable, and containing a description of all Article 9 Collateral consisting of Intellectual Property with respect to United States Patents (and Patents for which United States registration applications are pending), United States registered Trademarks (and Trademarks for which United States registration applications are pending) and United States registered Copyrights (and Copyrights for which United States registration applications are pending) have been delivered to the Administrative Agent and have been sent for recording by the United States Patent and Trademark Office and the United States Copyright Office pursuant to 35 U.S.C. §261, 15 U.S.C. §1060 or 17 U.S.C. §205 and the regulations thereunder, as applicable, which together with the execution of this Agreement and the filing of the UCC financing statements, establish a legal, valid and, upon such recordation, perfected security interest in favor of the Administrative Agent for the benefit of the Secured Parties in respect of all Article 9 Collateral consisting of United States Patents (and Patents for which United States registration applications are pending), United States registered Trademarks (and Trademarks for which United States registration applications are pending) and United States registered Copyrights (and Copyrights for which United States registration applications are pending) in which a security interest may be perfected by filing, recording or registration in the United States (or any political subdivision thereof) and its territories and possessions, and no further or subsequent filing, re-filing, recording, rerecording, registration or re-registration is necessary (except as provided under the UCC with respect to the filing of continuation statements and other than such actions as are necessary to perfect the Security Interest with respect to any Article 9 Collateral consisting of United States Patents (and Patents for which United States registration applications are pending), United States registered Trademarks (and Trademarks for which United States registration applications are pending) and United States registered Copyrights acquired or developed after the date hereof and other than any such actions required as a result in any change in applicable law). Each Credit Party represents and warrants that when the applicable depositary bank, the Administrative Agent and the applicable Credit Party shall have executed and delivered a Deposit Account Control Agreement the Security Interest will constitute a perfected security interest in all right, title and interest of the applicable Credit Party in the Deposit Account subject to such Deposit Account Control Agreement, in each case prior to all other Liens and rights of others therein and subject to no adverse claims, except for Permitted Liens. Each Credit Party represents and warrants that when the applicable securities intermediary (as such term is defined in the UCC), the Administrative Agent and the applicable Credit Party shall have executed and delivered a Securities Account Control Agreement, the Security Interest will constitute a perfected security interest in all right, title and interest of the applicable Credit Party in the applicable Securities Account subject to such Securities Account Control Agreement, in each case prior to all other Liens and rights of others therein and subject to no adverse claims.

 

 

(c)              The Security Interest constitutes: (i) a legal and valid security interest in all the Article 9 Collateral securing the payment and performance of the Secured Obligations, (ii) subject to the filings described in Section 4.02(b), a perfected security interest in all Article 9 Collateral (other than fixtures) in which a security interest may be perfected by filing, recording or registering a financing statement or analogous document in the United States (or any political subdivision thereof) and its territories and possessions pursuant to the UCC or other applicable law in such jurisdictions, and (iii) a security interest that shall be perfected in all Article 9 Collateral in which a security interest may be perfected upon the receipt and recording of the aforementioned UCC financing statements and the forms attached hereto as Exhibit II, Exhibit III or Exhibit IV hereof, as applicable. The Security Interest is and shall be prior to any other Lien on any of the Article 9 Collateral, other than Permitted Liens that have priority as a matter of Applicable Law.

 

(d)              The Article 9 Collateral is owned by the Credit Parties, respectively, free and clear of any Lien, except for Permitted Liens. Other than pursuant to the Loan Documents, none of the Credit Parties has filed or consented to the filing of: (i) any financing statement or analogous document under the UCC or any other Applicable Laws covering any Collateral, (ii) any assignment in which any Credit Party assigns any Collateral or any security agreement or similar instrument covering any Collateral with the United States Patent and Trademark Office or the United States Copyright Office or (iii) any assignment in which any Credit Party assigns any Article 9 Collateral or any security agreement or similar instrument covering any Article 9 Collateral with any foreign governmental, municipal or other office, which financing statement or analogous document, assignment, security agreement or similar instrument is still in effect, except, in each case, for Permitted Liens.

 

(e)              Each applicable Credit Party services the Ginnie Mae Loans pursuant to the Ginnie Mae Agreements and, other than the Ginnie Mae Agreements, there are no agreements, contracts or arrangements governing the origination or servicing of the Ginnie Mae Loans. Each applicable Credit Party services the Fannie Mae Loans pursuant to the Fannie Mae Agreements, and the ASAP Plus Agreements, and, other than the Fannie Mae Agreements and the ASAP Plus Agreements, there are no agreements, contracts or arrangements governing the origination or servicing of the Fannie Mae Loans. Each such applicable Credit Party services the Freddie Mac Loans pursuant to the Freddie Mac Agreements, and, other than the Freddie Mac Agreements, there are no agreements, contracts or arrangements governing the origination or servicing of the Freddie Mac Loans. Each such applicable Credit Party services the Investor Loans pursuant to the Investor Agreements, and, other than the Investor Agreements, there are no agreements, contracts or arrangements governing the origination or servicing of the Investor Loans.

 

 

(f)               Each such applicable Credit Party has all consents, licenses and approvals necessary to originate (and as may be applicable, to commit to insure or guarantee) and service Mortgage Loans on behalf of each Agency and applicable Investor and has remained in compliance with the Agency Agreements and the Investor Agreements, except where the failure to do so could not reasonably be expect to have a Material Adverse Effect.

 

(g)              Each Credit Party is a “registered organization” (as such term is defined in the UCC) organized under the laws of the state identified on Schedule 7.1 of the Credit Agreement and in the Perfection Certificate.

 

(h)              All Copyright registrations, Copyright applications, issued Patents, Patent applications, Trademark registrations and Trademark applications are identified on Schedule III hereto and except as noted on Schedule III, no Intellectual Property is the subject of any licensing or franchise agreement pursuant to which a Credit Party is the licensor or franchisor.

 

(i)               All “commercial tort claims” or “letter of credit rights” (as each such term is defined in the UCC) having a value of $5,000,000 or more are identified on Schedule IV.

 

(j)               Each existing account constitutes, and each hereafter arising account will, when such account arises, constitute, the legally valid and binding obligation of the applicable Account Debtor, except where the failure to do so could not reasonably be expected, individually or in the aggregate, to materially adversely affect the value or collectability of the accounts included in the Collateral, taken as a whole. No Account Debtor has any defense, set-off, claim or counterclaim against any Credit Party that can be asserted against the Administrative Agent, whether in any proceeding to enforce the Administrative Agent’s rights in the accounts included in the Collateral, or otherwise, except for defenses, setoffs, claims or counterclaims that could not reasonably be expected, individually or in the aggregate, to materially adversely affect the value or collectability of the accounts included in the Collateral, taken as a whole. None of the Credit Parties’ accounts receivables are, nor will any hereafter arising account receivable be, evidenced by a promissory note or other “instrument” (as defined in the UCC (other than a check)) that has not been pledged to the Administrative Agent in accordance with the terms hereof. No account results from a contract between any Credit Party and an agency, department or instrumentality of the United States or any state, municipal or local Governmental Authority or gives rise to obligations of any such Governmental Authority as Account Debtor to any Credit Party.

 

(k)              Each Credit Party hereby represents and warrants to the Administrative Agent for the benefit of each of the Secured Parties that each of the representations and warranties contained in Articles VII and X of the Credit Agreement, to the extent applicable to such Credit Party, are true and correct.

 

Section 4.03             Covenants.

 

(a)            As further provided in the Credit Agreement, each Credit Party agrees to give the Administrative Agent prompt written notice (but in no event later than thirty (30) days (or such shorter period as may be acceptable to the Administrative Agent in its sole discretion)) prior to any change in its (i) corporate name, (ii) type of organization or corporate structure, (iii) organizational identification number or (iv) jurisdiction of organization. Each Credit Party agrees to give the Administrative Agent prompt written notice of any change in (i) the location of its chief executive office or its principal place of business, or (ii) its Federal Taxpayer Identification Number. Each Credit Party agrees to provide the Administrative Agent with certified organizational documents reflecting any of the changes described in the first sentence of this Section 4.03(a) with the notice required in such sentence. Each Credit Party agrees promptly (but in no event later than the next Delivery Date) to notify the Administrative Agent if any portion of the Article 9 Collateral material to a Credit Party’s business owned or held by such Credit Party is damaged or destroyed.

 

 

(b)            Each Credit Party agrees to maintain in all material respects, at its own cost and expense, such complete and accurate records with respect to the Collateral owned by it as is consistent with its current practices and in accordance with such standard practices used in industries that are the same as or similar to those in which such Credit Party is engaged, but in any event to include complete accounting records indicating all payments and proceeds received with respect to any part of the Collateral.

 

(c)            Each Credit Party shall, at its own expense, take any and all actions necessary to defend title to the Collateral (other than Collateral that is deemed by such Credit Party not to be material to the conduct of its business) against all Persons and to defend the security interests of the Administrative Agent in the Collateral and the priority thereof against any Lien not permitted pursuant to the Credit Agreement. Nothing in this Agreement shall prevent any Credit Party from discontinuing the operation or maintenance of any of its assets or properties if such discontinuance is permitted by the Credit Agreement.

 

(d)            Each Credit Party agrees, at its own expense, to execute, acknowledge, deliver and cause to be duly filed all such further instruments and documents and take all such actions as the Administrative Agent may from time to time reasonably request to better assure, preserve, protect and perfect the Security Interests in the Collateral and the rights and remedies created hereby, including taking of all actions required by Section 8.6 of the Credit Agreement and the payment of any fees and taxes required in connection with the execution and delivery of this Agreement, the granting of the Security Interests in the Collateral hereunder and the filing of any financing statements (including fixture filings) or other documents (including execution of agreements in the form of Exhibits II, III and IV and filing such agreements with the United States Patent and Trademark Office or United States Copyright Office, as applicable) in connection herewith or therewith; provided, however, that for so long as no Event of Default shall have occurred and be continuing, nothing in this Section 4.03(d) shall require any Credit Party to take perfection actions that are not otherwise required under any other clauses of Article 3 or Article 4. If any amount payable to any Credit Party under or in connection with any of the Article 9 Collateral shall be or become evidenced by any promissory note or other instrument in excess of $5,000,000 (other than, at any time that no Default or Event of Default has occurred and is continuing, any promissory note or other Pledged Debt with respect to any Mortgage Loan originated or acquired in the ordinary course of business), such note or instrument shall be promptly (but in no event later than the next Delivery Date) pledged and delivered to the Administrative Agent, duly endorsed in a manner reasonably satisfactory to the Administrative Agent.

 

(e)            Subject to, and in accordance with, the terms and provisions of the Credit Agreement (including all limits on expense reimbursement set forth therein), the Administrative Agent and such Persons as the Administrative Agent may reasonably designate shall have the right, at the Credit Parties’ own cost and expense, to inspect the Article 9 Collateral, all material records related thereto (and to make extracts and copies from such records) and the premises upon which any of the Article 9 Collateral is located, to discuss the Credit Parties’ affairs with the officers of the Credit Parties and their independent accountants and to verify under reasonable procedures the validity, amount, quality, quantity, value, condition and status of, or any other matter relating to, the Article 9 Collateral, including (upon the occurrence and during the continuation of an Event of Default or with the consent of the applicable Credit Party (not to be unreasonably withheld, delayed, or conditioned)), in the case of Agency Collateral, MSR Assets or other Article 9 Collateral in the possession of any third person, by contacting Account Debtors or the third person possessing such Article 9 Collateral for the purpose of making such a verification. Subject to any confidentiality requirements set forth in the Loan Documents, the Administrative Agent shall have the absolute right to share any information it gains from such inspection or verification with any Secured Party.

 

 

(f)             During the continuance of an Event of Default, the Administrative Agent, at its option, may (but shall have no obligation to) discharge past due taxes, assessments, charges, fees or Liens at any time levied or placed on the Collateral and not permitted pursuant to the terms and provisions of the Credit Agreement, and may pay for the maintenance and preservation of the Article 9 Collateral to the extent any Credit Party fails to do so as required by the Credit Agreement or this Agreement, and each Credit Party jointly and severally agrees to reimburse the Administrative Agent on demand for any payment made or any expense incurred by the Administrative Agent pursuant to the foregoing authorization; provided that nothing in this paragraph shall be interpreted as excusing any Credit Party from the performance of, or imposing any obligation on the Administrative Agent or any Secured Party to cure or perform, any covenants or other promises of any Credit Party with respect to taxes, assessments, charges, fees, Liens and maintenance as set forth in this Agreement or in the other Loan Documents; provided, further, that the Administrative Agent or any Lender shall not discharge any past due taxes, assessments, charges, fees or Liens if being contested by one or more of the Credit Parties in accordance with the Credit Agreement and the applicable Credit Party has notified the Administrative Agent in writing of such contest.

 

(g)            If at any time any Credit Party shall take a security interest in any property of an Account Debtor or any other Person with a value in excess of $5,000,000 to secure payment and performance of any account (other than, at any time that no Default or Event of Default has occurred and is continuing, any mortgage or other security taken with respect to any Mortgage Loan originated or acquired in the ordinary course of business), such Credit Party shall promptly (but in no event later than the next Delivery Date) assign such security interest to the Administrative Agent. Such assignment need not be filed of public record unless necessary to continue the perfected status of the security interest against creditors of and transferees from the Account Debtor or other Person granting the security interest.

 

(h)            Each Credit Party shall remain liable to observe and perform all the conditions and material obligations to be observed and performed by it under each contract, agreement or instrument relating to the Collateral, all in accordance with the terms and conditions thereof, and each Credit Party jointly and severally agrees to indemnify and hold harmless the Administrative Agent and the other Secured Parties from and against any and all liability for such performance.

 

(i)             None of the Credit Parties shall make or permit to be made an assignment, pledge or hypothecation of the Collateral or shall grant any other Lien in respect of the Collateral, or otherwise agree to enter into (or agree to enter into) a Negative Pledge, except to the extent permitted by the Credit Agreement. None of the Credit Parties shall make or permit to be made any transfer of the Collateral except to the extent permitted by the Credit Agreement, and each Credit Party shall remain at all times in possession of the Collateral owned by it, except to the extent permitted by the Credit Agreement.

 

(j)             Each Credit Party irrevocably makes, constitutes and appoints the Administrative Agent (and all officers, employees or agents designated by the Administrative Agent) as such Credit Party’s true and lawful agent (and attorney-in-fact) for the purpose, upon the occurrence and during the continuation of an Event of Default, of making, settling and adjusting claims in respect of Article 9 Collateral under policies of insurance, endorsing the name of such Credit Party on any check, draft, instrument or other item of payment for the proceeds of such policies of insurance and for making all determinations and decisions with respect thereto. In the event that any Credit Party at any time or times shall fail to obtain or maintain any of the policies of insurance required under the Credit Agreement or to pay any premium in whole or part relating thereto, the Administrative Agent may, without waiving or releasing any obligation or liability of the Credit Parties hereunder or any Event of Default, in its sole reasonable discretion, obtain and maintain such policies of insurance and pay such premium and take any other actions with respect thereto as the Administrative Agent deems advisable. All sums disbursed by the Administrative Agent in connection with this paragraph, including reasonable attorneys’ fees, court costs, out-of-pocket expenses and other charges relating thereto, shall be payable, upon demand, by the Credit Parties to the Administrative Agent and shall be additional Secured Obligations secured hereby.

 

 

(k)            Without limiting the generality of the covenants set forth in the Credit Agreement, each Credit Party shall comply fully with the covenants set forth in Section 9.10 of the Credit Agreement.

 

Section 4.04             Other Actions. In order to ensure the attachment, perfection and priority of, and the ability of the Administrative Agent to enforce, the Security Interest, each Credit Party agrees, in each case at such Credit Party’s own expense, to take the following actions with respect to the following Article 9 Collateral (but in no event with respect to any Excluded Assets):

 

(a)              Instruments and Tangible Chattel Paper. Each Credit Party represents and warrants that each “instrument” and each item of “tangible-chattel paper” (as each such term is defined in the UCC) with a value in excess of $5,000,000 in existence on the date hereof and subject to the Security Interest of this Agreement (other than any promissory note or other instrument with respect to any Mortgage Loan originated or acquired in the ordinary course of business) has been properly endorsed, assigned and delivered to the Administrative Agent, accompanied by instruments of transfer or assignment duly executed in blank. If any Credit Party shall at any time hold or acquire any “instruments” or “chattel paper” with a value in excess of $5,000,000, such Credit Party shall promptly (but in no event later than the next Delivery Date) endorse, assign and deliver the same to the Administrative Agent, accompanied by such undated instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time reasonably request.

 

(b)              Electronic Chattel Paper and Transferable Records. If any Credit Party at any time holds or acquires an interest in any electronic “chattel paper” or any “transferable record,” as that term is defined in Section 201 of the Federal Electronic Signatures in Global and National Commerce Act, or in Section 16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction with a value in excess of $5,000,000, such Credit Party shall promptly (but in no event later than the next Delivery Date) notify the Administrative Agent in writing thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent control under UCC Section 9-105 of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as applicable, Section 16 of the Uniform Electronic Transactions Act, as in effect in such jurisdiction, of such transferable record. The Administrative Agent agrees with such Credit Party that the Administrative Agent will arrange, pursuant to procedures reasonably satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for the Credit Party to make alterations to the electronic chattel paper or transferable record permitted under UCC Section 9-105 or, as applicable, Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or Section 16 of the Uniform Electronic Transactions Act for a party in control to allow without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Credit Party with respect to such electronic chattel paper or transferable record.

 

 

(c)              [Reserved].

 

(d)              Commercial Tort Claims. If any Credit Party shall at any time hold or acquire a commercial tort claim in an amount reasonably estimated by such Credit Party to exceed $5,000,000, such Credit Party shall promptly (but in no event later than the next Delivery Date) notify the Administrative Agent thereof in a writing signed by such Credit Party including a summary description of such claim and grant to the Administrative Agent, for the ratable benefit of the Secured Parties in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance reasonably satisfactory to the Administrative Agent.

 

(e)              Accounts. Other than in the ordinary course of business consistent with its past practice, no Credit Party will (i) amend, supplement, modify, extend, compromise, settle, credit or discount any account or (ii) release, wholly or partially, any Account Debtor, except where such extension, compromise, settlement, release, credit, discount, amendment, supplement or modification could not reasonably be expected, either individually or in the aggregate, to have a material adverse effect on the value of the accounts, taken as a whole.

 

Section 4.05             Covenants Regarding Patent, Trademark and Copyright Collateral.

 

(a)            Each Credit Party agrees that it will not do any act or omit to do any act (and will exercise commercially reasonable efforts to prevent its licensees from doing any act or omitting to do any act) whereby any Patent that is material to the conduct of such Credit Party’s business would become invalidated or dedicated to the public, and agrees that it shall continue to mark any products covered by a Patent with the relevant patent number as necessary and sufficient in its reasonable judgment to establish and preserve its material rights under applicable patent laws.

 

(b)            Each Credit Party (either itself or by agreement with its licensees or its sublicensees) will, for each Trademark material to the conduct of such Credit Party’s business, (i) maintain such Trademark in full force free from any claim of abandonment or invalidity for non-use, (ii) use commercially reasonable efforts to maintain the quality of products and services offered under such Trademark, (iii) display such Trademark with notice of Federal or foreign registration (or, if such Trademark is unregistered, display such Trademark with notice as required for unregistered Trademarks) as necessary and sufficient in its reasonable judgment to establish and preserve its material rights under Applicable Laws and (iv) not knowingly use or knowingly permit the use of such Trademark in any violation of any third party rights.

 

(c)            Each Credit Party (either itself or by agreement with its licensees or sublicensees) will, for each work covered by a Copyright material to the conduct of such Credit Party’s business, continue to publish, reproduce, display, adopt and distribute the work with appropriate copyright notice as necessary and sufficient in its reasonable judgment to establish and preserve its material rights under applicable copyright laws.

 

(d)            Each Credit Party shall notify the Administrative Agent in writing promptly (but in no event later than the next Delivery Date) if it knows that any Patents, Trademarks or Copyrights material to the conduct of its business could reasonably be expected to become abandoned, lost or dedicated to the public, or of any materially adverse determination or development (including the institution of, or any such determination or development in, any proceeding in the United States Patent and Trademark Office, United States Copyright Office or any court or similar office of any country) regarding such Credit Party’s ownership of any such Patent, Trademark or Copyright, its right to register the same, or its right to keep and maintain the same.

 

 

 

(e)            In no event shall any Credit Party, either itself or through any agent, employee, licensee or designee, file an application with respect to any Patents, Trademarks or Copyrights material to the conduct of its business with the United States Patent and Trademark Office, United States Copyright Office or any office or agency in any political subdivision of the United States or in any other country or any political subdivision thereof, unless it promptly (but in no event later than the next Delivery Date) informs the Administrative Agent in writing and, upon request of the Administrative Agent, executes and delivers any and all agreements, instruments, documents and papers as the Administrative Agent may reasonably request to evidence the Administrative Agent’s security interest in such Patents, Trademarks or Copyrights, and each Credit Party hereby appoints the Administrative Agent as its attorney-in-fact to execute and file such writings as are reasonably necessary for the foregoing purposes, all acts of such attorney being hereby ratified and confirmed; such power, being coupled with an interest, is irrevocable.

