Exhibit 10.1
LOAN PURCHASE AND SALE AGREEMENT (COMMERCIAL LOAN)
Dated and Effective as of June 5, 2026,
By and Between NEXBANK CAPITAL, INC.
as the Seller, and
NEXPOINT RESIDENTIAL TRUST OPERATING PARTNERSHIP, L.P.
as the Purchaser.
Dated and Effective as of June 5, 2026,
By and Between NEXBANK CAPITAL, INC.
as the Seller, and
as the Purchaser.
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This LOAN PURCHASE AND SALE AGREEMENT (the “Agreement”), is entered into and effective on and as of June 5, 2026 (the “Effective Date”), by and between NEXBANK CAPITAL INC., a Texas corporation (the “Seller”) and NexPoint Residential Trust Operating Partnership, L.P., a Delaware limited partnership (the “Purchaser”).
WHEREAS, the Seller is the sole owner, record holder, and administrative agent of the Loan identified in the Loan Schedule appended as Schedule A to the Purchase Confirmation.
WHEREAS, the Seller desires to sell to the Purchaser, and the Purchaser desires to purchase from the Seller, all right, title, and interest of the Seller in, to, and under the Loan (including the related Collateral Documents) subject to the terms and provisions set forth herein.
NOW THEREFORE, in consideration of the mutual premises and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Seller and the Purchaser (each, a “Party” and collectively, the “Parties”) hereby agree as follows:
“Accrued Interest”: With respect to the Loan, all unpaid interest that accrued in connection with the Loan from the date of the last paid installment through but not including the Closing Date.
“Affiliate”: With respect to any specified Person, any other Person that directly or indirectly Controls, is Controlled by, or is under common Control with the specified Person. For purposes hereof, the term “Control” and each variant thereof shall mean the direct or indirect possession by any Person of the power to direct or cause the direction of the management or policies of any other Person, whether by contract, the ownership of voting securities, or otherwise.
“Assignment, Assumption, and Recognition Agreement”: The written instrument, in the form appended as Exhibit 2 hereto, that is duly executed by both Parties and the Borrower, and to which the Underlying Loan Agreement, the Pledge Agreement, and the Security Agreement are appended thereto.
“Applicable Law”: With respect to any Person or thing, any common law, constitution, decree, demand, injunction, judgment, order, ordinance, regulation, requirement, rule, statute, treaty, or writ issued by any Governmental Authority to which such Person or thing is subject.
“Borrower”: The Person identified as the “Borrower” under the Loan Documents. “Breach Notice”: As defined in Section 7(a).
“Business Day”: Any day other than (a) a Saturday or a Sunday, or (b) a day on which (i) branches of the Federal Reserve System are permitted or required to be closed, or (ii) banks located in the State of Texas are permitted or required to be closed. If the deadline for any Party to remit
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any payment or to perform any action pursuant hereto occurs on a day that is not a Business Day, then such deadline shall be deemed extended until the next succeeding Business Day.
“Claimant”: As defined in Section 7(e).
“Closing Date”: June 5, 2026, or any other date that is mutually agreed upon by both Parties in writing. For purposes hereof, the Closing Date shall conclusively be deemed to be the “Closing Date” specified in the Purchase Confirmation.
“Collateral”: All personal property and other assets pledged, assigned, or otherwise encumbered as collateral security for the Loan pursuant to the Collateral Documents, including (a) the equity interests pledged pursuant to the Pledge Agreement, and (b) the DST Sales Proceeds and DST Sales Proceeds Account pledged pursuant to the Security Agreement, together with all proceeds thereof.
“Collateral Documents”: With respect to the Loan, all security agreements, pledge agreements, deposit account control agreements, guaranties, and other documents, instruments, and agreements executed and delivered by any Obligor in connection with the Loan to create, perfect, or maintain any lien or security interest in the Collateral, including the Pledge Agreement and the Security Agreement.
“Cut-Off Date”: The date that is the Closing Date.
“Delinquency”: With respect to the Loan, the failure by the Obligor to remit any Monthly Payment on or before the due date of the next succeeding Monthly Payment, exclusive of days of grace; provided, however, the term “Delinquency” shall not include any such failure that is attributable to borrower confusion, a servicing transfer error, or any loss mitigation activity.
“Diligence Deadline”: 12:00 p.m. Central Time on the date that is two (2) Business Days before the Closing Date.
“Disclaimed Matters” As defined in Section 4(f).
“Disclosure Schedule”: The written schedule appended as Schedule B to the Purchase Confirmation.
“DST Sales Proceeds Account”: The deposit account described on Schedule 1 to the Security Agreement, maintained at NexBank, Account Number 1639640, pledged as Collateral pursuant to the Security Agreement.
“Expiration Date”: The date that is three hundred sixty (360) days after the Closing Date. “Force Majeure Event”: As defined in Section 9(e).
“Governmental Authority”: Each (a) administrative, executive, judicial, or legislative instrumentality of any commonwealth, district, municipality, nation, state, territory, or other political subdivision thereof, and (b) governmental, non-governmental, or quasi-governmental authority empowered to regulate or supervise the activities of any Person with respect to the Loan.
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“Loan”: The Non-Rejected Loan (including the related Collateral Documents) identified in the Loan Schedule appended as Schedule A to the Purchase Confirmation; provided, however, the term “Loan” shall not include the Repurchased Loan from and after the Repurchase Date.
“Loan Assets”: As defined in Section 3(a).
“Loan Document”: With respect to the Loan, each of the following documents and instruments: (a) the Note; (b) the Underlying Loan Agreement; and (c) each Collateral Document.
“Loan File”: With respect to the Loan, the compilation of all Loan Documents in the Seller's possession, custody, or control.
“Loan Proceeds”: With respect to the Loan, all scheduled and unscheduled payments of interest, principal, fees, or other proceeds due and payable to the lender on or after the Closing Date in connection with the Loan, except to the extent of (i) any such interest that is attributable to the period of time before the Closing Date, and (ii) any such principal, fees, or other proceeds that are attributable to the period of time before the Cut-Off Date.
“Loan Schedule”: The written schedule appended as Schedule A to the Purchase Confirmation. The Loan Schedule shall include all of the following information as of the Cut-Off Date with respect to the Loan: (a) the Seller’s loan number; (b) name of each Obligor; (c) a brief description of the Collateral; (d) origination date; (e) maturity date; (f) interest rate; (g) index rate (if applicable); (h) rate margin (if applicable); (i) reset date (if applicable); (j) original Principal Balance; (k) current Principal Balance; (l) reserve balance (if any); (m) default interest rate; (n) scheduled payment amount and frequency; (o) current paid-to-date; and (p) the Purchase Price Percentage.
“Material Breach”: As defined in Section 7(a).
“Monthly Payment”: With respect to the Loan, the scheduled payment of principal, interest, and other amounts (including fees) required to be paid by the Borrower each month in connection with the Loan.
“Non-Rejected Loan”: As defined in Section 2(c).
“Note”: With respect to the Loan, the promissory note or other written instrument executed by or on behalf of the Borrower and evidencing its promise to pay the indebtedness owed in connection with the Loan.
“Noticed Breach”: As defined in Section 7(a).
“Obligor”: With respect to the Loan, each Person who is a borrower (including the Borrower), co-borrower, guarantor, pledgor, or other obligor of the indebtedness evidenced by the Note.
“Pledge Agreement”: The Pledge Agreement, dated as of January 14, 2026, executed by The Dugaboy Investment Trust, as pledgor, in favor of the Seller, as administrative agent for the
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benefit of the lenders, granting a security interest in the Pledged Equity (as defined therein) as Collateral for the Loan, together with all amendments, restatements, and supplements thereto.
“Person”: Any (a) natural person, (b) company, corporation, joint venture, partnership, syndicate, trust, or other type of juridical entity or non-juridical association through which any activity is conducted, or (c) Governmental Authority.
“Principal Balance”: With respect to the Loan, the outstanding principal balance of the Loan as of the date of determination, after giving effect to all scheduled payments and unscheduled prepayments of principal received by or on behalf of the holder of the Loan on or before such date.
“Purchase Confirmation”: The written instrument, in the form appended as Exhibit 1 hereto, that is duly executed by both Parties and to which the Loan Schedule is appended as Schedule A thereto.
“Purchase Consideration”: The sum of (a) the Purchase Price for the Loan, plus (b) the Accrued Interest for the Loan.
“Purchase Price”: With respect to the Loan, the product of (a) the Purchase Price Percentage, multiplied by (b) the Principal Balance of the Loan as of the Cut-Off Date.
“Purchase Price Percentage”: One hundred and 00/100 percent (100.00%).
“Purchaser”: NexPoint Residential Trust Operating Partnership, L.P., including its successors and permitted assigns.
“Representative”: With respect to any specified Person, any other Person that is an accountant, administrator, agent, attorney, banker, broker, contractor, director, employee, manager, member, officer, partner, shareholder, trustee, or other designee of the specified Person. For purposes hereof, no Party, its Affiliates, or its or their respective Representatives shall be deemed a Representative of the other Party, its Affiliates, or its or their respective Representatives.
“Repurchase Date”: With respect to the Loan, the date on which the Seller remits full payment of the Repurchase Price for the Loan in accordance with Section 7(b).
“Repurchase Price”: With respect to any Loan, the sum of (a) the product of the Purchase Price Percentage, multiplied by the Principal Balance of such Loan as of the Repurchase Date, plus (b) all (if any) Accrued Interest paid by the Purchaser to the Seller in connection with such Loan on the Closing Date, less all payments and prepayments of interest received by or on behalf of the Purchaser in connection with such Loan on or after the Closing Date; provided, however, the Purchaser shall not be entitled to recover any servicing advances made, or any servicing costs or expenses incurred, by or on behalf of the Purchaser in connection with the servicing of such Loan on or after the date on which the Purchaser discovers a breach of representation or warranty with respect to such Loan, except to the extent such advances, costs, and expenses were made or incurred with the Seller’s prior written consent.
“Repurchased Loan”: As defined in Section 7(b).
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“Respondent”: As defined in Section 7(e).
“Security Agreement”: The Security Agreement, dated as of January 14, 2026, executed by NexPoint Waterford Holdco, LLC, as debtor, in favor of the Seller, as administrative agent for the benefit of the lenders, granting a security interest in the DST Sales Proceeds and DST Sales Proceeds Account as Collateral for the Loan, together with all amendments, restatements, and supplements thereto.
“Security Instrument”: With respect to the Loan, each deed of trust, financing statement, mortgage, pledge agreement (including the Pledge Agreement), security agreement (including the Security Agreement), security deed, vendor’s deed, assignment of leases and rents, chattel mortgage, or other written instrument executed by or on behalf of the Obligor and evidencing its grant of a lien or security interest upon the Collateral described therein as security for the payment and performance of the Loan.
“Seller”: NexBank Capital, Inc., including its successors and permitted assigns.
“Seller Advance”: With respect to any Non-Rejected Loan, all corporate, escrow, and other servicing advances made by or on behalf of the Seller in connection with the servicing of such Non-Rejected Loan before the Closing Date, including (a) for the payment of common charges, ground rents, insurance premiums, leasehold payment, municipal assessments, property taxes, sewer rents, water charges, or other amounts which may become a lien upon the Collateral, or (b) in connection with (i) the inspection, management, marketing, maintenance, preservation, protection, restoration, or sale of the Collateral, or (ii) the investigation, prosecution, defense, or appeal of any legal proceeding or administrative action relating to such Loan, the Collateral, or the Obligor.
“Seller’s Knowledge”: “Knowledge,” as that term is defined in Section 1-202(b) of the New York Uniform Commercial Code, which is deemed received by the Seller pursuant to Section 1-202(f) thereof.
“Seller’s Servicer”: NexBank, in its capacity as subservicer for the Seller, or any other Person subsequently designated by the Seller in its sole discretion.
“Standard Qualifications”: As defined in Section 4(a).
“UCC”: The Uniform Commercial Code as in effect from time to time in the applicable jurisdiction.
“Underlying Loan Agreement”: The Credit Agreement, dated as of January 14, 2026, by and among NexPoint Advisors, L.P. and NexPoint Waterford Holdco, LLC, as Borrowers, the lenders party thereto, and the Seller, as administrative agent, as amended, restated, supplemented, or otherwise modified from time to time.
“Unsold Loan”: As defined in Section 3(b).
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principle, or Applicable Law which may recommend or require a presumption against or in favor of any Party. The preamble, each recital, and each attachment, exhibit, and schedule hereto are made a part hereof and incorporated herein. The heading of each provision herein is used for convenience of reference and shall not affect the construction or interpretation hereof. The use of any word in the plural form shall be construed and interpreted to include the singular form as well, and vice versa. The use of any word in the present tense shall be construed and interpreted to include the future tense as well, and vice versa. The use of any word in the masculine gender shall be construed and interpreted to include the feminine gender as well, and vice versa. The word “any” shall be construed and interpreted to mean “any or all,” and the word “each” shall be construed and interpreted to mean “each and every.” The words “day” and “days” shall be construed and interpreted to refer to calendar days, including weekends and holidays, except when used as part of the defined term “Business Day.” The words “hereby,” “herein,” “hereof,” “hereto,” “hereunder,” and words of similar import shall be construed and interpreted to refer to this Agreement in its entirety. The word “including” and each variant thereof shall be construed and interpreted to mean “including without limitation” in the unrestricted sense. The word “may” shall be construed and interpreted to confer a permissive right rather than impose a mandatory obligation, and the words “shall” and “will” shall be construed and interpreted to impose a contractual covenant rather than express a mere intention. The word “or” shall be construed and interpreted to mean “and/or” in the non-exclusive sense. Each reference to any specified agreement (including this Agreement), document, or instrument shall be construed and interpreted to include each addendum, attachment, annex, exhibit, rider, schedule, and supplement thereto, and each amendment, extension, modification, novation, and restatement thereof. Each reference to any specified Applicable Law shall be construed and interpreted to include each legislative amendment and replacement thereof, each administrative regulation and rule promulgated thereunder, and each executive order and judicial decision relating thereto. Each reference to any specified Person (including each Party) shall be construed and interpreted to include each successor and permitted assign thereof.
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and statutory representations and warranties, other than the limited representations and warranties expressly set forth in Section 5 and Section 6, and (iii) no Representative of the Seller has made, or has been authorized to make, any representations or warranties to the Purchaser or any Representative thereof.
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Section 3(b)(i) with respect to the Loan; and (B) the Seller’s receipt of the Purchase Consideration for the Loan in accordance with Section 2(e).
