Execution Version
CIM GROUP MANAGEMENT, LLC
$50,000,000 6.42% SERIES A SENIOR NOTES DUE AUGUST 30, 2029
$75,000,000 6.50% SERIES B SENIOR NOTES DUE AUGUST 30, 2032
$25,000,000 6.75% SERIES C SENIOR NOTES DUE AUGUST 30, 2034
NOTE PURCHASE AGREEMENT
Dated August 30, 2022
TABLE OF CONTENTS
Page
Section 1.1. Authorization of Notes 6
Section 1.2. Subsidiary Guaranty 6
Section 4.1. Representations and Warranties 7
Section 4.2. Performance; No Default 7
Section 4.4. Opinions of Counsel 8
Section 4.5. Purchase Permitted By Applicable Law, Etc 8
Section 4.6. Sale of Other Notes 8
Section 4.7. Payment of Special Counsel Fees. 8
Section 4.8. Private Placement Number 8
Section 4.9. Changes in Structure 8
Section 4.10. Funding Instructions 8
Section 4.11. Subsidiary Guaranty 9
Section 4.12. Debt Rating 9
Section 4.13. Amendment to Credit Agreement 9
Section 4.14. Proceedings and Documents 9
Section 5.1. Organization; Power and Authority 9
Section 5.2. Authorization, Etc 10
Section 5.3. Disclosure 10
Section 5.5. Financial Statements; Material Liabilities 11
Section 5.6. Compliance with Laws, Other Instruments, Etc 11
Section 5.7. Governmental Authorizations, Etc 11
TABLE OF CONTENTS
(continued)
Section 5.9. Taxes 12
Section 5.10. Title to Property; Leases 12
Section 5.11. Licenses, Permits, Etc 12
Section 5.13. Private Offering by the Company 13
Section 5.14. Use of Proceeds; Margin Regulations 14
Section 5.15. Existing Indebtedness 14
Section 5.17. Status under Certain Statutes 15
Section 6.1. Purchase for Investment 15
Section 6.2. Source of Funds. 16
Section 7.1. Financial and Business Information 17
Section 7.2. Officer’s Certificate 20
Section 7.3. Visitation 20
Section 7.4. Electronic Delivery 21
Section 8.1. Maturity 22
Section 8.2. Optional Prepayments with Make-Whole Amount 22
Section 8.3. Allocation of Partial Prepayments. 22
Section 8.4. Maturity; Surrender, Etc 23
Section 8.5. Purchase of Notes 23
Section 8.8. Payments Due on Non-Business Days 26
Section 9.1. Compliance with Laws 27
TABLE OF CONTENTS
(continued)
Section 9.2. Insurance 27
Section 9.3. Maintenance of Properties 27
Section 9.4. Payment of Taxes 27
Section 9.5. Existence, Etc 28
Section 9.6. Books and Records 28
Section 9.8. Eligible Revenues 29
Section 9.9. Registered Investment Adviser 30
Section 10.1. Transactions with Affiliates 31
Section 10.2. Merger, Consolidation, Etc 32
Section 10.3. Line of Business 33
Section 10.4. Economic Sanctions, Etc 33
Section 10.5. Liens 34
Section 10.6. Subsidiary Indebtedness 36
Section 10.7. Restricted Payments 36
Section 10.9. Amendments to Eligible Revenue Agreements 38
Section 10.10. Sale of Assets 38
Section 12.2. Other Remedies 42
Section 12.3. Rescission 42
Section 12.4. No Waivers or Election of Remedies, Expenses, Etc 42
Section 13.1. Registration of Notes 43
TABLE OF CONTENTS
(continued)
Section 13.2. Transfer and Exchange of Notes 43
Section 13.3. Replacement of Notes 43
Section 14.1. Place of Payment 44
Section 14.2. Payment by Wire Transfer 44
Section 14.3. FATCA Information 44
Section 15.1. Transaction Expenses 45
Section 15.2. Certain Taxes 45
Section 15.3. Survival 46
SECTION 16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
ENTIRE AGREEMENT 46
Section 17.1. Requirements 46
Section 17.3. Binding Effect, Etc 47
Section 17.4. Notes Held by Company, Etc 47
Section 22.1. Successors and Assigns 51
Section 22.3. Severability 53
Section 22.4. Construction, Etc 53
Section 22.5. Counterparts; Electronic Signatures 53
Section 22.6. Governing Law 54
TABLE OF CONTENTS
(continued)
Section 22.7. Jurisdiction and Process; Waiver of Jury Trial 54
Section 22.8. Divisions 55
SCHEDULE A — DEFINED TERMS
SCHEDULE 1.1(a) — FORM OF 6.42% SERIES A SENIOR NOTE DUE
AUGUST 30, 2029
SCHEDULE 1.1(b) — FORM OF 6.50% SERIES B SENIOR NOTE DUE
AUGUST 30, 2032
SCHEDULE 1.1(c) — FORM OF 6.75% SERIES C SENIOR NOTE DUE
AUGUST 30, 2034
SCHEDULE 1.2 — FORM OF SUBSIDIARY GUARANTY SCHEDULE 5.3 — DISCLOSURE MATERIALS
SCHEDULE 5.4 — SUBSIDIARIES OF THE COMPANY AND
OWNERSHIP OF SUBSIDIARY STOCK SCHEDULE 5.5 — FINANCIAL STATEMENTS SCHEDULE 5.15 — EXISTING INDEBTEDNESS
PURCHASER SCHEDULE — INFORMATION RELATING TO PURCHASERS
CIM GROUP MANAGEMENT, LLC
4700 Wilshire Boulevard Los Angeles, CA 90010
6.42% SERIES A SENIOR NOTES DUE AUGUST 30, 2029
6.50% SERIES B SENIOR NOTES DUE AUGUST 30, 2032
6.75% SERIES C SENIOR NOTES DUE AUGUST 30, 2034
August 30, 2022
TO EACH OF THE PURCHASERS LISTED IN THE PURCHASER SCHEDULE HERETO:
Ladies and Gentlemen:
CIM Group Management, LLC, a Delaware limited liability company (the “Company”), agrees with each of the Purchasers as follows:
SECTION 1. AUTHORIZATION OF NOTES; SUBSIDIARY GUARANTY.
Section 1.1. Authorization of Notes. The Company will authorize the issue and sale of
(a) $50,000,000 aggregate principal amount of its 6.42% Series A Senior Notes due August 30, 2029 (the “Series A Notes”), (b) $75,000,000 aggregate principal amount of its 6.50% Series B Senior Notes due August 30, 2032 (the “Series B Notes”) and (c) $25,000,000 aggregate principal amount of its 6.75% Series C Senior Notes due August 30, 2034 (the “Series C Notes” and together with the Series A Notes and Series B Notes, collectively, the “Notes”). The Series A Notes, Series B Notes and Series C Notes shall be substantially in the forms set out in Schedule 1.1(a), Schedule 1.1(b) and Schedule 1.1(c), respectively. Certain capitalized and other terms used in this Agreement are defined in Schedule A and, for purposes of this Agreement, the rules of construction set forth in Section 22.4 shall govern.
Section 1.2. Subsidiary Guaranty. The payment of the principal of, interest on, and Make-Whole Amount, if any, with respect to the Notes and the performance by the Company of its obligations under this Agreement and the other Financing Documents (a) will be unconditionally and jointly and severally guaranteed by the Original Subsidiary Guarantors and
(b) may, from time to time, be jointly and severally guaranteed by other direct or indirect Subsidiaries of the Company (the Original Subsidiary Guarantors and each such other guarantor, a “Subsidiary Guarantor”), in each case pursuant to a Subsidiary Guaranty substantially in the form set out in Schedule 1.2 (as amended, restated, supplemented and otherwise modified and in effect from time to time, the “Subsidiary Guaranty”).
SECTION 2. SALE AND PURCHASE OF NOTES.
Subject to the terms and conditions of this Agreement, the Company will issue and sell to each Purchaser and each Purchaser will purchase from the Company, at the Closing provided for in Section 3, Notes in the principal amount and Series specified opposite such Purchaser’s name in the Purchaser Schedule at the purchase price of 100% of the principal amount thereof. The
Purchasers’ obligations hereunder are several and not joint obligations and no Purchaser shall have any liability to any Person for the performance or non-performance of any obligation by any other Purchaser hereunder.
SECTION 3. CLOSING.
The sale and purchase of the Notes to be purchased by each Purchaser shall occur at the offices of Morgan, Lewis & Bockius LLP, 101 Park Avenue, New York, NY 10178, at 10:00 a.m., Eastern time, at a closing (the “Closing”) on August 30, 2022. At the Closing the Company will deliver to each Purchaser the Notes of each Series to be purchased by such Purchaser in the form of a single Note for each Series (or such greater number of Notes of each Series in denominations of at least $100,000 as such Purchaser may request) dated the date of the Closing and registered in such Purchaser’s name (or in the name of its nominee), against delivery by such Purchaser to the Company or its order of immediately available funds in the amount of the purchase price therefor by wire transfer of immediately available funds for the account of the Company in accordance with the wire transfer instructions delivered by the Company to the Purchasers pursuant to Section
4.10. If at the Closing the Company shall fail to tender such Notes to any Purchaser as provided above in this Section 3, or any of the conditions specified in Section 4 shall not have been fulfilled to such Purchaser’s satisfaction, such Purchaser shall, at its election, be relieved of all further obligations under this Agreement, without thereby waiving any rights such Purchaser may have by reason of such failure by the Company to tender such Notes or any of the conditions specified in Section 4 not having been fulfilled to such Purchaser’s satisfaction.
SECTION 4. CONDITIONS TO CLOSING.
Each Purchaser’s obligation to purchase and pay for the Notes to be sold to such Purchaser at the Closing is subject to the fulfillment to such Purchaser’s satisfaction, prior to or at the Closing, of the following conditions:
Section 4.1. Representations and Warranties. The representations and warranties of each Obligor in each Financing Document to which such Obligor is a party shall be correct when made and at the Closing.
Section 4.2. Performance; No Default. Each of the Obligors shall have performed and complied with all agreements and conditions contained in this Agreement and the other Financing Documents required to be performed or complied with by it prior to or at the Closing. Before and after giving effect to the issue and sale of the Notes (and the application of the proceeds thereof as contemplated by Section 5.14), no Default or Event of Default shall have occurred and be continuing.
Section 4.3. Compliance Certificates.
(a) Officer’s Certificate. The Company on behalf of itself and the other Obligors shall have delivered to such Purchaser an Officer’s Certificate, dated the date of the Closing, certifying that the conditions specified in Sections 4.1, 4.2 and 4.9 have been fulfilled.
(b) Secretary’s Certificate. Each Obligor shall have delivered to such Purchaser a certificate of its Secretary or Assistant Secretary, dated the date of the Closing, certifying as to (i) the resolutions attached thereto and other limited liability company, corporate, limited partnership or equivalent proceedings relating to the authorization, execution and delivery of the Financing Documents and (ii) such Obligor’s organizational documents as then in effect.
Section 4.4. Opinions of Counsel. Such Purchaser shall have received opinions in form and substance satisfactory to such Purchaser, dated the date of the Closing (a) from Sullivan & Cromwell LLP, counsel for the Obligors, and (b) from Morgan, Lewis & Bockius LLP, the Purchasers’ special counsel (in such role, the “Purchasers’ Special Counsel”) in connection with such transactions, substantially in the form agreed with such Purchaser and covering such other matters incident to such transactions as such Purchaser may reasonably request.
Section 4.5. Purchase Permitted By Applicable Law, Etc. On the date of the Closing such Purchaser’s purchase of Notes shall (a) be permitted by the laws and regulations of each jurisdiction to which such Purchaser is subject, without recourse to provisions (such as section 1405(a)(8) of the New York Insurance Law) permitting limited investments by insurance companies without restriction as to the character of the particular investment, (b) not violate any applicable law or regulation (including Regulation T, U or X of the Board of Governors of the Federal Reserve System) and (c) not subject such Purchaser to any tax, penalty or liability under or pursuant to any applicable law or regulation, which law or regulation was not in effect on the date hereof. If requested by such Purchaser, such Purchaser shall have received an Officer’s Certificate certifying as to such matters of fact as such Purchaser may reasonably specify to enable such Purchaser to determine whether such purchase is so permitted.
Section 4.6. Sale of Other Notes. Contemporaneously with the Closing the Company shall sell to each other Purchaser and each other Purchaser shall purchase the Notes to be purchased by it at the Closing as specified in the Purchaser Schedule.
Section 4.7. Payment of Special Counsel Fees. Without limiting Section 15.1, the Company shall have paid on or before the Closing the fees, charges and disbursements of the Purchasers’ Special Counsel referred to in Section 4.4 to the extent reflected in a statement of such counsel rendered to the Company at least one (1) Business Day prior to the Closing.
Section 4.8. Private Placement Number. A Private Placement Number issued by the PPN CUSIP Unit of CUSIP Global Services (in cooperation with the SVO) shall have been obtained for each Series of Notes.
Section 4.9. Changes in Structure. No Obligor shall have changed its jurisdiction of incorporation or organization, as applicable, or been a party to any merger or consolidation or
succeeded to all or any substantial part of the liabilities of any other entity, at any time following the date of the most recent financial statements referred to in Schedule 5.5.
Section 4.10. Funding Instructions. At least three (3) Business Days prior to the date of the Closing, each Purchaser shall have received written instructions signed by a Responsible Officer on letterhead of the Company including (a) the name and address of the transferee bank,
(b) such transferee bank’s ABA number, (c) the account name and number into which the purchase price for the Notes is to be deposited, which account shall be fully opened and able to receive micro deposits in accordance with this Section 4.10 at least three (3) Business Days prior to the date of Closing and (d) the contact details (email and telephone number) of a Responsible Officer and an appropriate Person at the Company and the transferee bank who can verify the account details. An identifiable Responsible Officer of the Company shall confirm the written instructions by either a live videoconference or conference call made available to the Purchasers no later than two (2) Business Days prior to the Closing (or such shorter period as may be agreed by each applicable Purchaser). Each Purchaser has the right, but not the obligation, upon written notice (which may be by email) to the Company, to elect to deliver a micro deposit (less than $51.00) to the account identified in the written instructions no later than two (2) Business Days prior to the Closing (or such shorter period as may be agreed by each applicable Purchaser). If a Purchaser delivers a micro deposit, a Responsible Officer must verbally verify the receipt and amount of the micro deposit to such Purchaser on a telephone call initiated by such Purchaser prior to the Closing. The Company shall not be obligated to return the amount of the micro deposit, nor will the amount of the micro deposit be netted against the Purchaser’s purchase price of the Notes.
Section 4.11. Subsidiary Guaranty. Each Original Subsidiary Guarantor shall have duly executed and delivered to the Purchasers a Subsidiary Guaranty, and the Subsidiary Guaranty shall be in full force and effect and in form and substance satisfactory to the Purchasers.
Section 4.12. Debt Rating. The Company shall have delivered, or caused to be delivered, to such Purchaser, (a) a Private Rating Letter issued by an Acceptable Rating Agency setting forth the initial Debt Rating for each Series of Notes of not less than A- and (b) the related Private Rating Rationale Report with respect to such Debt Rating.
Section 4.13. Amendment to Credit Agreement. Such Purchaser shall have received a true and complete copy of the fully executed Fourth Amendment to the Revolving Credit Agreement, such agreement to be in form and substance satisfactory to such Purchaser, and the conditions to the effectiveness thereof shall have been satisfied or waived prior to or contemporaneously with the issuance of the Notes hereunder.
Section 4.14. Proceedings and Documents. All proceedings in connection with the transactions contemplated by this Agreement and all documents and instruments incident to such transactions shall be satisfactory to such Purchaser and the Purchasers’ Special Counsel, and such Purchaser and the Purchasers’ Special Counsel shall have received all such counterpart originals or certified or other copies of such documents as such Purchaser or the Purchasers’ Special Counsel may reasonably request.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to each Purchaser that:
Section 5.1. Organization; Power and Authority. Each Obligor is a limited liability company, corporation, limited partnership or other legal entity duly organized, validly existing and in good standing under the laws of its jurisdiction of organization and is duly qualified as a foreign limited liability company or other legal entity and is in good standing in each jurisdiction in which
such qualification is required by law, other than those jurisdictions as to which the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Each Obligor has the limited liability company, corporate, limited partnership or other legal entity power and authority to own or hold under lease the properties it purports to own or hold under lease, to transact the business it transacts and proposes to transact, to execute and deliver the Financing Documents to which it is a party and to perform the provisions hereof and thereof.
Section 5.2. Authorization, Etc. Each of the Financing Documents to which each Obligor is a party has been duly authorized by all necessary limited liability company, corporate, limited partnership or equivalent action on the part of such Obligor, and each such Financing Document constitutes, or, in the case of the Notes, upon execution and delivery thereof, will constitute, a legal, valid and binding obligation of each Obligor, as the case may be, enforceable against such Obligor in accordance with its terms, except as such enforceability may be limited by
(a) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (b) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
Section 5.3. Disclosure. The Company, through its agents, Morgan Stanley & Co., LLC, Goldman Sachs & Co. LLC and Citigroup Global Markets Inc. has delivered to each Purchaser a copy of a Private Placement Memorandum, dated July 2022 (the “Memorandum”), relating to the transactions contemplated hereby. This Agreement, the other Financing Documents, the Memorandum, the financial statements listed in Schedule 5.5 and the documents, certificates or other writings delivered to the Purchasers by or on behalf of the Company prior to August 16, 2022 in connection with the transactions contemplated hereby and identified in Schedule 5.3 (this Agreement, the other Financing Documents, the Memorandum and such documents, certificates or other writings and such financial statements delivered to each Purchaser being referred to, collectively, as the “Disclosure Documents”), taken as a whole, do not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading in light of the circumstances under which they were made. Except as disclosed in the Disclosure Documents, since December 31, 2021, there has been no change in the financial condition, operations, business or properties of the Company or any Subsidiary except changes that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 5.4. Organization and Ownership of Shares of Subsidiaries; Affiliates.
(a) Schedule 5.4 contains (except as noted therein) complete and correct lists of the Company’s Material Subsidiaries, showing, as to each such Material Subsidiary, the name thereof, the jurisdiction of its organization, the percentage of shares of each class of
its capital stock or similar equity interests outstanding owned by the Company and each other Subsidiary and whether such Material Subsidiary is a Subsidiary Guarantor.
(b) All of the outstanding shares of capital stock or similar equity interests of each Material Subsidiary shown in Schedule 5.4 as being owned by the Company and its Subsidiaries have been validly issued, are fully paid and non-assessable (in each case, to
the extent applicable) and are owned by the Company or another Subsidiary free and clear of any Lien that is prohibited by this Agreement.
(c) Each Material Subsidiary is a limited liability company, corporation, limited partnership or other legal entity duly organized, validly existing and, where applicable, in good standing under the laws of its jurisdiction of organization, and is duly qualified as a foreign limited liability company, corporation, limited partnership or other legal entity and, where applicable, is in good standing in each jurisdiction in which such qualification is required by law, except for any failures to be so qualified or in good standing that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Each such Material Subsidiary has the limited liability company, corporate, limited partnership or other power and authority to own or hold under lease the properties it purports to own or hold under lease and to transact the business it transacts and proposes to transact.
Section 5.5. Financial Statements; Material Liabilities. The Company has delivered to each Purchaser copies of the financial statements of the Company and its Subsidiaries listed on Schedule 5.5. All of such financial statements (including in each case the related schedules and notes) fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the respective dates specified in such Schedule and the consolidated results of their operations and cash flows for the respective periods so specified and have been prepared in accordance with GAAP consistently applied throughout the periods involved except as set forth in the notes thereto (subject, in the case of any interim financial statements, to normal year-end adjustments). The Company and its Subsidiaries do not have any Material liabilities that are not disclosed in the Disclosure Documents.