 

(f)             Each Credit Party will exercise commercially reasonable steps that are consistent with the practice in any proceeding before the United States Patent and Trademark Office, United States Copyright Office or any office or agency in any political subdivision of the United States or in any other country or any political subdivision thereof, to maintain and pursue each registration or application that is material to the conduct of such Credit Party’s business relating to the Patents, Trademarks and/or Copyrights (and to obtain the relevant grant or registration) and to maintain each issued Patent and each registration of the Trademarks and Copyrights that is material to the conduct of any Credit Party’s business, including timely filings of applications for renewal, affidavits of use, affidavits of incontestability and payment of maintenance fees, and, if in its reasonable business judgment, to initiate opposition, interference and cancellation proceedings against third parties.

 

(g)            In the event that any Credit Party knows that any Article 9 Collateral consisting of a Patents, Trademarks or Copyrights material to the conduct of any Credit Party’s business has been or is about to be infringed, misappropriated or diluted by a third party, such Credit Party shall promptly (but in no event later than the next Delivery Date) notify the Administrative Agent in writing and shall, if in its reasonable business judgment, promptly sue for infringement, misappropriation or dilution and to recover any and all damages for such infringement, misappropriation or dilution (and take any actions required by Applicable Law prior to instituting such suit), and take such other actions as are appropriate under the circumstances to protect such Article 9 Collateral. Nothing in this Agreement shall prevent any Credit Party from discontinuing the use or maintenance of any Article 9 Collateral consisting of a Patents, Trademarks or Copyrights, or require any Credit Party to pursue any claim of infringement, misappropriation or dilution, if (x) such Credit Party so determines in its reasonable business judgment and (y) it is not prohibited by the Credit Agreement.

 

(h)            Upon and during the continuation of an Event of Default, each Credit Party shall, at the request of the Administrative Agent, use its commercially reasonable efforts to obtain all requisite consents or approvals by the licensor of each Copyright License, Patent License or Trademark License to effect the assignment of all such Credit Party’s right, title and interest thereunder to the Administrative Agent or its designee.

 

Section 4.06           Covenants Related to Agency Collateral and MSR Assets. Subject at all times to the provisions of Article 8:

 

(a)            Within two (2) Business Days after receipt (or immediately upon withdrawal from the applicable custodial account held by any applicable Credit Party in its capacity as Servicer at least once per calendar month), each Credit Party shall cause all Income received or retained by it to be deposited directly into a Deposit Account subject to a Deposit Account Control Agreement and, to the extent any Credit Party is in possession or control of any Income not so deposited, shall hold such Income in trust for the Administrative Agent hereunder and promptly deposit such Income into a Deposit Account subject to a Deposit Account Control Agreement;

 

 

(b)            Each applicable Credit Party shall perform its obligations under and in accordance with the related Collateral Transaction Documents, Servicing Contracts, and other Agency Agreements in all material respects, shall not waive any or all of its material rights thereunder (including its rights to any Income) and shall use commercially reasonable efforts to prevent termination of such Credit Party by the applicable Agency and Investor, except if such termination would not be reasonably likely to have a material adverse effect on the Collateral, taken as a whole; and

 

(c)            Without the prior written consent of the Administrative Agent, no Credit Party shall agree to any modification or amendment to the Collateral Transaction Documents which may have a material adverse effect on the value of, or the Secured Parties’ interest in, the related Collateral, taken as a whole; subject at all times, however, to the provisions of Article 8 hereunder and the provisions of Section 9.12 of the Credit Agreement.

 

Section 4.07           Deposit Accounts and Securities Accounts. As of the date hereof each Credit Party has neither opened nor maintains any Deposit Accounts other than the accounts listed on Schedule V. From and after the date hereof (or (x) in the case of any Deposit Account which was an Excluded Account but ceases to constitute same, thirty (30) days after such cessation or (y) in each case, such longer period as is acceptable to the Administrative Agent in its sole discretion), each of the Deposit Accounts (other than Excluded Accounts) of each Credit Party shall be subject to the terms of a fully executed Deposit Account Control Agreement. No Credit Party shall hereafter establish or maintain any Deposit Account (other than an Excluded Account) unless (1) the applicable Credit Party shall have given the Administrative Agent ten (10) days’ (or such other period as may be acceptable to the Administrative Agent in its sole discretion) prior written notice of its intention to establish such new Deposit Account with a Cash Management Bank, (2) such Cash Management Bank shall be reasonably acceptable to the Administrative Agent, and (3) such Cash Management Bank and such Credit Party shall have duly executed and delivered to the Administrative Agent a Deposit Account Control Agreement with respect to such Deposit Account within thirty (30) days of its being established (or such longer period as the Administrative Agent agrees in its sole discretion). The Administrative Agent agrees with each Credit Party that the Administrative Agent shall not give any instructions directing the disposition of funds from time to time credited to any Deposit Account or withhold any withdrawal rights from such Credit Party with respect to funds from time to time credited to any Deposit Account except upon the occurrence and during the continuation of an Event of Default. No Credit Party shall grant Control of any Deposit Account (other than Excluded Accounts) to any person other than the Administrative Agent. Each Credit Party shall, promptly following a request of the Administrative Agent, provide it with a list of all Deposit Accounts (including Excluded Accounts) then maintained by it and all other information relating thereto as may be reasonably requested.

 

(a)            As of the date hereof no Credit Party has any Securities Accounts other than those listed in Schedule VI, respectively. From and after the date hereof (or such longer period as is acceptable to the Administrative Agent), the Administrative Agent shall have a perfected first priority security interest in such Securities Accounts by Control. No Credit Party shall hereafter establish and maintain any Securities Account with any Securities Intermediary unless (1) the applicable Credit Party shall have given the Administrative Agent thirty (30) days’ (or such other period as may be acceptable to the Administrative Agent in its sole discretion) prior written notice of its intention to establish such new Securities Account with such securities intermediary, (2) such securities intermediary or commodity intermediary shall be reasonably acceptable to the Administrative Agent, and (3) such securities intermediary and such Credit Party shall have duly executed and delivered a Securities Account Control Agreement with respect to such Securities Account. The Administrative Agent agrees with each Credit Party that the Administrative Agent shall not give any entitlement orders or instructions or directions to any issuer of uncertificated securities or securities intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Credit Party, unless an Event of Default has occurred and is continuing or, after giving effect to any such investment and withdrawal rights, would occur. No Credit Party shall grant Control over any investment property to any person other than the Administrative Agent. Each Credit Party shall, promptly following a request of the Administrative Agent, provide it with a list of all Securities Accounts (including Excluded Accounts) then maintained by it and all other information relating thereto as may be reasonably requested.

 

 

(b)            The provisions of this Section 4.07 (other than information provisions) shall not apply to any Excluded Accounts (as defined below). For purposes of this clause (c), “Excluded Accounts” means (A) any Securities Account for which the Administrative Agent is the securities intermediary, (B) any Deposit Account maintained solely for payroll purposes or holding solely restricted cash in connection with self-insurance programs, (C) all accounts solely holding restricted cash in respect of Agency Requirements and including, without limitation, any account the purpose of which is to hold reserves securing the Credit Parties’ loss sharing obligations to Fannie Mae, (D) all accounts maintained solely as trust, escrow, payroll or similar accounts for the benefit of third parties, (E) all accounts maintained solely for purposes of holding proceeds of Permitted Funding Collateral, (F) zero balance accounts maintained in the ordinary course of business with amounts on deposit that do not exceed the amounts necessary to cover checks written, or electronic funds transfers drawn, in the ordinary course of business and (G) so long as no Default or Event of Default has occurred and is continuing, any Deposit Accounts with an amount on deposit that does not exceed (1) $2,000,000 individually or (2) when aggregated with the amounts on deposit in all other Deposit Accounts for which Deposit Account Control Agreements have not been obtained (other than those specified in clauses (B) through (F) above), $5,000,000, in either case, at any time; provided that, for the avoidance of doubt, the amount in these subsections (c)(G)(1) and (c)(G)(2) hereto shall be calculated net of the amount of any pending wires and, to the extent not already netted from the account balance, post-dated wires drawn on the applicable amount.

 

ARTICLE 5.
REMEDIES

 

Section 5.01           Remedies upon Default. Subject to Article 8, upon the occurrence and during the continuance of any Event of Default, the Administrative Agent may, or upon the request of the Required Lenders, the Administrative Agent shall, enforce against the Credit Parties their obligations and liabilities hereunder and exercise such other rights and remedies as may be available to the Administrative Agent hereunder, under the Credit Agreement, the other Loan Documents, the Cash Management Agreements, the Hedge Agreements or otherwise. Upon the occurrence and during the continuation of an Event of Default, each Credit Party agrees to deliver each item of Collateral to the Administrative Agent on demand, and it is agreed that the Administrative Agent shall have the right to take any of or all the following actions at the same or different times: (a) with respect to any Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and conveyance of any of or all such Article 9 Collateral by the applicable Credit Parties to the Administrative Agent, for the ratable benefit of the Secured Parties (provided that no such assignment shall occur if it results in the termination, nullification or avoidance of such Intellectual Property) or to license or sublicense, whether general, special or otherwise, and whether on an exclusive or nonexclusive basis, any such Article 9 Collateral throughout the world on such terms and conditions and in such manner as the Administrative Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers cannot be obtained); (b) with or without legal process and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral and, generally, to exercise any and all rights afforded to a secured party under the UCC or other applicable law; and (c) such additional rights and remedies to which a secured party is entitled at law or in equity, including, without limitation, the right, to the maximum extent permitted by law, to exercise all voting, consensual and other powers of ownership pertaining to the Pledged Securities as if the Administrative Agent were the sole and absolute owner thereof (and each Credit Party agrees to take all such action as may be reasonably appropriate to effect such right). Without limiting the generality of the foregoing, upon the occurrence and during the continuance of an Event of Default, each Credit Party agrees that the Administrative Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral at a public or private sale or at any broker’s board or on any securities exchange, for cash, upon credit or for future delivery as the Administrative Agent shall deem appropriate. Each such purchaser at any sale of Collateral shall hold the property sold absolutely, free from any claim or right on the part of any Credit Party, and each Credit Party hereby waives (to the extent permitted by law) all rights of redemption, stay and appraisal that such Credit Party now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

 

 

The Administrative Agent shall give the applicable Credit Parties ten (10) days’ written notice (which each Credit Party agrees is reasonable notice within the meaning of Section 9-611 of the UCC or its equivalent in other jurisdictions) of the Administrative Agent’s intention to make any sale of Collateral. Such notice, in the case of a public sale, shall state the time and place for such sale and, in the case of a sale at a broker’s board or on a securities exchange, shall state the board or exchange at which such sale is to be made and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Administrative Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Administrative Agent may determine in its sole and absolute discretion. The Administrative Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Administrative Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Administrative Agent until the sale price is paid by the purchaser or purchasers thereof, but the Administrative Agent and the other Secured Parties shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by law, private) sale made pursuant to this Agreement, any Secured Party may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Credit Party (all said rights being also hereby waived and released to the extent permitted by law), the Collateral or any part thereof offered for sale, and such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Credit Party therefor. For purposes hereof, a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof; the Administrative Agent shall be free to carry out such sale pursuant to such agreement and no Credit Party shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Administrative Agent shall have entered into such an agreement, all Events of Default shall have been remedied and the Secured Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Administrative Agent may proceed by a suit or suits at law or in equity to foreclose this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver. Any sale pursuant to the provisions of this Section 5.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610(b) of the UCC or its equivalent in other jurisdictions.

 

 

Section 5.02           Application of Proceeds.

 

(a)            The Administrative Agent shall apply the proceeds of any collection or sale of Collateral pursuant to Section 11.4 of the Credit Agreement.

 

(b)            Upon any sale of Collateral by the Administrative Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt by the Administrative Agent or by the officer making the sale of any proceeds, moneys or balances of such sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Administrative Agent or such officer or be answerable in any way for the misapplication thereof. To the extent permitted by applicable law, each Credit Party waives all claims, damages and demands it may have against the Administrative Agent or any other Secured Party arising out of the exercise by the Administrative Agent of any of its rights hereunder, except for any claims, damages and demands it may have against the Administrative Agent arising from the willful misconduct, bad faith or gross negligence of the Administrative Agent.

 

(c)            The rights, powers and privileges of the Administrative Agent or any other Secured Party under this Agreement and the other Loan Documents are cumulative and shall be in addition to all rights, powers, privileges and remedies available to the Administrative Agent and any other such Secured Party at law or in equity. Any such rights, powers and remedies shall be cumulative and may be exercised successively or concurrently without impairing the rights of the Administrative Agent or any other such Secured Party hereunder.

 

(d)            All payments required to be made hereunder shall be made to the Administrative Agent for the account of the applicable Secured Parties.

 

(e)            For purposes of applying payments received in accordance with this Section 5.02, the Administrative Agent shall be entitled to rely upon the respective Secured Parties for a determination (which respective Secured Parties agree (or shall agree) to provide upon request of the Administrative Agent) of the outstanding Secured Obligations owed to the Lenders or other such Secured Parties, as the case may be. Unless it has received written notice from a Lender or another Secured Party to the contrary, the Administrative Agent, in acting hereunder, shall be entitled to assume that no Hedge Agreements and obligations under the Cash Management Agreements secured hereunder are in existence.

 

(f)             It is understood that the Credit Parties shall remain jointly and severally liable to the extent of any deficiency between the amount of the proceeds of the Collateral and the aggregate amount of the Secured Obligations.

 

Section 5.03           Grant of License To Use Intellectual Property. For the purpose of enabling the Administrative Agent to exercise rights and remedies under this Agreement at such time as the Administrative Agent shall be lawfully entitled to exercise such rights and remedies, each Credit Party grants to (in the Administrative Agent’s sole discretion) the Administrative Agent or a designee of the Administrative Agent an irrevocable, nonexclusive license (exercisable without payment of royalty or other compensation to the Credit Parties) to use, license or sublicense (except as may not be permitted by applicable law or contract) any of the Article 9 Collateral consisting of Intellectual Property now owned or hereafter acquired by such Credit Party, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. Notwithstanding the preceding sentence, the effectiveness of such license is contingent, and the use of such license by the Administrative Agent shall be exercised, at the option of the Administrative Agent, only upon the occurrence and during the continuation of an Event of Default; provided, that any license, sublicense or other transaction entered into by the Administrative Agent in accordance herewith shall be binding upon the Credit Parties notwithstanding any subsequent cure of an Event of Default.

 

 

Section 5.04           Securities Act. In view of the position of the Credit Parties in relation to the Pledged Securities, or because of other current or future circumstances, a question may arise under the Securities Act of 1933, as now or hereafter in effect, or any similar statute hereafter enacted analogous in purpose or effect (such Act and any such similar statute as from time to time in effect being called the “Federal Securities Laws”) with respect to any disposition of the Pledged Securities permitted hereunder. Each Credit Party understands that compliance with the Federal Securities Laws might very strictly limit the course of conduct of the Administrative Agent if the Administrative Agent were to attempt to dispose of all or any part of the Pledged Securities, and might also limit the extent to which or the manner in which any subsequent transferee of any Pledged Securities could dispose of the same. Similarly, there may be other legal restrictions or limitations affecting the Administrative Agent in any attempt to dispose of all or part of the Pledged Securities under applicable “blue sky” or other state securities laws or similar laws analogous in purpose or effect. Each Credit Party recognizes that in light of such restrictions and limitations the Administrative Agent may, with respect to any sale of the Pledged Securities, limit the purchasers to those who will agree, among other things, to acquire such Pledged Securities for their own account, for investment, and not with a view to the distribution or resale thereof. Each Credit Party acknowledges and agrees that in light of such restrictions and limitations, the Administrative Agent, in its sole and absolute discretion (a) may proceed to make such a sale whether or not a registration statement for the purpose of registering such Pledged Securities or part thereof shall have been filed under the Federal Securities Laws and (b) may approach and negotiate with a single potential purchaser to effect such sale. Each Credit Party acknowledges and agrees that any such sale might result in prices and other terms less favorable to the seller than if such sale were a public sale without such restrictions. In the event of any such sale, the Administrative Agent shall incur no responsibility or liability for selling all or any part of the Pledged Securities at a price that the Administrative Agent, in its sole and absolute discretion, may in good faith deem reasonable under the circumstances, notwithstanding the possibility that a substantially higher price might have been realized if the sale were deferred until after registration as aforesaid or if more than a single purchaser were approached. The provisions of this Section 5.04 will apply notwithstanding the existence of a public or private market upon which the quotations or sales prices may exceed substantially the price at which the Administrative Agent sells.

 

Section 5.05           Agency Collateral. The provisions of this Article 5 are subject to the provisions of Article 8.

 

ARTICLE 6.
INDEMNITY, SUBROGATION AND SUBORDINATION

 

Section 6.01           Indemnity and Subrogation. In addition to all rights of indemnity and subrogation as any Credit Party may have under applicable law (but in each case subject to Section 6.03), each Credit Party agrees that: (a) in the event a payment of any Secured Obligation shall be made by any Credit Party under this Agreement, the other Credit Party shall indemnify such Credit Party for the full amount of such payment and such Credit Party shall be subrogated to the rights of the Person to whom such payment shall have been made to the extent of such payment and (b) in the event any assets of any Credit Party shall be sold pursuant to this Agreement or any other Security Document to satisfy in whole or in part any Secured Obligation owed to any Secured Party, each of the other Credit Parties shall indemnify such Credit Party in an amount equal to the fair value of the assets so sold.

 

 

Section 6.02           Contribution and Subrogation. Each Credit Party agrees (subject to Section 6.03) that to the extent such Credit Party shall have paid more than its proportionate share (based, to the maximum extent permitted by law, on the respective assets, liabilities and net worth of such Credit Parties on the date the respective payment is made) of any payment made hereunder (whether as a guarantor hereunder, with proceeds of the Collateral of any Credit Party applied hereunder deemed for this purpose to be payments made by it), such Credit Party shall be entitled to seek and receive contribution from and against any other Credit Party hereunder that has not paid its proportionate share of such payment. Each Credit Party’s right of contribution shall be subject to the terms and conditions of Section 6.03. Notwithstanding anything to the contrary contained above, any Credit Party that is released from this Agreement (and its guarantees contained herein) in accordance with the express provisions of Section 7.14(b) shall thereafter have no contribution obligations, or rights, pursuant to this Section 6.02, and at the time of any such release, the contribution rights and obligations of the remaining Credit Parties shall be recalculated on the respective date of release (as otherwise provided herein) based on the payments made hereunder by the remaining Credit Parties. Each Credit Party’s right of contribution shall be subject to the terms and conditions of Section 6.03. The provisions of this Section 6.02 shall in no respect limit the obligations and liabilities of any Credit Party to the Administrative Agent and the other Secured Parties, and each Credit Party shall remain liable to the Administrative Agent and the other Secured Parties for the full amount guaranteed by such Credit Party hereunder.

 

Section 6.03           Subordination. Notwithstanding any provision in this Agreement to the contrary, all rights of the Credit Parties under Sections 6.01 and 6.02 and all other rights of indemnity, contribution or subrogation under applicable law or otherwise shall be fully subordinated to the indefeasible payment in full in cash of the Secured Obligations, and no Credit Party shall be entitled to be subrogated to any of the rights of the Administrative Agent or any other Secured Party against any other Credit Party or any collateral security or guarantee or right of offset held by the Administrative Agent or any other Secured Party for the payment of any of the Secured Obligations, nor shall any Credit Party seek or be entitled to seek any contribution or reimbursement from any other Credit Party in respect of payments made by such Credit Party hereunder (or paid with proceeds of collateral of such Credit Party hereunder), until all amounts owing to the Administrative Agent and the other Secured Parties on account of the Secured Obligations are paid in full in cash, all Commitments have been terminated and all Letters of Credit have expired or been terminated other than Letters of Credit which have been cash collateralized in accordance with the terms of the Credit Agreement or as to which other arrangements satisfactory to the Administrative Agent and the applicable Issuing Bank have been made. If any amount shall be paid to any Credit Party on account of such contribution or subrogation rights at any time when all of the Secured Obligations shall not have been paid in full in cash, such amount shall be held by such Credit Party in trust for the Administrative Agent and the other Secured Parties, segregated from other funds of such Credit Party, and shall, forthwith upon receipt by such Credit Party, be turned over to the Administrative Agent in the exact form received by such Credit Party (duly indorsed by such Credit Party to the Administrative Agent, if required), to be held as collateral security for all of the Secured Obligations (whether matured or unmatured) of, or guaranteed by, such Credit Party and/or then or at any time thereafter may be applied against any Secured Obligations, whether matured or unmatured, in such order as the Administrative Agent may determine.