(A) an original Assignment, Assumption, and Recognition Agreement with respect to the Loan, duly executed by or on behalf of the Seller, assigning all of the Seller's right, title, and interest in, to, and under the Loan and the related Collateral Documents to the Purchaser without recourse, representation, or warranty except as expressly set forth herein; and (B) such other instruments of transfer and assignment as may be reasonably necessary to evidence the transfer of the Loan to the Purchaser, including, as applicable, assignments, allonges, endorsements, deposit account control
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agreements, collateral assignments, servicing transfer documents, register updates, and administrative agent acknowledgements. If the Loan is not purchased and sold on the Closing Date (in which case, the Loan shall be an “Unsold Loan”), the Purchaser shall, promptly thereafter, return to the Seller all Loan Documents and the Loan File delivered by the Seller with respect to the Loan.
The Purchaser hereby represents and warrants to the Seller, on and as of the Effective Date and the Closing Date, as follows:
U.S.C. § 1813(c)(2), then this Agreement (i) complies with all federal, state, and local banking laws, rules, regulations, and requirements to which the Purchaser is subject, (ii) is being executed by the Purchaser contemporaneously with the agreement reached among the Parties, and (iii) has been approved by a corporate resolution that was (A) duly adopted by and reflected in the minutes of the Purchaser’s board of directors, and (B) duly certified by the secretary, assistant secretary, treasurer, or assistant treasurer of the Purchaser’s board of directors;
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required exemptions therefrom, that are necessary for the Purchaser to conduct its business and to own and administer commercial loans of the same type as the Loan, (iv) does not believe, nor does it have any reason to believe, that it cannot perform its respective covenants, obligations, and undertakings hereunder and in accordance herewith, and (v) has not engaged any agent, broker, or salesperson that is entitled to receive payment of a commission or other compensation from the Seller in connection with the transactions contemplated hereby;
(iii) was provided an opportunity to perform and has performed, or elected not to perform, all independent examinations, inquiries, and investigations of the Loan, including the Private Diligence Materials and Public Diligence Materials (collectively, the “Diligence Materials”), to the extent the Purchaser deems necessary or appropriate to make an informed business decision to purchase the Loan, and (iv) is relying solely upon its own independent examinations, inquiries, and investigations in deciding to purchase the Loan, and is not relying upon any oral or written representations, warranties, or statements made by or on behalf of the Seller or its Representatives, other than the representations and warranties expressly set forth in Section 5 and Section 6;
(ii) the Loan may be evidenced by a Note that is lost or missing and cannot be obtained, but for which the Loan File includes a lost note affidavit from the lender that was in possession of the Note at the time it was lost and such lost note affidavit is sufficient, in form and substance, to
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permit enforcement of the Loan under applicable law, (iii) intentionally deleted, (iv) the value of the Collateral may be adversely affected by market conditions, the financial condition of the Borrower, or other factors beyond the Seller's control, (v) the Underlying Loan Agreement and Collateral Documents may contain provisions that limit or condition the Purchaser's ability to enforce its rights against the Borrower or the Collateral, and (vi) except as set forth in Sections 5 and 6 of this Agreement, the Seller has not made, will not make, and hereby disclaims all express, implied, and statutory representations and warranties relating to the matters set forth in Section 4(e), and/or clauses (i) through (v) of this Section 4(f), and/or the Disclosure Schedule (collectively, the “Disclaimed Matters”). The Purchaser acknowledges that the Loan may be affected by one or more of the Disclaimed Matters, confirms that the Purchaser has elected to purchase the Loan notwithstanding the fact that it may be affected by one or more of the Disclaimed Matters, and agrees that the Purchaser is knowingly assuming all risks and liabilities associated with the Disclaimed Matters. Notwithstanding anything herein to the contrary, nothing in this Section shall limit or qualify any liability arising from intentional fraud or willful concealment of material information.
The Seller hereby represents and warrants to the Purchaser, on and as of the Effective Date and the Closing Date, as follows:
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incur any indebtedness that would be beyond the ability of the Seller to pay upon maturity, or to hinder, delay, or defraud any Person to which the Seller is indebted; and
Except with respect to the Disclaimed Matters, the Seller hereby represents and warrants to the Purchaser, on and as of the Closing Date, as follows with respect to the Loan:
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Standard Qualifications. All parties to the Note and the Underlying Loan Agreement had legal capacity to enter into the Loan and to execute and deliver the Note and the Underlying Loan Agreement.
(i) liens and security interests that constitute "Permitted Liens" as defined in the Underlying Loan Agreement, and (ii) any restrictions on transfer or assignment arising under applicable securities laws or the organizational documents of any pledged entity (clauses (i) and (ii), collectively, the "Permitted Exceptions"). To the Seller's Knowledge, the security interest granted to the Seller in the Collateral has been duly perfected under the UCC or other applicable law, as appropriate, and constitutes a first-priority security interest in the Collateral, subject only to the Permitted Exceptions.
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received written notice of any circumstances which, to the Seller’s Knowledge, are continuing on the Closing Date and constitute (or reasonably could be expected to constitute) an Event of Default under the Underlying Loan Agreement. The Seller has not agreed to waive any Event of Default or event of acceleration under the Underlying Loan Agreement or any Collateral Document. The Loan is not cross-collateralized or cross-defaulted with any other loan.
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Seller’s receipt of a timely provided Breach Notice in accordance with this Section 7(a), the Seller shall use commercially reasonable efforts in good faith to cure the Noticed Breach described therein within thirty (30) days after the date on which the Seller received the Breach Notice (the “Cure Period”); provided, however, if the Seller is diligently proceeding to cure the Noticed Breach but is unable to do so before the expiration of the Cure Period as a result of a Force Majeure Event beyond the Seller’s commercially reasonable control, then the Seller may request and shall be granted a thirty (30) day extension of the Cure Period by providing written notice thereof to the Purchaser by email. If the Seller fails to cure the Noticed Breach in all material respects before the expiration of the Cure Period, then the Seller shall repurchase the Loan and remit payment of the Repurchase Price subject to the terms and provisions set forth in Section 7(b).
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Promptly upon the satisfaction (or written waiver by the Seller) of all of the foregoing conditions precedent, the Seller shall repurchase such Loan (each, a “Repurchased Loan”) and remit payment of the Repurchase Price for such Repurchased Loan by wire transfer of immediately available funds to the depository account designated by the Purchaser in writing not less than two
(2) Business Days before the Repurchase Date. Immediately upon the Seller’s remittance of the Repurchase Price for any Repurchased Loan in accordance with this Section 7(b), and without any further action by or notice to either Party, (i) the Purchaser shall and hereby does assign, convey, and transfer to the Seller, on and as of the Repurchase Date and subject to the terms and provisions set forth in this paragraph, all then existing and thereafter acquired right, title, and interest of the Purchaser in, to, and under (A) such Repurchased Loan, including the related Loan Files and all documents and instruments therein, (B) all scheduled and unscheduled payments of principal received on or after the Repurchase Date in connection with such Repurchased Loan, (C) all scheduled and unscheduled payments of interest received on or after the Repurchase Date in connection with such Repurchased Loan, (D) all other Loan Proceeds received on or after the Repurchase Date in connection with such Repurchased Loan, and (E) all rights of the Purchaser under the Collateral Documents related to such Repurchased Loan from and after the Repurchase Date (collectively, the “Repurchased Loan Assets”); and (ii) the Seller shall and hereby does accept, assume, and receive from the Purchaser, on and as of the Repurchase Date and subject to the terms and provisions set forth in this paragraph, (A) all then existing and thereafter acquired right, title, and interest of the Purchaser in, to, and under the Repurchased Loan Assets, and (B) all then existing and thereafter arising duties, liabilities, obligations, and responsibilities arising under, incidental to, resulting from, or relating to the Repurchased Loan Assets from and after the Repurchase Date. Thereafter, all Loan Documents, Loan Proceeds, and other Repurchased Loan Assets that remain in or come into the Purchaser’s possession, custody, or control with respect to such Repurchased Loan shall be held by the Purchaser in trust for the Seller and shall be delivered to the Seller or its designee not later than five (5) Business Days after the earlier of the Purchaser’s receipt thereof or the Seller’s demand therefor.
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(iii) the mere fact of a breach by Seller of any representation or warranty shall not, standing alone be deemed to constitute nor be admissible as evidence of bad faith, lack of good faith, fraudulent inducement, fraudulent misrepresentation, or fraudulent misconduct of any kind. Notwithstanding anything to the contrary in this Agreement, the limitations on survival, cure, repurchase, indemnification, damages, and exclusive remedies set forth in this Section 7 shall not
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apply to claims arising from or relating to intentional fraud, willful misconduct, or gross negligence. Each Party expressly, irrevocably, and unconditionally releases and waives, to the fullest extent permissible by Applicable Law, all rights such Party may have to claim or recover from the other Party (i) any consequential, exemplary, incidental, indirect, multiple, punitive, special, or speculative damages except to the extent expressly permitted herein, irrespective of whether such damages were foreseeable by or known to any Party, or are otherwise available to any Party at law or in equity, or (ii) any amounts attributable to or associated with business interruptions, data losses, lost goodwill, lost opportunities, lost profits, operating losses, reputational harm, or “general and administrative expenses,” as that term is defined for purposes of Generally Accepted Accounting Principles, incurred or sustained by the Claimant.
(iii) specify the total dollar amount and/or other non-monetary relief that the Claimant would be willing to accept from the Respondent to resolve the Noticed Dispute. Not later than five (5) Business Days after any Party’s delivery or receipt of a Dispute Notice in accordance with this Section 7(e), such Party shall designate a senior officer with authority to agree upon a mutually acceptable resolution of the Noticed Dispute described therein (each, a “Designated Officer”), and shall provide written notice of such designation to the other Party in accordance with Section
9(a). Promptly thereafter, both Designated Officers shall use commercially reasonable efforts in good faith to initially and, as necessary, periodically confer (by online meeting or telephonic conference) and endeavor to negotiate a mutually agreeable resolution of such Noticed Dispute. If a Noticed Dispute is not resolved to the Claimant’s reasonable satisfaction within thirty (30) days after the date of the Designated Officers’ initial conference (the “Resolution Period”), then the Claimant may commence a Related Action with respect to such Noticed Dispute, but shall do so only in accordance with the following paragraph.
SUBJECT TO THE LIMITATIONS SET FORTH IN SECTION 7(D) AND THIS SECTION 7(E), EACH RELATED ACTION SHALL BE COMMENCED AND DETERMINED EXCLUSIVELY IN ANY STATE OR FEDERAL COURT LOCATED IN THE CITY AND COUNTY OF DALLAS IN THE STATE OF TEXAS. EACH PARTY (I) COVENANTS NOT TO COMMENCE ANY RELATED ACTION EXCEPT IN SUCH COURTS, (II) SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE PERSONAL JURISDICTION OF SUCH COURTS FOR PURPOSES OF EACH RELATED ACTION, AND (III) WAIVES, TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, (A) ALL OBJECTIONS THAT SUCH COURTS ARE AN INCONVENIENT FORUM OR IMPROPER VENUE FOR ANY RELATED ACTION, AND (B) ALL RIGHTS TO A TRIAL BY JURY IN CONNECTION
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WITH EACH RELATED ACTION. EACH PARTY ACKNOWLEDGES AND AGREES THAT ITS RESPECTIVE FAILURE TO COMPLY WITH THE DISPUTE RESOLUTION PROCEDURES SET FORTH IN THIS SECTION 7(E) WITH RESPECT TO A PARTICULAR DISPUTE SHALL CONSTITUTE AN AFFIRMATIVE DEFENSE TO, AND A BASIS FOR DISMISSAL WITHOUT PREJUDICE OF, ANY JUDICIAL PROCEEDING OR OTHER LEGAL ACTION THAT IS BASED, IN WHOLE OR IN PART, UPON ANY TRANSACTIONS OR OCCURRENCES THAT GAVE RISE TO SUCH DISPUTE.
SECTION 8. POST-CLOSING ADMINISTRATION AND SERVICING.
The Seller shall terminate its administration and servicing of the Loan on and as of the Closing Date, and shall transfer the administration and servicing of the Loan to the Purchaser or its designee on and as of the Closing Date. The Purchaser shall assume the administration and servicing of the Loan from the Seller on and as of the Closing Date, and shall perform the administration and servicing of the Loan in accordance with all Applicable Laws and the terms of the Loan Documents at all times from and after the Closing Date.
Not later than five (5) Business Days after the Closing Date, the Seller shall or shall cause the Seller’s Servicer to remit to the Purchaser all funds held by or on behalf of the Seller or the Seller’s Servicer in any escrow, reserve, or impound account in connection with the Loan (collectively, the “Escrow Funds”) as of the Closing Date. For a period of ninety (90) days following the Closing Date, the Seller shall, or shall cause the Seller’s Servicer to, deliver to the Purchaser or its designee, not later than five (5) Business Days after the Seller’s or the Seller’s Servicer’s actual receipt and identification thereof, all documents, instruments, and Loan Proceeds that remain in or come into the Seller’s or the Seller’s Servicer’s actual possession with respect to the Loan during such ninety (90) day period. After the expiration of such ninety (90) day period, the Seller shall, or shall cause the Seller’s Servicer to, return to the sender thereof all documents, instruments, and Loan Proceeds that come into the Seller’s or the Seller’s Servicer’s actual possession with respect to the Loan. The Seller and the Seller’s Servicer shall not have any obligation to deliver any documents, information, or Loan Proceeds to the Purchaser after the Closing Date except as expressly set forth in this Section 8.
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If to the Seller: NexBank Capital, Inc.
2515 McKinney Ave., Suite 1100
Dallas, TX 75201 Attention: Mike Mendelow
With a copy to: mike.mendelow@nexbank.com
jason@goldsmithpllc.com
If to the Purchaser: NexPoint Residential Trust Operating Partnership, L.P.
300 Crescent Court, Suite 700
Dallas, Texas 75201 Attention: Robert Harris
With a copy to: RHarris@Nexpoint.com
dsauter@nexpoint.com isaac.brown@wickphillips.com
Any notice provided in strict accordance with this Section 9(a) shall conclusively be deemed to have been received on the earlier of (i) the date the notice is actually received, as evidenced by the delivery confirmation (if sent by overnight courier) or the return receipt (if sent by certified mail), and (ii) the date that is two (2) Business Days after the date of dispatch (if sent by overnight courier) or five (5) Business Days after the date of dispatch (if sent by certified mail), irrespective of whether the carrier actually delivers the notice or the recipient actually accepts delivery thereof. Any notice not provided in strict accordance with this Section 9(a) shall conclusively be deemed to have not been received by the receiving Party unless and until such notice is actually received, as evidenced by the delivery confirmation (if sent by overnight courier) or the return receipt (if sent by certified mail).
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taxes, stamp taxes, transfer taxes, and similar assessments, duties, levies, taxes, and other amounts payable to any Governmental Authority with respect to the assignment of the Loan or the filing of any UCC financing statement amendment or other document or instrument contemplated hereby.