Section 5.6. Compliance with Laws, Other Instruments, Etc. The execution, delivery and performance by each Obligor of the Financing Documents to which such Obligor is a party will not (a) contravene, result in any breach of, or constitute a default under, or result in the creation of any Lien in respect of any property of the Company or any Subsidiary under, any indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease, operating agreement, corporate charter, regulations or by-laws, shareholders agreement or any other agreement or instrument to which the Company or any Subsidiary is bound or by which the Company or any Subsidiary or any of their respective properties may be bound or affected, (b) conflict with or result in a breach of any of the terms, conditions or provisions of any order, judgment, decree or ruling of any court, arbitrator or Governmental Authority applicable to the Company or any Subsidiary or (c) violate any provision of any statute or other rule or regulation of any Governmental Authority applicable to the Company or any Subsidiary.
Section 5.7. Governmental Authorizations, Etc. No consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority is required in connection with the execution, delivery or performance by any Obligor of the Financing Documents to which such Obligor is a party.
Section 5.8. Litigation; Observance of Statutes and Orders.
(a) There are no actions, suits, investigations or proceedings pending or, to the best knowledge of the Company, threatened against or affecting the Company or any Subsidiary or any property of the Company or any Subsidiary in any court or before any arbitrator of any kind or before or by any Governmental Authority that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(b) Neither the Company nor any Subsidiary is (i) in violation of any order, judgment, decree or ruling of any court, any arbitrator of any kind or any Governmental Authority or (ii) in violation of any applicable law, ordinance, rule or regulation of any Governmental Authority (including Environmental Laws, the USA PATRIOT Act or any of the other laws and regulations that are referred to in Section 5.16), which violation would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 5.9. Taxes. The Company and its Subsidiaries have filed all tax returns that are required to have been filed in any jurisdiction, and have paid all taxes shown to be due and payable on such returns and all other taxes and assessments payable by them, to the extent such taxes and assessments have become due and payable and before they have become delinquent, except where failure to file such tax returns or pay any such tax or assessment would not have a Material Adverse Effect, and except for any taxes and assessments (a) the amount of which, individually or in the aggregate, is not Material or (b) the amount, applicability or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which the Company or a Subsidiary, as the case may be, has established adequate reserves in accordance with GAAP. The charges, accruals and reserves on the books of the Company and its Subsidiaries in respect of U.S. federal, state or other taxes for all fiscal periods are adequate, except for defects therein that would not have a Material Adverse Effect. The U.S. federal income tax liabilities of the Company and its Subsidiaries have been finally determined (whether by reason of completed audits or the statute of limitations having run) for all fiscal years up to and including the fiscal year ended December 31, 2017, except where any defects in such determination that, individually or in the aggregate, would not have a Material Adverse Effect.
Section 5.10. Title to Property; Leases. The Company and its Subsidiaries have good and sufficient title to their respective Material properties, in each case free and clear of Liens prohibited by this Agreement, except for those defects in title and Liens that, individually or in the aggregate, would not have a Material Adverse Effect. All Material leases are valid and subsisting and are in full force and effect except for defects in Material leases that, individually or in the aggregate, would not have a Material Adverse Effect.
Section 5.11. Licenses, Permits, Etc. The Company and its Subsidiaries own or possess all licenses, permits, franchises, authorizations, patents, copyrights, proprietary software, service marks, trademarks and trade names, or rights thereto, that individually or in the aggregate are Material, without known conflict with the rights of others, except for failures to own or conflicts that, individually or in the aggregate, would not have a Material Adverse Effect.
Section 5.12. Compliance with Employee Benefit Plans.
(a) Each Obligor and each ERISA Affiliate have operated and administered each Plan in compliance with all applicable laws except for such instances of noncom-pliance as have not resulted in and could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. No Obligor nor any ERISA Affiliate has incurred any liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans (as defined in section 3 of ERISA), and no event, transaction or condition has occurred or exists that would, individually or in the aggregate, reasonably be expected to result in the incurrence of any such liability by any Obligor or any ERISA Affiliate, or in the imposition of any Lien on any of the rights, properties or assets of any Obligor or any ERISA Affiliate, in either case pursuant to Title I or IV of ERISA or to section 430(k) of the Code or to any such penalty or excise tax provisions under the Code or federal law or section 4068 of ERISA or by the granting of a security interest in connection with the amendment of a Plan, other than such liabilities or Liens as would not be individually or in the aggregate Material.
(b) The present value of the aggregate benefit liabilities under each of the Plans (other than Multiemployer Plans), determined as of the end of such Plan’s most recently ended plan year on the basis of the actuarial assumptions specified for funding purposes in such Plan’s most recent actuarial valuation report, did not exceed the aggregate current value of the assets of such Plan allocable to such benefit liabilities. The term “benefit liabilities” has the meaning specified in section 4001 of ERISA and the terms “current value” and “present value” have the meaning specified in section 3 of ERISA.
(c) No Obligor nor any of its ERISA Affiliates has incurred withdrawal liabilities (and are not subject to contingent withdrawal liabilities) under section 4201 or 4204 of ERISA in respect of Multiemployer Plans that individually or in the aggregate are Material.
(d) The expected postretirement benefit obligation (determined as of the last day of the Company’s most recently ended fiscal year in accordance with Financial Accounting Standards Board Accounting Standards Codification Topic 715-60, without regard to liabilities attributable to continuation coverage mandated by section 4980B of the Code) of the Company and its Subsidiaries is not Material.
(e) The execution and delivery of this Agreement and the issuance and sale of the Notes hereunder will not involve any transaction that is subject to the prohibitions of section 406 of ERISA or in connection with which a tax could be imposed pursuant to section 4975(c)(1)(A)-(D) of the Code. The representation by the Obligors to each Purchaser in the
first sentence of this Section 5.12(e) is made in reliance upon and subject to the accuracy of such Purchaser’s representation in Section 6.2 as to the sources of the funds to be used to pay the purchase price of the Notes to be purchased by such Purchaser.
(f) Neither the Company nor any Subsidiary of the Company maintains or contributes to (or has an obligation to contribute to, or any liability to) any Non-U.S. Plan.
Section 5.13. Private Offering by the Company. No Obligor nor anyone acting on its behalf has offered the Notes or any similar Securities for sale to, or solicited any offer to buy the
Notes or any similar Securities from, or otherwise approached or negotiated in respect thereof with, any Person other than the Purchasers and not more than 90 other Institutional Investors, each of which has been offered the Notes at a private sale for investment. No Obligor nor anyone acting on its behalf has taken, or will take, any action that would subject the issuance or sale of the Notes to the registration requirements of section 5 of the Securities Act or to the registration requirements of any Securities or blue sky laws of any applicable jurisdiction.
Section 5.14. Use of Proceeds; Margin Regulations. The Company will use the proceeds of the sale of the Notes hereunder for (a) capital contributions to any CIM Fund or Affiliate, (b) seed capital for new platforms, (c) financing for new acquisitions, (d) the payment of dividends and other distributions and (e) other working capital or general corporate purposes. The Company is not engaged principally, or as one of its important activities, in the business of extending credit for the purpose, whether immediate, incidental or ultimate, of buying or carrying margin stock, and no part of the proceeds from the sale of the Notes hereunder will be used, directly or indirectly, for the purpose of buying or carrying any margin stock in violation of Regulation U of the Board of Governors of the Federal Reserve System (12 CFR 221), or for the purpose of buying or carrying or trading in any Securities under such circumstances as to involve the Company in a violation of Regulation X of said Board (12 CFR 224) or to involve any broker or dealer in a violation of Regulation T of said Board (12 CFR 220). Margin stock does not constitute more than 25% of the value of the consolidated assets of the Company and its Subsidiaries and the Company does not have any present intention that margin stock will constitute more than 25% of the value of such assets. As used in this Section, the terms “margin stock” and “purpose of buying or carrying” shall have the meanings assigned to them in said Regulation U.
Section 5.15. Existing Indebtedness. Except as described therein, Schedule 5.15 sets forth a complete and correct list of all outstanding Indebtedness of the Company and its Subsidiaries, the outstanding principal amount of which individually exceeds $2,500,000, as of August 30, 2022 (including descriptions of the obligors and obligees, principal amounts outstanding, any collateral therefor and any Guaranty thereof), since which date there has been no Material change in the amounts, interest rates, sinking funds, installment payments or maturities of the Indebtedness of the Company or its Subsidiaries; provided that the aggregate principal amount of all outstanding Indebtedness of the Company and its Subsidiaries as of such date that is not listed on such Schedule 5.15 does not exceed $10,000,000. Neither the Company nor any Subsidiary is in default and no waiver of default is currently in effect, in the payment of any principal or interest on any Indebtedness of the Company or such Subsidiary and no event or condition exists with respect to any Indebtedness of the Company or any Subsidiary the outstanding principal amount of which exceeds $10,000,000 that would permit (or that with notice or the lapse of time, or both, would permit) one or more Persons to cause such Indebtedness to
become due and payable before its stated maturity or before its regularly scheduled dates of payment.
Section 5.16. Foreign Assets Control Regulations, Etc.
(a) No Obligor nor any Controlled Entity (i) is a Blocked Person, (ii) has been notified that its name appears or may in the future appear on a State Sanctions List or (iii) is a target of sanctions that have been imposed by the United Nations or the European Union.
(b) No Obligor nor any Controlled Entity (i) has violated, been found in violation of, or been charged or convicted under, any applicable U.S. Economic Sanctions Laws, Anti-Money Laundering Laws or Anti-Corruption Laws or (ii) to the Company’s knowledge, is under investigation by any Governmental Authority for possible violation of any U.S. Economic Sanctions Laws, Anti-Money Laundering Laws or Anti-Corruption Laws.
(c) No part of the proceeds from the sale of the Notes hereunder:
(i) constitutes or will constitute funds obtained on behalf of any Blocked Person or will otherwise be used any Obligor or any Controlled Entity, directly or indirectly, (A) in connection with any investment in, or any transactions or dealings with, any Blocked Person, (B) for any purpose that would cause any Purchaser to be in violation of any U.S. Economic Sanctions Laws or (C) otherwise in violation of any U.S. Economic Sanctions Laws;
(ii) will be used, directly or indirectly, in violation of, or cause any Purchaser to be in violation of, any applicable Anti-Money Laundering Laws; or
(iii) will be used, directly or indirectly, for the purpose of making any improper payments, including bribes, to any Governmental Official or commercial counterparty in order to obtain, retain or direct business or obtain any improper advantage, in each case which would be in violation of, or cause any Purchaser to be in violation of, any applicable Anti-Corruption Laws.
(d) Each Obligor has established procedures and controls which it reasonably believes are adequate (and otherwise comply with applicable law) to ensure that the Company and each Controlled Entity is and will continue to be in compliance with all applicable U.S. Economic Sanctions Laws, Anti-Money Laundering Laws and Anti-Corruption Laws.
Section 5.17. Status under Certain Statutes. Neither the Company nor any Subsidiary is subject to regulation under the Public Utility Holding Company Act of 2005, the ICC Termination Act of 1995, or the Federal Power Act. Neither the Company nor any Subsidiary is or is required to register as an “investment company” under the Investment Company Act of 1940, as amended.
SECTION 6. REPRESENTATIONS OF THE PURCHASERS.
Section 6.1. Purchase for Investment. Each Purchaser severally represents that it is purchasing the Notes for its own account or for one or more separate accounts maintained by such Purchaser or for the account of one or more pension or trust funds and not with a view to the distribution thereof, provided that the disposition of such Purchaser’s or their property shall at all times be within such Purchaser’s or their control. Each Purchaser understands that the Notes have not been registered under the Securities Act and may be resold only if registered pursuant to the provisions of the Securities Act or if an exemption from registration is available, except under circumstances where neither such registration nor such an exemption is required by law, and that the Company is not required to register the Notes.
Section 6.2. Source of Funds. Each Purchaser severally represents that at least one of the following statements is an accurate representation as to each source of funds (a “Source”) to be used by such Purchaser to pay the purchase price of the Notes to be purchased by such Purchaser hereunder:
(a) the Source is an “insurance company general account” (as the term is defined in the United States Department of Labor’s Prohibited Transaction Exemption (“PTE”) 95-60) in respect of which the reserves and liabilities (as defined by the annual statement for life insurance companies approved by the NAIC (the “NAIC Annual Statement”)) for the general account contract(s) held by or on behalf of any employee benefit plan together with the amount of the reserves and liabilities for the general account contract(s) held by or on behalf of any other employee benefit plans maintained by the same employer (or affiliate thereof as defined in PTE 95-60) or by the same employee organization in the general account do not exceed 10% of the total reserves and liabilities of the general account (exclusive of separate account liabilities) plus surplus as set forth in the NAIC Annual Statement filed with such Purchaser’s state of domicile; or
(b) the Source is a separate account that is maintained solely in connection with such Purchaser’s fixed contractual obligations under which the amounts payable, or credited, to any employee benefit plan (or its related trust) that has any interest in such separate account (or to any participant or beneficiary of such plan (including any annuitant)) are not affected in any manner by the investment performance of the separate account; or
(c) the Source is either (i) an insurance company pooled separate account, within the meaning of PTE 90-1 or (ii) a bank collective investment fund, within the meaning of the PTE 91-38 and, except as disclosed by such Purchaser to the Company in writing pursuant to this clause (c), no employee benefit plan or group of plans maintained by the same employer or employee organization beneficially owns more than 10% of all assets allocated to such pooled separate account or collective investment fund; or
(d) the Source constitutes assets of an “investment fund” (within the meaning of Part VI of PTE 84-14 (the “QPAM Exemption”)) managed by a “qualified professional asset manager” or “QPAM” (within the meaning of Part VI of the QPAM Exemption), no employee benefit plan’s assets that are managed by the QPAM in such investment fund, when combined with the assets of all other employee benefit plans established or maintained by the same employer or by an affiliate (within the meaning of Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and
managed by such QPAM, represent more than 20% of the total client assets managed by such QPAM, the conditions of Part I(c) and (g) of the QPAM Exemption are satisfied, neither the QPAM nor a person controlling or controlled by the QPAM maintains an ownership interest in the Company that would cause the QPAM and the Company to be “related” within the meaning of Part VI(h) of the QPAM Exemption and (i) the identity of such QPAM and (ii) the names of any employee benefit plans whose assets in the investment fund, when combined with the assets of all other employee benefit plans established or maintained by the same employer or by an affiliate (within the meaning of Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee
organization, represent 10% or more of the assets of such investment fund, have been disclosed to the Company in writing pursuant to this clause (d);or
(e) the Source constitutes assets of a “plan(s)” (within the meaning of Part IV(h) of PTE 96-23 (the “INHAM Exemption”)) managed by an “in-house asset manager” or “INHAM” (within the meaning of Part IV(a) of the INHAM Exemption), the conditions of Part I(a), (g) and (h) of the INHAM Exemption are satisfied, neither the INHAM nor a person controlling or controlled by the INHAM (applying the definition of “control” in Part IV(d)(3) of the INHAM Exemption) owns a 10% or more interest in the Company and (i) the identity of such INHAM and (ii) the name(s) of the employee benefit plan(s) whose assets constitute the Source have been disclosed to the Company in writing pursuant to this clause (e); or
(f) the Source is a governmental plan; or
(g) the Source is one or more employee benefit plans, or a separate account or trust fund comprised of one or more employee benefit plans, each of which has been identified to the Company in writing pursuant to this clause (g); or
(h) the Source does not include assets of any employee benefit plan, other than a plan exempt from the coverage of ERISA.
As used in this Section 6.2, the terms “employee benefit plan,” “governmental plan,” and “separate account” shall have the respective meanings assigned to such terms in section 3 of ERISA.
SECTION 7. INFORMATION AS TO COMPANY.
Section 7.1. Financial and Business Information. The Company shall deliver to each holder of a Note that is an Institutional Investor:
(a) Quarterly Statements — within 75 days (or such shorter period as is the date by which such financial statements are required to be delivered under any Material Credit Facility or the date on which such corresponding financial statements are delivered under any Material Credit Facility if such delivery occurs earlier than such required delivery date) after the end of each quarterly fiscal period in each fiscal year of the Company (other than the last quarterly fiscal period of each such fiscal year), duplicate copies of,
(i) a consolidated balance sheet of the Company and its Subsidiaries as at the end of such quarter, and
(ii) consolidated statements of income, changes in shareholders’ equity and cash flows of the Company and its Subsidiaries, for such quarter and (in the case of the second and third quarters) for the portion of the fiscal year ending with such quarter,
setting forth in each case in comparative form the figures for the corresponding periods in the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP
applicable to quarterly financial statements generally, and certified by a Senior Financial Officer as fairly presenting, in all material respects, the financial position of the companies being reported on and their results of operations and cash flows, subject to changes resulting from year-end adjustments;
(b) Annual Statements — within 120 days (or such shorter period as is the date by which such financial statements are required to be delivered under any Material Credit Facility or the date on which such corresponding financial statements are delivered under any Material Credit Facility if such delivery occurs earlier than such required delivery date) after the end of each fiscal year of the Company, duplicate copies of
(i) a consolidated balance sheet of the Company and its Subsidiaries as at the end of such year, and
(ii) consolidated statements of income, changes in shareholders’ equity and cash flows of the Company and its Subsidiaries for such year,
setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP, and accompanied by an opinion thereon (without a “going concern” or similar qualification or exception and without any qualification or exception as to the scope of the audit on which such opinion is based, in each case, other than any such qualification or exception arising from or relating to (1) an anticipated breach of a financial covenant under this Agreement, or (2) an upcoming maturity date under any Indebtedness) of independent public accountants of recognized national standing, which opinion shall state that such financial statements present fairly, in all material respects, the financial position of the companies being reported upon and their results of operations and cash flows and have been prepared in conformity with GAAP, and that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, and that such audit provides a reasonable basis for such opinion in the circumstances; provided that, if such financial statements are delivered with the qualification set forth in clause (1) above, upon the request of any holder the Company will promptly arrange a telephone conference call for all holders of Notes for consultation by such holders regarding such anticipated breach and qualification;
(c) SEC and Other Reports — promptly upon their becoming available, one copy of (i) each financial statement, report, notices of default, or similar document sent by the Company or any Subsidiary to its creditors under any Material Credit Facility
(excluding information sent to such creditors in the ordinary course of administration of a credit facility, such as information relating to pricing and borrowing availability) and
(ii) each regular or periodic report, each registration statement (without exhibits except as expressly requested by such holder), and each prospectus and all amendments thereto filed by the Company or any Subsidiary with the SEC;
(d) Notice of Default or Event of Default — promptly, and in any event within five (5) Business Days after a Responsible Officer becoming aware of the existence of any
Default or Event of Default, a written notice specifying the nature and period of existence thereof and what action the Company is taking or proposes to take with respect thereto;
(e) Employee Benefits Matters — promptly, and in any event within 5 days after a Responsible Officer becoming aware of any of the following, a written notice setting forth the nature thereof and the action, if any, that the Company or an ERISA Affiliate proposes to take with respect thereto:
(i) with respect to any Plan, any reportable event, as defined in section 4043(c) of ERISA and the regulations thereunder, for which notice thereof has not been waived pursuant to such regulations as in effect on the date hereof;
(ii) the taking by the PBGC of steps to institute, or the threatening by the PBGC of the institution of, proceedings under section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan, or the receipt by the Company or any ERISA Affiliate of a notice from a Multiemployer Plan that such action has been taken by the PBGC with respect to such Multiemployer Plan;
(iii) any event, transaction or condition that could result in the incurrence of any liability by the Company or any ERISA Affiliate pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans, or in the imposition of any Lien on any of the rights, properties or assets of the Company or any ERISA Affiliate pursuant to Title I or IV of ERISA or such penalty or excise tax provisions, if such liability or Lien, taken together with any other such liabilities or Liens then existing, would reasonably be expected to have a Material Adverse Effect; or
(iv) receipt of notice of the imposition of a Material financial penalty (which for this purpose shall mean any tax, penalty or other liability, whether by way of indemnity or otherwise) with respect to one or more Non-U.S. Plans;
(f) Resignation or Replacement of Auditors — within ten (10) days following the date on which the Company’s auditors resign or the Company elects to change auditors, as the case may be, notification thereof, together with such further information as the Required Holders may request;
(g) Debt Rating — promptly following the occurrence thereof, notice of any change in the Debt Rating for any Series of Notes (to the extent such Debt Rating is not a public rating); and
(h) Requested Information — with reasonable promptness, such other data and information relating to the business, operations, affairs, financial condition, assets or properties of the Company or any of its Subsidiaries (including actual copies of the Company’s Form 10-Q and Form 10-K) or relating to the ability of the Company to perform its obligations hereunder and under the Notes as from time to time may be reasonably requested by any such holder of a Note, to the extent such other data and information can be reasonably provided. Notwithstanding anything to the contrary contained herein, the Company shall not be required to disclose any document, information
or other matter (i) that constitutes trade secrets or proprietary information, (ii) in respect of which disclosure to any Purchaser is prohibited by any applicable Law or any binding agreement with a third party (so long as such agreement is not entered into in contemplation of this Agreement) or (iii) that is subject to attorney-client privilege or similar privilege which could reasonably be expected to be lost or forfeited if disclosed to the Purchasers.