 

ARTICLE 7.
MISCELLANEOUS

 

Section 7.01           Notices. All communications and notices hereunder shall (except as otherwise expressly permitted in this Agreement) be in writing and given as provided in Section 13.1 of the Credit Agreement, and with respect to communications with each Agency, as provided in Article 8 hereof; provided that no communication or notice hereunder from the Administrative Agent to any Credit Party upon the occurrence and during the continuation of an Event of Default may be given by telephone.

 

 

Section 7.02           Waivers; Amendment.

 

(a)            No failure or delay by any Secured Party in exercising any right or power hereunder or under any of the other Loan Documents shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power; provided, that no such single or partial exercise or abandonment or discontinuance shall prejudice any Credit Party in any material respect. The rights and remedies of the Secured Parties hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision in this Agreement or consent to any departure by any Credit Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 7.02, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Credit Party in any case shall entitle any Credit Party to any other or further notice or demand in similar or other circumstances.

 

(b)            Neither this Agreement nor any provision hereof may be waived, amended or modified nor any consent be given except in accordance with Section 13.2 of the Credit Agreement.

 

Section 7.03           Indemnification.

 

(a)            The Credit Parties, jointly and severally, shall pay all out-of-pocket expenses (including, without limitation, attorneys’ fees and expenses) incurred by the Administrative Agent and each other Secured Party to the extent the Borrower would be required to do so pursuant to Section 13.3 of the Credit Agreement.

 

(b)            The Credit Parties, jointly and severally, shall pay and shall indemnify each Indemnitee against Indemnified Taxes and Other Taxes to the extent the Borrower would be required to do so pursuant to Section 5.11 of the Credit Agreement.

 

(c)            The Credit Parties, jointly and severally, shall indemnify each Indemnitee to the extent the Borrower would be required to do so pursuant to Section 13.3 of the Credit Agreement.

 

(d)            Each Credit Party hereby confirms its obligations under Section 13.3 of the Credit Agreement in all respects.

 

(e)            Any such amounts payable as provided hereunder shall be additional Secured Obligations secured hereby and by the other Loan Documents. The provisions of this Section 7.03 shall remain operative and in full force and effect regardless of the termination of this Agreement or any of the other Loan Documents, the consummation of the transactions contemplated hereby, the repayment of any of the Secured Obligations, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document, or any investigation made by or on behalf of the Administrative Agent or any other Secured Party. Any amounts due under this Section 7.03 shall be payable on written demand therefor.

 

Section 7.04           Successors and Assigns. Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the permitted successors and assigns of such party; and all covenants, promises and agreements by or on behalf of any Credit Party to the Administrative Agent that are contained in this Agreement shall bind and inure to the benefit of their respective successors and assigns and shall inure to the benefit of the other Secured Parties and their respective successors and assigns; provided that no Credit Party may assign or transfer any of its rights or obligations under this Agreement or any other Loan Document without the prior written consent of the Administrative Agent and the other Secured Parties (except as otherwise provided by the Credit Agreement).

 

 

Section 7.05           Survival of Agreement. All covenants, agreements, representations and warranties made by the Credit Parties in the Loan Documents and in the certificates or other instruments prepared or delivered in connection with or pursuant to this Agreement or any of the other Loan Documents shall be considered to have been relied upon by the Administrative Agent and the other Secured Parties and shall survive the execution and delivery of the Loan Documents, the making of the Loans, and the provision of services under Secured Cash Management Agreements or Secured Hedge Agreements regardless of any investigation made by any Lender or on its behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended under the Credit Agreement, and shall continue in full force and effect as long as the principal of or any accrued interest on the Loans or any fee or any other amount payable under any of the Loan Documents is outstanding and unpaid (other than contingent indemnification obligations for which no claim has been made).

 

Section 7.06           Counterparts; Effectiveness; Several Agreement; Other. This Agreement may be executed in counterparts, each of which shall constitute an original but all of which, when taken together, shall constitute single contract. Delivery of an executed signature page to this Agreement by facsimile or electronic transmission shall be as effective as delivery of a manually signed counterpart of this Agreement. This Agreement shall become effective as to any Credit Party when a counterpart hereof executed on behalf of such Credit Party shall have been delivered to the Administrative Agent and a counterpart hereof shall have been executed on behalf of the Administrative Agent, and thereafter shall be binding upon such Credit Party and the Administrative Agent and their respective permitted successors and assigns, and shall inure to the benefit of such Credit Party, the Administrative Agent and the other Secured Parties and their respective successors and assigns, except that no Credit Party shall have the right to assign or transfer its rights or obligations hereunder or any interest in this Agreement or in the Collateral (and any such assignment or transfer shall be void) except as contemplated by this Agreement or the Credit Agreement. This Agreement shall be construed as a separate agreement with respect to each Credit Party and may be amended, modified, supplemented, waived or released with respect to any Credit Party without the approval of any other Credit Party and without affecting the obligations of any other Credit Party hereunder. In addition, each of the Credit Parties hereby agrees to be bound by and perform all of the covenants and obligations of the Credit Parties set forth in the Credit Agreement.

 

Section 7.07           Severability. Any provision in this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction. The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

 

Section 7.08           Right of Set-Off. If an Event of Default shall have occurred and be continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other obligations at any time owing by such Lender or Affiliate to or for the credit or the account of any Credit Party against any of and all the obligations of such Credit Party now or hereafter existing under this Agreement or any other Loan Document owed to such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement or any other Loan Document and although such obligations may be unmatured. The applicable Lender shall notify the Borrower, the other Credit Parties and the Administrative Agent in writing of such setoff or application; provided that any failure to give or any delay in giving such notice shall not affect the validity of any such set-off or application under this Section 7.08. The rights of each Lender under this Section 7.08 are in addition to other rights and remedies (including other rights of set-off) which such Lender may have.

 

 

Section 7.09           Governing Law; Jurisdiction; Venue; Service of Process.

 

(a)            Governing Law. This Agreement 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 and the transactions contemplated hereby shall be governed by, and construed in accordance with, the laws of the State of New York.

 

(b)            Submission to Jurisdiction. Each 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 relating to this Agreement or the transactions relating hereto 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 other Secured Party may otherwise have to bring any action, litigation or proceeding relating to this Agreement or any other Loan Document against any Credit Party or its properties in the courts of any jurisdiction.

 

(c)            Waiver of Venue. Each 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, litigation 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 7.09. 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 13.1 of the Credit Agreement. Nothing in this Agreement will affect the right of any party hereto to serve process in any other manner permitted by Applicable Law.

 

(e)            Appointment of the Borrower as Agent for the Credit Parties. Each Subsidiary Guarantor hereby irrevocably appoints and authorizes the Borrower to act as its agent for service of process and notices required to be delivered under this Agreement or under the other Loan Documents, it being understood and agreed that receipt by the Borrower of any summons, notice or other similar item shall be deemed effective receipt by such Subsidiary Guarantor and its Subsidiaries.

 

Section 7.10           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 7.10.

 

 

Section 7.11           Injunctive Relief. Each Credit Party recognizes that, in the event such Credit Party fails to perform, observe or discharge any of its obligations or liabilities under this Agreement or any other Loan Document, any remedy of law may prove to be inadequate relief to the Administrative Agent and the other Secured Parties. Therefore, each Credit Party agrees that the Administrative Agent and the other Secured Parties, at the option of the Administrative Agent and the other Secured Parties, shall be entitled to temporary and permanent injunctive relief in any such case without the necessity of proving actual damages.

 

Section 7.12           Headings. Article and Section headings and the Table of Contents used in this Agreement are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.

 

Section 7.13           Security Interest Absolute. All rights of the Administrative Agent hereunder, the Security Interest, the grant of a security interest in the Pledged Securities and all obligations of each Credit Party hereunder shall be absolute and unconditional irrespective of (a) any lack of validity or enforceability of the Credit Agreement, any other Loan Document, any agreement with respect to any of the Secured Obligations or any other agreement or instrument relating to any of the foregoing, (b) any change in the time, manner or place of payment of, or in any other term of, all or any of the Secured Obligations, or any other amendment or waiver of or any consent to any departure from the Credit Agreement, any of the other Loan Documents or any other agreement or instrument, (c) any exchange, release or non-perfection of any Lien on other collateral, or any release or amendment or waiver of or consent under or departure from any guarantee, securing or guaranteeing all or any of the Secured Obligations or (d) any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Credit Party in respect of the Secured Obligations or this Agreement (other than payment in full of the Secured Obligations).

 

Section 7.14            Termination or Release.

 

(a)            Subject to Section 12.10 of the Credit Agreement, this Agreement and the guarantees made in this Agreement shall terminate and the Security Interest and all other security interests granted hereby shall be automatically released when the Commitments have been terminated and all Secured Obligations (other than (1) contingent indemnification obligations and (2) obligations and liabilities under Secured Cash Management Agreements or Secured Hedge Agreements) have been indefeasibly paid in full and all Letters of Credit have expired or been terminated other than Letters of Credit which have been cash collateralized in accordance with the terms of the Credit Agreement or as to which other arrangements satisfactory to the Administrative Agent and the applicable Issuing Bank have been made.

 

(b)            A Subsidiary of the Credit Party immediately prior to the consummation of any transaction permitted by the Credit Agreement shall be released from its obligations hereunder and the Security Interest in the Collateral of such Person shall be released upon the consummation of any transaction permitted by the Credit Agreement as a result of which such Person ceases to be a Credit Party or a Subsidiary of a Credit Party.

 

 

(c)            Upon any sale or other transfer by any Credit Party of any Collateral that is expressly permitted under the Credit Agreement to a Person other than the Borrower or another Credit Party, or upon the effectiveness of any written consent to the release of the security interest granted hereby in any Collateral pursuant to the applicable terms and conditions of the Credit Agreement, the security interest in such Collateral shall be automatically released. For the avoidance of doubt, immediately upon any sale or other transfer in the ordinary course of business and substantially consistent with past practice by WDLLC, WD Capital, or any other applicable Credit Party under any applicable Agency Agreement to any applicable Agency of any Mortgage Loan and any related assets (including, without limitation, any promissory note or other related Pledged Debt with respect thereto and/or any interest in any related mortgaged property or other collateral thereof, but expressly excluding all servicing Income then constituting Collateral pursuant to Article 8) that constitutes an Asset Disposition expressly permitted by Section 9.5(f) of the Credit Agreement, any security interest therein shall be automatically released.

 

(d)            In connection with any termination or release pursuant to paragraph (a), (b), or (c) of this Section 7.14, the Administrative Agent shall, upon five (5) Business Day’s written request (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) and upon delivery to the Administrative Agent of a certificate of a Responsible Officer of the Borrower certifying that such termination or release is permitted by the Loan Documents (including this Section 7.14), execute and deliver to any Person, at such Person’s expense, all documents that such Person shall reasonably request to evidence such termination or release of its obligations or the security interests in its Collateral. Any execution and delivery of documents pursuant to this Section 7.14 shall be without recourse to or warranty by the Administrative Agent. In addition, the Administrative Agent shall, upon the Borrower’s reasonable request and at the Borrower’s expense and upon delivery to the Administrative Agent of a certificate of a Responsible Officer of the Borrower certifying that such termination or release is permitted by the Loan Documents (including this Section 7.14), (x) deliver instruments of assurance confirming the non-existence of any Lien under the Loan Documents with respect to assets of the Credit Parties described in the Credit Agreement that are excluded from the Collateral and (y) release any Lien granted to or held by the Administrative Agent upon any Collateral: (I) constituting property in which no Credit Party owned an interest at the time the Lien was granted or at any time thereafter; (II) constituting property leased to a Credit Party under a lease which has expired or been terminated in a transaction permitted under the Loan Documents or is about to expire and which has not been, and is not intended by such Credit Party to be, renewed; or (III) consisting of an instrument or other possessory collateral evidencing Indebtedness or other obligations pledged to the Administrative Agent (for the benefit of the Secured Parties), if the Indebtedness or obligations evidenced thereby has been paid in full or otherwise superseded.

 

Section 7.15           Additional Subsidiaries. In accordance with Section 8.14 of the Credit Agreement, each Subsidiary (other than a Subsidiary that is designated as an Excluded Subsidiary pursuant to and in accordance with Section 8.14(d)(i) or Section 8.14(f), as applicable, of the Credit Agreement) that is formed or acquired subsequent to the date hereof or any Subsidiary that was an Excluded Subsidiary but has been redesignated or reclassified pursuant to and in accordance with Section 8.14(d)(ii) of the Credit Agreement shall be required to enter in this Agreement as a Subsidiary Guarantor promptly as and when required pursuant to Section 8.14 of the Credit Agreement. Upon execution and delivery by the Administrative Agent and such Subsidiary Guarantor of an instrument in the form of Exhibit I, such Subsidiary Guarantor shall become a Credit Party and Subsidiary Guarantor hereunder with the same force and effect as if originally so named in this Agreement. The execution and delivery of any such instrument shall not require the consent of any other Credit Party hereunder. The rights and obligations of each Credit Party hereunder shall remain in full force and effect notwithstanding the addition of any new Credit Party as a party to this Agreement.

 

 

Section 7.16           Administrative Agent Appointed Attorney-in-Fact. Each Credit Party hereby appoints the Administrative Agent and any officer or agent thereof as the attorney-in-fact of such Credit Party for the purpose of carrying out the provisions of this Agreement and taking any action and executing any instrument that the Administrative Agent may deem necessary or advisable to accomplish the purposes hereof, which appointment is irrevocable and coupled with an interest. Without limiting the generality of the foregoing, the Administrative Agent shall have the right, upon the occurrence and during the continuation of an Event of Default, with full power of substitution either in the Administrative Agent’s name or in the name of such Credit Party: (a) to receive, endorse, assign and/or deliver any and all notes, acceptances, checks, drafts, money orders or other evidences of payment relating to the Collateral or any part thereof; (b) to demand, collect, receive payment of, give receipt for and give discharges and releases of all or any of the Collateral; (c) to sign the name of any Credit Party on any invoice or bill of lading relating to any of the Collateral; (d) to send verifications of accounts receivables to any Account Debtor; (e) to commence and prosecute any and all suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect or otherwise realize on all or any of the Collateral or to enforce any rights in respect of any Collateral; (f) to settle, compromise, compound, adjust or defend any actions, suits or proceedings relating to all or any of the Collateral; (g) to notify, or to require any Credit Party to notify, the Account Debtor of the pledge and assignment of the related Collateral to the Administrative Agent hereunder and to make payment directly to the Administrative Agent; and (h) to use, sell, assign, transfer, pledge, make any agreement with respect to or otherwise deal with all or any of the Collateral, and to do all other acts and things necessary to carry out the purposes of this Agreement, as fully and completely as though the Administrative Agent were the absolute owner of the Collateral for all purposes; provided that nothing in this Agreement contained shall be construed as requiring or obligating the Administrative Agent to make any commitment or to make any inquiry as to the nature or sufficiency of any payment received by the Administrative Agent, or to present or file any claim or notice, or to take any action with respect to the Collateral or any part thereof or the moneys due or to become due in respect thereof or any property covered thereby. The Administrative Agent and the other Secured Parties shall be accountable only for amounts actually received as a result of the exercise of the powers granted to them in this Agreement, and neither they nor their officers, directors, employees or agents shall be responsible to any Credit Party for any act or failure to act hereunder, except for their own gross negligence or willful misconduct. Each Credit Party hereby ratifies all that said attorneys shall lawfully due or cause to be done in accordance with this Section 7.16.

 

Section 7.17           Further Assurances. Notwithstanding anything to the contrary herein, the parties hereto agree to comply with the requirements set forth in Section 8.18 of the Credit Agreement.

 

Section 7.18           Administrative Agent. The Administrative Agent shall act in accordance with the provisions of Article XII of the Credit Agreement, the provisions of which shall been deemed incorporated by reference herein as fully as if set forth in their entirety herein. Each Secured Party, by accepting the benefits of this Agreement, agrees to the appointment of the Administrative Agent pursuant to the Credit Agreement and agrees to each of the provisions of Article XII of the Credit Agreement, including as same apply to the actions of the Administrative Agent hereunder.

 

Section 7.19           Advice of Counsel, No Strict Construction. Each of the parties represents to each other party hereto that it has discussed this Agreement with its counsel. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement.

 

Section 7.20           Acknowledgements. Each Credit Party hereby acknowledges that:

 

(a)            it has received a copy of the Credit Agreement and has reviewed and understands the same;

 

 

(b)            neither the Administrative Agent nor any other Secured Party has any fiduciary relationship with or duty to any Credit Party arising out of or in connection with this Agreement or any of the other Loan Documents, and the relationship between the Credit Parties, on the one hand, and the Administrative Agent and the other Secured Parties, on the other hand, in connection herewith or therewith is solely that of debtor and creditor; and

 

(c)            no joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby or thereby among the Secured Parties or among the Credit Parties and the Secured Parties.

 

Section 7.21           [Reserved].

 

Section 7.22           Secured Parties. Each Secured Party not a party to the Credit Agreement who obtains the benefit of this Agreement shall be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of the Credit Agreement, and that with respect to the actions and omissions of the Administrative Agent hereunder or otherwise relating hereto that do or may affect such Secured Party, the Administrative Agent and each of its Affiliates shall be entitled to all the rights, benefits and immunities conferred under Article XII of the Credit Agreement.

 

ARTICLE 8.
SPECIAL PROVISIONS RESPECTING AGENCY COLLATERAL

 

Section 8.01           Special Fannie Mae Provisions. Notwithstanding any provision herein or any other Security Document to the contrary, and as further provided in Section 9.12, Section 10.4(a), Section 11.7, the final paragraph of Section 13.1(a), the final paragraph of Section 13.2, and Section 13.26 of the Credit Agreement, the provisions of this Section 8.01 shall apply in all events with respect to: (i) the “Fannie Mae Collateral”; (ii) the Pledged Equity Interests provided by: (1) W&D Multifamily in WDLLC and (2) by WDLLC in WD Capital, respectively, pursuant to Article 2 hereof; (iii) the guarantees provided by WDLLC and WD Capital, respectively pursuant to Article 2 hereof; and (iv) the other terms, conditions, notice requirements, limitations, and agreements with respect to the Fannie Mae Security Interests granted to the Administrative Agent (for the benefit of the Secured Parties) in the “Fannie Mae Collateral” relating to the “Fannie Mae Designated Loans” under this Agreement and/or any other Security Document (as each of such quoted terms is defined below). In providing its Agency Consent, it is hereby acknowledged that Fannie Mae is relying, and such Agency Consent by Fannie Mae is expressly conditioned, upon the terms and conditions set forth in this Section 8.01 and in Section 9.12, Section 10.4(a), Section 11.7, the final paragraph of Section 13.1(a), the final paragraph of Section 13.2, and Section 13.26 of the Credit Agreement. In the event of any conflict between the provisions of this Section 8.01 and the provisions of any other Loan Document or any other provision of this Agreement, the provisions of this Section 8.01 shall control. Subject to the foregoing, the Administrative Agent (on behalf of the Secured Parties) and each Credit Party expressly acknowledge and agree as follows:

 

(a)            Fannie Mae Security Interest in Fannie Mae Collateral.

 

(i)            Each Credit Party hereby reaffirms and confirms the security interest granted pursuant to the Existing Security Agreement and also grants to the Administrative Agent for the benefit of the Secured Parties, a security interest (the “Fannie Mae Security Interest”) in the following (the “Fannie Mae Collateral”) to secure payment and performance of the Secured Obligations: all servicing Income (including, without limitation, Ancillary Income and Servicing Fees) actually received under the Fannie Mae Servicing Contracts, respectively, by such Credit Party with respect to the Fannie Mae Loans (the “Fannie Mae Designated Loans”) serviced at any time and from time to time under the respective Fannie Mae Servicing Contracts, together with any other Income received on account of payments made by a third party (other than Fannie Mae) thereunder, but not the Fannie Mae Servicing Contracts or any other income (including, without limitation, principal and interest) related to the Fannie Mae Designated Loans. The Administrative Agent’s security interest is subject and subordinate to all rights, remedies, powers and prerogatives of Fannie Mae under all applicable Fannie Mae Agreements, including but not limited to Fannie Mae’s right to terminate WDLLC’s and WD Capital’s selling and servicing rights with respect to the Fannie Mae Designated Loans as provided in the respective Fannie Mae Agreements. Without limiting the generality of the foregoing provisions, the Administrative Agent acknowledges that (x) its security interest is subject to the rights of Fannie Mae, which must approve the Administrative Agent’s security interest (with such approval being given by Fannie Mae in the Agency Consent provided by Fannie Mae to the Administrative Agent on or prior to the Closing Date) and (y) Fannie Mae’s Agency Consent is not and shall not extend to, be deemed to be or be construed as, Fannie Mae’s consent or approval of Administrative Agent’s exercise of any right, power, or remedy with respect to the Fannie Mae Security Interest or the Fannie Mae Collateral from time to time (with such approval, to the extent required by the terms hereof, to be granted or withheld in Fannie Mae’s sole and absolute discretion).