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unenforceable for any reason irrespective of the foregoing waiver, then such invalidity or unenforceability shall not affect the validity or enforceability of any other part of the same or any other provision.
electronic means, (iii) waives all objections that this Agreement is invalid or unenforceable solely
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[Signature Page]
on the basis that it was executed or delivered by electronic means, and (iv) agrees that all electronic signatures hereon or logically associated herewith shall have the same legal effect and validity as a manually executed signature, and that all electronic, photographic, and other reproductions hereof shall be binding, enforceable, and admissible as evidence to the same extent as an original irrespective of whether an original exists or is in the possession of the introducing Party.
Loan Purchase and Sale Agreement (NCI-NXRT 2605-S)
[Signature Page]
IN WITNESS WHEREOF, the Seller and the Purchaser each has caused this Loan Purchase and Sale Agreement to be duly executed and delivered on and as of the Effective Date first written above.
NEXBANK CAPITAL, INC., as the Seller
By: |
/s/ Rhett Miller |
Name: |
Rhett Miller |
Title: |
EVP |
PARTNERSHIP, L.P., as the Purchaser
By: |
/s/ Matt McGraner |
Name: |
Matt McGraner |
Title: |
Executive Vice President and Chief Investment Officer |
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[FORM OF ]PURCHASE CONFIRMATION
This PURCHASE CONFIRMATION (this “Confirmation”) is executed and delivered on June 5, 2026 (the “Closing Date”), by and between NEXBANK CAPITAL, INC., a Texas corporation (the “Seller”) and NexPoint Residential Trust Operating Partnership, L.P., a Delaware limited partnership (the “Purchaser”), pursuant to that certain Loan Purchase and Sale Agreement (the “Agreement”), dated June 5, 2026, by and between the Seller and the Purchaser (each, a “Party” and collectively, the “Parties”). Each capitalized term used but not defined herein shall have the meaning ascribed thereto in the Agreement.
NOW THEREFORE, in consideration of the mutual premises and agreements set forth in this Confirmation and the Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
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the Uniform Commercial Code (collectively, the “Electronic Signature Laws”), expressly, irrevocably, and unconditionally (a) consents to each Party’s execution and delivery of this Confirmation by electronic means, (b) intends for the Electronic Signature Laws to validate each Party’s execution and delivery of this Confirmation by electronic means, (c) waives all objections that this Confirmation is invalid or unenforceable solely on the basis that it was executed or delivered by electronic means, and (d) agrees that all electronic signatures appearing on or associated with this Confirmation shall have the same legal effect and validity as a manually executed signature, and that all electronic, photographic, and other reproductions of this Confirmation shall be binding, enforceable, and admissible as evidence to the same extent as an original irrespective of whether an original exists or is in the possession of the introducing Party.
IN WITNESS WHEREOF, the Seller and the Purchaser each has caused this Purchase Confirmation to be duly executed and delivered on and as of the Closing Date first written above.
as the Seller
as the Purchaser
By: |
/s/ Matt McGraner |
Name: |
Matt McGraner |
Title: |
Executive Vice President and Chief Investment Officer |
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[Attached Electronically]
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[None]
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[FORM OF ]ASSIGNMENT, ASSUMPTION, AND RECOGNITION AGREEMENT
This ASSIGNMENT, ASSUMPTION, AND RECOGNITION AGREEMENT (this
“Assignment”), dated June 5, 2026 (the “Assignment Date”), is entered into by and among NEXBANK CAPITAL, INC., a Texas corporation (together with its successors and assigns, collectively the “Assignor”), and NexPoint Residential Trust Operating Partnership, L.P., a Delaware limited partnership (together with its successors and assigns, collectively the “Assignee”), and NEXPOINT ADVISORS, L.P., a Delaware limited partnership (“NPA”), and NEXPOINT WATERFORD HOLDCO, LLC, a Delaware limited liability company (“NWH”, and together with NPA, each, a “Borrower”, and collectively, the “Borrowers”).
WHEREAS, the Assignor and the Assignee entered into that certain Loan Purchase and Sale Agreement, dated as of June 5, 2026 (as amended, modified, or supplemented, the “Agreement”), pursuant to which the Assignor, as Seller, sold to the Assignee, as Purchaser, on and as of the Closing Date, the Loan identified on Schedule I hereto on a whole-loan basis subject to the terms and provisions set forth in the Agreement. Each capitalized term used but not defined in this Assignment shall have the meaning ascribed thereto in the Agreement.
WHEREAS, the Assignee has agreed to purchase from the Assignor, on and as of the Assignment Date, the Loan and the related Loan Documents and Loan Assets on a whole-loan basis subject to the terms and provisions set forth in this Assignment; and
WHEREAS, the Borrower has agreed to acknowledge and recognize the Assignee as the successor lender and administrative agent under the Loan Documents and to perform its obligations under the Loan Documents in favor of the Assignee from and after the Assignment Date.
NOW, THEREFORE, in consideration of the premises and mutual agreements set forth in this Assignment and the Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Assignor, the Assignee, and the Borrower (each, a “Party” and collectively, the “Parties”) agree as follows:
On and as of the Assignment Date, the Assignor hereby assigns, conveys, grants, releases, sells, and transfers unto the Assignee — without recourse, representation, or warranty of any kind by the Assignor, except to the extent expressly set forth in this Assignment — all right, title, and interest of the Assignor in, to, and under the Loan, the Loan Documents, and the related Loan Assets (collectively, the “Assigned Assets”). The Assignee hereby accepts the foregoing assignment of the Assigned Assets and hereby assumes all duties, liabilities, obligations, and responsibilities of the lender under the Loan Documents accruing from and after the Assignment Date. The Borrower hereby (a) acknowledges and consents to the foregoing assignment and assumption, (b) consents to and recognizes the Assignee as the successor lender and administrative agent under the Loan Documents and as the holder of all right, title, and interest of the lender thereunder from and after the Assignment Date, and (c) agrees to perform all of its duties,
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liabilities, obligations, and undertakings under the Loan Documents in favor of the Assignee, as the successor lender and administrative agent, from and after the Assignment Date.
Each Party acknowledges and agrees that, notwithstanding the foregoing assignment and assumption or any other provision in the Agreement or this Assignment, the Assignor shall and hereby does retain an independent right—which right is in addition to, and not to the exclusion of, the right of the Assignee—to assert against the Borrower all claims, rights, and remedies available to the lender under the Loan Documents or at law or in equity and directly or indirectly arising out of, relating to, or resulting from, in whole or in part, any facts or circumstances that occurred before or are continuing on the Assignment Date; provided that all such Claims, rights, and remedies shall be determined without giving effect to any amendments or modifications to the Loan Documents that may be made on or after the Assignment Date.
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The Assignor hereby represents and warrants to the Assignee that, on and as of the Assignment Date:
Each Party hereby represents and warrants to the other Parties that, on and as of the Assignment Date:
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receive a commission or compensation from any other Party in connection with any transaction contemplated hereby.
If to the Assignor:
NexBank Capital, Inc.
2515 McKinney Ave., Suite 1100
Dallas, TX 75201 Attention: Mike Mendelow
Email: mike.mendelow@nexbank.com
With a copy to:
jason@goldsmithpllc.com If to the Assignee:
NexPoint Residential Trust Operating Partnership, L.P. 300 Crescent Court, Suite 700
Dallas, Texas 75201 Attention: Robert Harris
Email: RHarris@Nexpoint.com
With a copy to:
Isaac.brown@wickphillips.com If to a Borrower:
To the applicable notice address set forth in the Underlying Loan Agreement.
Any notice provided in strict accordance with this Section 6(a) shall conclusively be deemed to have been received upon the earlier of: (i) actual receipt; or (ii) three (3) Business Days after the date of dispatch (if sent by certified mail) or one (1) Business Day after dispatch (if sent by overnight courier), in each case irrespective of whether the carrier is able to deliver such notice or whether such Party elects to accept delivery thereof.
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Laws”), expressly, irrevocably, and unconditionally (i) consents to each Party’s execution and
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delivery of this Assignment by electronic means, (ii) intends for the Electronic Signature Laws to validate each Party’s execution and delivery of this Assignment by electronic means, (iii) waives all objections that this Assignment is invalid or unenforceable solely on the basis that it was executed or delivered by electronic means, and (iv) agrees that all electronic signatures hereon or logically associated herewith shall have the same legal effect and validity as a manually executed signature, and that all electronic, photographic, and other reproductions hereof shall be binding, enforceable, and admissible as evidence to the same extent as an original irrespective of whether an original exists or is in the possession of the introducing Party.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Assignor, the Assignee, and the Borrower each has caused this Assignment, Assumption, and Recognition Agreement to be duly executed and delivered as of the Assignment Date first written above.
NEXBBANK CAPITAL, INC.., as the Assignor
By: Name: Title:
Assignee
By: Name: Title:
NEXPOINT ADVISORS, L.P., as a Borrower
By: Name: Title:
[ Signature Page to Assignment, Assumption and Recognition Agreement (NCI-NXRT 2605-S) ]
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SCHEDULE I TO ASSIGNMENT, ASSUMPTION, AND RECOGNITION AGREEMENT LOAN SCHEDULE
[ATTACHED]
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EXHIBIT A TO ASSIGNMENT, ASSUMPTION, AND RECOGNITION AGREEMENT AGREEMENT AND ANY RELATED AMENDMENTS
[ATTACHED]
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EXECUTION VERSION
CREDIT AGREEMENT
Dated as of January 14, 2026 between
NEXPOINT ADVISORS, L.P., and
NEXPOINT WATERFORD HOLDCO, LLC,
as Borrowers,
THE LENDERS PARTY HERETO,
and
NEXBANK CAPITAL, INC.,
as Administrative Agent, Sole Lead Arranger and Sole Bookrunner
TABLE OF CONTENTS
Page
Article I. Definitions and Accounting Terms 1
Article II. The Commitment and the Loan 18
Article III. Taxes 23
Article IV. Conditions Precedent to the Loan 29
Article V. Representations and Warranties of the Borrower 30
1
Article VI. Affirmative Covenants 34
Article VII. NEGATIVE COVENANTS 38
Article VIII. Events of Default and Remedies 42
2
Article IX. RESERVED 44
Article X. Agency 44
Article XI. Miscellaneous 49
3
EXHIBITS |
|
EXHIBIT A |
Form of Note |
EXHIBIT B |
Form of Compliance Certificate |
EXHIBIT C |
Reserved |
EXHIBIT D |
Form of Notice of Borrowing |
EXHIBIT E |
Forms of Tax Compliance Certificates |
EXHIBIT F |
Form of Lender Joinder Agreement |
EXHIBIT G |
Assignment and Assumption |
EXHIBIT H |
Reserved |
EXHIBIT I |
Form of Security Agreement |
SCHEDULES |
|
[Omitted.] |
|
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CREDIT AGREEMENT
This CREDIT AGREEMENT (this “Agreement”) is entered into as of January 14, 2026 (the “Effective Date”) by and among NEXPOINT ADVISORS, L.P., a Delaware limited partnership (“NPA”) and NEXPOINT WATERFORD HOLDCO, LLC, a Delaware limited liability company (“NWH”, and together with NPA, each, a “Borrower”, and collectively, the “Borrowers”), the Lenders party hereto, and NEXBANK CAPITAL, INC. (“NCI”), as administrative agent (in such capacity, the “Administrative Agent”).
RECITALS
WHEREAS, Borrowers, the Administrative Agent, and the Lenders desire to make a term loan to Borrowers as described in this Agreement; and
WHEREAS, the Lenders are willing to make a single advance term loan upon the terms and subject to the conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS.
“Account Bank” means any Person at which a Deposit Account of a Loan Party is maintained that enters into a Deposit Account Control Agreement in favor of the Administrative Agent.
“Accountants” has the meaning specified in Section 6.01(a).
“Acquisition” means the acquisition by Borrowers or any Subsidiary of or from any Person (whether pursuant to an acquisition of Equity Interests of such Person or of all or substantially all of the assets of such Person or of a distinct business unit of such Person or otherwise) of a business.
“Act” has the meaning specified in Section 11.18.
“Administrative Agent” has the meaning specified in the introductory paragraph hereto. “Administrative Agent Office” means the office or offices of Administrative Agent described as
such on Schedule 11.02, or such other office or offices as Administrative Agent may from time to time notify the Borrowers.
“Affiliate” means as to any Person, any other Person that directly or indirectly controls, or is controlled by, or is under common control with, that Person. For purposes of this definition (a) “control,” “controlled by,” and “under common control with” mean possession, directly or indirectly, of power to direct (or cause the direction of) management or policies of a Person, whether through ownership of Voting Interests or other ownership interests, by contract, or otherwise, and (b) the term “Affiliate” includes each of the following as “Affiliates” of the others: (i) each Guarantor, (ii) each Borrower, (iii) any partner, shareholder or member of any Borrower, and (iv) any officer, director or manager of any Borrower.
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“Agreement” has the meaning specified in the introductory paragraph hereto. “Applicable Anti-Corruption Laws” has the meaning specified in Section 5.21.
“Applicable Percentage” means, with respect to any Lender, the percentage of the total Commitment represented by such Lender’s Commitment. If the aggregate Commitment has terminated or expired, the Applicable Percentages shall be determined based upon the Commitment most recently in effect, giving effect to any assignments.
“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 11.07), and accepted by Administrative Agent, substantially in the form of Exhibit G or any other form approved by the Administrative Agent.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time that is described in the EU Bail-In Legislation Schedule.
“Beneficial Ownership Certification” means a certification in form and substance reasonably satisfactory to the Administrative Agent regarding beneficial ownership as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230. “BHC Act Affiliate” is defined in Section 11.21(b).
“Borrower” and “Borrowers” have the meanings specified in the introductory paragraph hereto.
“Borrowers’ Equity” means, as of any date of determination, the positive amount shown on the “Partners’ capital/(deficit)” line of the unaudited balance sheet of any Borrower most recently provided in accordance with the terms of this Agreement.
“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the State of Texas.
“Capital Expenditure” means, with respect to any Person, any expenditure by such Person for
(a) an asset which will be used in a year or years subsequent to the year in which the expenditure is made and which asset is properly classified in relevant financial statements of such Person as equipment, real property, a fixed asset or a similar type of capitalized asset in accordance with GAAP or (b) an asset relating to or acquired in connection with an acquired business, and any and all acquisition costs related to clause (a) or (b) above.