Section 7.2. Officer’s Certificate. Each set of financial statements delivered to a holder of a Note pursuant to Section 7.1(a) or Section 7.1(b) shall be accompanied by a certificate of a Senior Financial Officer:
(a) Covenant Compliance — setting forth (i) the information from such financial statements that is required in order to establish whether the Company was in compliance with the requirements of Section 10 and the Additional Provisions, if any, during the quarterly or annual period covered by the financial statements then being furnished, (including with respect to each such provision that involves mathematical calculations, the information from such financial statements that is required to perform such calculations) and reasonably detailed calculations of the maximum or minimum amount, ratio or percentage, as the case may be, permissible under the terms of such Section, and the calculation of the amount, ratio or percentage then in existence and (ii) a reconciliation of the treatment of leases which would be deemed by GAAP as in effect prior to December 31, 2015 to be treated as operating leases, in form reasonably satisfactory to the Required Holders. In the event that the Company or any Subsidiary has made an election to measure any financial liability using fair value (which election is being disregarded for purposes of determining compliance with this Agreement pursuant to Section 22.2) as to the period covered by any such financial statement, such Senior Financial Officer’s certificate as to such period shall include a reconciliation from GAAP with respect to such election;
(b) Event of Default — certifying that such Senior Financial Officer has reviewed the relevant terms hereof and has made, or caused to be made, under his or her supervision, a review of the transactions and conditions of the Company and its Subsidiaries from the beginning of the quarterly or annual period covered by the statements then being furnished to the date of the certificate and that such review shall not have disclosed the existence during such period of any condition or event that constitutes a Default or an Event of Default or, if any such condition or event existed or exists, specifying the nature and period of existence thereof and what action the Company shall have taken or proposes to take with respect thereto; and
(c) Subsidiary Guarantors – setting forth a list of all Subsidiaries that are Subsidiary Guarantors and certifying that each Subsidiary that is required to be a Subsidiary Guarantor pursuant to Section 9.7 is a Subsidiary Guarantor, in each case, as of the date of such certificate of Senior Financial Officer.
Section 7.3. Visitation. The Company shall permit the representatives of each holder of a Note that is an Institutional Investor:
(a) No Default — if no Default or Event of Default then exists, at the expense of such holder and upon reasonable prior notice to the Company, to visit the principal executive office of the Company, to discuss the affairs, finances and accounts of the Company and its Subsidiaries with the Company’s officers, and (with the consent of the Company, which consent will not be unreasonably withheld) to visit the other offices and properties of the Company and each Subsidiary, all at such reasonable times and as often as may be reasonably requested in writing; and
(b) Default — if a Default or Event of Default then exists, at the expense of the Company to visit and inspect any of the offices or properties of the Company or any Subsidiary, to examine all their respective books of account, records, reports and other papers, to make copies and extracts therefrom, and to discuss their respective affairs, finances and accounts with their respective officers and independent public accountants (and by this provision the Company authorizes said accountants to discuss the affairs, finances and accounts of the Company and its Subsidiaries), all during regular business hours and as often as may be reasonably requested.
Section 7.4. Electronic Delivery. Financial statements, opinions of independent certified public accountants, other information and Officer’s Certificates that are required to be delivered by the Company pursuant to Sections 7.1(a), (b) or (c) and Section 7.2 shall be deemed to have been delivered if the Company satisfies any of the following requirements with respect thereto:
(a) such financial statements satisfying the requirements of Section 7.1(a) or
(b) and related Officer’s Certificate satisfying the requirements of Section 7.2 and any other information required under Section 7.1(c) are delivered to each holder of a Note by e-mail at the e-mail address set forth in such holder’s Purchaser Schedule or as communicated from time to time in a separate writing delivered to the Company;
(b) the Company shall have timely filed such Form 10–Q or Form 10–K, satisfying the requirements of Section 7.1(a) or Section 7.1(b), as the case may be, with the SEC on EDGAR and shall have made such form and the related Officer’s Certificate satisfying the requirements of Section 7.2 available on its home page on the internet, which is located at https://www.cimgroup.com/ as of the date of this Agreement or as otherwise provided to the holders from time to time;
(c) such financial statements satisfying the requirements of Section 7.1(a) or Section 7.1(b) and related Officer’s Certificate(s) satisfying the requirements of Section
7.2 and any other information required under Section 7.1(c) are timely posted by or on behalf of the Company on Intralinks or on any other similar website to which each holder of Notes has free access; or
(d) the Company shall have timely filed any of the items referred to in Section 7.1(c) with the SEC on EDGAR and shall have made such items available on its home page on the internet or on Intralinks or on any other similar website to which each holder of Notes has free access;
provided however, that in no case shall access to such financial statements, other information and Officer’s Certificates be conditioned upon any waiver or other agreement or consent (other than confidentiality provisions consistent with Section 20 of this Agreement); provided further, that in the case of any of clauses (b), (c) or (d), the Company shall have given each holder of a Note prior written notice, which may be by e-mail or in accordance with Section 18, of such posting or filing in connection with each delivery, provided further, that upon request of any holder to receive paper copies of such forms, financial statements, other information and Officer’s Certificates or to receive them by e-mail, the Company will promptly e-mail them or deliver such paper copies, as the case may be, to such holder.
SECTION 8. PAYMENT AND PREPAYMENT OF THE NOTES.
Section 8.1. Maturity. As provided therein, the entire unpaid principal balance of each Note shall be due and payable on the Maturity Date thereof.
Section 8.2. Optional Prepayments with Make-Whole Amount. The Company may, at its option, upon notice as provided below, prepay at any time all, or from time to time any part of, the Notes of any Series, in an amount not less than $5,000,000 in the case of a partial prepayment, at 100% of the principal amount so prepaid, and the Make-Whole Amount determined for the prepayment date with respect to such principal amount; provided that, so long as no Default or Event of Default has occurred and is continuing, the Company may prepay the Notes of any Series at 100% of the principal amount so prepaid without any Make-Whole Amount if such Notes are prepaid on or after the date that is 120 days prior to the Maturity Date of the applicable Series of Notes; provided, further, that if there is a Default or Event of Default then in existence or would be caused thereby, any prepayment pursuant to this Section 8.2 shall be of all Series of Notes then outstanding. The Company will give each holder of a Note of the Series to be prepaid (with a copy to each other holder of a Note without regard to Series) written notice of each optional prepayment under this Section 8.2 not less than six (6) Business Days and not more than sixty (60) days prior to the date fixed for such prepayment unless the Company and the Required Holders agree to another time period pursuant to Section 17; provided that such notice may be conditioned upon the consummation of a financing or other corporate transaction or the occurrence of a corporate event reflected in such notice of prepayment, and the Company may terminate such prepayment notice upon not less than three (3) Business Days prior written notice to the holders. Each such notice shall specify such date (which shall be a Business Day), the aggregate principal amount of the Notes of each Series to be prepaid on such date, the principal amount of each Note of each such Series held by such holder to be prepaid (determined in accordance with Section 8.3), the
interest to be paid on the prepayment date with respect to such principal amount being prepaid, and any conditions precedent to the occurrence of the prepayment, and shall be accompanied by a certificate of a Senior Financial Officer as to the estimated Make-Whole Amount due in connection with such prepayment (calculated as if the date of such notice were the date of the prepayment), setting forth the details of such computation. Two (2) Business Days prior to such prepayment, the Company shall deliver to each holder of Notes to be prepaid a certificate of a Senior Financial Officer specifying the calculation of such Make-Whole Amount as of the specified prepayment date.
Section 8.3. Allocation of Partial Prepayments. In the case of each partial prepayment of the Notes pursuant to Section 8.2, the principal amount of the Notes to be prepaid shall be
allocated among all of the Notes of each Series to be prepaid at the time outstanding in proportion, as nearly as practicable, to the respective unpaid principal amounts thereof not theretofore called for prepayment.
Section 8.4. Maturity; Surrender, Etc. In the case of each prepayment of Notes of any Series pursuant to this Section 8, the principal amount of each Note to be prepaid shall mature and become due and payable on the date fixed for such prepayment, together with interest on such principal amount accrued to such date and the applicable Make-Whole Amount, if any. From and after such date, unless the Company shall fail to pay such principal amount when so due and payable, together with the interest and Make-Whole Amount, if any, as aforesaid, interest on such principal amount shall cease to accrue. Any Note paid or prepaid in full shall be surrendered to the Company and cancelled and shall not be reissued, and no Note shall be issued in lieu of any prepaid principal amount of any Note.
Section 8.5. Purchase of Notes. The Company will not and will not permit any Affiliate to purchase, redeem, prepay or otherwise acquire, directly or indirectly, any of the outstanding Notes of any Series except (a) upon the payment or prepayment of the Notes in accordance with this Agreement and the Notes or (b) pursuant to an offer to purchase made by the Company or an Affiliate pro rata to the holders of all Notes of any Series (with a copy to each other holder of a Note without regard to Series) at the time outstanding upon the same terms and conditions (except to the extent necessary to reflect differences in the interest rates and maturities of the Notes of different Series); provided, that if there is a Default or Event of Default then in existence or would be caused thereby, any offer pursuant to this Section 8.5 shall be made to the holders of all Series of Notes then outstanding. Any such offer shall provide each holder of each Series receiving such offer with sufficient information to enable it to make an informed decision with respect to such offer, and shall remain open for at least 20 Business Days. If the holders of more than 50% of the principal amount of the Notes of any Series, or more than 50% of the aggregate principal amount of all of the Series receiving such offer, then outstanding accept such offer, the Company shall promptly notify the remaining holders of such Series or all of such Series, as the case may be, of such fact and the expiration date for the acceptance by holders of such Notes of such offer shall be extended by the number of days necessary to give each such remaining holder of each such Series at least 10 Business Days from its receipt of such notice to accept such offer. The Company will promptly cancel all Notes acquired by it or any Affiliate pursuant to any payment, prepayment or purchase of Notes pursuant to this Agreement and no Notes may be issued in substitution or exchange for any such Notes.
Section 8.6. Make-Whole Amount.
The term “Make-Whole Amount” means, with respect to any Note of any Series, an amount equal to the excess, if any, of the Discounted Value of the Remaining Scheduled Payments with respect to the Called Principal of such Note of such Series over the amount of such Called Principal, provided that the Make-Whole Amount may in no event be less than zero. For the purposes of determining the Make-Whole Amount, the following terms have the following meanings:
“Called Principal” means, with respect to any Note of any Series, the principal of such Note that is to be prepaid pursuant to Section 8.2 or has become or is declared to be immediately due and payable pursuant to Section 12.1, as the context requires.
“Discounted Value” means, with respect to the Called Principal of any Note of any Series, the amount obtained by discounting all Remaining Scheduled Payments with respect to such Called Principal from their respective scheduled due dates to the Settlement Date with respect to such Called Principal, in accordance with accepted financial practice and at a discount factor (applied on the same periodic basis as that on which interest on the Notes of such Series is payable) equal to the Reinvestment Yield with respect to such Called Principal.
“Reinvestment Yield” means, with respect to the Called Principal of any Note of any Series, the sum of (a) 0.50% plus (b) the yield to maturity implied by the “Ask Yield(s)” reported as of 10:00 a.m. (New York City time) on the second Business Day preceding the Settlement Date with respect to such Called Principal, on the display designated as “Page PX1” (or such other display as may replace Page PX1) on Bloomberg Financial Markets for the most recently issued actively traded on-the-run U.S. Treasury securities (“Reported”) having a maturity equal to the Remaining Average Life of such Called Principal as of such Settlement Date. If there are no such
U.S. Treasury securities Reported having a maturity equal to such Remaining Average Life, then such implied yield to maturity will be determined by (i) converting U.S. Treasury bill quotations to bond equivalent yields in accordance with accepted financial practice and (ii) interpolating linearly between the “Ask Yields” Reported for the applicable most recently issued actively traded on-the-run U.S. Treasury securities with the maturities (1) closest to and greater than such Remaining Average Life and (2) closest to and less than such Remaining Average Life. The Reinvestment Yield shall be rounded to the number of decimal places as appears in the interest rate of the applicable Note of such Series.
If such yields are not Reported or the yields Reported as of such time are not ascertainable (including by way of interpolation), then “Reinvestment Yield” means, with respect to the Called Principal of any Note of any Series, the sum of (x) 0.50% plus (y) the yield to maturity implied by the U.S. Treasury constant maturity yields reported, for the latest day for which such yields have been so reported as of the second Business Day preceding the Settlement Date with respect to such Called Principal, in Federal Reserve Statistical Release H.15 (or any comparable successor publication) for the U.S. Treasury constant maturity having a term equal to the Remaining Average Life of such Called Principal as of such Settlement Date. If there is no such U.S. Treasury constant maturity having a term equal to such Remaining Average Life, such implied yield to maturity will be determined by interpolating linearly between (1) the U.S. Treasury constant maturity so reported with the term closest to and greater than such Remaining Average Life and (2) the U.S.
Treasury constant maturity so reported with the term closest to and less than such Remaining Average Life. The Reinvestment Yield shall be rounded to the number of decimal places as appears in the interest rate of the applicable Note of such Series.
“Remaining Average Life” means, with respect to any Called Principal of any Series, the number of years obtained by dividing (i) such Called Principal into (ii) the sum of the products obtained by multiplying (a) the principal component of each Remaining Scheduled Payment with respect to such Called Principal by (b) the number of years, computed on the basis of a 360-day year comprised of twelve 30-day months and calculated to two decimal places, that will elapse
between the Settlement Date with respect to such Called Principal and the scheduled due date of such Remaining Scheduled Payment.
“Remaining Scheduled Payments” means, with respect to the Called Principal of any Note of any Series, all payments of such Called Principal and interest thereon that would be due after the Settlement Date with respect to such Called Principal if no payment of such Called Principal were made prior to its scheduled due date, provided that if such Settlement Date is not a date on which interest payments are due to be made under the Notes of such Series, then the amount of the next succeeding scheduled interest payment will be reduced by the amount of interest accrued to such Settlement Date and required to be paid on such Settlement Date pursuant to Section 8.2 or Section 12.1.
“Settlement Date” means, with respect to the Called Principal of any Note of any Series, the date on which such Called Principal is to be prepaid pursuant to Section 8.2 or has become or is declared to be immediately due and payable pursuant to Section 12.1, as the context requires.
Section 8.7. Change of Control Prepayment.
(a) Within ten (10) Business Days following the date of any Change of Control, the Company shall give written notice of such Change of Control (a “Change of Control Notice”) to each holder of a Note, which shall contain and constitute an offer to prepay (the “Change of Control Offer”) the entire unpaid principal amount of Notes issued by it that are held by such holder, together with any accrued and unpaid interest thereon (without any Make-Whole Amount) on a date specified in such Change of Control Notice, which date shall be a Business Day not less than 30 days and not more than 60 days after the date of such Change of Control Notice (the “Change of Control Prepayment Date”) (if such date shall not be specified in such Change of Control Notice, the Change of Control Prepayment Date shall be the first Business Day after the 45th day after the date of such Change of Control Notice). The Change of Control Notice shall (i) describe the facts and circumstances of such Change of Control in reasonable detail, (ii) refer to this Section 8.7 and the rights of the holders hereunder, (iii) contain the Change of Control Offer, (iv) state the amount of interest that would be paid on such Change of Control Prepayment Date with respect to such holder’s Notes, and (v) request that such holder notify the Company in writing by a stated date (the “Change of Control Acceptance Notification Date”), which date shall not be less than 20 days after such holder’s receipt of such Change of Control Notice, if such holder wishes its Notes to be so prepaid.
(b) To accept an offer of prepayment set forth in a Change of Control Notice, a holder of a Note shall cause a written notice of such acceptance to be delivered to the Company on or before the Change of Control Acceptance Notification Date. If a holder does not notify the Company on or before the Change of Control Acceptance Notification Date of such holder’s acceptance or rejection of the prepayment offer contained in the Change of Control Notice, then the holder shall be deemed to have rejected the prepayment offer.
(c) On the Change of Control Prepayment Date, the entire outstanding principal amount of the Notes held by each holder of a Note that has accepted such prepayment offer,
together with any interest accrued thereon to the Change of Control Prepayment Date, shall become due and payable.
(d) Nothing in this Section 8.7 shall be construed to limit the rights or remedies of the holders following a Default or Event of Default.
Section 8.8. Payments Due on Non-Business Days. Anything in this Agreement or the Notes to the contrary notwithstanding, (x) except as set forth in clause (y), any payment of interest on any Note that is due on a date that is not a Business Day shall be made on the next succeeding Business Day without including the additional days elapsed in the computation of the interest payable on such next succeeding Business Day; and (y) any payment of principal of or Make-Whole Amount on any Note (including principal due on the Maturity Date of such Note) that is due on a date that is not a Business Day shall be made on the next succeeding Business Day and shall include the additional days elapsed in the computation of interest payable on such next succeeding Business Day.
Section 8.9. Below Investment Grade Rating Prepayment.
(a) Within ten (10) Business Days following the first date any of the Notes of any Series fail to have an Investment Grade Rating, the Company shall give written notice of such event (a “Below Investment Grade Rating Notice”) to each holder of a Note, which shall contain and constitute an offer to prepay (the “Below Investment Grade Rating Offer”) the entire unpaid principal amount of Notes issued by it that are held by such holder, together with any accrued and unpaid interest thereon (without any Make-Whole Amount) on a date specified in such Below Investment Grade Notice, which date shall be a Business Day not less than 30 days and not more than 60 days after the date of such Below Investment Grade Rating Notice (the “Below Investment Grade Rating Prepayment Date”) (if such date shall not be specified in such Below Investment Grade Rating Notice, the Below Investment Grade Rating Prepayment Date shall be the first Business Day after the 45th day after the date of such Below Investment Grade Rating Notice). The Below Investment Grade Rating Notice shall (i) describe the facts and circumstances of such ratings downgrade in reasonable detail, (ii) refer to this Section 8.9 and the rights of the holders hereunder, (iii) contain the Below Investment Grade Rating Offer, (iv) state the amount of interest that would be paid on such Below Investment Grade Rating Prepayment Date with respect to such holder’s Notes, and (v) request that such holder notify the Company in writing by a stated date (the “Below Investment Grade Rating Acceptance Notification Date”), which date shall not be less than 20 days after
such holder’s receipt of such Below Investment Grade Rating Notice, if such holder wishes its Notes to be so prepaid.
(b) To accept an offer of prepayment set forth in a Below Investment Grade Rating Notice, a holder of a Note shall cause a written notice of such acceptance to be delivered to the Company on or before the Below Investment Grade Rating Acceptance Notification Date. If a holder does not notify the Company on or before the Below Investment Grade Rating Acceptance Notification Date of such holder’s acceptance or rejection of the prepayment offer contained in the Below Investment Grade Rating Notice, then the holder shall be deemed to have rejected the prepayment offer.