 

 

(ii)            Each Credit Party authorizes the Administrative Agent to file such financing statements as the Administrative Agent deems reasonably necessary to perfect the Fannie Mae Security Interest in the Fannie Mae Collateral.

 

(iii)           Subject to Section 8.01(a)(i), each Credit Party hereby irrevocably appoints (which appointment is coupled with an interest) the Administrative Agent, or its delegate, as the attorney in fact of each such Credit Party, with the right (but not the duty) from time to time, following the occurrence and during the continuance of an Event of Default, to: (1) create, prepare, complete, execute, deliver, endorse or file, in the name and on behalf of such Credit Party, any and all instruments, documents, financing statements, applications for insurance and other agreements and writings required to be obtained, executed, delivered or endorsed by such Credit Party under this Section 8.01(a)(iii); (2) convert the Fannie Mae Collateral into cash, including, without limitation, the sale (either public or private) of all or any portion or portions of the Fannie Mae Collateral; (3) enforce collection of the Fannie Mae Collateral, either in its own name or in the name of any applicable Credit Party, including, without limitation, executing releases and prosecuting, defending, compromising or releasing any action relating to the Fannie Mae Collateral; (4) take such other actions as the Administrative Agent deems necessary or desirable in order to continue the perfection and priority of its security interest or to realize upon the Fannie Mae Collateral (the foregoing acts, remedies, and powers being referred to herein sometimes, singly and collectively, as “Enforcement Actions Respecting Fannie Mae Collateral”); and (5) to cause any applicable Credit Party to undertake and effect any Specified Sale of the Fannie Mae Program Assets as and when further provided herein. The Administrative Agent shall not be obliged to do any of the acts or exercise any of the powers hereinabove authorized, but if the Administrative Agent elects to do any such act or exercise any such power, it shall not be accountable for more than it actually receives as a result of such exercise of power, and it shall not be responsible to any Credit Party or any other Person except for gross negligence, willful misconduct, or actual bad faith.

 

 

(iv)           To the extent that the respective Fannie Mae Designated Loans remain subject to the Fannie Mae Agreements, the applicable Credit Party will remain the servicer of the Fannie Mae Designated Loans and will continue to service the Fannie Mae Designated Loans in accordance with Fannie Mae Agreements. Such Credit Party shall not pledge (or, except as may be expressly provided in the Credit Agreement, enter into (or agree to enter into) a Negative Pledge respecting) any of its respective servicing rights with respect to any of the Fannie Mae Designated Loans to any other Person.

 

(v)            The Administrative Agent has no right to service the Fannie Mae Designated Loans or affect the manner in which any Credit Party services the Fannie Mae Designated Loans. If Fannie Mae terminates any Credit Party’s respective servicing rights with respect to the Fannie Mae Designated Loans, the grant of the Fannie Mae Security Interest by such Credit Party hereunder will terminate automatically, and the Administrative Agent will release its Lien created by such Fannie Mae Security Interest and execute and file all necessary documents to reflect such release; provided, however, that no such termination (and no such release) shall relate to, or otherwise affect, (A) the Fannie Mae Security Interest granted by any other Credit Party or (B) the Fannie Mae Security Interest respecting Fannie Mae Collateral comprised of servicing Income then accrued or otherwise earned by such Credit Party through the date that Fannie Mae provides written notice to the Administrative Agent that such servicing rights of such Credit Party shall have been so terminated with respect to such Fannie Mae Designated Loans (which accrued and earned servicing Income shall in all events remain Fannie Mae Collateral), with such termination (and such release) relating only to servicing Income accruing or otherwise earned by such Credit Party, from and after the date of such written notice of termination to the Administrative Agent.

 

 

(vi)           Upon the occurrence and during the continuance of an Event of Default for thirty (30) days or more, and the exercise by the Administrative Agent of its rights under Section 11.2 of the Credit Agreement, Article 5 hereof, and this Section 8.01, the Administrative Agent may: (A) direct that all Servicing Fees payable to any Credit Party with respect to the Fannie Mae Designated Loans be deposited into lockbox accounts held by the Administrative Agent; (B) in its own name, in the name of such Credit Party or otherwise, demand, sue for, collect or receive any money or property at any time payable or receivable on account of or in exchange for any of the Fannie Mae Collateral, but the Administrative Agent has no obligation to do so; (C) by written notice to such Credit Party, direct such Credit Party to sell the selling and servicing rights to the Fannie Mae Designated Loans (in which event such Credit Party shall (or, as may be applicable, the Administrative Agent, on account of any realization of the Specified Pledged Equity Interests (as defined below) may cause such Credit Party to): (x) retain a nationally recognized firm that specializes in the sale of Fannie Mae selling and servicing rights and other assets that are used in or related to any Fannie Mae Program (collectively, the “Fannie Mae Program Assets”) (which firm must be reasonably acceptable to the Administrative Agent) and (y) sell the selling and servicing rights and related Fannie Mae Program Assets respecting the Fannie Mae Designated Loans to another Fannie Mae lender/servicer within sixty (60) days of such notice from the Administrative Agent) (with the actions set forth in this clause (C) being referred to herein as the “Specified Sale of Fannie Mae Program Assets”); and (D) exercise and enforce any or all rights and remedies available upon default to the Administrative Agent under the UCC, at law or in equity, subject to the consent rights of Fannie Mae as set forth in this Section 8.01. Any sale of such selling or servicing rights and other related Fannie Mae Program Assets respecting the Fannie Mae Designated Loans must and shall be subject to the prior written consent of Fannie Mae, which consent may be granted or withheld in Fannie Mae’s sole and absolute discretion. All proceeds of such sale will be applied first to the expenses of the sale, then to any amounts due to Fannie Mae from such Credit Party under the Servicing Contracts sold, and then to the outstanding balance of the Secured Obligations (as provided in Section 11.4 of the Credit Agreement), with any remaining balance remitted to the Borrower. Fannie Mae shall have no obligation to comply with any directions of the Administrative Agent or to alter in any way servicing requirements, flows of funds, or accounting of servicing. Subject at all times to the consent rights of Fannie Mae in accordance with the terms hereof, JPMorgan (or any designee of JPMorgan approved in writing by Fannie Mae in its sole and absolute discretion) may seek approval from Fannie Mae: (i) to acquire Fannie Mae Program Assets as a result of any Specified Sale of Fannie Mae Program Assets and/or (ii) in connection with the realization of the Specified Pledged Equity Interests under the Specified Ownership Interest Pledge, to cause any applicable Credit Party to retain its respective Fannie Mae Program Assets as further provided in Section 8.01(b)(ii) below (collectively, as may be applicable, “Retention of Fannie Mae Program Assets”).

 

(vii)          Upon the occurrence and during the continuance of an Event of Default for thirty (30) days or more, the Administrative Agent or its designee is entitled to receive and collect all sums payable to any applicable Credit Party in respect of the Fannie Mae Collateral, and, in such case: (A) the Administrative Agent or its designee in its discretion may, in its own name, in the name of such Credit Party, or otherwise, demand, sue for, collect or receive any money or property at any time payable or receivable on account of or in exchange for any of the Fannie Mae Collateral, but the Administrative Agent has no obligation to do so, (B) such Credit Party must, if the Administrative Agent requests it to do so, hold in trust for the benefit of the Secured Parties and immediately pay to the Administrative Agent at its office designated by notice, all amounts received by such Credit Party upon or in respect of any of the Fannie Mae Collateral, advising the Administrative Agent as to the source of those funds, and (C) all amounts so received and collected by the Administrative Agent will be held by it as part of the Fannie Mae Collateral.

 

 

(viii)         Unless Fannie Mae, in its sole and absolute discretion, approves any request by the Administrative Agent that a Retention of Fannie Mae Program Assets be permitted, the Administrative Agent agrees that within one hundred eighty (180) days after the Administrative Agent is entitled to commence the exercise of its rights and remedies against the Fannie Mae Collateral upon the occurrence of an Event of Default (after the expiration of any and all applicable grace and cure periods, applicable notice periods, and applicable waivers), the Administrative Agent shall seek: (A) to realize upon the Fannie Mae Collateral pursuant to one or more Enforcement Actions Respecting Fannie Mae Collateral and (B) to cause the Specified Sale of Fannie Mae Program Assets by WDLLC or WD Capital, as applicable, subject to Fannie Mae’s consent rights in accordance with the terms hereof (the specified actions in clauses (A) and (B) being referred to herein sometimes, collectively, as the “Specified Fannie Mae Enforcement Actions”); provided, however, that the Administrative Agent may have an additional one hundred eighty (180) days to complete such Specified Fannie Mae Enforcement Actions (or such longer period as may be reasonably required in order to comply with any applicable Debtor Relief Law or other law, rule or regulation), if the Administrative Agent certifies to Fannie Mae that it is in the process of and is diligently working toward completion of such Specified Fannie Mae Enforcement Actions or that such additional time is necessary for compliance with such Debtor Relief Law or other law, rule or regulation (the “Fannie Mae Disposition Period”); provided further, however, that, subject to the consent rights of Fannie Mae in accordance with the terms hereof, the Administrative Agent, in exercising the Specified Fannie Mae Enforcement Actions shall (other than in connection with a Retention of Fannie Mae Program Assets which has been approved by Fannie Mae) sell, assign, transfer, or otherwise divest itself of any and all of any applicable Credit Party’s Fannie Mae Program Assets over which the Administrative Agent may obtain control pursuant to such exercise of remedies (which sale, assignment, transfer or other divestment, including the terms of the transaction and the identity of the purchaser, assignee, or other recipient, including JPMorgan or any of its affiliates, if the Administrative Agent or any such affiliate desires to acquire ownership of any of the Fannie Mae Program Assets, will be subject to approval by Fannie Mae in its sole and absolute discretion). Notwithstanding anything to the contrary herein, the Fannie Mae Disposition Period shall be stayed during any time that the Administrative Agent is unable to commence or complete the specified Fannie Mae Enforcement Actions as a result of the imposition of the “automatic stay” or any similar provision of a Debtor Relief Law. None of the foregoing shall in any way limit Fannie Mae’s termination rights under the Fannie Mae Agreements, and in any event, the failure to timely complete the Specified Fannie Mae Enforcement Actions within the Fannie Mae Disposition Period (other than in connection with a Retention of Fannie Mae Program Assets which has been approved by Fannie Mae) shall be cause for termination by Fannie Mae under the applicable Fannie Mae Agreements, and no fee shall be payable by Fannie Mae with respect to any such termination. For the avoidance of doubt, and notwithstanding anything in this Section 8.01 to the contrary, as part of the Specified Sale of Fannie Mae Program Assets, as provided above, the Administrative Agent shall not be required to sell or otherwise transfer or dispose of the underlying Specified Pledged Equity Interests so long as the Administrative Agent, as part of any Specified Sale of Program Assets, shall sell, assign, transfer, or otherwise divest itself of any and all of such Credit Party’s Fannie Mae Program Assets as and when provided above (other than in connection with a Retention of Fannie Mae Program Assets by the Administrative Agent (or any designee of the Administrative Agent) which has been approved in writing by Fannie Mae); provided, however, to the extent the Administrative Agent does not timely comply with its obligations hereunder concerning any such Specified Sale of the Fannie Mae Program Assets during the Fannie Mae Disposition Period (but not otherwise), then the Administrative Agent shall be required to sell or otherwise transfer or dispose of the Specified Pledged Equity Interests.

 

(ix)            To the extent any amounts are received by the Administrative Agent pursuant to this Section 8.01, all rights of any applicable Credit Party against any other Credit Party arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior indefeasible payment in full in cash of all the Secured Obligations.

 

(x)            For the avoidance of doubt, the Administrative Agent confirms that notwithstanding any provision in this Agreement or any other Loan Document to the contrary: “Excluded Accounts” hereunder include, without limitation, all custodial, clearing, suspense, escrow, or other accounts in which WDLLC or WD Capital, respectively, deposits or holds funds received from borrowers under Fannie Mae Loans serviced by WDLLC or WD Capital, respectively, on behalf of Fannie Mae, and such Excluded Accounts are not, and shall not constitute, Collateral hereunder.

 

 

(xi)            Upon the Administrative Agent’s request, each Credit Party shall provide the Administrative Agent with copies of any books and records expressly relating to Income comprising the Fannie Mae Collateral. However, for the avoidance of doubt, such books and records do not constitute Collateral hereunder, and in no event shall Fannie Mae’s access thereto be restricted in any respect.

 

(b)            Pledged Equity Interest in WDLLC and WD Capital. With respect to the Pledged Equity Interests and related Pledged Securities (the “Specified Pledged Equity Interests”) provided to the Administrative Agent (for the benefit of the Secured Parties) by: (1) W&D Multifamily with respect to WDLLC and (2) by WDLLC with respect to WD Capital (WDLLC and WD Capital, in such capacity, the “Specified Pledged Entities”), pursuant to Article 3 hereof (singly and collectively, with respect to the pledged ownership interests of such entities provided pursuant to Article 3, the “Specified Ownership Interest Pledge”), the following provisions shall be applicable:

 

(i)             As used in this Section 8.01(b), “Credit Agreement Default” means the occurrence of an “Event of Default” under the Credit Agreement: (A) of which, except in the limited circumstance described below in this definition, the Administrative Agent has given Fannie Mae notice in accordance with Section 8.01(d), hereof (each such notice, a “Fannie Mae Notice of Default”), (B) if such Event of Default has occurred pursuant to Section 11.1(a) or (b) of the Credit Agreement, and no more than one (1) such Event of Default has occurred during the life of any Loan (i.e., if such an Event of Default occurs more than once, it shall be a Credit Agreement Default immediately hereunder), the Administrative Agent shall not have received payment of an amount equal to the amount the Borrower and the other Credit Parties failed to pay (including interest thereon at the rate provided in the Credit Agreement) that gave rise to such Event of Default within thirty (30) days after the applicable Fannie Mae Notice of Default, and (C) if such Event of Default has occurred under any other subsection of Section 11.1 of the Credit Agreement, other than Sections 11.1(h), (i), (j) or (k) of the Credit Agreement (the occurrence of any of such Events of Default constituting a Credit Agreement Default immediately hereunder upon the giving of the applicable Fannie Mae Notice of Default, and without such Fannie Mae Notice of Default if the Event of Default is under Section 11.1(i) or (j) of the Credit Agreement), unless (x) the Administrative Agent in good faith determines that, if the Event of Default would be susceptible of cure (if such cure was permitted beyond any cure period already provided in the Credit Agreement), (y) the cure of such Event of Default as a Credit Agreement Default hereunder shall have been commenced immediately upon the giving of the applicable Fannie Mae Notice of Default and been completed with thirty (30) days of such Fannie Mae Notice of Default or, if curable in a longer period not to exceed ninety (90) days, is so cured within such ninety (90) day period and such cure has been diligently pursued since the applicable Fannie Mae Notice of Default, and (z) no more than two (2) such Events of Defaults have occurred during the life of any Loan (i.e., if an Event of Default occurs under any one or more subsections of Section 11.1 of the Credit Agreement applicable under this clause (C) more than twice, it shall be a Credit Agreement Default immediately hereunder). Nothing herein shall be deemed to give the Borrower or any other Credit Party any grace, notice or cure periods or rights under the Credit Agreement or any other Loan Document other than as may already be set forth therein.

 

 

(ii)            Without limiting the provisions of Section 8.01(a), and subject to the limitations in Section 8.01(b)(vi), the Administrative Agent shall have the right, at any time after the occurrence and during the continuation of a Credit Agreement Default, in its discretion and without notice to the Borrower or any other Credit Party (but with notice to, and the prior written consent of, Fannie Mae, which may be granted or withheld in Fannie Mae’s sole and absolute discretion), to transfer to or to register in the name of the Administrative Agent or any of its nominees any or all of the Specified Pledged Equity Interests pursuant to the exercise of its rights and remedies hereunder on account of the Specified Ownership Interest Pledge; provided that if the Administrative Agent (or any designee of the Administrative Agent) has been approved in writing by Fannie Mae to acquire the Fannie Mae Program Assets as a result of any Specified Sale of Fannie Mae Program Assets pursuant to Section 8.01(a)(vi), through a Retention of Fannie Mae Program Assets or otherwise, Fannie Mae’s consent to transfer the Specified Pledged Equity to the Administrative Agent or such designee shall be deemed to have been granted. In addition, the Administrative Agent shall have the right at any time to exchange certificates or instruments representing or evidencing Specified Pledged Equity Interests for certificates or instruments of smaller or larger denominations.

 

(iii)           Without limiting the provisions of Section 8.01(a), and subject to the limitations in Section 8.01(b)(vi), upon the occurrence and during the continuation of an Event of Default, upon written notice from the Administrative Agent to the Borrower and the other Credit Parties and the prior written consent of Fannie Mae (which may be granted or withheld in Fannie Mae’s sole and absolute discretion), all rights of W&D Multifamily and WDLLC, respectively, to exercise the voting and other consensual rights which each would otherwise be entitled to exercise pursuant to Section 3.05(a)(i) hereof shall cease, and all such rights shall thereupon become vested in the Administrative Agent, which shall thereupon have the sole right to exercise such voting and other consensual rights.

 

(iv)           If the Administrative Agent takes possession of any of the Fannie Mae Program Assets following an exercise of its remedies hereunder, the Administrative Agent will at all times pending disposition as required under Section 8.01(a)(viii) above permit WDLLC and WD Capital, as applicable, to continue to perform the respective obligations of WDLLC and WD Capital, as applicable, under the Fannie Mae Agreements and to continue the operations relating to the Fannie Mae Programs substantially as conducted prior to such exercise of remedies, without material change in process, systems, or personnel at the direction of the Administrative Agent; provided, however, that (A) any Mortgage Loan proposed to be delivered by WDLLC to Fannie Mae during the Fannie Mae Disposition Period will be subject to pre-review by Fannie Mae; (B) subject to the prior written consent of Fannie Mae, which consent may be granted or withheld in Fannie Mae’s sole and absolute discretion, the Administrative Agent may have an interim servicer acceptable to Fannie Mae perform such respective obligations of such Credit Party, as may be applicable, during the Fannie Mae Disposition Period; and (C) nothing herein shall require any of the Administrative Agent, any Secured Party, or any applicable Credit Party to utilize its own funds or credit in connection with the foregoing.

 

(v)            Without limiting the provisions of Section 8.01(a), and subject to the limitations in Section 8.01(b)(vi), the Borrower and each other Credit Party further acknowledge that: (A) except as expressly provided in Section 8.01(b)(ii), any change in the direct or indirect ownership of any Specified Pledged Entity is subject to the prior written consent of Fannie Mae, which consent may be granted or withheld in Fannie Mae’s sole and absolute discretion; (B) any such change that may occur without Fannie Mae’s prior written consent would constitute a breach of any Specified Pledged Entity’s Fannie Mae Agreements that could lead to termination of any Specified Pledged Entity’s participation in the Fannie Mae Programs; and (C) any such private sales may be at prices and on terms less favorable than those obtainable through a public sale without such restrictions (including, without limitation, a public offering made pursuant to a registration statement under the Federal Securities Laws) and, notwithstanding such circumstances, the Borrower and each other Credit Party agree that any such private sale shall be deemed to have been made in a commercially reasonable manner and that the Administrative Agent and Secured Parties shall have no obligation to engage in public sales and no obligation to delay the sale of any Specified Pledged Equity Interest for the period of time necessary to permit the issuer thereof to register it for a form of public sale requiring registration under the Federal Securities Laws or under applicable state securities laws, even if such issuer would, or should, agree to so register it.

 

 

(vi)           Notwithstanding anything to the contrary in this Section 8.01, subsequent to any approval by Fannie Mae of any sale, transfer, or other disposition (and subsequent consummation of the transactions effecting such sale, transfer, or other disposition) of: (1) the Fannie Mae Collateral on account of Enforcement Actions Respecting Fannie Mae Collateral and (2) the Specified Sale of Fannie Mae Program Assets, all subject to Fannie Mae’s consent rights, pursuant to the Specified Fannie Mae Enforcement Actions as provided herein, then, so long as the Specified Pledged Entities no longer serve as an originator or servicer under the Fannie Mae Programs and have no ongoing obligations to Fannie Mae under the Fannie Mae Agreements, no other or further consent or approval from Fannie Mae shall thereafter be required with respect to any change in ownership of any Specified Pledged Entity.