“Capital Lease Obligations” means, with respect to any Person, 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 or finance leases (but, for avoidance of doubt, not operating leases) on a balance sheet
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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, collectively, (a) marketable direct obligations issued or unconditionally guaranteed by the United States or any agency thereof maturing within 120 days from the date of acquisition thereof, (b) commercial paper maturing no more than 120 days from the date of creation thereof and currently having the highest rating obtainable from either S&P or Moody’s, (c) certificates of deposit maturing no more than 120 days from the date of creation thereof issued by commercial banks incorporated under the laws of the United States, each having combined capital, surplus and undivided profits of not less than $500,000,000 and having a rating of “A” or better by a nationally recognized rating agency; provided that, the aggregate amount invested in such certificates of deposit shall not at any time exceed $5,000,000 for any one such certificate of deposit and $10,000,000 for any one such bank, or
(d) time deposits maturing no more than 30 days from the date of creation thereof with commercial banks or savings banks or savings and loan associations each having membership either in the FDIC or the deposits of which are insured by the FDIC and in amounts not exceeding the maximum amounts of insurance thereunder.
“CFC” has the meaning specified in the definition of Foreign Subsidiary.
“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 in this Agreement 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 U.S. or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
“Change of Control” means (a) (i) The Dugaboy Investment Trust ceases to be the sole beneficial owner of the equity interests in NPA or (ii) The Dugaboy Investment Trust ceases to be the sole beneficial owner of the equity interests in NWH, (b) during any period of 12 consecutive months, (i) NexPoint Advisors GP, LLC, a Delaware limited partnership, ceases to be the general partner of NPA or (ii) The Dugaboy Investment Trust ceases to be the sole member of NWH, or (c) any change in the ownership or Control of the outstanding Equity Interests of any Loan Party occurs such that there is a change of more than 51% in the direct ownership of any Loan Party.
“Closing Date” means the first date all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 11.01.
“Closing Date Acquisition” means the transactions being consummated pursuant to the Closing Date Acquisition Agreement.
“Closing Date Acquisition Agreement” means, collectively, (i) that certain Purchase Agreement dated as of November 4, 2025, by and among WATERFORD PLACE OWNER LLC, a Delaware limited liability company, WATERFORD PLACE TIC II OWNER LLC, a Delaware limited liability company, WATERFORD PLACE TIC III OWNER LLC, a Delaware limited liability company and WATERFORD PLACE TIC IV OWNER LLC, a Delaware limited liability company, each having an mailing address at
32 Cross Street, Suite 204, Lakewood, New Jersey 08701 (collectively as seller), and NexPoint
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Acquisitions, LLC, a Delaware limited liability company, with an address 300 Crescent Court, Suite 700, Dallas, Texas 75201 (as purchaser) (together with all annexes, schedules and exhibits thereto).
“Closing Date Acquisition Documents” means the Closing Date Acquisition Agreement and all other agreements entered into between the parties to the Closing Date Acquisition Agreement in connection with the Closing Date Acquisition and all schedules, exhibits and annexes to each of the foregoing.
“Code” means the Internal Revenue Code of 1986, as amended. “Collateral” has the meaning specified in the Security Agreement.
“Collateral Documents” means, collectively, the Security Agreement, the Pledge Agreement, each Deposit Account Control Agreement, each of the other security agreements, pledge agreements or other similar agreements delivered to Administrative Agent pursuant to the Loan Documents, and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of Administrative Agent.
“Commitment” means, with respect to each Lender, the commitment of such Lender to make the Loan to the account of the Borrowers hereunder on the Closing Date in an aggregate principal amount not to exceed $28,000,000. For the avoidance of doubt, the aggregate Commitment with respect to the Loan on the Closing Date shall be $28,000,000.
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.). “Compliance Certificate” means a certificate substantially in the form of Exhibit B.
“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.
“Covered Entity” is defined in Section 11.21(b). “Covered Party” is defined in Section 11.21(a).
“Debt” means (without duplication), for any Person, (a) all obligations required by GAAP to be classified upon such Person’s balance sheet as liabilities, (b) liabilities to the extent secured (or for which and to the extent the holder of the Debt has an existing right, contingent or otherwise, to be so secured) by any Lien existing on property owned or acquired by that Person, (c) capital leases and other obligations that have been (or under GAAP should be) capitalized for financial reporting purposes, (d) all obligations for borrowed money (whether as a direct obligor on a promissory note, a reimbursement obligor on a letter of credit, a guarantor, or otherwise), (e) all guaranties, endorsements, letters of credit, and other contingent liabilities with respect to Debt or obligations of others, to the extent that such would be classified as a liability on the balance sheet under GAAP and (f) the net obligation of such Person under any hedge agreement. For purposes hereof, the Debt of any Person shall exclude the Debt of any Subsidiary of Borrowers, but shall include the Debt 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, unless such Debt is expressly made non-recourse to such Person.
“Debt to Equity Ratio” means, with respect to a Measurement Period, the ratio of (a) Debt during such period to (b) Borrowers’ Equity.
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“Debtor Relief Laws” means Title 11 of the United States Code and all other applicable liquidation, conservatorship, bankruptcy, fraudulent transfer, fraudulent conveyance, assignment for the benefit of creditors, moratorium, rearrangement, receivership, examinership, insolvency, reorganization, suspension of payments, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
“Default Right” is defined in Section 11.21(b).
“Defaulting Lender” means, subject to Section 2.16(b), any Lender that (a) has failed to (i) fund all or any portion of its Loan within two Business Days of the date such Loan was required to be funded hereunder unless such Lender notifies the Administrative Agent and Borrowers in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within two Business Days of the date when due, (b) has notified the Borrowers and the Administrative Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund the 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 Business Days after written request by the Administrative Agent or the Borrowers, 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 Borrowers), 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 Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or (iii) become the subject of a Bail-in Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under 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 2.16(b)) upon delivery of written notice of such determination to the Borrowers and each Lender.
“Deposit Account” means any deposit and any substitute or successor deposit account.
“Deposit Account Control Agreement” means a deposit account control agreement, in form and substance reasonably satisfactory to the Administrative Agent, among the Administrative Agent, Account Bank and the Loan Party maintaining such Deposit Account, effective to grant “control” (as defined under the UCC) over such Deposit Account to the Administrative Agent.
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“Designated Jurisdiction” means any country, region or territory to the extent that such country, region or territory itself is the subject of any Sanction.
“Disposition” or “Dispose” means the sale, lease, transfer, conveyance, assignment, license, or other disposition (including any sale and leaseback transaction) of any asset by any Person, including any sale, assignment, transfer, conveyance, or other disposition, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.
“Dollar” and “$” mean lawful money of the United States.
“Domestic Subsidiary” means any Subsidiary organized under the laws of the United States of America, any State thereof or the District of Columbia.
“DST” means NexPoint Waterford DST, a Delaware statutory trust. “DST Sales” means the sale of Class 1 beneficial interests in the DST. “DST Sales Proceeds” has the meaning specified in Section 6.12(a).
“DST Sales Proceeds Account” has the meaning specified in Section 6.12(a). “DST Sales Report” means email reports of the progress of the DST Sales.
“EBITDA” means, for any period, Net Income of Borrowers for such period, plus, without duplication and to the extent deducted in calculating Net Income for such period, the sum of (a) Interest Expense for such period, (b) Taxes paid in cash during such period, (c) the amount of depreciation and amortization expense deducted in determining Net Income, (d) any extraordinary or non-recurring items reducing Net Income for such period, subject to Lender’s reasonable approval, and (e) any non-cash items reducing Net Income for such period, minus (i) any extraordinary or non-recurring items increasing Net Income for such period, subject to Lender’s reasonable approval and (ii) any non-cash items increasing Net Income for such period.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country that is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country that is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country that 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 Date” has the meaning specified in the introductory paragraph hereto.
“Employee Plan” means a pension, profit-sharing, or stock bonus plan intended to qualify under Section 401(a) of the Code, maintained or contributed to by Borrowers or any ERISA Affiliate, including any multiemployer plan within the meaning of Section 4001(a)(3) of ERISA.
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“Entitlement Orders” means “Entitlement Orders” as defined in the UCC.
“Environmental Law” means any Law that relates to the pollution or protection of the environment, the release of any materials into the environment, including those related to Hazardous Substances, air emissions and discharges to waste or public systems, or to health and safety.
“Equity Interests” means, with respect to any Person, any and all shares, interests, participations, or other equivalents, including membership interests (however designated, whether voting or nonvoting), or equity of such Person, including, if such Person is a partnership, partnership interests (whether general or limited) and 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 property of, such partnership, in each case, whether outstanding on the date hereof or issued after the date hereof.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with Borrowers within the meaning of Section 414(b) or (c) of the Code.
“Erroneous Payment” has the meaning assigned to it in Section 11.22(a).
“Erroneous Payment Deficiency Assignment” has the meaning assigned to it in Section 11.22(b). “Erroneous Payment Impacted Class” has the meaning assigned to it in Section 11.22(b). “Erroneous Payment Return Deficiency” has the meaning assigned to it in Section 11.22(b).
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“Event of Default” has the meaning specified in Section 8.01.
“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), branch profits and franchise Taxes, in each case, (i) imposed by the United States of America (or any political subdivision thereof) or by the jurisdiction (or any political subdivision thereof) under the laws of which the Recipient is organized or conducts business (other than business arising from or relating to any transaction under any Loan Document) or in which its principal office, or its lending office, is located, or (ii) that are Other Connection Taxes; (b) in the case of a Lender,
U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which
(i) such Lender acquires such interest in the Loan or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 3.01, amounts with respect to such Taxes were payable either to such Lender’s assignor before such Lender became a party hereto or to such Lender before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.01(h) and (d) any withholding Taxes imposed under FATCA.
“Exit Fee” means a fee equal to one half of one percent (0.50%) of repaid principal at the time of such payment.
“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
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with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, any applicable intergovernmental agreement entered into between the United States and any other Governmental Authority in connection with the implementation of the foregoing, and any fiscal or regulatory legislation, rules or practices adopted pursuant to any such intergovernmental agreement, or any treaty or convention among Governmental Authorities and implementing the foregoing.
“FDIC” means the Federal Deposit Insurance Corporation.
“Financials” means the financial statement and other information required in Section 6.01(b) for the fiscal quarter ended September 30, 2025, in form and substance satisfactory to the Administrative Agent.
“Foreign Lender” means a Lender that is not a U.S. Person.
“Foreign Subsidiary” means any Subsidiary that (a) is not a Domestic Subsidiary, (b) is a Domestic Subsidiary substantially all the assets of which are equity or debt of one or more controlled foreign corporations as defined for purposes of Section 957 of the Code (“CFC”), or (c) is a Domestic Subsidiary held by a CFC.
“Free Cash Flow” means, for any Person for any period, (a) EBITDA for such period, plus (b) any decrease in Net Working Capital (measured as the excess, if any, of Net Working Capital at the beginning of such period over Net Working Capital at the end of such period), minus (c) the sum of (i) any increase in Net Working Capital (measured as the excess, if any, of Net Working Capital at the end of such period over Net Working Capital at the beginning of such period), plus (ii) cash Interest Expense for such period, plus
(iii) Capital Expenditures for such period, plus (iv) scheduled principal payments on Funded Debt made during such period, plus (v) cash distributions made during such period, plus (vi) Taxes paid or accrued and Tax Distributions made during such period, and plus (vii) voluntary prepayments under the Loan made during such period.
“Funded Debt” means, when determined, all capital leases and other obligations of the Loan Parties that have been (or under GAAP should be) capitalized for financial reporting purposes and all obligations for borrowed money of the Loan Parties (whether as a direct obligor on a promissory note, a reimbursement obligor on a letter of credit, a guarantor, or otherwise).
“GAAP” means generally accepted accounting principles in the U.S. set out in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and the Financial Accounting Standards Board as in effect from time to time.
“Governmental Authority” means any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative tribunal, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of, or pertaining to, government having authority over the Loan Parties or the Collateral.
“Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Debt or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Debt or other obligation of
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the payment or performance of such Debt or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Debt or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Debt or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Debt or other obligation of any other Person, whether or not such Debt or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Debt to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.
“Guarantor” means each Person executing a Guaranty of the Obligations in favor of Administrative Agent.
“Guaranty” means a guaranty agreement in Proper Form.
“Hazardous Substance” means (a) any explosive or radioactive substance or waste, all hazardous or toxic substances, waste, or other pollutants, and any other substance the presence of which requires removal, remediation or investigation under any applicable Environmental Law, (b) any substance that is defined or classified as a hazardous waste, hazardous material, pollutant, contaminant, or toxic or hazardous substance under any applicable Environmental Law, or (c) petroleum, petroleum distillates, petroleum products, oil, polychlorinated biphenyls, radon gas, infectious medical wastes, and asbestos or asbestos-containing materials.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by the Borrowers under any Loan Documents and (b) to the extent not otherwise described in (a), Other Taxes.
“Indemnitees” has the meaning specified in Section 11.05(a).
“Interest Coverage Ratio” means, with respect to a Measurement Period, the ratio of (i) EBITDA to (ii) Interest Expense.
“Interest Expense” means, for any period, total interest expense of Borrowers (including that portion attributable to Capital Lease Obligations), premium payments, debt discount, fees, charges and related expenses with respect to all outstanding Debt of Borrowers.
“Interest Payment Date” means the first calendar day of each month (or next succeeding Business Day thereafter).
“InvestCo Sub” means NexPoint Waterford Investment Co, LLC, a Delaware limited liability company.
“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of capital stock or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor Guarantees Debt of such other Person, or (c) the purchase or other acquisition (in one
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transaction or a series of transactions) of assets of another Person that constitute a business unit. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.
“Investment Grade Rating” means (a) a rating equal to or higher than BBB- (or the equivalent) by Egan-Jones Ratings Company or if applicable, any successor thereto or (b) an investment grade rating by any other nationally recognized statistical rating organization selected by the Administrative Agent.
“IRS” means the United States Internal Revenue Service.
“Laws” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
“Lender Joinder Agreement” means an agreement substantially in the form of Exhibit F, pursuant to which a new Lender joins the Loan Documents as contemplated by Section 11.07.
“Lenders” means the Persons listed on Schedule 2.01 and any other Person that shall have become party hereto pursuant to an Assignment and Assumption, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.
“Lending Office” means a Lender’s address, and, as appropriate, account, as set out in its administrative questionnaire, or such other address or account as Lender may from time to time notify Borrowers and Administrative Agent.
“Lien” means any lien (statutory or other), mortgage, security interest, financing statement, collateral assignment, pledge, assignment, charge, hypothecation, deposit arrangement, or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement, and any financing lease having substantially the same economic effect as any of the foregoing), or encumbrance of any kind, and any other right of or arrangement with any creditor (whether based on common law, constitutional provision, statute or contract) to have its claim satisfied out of any property or assets, or their proceeds, before the claims of the general creditors of the owner of the property or assets.
“Litigation” means any action by or before any Governmental Authority, arbitrator, or arbitration
panel.
“Loan” means the term loan made by Lenders to the Borrowers on the Closing Date pursuant to
Article II.
“Loan Documents” means this Agreement, the Note, the Collateral Documents, all Guaranties, all Compliance Certificates, any Lender Joinder Agreement and any other agreement, document, and instrument in favor of Administrative Agent or the Lenders delivered in connection with, pursuant to, or under, this Agreement.