(c) On the Below Investment Grade Rating Prepayment Date, the entire outstanding principal amount of the Notes held by each holder of a Note that has accepted such prepayment offer, together with any interest accrued thereon to the Below Investment Grade Rating Prepayment Date, shall become due and payable.
(d) Nothing in this Section 8.9 shall be construed to limit the rights or remedies of the holders following a Default or Event of Default.
SECTION 9. AFFIRMATIVE COVENANTS.
The Company covenants that so long as any of the Notes are outstanding:
Section 9.1. Compliance with Laws. Without limiting Section 10.4, the Company will, and will cause each of its Subsidiaries to, comply with all laws, ordinances or governmental rules or regulations to which each of them is subject (including ERISA, Environmental Laws, the USA PATRIOT Act and the other laws and regulations that are referred to in Section 5.16) and will obtain and maintain in effect all licenses, certificates, permits, franchises and other governmental authorizations necessary to the ownership of their respective properties or to the conduct of their respective businesses, in each case to the extent necessary to ensure that non-compliance with such laws, ordinances or governmental rules or regulations or failures to obtain or maintain in effect such licenses, certificates, permits, franchises and other governmental authorizations would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 9.2. Insurance. The Company will, and will cause each of its Subsidiaries to, maintain, with financially sound and reputable insurers, insurance with respect to their respective properties and businesses against such casualties and contingencies, of such types, on such terms and in such amounts (including deductibles, co-insurance and self-insurance, if adequate reserves are maintained with respect thereto) as is customary in the case of entities of established reputations engaged in the same or a similar business and similarly situated, except for any non-maintenance that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 9.3. Maintenance of Properties. The Company will, and will cause each of its Subsidiaries to, maintain and keep, or cause to be maintained and kept, their respective properties in good repair, working order and condition (other than ordinary wear and tear), so that the business carried on in connection therewith may be properly conducted at all times, provided that this Section 9.3 shall not prevent the Company or any Subsidiary from discontinuing the operation and
the maintenance of any of its properties if such discontinuance is desirable in the conduct of its business and the Company has concluded that such discontinuance would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 9.4. Payment of Taxes. The Company will, and will cause each of its Subsidiaries to, file all tax returns required to be filed in any jurisdiction and to pay and discharge all taxes shown to be due and payable on such returns and all other taxes, assessments, governmental charges or levies payable by any of them, to the extent the same have become due and payable and before they have become delinquent, provided that neither the Company nor any Subsidiary need pay any such tax, assessment, charge or levy if (i) the amount, applicability or
validity thereof is contested by the Company or such Subsidiary on a timely basis in good faith and in appropriate proceedings, and the Company or a Subsidiary has established adequate reserves therefor in accordance with GAAP on the books of the Company or such Subsidiary or
(ii) the failure to so file or nonpayment of all such taxes, assessments, charges and levies would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 9.5. Existence, Etc. Subject to Section 10.2, the Company will at all times preserve and keep its limited liability company existence in full force and effect. Subject to Sections 10.2 and 10.10, the Company will at all times preserve and keep in full force and effect the limited liability company, corporate, limited partnership or other legal entity, as applicable, existence of each of its Subsidiaries (unless merged into the Company or a Wholly-Owned Subsidiary) and all rights and franchises of the Company and its Subsidiaries unless, in the good faith judgment of the Company, the termination of or failure to preserve and keep in full force and effect such limited liability company, corporate, limited partnership or other legal entity existence, as applicable, right or franchise would not, individually or in the aggregate, have a Material Adverse Effect.
Section 9.6. Books and Records. The Company will, and will cause each of its Subsidiaries to, maintain proper books of record and account in conformity with GAAP in all material respects and all applicable requirements of any Governmental Authority having legal or regulatory jurisdiction over the Company or such Subsidiary, as the case may be, in all material respects.
Section 9.7. Subsidiary Guarantors.
(a) The Company (x) may at any time cause any of its Subsidiaries which is not already a Subsidiary Guarantor at such time to become a Subsidiary Guarantor by causing such Subsidiary to, and (y) will cause each of its Subsidiaries that guarantees or otherwise becomes liable at any time, whether as a borrower or an additional or co-borrower or otherwise, for or in respect of any Indebtedness under any Material Credit Facility or the Revolving Credit Agreement to concurrently therewith, in each case under clauses (x) or (y):
(i) enter into a Guarantor Supplement substantially in the form of Exhibit A attached to the form of Subsidiary Guaranty (a “Guarantor Supplement”);
(ii) deliver the following to each holder of a Note:
(A) an executed Guarantor Supplement;
(B) a certificate signed by an authorized responsible officer of such Subsidiary containing representations and warranties on behalf of such Subsidiary to the same effect, mutatis mutandis, as those contained in Sections 5.1, 5.2, 5.6, 5.7, 5.8, 5.9, 5.10, 5.11, 5.12,
5.16 and 5.17 of this Agreement (but with respect to such Subsidiary, such Guarantor Supplement and such Subsidiary Guaranty rather than the Company);
(C) all documents as may be reasonably requested by the Required Holders to evidence the due organization, continuing existence and, where applicable, good standing of such Subsidiary and the due authorization by all requisite action on the part of such Subsidiary of the execution and delivery of the Guarantor Supplement to which it is a party and the performance by such Subsidiary of its obligations thereunder and under the Subsidiary Guaranty; provided that documents delivered under this Section 9.7(a)(ii)(C) reasonably equivalent to those provided on the date of Closing shall be acceptable to the Required Holders; and
(D) an opinion of counsel reasonably satisfactory to the Required Holders covering such matters relating to such Subsidiary, such Guarantor Supplement and such Subsidiary Guaranty as the Required Holders may reasonably request; provided that an opinion of counsel delivered under this Section 9.7(a)(ii)(D) reasonably equivalent to the opinion of counsel provided on the date of Closing shall be acceptable to the Required Holders.
(b) At the election of the Company and by written notice to each holder of Notes, any Subsidiary Guarantor that has provided a Subsidiary Guaranty under subparagraph (a) of this Section 9.7 may be discharged from all of its obligations and liabilities under its Subsidiary Guaranty and shall be automatically released from its obligations thereunder without the need for the execution or delivery of any other document by the holders, provided that (i) if such Subsidiary Guarantor is a guarantor or is otherwise liable for or in respect of any Material Credit Facility or the Revolving Credit Agreement, then such Subsidiary Guarantor has been released and discharged (or will be released and discharged concurrently with the release of such Subsidiary Guarantor under its Subsidiary Guaranty) under such Material Credit Facility or the Revolving Credit Agreement, (ii) at the time of, and after giving effect to, such release and discharge, no Default or Event of Default shall be existing, (iii) no amount is then due and payable under such Subsidiary Guaranty, (iv) if in connection with such Subsidiary Guarantor being released and discharged under any Material Credit Facility or the Revolving Credit Agreement, any fee or other form of consideration is given to
any holder of Indebtedness under such Material Credit Facility or the Revolving Credit Agreement for such release, the holders of the Notes shall receive equivalent consideration substantially concurrently therewith and (v) each holder shall have received a certificate of a Responsible Officer certifying as to the matters set forth in clauses (i) through (iv). In the event of any such release, for purposes of Section 10.6, all Indebtedness of such Subsidiary shall be deemed to have been incurred concurrently with such release.
Section 9.8. Eligible Revenues. The Company will cause Eligible Revenues received directly by the Company or a Subsidiary Guarantor to be no less than the Eligible Revenue Percentage at any time. If an Event of Default shall have occurred and be continuing, the Obligors will enforce their respective rights at law and in equity to receive such Eligible Revenues in accordance with the terms of the Eligible Revenue agreements and/or other management agreements to which the Obligors are party.
Section 9.9. Registered Investment Adviser. The Company and each of its Subsidiaries that is required to register as an investment adviser with the SEC under the Investment Advisers Act will maintain its status as a registered investment adviser under the Investment Advisers Act and will remain in compliance with all of the requirements of the Investment Advisers Act that are applicable to it, except to the extent failure to maintain such status would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 9.10. Private Debt Rating.
(a) The Company will at all times maintain a Debt Rating (at no particular rating category) for each Series of Notes from an Acceptable Rating Agency.
(b) At any time that any Debt Rating maintained pursuant to clause (a) above is not a public rating, the Company will provide to each holder of a Note (i) at least annually (on or before each anniversary of the date of the Closing) and (ii) promptly upon any change in such Debt Rating, an updated Private Rating Letter evidencing each such Debt Rating and an updated Private Rating Rationale Report with respect to each such Debt Rating. In addition to the foregoing information, if the SVO or any other regulatory authority having jurisdiction over any holder of any Notes from time to time requires any additional information with respect to the Debt Rating of any Series of Notes or that the Private Rating Letter or the Private Rating Rationale Report include any such additional information, the Company shall use commercially reasonable efforts to procure such information from the Acceptable Rating Agency or to have the Acceptable Rating Agency include such additional information in the Private Rating Letter or the Private Rating Rationale Report, as applicable.
Section 9.11. Most Favored Lender.
(a) If at any time any Material Credit Facility includes any Financial Covenant (whether included as a new provision in such new or existing Material Credit Facility or by way of amendment or other modification of an existing provision or any defined term used therein) not included in this Agreement or that would be more beneficial to the holders
of the Notes than any analogous provision included in this Agreement (any such Financial Covenant, an “Additional Provision”), then the Company will, within five (5) Business Days after the inclusion of such Additional Provision in such Material Credit Facility, deliver written notice thereof to each holder of a Note. Such notice shall be signed by a Responsible Officer and shall refer to the provisions of this Section 9.11 and shall set forth a verbatim statement of such Additional Provision and any defined terms used therein, and related explanatory calculations, as applicable. Thereupon, unless waived in writing by the Required Holders within five (5) Business Days after receipt of such notice by the holders of the Notes, such Additional Provision (and any related definitions) will be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if set forth fully herein, without any further action required on the part of any Person, effective as of the date that such Additional Provision became effective under such Material Credit Facility. Thereafter, upon the request of any holder of a Note, the Company will, at its expense, enter into any additional agreement or amendment to this Agreement reasonably requested by such holder evidencing any of the foregoing.
(b) So long as no Default or Event of Default has occurred and is continuing:
(i) if any Additional Provision incorporated into this Agreement pursuant to this Section 9.11 is amended or otherwise modified in each relevant Material Credit Facility with the effect that such Additional Provision is made less restrictive or otherwise less onerous on the Company and its Subsidiaries, then such Additional Provision will be deemed so amended in this Agreement, without any further action required on the part of any Person, effective as of the date of such amendment or modification in each relevant Material Credit Facility,
(ii) if any Additional Provision incorporated into this Agreement pursuant to this Section 9.11 is removed from each relevant Material Credit Facility, then such Additional Provision will be deemed removed from this Agreement, without any further action required on the part of any Person, effective as of the date of such removal from each relevant Material Credit Facility, and
(iii) if each Material Credit Facility including an Additional Provision incorporated into this Agreement pursuant to this Section 9.11 is terminated and no amounts are outstanding thereunder, then such Additional Provision will be deemed removed from this Agreement, without any further action required on the part of any Person, effective as of the date of such termination,
provided that (x) except as provided in Section 17, this Agreement shall not be amended to remove any covenant, undertaking, event of default, restriction or other provision included in this Agreement (other than any Additional Provision included in this Agreement by operation of Section 9.11(a)) or to make any such provision less restrictive on the Company and its Subsidiaries, and (y) if any creditor or agent under any Material Credit Facility is provided any consideration for the amendment or other modification of such Material Credit Facility, then the holders of Notes shall (concurrently with the provision of such consideration to such creditor or agent) be provided with equivalent
consideration on a pro rata basis, and no such amendment, modification or removal of such Additional Provision in or from this Agreement shall be effective unless and until such equivalent consideration is provided to the holders of Notes.
For the avoidance of doubt, (1) the covenants set forth in Section 10.8 constitute Financial Covenants and (2) each of the Financial Covenants set forth in Section 10.8 as of the date of this Agreement (as they may be amended from time to time pursuant to Section 17) shall remain in this Agreement regardless of any such amendment or modification of any Additional Provision in or any such removal of any Additional Provision from any Material Credit Facility, or any such termination of any Material Credit Facility.
SECTION 10. NEGATIVE COVENANTS.
The Company covenants that so long as any of the Notes are outstanding:
Section 10.1. Transactions with Affiliates. The Company will not, and will not permit any Subsidiary to, enter into any Material transaction or Material group of related transactions
(including the purchase, lease, sale or exchange of properties of any kind or the rendering of any service) with any Affiliate (other than with any Obligor or another Subsidiary), except upon fair and reasonable terms that are not, taken as a whole, less favorable to the Company or such Subsidiary than would be obtainable in a comparable arm’s-length transaction with a Person not an Affiliate.
Section 10.2. Merger, Consolidation, Etc. The Company will not, and will not permit any Subsidiary Guarantor to, consolidate with or merge with any other Person or convey, transfer or lease all or substantially all of its assets in a single transaction or series of transactions to any Person unless:
(a) in the case of any such transaction involving the Company, the successor formed by such consolidation or the survivor of such merger or the Person that acquires by conveyance, transfer or lease all or substantially all of the assets of the Company as an entirety, as the case may be, shall be a solvent corporation, limited liability company, limited partnership or other legal entity organized and existing under the laws of the United States or any state thereof (including the District of Columbia), and, if the Company is not such corporation, limited liability company, limited partnership or other legal entity, (i) such corporation, limited liability company, limited partnership or other legal entity, as applicable, shall have executed and delivered to each holder of any Notes its assumption of the due and punctual performance and observance of each covenant and condition of the Financing Documents to which the Company is a party and (ii) such corporation, limited liability company, limited partnership or other legal entity, as applicable, shall have caused to be delivered to each holder of any Notes an opinion of nationally recognized independent counsel, or other independent counsel reasonably satisfactory to the Required Holders, to the effect that all agreements or instruments effecting such assumption are enforceable in accordance with their terms and comply with the terms hereof; provided that an opinion
substantially in the form delivered pursuant to Section 4.4(a) of this Agreement on the date of the Closing shall be deemed satisfactory to the Required Holders;
(b) in the case of any such transaction involving a Subsidiary Guarantor, the successor formed by such consolidation or the survivor of such merger or the Person that acquires by conveyance, transfer or lease all or substantially all of the assets of such Subsidiary Guarantor as an entirety, as the case may be, shall be (i) the Company, such Subsidiary Guarantor or another Subsidiary Guarantor; (ii) a solvent corporation, limited liability company, limited partnership or other legal entity, as applicable, (other than the Company or another Subsidiary Guarantor) that is organized and existing under the laws of the United States or any state thereof (including the District of Columbia) and, if such Subsidiary Guarantor is not such corporation, limited liability company or limited partnership, as applicable, (1) such corporation, limited liability company, limited partnership or other legal entity, as applicable, shall have executed and delivered to each holder of Notes its assumption of the due and punctual performance and observance of each covenant and condition of the Subsidiary Guaranty of such Subsidiary Guarantor and
(2) the Company shall have caused to be delivered to each holder of Notes an opinion of nationally recognized independent counsel, or other independent counsel reasonably satisfactory to the Required Holders, to the effect that all agreements or instruments effecting such assumption are enforceable in accordance with their terms and comply with
the terms hereof; provided that an opinion substantially in the form delivered pursuant to Section 4.4(a) of this Agreement on the date of the Closing shall be deemed satisfactory to the Required Holders; or (iii) any other Person so long as the transaction is treated as a disposition of all of the assets of such Subsidiary Guarantor for purposes of Section 10.10 and, based on such characterization, would be permitted pursuant to Section 10.10;
(c) in the case of any such merger, consolidation, acquisition, conveyance, or transfer involving the Company, each Subsidiary Guarantor under any Subsidiary Guaranty that is outstanding at the time such transaction or each transaction in such a series of transactions occurs reaffirms its obligations under such Subsidiary Guaranty in writing at such time pursuant to documentation that is reasonably acceptable to the Required Holders;
(d) immediately before and immediately after giving effect to such transaction or each transaction in any such series of transactions (i) no Default or Event of Default shall have occurred and be continuing and (ii) there shall be no breach or default with respect to any Eligible Revenue agreement or other management agreement that could result in any party to such agreement being entitled to a right of termination unless such breach or default would not reasonably be expected to have a Material Adverse Effect.
No such conveyance, transfer or lease of substantially all of the assets of the Company or any Subsidiary Guarantor shall have the effect of releasing the Company or such Subsidiary Guarantor, as the case may be, or any successor corporation, limited liability company, limited partnership or other legal entity, as applicable, that shall theretofore have become such in the manner prescribed in this Section 10.2, from its liability under (x) this Agreement or the Notes (in the case of the Company) or (y) the Subsidiary Guaranty (in the case of any Subsidiary Guarantor), unless, in the
case of the conveyance, transfer or lease of substantially all of the assets of a Subsidiary Guarantor, such Subsidiary Guarantor is released from its Subsidiary Guaranty in accordance with Section 9.7(b) in connection with or immediately following such conveyance, transfer or lease.
Section 10.3. Line of Business. The Company will not and will not permit any Subsidiary to engage in any business if, as a result, the general nature of the business in which the Company and its Subsidiaries, taken as a whole, would then be engaged would be substantially changed from the general nature of the business in which the Company and its Subsidiaries, taken as a whole, are engaged on the date of this Agreement as described in the Memorandum; provided that engaging in any business that is ancillary, complimentary, incidental or a natural expansion of the business engaged in on the date of Closing will be deemed not to substantially change the general nature of the business.
Section 10.4. Economic Sanctions, Etc. The Company will not, and will not permit any Controlled Entity to (a) become (including by virtue of being owned or controlled by a Blocked Person), own or control a Blocked Person or (b) directly or indirectly have any investment in or engage in any dealing or transaction (including any investment, dealing or transaction involving the proceeds of the Notes) with any Person if such investment, dealing or transaction (i) would cause any holder or any affiliate of such holder to be in violation of, or subject to sanctions under, any law or regulation applicable to such holder, or (ii) is prohibited by or subject to sanctions under any U.S. Economic Sanctions Laws.