 

(vii)          For the avoidance of doubt, and notwithstanding anything in this Section 8.01 to the contrary: (A) as part of the Specified Sale of Fannie Mae Program Assets, as provided above, the Administrative Agent shall not be required to sell or otherwise transfer or dispose of the underlying Specified Pledged Equity Interests and (B) nothing in this Section 8.01 shall require any of the Administrative Agent or any Secured Party to utilize its own funds or credit in connection with the exercise of any rights and remedies hereunder; provided, that nothing in this clause (B) shall limit or otherwise modify or affect any duties, obligations, covenants or agreements of the Administrative Agent or any Secured Party pursuant to this Section 8.01.

 

(c)            Guaranties by WDLLC and WD Capital. With respect to the guarantees provided by WDLLC and WD Capital (singly and collectively, the “Specified Guarantors”), respectively, pursuant to Article 2 hereof (singly and collectively, the “Specified Guarantee”), the following provision shall be applicable:

 

(i)             Without limiting the unlimited and unconditional nature of each Specified Guarantee (which shall remain unaffected by the provisions of this Section 8.01(c)), the Administrative Agent (on behalf of the Secured Parties) hereby acknowledges and agrees that, in exercising its rights, remedies, powers, privileges and discretions against Specified Guarantors, the Administrative Agent shall not seek to obtain any collateral interest in any property or other asset of any Specified Guarantor relating in any way to the Fannie Mae Loans which does not comprise the Fannie Mae Collateral and the Specified Pledged Equity Interests granted to the Administrative Agent hereunder or under any other Security Document (subject to the provisions of this Section 8.01) or otherwise contrary to the provisions of Section 8.01(a) or Section 8.01(b) hereof; provided, however, that the foregoing shall not be deemed or construed to modify, limit, or waive the rights, remedies, powers, privileges, or discretions of the Administrative Agent: (1) pursuant to the provisions of Section 8.01(a) or Section 8.01(b) hereof, including, without limitation, with respect to the Specified Fannie Mae Enforcement Actions or (2) with respect to any other Collateral under this Agreement not relating to the Fannie Mae Loans.

 

 

(d)            Notices to Fannie Mae. Copies of all notices and other documentation required to be delivered to Fannie Mae pursuant to the Credit Agreement, this Agreement, and any other applicable Loan Document, including, without limitation, notices or other communications asserting a breach, default, or Event of Default or potential breach, default or Event of Default thereunder, shall be delivered to Fannie Mae at the following address:

 

Fannie Mae
1100 15th Street, NW
Washington, DC 20005
Attention: Vice President, Portfolio Analytics & Counterparty Risk 

Email: lender_risk_management@fanniemae.com

 

with a copy to:

 

Fannie Mae
1100 15th Street, NW
Washington, DC 20005
Attention: Vice President of Multifamily Legal

Email: mf_mbb_legal_notice@fanniemae.com

 

(e)            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 9.12, Section 10.4(a), Section 11.7, the final paragraph of Section 13.1(a), the final paragraph of Section 13.2, and Section 13.26 of the Credit Agreement, or this Section 8.01 of this Agreement, or any other provision of the Credit Agreement, this 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 any Credit Party under any Fannie Mae Agreements, which amendments or modifications shall be subject to the restrictions contained in this Agreement, the Credit Agreement (including, without limitation, the final paragraph of Section 13.2 of the Credit Agreement), and terms of the Fannie Mae Agreements.

 

Section 8.02           Special Freddie Mac Provisions. Notwithstanding any provision herein or any other Security Document to the contrary, and as further provided in Sections 10.4(b) and 11.8 of the Credit Agreement, the provisions of this Section 8.02 shall apply in all events with respect to: (i) the “Freddie Mac Collateral” (as defined below); (ii) the Specified Pledged Equity Interests and the Specified Ownership Interest Pledge thereof; (iii) the Specified Guarantee; and (iv) any other terms, conditions, notice requirements, limitations, covenants, and agreements with respect to the Freddie Mac Security Interest (as defined below). In providing its Agency Consent, it is hereby acknowledged that Freddie Mac is relying, and such Agency Consent by Freddie Mac is expressly conditioned, upon the terms and conditions set forth in this Section 8.02 and in Sections 9.12, 10.4(b), and 11.8 of the Credit Agreement. Subject to the foregoing, the Administrative Agent (on behalf of the Secured Parties) and each Credit Party expressly acknowledge and agree as follows:

 

 

(a)            Freddie Mac Security Interest in Freddie Mac Collateral.

 

(i)             Each Credit Party hereby reaffirms and confirms the security interest granted pursuant to the Existing Guarantee and Collateral Agreement and also grants to the Administrative Agent for the benefit of the Secured Parties, a security interest (the “Freddie Mac Security Interest”) in the following (the “Freddie Mac Collateral”) to secure payment and performance of the Secured Obligations: all servicing Income (including, without limitation, Ancillary Income and Servicing Fees) actually received, respectively, by such Credit Party with respect to the Freddie Mac Loans (the “Freddie Mac Designated Loans”) serviced at any time and from time to time under the respective Freddie Mac Servicing Contracts, together with any other Income received on account of payments made by a third party (other than Freddie Mac) thereunder (except to the extent that any such Income is required by contract or Applicable Law to be transferred or applied by such Credit Party to or for the benefit of any other Person). Notwithstanding any other provision of this Agreement or any other Loan Document, but not in limitation of the specified Income constituting the Freddie Mac Collateral, the Freddie Mac Collateral shall not include, and no Credit Party shall grant, and neither the Administrative Agent nor any Secured Party shall take or receive, any Lien on any Credit Party’s right, title or interest in or to any of the following: (i) any MSR Assets in respect of, arising from or relating to any Collateral Transaction Document or Servicing Contract that is a Freddie Mac Agreement; (ii) any Contract or Contract Rights consisting of, arising from or relating to any Freddie Mac Agreement; (iii) any Mortgage Loan (including, without limitation, any promissory note with respect thereto or any mortgaged property or other collateral therefor) that has been sold, transferred, committed, or pledged to or on behalf of Freddie Mac pursuant to any Freddie Mac Agreement; (iv) any Income related to any Freddie Mac Agreement or any Freddie Mac Loans other than (x) servicing Income (including, without limitation, Ancillary Income and Servicing Fees) arising from or related to any Freddie Mac Agreement or any Freddie Mac Loans or (y) Income received on account of payments made by a third party (other than Freddie Mac) thereunder (except to the extent that any such Income is required by contract or Applicable Law to be transferred or applied by such Credit Party to or for the benefit of any other Person); (v) books and records pertaining to any of the foregoing; (vi) any “accounts,” “chattel paper,” “commercial tort claims,” “documents,” “equipment,” “general intangibles,” “goods,” “instruments,” “inventory,” “investment property,” “letter of credit rights,” or “securities accounts” (as each of those terms is defined in the UCC) related to any of the foregoing items (i) through (v); and (vii) any other assets or properties now owned or at any time hereafter acquired by any Credit Party or any Affiliate of a Credit Party that relate in any respect to the foregoing items (i) through (vi) (clauses (i) through (vii), collectively, the “Excluded Freddie Mac-Related Assets”). None of the Excluded Freddie Mac-Related Assets shall constitute Collateral hereunder. For the avoidance of doubt, and without limitation of any of the foregoing, the parties hereto acknowledge that all servicing rights pursuant to the Freddie Mac Servicing Contracts are property solely of Freddie Mac and are not the property of any Credit Party, and are not included within the Collateral hereunder. The Administrative Agent’s security interest in the Freddie Mac Collateral is subject and subordinate to all rights, remedies, powers and prerogatives of Freddie Mac under all Freddie Mac Agreements, including, without limitation, Freddie Mac’s right to terminate Credit Party’s selling and servicing rights with respect to the Freddie Mac Designated Loans as provided in the respective Freddie Mac Agreements. Without limiting the generality of the foregoing provisions, the Administrative Agent acknowledges that its security interest is subject to the rights of Freddie Mac under the Freddie Mac Agreements, and further acknowledges that Freddie Mac must approve the Administrative Agent’s security interest (with such approval, to the extent required by the terms hereof, being given by Freddie Mac in the Agency Consent provided by Freddie Mac to the Administrative Agent on or about the Closing Date).

 

 

(ii)            Each Credit Party authorizes the Administrative Agent to file such financing statements as the Administrative Agent deems reasonably necessary to perfect the Freddie Mac Security Interest in the Freddie Mac Collateral.

 

(iii)           Subject to Section 8.02(a)(i), each Credit Party hereby irrevocably appoints (which appointment is coupled with an interest) the Administrative Agent, or its delegate, as the attorney in fact of each such Credit Party, with the right (but not the duty) from time to time, following the occurrence and during the continuance of an Event of Default, to: (1) create, prepare, complete, execute, deliver, endorse or file, in the name and on behalf of such Credit Party, any and all instruments, documents, financing statements, applications for insurance and other agreements and writings required to be obtained, executed, delivered or endorsed by such Credit Party under this Section 8.02(a)(iii); (2) convert the Freddie Mac Collateral into cash, including, without limitation, through the sale (either public or private) of all or any portion or portions of the Freddie Mac Collateral (but not any of any of the Excluded Freddie Mac-Related Assets); (3) enforce collection of the Freddie Mac Collateral, either in its own name or in the name of any applicable Credit Party, including, without limitation, executing releases and prosecuting, defending, compromising or releasing any action relating to the Freddie Mac Collateral; (4) take such other actions as the Administrative Agent deems necessary or desirable in order to continue the perfection and priority of its security interest or to realize upon the Freddie Mac Collateral (the foregoing acts, remedies, and powers being referred to herein sometimes, singly and collectively, as “Enforcement Actions Respecting Freddie Mac Collateral”); and (5) to cause any applicable Credit Party to undertake and effect any Specified Sale of the Freddie Mac Program Assets as and when expressly provided under Section 8.02(b)(iv) below. The Administrative Agent shall not be obliged to do any of the acts or exercise any of the powers hereinabove authorized, but if the Administrative Agent elects to do any such act or exercise any such power, it shall not be accountable for more than it actually receives as a result of such exercise of power, and it shall not be responsible to any Credit Party or any other Person except for gross negligence, willful misconduct, or actual bad faith.

 

(iv)           Except in the case of a complete disposition of the Freddie Mac Agreements pursuant to a Specified Sale of Freddie Mac Program Assets that is expressly permitted under Section 8.02(b)(iv) hereof (and except for the Administrative Agent’s exercise of its rights and remedies hereunder with respect to the Freddie Mac Collateral), neither the Administrative Agent nor any other Secured Party shall cause WDLLC or WD Capital to sell, assign or otherwise transfer any of WDLLC or WD Capital’s respective rights, duties or obligations under, in or with respect to any of the Freddie Mac Agreements (including, without limitation, any servicing rights thereunder). Neither the Administrative Agent nor any other Secured Party has any right to service any Freddie Mac Loans or affect the manner in which WDLLC or WD Capital services any Freddie Mac Loans. Without limitation of the foregoing, so long as WDLLC and/or WD Capital is a servicer of Freddie Mac Loans, neither the Administrative Agent nor any other Secured Party shall take any action that impedes WDLLC or WD Capital from performing its respective servicing obligations with respect to such loans in strict compliance with the requirements under the Guide and all other applicable Freddie Mac Agreements. If the Administrative Agent or any other Secured Party under this Agreement or any other Loan Document exercises any rights or remedies with respect to any assets or properties of any Credit Party included within the Collateral (including, without limitation, any rights of a secured party to take possession of or sell any such assets or properties), unless and until there has been a complete disposition of the Freddie Mac Agreements pursuant to a Specified Sale of Freddie Mac Program Assets that is expressly permitted under Section 8.02(b)(iv) hereof, in exercising such rights and remedies, neither the Administrative Agent nor any other Secured party will take any action that could reasonably be expected to prevent WDLLC or WD Capital from continuing to perform its respective obligations under the Guide and the other Freddie Mac Agreements and continuing its respective operations relating thereto substantially as conducted prior to such exercise of remedies, without material change in processes, systems, or personnel in a manner that is reasonably likely to (i) have a material adverse effect on the performance by WDLLC or WD Capital of any of its respective duties or obligations under the Guide or any other Freddie Mac Agreement (including, without limitation, any duties and obligations with respect to servicing of Freddie Mac Loans) or (ii) cause WDLLC or WD Capital not to be an eligible Seller/Servicer under the Guide. For the avoidance of doubt, and without limitation of any of the foregoing, Freddie Mac shall have no obligation to comply with any directions of the Administrative Agent or any other Secured Party or to alter in any way servicing requirements, flows of funds, or accounting of servicing. WDLLC and WD Capital shall not, and not permit WDLLC or WD Capital to, pledge (or, except as may be expressly provided in the Credit Agreement, enter into (or agree to enter into) a Negative Pledge respecting) any of its respective servicing rights with respect to any of the Freddie Mac Loans to any other Person.

 

 

(v)            If Freddie Mac terminates any Credit Party’s respective servicing rights with respect to the Freddie Mac Designated Loans, the grant of the Freddie Mac Security Interest by such Credit Party hereunder will terminate automatically, and the Administrative Agent will release its Lien created by such Freddie Mac Security Interest and execute and file all necessary documents to reflect such release; provided, however, that no such termination (and no such release) shall relate to, or otherwise affect, (A) the Freddie Mac Security Interest granted by any other Credit Party or (B) the Freddie Mac Security Interest respecting Freddie Mac Collateral comprised of servicing Income then accrued or otherwise earned by such Credit Party through the date that Freddie Mac provides written notice to the Administrative Agent that such servicing rights of such Credit Party shall have been so terminated with respect to such Freddie Mac Designated Loans (which accrued and earned servicing Income shall in all events remain Freddie Mac Collateral), with such termination (and such release) relating only to servicing Income accruing or otherwise earned by such Credit Party from and after the date of such written notice of termination to the Administrative Agent.

 

(vi)           Upon the occurrence and during the continuance of an Event of Default for thirty (30) days or more, and the exercise by the Administrative Agent of its rights under Section 11.2 of the Credit Agreement, Article 5 hereof, and this Section 8.02, the Administrative Agent may: (A) direct that all servicing Income payable to any Credit Party with respect to the Freddie Mac Designated Loans be deposited into lockbox accounts held by the Administrative Agent; (B) in its own name, in the name of such Credit Party or otherwise, demand, sue for, collect or receive any money or property at any time payable or receivable on account of or in exchange for any of the Freddie Mac Collateral, but the Administrative Agent has no obligation to do so; and (C) exercise and enforce any or all rights and remedies with respect to the Freddie Mac Collateral available upon default to the Administrative Agent under the UCC, at law or in equity.

 

 

(vii)          Upon the occurrence and during the continuance of an Event of Default for thirty (30) days or more, the Administrative Agent or its designee is entitled to receive and collect all sums payable to any applicable Credit Party in respect of the Freddie Mac Collateral, and, in such case: (A) the Administrative Agent or its designee in its discretion may, in its own name, in the name of such Credit Party, or otherwise, demand, sue for, collect or receive any money or property at any time payable or receivable on account of or in exchange for any of the Freddie Mac Collateral, but the Administrative Agent has no obligation to do so, (B) such Credit Party must, if the Administrative Agent requests it to do so, hold in trust for the benefit of the Secured Parties and immediately pay to the Administrative Agent at its office designated by notice, all amounts received by such Credit Party upon or in respect of any of the Freddie Mac Collateral, advising the Administrative Agent as to the source of those funds, and (C) all amounts so received and collected by the Administrative Agent will be held by it as part of the Freddie Mac Collateral.

 

(viii)         To the extent any amounts are received by the Administrative Agent pursuant to this Section 8.02, all rights any applicable Credit Party against any other Credit Party arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior indefeasible payment in full in cash of all the Secured Obligations.

 

(ix)            For the avoidance of doubt, and without limitation of the definition of “Excluded Freddie Mac-Related Assets,” the Administrative Agent confirms that, notwithstanding any provision in this Agreement or any other Loan Document to the contrary: “Excluded Accounts” hereunder include, without limitation, all custodial, clearing, suspense, escrow, or other accounts in which WDLLC or WD Capital, respectively, or any Affiliate of WDLLC or WD Capital deposits or holds funds received from borrowers under Freddie Mac Loans serviced by WDLLC or WD Capital, respectively, on behalf of Freddie Mac and any funds held in such accounts, and such Excluded Accounts are not, and shall not constitute, Collateral hereunder.

 

(x)            Upon the Administrative Agent’s request, each Credit Party shall provide the Administrative Agent with copies of any book and records expressly relating to Income comprising the Freddie Mac Collateral. However, for the avoidance of doubt, such books and records do not constitute Collateral hereunder, and in no event shall Freddie Mac’s access thereto be restricted in any respect.

 

 

(b)            Specified Pledged Equity Interest in WDLLC and WD Capital. With respect to the Specified Pledged Equity Interests and the Specified Ownership Interest Pledge thereof, the following provisions shall be applicable:

 

(i)             As used in this Section 8.02(b), “Credit Agreement Default” means the occurrence of an “Event of Default” under the Credit Agreement: (A) of which, except in the limited circumstance described below in this definition, the Administrative Agent has given Freddie Mac notice in accordance with Section 8.02(e) hereof (each such notice, a “Freddie Mac Notice of Default”), (B) if such Event of Default has occurred pursuant to Section 11.1(a) or (b) of the Credit Agreement, and no more than one (1) such Event of Default has occurred during the life of any Loan (i.e., if such an Event of Default occurs more than once, it shall be a Credit Agreement Default immediately hereunder), the Administrative Agent shall not have received payment of an amount equal to the amount the Borrower and the other Credit Parties failed to pay (including interest thereon at the rate provided in the Credit Agreement) that gave rise to such Event of Default within thirty (30) days after the applicable Freddie Mac Notice of Default, and (C) if such Event of Default has occurred under any other subsection of Section 11.1 of the Credit Agreement, other than Sections 11.1(h), (i), (j) or (k) of the Credit Agreement (the occurrence of any of such Events of Default constituting a Credit Agreement Default immediately hereunder upon the giving of the applicable Freddie Mac Notice of Default, and without such Freddie Mac Notice of Default if the Event of Default is under Section 11.1(i) or (j) of the Credit Agreement), unless (x) the Administrative Agent in good faith determines that, if the Event of Default would be susceptible of cure (if such cure was permitted beyond any cure period already provided in the Credit Agreement), (y) the cure of such Event of Default as a Credit Agreement Default hereunder shall have been commenced immediately upon the giving of the applicable Freddie Mac Notice of Default and been completed with thirty (30) days of such Freddie Mac Notice of Default or, if curable in a longer period not to exceed ninety (90) days, is so cured within such ninety (90) day period and such cure has been diligently pursued since the applicable Freddie Mac Notice of Default, and (z) no more than two (2) such Events of Default have occurred during the life of any Loan (i.e., if an Event of Default occurs under any one or more subsections of Section 11.1 of the Credit Agreement applicable under this clause (C) more than twice, it shall be a Credit Agreement Default immediately hereunder). Nothing herein shall be deemed to give the Borrower or any other Credit Party any grace, notice or cure periods or rights under the Credit Agreement or any other Loan Document other than as may already be set forth therein.

 

(ii)            Without limiting the provisions of Section 8.02(a), the Administrative Agent shall have the right, at any time after the occurrence and during the continuation of a Credit Agreement Default, in its discretion and without notice to the Borrower or any other Credit Party (but with notice to Freddie Mac), to transfer to or to register in the name of the Administrative Agent any or all of the Specified Pledged Equity Interests pursuant to the exercise of its rights and remedies hereunder on account of the Specified Ownership Interest Pledge; provided, that no such transfer or registration of Specified Pledged Equity Interests to or in name of the Administrative Agent may occur without the prior written consent of Freddie Mac (which consent may be granted or withheld in Freddie Mac’s sole and absolute discretion); provided, further, that if the Administrative Agent (or any designee of the Administrative Agent) has been approved in writing by Freddie Mac to acquire the Freddie Mac Program Assets as a result of any Specified Sale of Freddie Mac Program Assets pursuant to Section 8.02(b)(iv), through a Retention of Freddie Mac Program Assets or otherwise, Freddie Mac’s consent to transfer the Specified Pledged Equity to the Administrative Agent or such designee shall be deemed to have been granted. At any time following a transfer or registration of Specified Pledged Equity Interests to or in name of the Administrative Agent in accordance with the terms and conditions of the immediately preceding sentence, the Administrative Agent shall have the right at any time to exchange certificates or instruments representing or evidencing Specified Pledged Equity Interests for certificates or instruments of smaller or larger denominations.

 

 

(iii)           Upon the occurrence and during the continuation of a Credit Agreement Default, upon written notice from the Administrative Agent to the Borrower and the other Credit Parties and to Freddie Mac, all rights of W&D Multifamily and WDLLC, respectively, to exercise the voting and other consensual rights which each would otherwise be entitled to exercise pursuant to Section 3.05(a)(i) hereof shall cease, and all such rights shall thereupon become vested in the Administrative Agent, which shall thereupon have the sole right to exercise such voting and other consensual rights; provided, that the Administrative Agent shall not exercise any such voting or other consensual rights without the prior written consent of Freddie Mac (which consent may be granted or withheld in Freddie Mac’s sole and absolute discretion).