“Loan Parties” means, collectively, the Borrowers and any Guarantor that becomes a party hereto.
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“Material Adverse Effect” means any circumstance or event that, individually or collectively with other circumstances or events, could reasonably be expected to result in (a) impairment of the ability of the Loan Parties, taken as a whole, to perform any of their respective payment or other material obligations under any Loan Document, (b) impairment of the ability of Administrative Agent or any Lender to enforce any Loan Party’s material obligations, or Lender’s material rights, under any Loan Document, (c) a material adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to which it is a party, and (d) a material and adverse change in, or a material adverse effect upon, the operations, business, properties, liabilities (actual or contingent), or financial condition of the Loan Parties taken as a whole.
“Material Contract” means, for any Person, any agreement to which that Person is a party by which that Person is bound, or to which any assets of that Person may be subject, and that is not cancelable by that Person upon thirty (30) or fewer days’ notice without liability for further payment other than nominal penalty, and that requires that Person to pay more than $250,000 in the aggregate during the term of such agreement.
“Maturity Date” means the earlier of (a) the Stated Maturity Date or such later date as may be established pursuant to Section 2.17, (b) the date on which Administrative Agent declares all amounts under the Loan to be immediately due and payable pursuant to Section 8.02, and (c) if the Loan evidenced by this Agreement and the Notes do not maintain an Investment Grade Rating, the date designated by the Administrative Agent by written notice to Borrowers.
“Maximum Rate” has the meaning specified in Section 11.10. “Measurement Date” has the meaning specified in Section 6.18.
“Measurement Period” means (a) (i) for the test of the Total Deleveraging Ratio as of March 31, 2026, June 30, 2026 and September 30, 2026, the year-to-date results ended on such Measurement Date, annualized, and (ii) for the test of the Total Deleveraging Ratio as of December 31, 2026 and each Measurement Date thereafter, the twelve (12) consecutive calendar months ended on such Measurement Date; and (b) for the tests of the Debt to Equity Ratio and Interest Coverage Ratio as of March 31, 2026, June 30, 2026 and September 30, 2026, the year-to-date results ended on such Measurement Date, and as of December 31, 2026 and each Measurement Date thereafter, the period of twelve (12) consecutive calendar months ended on such Measurement Date.
“Moody’s” means Moody’s Investors Service, Inc.
“Net Income” means, for any period, the net income of Borrowers determined in accordance with
GAAP.
“Net Working Capital” means, for any period, the difference of current assets as of such period
minus current liabilities as of such period determined in accordance with GAAP.
“Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all affected Lenders in accordance with the terms of this Agreement 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.
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“Note” means a promissory note made by the Borrowers in favor of requesting Lender evidencing the Loan made by such Lender, substantially in the form of Exhibit A.
“Notice of Borrowing” means a notice of the Loan pursuant to Section 2.02, substantially in the form of Exhibit D, appropriately completed and signed by a Responsible Officer of the Borrowers.
“Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, the Borrowers arising under any Loan Document or otherwise with respect to the Loan, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against the Borrowers or any Guarantor of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.
“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.
“Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, limited partnership or designated activity company, the certificate of incorporation or the certificate or articles of formation or organization (as applicable) and operating agreement or constitution (as applicable); and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity, as each may be amended, supplemented, restated or otherwise modified or added to from time to time.
“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 or Loan Document).
“Other Taxes” means any and all present or future stamp, court, recording, filing, intangible, documentary or similar Taxes arising from any payment made hereunder or under any other Loan Document or from the execution, delivery or enforcement or registration of, or performance under, or from the receipt or perfection of a security interest under or otherwise with respect to this Agreement or any other Loan Document (other than any such Taxes that are imposed with respect to an assignment except for an assignment pursuant to a request by the Borrowers in accordance with Section 3.03).
“Outstanding Amount” means with respect to the Loan on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of the Loan, as the case may be, occurring on such date.
“Participant” has the meaning specified in Section 11.07(d). “Participant Register” has the meaning specified in Section 11.07(g).
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“Payment Date” means the first calendar day of each month (or next succeeding Business Day thereafter).
“Payment Recipient” has the meaning assigned to it in Section 11.22(a).
“Permitted Debt” means, without duplication, (a) the Obligations, (b) Debt arising from endorsing negotiable instruments for collection in the ordinary course of business, (c) purchase money Debt and capital lease obligations incurred in the ordinary course of business which, in any case individually do not exceed $50,000, (d) Debt among the Loan Parties and guaranties by any Loan Party of Debt otherwise permitted hereunder, (e) Debt existing on the Closing Date and disclosed to the Administrative Agent in writing, (f) indemnities arising under agreements entered into by any Loan Party in the ordinary course of business, (g) trade payables paid within ninety (90) days after they are incurred, Tax liabilities and other current liabilities incurred in the ordinary course of business, (h) any Debt approved in writing by Administrative Agent after the Closing Date and which is in Proper Form, (i) any Debt secured by any securities or interest that NPA holds in NexPoint Diversified Real Estate Trust or its successors, subsidiaries, or assigns, provided that such Debt shall not be secured by any portion of the Collateral,
(j) Debt incurred in respect of appeal bonds, surety bonds and similar obligations, in each case provided in the ordinary course of business, and with respect to appeal bonds in an aggregate amount not to exceed
$250,000 at any time, (k) Debt incurred in connection with DST Sales and (l) Debt which represents an extension, refinancing, or renewal of any of the Debt described in clauses (c) and (f) hereof; provided that, the principal amount of such Debt is not increased, except by an amount equal to a reasonable premium or other reasonable amount paid and fees and expenses incurred, in connection with such refinancing and any existing unutilized commitments thereunder, and the terms of any such extension, refinancing, or renewal taken as a whole are not materially less favorable to the obligor thereunder than the original terms of such Debt.
“Permitted Investments” means (a) Reserved, (b) marketable obligations backed by the full faith and credit of the U.S. (and investments in mutual funds investing primarily in those obligations),
(c) certificates of deposit or banker’s acceptances that are fully insured by the Federal Deposit Insurance Corporation or are issued by commercial banks having combined capital, surplus, and undivided profits of not less than $250,000,000 (as shown on its most recently published statement of condition), (d) cash or Cash Equivalents, (e) eurodollar time deposits or investments managed by Administrative Agent,
(f) commercial paper and similar obligations rated “P-2” or better by Moody’s or “A-2” or better by S&P,
(g) investments in securities purchased by any Loan Party under repurchase obligations pursuant to which arrangements are made with selling financial institutions (being a financial institution having unimpaired capital and surplus of not less than $500,000,000 and with a rating of “A-1” by S&P or “P-1” by Moody’s) for such financial institutions to repurchase such securities within 30 days from the date of purchase by such Loan Party, and other similar short term investments made in connection with the Loan Party’s cash management practices, (h) non-cash proceeds from dispositions permitted under Section 7.05,
(i) investments by any Loan Party in its wholly-owned Subsidiaries which are Guarantors, including, but not limited to the creation of new wholly-owned Subsidiaries that become Guarantors upon creation,
(j) advances to any of Borrowers’ Subsidiaries that are Guarantors, (k) investments in the form of capital contributions and the Acquisition of Equity Interests made by any Loan Party in any other Loan Party that has been previously approved in writing by Administrative Agent, (l) investments received in settlement of amounts due to a Loan Party effected in the ordinary course of business or owing to a Loan Party as a result of insolvency proceedings involving an account debtor or upon the foreclosure or enforcement of any Lien in favor of a Loan Party, (m) Equity Interests or other securities acquired in connection with the satisfaction or enforcement of Debt or claims due or owing to a Loan Party (in bankruptcy of customers or suppliers or otherwise outside the ordinary course of business) or as security for any such Debt or claims, and (n) any other investments approved in writing by Administrative Agent after the Closing Date.
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“Permitted Liens” means (a) Liens securing the Obligation, (b) Liens which secure purchase money Debt and capital lease obligations permitted under clause (c) of the definition of Permitted Debt, (c) Liens for Taxes; provided that, (i) no amounts are due and payable and no Lien has been filed or agreed to, or (ii) the validity or amount thereof is being contested in good faith by lawful proceedings diligently conducted, and reserve or other provision required by GAAP has been made, (d) judgments and attachments not otherwise prohibited by Section 8.01(g) or disclosed in Schedule 5.07, (e) rights of offset or statutory banker’s Lien arising in the ordinary course of business in favor of commercial banks; provided that, any such Lien shall only extend to deposits and property in possession of such commercial bank and its Affiliates, (f) good-faith pledges or deposits made in the ordinary course of business to secure (i) statutory obligations, (ii) occupational accident policies, or (iii) surety or appeal bonds, or indemnity, performance or other similar bonds, and in the case of appeal bonds, in an aggregate amount not to exceed $250,000 at any time or in any amount if in conjunction with any litigation disclosed in Schedule 5.07 or related to or arising from such litigation, (g) Liens (other than for Taxes) imposed by operation of law; provided that,
(i) such Liens relate to obligations not overdue or the validity or amount of such Lien is being contested in good faith by lawful proceedings diligently conducted, (ii) reserve or other provision required by GAAP has been made, and (iii) within sixty (60) days after the entry thereof, levy and execution thereon have been (and continue to be) stayed or payment thereof is covered in full by insurance (subject to the customary deductible) and (h) any Liens approved in writing by Administrative Agent after the Closing Date.
“Person” means any individual, partnership, limited partnership, corporation, limited liability company, Irish collective asset-management vehicle (including any sub-fund thereof), business trust, joint stock company, trust, unincorporated association, joint venture, syndicate, Governmental Authority or other entity or organization of whatever nature.
“Pledge Agreement” means that certain pledge agreement dated as of the Closing Date among The Dugaboy Investment Trust, as pledgor, and Administrative Agent, on behalf of the Lenders, granting Administrative Agent, for the benefit of the Lenders, a Lien on, and security interest in the Collateral as defined therein.
“Proper Form” means in form and substance reasonably satisfactory to Administrative Agent and its legal counsel.
“QFC” is defined in Section 11.21(b).
“QFC Credit Support” is defined in Section 11.21.
“Recipient” means (a) the Administrative Agent or (b) any Lender, as applicable. “Register” has the meaning specified in Section 11.07(c).
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.
“Removal Effective Date” means the meaning specified in Section 10.06(b).
“Representatives” mean representatives, agents, officers, directors, employees, consultants, contractors, and attorneys.
“Required Lenders” means, for any period during the term of this Agreement where there are:
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more than 50.0% of the Outstanding Amount at such time. The Outstanding Amount held by any Defaulting Lender shall be disregarded in determining Required Lenders at any time.
“Resignation Effective Date” means the meaning specified in Section 10.06(a).
“Responsible Officer” means, with respect to the Borrowers and any Guarantor, the chief executive officer, president, executive vice president or a financial officer of such Borrower or Guarantor, and any additional authorized person who is hereafter designated in writing by the Borrower or a Guarantor to Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer of the Borrowers or any Guarantor, as applicable, shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of the Borrowers or such Guarantor, as applicable, and such Responsible Officer shall be conclusively presumed to have acted on behalf of the Borrowers or such Guarantor, as applicable.
“Restricted Payment” means any dividend or other distribution (whether in cash, securities, or other property) with respect to any capital stock or other Equity Interest of any Loan Party or any Subsidiary of such Loan Party, or any payment (whether in cash, securities, or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such capital stock or other Equity Interests, or on account of any return of capital to a Loan Party’s or such Subsidiary’s shareholders, partners, or members (or the equivalent thereof). For the avoidance of doubt, any distribution made by a Loan Party pursuant to the distribution language in its Organization Documents shall constitute a “Restricted Payment” for purposes of this Agreement.
“S&P” means S&P Global Ratings, a subsidiary of S&P Global, Inc., and any successor thereto. “Sanction(s)” means any international economic sanction administered or enforced by the United
States Government (including without limitation, OFAC), the United Nations Security Council, the European Union, His Majesty’s Treasury or other relevant sanctions authority.
“Security Agreement” means the security agreement in the form attached hereto as Exhibit I among NWH, as debtor, and Administrative Agent, on behalf of the Lenders, granting Administrative Agent, for the benefit of the Lenders, a Lien on, and security interest in the Collateral as defined therein.
“Senior Loan” means the loan from Walker and Dunlop, LLC, a Delaware limited liability company, the predecessor-in-interest to Federal Home Loan Mortgage Corporation, and the DST.
“Solvent” or “Solvency” means, as to any Person as of 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 saleable value 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 a business or a transaction, and is not about to engage in a 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 any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
“Stated Maturity Date” means January 14, 2028.
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“Subsidiary” of a Person means corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the Voting Interests are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references in this Agreement or the Loan Documents to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or to Subsidiaries of Borrowers.
“Supported QFC” is defined in Section 11.21.
“Tax Distribution” means any cash distribution made by any Loan Party or Subsidiary that is treated for U.S. federal income tax purposes as a tax transparent entity or a CFC in an amount necessary for the payment of the federal, state and local income tax obligations on account of the attribution of each such Person’s income to its direct or indirect shareholders or members, as the case may be, by reason of such Person being a tax transparent entity or a CFC for federal income tax purposes, in each case determined at the highest individual marginal rate for such taxes.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Total Debt” means as at any date of determination, the aggregate stated balance sheet amount of all Debt related to direct obligations of Borrowers determined in accordance with GAAP.
“Total Deleveraging Ratio” means, with respect to a Measurement Period, (a) Free Cash Flow, to
“Treasury Rate” means the 5-year U.S. Treasury Rate as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by Administrative Agent from time to time), as determined by Administrative Agent.
“UCC” means the Uniform Commercial Code, as adopted in Texas and as amended from time to
time.
“United States” and “U.S.” mean the United States of America.
“U.S. Person” means any Person that is a “United States person” as defined in Section 7701(a)(30)
of the Code.
“U.S. Special Resolution Regimes” is defined in Section 11.21.
“U.S. Tax Compliance Certificate” has the meaning specified in Section 3.01(h)(ii).
“Voting Interests” of any Person means the capital stock (or other Equity Interest) of such Person having ordinary voting power for the election of directors (or other governing body).
“Write-Down and Conversion Powers” means, 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.
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of doubt, Administrative Agent, Lenders, and the Loan Parties hereby acknowledge and agree that
(A) until any change described in this Section is effected, financial ratios and calculations shall continue to be computed in accordance with the accounting standards prior to such change therein, and (B) the applicable Loan Parties shall provide to Administrative Agent 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.
ARTICLE II.