Section 10.5. Liens. The Company will not and will not permit any of its Subsidiaries to create, incur, assume or permit to exist any Lien on or with respect to any property or asset (including any document or instrument in respect of goods or accounts receivable) of the Company or any such Subsidiary, whether now owned or held or hereafter acquired, except:
(a) Liens for taxes, assessments or other governmental charges which are not yet due and payable or that are being contested in good faith or that would not reasonably be expected to have a Material Adverse Effect;
(b) Liens incidental to the normal conduct of business of the Company or any such Subsidiary or the ownership of properties and assets (including landlords’, carriers’, warehousemen’s, mechanics’, materialmen’s and other similar Liens) and Liens to secure the performance of bids, tenders, leases, or trade contracts, or to secure statutory obligations (including obligations under workers compensation, unemployment insurance and other social security legislation), surety or appeal bonds or other Liens incurred in the ordinary course of business and not in connection with borrowed money;
(c) any attachment or judgment Lien, unless the judgment it secures shall not, within 60 days after the entry thereof, have been discharged or stayed pending appeal, or shall not have been discharged within 60 days after the expiration of any such stay;
(d) Liens securing Indebtedness of the Company or any of its Subsidiaries in existence on the date of Closing and listed on Schedule 5.15 (other than any Liens securing Indebtedness outstanding under the Revolving Credit Agreement) and any Liens securing
the extension, renewal, or replacement of such Indebtedness, but only to the extent that the principal amount thereof outstanding immediately before giving effect to such extension, renewal or replacement is not increased other than for accrued and unpaid interest, customary fees, expenses and prepayment premium or similar amounts;
(e) (i) Liens (A) existing on property at the time of its acquisition by such Obligor or any such Subsidiary and not created in contemplation thereof; (B) on property (including any pledge of the Equity Interests of the special purpose entity owning such property) created contemporaneously with the acquisition of such property or within 365 days of such acquisition to secure the purchase price thereof; or (C) existing on property of a Person at the time such Person is consolidated with or merged into such Obligor or any Subsidiary and not created in contemplation thereof; provided that such Liens shall attach solely to the property acquired or constructed (including any pledge of the Equity Interests of the special purpose entity owning such property), and the principal amount of the Indebtedness secured by such Lien shall not exceed the lesser of the cost of acquisition or the fair market value of such property at the time of its acquisition together with related fees and expenses for such acquisition and financing; or (ii) Liens in respect of Indebtedness refinancing any Liens described in the foregoing clauses (A) through (C) above, provided further, that the principal amount shall not be increased other than for accrued and unpaid interest, customary fees, expenses and prepayment premium or other such amount;
(f) Liens related to any cash management, investments in repurchase agreements, currency hedging, or netting arrangement in favor of any bank or financial institution;
(g) Liens created with the prior written consent of the Required Holders;
(h) Liens securing Indebtedness owed by any of Subsidiaries of the Company to an Obligor or a Wholly-Owned Subsidiary;
(i) Liens securing Indebtedness of the Company or any of its Subsidiaries so long as all obligations of the Company under the Notes are concurrently secured equally and ratably with such Indebtedness;
(j) Liens securing Indebtedness that is outstanding for no more than nine (9) months following its incurrence for the purpose of financing warehoused investments; provided that (i) any such Lien shall secure only the assets of such warehoused investment (or all assets of the entity owning such warehoused investment, provided such entity only owns the warehoused investment) and any pledge of the Equity Interests of the entity owning such warehoused investment (or all assets of the entity owning the entity that owns such warehoused investment if all assets of such entity consist only of the ownership of the entity owning such warehoused investment and proceeds distributed therefrom), (ii) the aggregate outstanding amount (without duplication) of all Indebtedness (A) secured by Liens pursuant to this clause (j) plus (B) all Indebtedness of Subsidiaries outstanding
pursuant to Section 10.6(f) shall not exceed $50,000,000 at any time and (iii) there shall be at least a three (3) consecutive month period in any twelve (12) consecutive month period in which the sum of (A) the principal amount of Indebtedness outstanding secured by liens pursuant to this clause (j) plus (B) the principal amount of Indebtedness outstanding under Section 10.6(f) is zero; and
(k) other Liens securing Indebtedness of the Company or any Subsidiary not otherwise permitted by clauses (a) through (j) above, provided that, the aggregate amount (without duplication) of (i) Indebtedness outstanding secured by Liens pursuant to this clause (k) plus (ii) all Indebtedness outstanding pursuant to Section 10.6(g), does not at any time exceed the greater of $50,000,000 and 30% of Consolidated Adjusted EBITDA (as determined on a pro forma basis for the most recently ended period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 7.1(a) or Section 7.1(b)); provided further, that notwithstanding the foregoing, the Company shall not, and shall not permit any of its Subsidiaries to, secure pursuant to this Section 10.5(k) any Indebtedness outstanding under or pursuant to any Material Credit Facility unless and until the Notes (and any guaranty delivered in connection therewith) shall concurrently be secured equally and ratably with such Indebtedness pursuant to documentation reasonably acceptable to the Required Holders in substance and in form, including an intercreditor agreement and opinions of counsel to the Company and/or any such Subsidiary, as the case may be, from counsel that is reasonably acceptable to the Required Holders.
Section 10.6. Subsidiary Indebtedness. The Company will not permit any of its Subsidiaries (other than the Subsidiary Guarantors) to create, incur, assume, permit to exist or have outstanding or otherwise become liable with respect to, any Indebtedness except:
(a) Indebtedness owed by a Subsidiary existing at the time of Closing and set forth on Schedule 5.15 (other than the Indebtedness outstanding under the Revolving Credit Agreement), and the extension, renewal, or replacement of such Indebtedness, provided that the principal amount shall not be increased other than for accrued and unpaid interest, customary fees, expenses and prepayment premium or similar amounts;
(b) Indebtedness of a Subsidiary outstanding at the time such Subsidiary becomes a Subsidiary, and any extension, renewal or replacement thereof, and only to the extent that that the principal amount thereof outstanding immediately before giving effect to such extension, renewal or refunding is not increased other than for accrued and unpaid interest, customary fees, expenses and prepayment premium or other such amounts;
(c) Indebtedness of a Subsidiary owed to the Company or any Wholly-Owned Subsidiary;
(d) Indebtedness of a Subsidiary owing pursuant to Section 10.5(e);
(e) [reserved];
(f) Indebtedness of a Subsidiary that is outstanding for no more than nine (9) months following its incurrence for the purpose of financing warehoused investments; provided that (i) the aggregate outstanding amount (without duplication) of all indebtedness (A) pursuant to this clause (f) plus (B) all Indebtedness outstanding secured by Liens pursuant to Section 10.5(j) shall not exceed $50,000,000 at any time and (ii) there shall be at least a three (3) consecutive month period in any twelve (12) consecutive month period in which the sum of (A) the principal amount of Indebtedness outstanding pursuant to this clause (f) plus (B) the principal amount of Indebtedness secured by Liens pursuant to Section 10.5(j) is zero; and
(g) Indebtedness not otherwise permitted by clauses (a) through (f) above, provided that, the aggregate amount (without duplication) of all Indebtedness outstanding pursuant to this clause (g) plus all Indebtedness outstanding secured by Liens pursuant to Section 10.5(k), does not at any time exceed the greater of $50,000,000 and 30% of Consolidated Adjusted EBITDA as determined on a pro forma basis for the most recently ended period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 7.1(a) or Section 7.1(b).
Section 10.7. Restricted Payments. The Company will not, and will not permit its Subsidiaries to, make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(a) each Subsidiary may make Restricted Payments to a Person that owns Equity Interests in such Subsidiary in accordance with the organizational documents of such Subsidiary, but in no case more than such Person’s ratable interest according to its
holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(b) each Obligor and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(c) Restricted Payments in accordance with equity incentive or other benefit plans or arrangements for management or employees of each Obligor and each Subsidiary;
(d) Restricted Payments in the form of Permitted Tax Distributions;
(e) Restricted Payments payable with respect to outstanding preferred stock of CCO Group, LLC; provided that (i) payments representing preferred return distributions are first applied by the preferred holder to make payments of accrued and unpaid interest in respect of indebtedness owing to the Company and (ii) redemption payments are first applied by the preferred holder to repay outstanding principal on such indebtedness; and
(f) each Obligor may make other Restricted Payments so long as (i) at the time such Restricted Payment is made and immediately after giving effect thereto, no Default or Event of Default shall exist, (ii) immediately after giving effect thereto, the Company shall be in compliance on a pro forma basis with the Financial Covenants set forth in
Section 10.8 and any Additional Provision, (iii) no Specified Equity Contribution has been made in the fiscal quarter in which such Restricted Payment is made and (iv) in respect of any other Restricted Payments made under this clause (f) during the period from the date of Closing through and including September 30, 2024, the aggregate amount of Restricted Payments made pursuant to this clause (f) during such period shall not exceed the sum of:
(x) 105% of the greater of (1) Consolidated Net Income for the period from July 1, 2022 through the date of the most recently ended fiscal quarter for which financial statements shall have been provided under Section 7.1 and (2) the result of (A) Consolidated EBITDA for such period, minus (B) Consolidated Interest Charges for such period; plus (y) 50% of the aggregate net proceeds received by the Company after the date of Closing from the issuance of any Equity Interests of the Company.
Section 10.8. Financial Covenants.
(a) Consolidated Net Leverage Ratio. The Company will not permit the ratio of (i) Consolidated Net Funded Indebtedness as of the end of any fiscal quarter of the Company to (ii) Consolidated Adjusted EBITDA (such ratio, the “Consolidated Net Leverage Ratio”) for the period of four consecutive fiscal quarters ended on such date to be greater than 3.50 to 1.00; provided that the pro forma effect of any acquisition or divestiture shall be included as if such transaction had occurred at the beginning of the relevant period. The Consolidated Net Leverage Ratio shall be tested for such period on the date of delivery of the financial statements for such period pursuant to Section 7.1; provided further, that any Event of Default arising from the breach of this Section 10.8(a), to the extent not cured in accordance with the cure rights below, shall be deemed to have occurred on the final day of such period.
Solely for the purposes of determining compliance with the Consolidated Net Leverage Ratio or any Additional Provision which includes a Consolidated Adjusted EBITDA component (and not for any other purpose under this Agreement), the amount of any cash equity contribution (which may be common equity or preferred equity that is not Disqualified Stock) made to the Company on or after the first day of a fiscal quarter of the Company, and on or prior to the date that is fifteen (15) Business Days after the day on which financial statements are required to be delivered for such fiscal quarter pursuant to Section 7.1 (the “Cure Expiration Date”), will, at the request of the Company, be deemed to be Consolidated Adjusted EBITDA received in such fiscal quarter and shall be taken into account in the calculation of such Financial Covenant(s) for any period of four fiscal quarters of the Company that includes such fiscal quarter (any such equity contribution so included in such calculation, a “Specified Equity Contribution”); provided, that a Specified Equity Contribution may not be (x) made in respect of more than two fiscal quarters in any four quarter period, (y) made more than three times prior to the Maturity Date of the Notes and (z) greater than the amount required to cause the Company to be in pro forma compliance with the Financial Covenants. The Company may give written notice to the holders that it will receive (or that it has received) a Specified Equity Contribution in respect of a fiscal quarter of the Company at any time on or after the last day of such fiscal quarter and on or prior to the Cure Expiration Date in respect of the applicable testing period and, subject to the foregoing sentence, any breach (actual or
prospective) of the Financial Covenants shall not result in any Default or Event of Default in respect of the period of four fiscal quarters ending with such last day until the day after the Cure Expiration Date, and the holders shall not exercise any rights or remedies under any this Agreement during such period, and then an Event of Default shall be deemed to have occurred only if any such breach exists after taking into account for such determination for such period the amount of the Specified Equity Contribution, if any, made in respect of such period.
(b) Minimum Fee Earning Equity Owned and Operated. The Company will not permit, as of the end of any fiscal quarter, the Fee Earning Equity Owned and Operated to be less than $10,616,900,000.
Section 10.9. Amendments to Eligible Revenue Agreements. The Company will not, and will not permit its Subsidiaries to, make, or permit the termination or making of any amendment, supplement, side letter, waiver, modification or similar agreement or arrangement in respect of any Eligible Revenue agreement or other management agreement unless, immediately after giving effect thereto, the Company shall be in compliance on a pro forma basis with Section
10.8 and any Additional Provisions (determined by reference to the most recent fiscal quarter for which financial statements have been provided pursuant to Section 7.1).
Section 10.10. Sale of Assets. The Company will not, and will not permit any Subsidiary to, make any Disposition except Permitted Dispositions; provided that, notwithstanding the foregoing, the Company or any Subsidiary may make any Disposition so long as, (a) at the time the Company or such Subsidiary makes such Disposition and immediately after giving effect thereto, no Event of Default shall exist, (b) such Disposition is for fair market value, and (c) immediately after giving effect thereto, the Company shall be in compliance on a pro forma basis
with Section 10.8 and any Additional Provision (determined by reference to the most recent fiscal quarter for which financial statements have been provided pursuant to Section 7.1).
SECTION 11. EVENTS OF DEFAULT.
An “Event of Default” shall exist if any of the following conditions or events shall occur and be continuing:
(a) the Company defaults in the payment of any principal or Make-Whole Amount, if any, on any Note when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise; or
(b) the Company defaults in the payment of any interest on any Note for more than five (5) Business Days after the same becomes due and payable; or
(c) the Company defaults in the performance of or compliance with any term contained in Section 7.1(d), Section 10 (other than Section 10.5(k) and/or Section 10.6(g)) or any Additional Provision (subject in the case of an Additional Provision to any applicable grace period set forth in the applicable Material Credit Facility); or
(d) the Company or any Subsidiary Guarantor defaults in the performance of or compliance with any term contained herein (other than those referred to in Sections 11(a),
(b) and (c)) or in any other Financing Document and such default is not remedied (i) in the case of any default in the performance of or compliance with any term contained in Sections 10.5(k) or 10.6(g), within thirty (30) days after the date of the Company’s delivery, pursuant to Section 7.1, of financial statements evidencing such default, and (ii), in all other cases, within thirty (30) days after the earlier of (i) a Responsible Officer obtaining actual knowledge of such default and (ii) the Company receiving written notice of such default from any holder of a Note (any such written notice to be identified as a “notice of default” and to refer specifically to this Section 11(d)); or
(e) (i) any representation or warranty made in writing by or on behalf of the Company or by any officer of the Company in any Financing Document or any writing furnished in connection with the transactions contemplated hereby proves to have been false or incorrect in any material respect on the date as of which made, or (ii) any representation or warranty made in writing by or on behalf of any Subsidiary Guarantor or by any officer of such Subsidiary Guarantor in any Financing Document or any writing furnished in connection with such Financing Document proves to have been false or incorrect in any material respect on the date as of which made; or
(f) (i) the Company or any Significant Subsidiary is in default (as principal or as guarantor or other surety) in the payment of any principal of, premium or make-whole amount or interest on any Indebtedness that is outstanding in an aggregate principal amount of at least $50,000,000 (or its equivalent in the relevant currency of payment) beyond any period of grace provided with respect thereto, or (ii) the Company or any Significant Subsidiary is (1) in default in the performance of or compliance with any term of any evidence of any Indebtedness in an aggregate outstanding principal amount of at least
$50,000,000 (or its equivalent in the relevant currency of payment) or of any mortgage,
indenture or other agreement relating thereto, and (2) as a consequence of such default on such Indebtedness has become, or has been declared due and payable before its stated maturity or before its regularly scheduled dates of payment; or
(g) the Company or any Significant Subsidiary (i) is generally not paying, or admits in writing its inability to pay, its debts as they become due, (ii) files, or consents by answer or otherwise to the filing against it of, a petition for relief or reorganization or arrangement or any other petition in bankruptcy, for liquidation or to take advantage of any bankruptcy, insolvency, reorganization, moratorium or other similar law of any jurisdiction, (iii) makes an assignment for the benefit of its creditors, (iv) consents to the appointment of a custodian, receiver, trustee or other officer with similar powers with respect to it or with respect to any substantial part of its property, or (v) is adjudicated as insolvent or to be liquidated; or
(h) a court or other Governmental Authority of competent jurisdiction enters an order appointing, without consent by the Company or any of its Significant Subsidiaries, a custodian, receiver, trustee or other officer with similar powers with respect to it or with respect to any substantial part of its property, or constituting an order for relief or approving
a petition for relief or reorganization or any other petition in bankruptcy or for liquidation or to take advantage of any bankruptcy or insolvency law of any jurisdiction, or ordering the dissolution, winding-up or liquidation of the Company or any of its Significant Subsidiaries, or any such petition shall be filed against the Company or any of its Significant Subsidiaries and such petition shall not be dismissed within 60 days; or
(i) [reserved]; or
(j) one or more final non-appealable judgments or orders for the payment of money aggregating in excess of $50,000,000 (or its equivalent in the relevant currency of payment) (to the extent not paid and not covered by insurance (including, if applicable, self-insurance) or indemnities as to which the insurer or indemnitor has been notified of such judgment or order and has not denied coverage) including any such final order enforcing a binding arbitration decision, are rendered against one or more of the Company and its Significant Subsidiaries and which judgments are not, within 60 days after entry thereof, bonded, discharged or stayed pending appeal, or are not discharged within 60 days after the expiration of such stay; or
(k) if (i) any Plan shall fail to satisfy the minimum funding standards of ERISA or the Code for any plan year or part thereof or a waiver of such standards or extension of any amortization period is sought or granted under section 412 of the Code, (ii) a notice of intent to terminate any Plan shall have been or is reasonably expected to be filed with the PBGC or the PBGC shall have instituted proceedings under ERISA section 4042 to terminate or appoint a trustee to administer any Plan or the PBGC shall have notified the Company or any ERISA Affiliate that a Plan may become a subject of any such proceedings, (iii) there is any “amount of unfunded benefit liabilities” (within the meaning of section 4001(a)(18) of ERISA) under one or more Plans, determined in accordance with Title IV of ERISA, (iv) the aggregate present value of accrued benefit liabilities under all funded Non-U.S. Plans exceeds the aggregate current value of the assets of such Non-U.S.
Plans allocable to such liabilities, (v) the Company or any ERISA Affiliate shall have incurred or is reasonably expected to incur any liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans,
(vi) the Company or any ERISA Affiliate withdraws from any Multiemployer Plan,
(vii) the Company or any Subsidiary establishes or amends any employee welfare benefit plan that provides post-employment welfare benefits in a manner that would increase the liability of the Company or any Subsidiary thereunder, (viii) the Company or any Subsidiary fails to administer or maintain a Non-U.S. Plan in compliance with the requirements of any and all applicable laws, statutes, rules, regulations or court orders or any Non-U.S. Plan is involuntarily terminated or wound up, or (ix) the Company or any Subsidiary becomes subject to the imposition of a financial penalty (which for this purpose shall mean any tax, penalty or other liability, whether by way of indemnity or otherwise) with respect to one or more Non-U.S. Plans; and any such event or events described in clauses (i) through (ix) above, either individually or together with any other such event or events, would reasonably be expected to have a Material Adverse Effect. As used in this Section 11(k), the terms “employee benefit plan” and “employee welfare benefit plan” shall have the respective meanings assigned to such terms in section 3 of ERISA; or
(l) any Financing Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the obligations hereunder and under any other Financing Document, shall cease to be in full force and effect, any Obligor or any Person acting on behalf of an Obligor shall contest in any manner the validity, binding nature or enforceability of any Financing Document, or the obligations of any Obligor under any Financing Document are not or cease to be legal, valid, binding and enforceable in accordance with the terms of such Financing Document.
SECTION 12. REMEDIES ON DEFAULT, ETC.
Section 12.1. Acceleration.
(a) If an Event of Default with respect to the Company described in Section 11(g), (h) or (i) (other than an Event of Default described in clause (i) of Section 11(g) or described in clause (vi) of Section 11(g) by virtue of the fact that such clause encompasses clause (i) of Section 11(g)) has occurred, all the Notes then outstanding shall automatically become immediately due and payable.
(b) If any other Event of Default has occurred and is continuing, the Required Holders may at any time at its or their option, by notice or notices to the Company, declare all the Notes then outstanding to be immediately due and payable.
(c) If any Event of Default described in Section 11(a) or (b) has occurred and is continuing, any holder or holders of Notes at the time outstanding affected by such Event of Default may at any time, at its or their option, by notice or notices to the Company, declare all the Notes held by it or them to be immediately due and payable.
Upon any Notes becoming due and payable under this Section 12.1, whether automatically or by declaration, such Notes will forthwith mature and the entire unpaid principal amount of such Notes, plus (x) all accrued and unpaid interest thereon (including interest accrued thereon at the Default Rate) and (y) the Make-Whole Amount determined in respect of such principal amount, shall all be immediately due and payable, in each and every case without presentment, demand, protest or further notice, all of which are hereby waived. The Company acknowledges, and the parties hereto agree, that each holder of a Note has the right to maintain its investment in the Notes free from repayment by the Company (except as herein specifically provided for) and that the provision for payment of a Make-Whole Amount by the Company in the event that the Notes are prepaid or are accelerated as a result of an Event of Default, is intended to provide compensation for the deprivation of such right under such circumstances.
Section 12.2. Other Remedies. If any Default or Event of Default has occurred and is continuing, and irrespective of whether any Notes have become or have been declared immediately due and payable under Section 12.1, the holder of any Note at the time outstanding may proceed to protect and enforce the rights of such holder by an action at law, suit in equity or other appropriate proceeding, whether for the specific performance of any agreement contained herein or in any Note or any other Financing Document, or for an injunction against a violation of any of
the terms hereof or thereof, or in aid of the exercise of any power granted hereby or thereby or by law or otherwise.