 

(iv)           Upon the occurrence and during the continuation of a Credit Agreement Default, irrespective of whether any Specified Pledged Equity Interests have been transferred to or registered in the name of the Administrative Agent pursuant to Section 8.02(b)(ii) hereof, the Administrative Agent may cause any applicable Credit Party to (A) retain a nationally recognized firm that specializes in the sale of Freddie Mac selling and servicing rights and other assets that are used in or related to any Freddie Mac Program (collectively the “Freddie Mac Program Assets”) (which firm must be reasonably acceptable to the Administrative Agent) and (B) sell, transfer, or otherwise assign all of its respective rights, obligations, duties, and interests in and under the Freddie Mac Agreements to one or more then-current Freddie Mac Seller/Servicers within sixty (60) days of such notice from the Administrative Agent (with the actions set forth in clauses (A) and (B) of this clause (iv) being referred to herein as the “Specified Sale of Freddie Mac Program Assets”); provided, however, that no such Specified Sale of Freddie Mac Program Assets may occur without the prior written consent of Freddie Mac (which consent may be granted or withheld in Freddie Mac’s sole and absolute discretion); and provided, further, that, to the extent any of the Freddie Mac Agreements includes parties in addition to a Credit Party and Freddie Mac, any Specified Sale of Freddie Mac Program Assets, including any servicing rights, remains subject to satisfaction of the terms and conditions of such Freddie Mac Agreements and any other approvals required thereunder. Subject at all times to the consent rights of Freddie Mac in accordance with the terms hereof, JPMorgan (or any designee of JPMorgan approved in writing by Freddie Mac in its sole discretion) may seek approval from Freddie Mac: (i) to acquire Freddie Mac Program Assets as a result of any Specified Sale of Freddie Mac Program Assets and/or (ii) in connection with the realization of the Specified Pledged Equity Interests under the Specified Ownership Interest Pledge, to cause any applicable Credit Party to retain its respective Freddie Mac Program Assets as further provided in Section 8.02(b)(ii) (collectively, as may be applicable, “Retention of Freddie Mac Program Assets”).

 

(v)            Other than a transfer to the Administrative Agent in accordance with the terms and conditions of Section 8.02(b)(ii) or 8.02(b)(iv) hereof, no sale, assignment or other transfer of any Specified Pledged Equity Interests to any Person (including, without limitation, any sale, assignment or other transfer thereof by the Administrative Agent to any other Person following the Administrative Agent’s acquisition thereof in accordance with Section 8.02(b)(ii) or 8.02(b)(iv) hereof) may occur without the prior written consent of Freddie Mac, which consent may be granted or withheld in Freddie Mac’s sole and absolute discretion.

 

(vi)           Borrower and each other Credit Party acknowledge that: (i) any private sales of Specified Pledged Equity Interests (or otherwise on account of any Specified Sale of Freddie Mac Program Assets) may be at prices and on terms less favorable than those obtainable through a public sale without such restrictions (including, without limitation, a public offering made pursuant to a registration statement under the Federal Securities Laws) and, notwithstanding such circumstances, the Borrower and each other Credit Party agree that any such private sale shall be deemed to have been made in a commercially reasonable manner and that the Administrative Agent and Secured Parties shall have no obligation to engage in public sales and no obligation to delay the sale of any Specified Pledged Equity Interest for the period of time necessary to permit the issuer thereof to register it for a form of public sale requiring registration under the Federal Securities Laws or under applicable state securities laws, even if such issuer would, or should, agree to so register it.

 

 

(vii)          For the avoidance of doubt, and notwithstanding anything in this Section 8.02 to the contrary: (A) as part of the Specified Sale of Freddie Mac Program Assets, as provided above, the Administrative Agent shall not be required to sell or otherwise transfer or dispose of the underlying Specified Pledged Equity Interests and (B) nothing in this Section 8.02 shall require any of the Administrative Agent or any Secured Party to utilize its own funds or credit in connection with the exercise of any rights and remedies hereunder; provided, that nothing in this clause (B) shall limit or otherwise modify or affect any duties, obligations, covenants or agreements of the Administrative Agent or any Secured Party pursuant to this Section 8.02.

 

(viii)         Notwithstanding anything to the contrary in this Section 8.02, if (A) the Specified Pledged Entities have satisfied all of their respective outstanding duties and obligations to Freddie Mac under the Freddie Mac Agreements, (B) the Freddie Mac Agreements have been terminated (or there has been a complete disposition of the Freddie Mac Agreements pursuant to a Specified Sale of Freddie Mac Program Assets that is expressly permitted under Section 8.02(b)(iv) hereof), and (C) the Specified Pledged Entities have ceased to be Seller/Servicers of Freddie Mac Loans (in each case, as determined by Freddie Mac in its sole and absolute discretion), then no other or further consent or approval from Freddie Mac shall thereafter be required with respect to any change in ownership of any Specified Pledged Entity.

 

(c)            Guaranties by WDLLC and WD Capital. With respect to the Specified Guarantees provided by the Specified Guarantors pursuant to Article 2 hereof, the following provision shall be applicable:

 

(i)             Without limiting the unlimited and unconditional nature of each Specified Guarantee (which shall remain unaffected by the provisions of this Section 8.02(c)), the Administrative Agent (on behalf of the Secured Parties) hereby acknowledges and agrees that, in exercising its rights, remedies, powers, privileges and discretions against Specified Guarantors, the Administrative Agent shall not (A) seek to obtain any collateral interest in any property or other asset of any Specified Guarantor that is included within the Excluded Freddie Mac-Related Assets or (B) take any action (or refrain from taking any action) in violation of or otherwise contrary to the provisions of Section 8.02(a) or Section 8.02(b) hereof (including, without limitation, any term or condition of Section 8.02(a)(iv); provided, however, that the foregoing shall not be deemed or construed to modify, limit, or waive the rights, remedies, powers, privileges, or discretions of the Administrative Agent: (1) pursuant to the provisions of Section 8.02(a) or Section 8.02(b) hereof, including, without limitation, with respect to the Enforcement Actions Respecting Freddie Mac Collateral or (2) with respect to any other Collateral under this Agreement not relating to the Freddie Mac Loans.

 

 

(d)            Freddie Mac Rights under Freddie Mac Agreements. Nothing in this Section 8.02 (or in any other provision hereof or of any other Loan Document) shall in any way limit, modify or otherwise affect in any respect Freddie Mac’s rights and remedies under the Freddie Mac Agreements (including, without limitation, the Guide) or limit or otherwise affect in any respect Freddie Mac’s ability to enforce such rights and remedies.

 

(e)            Notices to Freddie Mac. Notices and copies that are required to be delivered to Freddie Mac pursuant to the Credit Agreement, this Agreement, and any other applicable Loan Document shall be delivered to Freddie Mac at the following address:

 

Freddie Mac
Multifamily Division
8100 Jones Branch Drive
McLean, Virginia 22102
Attention: Vice President, Counterparty Risk Management

 

with a copy to:

 

Freddie Mac
Legal Division
8200 Jones Branch Drive
McLean, Virginia 22102
Attention: Vice President, Multifamily Real Estate

 

(f)             As further provided in Section 9.12 of the Credit Agreement and in Section 4.06(c) hereof, and for the avoidance of doubt, nothing in this Agreement or in any other Loan Document shall prohibit or otherwise limit any Credit Party from (i) amending, restating, supplementing, modifying or waiving any default by an underlying obligor or related to the servicing of an underlying mortgage loan under any Collateral Transaction Document if such prohibition or limitation could have a material adverse effect on the performance by any Credit Party of any of its duties or obligations under any of the Freddie Mac Agreements (including, without limitation, any duties and obligations with respect to servicing of Freddie Mac Loans); or (ii) consenting to or otherwise effecting or implementing any amendment, restatement, supplement or other modification to or of any Freddie Mac Agreement consistent with modifications generally applicable to the Freddie Mac Agreements or to a Freddie Mac Seller/Servicer, if such amendment, restatement, supplement or other modification is required or requested by Freddie Mac.

 

Section 8.03           Special Ginnie Mae Provisions. Notwithstanding any provision herein or any other Security Document to the contrary, and as further provided in Sections 10.4(c) and 11.9 of the Credit Agreement, the provisions of this Section 8.03 shall apply in all events with respect to: (i) the “Ginnie Mae Collateral”; and (ii) the other terms, conditions, notice requirements, limitations, and agreements with respect to the Ginnie Mae Security Interests granted to the Administrative Agent (for the benefit of the Secured Parties) in the “Ginnie Mae Collateral” relating to the “Ginnie Mae Designated Loans” under this Agreement and/or any other Security Document (as each of such quoted terms is defined below). In providing the Ginnie Mae Acknowledgment letter, it is hereby acknowledged that Ginnie Mae is relying upon the terms and conditions set forth in this Section 8.03 and in Sections 9.12, 10.4(c), and 11.9 of the Credit Agreement. In the event of any conflict between the provisions of this Section 8.03 and the provisions of any other Loan Document or any other provision of this Agreement, the provisions of this Section 8.03 shall control. Subject to the foregoing, the Administrative Agent (on behalf of the Secured Parties) and each Credit Party expressly acknowledge and agree that notwithstanding anything contained herein, with regard to the mortgage servicing rights and mortgage servicing income for all Ginnie Mae Mortgage Loans, the following provisions shall apply and all other provisions contained herein shall be subject to and subordinate to these.

 

 

(a)            Each Credit Party hereby reaffirms and confirms the security interest granted pursuant to the existing Guarantee and Collateral Agreement and also grants to the Administrative Agent for the benefit of the Secured Parties, a security interest (the “Ginnie Mae Security Interest”) in the following (the “Ginnie Mae Collateral”) to secure payment and performance of the Secured Obligations: all servicing Income (including, without limitation, Ancillary Income and Servicing Fees) actually received by any Credit Party with respect to the Mortgage Loans (the “Ginnie Mae Designated Loans”) serviced at any time and from time to time under the Ginnie Mae Agreements, together with other Income received on account of payments made by a third party (other than Ginnie Mae) thereunder minus the Ginnie Mae guarantee fee and minus all required payments to all investors of the applicable mortgage-backed securities that the Ginnie Mae Designated Loans are securing, all as and to the extent provided in the Ginnie Mae Agreements. Specifically, Ginnie Mae Collateral does not include (i) the Ginnie Mae Agreements, (ii) MSR Assets related to the Ginnie Mae Agreements, or any other income related to the Ginnie Mae Designated Loans, or (iii) the escrow accounts relating to those Ginnie Mae Designated Loans or any payments held in a clearing account made pursuant to the Ginnie Mae Designated Loans. For avoidance of doubt, the Borrower is entitled to servicing Income only as so long as it maintains Issuer status (as defined in the Ginnie Mae Guide), upon such loss the Secured Parties’ rights to any servicing Income also terminate, and the pledge or other encumbrance of rights to servicing Income conveys no rights (such as a right to become a substitute servicer or Issuer (as defined in the Ginnie Mae Guide)) that is not specifically provided for in the Ginnie Mae Guide. Any security interest of the Administrative Agent and any that any other party hereto shall have in the Ginnie Mae Designated Loans is expressly subject and subordinate to all rights, remedies, powers and prerogatives of Ginnie Mae under the Ginnie Mae Guaranty Agreement, the Ginnie Mae Guide, and all other Ginnie Mae Agreements or contracts, including Ginnie Mae’s right to terminate the Ginnie Mae issuer’s rights with respect to the Ginnie Mae Designated Loans as provided in the Ginnie Mae Agreements and as further provided herein. Without limiting the generality of the foregoing provisions, the Administrative Agent acknowledges that its security interest and any rights that it shall have under the Credit Agreement and/or this Agreement is subject to the rights of Ginnie Mae under the Ginnie Mae Guaranty Agreements, the Ginnie Mae Guides, and other Ginnie Mae Agreements, as applicable, including without limitation, Ginnie Mae’s right to extinguish any interest of the applicable Credit Parties in the Ginnie Mae Designated Loans without compensation or offset and within Ginnie Mae’s absolute and sole discretion.

 

(b)            Each Credit Party authorizes the Administrative Agent to file such financing statements as the Administrative Agent deems reasonably necessary to perfect the Ginnie Mae Security Interest in the Ginnie Mae Collateral. Each Credit Party represents, warrants and covenants that (1) pursuant to the Ginnie Mae Guide and Applicable Law, an Agency Consent or other agreement acknowledging and consenting to any Loan or entering into any Credit Facility on the terms set forth in the Credit Agreement, the Guarantee and Collateral Agreement, and the other Loan Documents is not required with respect to any Ginnie Mae Agreement, (2) it will notify its Account Executive (as defined in the Ginnie Mae Guide) about this transaction via email no later than 15 Business Days after the date hereof and (3) as of the date hereof, no mortgages relating to any Ginnie Mae Agreement are registered with MERS (as defined in the Ginnie Mae Guide) and it will provide prompt written notice to the Administrative Agent in the event any mortgages relating to any Ginnie Mae Agreement are registered with MERS and shall cause MERS to enter the pledge on the MERS system and will obtain any necessary approvals of Ginnie Mae with respect thereto.

 

 

(c)            To the extent that Ginnie Mae Designated Loans remain subject to the Ginnie Mae Agreements, the applicable Credit Party will remain the servicer of the Ginnie Mae Designated Loans and will continue to service the Ginnie Mae Designated Loans in accordance with Ginnie Mae requirements. Such Credit Party shall not pledge (or, except as may be expressly provided in the Credit Agreement, enter into (or agree to enter into) any Negative Pledge respecting) any of its servicing rights with respect to the Ginnie Mae Designated Loans.

 

(d)            The Administrative Agent has no right to service the Ginnie Mae Designated Loans or affect the manner in which any applicable Credit Party services the Ginnie Mae Designated Loans. If Ginnie Mae terminates any Credit Party’s servicing rights with respect to the Ginnie Mae Designated Loans, this pledge will terminate automatically as to the Ginnie Mae Collateral granted by such Credit Party, and the Administrative Agent will release its Lien created by such pledge and execute and file all necessary documents to reflect such release; provided, however, that no such termination (and no such release) shall relate to, or otherwise affect, (A) the Ginnie Mae Security Interest granted by any other Credit Party or (B) the Ginnie Mae Security Interest respecting Ginnie Mae Collateral comprised of servicing Income then accrued or otherwise earned by such Credit Party through the date that Ginnie Mae so terminates the servicing rights of such Credit Party with respect to such Ginnie Mae Designated Loans (which accrued and earned servicing Income through such date of termination by Ginnie Mae shall in all events remain Ginnie Mae Collateral), with such termination (and such release) relating only to servicing Income accruing or otherwise earned by such Credit Party from the date of such termination by Ginnie Mae. The Credit Parties shall provide the Administrative Agent with immediate written notice of any such termination by Ginnie Mae but the Credit Parties’ failure to do so shall not affect the terms of this paragraph or Ginnie Mae’s rights with respect to the Ginnie Mae Designated Loans.

 

(e)            Upon the occurrence and during the continuance of an Event of Default for thirty (30) days or more, and the exercise by the Administrative Agent of its rights under Section 11.2 of the Credit Agreement, Article 5 hereof, and this Section 8.03, the Administrative Agent may: (i) direct that all servicing fees (minus the Ginnie Mae guarantee fee and minus all required payments to all investors of the applicable mortgage-backed securities that the Ginnie Mae Designated Loans are securing) made payable to any Credit Party with respect to the Ginnie Mae Designated Loans be deposited into lockbox accounts held by the Administrative Agent; (ii) in its own name, in the name of such Credit Party or otherwise, demand, sue for, collect or receive any money or property at any time payable or receivable on account of or in exchange for any of the Ginnie Mae Collateral, but the Administrative Agent has no obligation to do so; (iii) by written notice to such Credit Party, direct any Credit Party to sell the servicing rights to the Ginnie Mae Designated Loans (in which event such Credit Party shall (x) retain a nationally recognized firm that specializes in the sale of Ginnie Mae servicing rights (collectively, the “Ginnie Mae Program Assets”) (which firm must be reasonably acceptable to the Administrative Agent) and (y) sell the servicing rights to the Ginnie Mae Designated Loans to another Ginnie Mae lender/servicer within sixty (60) days of such notice from the Administrative Agent) (with the actions set forth in this clause (iii) being referred to herein as the “Specified Sale of Ginnie Mae Program Assets”); and (iv) exercise and enforce any or all rights and remedies available upon default to the Administrative Agent under the UCC, at law or in equity. Any sale of the Ginnie Mae Collateral must and shall be subject to Ginnie Mae’s written approval. All proceeds of such sale will be applied first to the expenses of the sale, then to any amounts due to Ginnie Mae from such Credit Party under the Servicing Contracts sold, and then to the outstanding balance of the Secured Obligations (as provided in Section 11.4 of the Credit Agreement), with any remaining balance remitted to the Borrower. Ginnie Mae shall have no obligation to comply with any directions of the Administrative Agent or to alter in any way servicing requirements, flows of funds, or accounting of servicing of the Ginnie Mae Designated Loans. Subject at all times to the consent rights of Ginnie Mae in accordance with the terms hereof, JPMorgan (or any designee of JPMorgan approved in writing by Ginnie Mae in its sole discretion) may seek approval from Ginnie Mae to acquire Ginnie Mae Program Assets as a result of any Specified Sale of Ginnie Mae Program Assets.

 

 

(f)             Upon the occurrence and during the continuance of an Event of Default for thirty (30) days or more, the Administrative Agent or its designee is entitled to receive and collect all sums payable to any applicable Credit Party in respect of the Ginnie Mae Collateral, and, in such case (i) the Administrative Agent or its designee in its discretion may, in its own name, in the name of such Credit Party or otherwise, demand, sue for, collect or receive any money or property at any time payable or receivable on account of or in exchange for any of the Ginnie Mae Collateral, but the Administrative Agent has no obligation to do so, (ii) such Credit Party must, if the Administrative Agent requests it to do so, hold in trust for the benefit of the Secured Parties and immediately pay to the Administrative Agent at its office designated by notice, all amounts received by such Credit Party upon or in respect of any of the Ginnie Mae Collateral, advising the Administrative Agent as to the source of those funds and (iii) all amounts so received and collected by the Administrative Agent will be held by it as part of the Ginnie Mae Collateral.

 

(g)            To the extent any amounts are received by the Administrative Agent pursuant to this Section 8.03, all rights of any applicable Credit Party against any other Credit Party arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior indefeasible payment in full in cash of all the Secured Obligations.

 

(h)            For the avoidance of doubt, and notwithstanding anything in this Section 8.03 to the contrary, nothing in this Section 8.03 shall require any of the Administrative Agent or any Secured Party to utilize its own funds or credit in connection with the exercise of any rights and remedies hereunder; provided, that nothing in this clause (h) shall limit or otherwise modify or affect any duties, obligations, covenants or agreements of the Administrative Agent or any Secured Party pursuant to this Section 8.03.

 

(i)             Notices and copies required by this Section 8.03 to be delivered to Ginnie Mae pursuant to the Credit Agreement, this Agreement and any other applicable Loan Document shall be delivered to Ginnie Mae at the following address:

 

Government National Mortgage Association
451 Seventh Street, S.W., Rm. B-133
Washington, DC 20410
Attn: Senior Vice President, Office of Mortgage-Backed Securities
Facsimile: (202) 485-0232

 

(j)             Each of the Administrative Agent, and each Credit Party acknowledge that the Ginnie Mae Designated Loans remain the property of Ginnie Mae and the Administrative Agent and each Credit Party agree that no loan data containing personally identifiable information shall be released to any third party pursuant to Section 8.13 of the Credit Agreement or any other Section hereunder or thereunder, or pursuant to any subpoena or court order, without the express written consent of Ginnie Mae.