THE COMMITMENT AND THE LOAN
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Agent may assume that such Lender has made such share available on such date in accordance with Section 2.03(a) and may, in reliance upon such assumption, make available to the Borrowers a corresponding amount. In such event, if a Lender has not in fact made its share of the Loan available to the Administrative Agent, then the applicable Lender and the Borrowers 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 Borrowers to but excluding the date of payment to the Administrative Agent, at the interest rate applicable to the Commitments. If the Borrowers 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 Borrowers the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the Loan to the Administrative Agent, then the amount so paid shall constitute such Lender’s portion of the Loan. Any payment by the Borrowers shall be without prejudice to any claim the Borrowers may have against a Lender that shall have failed to make such payment to the Administrative Agent.
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accrued and unpaid. Such interest shall accrue to the holders of the Notes issued to the Lenders on an equal and ratable basis.
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such payment, the Administrative Agent may assume that the Borrowers has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders, as the case may be, the amount due. In such event, if the Borrowers has not in fact made such payment, then each of the Lenders, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender, with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
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VI and Article VII of this Agreement. Such extension shall be evidenced by delivery of written confirmation of the same by Administrative Agent to Borrowers. For the avoidance of doubt, as of the Closing Date, the Borrowers have one extension available to them pursuant to this Section 2.17.
ARTICLE III. TAXES.
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Borrowers to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 11.07(g) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this Section 3.01(f).
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Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), whichever of the following is applicable:
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Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers and the Administrative Agent in writing of its legal inability to do so.
(i) Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 3.01 (including by the payment of additional amounts pursuant to this Section 3.01), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (i) (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 paragraph (i), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (i) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
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and the result of any of the foregoing shall be to increase the cost to any Lender of making or maintaining the Loan (or of maintaining its obligation to make the Loan) or to reduce the amount of any sum received or receivable by Administrative Agent hereunder (whether of principal, interest or any other amount) then, upon request of Administrative Agent, the Borrowers will pay to Administrative Agent such additional amount or amounts as will compensate Administrative Agent and Lender for such additional costs incurred or reduction suffered.
(a) or (b) of this Section 3.02 and delivered to the Borrowers shall be conclusive absent manifest error. The Borrowers shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.
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of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or Section 3.02, 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. Borrowers hereby agree to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
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 Borrowers to require such assignment and delegation cease to apply.
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ARTICLE IV.
CONDITIONS PRECEDENT TO THE LOAN.
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The Notice of Borrowing submitted by the Borrowers shall be deemed to be a representation and warranty by the Borrowers that the conditions specified in this Section 4.01 have been satisfied on and as of the date of the Loan.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF THE BORROWER.
The Borrowers represent and warrant to Administrative Agent and the Lenders on the date hereof and on the date of the Loan that:
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ARTICLE VI. AFFIRMATIVE COVENANTS.
So long as the Loan or other Obligations hereunder shall remain unpaid or unsatisfied (other than contingent obligations against which no claim has been asserted), the Borrowers shall, and shall (except in the case of the covenants set forth in Sections 6.01, 6.02, and 6.03) cause each other Loan Party to:
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tax returns required to be filed by each Borrower, together with evidence of payment of any and all taxes shown to be due and owing thereunder;
(iv) the incurrence of any material contingent Debt, (v) any Loan Party’s execution of a Material Contract (or any Loan Party’s agreement to execute a Material Contract), and (vi) a Default or Event of Default, specifying the nature thereof and what action each Loan Party has taken, is taking, or proposes to take;
(ii) ten (10) days prior written notice of any proposed relocation of any of the Collateral to a location other than those set out on Schedule 5.16;
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any Lender may request during the term of this Agreement to confirm or update the continued accuracy of the information provided in connection with the foregoing.
Each notice pursuant to this Section 6.03 shall be accompanied by a statement of a Responsible Officer of the Borrowers setting forth details of the occurrence referred to therein and stating what action the Borrowers have taken and propose to take with respect thereto. Each notice pursuant to Section 6.03(a)(vi) shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached.
(d) keep all of its assets that are useful in and necessary to its business in good working order and condition (ordinary wear and tear and damage by insured casualty excepted) and make all necessary repairs and replacements.
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5.12.
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reasonably necessary or desirable to subject such property to the Liens now or hereafter intended to be covered by any of the Collateral Documents.
(D) assure, convey, grant, assign, transfer, preserve, protect and confirm more effectively unto Administrative Agent the rights granted or now or hereafter intended to be granted to Administrative Agent under any Loan Document or under any other instrument executed in connection with any Loan Document to which any Loan Party or any of its Subsidiaries (except any Foreign Subsidiary) is or is to be a party, and cause each of its Subsidiaries (except any Foreign Subsidiary) to do so.
ARTICLE VII. NEGATIVE COVENANTS.
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So long as the Loan or other Obligation hereunder shall remain unpaid or unsatisfied (other than contingent obligations against which no claim has been asserted), the Borrowers shall not, nor shall they permit any other Loan Party (except as otherwise indicated) or any Subsidiary thereof to, directly or indirectly:
except:
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case of such merger or consolidation or, in the case of the conveyance or distribution of all of such assets, the non-surviving or selling entity, as the case may be, may be liquidated, wound up or dissolved; provided that, if any Borrower is a party to such Acquisition, merger or consolidation, a Borrower must be the purchasing or surviving entity, as applicable.
except:
No Loan Party may enter into or permit to exist any arrangement or agreement (other than this Agreement) that prohibits it from paying dividends or making other Restricted Payments. With the prior written consent of the Administrative Agent, which consent shall not be unreasonably withheld, in the event of the sale, assignment or maturation of any Collateral and a Loan Party wishes to make a Restricted Payment in connection therewith or in the event that a Loan Party wishes to sell, assign or dissolve the any Borrower, such Loan Party may submit a written request to the Administrative Agent describing the particular event and the consent requested, which the Administrative Agent shall respond to within 10 (ten) days of receipt of such request. The Loan Parties and Administrative Agent agree to use best efforts to modify the Collateral and terms of this Agreement and any Exhibits and Schedules attached hereto as necessary to accommodate any requests made by a Loan Party pursuant to this Section 7.06.
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Administrative Agent or any Lender at any time to enable Administrative Agent or such Lender to verify such Loan Party’s identity or to comply with any applicable Law, including Section 326 of the Act.
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES.
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exists under any agreement which permits any Person to cause any Debt which (individually or in the aggregate) exceeds $750,000 to become due and payable by any Loan Party before its stated maturity;
(ii) an order for relief is entered under Title 11 of the United States Code, (c) makes an assignment for the benefit of creditors, (d) fails (or admits in writing its inability) to pay its debts generally as they become due, or (e) a receiver, examiner or liquidator is appointed for any Loan Party or any of their respective assets;
provided, however, that upon the occurrence of an actual or deemed entry of an order for relief with respect to the Borrowers under the Bankruptcy Code of the United States, the unpaid principal amount of the Loan and all interest and other amounts as aforesaid shall automatically become due and payable, in each case without further act of Administrative Agent.
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At such time as an Event of Default is no longer continuing, the Administrative Agent shall promptly notify any custodian, account bank, or any other Person to whom the Administrative Agent has delivered a Notice of Exclusive Control (as defined in the applicable Document) or similar notice that such Event of Default no longer exists and canceling any such Notice of Exclusive Control or similar notice.
(i) first, to the extent of any fees, expenses that are due and payable or, without duplication, amounts that are due and payable by the Borrowers under indemnification claims, (ii) second (or first, if clause (i) does not apply), to pay all accrued and unpaid fees, expenses and indemnities of Administrative Agent in its capacity as such, (iii) third (or second, if clause (i) does not apply), to the payment of all other fees, expenses and indemnities for which Administrative Agent or any Lender is entitled to payment but have not yet been paid or reimbursed in accordance with the Loan Documents, (iv) fourth (or third, if clause
(i) does not apply), to the payment of the remaining Obligations; and (v) fifth (or fourth, if clause (i) does not apply), if any surplus, being delivered to the party lawfully entitled to such surplus (or portion of such surplus).
ARTICLE IX. RESERVED.
ARTICLE X. AGENCY.
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for each Lender pursuant to each of the Loan Documents. In such capacity, the Administrative Agent has the right to exercise all rights and remedies available under the Loan, the UCC and other applicable law. The Administrative Agent, as agent for itself as the Administrative Agent and for each Lender, shall be entitled at any such sale, to offset any of the Obligations against the purchase price payable by the Administrative Agent at such sale or to otherwise consent to a reduction of the Obligations as consideration to the applicable Loan Party in connection with such sale. The Administrative Agent shall have the authority to take such other actions (either directly or through one or more acquisition vehicles) as it may deem necessary or desirable to consummate a sale of the type described in the immediately preceding sentences. The Administrative Agent shall have the authority to accept non-cash consideration in connection with the sale or other disposition of the Collateral, whether the purchaser is the Administrative Agent, an entity formed by Administrative Agent as described above or any other Person. Notwithstanding anything to the contrary in this Agreement, NCI shall not sell, assign, transfer or otherwise dispose of its rights or obligations as Administrative Agent under this Agreement without the prior written consent of the Borrowers, such consent to be granted or withheld in their respective sole discretion.
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or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity.
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shall have the right, with the prior written consent of the Borrowers (so long as no Event of Default has occurred and is continuing, in which case, in consultation with the Borrowers), to 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 after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent may (but shall not be obligated to), on behalf of the Lenders, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that, in no event shall any such successor Administrative Agent be a Defaulting Lender. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under this Agreement.
(ii) release or subordinate any Lien granted to or held by Administrative Agent under any Collateral Document, (iii) release any Guarantor of all or any portion of the Obligations if all of the Equity Interests of such Guarantor is sold in a transaction permitted hereunder to the extent that after giving effect to such transaction such Loan Party would not be required to guarantee any Obligation pursuant to this Agreement and (iv) release any Lien granted to or held by Administrative Agent under any Collateral Document in connection with a credit bid or purchase authorized under this Section 10.09. Upon request by Administrative Agent at any time, Lenders will confirm Administrative Agent’s authority to release and/or subordinate particular types or items of Collateral pursuant to this Section 10.09. The Loan Parties and the Lenders hereby irrevocably authorize Administrative Agent, based upon the instruction of the Required Lenders, to (i) consent to, credit bid or purchase (either directly or indirectly through one or more entities) all or any portion of the Collateral at any sale thereof conducted under the provisions of the Bankruptcy Code, including Section 363 of the Bankruptcy Code, (ii) credit bid or purchase (either directly or indirectly through one or more entities) all or any portion of the Collateral at any sale or other disposition thereof conducted under the provisions of the UCC, including pursuant to Sections 9-610 or 9-620 of the UCC, or
(iii) credit bid or purchase (either directly or indirectly through one or more entities) all or any portion of the Collateral at any other sale or foreclosure conducted or consented to by Administrative Agent in accordance with applicable law in any judicial action or proceeding or by the exercise of any legal or equitable remedy. In connection with any such credit bid or purchase, (i) the Obligations owed to the Lenders shall be entitled to be, and shall be, credit bid on a ratable basis (with Obligations with respect to
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contingent or unliquidated claims being estimated for such purpose if the fixing or liquidation thereof would not impair or unduly delay the ability of Administrative Agent to credit bid or purchase at such sale or other disposition of the Collateral and, if such contingent or unliquidated claims cannot be estimated without impairing or unduly delaying the ability of Administrative Agent to credit bid at such sale or other disposition, then such claims shall be disregarded, not credit bid, and not entitled to any interest in the Collateral that is the subject of such credit bid or purchase) and the Lenders whose Obligations are credit bid shall be entitled to receive interests (ratably based upon the proportion of their Obligations credit bid in relation to the aggregate amount of Obligations so credit bid) in the Collateral that is the subject of such credit bid or purchase (or in the Equity Interests of the any entities that are used to consummate such credit bid or purchase), and (ii) Administrative Agent, based upon the instruction of the Required Lenders, may accept non-cash consideration, including debt and equity securities issued by any entities used to consummate such credit bid or purchase and in connection therewith Administrative Agent may reduce the Obligations owed to the Lenders (ratably based upon the proportion of their Obligations credit bid in relation to the aggregate amount of Obligations so credit bid) based upon the value of such non-cash consideration.
ARTICLE XI. MISCELLANEOUS.
(v) change any of the provisions of this Section 11.01 or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights under this Agreement or make any determination or grant any consent under this Agreement, without the written consent of each Lender, (vi) release all or substantially all the Guarantors from their guarantees under their Guaranty except as expressly provided in the Guaranty, or limit the liability of the Guarantors in respect of their Guaranty, without the written consent of each Lender or (vii) release all or substantially all of the Collateral without the written consent of each Lender, provided, that nothing herein shall prohibit Administrative Agent from releasing any Collateral, or require the consent of the other Lenders for such release, if such release is expressly permitted under this Agreement or the other Loan Documents; provided that no such agreement shall amend, modify or otherwise affect the rights or duties of Administrative Agent without its prior written consent.
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effective, each Non-Consenting Lender receives payment in full of the principal of and interest accrued on each Loan made by it and all other amounts owing to it or accrued for its account under this Agreement (other than contingent obligations against which no claim has been asserted).
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NEGLIGENCE OR THE INDEMNITEE; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction resulted from the gross negligence, breach in bad faith or willful misconduct of such Indemnitee. This Section 11.05(a) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
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$5,000,000, unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrowers otherwise consent (each such consent not to be unreasonably conditioned, withheld or delayed).
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Subject to acceptance and recording thereof by the Administrative Agent pursuant to paragraph (c) of this Section, 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
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under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Section 11.05 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.
3.01 or 3.02 than its participating Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the entitlement to a greater payment results from a Change in Law that occurs after such Participant acquired its participation.
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Loan 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 other than the Borrowers, 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.
$5,000,000, or such lesser amount agreed to by the Borrowers and the Administrative Agent;
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enforcement of rights hereunder or thereunder, (viii) subject to an agreement containing provisions substantially the same as those of this Section, to any assignee of or Participant in or swap counterparty relating to, or any prospective assignee of or Participant in or swap counterparty relating to, any of its rights or obligations under this Agreement, (ix) with the consent of the Borrowers or (x) to the extent such Information (1) becomes publicly available other than as a result of a breach of this Section 11.08 or
(2) becomes available to Administrative Agent or a Lender on a nonconfidential basis from a source other than the Borrowers that is not known to Administrative Agent or such Lender to be subject to a confidentiality obligation in favor of any Loan Party. For purposes of this Section, “Information” means, collectively, all information received from a Loan Party or any of its Subsidiaries or Affiliates relating to the Loan Party or any of its Subsidiaries or any of their respective businesses, other than any such information that is available to the Administrative Agent or any Lender on a nonconfidential basis prior to disclosure by a Loan Party or any of its Subsidiaries. Any Person required to maintain the confidentiality of Information as provided in this Section 11.08 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.
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the “weekly ceiling” from time to time in effect. Chapter 346 of the Texas Finance Code shall not apply to the Borrowers’ obligations hereunder.