Section 12.3. Rescission. At any time after any Notes have been declared due and payable pursuant to Section 12.1(b) or (c), the Required Holders, by written notice to the Company, may rescind and annul any such declaration and its consequences if (a) the Company has paid all overdue interest on the Notes, all principal of and Make-Whole Amount, if any, on any Notes that are due and payable and are unpaid other than by reason of such declaration, and all interest on such overdue principal and Make-Whole Amount, if any, and (to the extent permitted by applicable law) any overdue interest in respect of the Notes of any Series, at the Default Rate for such Series,
(b) neither the Company nor any other Person shall have paid any amounts which have become due solely by reason of such declaration, (c) all Events of Default and Defaults, other than non-payment of amounts that have become due solely by reason of such declaration, have been cured or have been waived pursuant to Section 17, and (d) no judgment or decree has been entered for the payment of any monies due pursuant hereto or to the Notes. No rescission and annulment under this Section 12.3 will extend to or affect any subsequent Event of Default or Default or impair any right consequent thereon.
Section 12.4. No Waivers or Election of Remedies, Expenses, Etc. No course of dealing and no delay on the part of any holder of any Note in exercising any right, power or remedy shall operate as a waiver thereof or otherwise prejudice such holder’s rights, powers or remedies. No right, power or remedy conferred by this Agreement or any other Financing Document upon any holder thereof shall be exclusive of any other right, power or remedy referred to herein or therein or now or hereafter available at law, in equity, by statute or otherwise. Without limiting the obligations of the Company under Section 15, the Company will pay to the holder of each Note on demand such further amount as shall be sufficient to cover all costs and expenses of such holder incurred in any enforcement or collection under this Section 12, including reasonable attorneys’ fees, expenses and disbursements.
SECTION 13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.
Section 13.1. Registration of Notes. The Company shall keep at its principal executive office a register for the registration and registration of transfers of Notes. The name and address of each holder of one or more Notes, each transfer thereof and the name and address of each transferee of one or more Notes shall be registered in such register. If any holder of one or more Notes is a nominee, then (a) the name and address of the beneficial owner of such Note or Notes shall also be registered in such register as an owner and holder thereof and (b) at any such beneficial owner’s option, either such beneficial owner or its nominee may execute any amendment, waiver or consent pursuant to this Agreement. Prior to due presentment for registration of transfer, the Person in whose name any Note shall be registered shall be deemed and treated as the owner and holder thereof for all purposes hereof, and the Company shall not be affected by any notice or knowledge to the contrary. The Company shall give to any holder of a Note that is an Institutional Investor promptly upon request therefor, a complete and correct copy of the names and addresses of all registered holders of Notes.
Section 13.2. Transfer and Exchange of Notes. Upon surrender of any Note to the Company at the address and to the attention of the designated officer (all as specified in Section 18(iii)), for registration of transfer or exchange (and in the case of a surrender for registration of transfer accompanied by a written instrument of transfer duly executed by the registered holder of such Note or such holder’s attorney duly authorized in writing and accompanied by the relevant name, address and other information for notices of each transferee of such Note or part thereof), within ten (10) Business Days thereafter, the Company shall execute and deliver, at the Company’s expense (except as provided below), one or more new Notes of such Series (as requested by the holder thereof) in exchange therefor, in an aggregate principal amount equal to the unpaid principal amount of the surrendered Note. Each such new Note shall be payable to such Person as such holder may request and shall be substantially in the form for such Note for such Series of Schedule 1.1(a), Schedule 1.1(b) or Schedule 1.1(c), as applicable. Each such new Note shall be dated and bear interest from the date to which interest shall have been paid on the surrendered Note or dated the date of the surrendered Note if no interest shall have been paid thereon. The Company may require payment of a sum sufficient to cover any stamp tax or governmental charge imposed in respect of any such transfer of Notes. Notes shall not be transferred in denominations of less than $100,000, provided that if necessary to enable the registration of transfer by a holder of its entire holding of Notes, one Note may be in a denomination of less than $100,000. Any transferee, by its acceptance of a Note registered in its name (or the name of its nominee), shall be deemed to have made the representation set forth in Section 6.2.
Section 13.3. Replacement of Notes. Upon receipt by the Company at the address and to the attention of the designated officer (all as specified in Section 18(iii)) of evidence reasonably satisfactory to it of the ownership of and the loss, theft, destruction or mutilation of any Note (which evidence shall be, in the case of an Institutional Investor, notice from such Institutional Investor of such ownership and such loss, theft, destruction or mutilation), and
(a) in the case of loss, theft or destruction, of indemnity reasonably satisfactory to it (provided that if the holder of such Note is, or is a nominee for, an original Purchaser or another holder of a Note with a minimum net worth of at least $50,000,000 or a Qualified
Institutional Buyer, such Person’s own unsecured agreement of indemnity shall be deemed to be satisfactory), or
(b) in the case of mutilation, upon surrender and cancellation thereof,
within ten (10) Business Days thereafter, the Company at its own expense shall execute and deliver, in lieu thereof, a new Note of the same Series, dated and bearing interest from the date to which interest shall have been paid on such lost, stolen, destroyed or mutilated Note or dated the date of such lost, stolen, destroyed or mutilated Note if no interest shall have been paid thereon.
SECTION 14. PAYMENTS ON NOTES.
Section 14.1. Place of Payment. Subject to Section 14.2, payments of principal, Make-Whole Amount, if any, and interest becoming due and payable on the Notes shall be made in New York, New York at the principal office of Citibank, N.A. in such jurisdiction. The Company may
at any time, by notice to each holder of a Note, change the place of payment of the Notes so long as such place of payment shall be either the principal office of the Company in such jurisdiction or the principal office of a bank or trust company in such jurisdiction.
Section 14.2. Payment by Wire Transfer. So long as any Purchaser or its nominee shall be the holder of any Note, and notwithstanding anything contained in Section 14.1 or in such Note to the contrary, the Company will pay all sums becoming due on such Note for principal, Make-Whole Amount, if any, interest and all other amounts becoming due hereunder by the method and at the address specified for such purpose below such Purchaser’s name in the Purchaser Schedule, or by such other method or at such other address as such Purchaser shall have from time to time specified to the Company in writing for such purpose, without the presentation or surrender of such Note or the making of any notation thereon, except that upon written request of the Company made concurrently with or reasonably promptly after payment or prepayment in full of any Note, such Purchaser shall surrender such Note for cancellation, reasonably promptly after any such request, to the Company at its principal executive office or at the place of payment most recently designated by the Company pursuant to Section 14.1. Prior to any sale or other disposition of any Note held by a Purchaser or its nominee, such Purchaser will, at its election, either endorse thereon the amount of principal paid thereon and the last date to which interest has been paid thereon or surrender such Note to the Company in exchange for a new Note or Notes pursuant to Section
13.2. The Company will afford the benefits of this Section 14.2 to any Institutional Investor that is the direct or indirect transferee of any Note purchased by a Purchaser under this Agreement and that has made the same agreement relating to such Note as the Purchasers have made in this Section 14.2.
Section 14.3. FATCA Information. By acceptance of any Note, the holder of such Note agrees that such holder will with reasonable promptness duly complete and deliver to the Company, or to such other Person as may be reasonably requested by the Company, from time to time (a) in the case of any such holder that is a United States Person, such holder’s United States tax identification number or other Forms reasonably requested by the Company necessary to establish such holder’s status as a United States Person under FATCA and as may otherwise be necessary for the Company to comply with its obligations under FATCA and (b) in the case of any such holder that is not a United States Person, such documentation prescribed by applicable law
(including as prescribed by section 1471(b)(3)(C)(i) of the Code) and such additional documentation as may be necessary for the Company to comply with its obligations under FATCA and to determine that such holder has complied with such holder’s obligations under FATCA or to determine the amount (if any) to deduct and withhold from any such payment made to such holder. Nothing in this Section 14.3 shall require any holder to provide information that is confidential or proprietary to such holder unless the Company is required to obtain such information under FATCA and, in such event, the Company shall treat any such information it receives as confidential.
SECTION 15. EXPENSES, ETC.
Section 15.1. Transaction Expenses. Whether or not the transactions contemplated hereby are consummated, the Company will pay all costs and expenses (including reasonable attorneys’ fees of not more than one special counsel, which shall be Morgan, Lewis & Bockius
LLP and, if reasonably required by the Required Holders, local counsel) incurred by the Purchasers and each other holder of a Note in connection with such transactions and in connection with any amendments, waivers or consents under or in respect of this Agreement or any other Financing Document (whether or not such amendment, waiver or consent becomes effective), including: (a) the costs and expenses incurred in enforcing or defending (or determining whether or how to enforce or defend) any rights under this Agreement or any other Financing Document or in responding to any subpoena or other legal process or informal investigative demand issued in connection with this Agreement or any other Financing Document, or by reason of being a holder of any Note, (b) the costs and expenses, including financial advisors’ fees, incurred in connection with the insolvency or bankruptcy of the Company or any Subsidiary or in connection with any work-out or restructuring of the transactions contemplated hereby and by the other Financing Documents and (c) the costs and expenses incurred in connection with the initial filing of this Agreement and all related documents and financial information with the SVO provided, that such costs and expenses under this clause (c) shall not exceed $8,450. If required by the NAIC, the Company shall obtain and maintain at its own cost and expense a Legal Entity Identifier (LEI).
The Company will pay, and will save each Purchaser and each other holder of a Note harmless from, (i) all claims in respect of any fees, costs or expenses, if any, of brokers and finders (other than those, if any, retained by a Purchaser or other holder in connection with its purchase of the Notes), (ii) any and all wire transfer fees that any bank or other financial institution deducts from any payment under such Note to such holder or otherwise charges to a holder of a Note with respect to a payment under such Note and (iii) any judgment, liability, claim, order, decree, fine, penalty, cost, fee, expense (including reasonable attorneys’ fees and expenses) or obligation resulting from the consummation of the transactions contemplated hereby, including the use of the proceeds of the Notes by the Company.
Section 15.2. Certain Taxes. The Company agrees to pay all stamp, documentary or similar taxes or fees which may be payable in respect of the execution and delivery or the enforcement of this Agreement or any other Financing Document the execution and delivery (but not the transfer) or the enforcement of any of the Notes in the United States or any other jurisdiction where the Company or any Subsidiary Guarantor has assets or of any amendment of, or waiver or consent under or with respect to, this Agreement or any other Financing Document or of any of the Notes, and to pay any value added tax due and payable in respect of reimbursement of costs
and expenses by the Company pursuant to this Section 15, and will save each holder of a Note to the extent permitted by applicable law harmless against any loss or liability resulting from nonpayment or delay in payment of any such tax or fee required to be paid by the Company hereunder.
Section 15.3. Survival. The obligations of the Company under this Section 15 will survive the payment or transfer of any Note, the enforcement, amendment or waiver of any provision of this Agreement, the Notes or any other Financing Document, and the termination of this Agreement.
SECTION 16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
All representations and warranties contained herein shall survive the execution and delivery of this Agreement and the Notes, the purchase or transfer by any Purchaser of any Note or portion thereof or interest therein and the payment of any Note, and may be relied upon by any subsequent holder of a Note, regardless of any investigation made at any time by or on behalf of such Purchaser or any other holder of a Note, provided that such representations speak only as of the date of Closing or, if such representations by their terms refer to an earlier date, on and as of such earlier date. This Agreement, the Notes and each other Financing Document embody the entire agreement and understanding between each Purchaser and the Company and supersede all prior agreements and understandings relating to the subject matter hereof.
SECTION 17. AMENDMENT AND WAIVER.
Section 17.1. Requirements. This Agreement and the Notes may be amended, and the observance of any term hereof or of the Notes may be waived (either retroactively or prospectively), only with the written consent of the Company and the Required Holders, except that:
(a) no amendment or waiver of any of Sections 1, 2, 3, 4, 5, 6 or 21 hereof, or any defined term (as it is used therein), will be effective as to any Purchaser unless consented to by such Purchaser in writing; and
(b) no amendment or waiver may, without the written consent of each Purchaser and the holder of each Note at the time outstanding, (i) subject to Section 12 relating to acceleration or rescission, change the amount or time of any prepayment or payment of principal of, or reduce the rate or change the time of payment or method of computation of (x) interest on the Notes or (y) the Make-Whole Amount, (ii) change the percentage of the principal amount of the Notes the holders of which are required to consent to any amendment or waiver, or (iii) amend any of Sections 8 (except as set forth in the second sentence of Section 8.2), 11(a), 11(b), 12, 17 or 20.
Section 17.2. Solicitation of Holders of Notes.
(a) Solicitation. The Company will provide each holder of a Note with sufficient information, sufficiently far in advance of the date a decision is required, to enable such holder to make an informed and considered decision with respect to any
proposed amendment, waiver or consent in respect of any of the provisions hereof or of any other Financing Document. The Company will deliver executed or true and correct copies of each amendment, waiver or consent effected pursuant to this Section 17 or any other Financing Document to each holder of a Note promptly following the date on which it is executed and delivered by, or receives the consent or approval of, the requisite holders of Notes.
(b) Payment. The Company will not directly or indirectly pay or cause to be paid any remuneration, whether by way of supplemental or additional interest, fee or otherwise, or grant any security or provide other credit support, to any holder of a Note as consideration for or as an inducement to the entering into by such holder of any waiver or amendment of any of the terms and provisions hereof or of any other Financing Document or any Note unless such remuneration is concurrently paid, or security is concurrently granted or other credit support concurrently provided, on the same terms, ratably to each holder of a Note even if such holder did not consent to such waiver or amendment.
(c) Consent in Contemplation of Transfer. Any consent given pursuant to this Section 17 or any other Financing Document by a holder of a Note that has transferred or has agreed to transfer its Note to (i) the Company, (ii) any Subsidiary or any other Affiliate or (iii) any other Person in connection with, or in anticipation of, such other Person acquiring, making a tender offer for or merging with the Company and/or any of its Affiliates, in each case in connection with such consent, shall be void and of no force or effect except solely as to such holder, and any amendments effected or waivers granted or to be effected or granted that would not have been or would not be so effected or granted but for such consent (and the consents of all other holders of Notes that were acquired under the same or similar conditions) shall be void and of no force or effect except solely as to such holder.
Section 17.3. Binding Effect, Etc. Any amendment or waiver consented to as provided in this Section 17 or any other Financing Document applies equally to all holders of Notes and is binding upon them and upon each future holder of any Note and upon the Company without regard to whether such Note has been marked to indicate such amendment or waiver. No such amendment or waiver will extend to or affect any obligation, covenant, agreement, Default or Event of Default not expressly amended or waived or impair any right consequent thereon. No course of dealing between the Company and any holder of a Note and no delay in exercising any rights hereunder or under any Note or any other Financing Document shall operate as a waiver of any rights of any holder of such Note.
Section 17.4. Notes Held by Company, Etc. Solely for the purpose of determining whether the holders of the requisite percentage of the aggregate principal amount of Notes then outstanding approved or consented to any amendment, waiver or consent to be given under this Agreement or any other Financing Document, or have directed the taking of any action provided herein or in any other Financing Document to be taken upon the direction of the holders of a specified percentage of the aggregate principal amount of Notes then outstanding, Notes directly or indirectly owned by the Company or any of its Affiliates shall be deemed not to be outstanding.
SECTION 18. NOTICES.
Except to the extent otherwise provided in Section 7.4 and subject to the requirements set forth in the parentheticals in clauses (i) and (ii) below, all notices and communications provided for hereunder shall be in writing and sent (a) by telecopy if the sender on the same day sends a confirming copy of such notice by an internationally recognized overnight delivery service (charges prepaid), or (b) by registered or certified mail with return receipt requested (postage
prepaid), or (c) by an internationally recognized overnight delivery service (charges prepaid). Any such notice must be sent:
(i) if to any Purchaser or its nominee, to such Purchaser or nominee at the address specified for such communications in the Purchaser Schedule (with a copy sent to such Purchaser or nominee via e-mail at the e-mail address, if any, specified for such communications in the Purchaser Schedule), or at such other address as such Purchaser or nominee shall have specified to the Company in writing,
(ii) if to any other holder of any Note, to such holder at such address as such other holder shall have specified to the Company in writing (with a copy sent to such holder via e-mail at the e-mail address, if any, specified for such communications by such holder in writing), or
(iii) if to the Company, to the Company at its address set forth at the beginning hereof to the attention of the following representatives, or at such other address as the Company shall have specified to the holder of each Note in writing:
Attention:
David Thompson
Principal, Chief Financial Officer 4700 Wilshire Boulevard
Los Angeles, CA 90010 Phone: (323) 860-7413
Mobile: (323) 362-2085
E-mail: dthompson@cimgroup.com
Jordan Dembo, Esq.
Principal & Chief Legal Officer, Legal 4700 Wilshire Boulevard
Los Angeles, CA 90010 Phone: (323) 860-9546
Mobile: (310) 980-4571
E-mail: jdembo@cimgroup.com
Notices under this Section 18 will be deemed given only when actually received.
SECTION 19. REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating thereto, including (a) consents, waivers and modifications that may hereafter be executed, (b) documents received by any Purchaser at the Closing (except the Notes themselves), and (c) financial statements, certificates and other
information previously or hereafter furnished to any Purchaser, may be reproduced by such Purchaser by any photographic, photostatic, electronic, digital, or other similar process and such Purchaser may destroy any original document so reproduced. The Company agrees and stipulates that, to the extent permitted by applicable law, any such reproduction shall be admissible in
evidence as the original itself in any judicial or administrative proceeding (whether or not the original is in existence and whether or not such reproduction was made by such Purchaser in the regular course of business) and any enlargement, facsimile or further reproduction of such reproduction shall likewise be admissible in evidence. This Section 19 shall not prohibit the Company or any other holder of Notes from contesting any such reproduction to the same extent that it could contest the original, or from introducing evidence to demonstrate the inaccuracy of any such reproduction.
SECTION 20. CONFIDENTIAL INFORMATION.
For the purposes of this Section 20, “Confidential Information” means confidential information delivered to any Purchaser by or on behalf of the Company or any Subsidiary in connection with the transactions contemplated by or otherwise pursuant to this Agreement, provided that such term does not include information that (a) was publicly known or otherwise known to such Purchaser prior to the time of such disclosure, other than as a result of disclosure to such Purchaser by a third party that has or had confidentiality obligations to the Company or any Subsidiary of which such Purchaser was aware, (b) subsequently becomes publicly known through no act or omission by such Purchaser or any Person acting on such Purchaser’s behalf, (c) otherwise becomes known to such Purchaser other than through disclosure by the Company or any Subsidiary, other than as a result of disclosure to such Purchaser by a third party that has or had confidentiality obligations to the Company or any Subsidiary of which such Purchaser was aware or (d) constitutes financial statements delivered to such Purchaser under Section 7.1 that are otherwise publicly available. Each Purchaser will maintain the confidentiality of such Confidential Information in accordance with procedures adopted by such Purchaser in good faith to protect confidential information of third parties delivered to such Purchaser, provided that such Purchaser may deliver or disclose Confidential Information to (i) its directors, officers, employees, agents, attorneys, trustees and affiliates (to the extent such disclosure reasonably relates to the administration of the investment represented by its Notes), provided that such Purchaser shall inform each such Person of the confidential nature of the Confidential Information and direct such person to treat the Confidential Information confidentially, (ii) its auditors, financial advisors and other professional advisors who agree to hold confidential the Confidential Information substantially in accordance with this Section 20, (iii) any other holder of any Note, (iv) any Institutional Investor to which it sells or offers to sell such Note or any part thereof or any participation therein (if such Person has agreed in writing prior to its receipt of such Confidential Information to be bound by this Section 20), (v) any Person from which it offers to purchase any Security of the Company (if such Person has agreed in writing prior to its receipt of such Confidential Information to be bound by this Section 20), (vi) any federal or state regulatory authority having jurisdiction over such Purchaser, (vii) the NAIC or the SVO or, in each case, any similar organization, or any nationally recognized rating agency that requires access to information about such Purchaser’s investment portfolio, or (viii) any other Person to which such delivery or disclosure may be necessary or appropriate (w) to effect compliance with any law, rule, regulation or order applicable to such Purchaser, (x) in response to any subpoena or other legal process, (y) in connection with any litigation to which such Purchaser is a party or (z) if an Event of Default
has occurred and is continuing, to the extent such Purchaser may reasonably determine such delivery and disclosure to be necessary or appropriate in the enforcement or for the protection of
the rights and remedies under such Purchaser’s Notes, this Agreement or any other Financing Document; provided that each Purchaser shall be responsible for any unpermitted disclosure of Confidential Information that results from the actions or omission of any of such Purchaser’s directors, officers, employees, agents, attorneys, trustees, affiliates auditors, financial advisors and other professional advisors; provided, further, that each Purchaser shall, to the extent practicable and to the extent permitted by applicable law and solely with respect to delivery or disclosure under (viii)(w), (viii)(x), or (viii)(y) of this Section 20, endeavor to provide the Company, prior to disclosure, with written notice of any request or requirement to disclose Confidential Information such that the Company may seek a protective order or other appropriate remedy. Each holder of a Note, by its acceptance of a Note, will be deemed to have agreed to be bound by and to be entitled to the benefits of this Section 20 as though it were a party to this Agreement. On reasonable request by the Company in connection with the delivery to any holder of a Note of information required to be delivered to such holder under this Agreement or requested by such holder (other than a holder that is a party to this Agreement or its nominee), such holder will enter into an agreement with the Company embodying this Section 20.