 

 

[Signature Pages to Follow]

 

 

IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as a sealed instrument 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 & Chief Financial Officer
	WALKER & DUNLOP MULTIFAMILY, INC., as a Subsidiary Guarantor
	By:	/s/ Gregory A. Florkowski
		Name:	Gregory A. Florkowski
		Title:	Executive Vice President & Chief Financial Officer
	WALKER & DUNLOP, LLC, as a Subsidiary Guarantor
	By:	/s/ Gregory A. Florkowski
		Name:	Gregory A. Florkowski
		Title:	Executive Vice President & Chief Financial Officer
	WALKER & DUNLOP CAPITAL, LLC, as a Subsidiary Guarantor
	By:	/s/ Gregory A. Florkowski
		Name:	Gregory A. Florkowski
		Title:	Executive Vice President & Chief Financial Officer
	W&D BE, INC., as a Subsidiary Guarantor
	By:	/s/ Gregory A. Florkowski
		Name:	Gregory A. Florkowski
		Title:	Executive Vice President & Chief Financial Officer

 

Walker & Dunlop, Inc.
Amended and Restated Guarantee and Collateral Agreement
Signature Page

 

 

	WALKER & DUNLOP INVESTMENT SALES, LLC, as a Subsidiary Guarantor
	By: WALKER & DUNLOP, INC., as Manager
	By:	/s/ Gregory A. Florkowski
		Name:	Gregory A. Florkowski
		Title:	Executive Vice President & Chief Financial Officer
	JPMORGAN CHASE BANK, N.A., as Administrative Agent
	By:	/s/ Neil Laird Troeger
		Name:	Neil Laird Troeger
		Title:	Authorized Signatory

 

Walker & Dunlop, Inc.
Amended and Restated Guarantee and Collateral Agreement
Signature Page

 

 

 

Exhibit 10.3

 

CONSENT AND AMENDMENT

 

This Consent and Amendment (“Consent and Amendment”), dated as of March 14, 2025, is made by JPMorgan Chase Bank, N.A., a national banking association, in its capacity as buyer under the Repurchase Agreement (as defined below) (the “Buyer”), Walker & Dunlop, LLC, a Delaware limited liability company (“Seller”) and Walker & Dunlop, Inc., a Maryland corporation (“W&D, Inc.”). Capitalized terms used and not defined in this Consent and Amendment shall have the respective meanings given them in the Repurchase Agreement (as defined below).

 

WHEREAS, Seller is party to a certain Master Repurchase Agreement, dated as of August 26, 2019 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Repurchase Agreement”), by and among Seller, W&D, Inc. and the Buyer;

 

WHEREAS, W&D, Inc. intends to refinance the Term Loan Agreement (as defined in the Repurchase Agreement and referred to herein as the “Existing Term Loan”), by way of an amendment, extension and restatement of the Existing Term Loan on or about March 14, 2025 (the “New Credit Agreement”), which New Credit Agreement will, among other things, (i) decrease the total term loan commitment from $800,000,000 to up to $450,000,000 (the “New Term Loan”) and (ii) add a revolving credit loan in an aggregate principal amount of up to $50,000,000 (the “Revolving Credit Facility”);

 

WHEREAS, in connection with the New Credit Agreement, W&D, Inc. intends to undertake a notes offering (the “Offering”, together with the New Credit Agreement, the “Refinancing Transactions”) pursuant to which W&D, Inc. will issue senior unsecured notes in an aggregate principal amount of up to $450,000,000 (the “Notes”, together with the New Term Loan and the Revolving Credit Facility, the “Debt Instruments”) to be offered pursuant to Rule 144A and Regulation S under the Securities Act of 1933, as amended (the “Securities Act”);

 

WHEREAS, Seller is a guarantor of the obligations arising under the Existing Term Loan, and it is a condition precedent to the Refinancing Transactions that Seller guarantee the obligations arising thereunder;

 

WHEREAS, pursuant to Section 10(q) of the Repurchase Agreement, Seller shall not assume, guarantee, endorse or otherwise become contingently liable for the obligation of any Person except the Existing Term Loan and obligations arising in connection therewith, subject to the limitations set forth in said Section 10(q); and

 

WHEREAS, Seller has requested the consent of the Buyer, notwithstanding Section 10(q) of the Repurchase Agreement or any other provision of the Repurchase Agreement applicable to the guarantee by Seller of the obligations arising under the Refinancing Transactions, to permit the guarantee by Seller of the obligations arising under the Refinancing Transactions.

 

 

NOW, THEREFORE, in consideration of the premises set forth above and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

 

1.             Consent. Notwithstanding the provisions of Section 10(q) or any other provision of the Repurchase Agreement applicable to the guarantee by Seller of the Debt Instruments, the Buyer hereby consents to the guarantee by Seller of the obligations arising under the New Term Loan, the Revolving Credit Facility and the Notes, effective upon the effective date of the New Credit Agreement and the issuance of the Notes, and subject to the following additional conditions:

 

(a)            The terms and conditions of the Debt Instruments must be in all material respects the same as the terms and conditions set forth in the Summary of Proposed Terms and Conditions for the Debt Instruments attached to this Consent and Amendment as Exhibit A.

 

(b)           After giving effect to the closing or completion of each of the Refinancing Transactions, W&D, Inc. will be in compliance with all of the financial covenants applicable to it as set forth in Section 10(u) of the Repurchase Agreement, and no Default or Event of Default will then exist.

 

(c)            The collateral securing the New Term Loan and the Revolving Credit Facility must exclude (by generic or specific description) all “Mortgaged Assets” (for the purpose of clarity, as defined in the Repurchase Agreement).

 

2.             Limitation of Consent. The consent set forth above shall be limited precisely as written and relates solely to the provisions of Section 10(q) or any other provision of the Repurchase Agreement applicable to the Refinancing Transactions in the manner and to the extent described above and nothing in this Consent and Amendment shall be deemed to:

 

(a)            Constitute a waiver of compliance by Seller with respect to any other term, provision or condition of the Repurchase Agreement or any other instrument or agreement referred to therein (including those pertaining to W&D, Inc. as “Parent”); or

 

(b)            Prejudice any right or remedy that the Buyer under the Repurchase Agreement may now have or may have in the future under or in connection with the Repurchase Agreement or any other instrument or agreement referred to therein.

 

3.             Amendment. Effective as of the consummation of each of the Refinancing Transactions, the Repurchase Agreement is hereby amended as follows:

 

(a)            All references to “Term Loan” in the Repurchase Agreement shall be replaced with “Term Loan and the Revolving Loan”.

 

(b)            All references to “Term Loan Agreement” in the Repurchase Agreement shall be replaced with “Credit Agreement”.

 

 

(c)            Section 10(q) is hereby deleted in its entirety and replaced with the following:

 

“Contingent Liabilities.       Seller shall not assume, guarantee, endorse or otherwise become contingently liable for the obligation of any Person except (a) for the Term Loan and the Revolving Loan and obligations arising in connection therewith; (b) for the Notes and obligations arising in connection therewith; (c) by endorsement of negotiable instruments for deposit or collection in the ordinary course of business; and (d) for obligations arising in connection with the sale of Mortgage Loans in the ordinary course of a Seller’s business.”

 

(d)            Section 2 is hereby amended as follows:

 

(i)            As applicable, the definitions of the following terms either (A) amend, supersede, and replace in their entirety the corresponding previously included definition thereof where they respectively appear therein, or (B) if not previously included therein, are hereby added thereto as alphabetically appropriate:

 

“Indenture” means that certain Indenture, dated as of March 14, 2025, by and among Parent, the guarantors party thereto, and U.S. Bank Trust Company, National Association, as trustee.

 

“Revolving Loan” means collectively (a) the revolving loan in the original principal amount of $50,000,000 made by the lenders pursuant to the Credit Agreement; and (b) any additional incremental revolving made pursuant to the Credit Agreement.

 

“Term Loan” means collectively (a) the term loan in the original principal amount of up to $450,000,000 (but which principal amount, together with the initial principal amount of the Notes, shall not exceed $850,000,000) made by the lenders pursuant to the Credit Agreement; (b) any additional incremental term loans made pursuant to the Credit Agreement; and (c) all existing or future payment and other obligations owing by Parent, Walker & Dunlop Multifamily, Inc., Seller, WD Capital or any other Affiliate of Parent party to the Credit Agreement under (i) any secured hedge agreements or comparable arrangements and (ii) any secured cash management agreements or comparable arrangements, in each case, as contemplated by the Credit Agreement.

 

“Credit Agreement” means that certain Amended and Restated Credit Agreement, dated as of March 14, 2025, among the Parent, the lenders party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent.

 

 

“Notes” means collectively (a) those certain senior unsecured notes due 2033 issued by Parent under the Indenture in an aggregate principal amount of up to $450,000,000 (but which principal amount, together with the initial principal amount of the Term Loan, shall not exceed $850,000,000) and (b) all existing or future payment and other obligations owing by Parent, Walker & Dunlop Multifamily, Inc., Seller, WD Capital or any other Affiliate or Parent pursuant to the Notes).

 

4.             No Modifications. Except as expressly provided herein, nothing contained in this Consent and Amendment shall be deemed or construed to amend, supplement or modify the Repurchase Agreement or otherwise affect the rights and obligations of any party thereto, all of which remain in full force and effect.

 

5.             Successors and Assigns. This Consent and Amendment shall inure to the benefit of and be binding upon Seller, W&D, Inc., the Buyer, and each of their respective successors and assigns.

 

6.             Governing Law. This Consent and Amendment shall be governed by, and construed in accordance with, the laws of the State of New York (without regard to any conflict of laws principles) and applicable United States federal law.

 

7.             Counterparts. This Consent and Amendment may be executed in any number of counterparts, all of which shall constitute one and the same agreement, and any party hereto may execute this Consent and Amendment by signing and delivering one or more counterparts. Delivery of an executed counterpart of this Consent and Amendment electronically shall be effective as delivery of an original executed counterpart of this Consent and Amendment.

  

[SIGNATURE PAGE FOLLOWS]

 

 

IN WITNESS WHEREOF, the parties hereto have executed this Consent and Amendment as of the date first above written.

 

	WALKER & DUNLOP, LLC
	By:	/s/ Issa M. Bannourah
	Name:	Issa M. Bannourah
	Title:	Senior Vice President and Treasurer
	WALKER & DUNLOP, INC.
	By:	/s/ Issa M. Bannourah
	Name:	Issa M. Bannourah
	Title:	Senior Vice President and Treasurer
	JPMORGAN CHASE BANK, N.A.
	By:	/s/ Neil Laird Troeger
	Name:	Neil Laird Troeger
	Title:	Authorized Signatory

 

[Signature Page to Walker & Dunlop Consent and Amendment – JPM] 

 

 

Exhibit A

 

Summary of Proposed Terms and Conditions for the Debt Instruments

 

See attached.

 

 

$450,000,000 SENIOR SECURED TERM LOAN FACILITY 

$50,000,000 SENIOR SECURED REVOLVING CREDIT FACILITY
SUMMARY OF PROPOSED TERMS AND CONDITIONS

 

Borrower:	Walker & Dunlop, Inc., a Maryland corporation (the “Borrower”).
Sole Lead Arranger and Bookrunner:	JPMorgan Chase Bank, N.A. (“JPM”) will act as sole lead arranger and bookrunner (in such capacities, the “Lead Arranger”).
Lenders:	A syndicate of financial institutions and other entities arranged by the Lead Arranger (each a “Lender” and, collectively, the “Lenders”).
Administrative Agent:	JPM (in such capacity, the “Administrative Agent”).
Transactions:	The Borrower intends to (i) enter into the Term Loan Facility (as defined below), the proceeds of which will be used, together with the proceeds of the Other Indebtedness (as defined below), to refinance (whether by way of prepayment, cashless roll or otherwise) the outstanding term loans under the Existing Credit Agreement in full (the “Refinancing”), (ii) enter into the Revolving Credit Facility (as defined below), (iii) make certain other changes to the Existing Credit Agreement in connection therewith, and (iv) obtain up to $400.0 million of other senior unsecured indebtedness (the “Other Indebtedness”) (clauses (i) through (iv), collectively, the “Transactions”).
Senior Secured Term Loan Facility:	A senior secured term loan facility in an aggregate principal amount of $450.0 million (the “Term Loan Facility” and the term loans thereunder, the “Term Loans”).
Senior Secured Revolving Credit Facility:	A senior secured revolving credit facility in an aggregate principal amount of $50.0 million (the “Revolving Credit Facility” and, together with the Term Loan Facility, the “Facilities”) (with subfacilities for standby letters of credit in an aggregate principal amount of up to $25.0 million (each, a “Letter of Credit”) and swingline loans in an aggregate principal amount of up to $25.0 million (each, a “Swingline Loan”) on customary terms and conditions).
Use of Proceeds:	The proceeds of the Term Loan Facility and the Other Indebtedness will be used to finance the Refinancing and for other general corporate purposes of the Borrower and its subsidiaries) (including, without limitation, dividends, share repurchases and permitted investments).
	The Revolving Credit Facility will be used to provide ongoing working capital and for other general corporate purposes of the Borrower and its subsidiaries) (including, without limitation, dividends, share repurchases and permitted investments).

 

 

Closing Date:	The date on which (i) the initial funding under the Term Loan Facility occurs, (ii) the Revolving Credit Facility becomes effective and (iii) the Transactions occur (the “Closing Date”).
Incremental Increases:	After the Closing Date, the Borrower will be permitted to (A) incur additional term loans under a new term facility or as an increase to the Term Loan Facility (each, an “Incremental Term Loan”) and/or (B) increase commitments under the Revolving Credit Facility (each, a “Revolving Credit Facility Increase” and, together with the Incremental Term Loans, the “Incremental Increases”) in an aggregate principal amount not to exceed the sum of (x) the greater of (1) $325.0 million and (2) 100.0% of LTM Consolidated Adjusted EBITDA for the trailing four fiscal quarter period of the Borrower ended prior to such date plus (y) an amount which, after giving pro forma effect to the incurrence of such Incremental Increase would not cause the Consolidated Net Secured Leverage Ratio to exceed, on a pro forma basis, 3.00 to 1.00.
Guarantors:	The obligations will be unconditionally guaranteed, on a joint and several basis, by existing and subsequently acquired or formed direct and indirect subsidiaries of the Borrower (each, a “Guarantor”) other than Excluded Subsidiaries and, in the case of any obligations of any subsidiaries of the Borrower of the type described in clause (b) above, the Borrower.
	All guarantees shall be guarantees of payment and not of collection. The Borrower and the Guarantors are herein referred to, collectively, as the “Credit Parties”.
Security:	The Secured Obligations will be secured by valid and perfected first priority (subject to certain customary exceptions satisfactory to the Administrative Agent and set forth in the Financing Documentation) security interests and liens.
Final Maturity:	The final maturity of the Term Loan Facility will occur on the 7th anniversary of the Closing Date (the “Term Loan Maturity Date”).
	The final maturity of the Revolving Credit Facility will occur on the 3rd anniversary of the Closing Date (the “Revolving Credit Maturity Date”).

 

 

Amortization:	The Term Loan Facility will amortize in equal quarterly installments in an aggregate annual amount equal to 1.00% of the original principal amount of the Term Loan Facility with the remainder due on the Term Loan Maturity Date.
Representations and Warranties,
Affirmative and Negative Covenants:	Usual and customary for facilities of this type.

 

 

The Offering

 

The following is a summary of certain terms of the indenture and the notes and is qualified in its entirety by the more detailed information contained under the heading “Description of Notes” in the offering memorandum.

 

Issuer	Walker & Dunlop, Inc.
Securities	$         million aggregate principal amount of            % Senior Notes due 2033 (the “notes”).
Maturity	, 2033
Interest payment dates	and       of each year, commencing           , 2025, interest will accrue from             , 2025.
Optional redemption	The notes will be redeemable at the Issuer’s option, in whole or in part, at any time on or after         , 2028, at the redemption prices set forth in this offering memorandum, plus accrued and unpaid interest, if any, to, but not including, the date of redemption.
	At any time prior to         , 2028, the Issuer may also redeem the notes, in whole or in part, at a price equal to 100% of the principal amount of the notes, plus a “make-whole” premium, plus accrued and unpaid interest, if any, to, but not including, the date of redemption.
	In addition, prior to              , 2028, we may redeem up to 40% of the aggregate principal amount of the notes with the net cash proceeds of certain public equity offerings of our common stock at           % of their principal amount plus accrued and unpaid interest to, but not including, the redemption date. We may make such redemption only if, after any such redemption, at least 60% of the aggregate principal amount of the notes originally issued remains outstanding (after giving effect to the issuance of any additional notes).
	See “Description of Notes—Redemption—Optional Redemption.”
Mandatory offers to purchase	The occurrence of a change of control will require the Issuer to offer to purchase from holders all or a portion of the notes at a price equal to 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but not including, the date of purchase. See “Description of Notes—Repurchase at the Option of Holders—Change of Control.”
Guarantees	All payments on the notes, including principal and interest, will be fully and unconditionally, jointly and severally, guaranteed on the issue date on a senior unsecured basis by our existing direct and indirect subsidiaries that guarantee our senior secured credit facilities and all future subsidiaries that guarantee the Issuer's senior secured credit facilities and certain other material indebtedness. See “Description of Notes—Note Guarantees.”
	For the fiscal year ended December 31, 2024, the non-guarantor subsidiaries accounted for approximately 10% of our consolidated total revenue, 14% of our net income and 2% of our Consolidated Adjusted EBITDA.

 

 

Ranking

The notes and the guarantees will be Issuer’s and the guarantors’ unsecured, unsubordinated obligations and will:

 

	·	rank senior in right of payment to all of the Issuer’s and the guarantors’ future indebtedness that is subordinated in right of payment to the notes;
	·	rank equally in right of payment with all of the Issuer’s and the guarantors’ existing and future unsubordinated indebtedness;
	·	be effectively subordinated to any of the Issuer’s and the guarantors’ existing and future secured debt, including our senior secured credit facilities, to the extent of the value of the assets securing such debt; and
	·	be structurally subordinated to any existing and future liabilities of each of our and the guarantors’ subsidiaries that do not guarantee the notes.

 

As of December 31, 2024, after giving effect to the Amended Credit Agreement and the transactions contemplated thereby and the issuance of the notes:

 

	·	the Issuer and the guarantors would have had approximately $0.85 billion of indebtedness (exclusive of indebtedness under our warehouse facilities), of which approximately $0.45 billion was secured, to which the notes are effectively subordinated to the extent of the value of the assets securing such obligations, and the Issuer would have had an additional $50 million of availability under its revolving credit facility, all of which would be secured indebtedness;
	·	the Company had committed and uncommitted warehouse lines of credit in the amount of $3.8 billion with certain national banks and a $1.5 billion uncommitted facility with Fannie Mae under its Agency Warehouse Facilities. The Company also had $100.0 million of total facility capacity under warehouse lines of credit with a certain national bank with no outstanding balance under its Interim Warehouse Facility; and
	·	the non-guarantor subsidiaries would have had approximately 35% of our consolidated total assets and approximately 21%, or $568 million, of our consolidated total liabilities, to which the notes are structurally subordinated.
	·	See “Description of Other Indebtedness” for more information.

 

Covenants

The notes will be issued under an indenture with U.S. Bank Trust Company, National Association, as trustee. The covenants contained in the indenture governing the notes will, among other things, limit our ability and the ability of our subsidiaries (other than certain excluded subsidiaries) to:

 

·

incur more debt;

 

·

pay dividends and make distributions or repurchase shares;

 

·

make investments;

 

 

·

create liens;

 

·

enter into restrictions on the ability of our subsidiaries to make distributions, loans or advances to us;

 

·

sell assets;

 

·

engage in certain types of transactions with affiliates;

 

·

engage in certain sale and leaseback transactions; and

 

·

merge or consolidate with other companies or sell substantially all of our assets.

 

	In addition, the Issuer’s excluded subsidiaries will be restricted from engaging in certain transactions with affiliates and from repurchasing the equity interests of the Issuer.
	These covenants are subject to a number of important exceptions and qualifications. In addition, if and for so long as the notes have an investment grade rating from both Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. (“S&P”) and Moody’s Investors Service, Inc. (“Moody’s”) and no default under the indenture has occurred and is continuing, certain covenants will be suspended. For more details, see “Description of Notes.”
Transfer restrictions	The notes are not registered under the Securities Act. Therefore, the notes are subject to restrictions on transferability and resale. We do not intend to issue registered notes in exchange for the notes to be privately placed in this offering, and the absence of registration rights may adversely impact the transferability of the notes. For more information, see “Transfer Restrictions” and “Risk Factors—Risks Relating to Our Notes and Indebtedness—Holders of the notes will not be entitled to registration rights, and we do not currently intend to register the notes under applicable securities laws. There are restrictions on your ability to transfer or resell the notes.”
Absence of public market for the notes	We do not intend to apply for a listing of the notes on any securities exchange or an automated dealer quotation system. The initial purchaser has advised the Issuer that they currently intend to make a market in the notes. However, they are not obligated to do so, and any market making with respect to the notes may be discontinued without notice. Accordingly, there can be no assurance as to the existence or liquidity of any market for the notes.
Use of proceeds	We expect to use the net proceeds of this offering, together with the proceeds from our Term Loan Facility (as defined herein), to (i) repay the outstanding principal amount of term loans under our Existing Credit Agreement, together with accrued and unpaid interest thereon, (ii) to pay fees and expenses in connection with this offering and the amendment to our Existing Credit Agreement and (iii) for general corporate purposes. See “Use of Proceeds” and “Recent Developments” for more information.