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FORESEES THAT ANY ACTION FOR ENFORCEMENT OF PAYMENT OF THE OBLIGATIONS OR THE LOAN DOCUMENTS (OTHER THAN ANY LOAN DOCUMENT GOVERNED BY IRISH LAW) MAY BE BROUGHT AGAINST IT IN THE STATE OF TEXAS. TO THE EXTENT ALLOWED BY LAW, EACH LOAN PARTY HEREBY SUBMITS TO JURISDICTION IN THE STATE OF TEXAS FOR ANY ACTION OR CAUSE OF ACTION ARISING OUT OF OR IN CONNECTION WITH THE OBLIGATION OR THE LOAN DOCUMENTS (OTHER THAN ANY LOAN DOCUMENT GOVERNED BY IRISH LAW) AND WAIVES ANY AND ALL RIGHTS UNDER THE LAWS OF ANY STATE OR JURISDICTION TO OBJECT TO JURISDICTION OR VENUE WITHIN HARRIS COUNTY, TEXAS; NOTWITHSTANDING THE FOREGOING, NOTHING CONTAINED IN THIS SECTION 11.15 SHALL PREVENT ADMINISTRATIVE AGENT OR ANY LENDER FROM BRINGING ANY ACTION OR EXERCISING ANY RIGHTS AGAINST ANY BORROWER, ANY GUARANTOR, ANY COLLATERAL, OR ANY OF ANY BORROWER’S OR ANY GUARANTOR’S PROPERTIES IN ANY OTHER COUNTY, STATE, OR JURISDICTION. INITIATING SUCH ACTION OR PROCEEDING OR TAKING ANY SUCH ACTION IN ANY OTHER STATE OR JURISDICTION SHALL IN NO EVENT CONSTITUTE A WAIVER BY ADMINISTRATIVE AGENT OR SUCH LENDER OF ANY OF THE FOREGOING.
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between such Borrower and its Subsidiaries and the Administrative Agent or any Lender is intended to be or has been created in respect of the transactions contemplated hereby or by the other Loan Documents, irrespective of whether the Administrative Agent or any Lender has advised or is advising such Borrower or any Subsidiary on other matters, (ii) the arranging and other services regarding this Agreement provided by the Administrative Agent and the Lenders are arm’s-length commercial transactions between such Borrower and its Affiliates, on the one hand, and the Administrative Agent and the Lenders, on the other hand, (iii) such Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent that they have deemed appropriate and (iv) such Borrower is capable of evaluating, and understand and accept, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; and (b)(i) the Administrative Agent and the Lenders each is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for such Borrower or any of its Affiliates, or any other Person;
(ii) none of the Administrative Agent and the Lenders has any obligation to such Borrower or any of its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) the Administrative Agent and the Lenders and their respective Affiliates may be engaged, for their own accounts or the accounts of customers, in a broad range of transactions that involve interests that differ from those of such Borrower and its Affiliates, and none of the Administrative Agent and the Lenders has any obligation to disclose any of such interests to such Borrower or its Affiliates. To the fullest extent permitted by Law, the Borrowers hereby waive and release any claims that they may have against any of the Administrative Agent and the Lenders with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.
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in accordance with, 12 U.S.C. 1841(k)) of such party.
“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).
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“Default Right” 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.
“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).
Without limiting immediately preceding clause (a), each Lender, or any Person who has received funds on behalf of a Lender such Lender, hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) 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, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
such Lender shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 11.22.
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In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time, (i) such Lender shall be deemed to have assigned its Loan (but not its Commitment) with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loan (but not Commitment) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrowers) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to an approved electronic platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Promissory Notes evidencing the Loan to the Borrowers or the Administrative Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loan subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, sell the Loan if acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitment of any Lender and such Commitment shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender under the Loan Documents with respect to each Erroneous Payment Return Deficiency.
71
To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, 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 Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine.
[Signatures are on the following pages]
72
Signature Page to Credit Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
BORROWERS:
NEXPOINT ADVISORS, L.P.
By: NexPoint Advisors GP, LLC
By: |
/s/ James Dondero |
Name: |
James Dondero |
Title: |
President |
NEXPOINT WATERFORD HOLDCO, LLC
By: |
/s/ Paul Richards |
Name: |
Paul Richards |
Title: |
Authorized Signatory |
Signature Page to Credit Agreement
ADMINISTRATIVE AGENT AND LENDER:
NEXBANK CAPITAL, INC., as Administrative Agent and a Lender
By: |
/s/ Rhett Miller |
Name: |
Rhett Miller |
Title: |
Chief Banking Officer |
Exhibit A
EXHIBIT A
FORM OF TERM LOAN NOTE
[Date] FOR VALUE RECEIVED, NEXPOINT ADVISORS, L.P., a Delaware limited partnership, and
NEXPOINT WATERFORD HOLDCO, LLC, a Delaware limited liability company (together, the “Borrowers”) hereby promise to pay to , or its registered assigns (the “Lender”), in accordance with the provisions of the Credit Agreement (as hereinafter defined), the principal sum of AND 00/100 DOLLARS ($ ) or such lesser amount as shall equal the aggregate unpaid principal amount of the Loan made by the Lender to the Borrowers from time to time under that certain Credit Agreement, dated as of January 14, 2026 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Credit Agreement;” the terms defined therein being used herein as therein defined), between the Borrowers, the other Lenders party thereto, and NEXBANK CAPITAL, INC., as administrative agent.
The Borrowers promise to pay interest on the unpaid principal amount of the Loan made by the Lender from the date of such Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Credit Agreement. All payments of principal and interest shall be made to the Lender in Dollars in immediately available funds as provided in the Credit Agreement. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Credit Agreement.
This Term Loan Note (this “Note”) is one of the Notes referred to in the Credit Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. This Note is also entitled to the benefits of the Guaranty, if any, and is secured by the Collateral (as defined in the Collateral Documents). Upon the occurrence and continuation of one or more of the Events of Default specified in the Credit Agreement, all amounts then remaining unpaid on this Note shall become, or may be declared to be, immediately due and payable as provided in the Credit Agreement. The Loan made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business in accordance with the terms of the Credit Agreement; provided that the failure of the Lender to make any such recordation shall not affect the obligations of the Borrowers to make a payment when due of any amount owing under the Credit Agreement or hereunder in respect of the Loan made by the Lender. The Lender may also attach schedules to this Note and endorse thereon the date, amount and maturity of its Loan and payments with respect thereto.
Borrowers, for themselves, their successors and assigns, hereby waive diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REFERENCE TO ITS CONFLICTS OF LAWS PROVISIONS.
Signature Page to Term Loan Note
BORROWERS:
NEXPOINT ADVISORS, L.P. By: NexPoint Advisors GP, LLC |
By: |
Name: |
Title: |
NEXPOINT WATERFORD HOLDCO, LLC |
By: |
Name: |
Title: |
Loans and Payments
LOANS AND PAYMENTS WITH RESPECT THERETO
Date |
Type of Loan Made |
Amount of Loan Made |
Amount of Principal or Interest Paid This Date |
Outstanding Principal Balance This Date |
Notation Made By |
Exhibit B
EXHIBIT B
FORM OF COMPLIANCE CERTIFICATE
[Date]
Financial Statement Date: ,
To: NexBank Capital, Inc., as Administrative Agent Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of January 14, 2026 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Credit Agreement;” the terms defined therein being used herein as therein defined), by and among NEXPOINT ADVISORS, L.P., a Delaware limited partnership, and NEXPOINT WATERFORD HOLDCO, LLC, a Delaware limited liability company (together, the “Borrowers”), the lenders party thereto, and NEXBANK CAPITAL, INC., as administrative agent (the “Administrative Agent”).
The undersigned Responsible Officer hereby certifies, solely in his/her capacity as a Responsible Officer and not in an individual capacity and without personal liability, as of the date hereof that he/she is authorized to execute and deliver this Compliance Certificate to the Administrative Agent on the behalf of Borrowers, and that:
--or--
[To the knowledge of the undersigned, the following covenants or conditions have not been performed or observed and the following is a list of each such Event of Default and its nature and status:]
[Note to preparer. The following Financial Covenants are provided as illustration. The actual Financial Covenants must be obtained from the Credit Agreement]
Exhibit B
Debt to Equity Ratio = Debt / Equity : 1.00.
Debt to Equity Ratio of : 1.00 for period ending .
[Borrowers to include specific calculation based upon formula outlined in Credit Agreement]
Compliance? (Yes or No)
Interest Coverage Ratio = EBITDA / Interest Expense : 1.00.
Interest Coverage Ratio of : 1.00 for period ending .
[Borrowers to include specific calculation based upon formula outlined in Credit Agreement]
Compliance? (Yes or No)
Total Deleveraging Ratio = Free Cash Flow / Total Debt.
Total Deleveraging Ratio of no less than 7% for period ending .
[Borrowers to include specific calculation based upon formula outlined in Credit Agreement]
Compliance? (Yes or No)
Compliance Certificate
IN WITNESS WHEREOF, the undersigned have executed this Compliance Certificate as of the date first written above.
BORROWERS: NEXPOINT ADVISORS, L.P. By: NexPoint Advisors GP, LLC |
By: |
Name: |
Title: |
NEXPOINT WATERFORD HOLDCO, LLC |
By: |
Name: |
Title: |
Compliance Certificate
Signature Page to
Exhibit C
EXHIBIT C RESERVED
Exhibit D – Page
EXHIBIT D
NOTICE OF BORROWING
NexBank Capital, Inc.
2515 McKinney Ave., Ste. 1100
Dallas, Texas 75201 Attention: Mike Mendelow
Email: mike.mendelow@nexbank.com
[Date]
Ladies and Gentlemen:
The undersigned Borrowers refer to the Credit Agreement dated as of January 14, 2026 (as from time to time amended, the “Credit Agreement”; the terms defined therein being used herein as therein defined), by and among NEXPOINT ADVISORS, L.P., a Delaware limited partnership, and NEXPOINT WATERFORD HOLDCO, LLC, a Delaware limited liability company (together, the “Borrowers”), the lenders party thereto, and NEXBANK CAPITAL, INC., as administrative agent (the “Administrative Agent”), and irrevocably request a Loan be made pursuant to Section 2.02 of the Credit Agreement, and in that regard sets forth below the information relating to the requested Loan (the “Proposed Borrowing”):
.
Account No.:
ABA:
SWIFT:
Legal Name:
Address:
The undersigned hereby certifies that the following statements are true on the date hereof and will be true on the date of the Proposed Borrowing:
1 Minimum amount of $100,000.
1
Exhibit D – Page
[Signature Page to Follow]
2
Notice of Borrowing
Very truly yours,
NEXPOINT ADVISORS, L.P. By: NexPoint Advisors GP, LLC |
By: |
Name: |
Title: |
NEXPOINT WATERFORD HOLDCO, LLC |
By: |
Name: |
Title: |
Notice of Borrowing
Signature Page to

Exhibit E-
EXHIBIT E-1
FORM OF TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement dated as of January 14, 2026 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among NEXPOINT ADVISORS, L.P., a Delaware limited partnership (“NPA”), and NEXPOINT WATERFORD HOLDCO, LLC, a Delaware limited liability company (“NWH”, and together with NPA, collectively, the “Borrowers”), the lenders party thereto, and NEXBANK CAPITAL, INC., as administrative agent (the “Administrative Agent”).
Pursuant to the provisions of Section 3.01(h) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of either of Borrowers within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to either of Borrowers as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished Administrative Agent and Borrowers with a certificate of its non-
U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform Borrowers and Administrative Agent, and (2) the undersigned shall have at all times furnished Borrowers and Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF LENDER] |
By: |
Name: |
Title: |
Date: , 20 |
1

Exhibit E-
EXHIBIT E-2
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement dated as of January 14, 2026 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among NEXPOINT ADVISORS, L.P., a Delaware limited partnership (“NPA”), and NEXPOINT WATERFORD HOLDCO, LLC, a Delaware limited liability company (“NWH”, and together with NPA, collectively, the “Borrowers”), the lenders party thereto, and NEXBANK CAPITAL, INC., as administrative agent (the “Administrative Agent”).
Pursuant to the provisions of Section 3.01(h) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of either of Borrowers within the meaning of Section 871(h)(3)(B) of the Code, and (iv) it is not a controlled foreign corporation related to either of Borrowers as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF PARTICIPANT] |
By: |
Name: |
Title: |
Date: , 20 |
2

Exhibit E-
EXHIBIT E-3
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement dated as of January 14, 2026 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among NEXPOINT ADVISORS, L.P., a Delaware limited partnership (“NPA”), and NEXPOINT WATERFORD HOLDCO, LLC, a Delaware limited liability company (“NWH”, and together with NPA, collectively, the “Borrowers”), the lenders party thereto, and NEXBANK CAPITAL, INC., as administrative agent (the “Administrative Agent”).
Pursuant to the provisions of Section 3.01(h) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation,
(iii) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of either of Borrowers within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to either of Borrowers as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned will promptly so inform such Lender and (2) the undersigned will have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF PARTICIPANT] |
By: |
Name: |
Title: |
Date: , 20 |
3

Exhibit E-
EXHIBIT E-4
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement dated as of January 14, 2026 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among NEXPOINT ADVISORS, L.P., a Delaware limited partnership (“NPA”), and NEXPOINT WATERFORD HOLDCO, LLC, a Delaware limited liability company (“NWH”, and together with NPA, collectively, the “Borrowers”), the lenders party thereto, and NEXBANK CAPITAL, INC., as administrative agent (the “Administrative Agent”).
Pursuant to the provisions of Section 3.01(h) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to the Credit Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of either of Borrowers within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to either of Borrowers as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished Administrative Agent and Borrowers with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned will promptly so inform Borrowers and Administrative Agent, and (2) the undersigned will have at all times furnished Borrowers and Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF LENDER] |
By: |
Name: |
Title: |
Date: , 20 |
4
Exhibit F – Page
EXHIBIT F
FORM OF LENDER JOINDER AGREEMENT
This LENDER JOINDER AGREEMENT (this “Joinder”) is made as of [Date]. Reference is hereby made to the Credit Agreement dated as of January 14, 2026 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among NEXPOINT ADVISORS, L.P., a Delaware limited partnership (“NPA”), and NEXPOINT WATERFORD HOLDCO, LLC, a Delaware limited liability company (“NWH”, and together with NPA, collectively, the “Borrowers”), the lenders party thereto, and NEXBANK CAPITAL, INC., as administrative agent, (the “Administrative Agent”). Capitalized terms not defined herein shall have the meanings assigned to such terms in the Credit Agreement.