In the event that as a condition to receiving access to information relating to the Company or its Subsidiaries in connection with the transactions contemplated by or otherwise pursuant to this Agreement or any other Financing Document, any Purchaser or holder of a Note is required to agree to a confidentiality undertaking (whether through Intralinks, another secure website, a secure virtual workspace or otherwise) which is different from this Section 20, this Section 20 shall not be amended thereby and, as between such Purchaser or such holder and the Company, this Section 20 shall supersede any such other confidentiality undertaking.
SECTION 21. SUBSTITUTION OF PURCHASER.
Each Purchaser shall have the right to substitute any one of its Affiliates or another Purchaser or any one of such other Purchaser’s Affiliates (a “Substitute Purchaser”) as the purchaser of the Notes that it has agreed to purchase hereunder, by written notice to the Company, which notice shall be signed by both such Purchaser and such Substitute Purchaser, shall contain such Substitute Purchaser’s agreement to be bound by this Agreement and shall contain a confirmation by such Substitute Purchaser of the accuracy with respect to it of the representations set forth in Section 6. Upon receipt of such notice, any reference to such Purchaser in this Agreement (other than in this Section 21), shall be deemed to refer to such Substitute Purchaser in lieu of such original Purchaser. In the event that such Substitute Purchaser is so substituted as a Purchaser hereunder and such Substitute Purchaser thereafter transfers to such original Purchaser all of the Notes then held by such Substitute Purchaser, upon receipt by the Company of notice of such transfer, any reference to such Substitute Purchaser as a “Purchaser” in this Agreement (other than in this Section 21), shall no longer be deemed to refer to such Substitute Purchaser, but shall refer to such original Purchaser, and such original Purchaser shall again have all the rights of an original holder of the Notes under this Agreement.
SECTION 22. MISCELLANEOUS.
Section 22.1. Successors and Assigns. All covenants and other agreements contained in this Agreement by or on behalf of any of the parties hereto bind and inure to the benefit of their
respective successors and assigns (including any subsequent holder of a Note) whether so expressed or not, except that, subject to Section 10.2, the Company may not assign or otherwise transfer any of its rights or obligations hereunder or under the Notes or under any other Financing Document without the prior written consent of each holder. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto and their respective successors and assigns permitted hereby) any legal or equitable right, remedy or claim under or by reason of this Agreement.
Section 22.2. Accounting Terms.
(a) All accounting terms used herein which are not expressly defined in this Agreement have the meanings respectively given to them in accordance with GAAP. Except as otherwise specifically provided herein, (i) all computations made pursuant to this Agreement shall be made in accordance with GAAP, and (ii) all financial statements shall be prepared in accordance with GAAP. For purposes of determining compliance with this Agreement (including Section 9, Section 10, any Additional Provision and the definition of “Indebtedness”), any election by the Company to measure any financial liability using fair value (as permitted by Financial Accounting Standards Board Accounting Standards Codification Topic No. 825-10-25 – Fair Value Option, International Accounting Standard 39 – Financial Instruments: Recognition and Measurement or any similar accounting standard) shall be disregarded and such determination shall be made as if such election had not been made.
(b) Notwithstanding anything to the contrary herein, at no time and under no circumstances shall any lease, which is or would be deemed by GAAP as in effect prior to December 31, 2015 to be an operating lease, be treated as a Capital Lease for purposes of this Agreement, including, without limitation, in determining compliance with any Additional Financial Covenant, Section 10 or the calculation of any of the defined terms used therein, regardless of whether GAAP or any other form of accounting standards are being applied at any such time or under any such circumstances.
(c) Each of the holders of the Notes by its acceptance thereof understands and agrees with the Company that if in the reasonable opinion of the Company or the Required Holders a change in GAAP occurs which causes a change in any of the calculations contemplated by this Agreement, including, without limitation, calculations with regard to the covenants contained in Section 10 hereof, then and in such event, if the Company or the Required Holders so request, such holders and the Company shall undertake in good faith to amend any affected provisions of this Agreement so as to have an effect comparable to that as of the date of this Agreement and to accommodate such change in GAAP and to enter into an amendment hereof to reflect the same, such amendment to be in form and substance satisfactory to the Company and the Required Holders; provided that, until such provision is amended in a manner satisfactory to the Company and the Required Holders, the Company’s compliance with such provision shall be determined on the basis of GAAP as in effect and applied immediately before the relevant change became effective. In the event that such a change in GAAP causes the Company to violate any of the covenants
contained in Section 10 hereof or otherwise causes a Default or Event of Default to occur at a time when no other Default or Event of Default exists, then and in such event, anything in this Agreement to the contrary notwithstanding, no Default or Event of Default will be caused by such change in GAAP for a period of 90 days following the event which would otherwise be treated as a Default or Event of Default, and the Company shall, notwithstanding anything in Section 11 to the contrary, have 90 days from and after the date of the occurrence of such event within which to enter into an amendment with the Required Holders as herein below contemplated.
The procedure for amending this Agreement pursuant to this Section 22.2(c) shall be as follows:
(i) the Company and the Required Holders may, at any time following any such change in GAAP, and the Company shall, within 15 days of the occurrence of the event which would otherwise be treated as a Default or an Event of Default due to a change in GAAP, prepare and deliver to each holder of the Notes and to the Purchasers’ Special Counsel (in the case of an amendment requested by the Company) and to the Company (in the case of an amendment requested by the Required Holders) a proposed form of amendment;
(ii) the holders of the Notes (in the case of an amendment requested by the Company) or the Company (in the case of an amendment requested by the Required Holders) shall, within 30 days of receipt of the proposed form of amendment, deliver to the Company (in the case of an amendment requested by the Company) or to the holders of the Notes (in the case of an amendment requested by the Required Holders) their collective or its, as the case may be, response to the proposed amendment;
(iii) in the case of the occurrence of an event which would otherwise be treated as a Default or an Event of Default due to a change in GAAP, the parties shall negotiate in good faith toward the execution of the amendment contemplated by this Section 22.2(c) until the 90th day following the occurrence of such event; in any other case in which the Company or the Required Holders requests an amendment pursuant to this Section 22.2(c), the parties shall negotiate in good faith toward the execution of the amendment contemplated by this Section 22.2(c) until the 90th day following delivery of the proposed form of amendment;
(iv) in the event the parties are unable to come to an agreement on the form and substance of the amendment during any such 90- day period, the Company’s compliance with such provision shall be determined on the basis of GAAP as in effect and applied immediately before the relevant change became effective, until such provision is amended in a manner satisfactory to the Company and the Required Holders; and
(v) until such provision is amended in a manner satisfactory to the Company and the Required Holders in accordance with this Section 22.2(c), each set of financial statements delivered to holders of Notes pursuant to Section 7.1(a) or (b) shall include detailed reconciliations reasonably satisfactory to the Required Holders as to the effect of such change in GAAP on the calculation of the covenants contained in Section 10 hereof.
Section 22.3. Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall (to the full extent permitted by law) not invalidate or render unenforceable such provision in any other jurisdiction.
Section 22.4. Construction, Etc. Each covenant contained herein shall be construed (absent express provision to the contrary) as being independent of each other covenant contained herein, so that compliance with any one covenant shall not (absent such an express contrary provision) be deemed to excuse compliance with any other covenant. Where any provision herein refers to action to be taken by any Person, or which such Person is prohibited from taking, such provision shall be applicable whether such action is taken directly or indirectly by such Person.
Defined terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise
(a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein) and, for purposes of the Notes, shall also include any such notes issued in substitution therefor pursuant to Section 13, (b) subject to Section 22.1, any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Sections and Schedules shall be construed to refer to Sections of, and Schedules to, this Agreement, and (e) any reference to any law or regulation herein shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time.
Section 22.5. Counterparts; Electronic Signatures. This Agreement may be executed in any number of counterparts, each of which shall be an original but all of which together shall constitute one instrument. Each counterpart may consist of a number of copies hereof, each signed by less than all, but together signed by all, of the parties hereto. The parties agree to electronic contracting and signatures with respect to this Agreement and any other Financing Document (but not, for the avoidance of doubt, the Notes). Delivery of an electronic signature to, or a signed copy of this Agreement or any other Financing Document (other than the Notes) by facsimile, email or other electronic transmission shall be fully binding on the parties to the same extent as the delivery of the signed originals and shall be admissible into evidence for all purposes. The words “execution,” “execute,” “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this Agreement and any other Financing Document (other than the Notes) shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Company, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity
or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the
Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act. Notwithstanding the foregoing, if any Purchaser or any holder of Notes shall request manually signed counterpart signatures to this Agreement or any other Financing Document, the Company hereby agrees to use its reasonable endeavors to provide (or cause the applicable Subsidiary Guarantor to provide) such manually signed signature pages as soon as reasonably practicable.
Section 22.6. Governing Law. This Agreement shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the law of the State of New York excluding choice-of-law principles of the law of such State that would permit the application of the laws of a jurisdiction other than such State.
Section 22.7. Jurisdiction and Process; Waiver of Jury Trial.
(a) The Company irrevocably submits to the non-exclusive jurisdiction of any New York State or federal court sitting in the Borough of Manhattan, The City of New York, over any suit, action or proceeding arising out of or relating to this Agreement, the Notes or any other Financing Document. To the fullest extent permitted by applicable law, the Company irrevocably waives and agrees not to assert, by way of motion, as a defense or otherwise, any claim that it is not subject to the jurisdiction of any such court, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
(b) The Company agrees, to the fullest extent permitted by applicable law, that a final judgment in any suit, action or proceeding of the nature referred to in Section 22.7(a) brought in any such court shall be conclusive and binding upon it subject to rights of appeal, as the case may be, and may be enforced in the courts of the United States of America or the State of New York (or any other courts to the jurisdiction of which it or any of its assets is or may be subject) by a suit upon such judgment.
(c) The Company consents to process being served by or on behalf of any holder of Notes in any suit, action or proceeding of the nature referred to in Section 22.7(a) by mailing a copy thereof by registered, certified priority or express mail (or any substantially similar form of mail), postage prepaid, return receipt or delivery confirmation requested, to it at its address specified in Section 18 or at such other address of which such holder shall then have been notified pursuant to said Section. The Company agrees that such service upon receipt (i) shall be deemed in every respect effective service of process upon it in any such suit, action or proceeding and (ii) shall, to the fullest extent permitted by applicable law, be taken and held to be valid personal service upon and personal delivery to it. Notices hereunder shall be conclusively presumed received as evidenced by a
delivery receipt furnished by the United States Postal Service or any reputable commercial delivery service.
(d) Nothing in this Section 22.7 shall affect the right of any holder of a Note to serve process in any manner permitted by law, or limit any right that the holders of any of
the Notes may have to bring proceedings against the Company in the courts of any appropriate jurisdiction or to enforce in any lawful manner a judgment obtained in one jurisdiction in any other jurisdiction.
(e) THE PARTIES HERETO HEREBY WAIVE TRIAL BY JURY IN ANY ACTION BROUGHT ON OR WITH RESPECT TO THIS AGREEMENT, THE NOTES OR ANY OTHER FINANCING DOCUMENT EXECUTED IN CONNECTION HEREWITH OR THEREWITH.
Section 22.8. Divisions. For all purposes hereunder and under the other Financing Documents, if in connection with any division or plan of division pursuant to Section 18-217 of the Delaware Limited Liability Company Act law (or any comparable event under a different jurisdiction’s laws) (a “Division”): (a) any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) any new Person comes into existence, such new Person shall be deemed to have been organized by the holders of its Equity Interests at such time. Any reference in any Financing Document to a merger, consolidation, amalgamation, assignment, sale, Disposition or transfer, or similar term, shall be deemed to apply to a Division of or by a limited liability company, or an allocation of assets to a series of a limited liability company (or the unwinding of such a Division or allocation), as if it were a merger, consolidation, amalgamation, assignment, sale, Disposition or transfer, or similar term, as applicable, to, of or with a separate Person. Any Division of a limited liability company shall constitute a separate Person under the Financing Documents (and each Division of any limited liability company that is a Subsidiary, joint venture or any other like term shall also constitute such a Person) on the first date of its existence.
[Remainder of page intentionally left blank. Signature pages follow.]
If you are in agreement with the foregoing, please sign the form of agreement on a counterpart of this Agreement and return it to the Company, whereupon this Agreement shall become a binding agreement between you and the Company.
Very truly yours,
CIM GROUP MANAGEMENT, LLC,
a Delaware limited liability company
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
[Signature Page to Note Purchase Agreement - CIM Group Management, LLC]
This Agreement is hereby accepted and agreed to as of the date hereof.
ALLIANZ LIFE INSURANCE COMPANY OF NORTH AMERICA
By: Pacific Investment Management Company LLC, its sub-advisor
By: /s/Harin de Silva Name: Harin de Silva
Title: Managing Director
TALCOTT RESOLUTION LIFE INSURANCE COMPANY
By: Pacific Investment Management Company LLC, its manager
By: /s/Harin de Silva Name: Harin de Silva
Title: Managing Director
TALCOTT LIFE RE, LTD.
By: Pacific Investment Management Company LLC, its manager
By: /s/Harin de Silva Name: Harin de Silva
Title: Managing Director
[Signature Page to Note Purchase Agreement - CIM Group Management, LLC]
THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA
By: /s/ Amy Carrol
Name: Amy Carroll
Title: Managing Director
[Signature Page to Note Purchase Agreement - CIM Group Management, LLC]
PACIFIC LIFE INSURANCE COMPANY
By: /s/ Matthew Levene Name: Matthew Levene
Title: Assistant Vice President
[Signature Page to Note Purchase Agreement - CIM Group Management, LLC]
NATIONAL LIFE INSURANCE COMPANY
By: /s/ Paul Koenig Name: Paul Koenig
Title: Head of Portfolio Management National Life Group
LIFE INSURANCE COMPANY OF THE SOUTHWEST
By: /s/ Paul Koenig Name: Paul Koenig
Title: Head of Portfolio Management National Life Group
[Signature Page to Note Purchase Agreement - CIM Group Management, LLC]
DEFINED TERMS
As used herein, the following terms have the respective meanings set forth below or set forth in the Section hereof following such term:
“Acceptable Rating Agency” means Fitch, Moody’s, S&P, DBRS, or Kroll, so long as, in each case, any such credit rating agency continues to be a nationally recognized statistical rating organization recognized by the SEC and is approved as a “Credit Rating Provider” (or other similar designation) by the NAIC.
“Additional Provision” is defined in Section 9.11(a).
“Affiliate” means, at any time, and with respect to any Person, any other Person that at such time directly or indirectly through one or more intermediaries Controls, or is Controlled by, or is under common Control with, such first Person. Unless the context otherwise clearly requires, any reference to an “Affiliate” is a reference to an Affiliate of the Company.
“Agreement” means this Note Purchase Agreement, including all Schedules attached to this Agreement.
“Anti-Corruption Laws” means any law or regulation in a U.S. or any non-U.S. jurisdiction regarding bribery or any other corrupt activity, including the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act 2010.
“Anti-Money Laundering Laws” means any law or regulation in a U.S. or any non-U.S. jurisdiction regarding money laundering, drug trafficking, terrorist-related activities or other money laundering predicate crimes, including the Currency and Foreign Transactions Reporting Act of 1970 (otherwise known as the Bank Secrecy Act) and the USA PATRIOT Act.
“Below Investment Grade Rating Acceptance Notification Date” is defined in Section
8.9(a).
“Below Investment Grade Rating Notice” is defined in Section 8.9(a).
“Below Investment Grade Rating Offer” is defined in Section 8.9(a).
“Below Investment Grade Rating Prepayment Date” is defined in Section 8.9(a).
“Blocked Person” means (a) a Person whose name appears on the list of Specially
Designated Nationals and Blocked Persons published by OFAC, (b) a Person, entity, organization, country or regime that is blocked or a target of sanctions that have been imposed under U.S. Economic Sanctions Laws or (c) a Person that is an agent, department or instrumentality of, or is otherwise beneficially owned by, controlled by or acting on behalf of, directly or indirectly, any Person, entity, organization, country or regime described in clause (a) or (b).
SCHEDULE A
(to Note Purchase Agreement)
“Business Day” means (a) for the purposes of Section 8.6 only, any day other than a Saturday, a Sunday or a day on which commercial banks in New York City are required or authorized to be closed, and (b) for the purposes of any other provision of this Agreement, any day other than a Saturday, a Sunday or a day on which commercial banks in New York, New York are required or authorized to be closed.
“Capital Lease” means, at any time, a lease with respect to which the lessee is required concurrently to recognize the acquisition of an asset and the incurrence of a liability in accordance with GAAP.
“Change of Control” means any of the following events:
(a) at any time prior to the creation of a Public Market, Permitted Investors shall cease to Control the Company; or
(b) any time on or after the creation of a Public Market, any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) other than a Permitted Investor or any employee benefit plan or person acting in its capacity as trustee, agent or other fiduciary or administrator of such plan, shall become the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 of Exchange Act), directly or indirectly, of more than 50.0% of the outstanding voting Equity Interests of the Company on a fully diluted basis.
“Change of Control Acceptance Notice Date” is defined in Section 8.7(a).
“Change of Control Notice” is defined in Section 8.7(a).
“Change of Control Offer” is defined in Section 8.7(a).
“Change of Control Prepayment Date” is defined in Section 8.7(a).
“CIM Founding Principals” means any of Shaul Kuba, Richard Ressler or Avraham Shemesh.
“CIM Fund” means (a) any single-investor or commingled investment vehicle, fund, partnership, limited liability company or account that is sponsored, managed and/or serviced (or co-sponsored, co-managed and/or co-serviced), directly or indirectly, by an Obligor or any of its Subsidiaries or (b) any entity that, upon an Obligor’s or an Obligor’s Subsidiary’s making an investment therein or acquiring management rights with respect thereto, would constitute an entity described in clause (a) of this definition.
“Closing” is defined in Section 3.
“Code” means the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder from time to time.
“Company” is defined in the first paragraph of this Agreement.
“Confidential Information” is defined in Section 20.
“Consolidated Adjusted EBITDA” means, for any period, for the Company and its Subsidiaries on a consolidated basis, an amount equal to (a) Consolidated EBITDA for such
period, minus (b) to the extent included in calculating Consolidated EBITDA for such period, any unpaid Eligible Revenues accrued during such period that have been extended and/or deferred beyond their original stated due date with the approval and/or agreement of the payee (including any such Eligible Revenues that have been subordinated as permitted under this Agreement), provided that if any Eligible Revenues are excluded in any given period due to the fact that it was extended and/or deferred under clause (b), such Eligible Revenues shall be included in Consolidated Adjusted EBITDA in the period in which it is paid.