 

 

 

Exhibit 10.4

 

CONSENT AND AMENDMENT

 

This Consent and Amendment (“Consent and Amendment”), dated as of March 14, 2025, is made by PNC Bank, National Association, a national banking association, in its capacity as lender under the Warehouse Agreement (as defined below) (the “Lender”), Walker & Dunlop, LLC, a Delaware limited liability company (“W&D, LLC”) and Walker & Dunlop, Inc., a Maryland corporation (“W&D, Inc.”). Capitalized terms used and not defined in this Consent and Amendment shall have the respective meanings given them in the Warehouse Agreement (as defined below).

 

WHEREAS, W&D, LLC is party to a certain Second Amended and Restated Warehousing Credit and Security Agreement, dated as of September 11, 2017 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Warehouse Agreement”), by and among W&D, LLC, W&D, Inc. and the Lender;

 

WHEREAS, W&D, Inc. intends to refinance the Term Loan Agreement (as defined in the Warehouse Agreement and referred to herein as the “Existing Term Loan”), by way of an amendment, extension and restatement of the Existing Term Loan on or about March 14, 2025 (the “New Credit Agreement”), which New Credit Agreement will, among other things, (i) decrease the total term loan commitment from $800,000,000 to up to $450,000,000 (the “New Term Loan”) and (ii) add a revolving credit loan in an aggregate principal amount of up to $50,000,000 (the “Revolving Credit Facility”);

 

WHEREAS, in connection with the New Credit Agreement, W&D, Inc. intends to undertake a notes offering (the “Offering”, together with the New Credit Agreement, the “Refinancing Transactions”) pursuant to which W&D, Inc. will issue senior unsecured notes in an aggregate principal amount of up to $450,000,000 (the “Notes”, together with the New Term Loan and the Revolving Credit Facility, the “Debt Instruments”) to be offered pursuant to Rule 144A and Regulation S under the Securities Act of 1933, as amended (the “Securities Act”);

 

WHEREAS, W&D, LLC is a guarantor of the obligations arising under the Existing Term Loan, and it is a condition precedent to the Refinancing Transactions that W&D, LLC guarantee the obligations arising thereunder;

 

WHEREAS, pursuant to Section 8.2 of the Warehouse Agreement, W&D, LLC shall not assume, guarantee, endorse or otherwise become contingently liable for the obligation of any Person except the Existing Term Loan and obligations arising in connection therewith, subject to the limitations set forth in said Section 8.2; and

 

WHEREAS, W&D, LLC has requested the consent of the Lender, notwithstanding Section 8.2 of the Warehouse Agreement or any other provision of the Warehouse Agreement applicable to the guarantee by W&D, LLC of the obligations arising under the Refinancing Transactions, to permit the guarantee by W&D, LLC of the obligations arising under the Refinancing Transactions.

 

 

NOW, THEREFORE, in consideration of the premises set forth above and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

 

1.             Consent. Notwithstanding the provisions of Section 8.2 or any other provision of the Warehouse Agreement applicable to the guarantee by W&D, LLC of the Debt Instruments, the Lender hereby consents to the guarantee by W&D, LLC of the obligations arising under the New Term Loan, the Revolving Credit Facility and the Notes, effective upon the effective date of the New Credit Agreement and the issuance of the Notes, and subject to the following additional conditions:

 

(a)            The terms and conditions of the Debt Instruments must be in all material respects the same as the terms and conditions set forth in the Summary of Proposed Terms and Conditions for the Debt Instruments attached to this Consent and Amendment as Exhibit A.

 

(b)            After giving effect to the closing or completion of each of the Refinancing Transactions, W&D, Inc. will be in compliance with all of the financial covenants applicable to it as set forth in Section 8 of the Warehouse Agreement, and no Default or Event of Default will then exist.

 

(c)            The collateral securing the New Term Loan and the Revolving Credit Facility must exclude (by generic or specific description) all “Collateral” (for the purpose of clarity, as defined in the Warehouse Agreement).

 

2.             Limitation of Consent. The consent set forth above shall be limited precisely as written and relates solely to the provisions of Section 8.2 in the manner and to the extent described above and nothing in this Consent and Amendment shall be deemed to:

 

(a)            Constitute a waiver of compliance by W&D, LLC with respect to any other term, provision or condition of the Warehouse Agreement or any other instrument or agreement referred to therein (including those pertaining to W&D, Inc. as “Parent”);

 

(b)            Constitute a waiver of Lender with respect to any other term, provision or condition of the Warehouse Agreement or any other instrument or agreement referred to therein; or

 

(c)            Prejudice any right or remedy that the Lender under the Warehouse Agreement may now have or may have in the future under or in connection with the Warehouse Agreement or any other instrument or agreement referred to therein.

 

3.             Amendment. Effective as of the consummation of each of the Refinancing Transactions, the Warehouse Agreement is hereby amended as follows:

 

(a)            All references to “Term Loan” in the Warehouse Agreement shall be replaced with “Term Loan and the Revolving Loan”.

 

 

(b)           All references to “Term Loan Agreement” in the Warehouse Agreement shall be replaced with “Term Loan and Revolving Loan Credit Agreement”.

 

(c)            Section 8.2 is hereby deleted in its entirety and replaced with the following:

 

“Assume, guarantee, endorse or otherwise become contingently liable for the obligation of any Person except (a) for the Term Loan and the Revolving Loan and obligations arising in connection therewith; (b) for the Notes and obligations arising in connection therewith; (c) by endorsement of negotiable instruments for deposit or collection in the ordinary course of business; and (d) for obligations arising in connection with the sale of Mortgage Loans in the ordinary course of a Borrower’s business.”

 

(d)            Section 12.1 is hereby amended as follows:

 

(i)            As applicable, the definitions of the following terms either (A) amend, supersede, and replace in their entirety the corresponding previously included definition thereof where they respectively appear therein, or (B) if not previously included therein, are hereby added thereto as alphabetically appropriate:

 

“Indenture” means that certain Indenture, dated as of March 14, 2025, by and among Parent, the guarantors party thereto, and U.S. Bank Trust Company, National Association, as trustee.

 

“Revolving Loan” means collectively (a) the revolving loan in the original principal amount of $50,000,000 made by the lenders pursuant to the Term Loan and Revolving Loan Credit Agreement; and (b) any additional incremental revolving loans made pursuant to the Term Loan and Revolving Loan Credit Agreement.

 

“Term Loan” means collectively (a) the term loan in the original principal amount of up to $450,000,000 (but which principal amount, together with the initial principal amount of the Notes, shall not exceed $850,000,00) made by the lenders pursuant to the Term Loan and Revolving Loan Credit Agreement; (b) any additional incremental term loans made pursuant to the Term Loan and Revolving Loan Credit Agreement; and (c) all existing or future payment and other obligations owing by Parent, Walker & Dunlop Multifamily, Inc., Borrower, WD Capital or any other Affiliate of Parent party to the Term Loan and Revolving Loan Credit Agreement under (i) any secured hedge agreements or comparable arrangements and (ii) any secured cash management agreements or comparable arrangements, in each case, as contemplated by the Term Loan and Revolving Loan Credit Agreement.

 

 

“Term Loan and Revolving Loan Credit Agreement” means that certain Amended and Restated Credit Agreement, dated as of March 14, 2025, among the Parent, the lenders party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent.

 

“Notes” means collectively (a) those certain senior unsecured notes due 2033 issued by Parent under the Indenture in an aggregate principal amount of $450,000,000 (but which principal amount, together with the initial principal amount of the Term Loan, shall not exceed $850,000,00) and (b) all existing or future payment and other obligations owing by Parent, Walker & Dunlop Multifamily, Inc., Borrower, WD Capital or any other Affiliate or Parent pursuant to the Notes.

 

4.             No Modifications. Except as expressly provided herein, nothing contained in this Consent and Amendment shall be deemed or construed to amend, supplement or modify the Warehouse Agreement or otherwise affect the rights and obligations of any party thereto, all of which remain in full force and effect.

 

5.             Successors and Assigns. This Consent and Amendment shall inure to the benefit of and be binding upon W&D, LLC, W&D, Inc., the Lender, and each of their respective successors and assigns.

 

6.             Governing Law. This Consent and Amendment shall be governed by, and construed in accordance with, the laws of the Commonwealth of Pennsylvania (without regard to any conflict of laws principles) and applicable United States federal law.

 

7.             Counterparts. This Consent and Amendment may be executed in any number of counterparts, all of which shall constitute one and the same agreement, and any party hereto may execute this Consent and Amendment by signing and delivering one or more counterparts. Delivery of an executed counterpart of this Consent and Amendment electronically shall be effective as delivery of an original executed counterpart of this Consent and Amendment.

 

[SIGNATURE PAGE FOLLOWS]

 

 

IN WITNESS WHEREOF, the parties hereto have executed this Consent and Amendment as of the date first above written.

 

	WALKER & DUNLOP, LLC
	By:	/s/ Issa M. Bannourah
	Name:	Issa M. Bannourah
	Title:	Senior Vice President and Treasurer
	WALKER & DUNLOP, INC.
	By:	/s/ Issa M. Bannourah
	Name:	Issa M. Bannourah
	Title:	Senior Vice President and Treasurer
	PNC BANK, NATIONAL ASSOCIATION
	By:	/s/ Steven Pachla
	Name:	Steven Pachla
	Title:	Vice President

 

[Signature Page to Walker & Dunlop Consent and Amendment – PNC]

 

 

Exhibit A

 

Summary of Proposed Terms and Conditions for the Debt Instruments

 

See attached.

 

 

$450,000,000 SENIOR SECURED TERM LOAN FACILITY 

$50,000,000 SENIOR SECURED REVOLVING CREDIT FACILITY
SUMMARY OF PROPOSED TERMS AND CONDITIONS

 

Borrower:	Walker & Dunlop, Inc., a Maryland corporation (the “Borrower”).
Sole Lead Arranger and Bookrunner:	JPMorgan Chase Bank, N.A. (“JPM”) will act as sole lead arranger and bookrunner (in such capacities, the “Lead Arranger”).
Lenders:	A syndicate of financial institutions and other entities arranged by the Lead Arranger (each a “Lender” and, collectively, the “Lenders”).
Administrative Agent:	JPM (in such capacity, the “Administrative Agent”).
Transactions:	The Borrower intends to (i) enter into the Term Loan Facility (as defined below), the proceeds of which will be used, together with the proceeds of the Other Indebtedness (as defined below), to refinance (whether by way of prepayment, cashless roll or otherwise) the outstanding term loans under the Existing Credit Agreement in full (the “Refinancing”), (ii) enter into the Revolving Credit Facility (as defined below), (iii) make certain other changes to the Existing Credit Agreement in connection therewith, and (iv) obtain up to $400.0 million of other senior unsecured indebtedness (the “Other Indebtedness”) (clauses (i) through (iv), collectively, the “Transactions”).
Senior Secured Term Loan Facility:	A senior secured term loan facility in an aggregate principal amount of $450.0 million (the “Term Loan Facility” and the term loans thereunder, the “Term Loans”).
Senior Secured Revolving Credit Facility:	A senior secured revolving credit facility in an aggregate principal amount of $50.0 million (the “Revolving Credit Facility” and, together with the Term Loan Facility, the “Facilities”) (with subfacilities for standby letters of credit in an aggregate principal amount of up to $25.0 million (each, a “Letter of Credit”) and swingline loans in an aggregate principal amount of up to $25.0 million (each, a “Swingline Loan”) on customary terms and conditions).
Use of Proceeds:	The proceeds of the Term Loan Facility and the Other Indebtedness will be used to finance the Refinancing and for other general corporate purposes of the Borrower and its subsidiaries) (including, without limitation, dividends, share repurchases and permitted investments).
	The Revolving Credit Facility will be used to provide ongoing working capital and for other general corporate purposes of the Borrower and its subsidiaries) (including, without limitation, dividends, share repurchases and permitted investments).

 

 

Closing Date:	The date on which (i) the initial funding under the Term Loan Facility occurs, (ii) the Revolving Credit Facility becomes effective and (iii) the Transactions occur (the “Closing Date”).
Incremental Increases:	After the Closing Date, the Borrower will be permitted to (A) incur additional term loans under a new term facility or as an increase to the Term Loan Facility (each, an “Incremental Term Loan”) and/or (B) increase commitments under the Revolving Credit Facility (each, a “Revolving Credit Facility Increase” and, together with the Incremental Term Loans, the “Incremental Increases”) in an aggregate principal amount not to exceed the sum of (x) the greater of (1) $325.0 million and (2) 100.0% of LTM Consolidated Adjusted EBITDA for the trailing four fiscal quarter period of the Borrower ended prior to such date plus (y) an amount which, after giving pro forma effect to the incurrence of such Incremental Increase would not cause the Consolidated Net Secured Leverage Ratio to exceed, on a pro forma basis, 3.00 to 1.00.
Guarantors:	The obligations will be unconditionally guaranteed, on a joint and several basis, by existing and subsequently acquired or formed direct and indirect subsidiaries of the Borrower (each, a “Guarantor”) other than Excluded Subsidiaries and, in the case of any obligations of any subsidiaries of the Borrower of the type described in clause (b) above, the Borrower.
	All guarantees shall be guarantees of payment and not of collection. The Borrower and the Guarantors are herein referred to, collectively, as the “Credit Parties”.
Security:	The Secured Obligations will be secured by valid and perfected first priority (subject to certain customary exceptions satisfactory to the Administrative Agent and set forth in the Financing Documentation) security interests and liens.
Final Maturity:	The final maturity of the Term Loan Facility will occur on the 7th anniversary of the Closing Date (the “Term Loan Maturity Date”).
	The final maturity of the Revolving Credit Facility will occur on the 3rd anniversary of the Closing Date (the “Revolving Credit Maturity Date”).

 

 

Amortization:	The Term Loan Facility will amortize in equal quarterly installments in an aggregate annual amount equal to 1.00% of the original principal amount of the Term Loan Facility with the remainder due on the Term Loan Maturity Date.
Representations and Warranties,
Affirmative and Negative Covenants:	Usual and customary for facilities of this type.

 

 

The Offering

 

The following is a summary of certain terms of the indenture and the notes and is qualified in its entirety by the more detailed information contained under the heading “Description of Notes” in the offering memorandum.

 

Issuer	Walker & Dunlop, Inc.
Securities	$         million aggregate principal amount of            % Senior Notes due 2033 (the “notes”).
Maturity	, 2033
Interest payment dates	and            of each year, commencing            , 2025, interest will accrue from            , 2025.
Optional redemption	The notes will be redeemable at the Issuer’s option, in whole or in part, at any time on or after            , 2028, at the redemption prices set forth in this offering memorandum, plus accrued and unpaid interest, if any, to, but not including, the date of redemption.
	At any time prior to            , 2028, the Issuer may also redeem the notes, in whole or in part, at a price equal to 100% of the principal amount of the notes, plus a “make-whole” premium, plus accrued and unpaid interest, if any, to, but not including, the date of redemption.
	In addition, prior to            , 2028, we may redeem up to 40% of the aggregate principal amount of the notes with the net cash proceeds of certain public equity offerings of our common stock at            % of their principal amount plus accrued and unpaid interest to, but not including, the redemption date. We may make such redemption only if, after any such redemption, at least 60% of the aggregate principal amount of the notes originally issued remains outstanding (after giving effect to the issuance of any additional notes).
	See “Description of Notes—Redemption—Optional Redemption.”
Mandatory offers to purchase	The occurrence of a change of control will require the Issuer to offer to purchase from holders all or a portion of the notes at a price equal to 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but not including, the date of purchase. See “Description of Notes—Repurchase at the Option of Holders—Change of Control.”
Guarantees	All payments on the notes, including principal and interest, will be fully and unconditionally, jointly and severally, guaranteed on the issue date on a senior unsecured basis by our existing direct and indirect subsidiaries that guarantee our senior secured credit facilities and all future subsidiaries that guarantee the Issuer's senior secured credit facilities and certain other material indebtedness. See “Description of Notes—Note Guarantees.”
	For the fiscal year ended December 31, 2024, the non-guarantor subsidiaries accounted for approximately 10% of our consolidated total revenue, 14% of our net income and 2% of our Consolidated Adjusted EBITDA.
Ranking	The notes and the guarantees will be Issuer’s and the guarantors’ unsecured, unsubordinated obligations and will:

 

 

	·	rank senior in right of payment to all of the Issuer’s and the guarantors’ future indebtedness that is subordinated in right of payment to the notes;
	·	rank equally in right of payment with all of the Issuer’s and the guarantors’ existing and future unsubordinated indebtedness;
	·	be effectively subordinated to any of the Issuer’s and the guarantors’ existing and future secured debt, including our senior secured credit facilities, to the extent of the value of the assets securing such debt; and
	·	be structurally subordinated to any existing and future liabilities of each of our and the guarantors’ subsidiaries that do not guarantee the notes.

 

As of December 31, 2024, after giving effect to the Amended Credit Agreement and the transactions contemplated thereby and the issuance of the notes:

 

	·	the Issuer and the guarantors would have had approximately $0.85 billion of indebtedness (exclusive of indebtedness under our warehouse facilities), of which approximately $0.45 billion was secured, to which the notes are effectively subordinated to the extent of the value of the assets securing such obligations, and the Issuer would have had an additional $50 million of availability under its revolving credit facility, all of which would be secured indebtedness;
	·	the Company had committed and uncommitted warehouse lines of credit in the amount of $3.8 billion with certain national banks and a $1.5 billion uncommitted facility with Fannie Mae under its Agency Warehouse Facilities. The Company also had $100.0 million of total facility capacity under warehouse lines of credit with a certain national bank with no outstanding balance under its Interim Warehouse Facility; and
	·	the non-guarantor subsidiaries would have had approximately 35% of our consolidated total assets and approximately 21%, or $568 million, of our consolidated total liabilities, to which the notes are structurally subordinated.
	·	See “Description of Other Indebtedness” for more information.

 

Covenants

The notes will be issued under an indenture with U.S. Bank Trust Company, National Association, as trustee. The covenants contained in the indenture governing the notes will, among other things, limit our ability and the ability of our subsidiaries (other than certain excluded subsidiaries) to:

 

·

incur more debt;

 

·

pay dividends and make distributions or repurchase shares;

 

·

make investments;

 

·

create liens;

 

·

enter into restrictions on the ability of our subsidiaries to make distributions, loans or advances to us;

 

·

sell assets;

 

·

engage in certain types of transactions with affiliates;

 

·

engage in certain sale and leaseback transactions; and

 

 

·

merge or consolidate with other companies or sell substantially all of our assets.

 

	In addition, the Issuer’s excluded subsidiaries will be restricted from engaging in certain transactions with affiliates and from repurchasing the equity interests of the Issuer.
	These covenants are subject to a number of important exceptions and qualifications. In addition, if and for so long as the notes have an investment grade rating from both Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. (“S&P”) and Moody’s Investors Service, Inc. (“Moody’s”) and no default under the indenture has occurred and is continuing, certain covenants will be suspended. For more details, see “Description of Notes.”
Transfer restrictions	The notes are not registered under the Securities Act. Therefore, the notes are subject to restrictions on transferability and resale. We do not intend to issue registered notes in exchange for the notes to be privately placed in this offering, and the absence of registration rights may adversely impact the transferability of the notes. For more information, see “Transfer Restrictions” and “Risk Factors—Risks Relating to Our Notes and Indebtedness—Holders of the notes will not be entitled to registration rights, and we do not currently intend to register the notes under applicable securities laws. There are restrictions on your ability to transfer or resell the notes.”
Absence of public market for the notes	We do not intend to apply for a listing of the notes on any securities exchange or an automated dealer quotation system. The initial purchaser has advised the Issuer that they currently intend to make a market in the notes. However, they are not obligated to do so, and any market making with respect to the notes may be discontinued without notice. Accordingly, there can be no assurance as to the existence or liquidity of any market for the notes.
Use of proceeds	We expect to use the net proceeds of this offering, together with the proceeds from our Term Loan Facility (as defined herein), to (i) repay the outstanding principal amount of term loans under our Existing Credit Agreement, together with accrued and unpaid interest thereon, (ii) to pay fees and expenses in connection with this offering and the amendment to our Existing Credit Agreement and (iii) for general corporate purposes. See “Use of Proceeds” and “Recent Developments” for more information.

 

  

v3.25.0.1

Cover	Mar. 14, 2025
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Mar. 14, 2025
Entity File Number	001-35000
Entity Registrant Name	Walker & Dunlop, Inc.
Entity Central Index Key	0001497770
Entity Tax Identification Number	80-0629925
Entity Incorporation, State or Country Code	MD
Entity Address, Address Line One	7272 Wisconsin Avenue
Entity Address, Address Line Two	Suite 1300
Entity Address, City or Town	Bethesda
Entity Address, State or Province	MD
Entity Address, Postal Zip Code	20814
City Area Code	301
Local Phone Number	215-5500
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Title of 12(b) Security	Common Stock, $0.01 Par Value Per Share
Trading Symbol	WD
Security Exchange Name	NYSE
Entity Emerging Growth Company	false

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