The “Additional Lenders” referred to on Schedule I agree as follows:
(e) attaches (or has delivered to the Administrative Agent) completed and signed copies of any forms that may be required by the United States Internal Revenue Service (together with any additional supporting documentation required pursuant to applicable Treasury Department regulations or such other evidence satisfactory to the Borrowers and the Administrative Agent) in order to certify such Additional Lender’s exemption from United States withholding taxes with respect to any payments or distributions made or to be made to such Additional Lender in respect of the Loans or under the Credit Agreement; and (f) confirms that it is a Qualifying Lender.
1
Exhibit F – Page
2
Exhibit F – Page
[Remainder of Page Intentionally Left Blank; Signature Page(s) to Follow.]
3

Signature Page to Lender Joinder Agreement
IN WITNESS WHEREOF, each Additional Lender has caused this Joinder to be executed by its officers thereunto duly authorized as of the date first written above.
[ADDITIONAL LENDER] |
By: |
Name: |
Title: |
Signature Page to Lender Joinder Agreement
ACCEPTED AND APPROVED: |
NEXBANK CAPITAL, INC., as the Administrative Agent |
By: |
Name: |
Title: |
Signature Page to Lender Joinder Agreement
CONSENTED TO:
BORROWERS: NEXPOINT ADVISORS, L.P.
By: NexPoint Advisors GP, LLC |
By: |
Name: |
Title: |
NEXPOINT WATERFORD HOLDCO, LLC |
By: |
Name: |
Title: |
Exhibit F
SCHEDULE I
to JOINDER
ADDITIONAL LENDERS |
|
|
|
Lender: |
[ ] |
[Additional Lender’s Commitment: |
$[ ]] |
[Total Commitment after giving effect to this Joinder: |
$[ ]] |
Effective Date (if other than date of Joinder): |
[ ] |
Notice Information: |
[Name] [Address] Attention: Telephone: Facsimile: Email: |
Lender: |
[ ] |
[Additional Lender’s Commitment: |
$[ ]] |
[Total Commitment after giving effect to this Joinder: |
$[ ]] |
Effective Date (if other than date of Joinder): |
[ ] |
Notice Information: |
[Name] [Address] Attention: Telephone: Facsimile: Email: |
Exhibit G – Page
4935-3088-2684 v.3
EXHIBIT G
FORM OF ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between [the][each] Assignor identified in item 1 below ([the][each, an] “Assignor”) and [the][each] Assignee identified in item 2 below ([the][each, an] “Assignee”). [It is understood and agreed that the rights and obligations of [the Assignors][the Assignees] hereunder are several and not joint.] Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and assumes from [the Assignor][the respective Assignors], subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’] rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of [the Assignor][the respective Assignors] under the respective facilities identified below and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of [the Assignor (in its capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)] against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as, [the][an] “Assigned Interest”). Each such sale and assignment is without recourse to [the][any] Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by [the][any] Assignor.
1
Exhibit G – Page
4935-3088-2684 v.3
2
Exhibit G – Page
4935-3088-2684 v.3
Assignor[s] |
Assignee[s] |
Facility Assigned |
Aggregate Amount of Loans for all Lenders |
Amount of Loans Assigned |
Percentage of Assigned Loans |
CUSIP No. |
|
|
|
$ |
$ |
% |
|
|
|
|
$ |
$ |
% |
|
|
|
|
$ |
$ |
% |
|
[7. Trade Date: ]
Effective Date: , 20 [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed:
ASSIGNOR:
[NAME OF ASSIGNOR]
By:
Name:
Title:
2 See Section 11.07(b)(i) of the Credit Agreement for minimum amounts for assignments.
3
Exhibit G – Page
4935-3088-2684 v.3
ASSIGNEE:
[NAME OF ASSIGNEE]
By:
Name:
Title:
4
Exhibit G – Page
4935-3088-2684 v.3
[Consented to and] Accepted:
NEXPOINT CAPITAL, INC.,
as Administrative Agent
By: Name: Rhett Miller
Title: Chief Banking Officer
[Consented to:]
NEXPOINT ADVISORS, L.P.,
a Delaware limited partnership By: NexPoint Advisors GP, LLC
By: Name:
Title
NEXPOINT WATERFORD HOLDCO, LLC,
a Delaware limited liability company
By: Name:
Title:
5
4935-3088-2684 v.3
Exhibit G
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT AND ASSUMPTION
(b) agrees that (i) it will, independently and without reliance upon Administrative Agent, [the][any] Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.
4935-3088-2684 v.3
Exhibit G
Effective Date and to [the][the relevant] Assignee for amounts which have accrued from and after the Effective Date.
4935-3088-2684 v.3
Exhibit H
EXHIBIT H RESERVED
4935-3088-2684 v.3
Exhibit I
EXHIBIT I
FORM OF SECURITY AGREEMENT
[See attached.]
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this “Agreement”) is executed as of January 14, 2026, by NEXPOINT WATERFORD HOLDCO, LLC, a Delaware limited liability company (“Debtor”), for the benefit of NEXBANK CAPITAL, INC., as administrative agent (in such capacity together with its successors and assigns, “Administrative Agent”) for the benefit of the Secured Parties (as defined below).
RECITALS
AGREEMENTS
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Debtor covenants and agrees with Administrative Agent as follows:
“Agreement” means this Agreement together with all schedules and exhibits and all amendments, restatements and supplements.
“Collateral” is defined in Section 3 of this Agreement. “Debtor” is defined in the preamble to this Agreement.
“DST Sales Proceeds” has the meaning specified in Credit Agreement.
“DST Sales Proceeds Account” has the meaning specified in the Credit Agreement and as further described on Schedule 1 attached hereto.
“Event of Default” means an “Event of Default” under, and as defined in, the Credit Agreement.
“Governmental Authority” means any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative tribunal,
1
central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of, or pertaining to, government.
“Obligation” means the “Obligations” under, and as defined in, the Credit Agreement.
“Obligor” means a Person that, with respect to an obligation secured by a security interest in the Collateral, (a) owes payment or other performance on the obligation, (b) has provided property or other security or credit support other than the Collateral to secure payment or other performance of the obligation, or (c) is otherwise accountable in whole or in part for payment or other performance of the obligation. The term does not include issuers or nominated persons under a letter of credit.
“Secured Parties” means, collectively, the Administrative Agent and each Lender, and, in each case, their respective successors and permitted assigns.
“Security Interest” means the security interests granted and the transfers, pledges and assignments made under Section 3 of this Agreement.
“UCC” means (a) the Uniform Commercial Code, as adopted and in effect from time to time in Texas, and (b) if the UCC provides that the law of another jurisdiction governs certain matters, then, in respect of such matters, the Uniform Commercial Code as adopted and in effect from time to time in such jurisdiction.
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that:
(ii) each other name Debtor has used in the past five years, together with the date of the relevant change; (iii) any change in Debtor’s identity or legal structure within the past five years; (iv) all other names (including trade names) used by Debtor or any of its divisions or other business units in connection with the conduct of its business or ownership of its properties at any time in the past five years; (v) Debtor’s federal taxpayer identification number; and (vi) Debtor’s principal place of business.
(ii) are valid and enforceable; and (iii) as to those that are owned, are in the name of Debtor. Debtor’s right, title and interest in the patents and trademarks is free and clear of any Liens other than Permitted Liens.
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representation and warranty by Debtor to Administrative Agent under this Agreement that the representations and warranties of this Section 6 are true and correct with respect to each item of such Collateral.
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permit the amendment, alteration or modification of, any material portion (individually or collectively) of the Collateral if such amendment, alteration or modification would decrease the value of the Collateral or materially adversely affect the Secured Parties rights therein, and (iii) not do or permit any act which would impair any material portion of the Collateral.
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Documents or (ii) that would direct the depository bank to debit Debtor’s deposit account in an amount greater than the Obligations.
(i) compromise or extend time of payment with respect to all or any portion of the Collateral for such amounts and upon such terms as Administrative Agent may reasonably determine,
(ii) demand, collect, receive, receipt for, sue for, compound and give acquittance for any and all amounts due or to become due with respect to Collateral, (iii) take control of cash and other proceeds of any Collateral, (iv) endorse Debtor’s name on any notes, acceptances, checks, drafts, money orders or other evidences of payment on Collateral that may come into Administrative Agent’s possession, (v) sign Debtor’s name on any invoice or bill of lading relating to any Collateral, on any drafts against Obligors or other Persons making payment with respect to Collateral, on assignments and verifications of accounts or other Collateral and on notices to Obligors making payment with respect to Collateral, (vi) send requests for verification of obligations to any Obligor, and (vii) do all other acts and things reasonably necessary to carry out the intent of this Agreement. If any Obligor or account party fails to make payment on any Collateral when due, Administrative Agent is authorized, in its sole discretion, either in its own name or in Debtor’s name, to take such action as Administrative Agent reasonably shall deem appropriate for the collection of any amounts owed with respect to Collateral or upon which a delinquency exists. Regardless of any other provision of this Agreement, however, Administrative Agent shall not be liable for its failure to collect, or for its failure to exercise diligence in the collection of, any amounts owed with respect to Collateral except for its own fraud, gross negligence, or willful misconduct, nor shall it be under any duty to anyone except Debtor to account for funds that it shall actually receive under this Agreement. A receipt given by Administrative Agent to any Obligor or account debtor shall be a full and complete release, discharge, and acquittance to such Obligor or account party, to the extent of any amount so paid to Administrative Agent. Administrative Agent may apply or set off amounts paid and the deposits against any liability of Debtor to Administrative Agent.
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limitation, (A) authenticating, executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the UCC, to the extent, if any, that Debtor’s signature thereon is required, (B) causing Administrative Agent’s name to be noted as Administrative Agent on any certificate of title for a titled good if such notation is a condition to the attachment, perfection or priority of, or ability of Administrative Agent to enforce, Administrative Agent’s security interest in such Collateral, (C) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to the attachment, perfection or priority of, or ability of Administrative Agent to enforce, Administrative Agent’s security interest in such Collateral, (D) obtaining governmental and other third party waivers, consents and approvals in form and substance satisfactory to Administrative Agent, including, without limitation, any consent of any licensor, lessor or other Person obligated on Collateral, (E) taking all actions under the UCC or under any other Law, as reasonably determined by Administrative Agent to be applicable in any relevant Uniform Commercial Code or other jurisdiction, including any foreign jurisdiction, (F) providing Administrative Agent promptly upon its request with proper legal descriptions of, and all other information and documents pertaining to, Debtor’s interest in real property, deposit accounts, brokerage accounts, securities accounts, and all other personal property assets of Debtor, and (G) providing such other information and documents, and executing such other appropriate documents or instruments, as Administrative Agent may reasonably request.
(i) requiring Debtor to assemble all or part of the Collateral and make it available to Administrative Agent at a place to be designated by Administrative Agent which is reasonably convenient to Debtor and Administrative Agent, (ii) applying by appropriate judicial proceedings for appointment of a receiver for all or part of the Collateral, (iii) applying to the Obligation any cash held by Administrative Agent, (iv) reducing any claim to judgment, (v) exercising the rights of offset or banker’s lien against the interest of Debtor in and to every account and other property of Debtor in Administrative Agent’s possession to the extent of the full amount of the Obligation, (vi) foreclosing the Security Interest and any other Liens Administrative Agent may have or otherwise realize upon any and all of the rights Administrative Agent may have in and to the Collateral, or any part thereof, and (vii) bringing suit or other proceedings before any Governmental Authority either for specific performance of any covenant or condition contained in any of the Loan Documents or in aid of the exercise of any right granted to Administrative Agent in any of the Loan Documents.
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(i) to fail to incur expenses reasonably deemed significant by Administrative Agent in order to prepare Collateral for disposition or otherwise to fail to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other Law or under the Permitted Liens, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of unless such Collateral is subject to a Permitted Lien, (iii) to fail to exercise collection remedies against account debtors or other Obligors, directly or through the use of collection agencies and other collection specialists, (iv) to fail to remove Liens or any other encumbrances on, or any adverse claims against, any Collateral,
(v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, unless required by applicable Law, (vi) to contact other Persons, whether or not in the same business as Debtor, for expressions of interest in acquiring all or any portion of the Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, or (xi) to the extent deemed appropriate by Administrative Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Administrative Agent in the collection or disposition of any of the Collateral. Debtor acknowledges that the purpose of this Section 10(c) is to provide non-exhaustive indications of what actions or omissions by Administrative Agent would fulfill Administrative Agent’s duties under the UCC or other Law of any relevant jurisdiction in Administrative Agent’s exercise of remedies against the Collateral and that other actions or omissions by Administrative Agent shall not be deemed to fail to fulfill such duties solely on account of not being indicated in this Section 10(c). Without limiting the foregoing, nothing contained in this Section 10(c) shall be construed to grant any rights to Debtor or to impose any duties on Administrative Agent that would not have been granted or imposed by this Agreement or by applicable Law in the absence of this Section 10(c).
(i) satisfaction of the Obligations or (ii) all of the Collateral is sold. If the proceeds of a sale of less than all the Collateral shall be less than the Obligation, this Agreement and the Security Interest shall remain in full force and effect as to the unsold portion of the Collateral just as though no sale had been made. In the event any sale under this Agreement is not completed or is, in Administrative Agent’s opinion, defective, such sale shall not exhaust Administrative Agent’s rights under this
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Agreement and Administrative Agent shall have the right to cause a subsequent sale or sales to be made at Debtor’s sole cost and expense, unless all Obligations have been satisfied in full. Any and all statements of fact or other recitals made in any bill of sale or assignment or other instrument evidencing any foreclosure sale under this Agreement as to nonpayment of the Obligation, or as to the occurrence or existence of any Event of Default, or as to Administrative Agent’s having declared all of such Obligation to be due and payable, or as to notice of time, place and terms of sale and the properties to be sold having been duly given, or as to any other act or thing having been duly done by Administrative Agent, shall be taken as prima facie evidence of the truth of the facts so stated and recited, subject only to manifest error. Administrative Agent may appoint or delegate any one or more Persons as agent to perform any act or acts necessary or incident to any sale held or to be held by Administrative Agent, including the sending of notices and the conduct of sale.
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of this Agreement, but shall be fully protected in making payment directly to Administrative Agent and Administrative Agent shall promptly transfer the proceeds of such payment to Debtor. Administrative Agent’s obligation to transfer such proceeds to Debtor under the terms of this subsection shall survive termination of this Agreement.
(iii) all rights of marshaling in respect of any or all of the Collateral.
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[Signatures Pages Follow]
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Security Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
DEBTOR:
NEXPOINT WATERFORD HOLDCO, LLC |
By: |
Name: |
Title: |
Signature Page to
NEXBANK CAPITAL, INC., as Administrative Agent |
By: |
Name: |
Title: |
Loan Purchase and Sale Agreement (NCI-NXRT 2605-S)
Page 2-10
SCHEDULE I TO ASSIGNMENT, ASSUMPTION, AND RECOGNITION AGREEMENT LOAN SCHEDULE
[ATTACHED]