“Consolidated EBITDA” means, for any period, for the Company and its Subsidiaries on a consolidated basis, without duplication, an amount equal to the sum of (a) Consolidated Net Income for such period, plus (b) the following to the extent deducted in calculating such Consolidated Net Income for such period: (i) Consolidated Interest Charges for such period; (ii) the provision for federal, state, local and foreign income taxes (or similar taxes imposed in lieu of income tax) payable for such period (iii) the amount of depreciation and amortization expense for such period; (iv) amortization of intangibles (including goodwill) and organization costs; (v) any extraordinary, non-recurring, unusual or exceptional losses, charges and expenses for such period, including without limitation, non-recurring severance payments, sales of assets, early extinguishment or restructuring of indebtedness (including prepayment premiums), acquisitions costs, reorganizations costs, write-offs, forgiveness of debt, placement fees, fund organizational expenses; (vi) non-cash charges for such period, including amortization or other expenses for stock options and other equity compensation and impairment charges or expenses; and (viii) net unrealized losses (gains), including unrealized performance allocation or incentive fee expense (revenue).
“Consolidated Interest Charges” means, for any period, for the Company and its Subsidiaries on a consolidated basis, the sum of (a) all interest, premium payments, debt discount, fees, charges and related expenses in respect of Indebtedness (including dividends on disqualified stock), in each case to the extent treated as interest in accordance with GAAP, (b) the portion of rent expense with respect to such period under Capital Leases that is treated as interest in accordance with GAAP, (c) the implied interest component of synthetic lease obligations with respect to such period and (d) net losses on hedge agreements or other derivative instruments entered into for the purpose of hedging interest rate risk.
“Consolidated Net Income” means, for any period, for the Company and its Subsidiaries on a consolidated basis, the net income (excluding extraordinary gains and losses) for that period as determined in accordance with GAAP.
“Consolidated Net Funded Indebtedness” means, as of any date of determination with respect to the Company and its Subsidiaries at such date, determined on a consolidated basis in accordance with GAAP, without duplication, (a) the sum of: (i) the outstanding principal amount
of all obligations for borrowed money (including the obligations hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments; (ii) the maximum amount available to be drawn under issued and outstanding letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments; (ii) all obligations in respect of the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business) to the extent if and when such obligations are recognized as a liability under GAAP; (iv) all purchase money indebtedness;
(v) all attributable Indebtedness; (vi) all Disqualified Stock; (vii) all Guaranties with respect to Indebtedness of the types specified in clauses (i) through (vi) of another person to the extent of the reasonably estimated liability of the Company and its Subsidiaries; and (viii) all Indebtedness of the types referred to in clauses (i) through (vii) of any partnership in which the Company or any Subsidiary is a general partner, except to the extent that Indebtedness is expressly made non-recourse to such person; provided that Consolidated Net Funded Indebtedness shall not include (1) any guaranteed Indebtedness for which recourse to such borrower is contractually limited to liability for customary recourse exceptions; (2) any so-called carry or completion guarantee; (3) any Indebtedness arising under any hedging or netting arrangement prior to the occurrence of a termination event with respect thereto; (4) operating leases and trade liabilities incurred in the ordinary course of business and payable in accordance with customary or past practices; (5) prepaid or deferred revenue arising in the ordinary course of business and not overdue for more than 60 days; (6) purchase price holdbacks arising in the ordinary course of business; (7) earn-out obligations until such obligations become a liability in accordance with GAAP; (8) any Indebtedness of employees of the Company or any of its Subsidiaries that is guaranteed by the Company or any Subsidiary for the benefit of such employees to invest in the Company, its Subsidiaries or a CIM Fund, as part of an employee investment plan; and (9) any obligations incurred under ERISA in the ordinary course of business, less (b) the sum of unrestricted cash and cash equivalents free and clear of all Liens (other than (x) Liens in favor of the Noteholders (or their collateral agent) or holders of other Indebtedness secured equally and ratably with or on a junior basis to the Notes and (y) Liens (not securing any Indebtedness) in favor of depositary institutions or other customary liens arising by operation of law) as of the date of determination as of the date of determination.
“Consolidated Net Leverage Ratio” is defined in Section 10.8(a).
“Control” means the beneficial ownership, direct or indirect, of more than 50% of the outstanding voting Equity Interests of a Person on a fully-diluted basis and the power to appoint a majority of the board of directors or other most senior governing board of such Person, whether through the ownership of voting securities, by contract or otherwise; and the terms “Controlled” and “Controlling” shall have meanings correlative to the foregoing.
“Controlled Entity” means (a) any of the Subsidiaries of the Company and any of their or the Company’s respective Controlled Affiliates and (b) if the Company has a parent company, such parent company and its Controlled Affiliates.
“Cure Expiration Date” is defined in Section 10.8(a). “DBRS” means DBRS, Inc., and any successor thereto.
“Debt Rating” means the debt rating of each Series of the Notes as determined from time to time by any Acceptable Rating Agency.
“Default” means an event or condition the occurrence or existence of which would, with the lapse of time or the giving of notice or both, become an Event of Default.
“Default Rate” means that rate of interest per annum that is the greater of (a) 2.0% above the rate of interest stated in clause (a) of the first paragraph of the Notes or (b) 2.0% over the rate
of interest publicly announced by Citibank, N.A. in New York, New York as its “base” or “prime” rate.
“Disclosure Documents” is defined in Section 5.3.
“Disposition” means the sale, transfer, license, lease or other disposition of any property by any Obligor or any Subsidiary, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.
“Disqualified Stock” means, any Equity Interest in the Company or its Subsidiaries that
(a) matures or is mandatorily redeemable, other than an Equity Interest which is redeemable solely in exchange for other Equity Interests; (b) is convertible into or exchange or exercisable for Consolidated Net Funded Indebtedness; or (c) is redeemable at the option of its holder, in whole or in part, other than Equity Interests which are redeemable solely in exchange for other Equity Interests which are not “Disqualified Stock”, in each case on or prior to the Maturity Date.
“EDGAR” means the SEC’s Electronic Data Gathering, Analysis and Retrieval System or any successor SEC electronic filing system for such purposes.
“Eligible Revenue Percentage” means (a) at any time Fee Earning Equity Owned and Operated is less than $13,271,126,000, 80% of Eligible Revenues and (b) at all other times, 70% of Eligible Revenues.
“Eligible Revenues” means Management Fees, reimbursements, realized incentive fees, and realized performance allocations paid or payable to the Company or any Subsidiary.
“Environmental Laws” means any and all federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to Hazardous Materials.
“ERISA” means the Employee Retirement Income Security Act of 1974 and the rules and regulations promulgated thereunder from time to time in effect.
“ERISA Affiliate” means any trade or business (whether or not incorporated) that is treated as a single employer together with the Company under section 414 of the Code.
“Estate Planning Entity” means with respect to any individual, (a) any trust, the beneficiaries of which are primarily such individual and/or any Immediate Family Relative, or (b) any corporation, partnership, limited liability company or other entity that is primarily owned and controlled, directly or indirectly, by such individual, any Immediate Family Relative and/or any of the persons described in clause (a).
“Event of Default” is defined in Section 11.
“Equity Interests” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any such Equity Interest. As used in this Agreement, “Equity Interests” shall not include convertible Indebtedness unless and until such Indebtedness has been converted to capital stock.
“Exchange Act” means the Securities Exchange Act of 1934.
“FATCA” means (a) sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), together with any current or future regulations or official interpretations thereof, (b) any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the United States of America and any other jurisdiction, which (in either case) facilitates the implementation of the foregoing clause (a), and (c) any agreements entered into pursuant to section 1471(b)(1) of the Code.
“Fee Earning Equity Owned and Operated” means, at any time, the sum of (a) the aggregate net asset value before incentive fee allocations of all CIM Funds that generate (directly and/or through investments) any Eligible Revenues for the Company and/or any of its Subsidiaries and/or any entities jointly owned with a co-sponsor, co-manager or co-servicer based upon the sponsorship, management and/or servicing by the Company or any Subsidiary, as most recently reported by the Company or any Affiliate of the Company (and/or, in the case of any co-sponsored, co-managed or co-serviced CIM Fund, by any co-sponsor, co-manager or co-servicer) to the investors in such CIM Funds, plus (b) the aggregate amount, at the applicable report date(s), of unfunded commitments to all CIM Funds; provided that with respect to any CIM Fund that is cosponsored, co-managed and/or co-serviced by a person that is not an Affiliate of the Company, the Fee Earning Equity Owned and Operated of such CIM Fund shall at any time be equal to the Obligors’ pro rata share of such CIM Fund’s net asset value before incentive fee allocations and unfunded commitments (as determined by the Company in good faith based on the relative amount of asset management fees and other similar fees then being earned by the Obligors or their subsidiaries and by the other co-sponsor, co-manager and/or co-servicer of such CIM Fund).
“Financial Covenant” means any covenant (whether set forth as a covenant, undertaking, event of default, restriction or other provision, including in related definitions and any provision related to the treatment of operating leases in connection with such covenant) that requires the Company or any Subsidiary to achieve or maintain a stated level of financial condition or performance and includes, without limitation, any requirement that the Company or any Subsidiary:
(a) maintain a specified level of net worth, shareholders’ equity, total assets, cash flow or net income;
(b) maintain any relationship of any component of its capital structure to any other component thereof (including, without limitation, the relationship of indebtedness, senior indebtedness or subordinated indebtedness to total capitalization or to net worth); and
(c) maintain any measure of its ability to service its indebtedness (including, without limitation, exceeding any specified ratio of revenues, cash flow or net income to indebtedness, interest expense, rental expense, capital expenditures and/or scheduled payments of indebtedness).
“Financing Documents” means, collectively, this Agreement, the Notes, each Subsidiary Guaranty, each Guarantor Supplement, and any other agreement, certificate and/or instrument executed and/or delivered in connection therewith, each as may be amended, restated or otherwise modified from time to time.
“Fitch” means Fitch, Inc., and any successor thereto.
“Form 10-K” is defined in Section 7.1(b).
“Form 10-Q” is defined in Section 7.1(a).
“GAAP” means (a) generally accepted accounting principles as in effect from time to time in the United States of America and (b) for purposes of Section 9.6, with respect to any Subsidiary, generally accepted accounting principles (including International Financial Reporting Standards, as applicable) as in effect from time to time in the jurisdiction of organization of such Subsidiary.
“Governmental Authority” means
(a) the government of
(i) the United States of America or any state or other political subdivision thereof, or
(ii) any other jurisdiction in which the Company or any Subsidiary conducts all or any part of its business, or which asserts jurisdiction over any properties of the Company or any Subsidiary, or
(b) any entity exercising executive, legislative, judicial, regulatory or administrative functions of, or pertaining to, any such government.
“Governmental Official” means any governmental official or employee, employee of any government-owned or government-controlled entity, political party, any official of a political party, candidate for political office, official of any public international organization or anyone else acting in an official capacity.
“Guarantor Supplement” is defined in Section 9.7(a)(i).
“Guaranty” means, with respect to any Person, any obligation (except the endorsement in the ordinary course of business of negotiable instruments for deposit or collection) of such Person guaranteeing or in effect guaranteeing any indebtedness, dividend or other obligation of any other Person in any manner, whether directly or indirectly, including obligations incurred through an agreement, contingent or otherwise, by such Person:
(a) to purchase such indebtedness or obligation or any property constituting security therefor;
(b) to advance or supply funds (i) for the purchase or payment of such indebtedness or obligation, or (ii) to maintain any working capital or other balance sheet condition or any income statement condition of any other Person or otherwise to advance or make available funds for the purchase or payment of such indebtedness or obligation;
(c) to lease properties or to purchase properties or services primarily for the purpose of assuring the owner of such indebtedness or obligation of the ability of any other Person to make payment of the indebtedness or obligation; or
(d) otherwise to assure the owner of such indebtedness or obligation against loss in respect thereof.
In any computation of the indebtedness or other liabilities of the obligor under any Guaranty, the indebtedness or other obligations that are the subject of such Guaranty shall be assumed to be direct obligations of such obligor.
“Hazardous Materials” means any and all pollutants, toxic or hazardous wastes or other substances that might pose a hazard to health and safety, the removal of which may be required or the generation, manufacture, refining, production, processing, treatment, storage, handling, transportation, transfer, use, disposal, release, discharge, spillage, seepage or filtration of which is or shall be restricted, prohibited or penalized by any applicable law, including asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls, petroleum, petroleum products, lead based paint, radon gas or similar restricted, prohibited or penalized substances.
“holder” means, with respect to any Note, the Person in whose name such Note is registered in the register maintained by the Company pursuant to Section 13.1, provided, however, that if such Person is a nominee, then for the purposes of Sections 7, 12, 17.2 and 18 and any related definitions in this Schedule A, “holder” shall mean the beneficial owner of such Note whose name and address appears in such register.
“Immediate Family Relative” means an individual’s lineal descendants (including any such descendants by adoption), siblings, parents, spouse, former spouses, current civil union partner, former civil union partners and the estates, guardians, custodians or other legal representatives of any of the foregoing.
“INHAM Exemption” is defined in Section 6.2(e).
“Indebtedness” with respect to any Person means, at any time, without duplication,
(a) its liabilities for borrowed money and its redemption obligations in respect of mandatorily redeemable Preferred Stock;
(b) its liabilities for the deferred purchase price of property acquired by such Person (excluding accounts payable arising in the ordinary course of business but including
all liabilities created or arising under any conditional sale or other title retention agreement with respect to any such property);
(c) (i) all liabilities appearing on its balance sheet in accordance with GAAP in respect of Capital Leases and (ii) all liabilities which would appear on its balance sheet in accordance with GAAP in respect of Synthetic Leases assuming such Synthetic Leases were accounted for as Capital Leases;
(d) all liabilities for borrowed money secured by any Lien with respect to any property owned by such Person (whether or not it has assumed or otherwise become liable for such liabilities);
(e) all its liabilities in respect of letters of credit or instruments serving a similar function issued or accepted for its account by banks and other financial institutions (whether or not representing obligations for borrowed money);
(f) the aggregate Swap Termination Value of all Swap Contracts of such Person; and
(g) any Guaranty of such Person with respect to liabilities of a type described in any of clauses (a) through (f) hereof.
Indebtedness of any Person shall include all obligations of such Person of the character described in clauses (a) through (g) to the extent such Person remains legally liable in respect thereof notwithstanding that any such obligation is deemed to be extinguished under GAAP.
“Institutional Investor” means (a) any Purchaser of a Note, (b) any holder of a Note holding (together with one or more of its affiliates) more than 5% of the aggregate principal amount of the Notes then outstanding, (c) any bank, trust company, savings and loan association or other financial institution, any pension plan, any investment company, any insurance company, any broker or dealer, or any other similar financial institution or entity, regardless of legal form, and
(d) any Related Fund of any holder of any Note.
“Investment Advisers Act” means the Investment Advisers Act of 1940, as amended and the rules and regulations of the SEC thereunder, as modified or interpreted by orders of the SEC, or other interpretative releases or letters issued by the SEC or its staff, all as from time to time in
effect, or any successor law, rules or regulations, and any reference to any statutory or regulatory provision shall be deemed to be a reference to any successor statutory or regulatory provision.
“Investment Grade” is defined in the definition of “Investment Grade Rating”.
“Investment Grade Rating” means a Debt Rating assigned to the Notes from at least one Acceptable Rating Agency equal to or higher than (a) BBB- (or the equivalent) by Fitch, S&P, Kroll or DBRS, or (b) Baa3 by Moody’s (such ratings under clause (a) and clause (b) being “Investment Grade”); provided, that:
(i) if at any time there are two Debt Ratings assigned to the Notes from Acceptable Rating Agencies, and the lower of such Debt Ratings that is in full force and effect (not having been withdrawn) is less than Investment Grade, then the Notes shall be deemed not to have an “Investment Grade Rating”;
(ii) if at any time there are three or more Debt Ratings assigned to the Notes from Acceptable Rating Agencies, and the then second lowest of such Debt Ratings that is in full force and effect (not having been withdrawn) is less than Investment Grade, then the Notes shall be deemed not to have an “Investment Grade Rating” (provided, for the avoidance of doubt, if two or more of such Debt Ratings are equal or equivalent as the lowest such Debt Rating, then one of such equal or equivalent Debt Ratings will be deemed to be the second lowest Debt Rating for purposes of such determination); and
(iii) if the Company shall have failed to maintain a Debt Rating or receive and deliver to the holders of the Notes a Private Rating Letter from at least one Acceptable Rating Agency, in each case as required pursuant to Section 9.10, then the Notes shall be deemed not to have an “Investment Grade Rating”.
“Key Employees” means any of Bethany Chang, Jeff Columbus, Jordan Dembo, Robert Dupree, Jennifer Gandin, Adam Gibbons, Ryan Harter, Michael Hoverman, Nick Morosoff, Mukya Porter Jason Schreiber, Jolly Singh, David Thompson, Emily Vande Krol and any other employee of the Company or any of its Subsidiaries that is promoted to or designated a “Principal.”
“Kroll” means Kroll Bond Rating Agency, LLC, and any successor thereto.
“Lien” means, with respect to any property, any mortgage, lien, pledge, charge, security interest or other similar encumbrance on such property, or any interest or title of any vendor, lessor, lender or other secured party to or of such property under any conditional sale or other title retention agreement or Capital Lease, upon or with respect to such property.
“Make-Whole Amount” is defined in Section 8.6.
“Management Fees” means any fund management fees, property management fees, development fees, leasing or sales commissions or any other similar fees (but for the avoidance of doubt excluding any incentive fees, performance allocations, or carried interest) paid or payable to the Company or any Subsidiary.
“Material” means material in relation to the business, operations, affairs, financial condition, assets or properties of the Company and its Subsidiaries taken as a whole.
“Material Adverse Effect” means a material adverse effect on (a) the business, operations, affairs, financial condition, assets or properties of the Company and its Subsidiaries taken as a whole, (b) the ability of the Company and the Subsidiary Guarantors, taken as a whole to perform their respective obligations under this Agreement or the Notes (in respect of the Company) or any Subsidiary Guaranty (in respect of any Subsidiary Guarantor) or (c) the validity or enforceability of this Agreement, the Notes or any other Financing Document.
“Material Credit Facility” means, as to the Company and its Subsidiaries, any agreement(s) creating or evidencing indebtedness for borrowed money entered into by the Company or any Subsidiary, or in respect of which the Company or any Subsidiary is an obligor or otherwise provides a guarantee or other credit support (“Credit Facility”), in a principal amount outstanding or available for borrowing equal to or greater than $50,000,000 (or the equivalent of such amount in the relevant currency of payment, determined as of the date of the closing of such facility based on the exchange rate of such other currency).
“Maturity Date” is defined in the first paragraph of each Note.
“Memorandum” is defined in Section 5.3.
“Moody’s” means Moody’s Investors Services, Inc. and any successor thereto.
“Multiemployer Plan” means any Plan that is a “multiemployer plan” (as such term is defined in section 4001(a)(3) of ERISA).
“NAIC” means the National Association of Insurance Commissioners.
“Non-U.S. Plan” means any plan, fund or other similar program that (a) is established or maintained outside the United States of America by the Company or any Subsidiary primarily for the benefit of employees of the Company or one or more Subsidiaries residing outside the United States of America, which plan, fund or other similar program provides, or results in, retirement income, a deferral of income in contemplation of retirement or payments to be made upon termination of employment, and (b) is not subject to ERISA or the Code.
“Notes” is defined in Section 1.1.
“Obligors” means the Company and each Subsidiary Guarantor.
“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.
“OFAC Sanctions Program” means any economic or trade sanction that OFAC is responsible for administering and enforcing. A list of OFAC Sanctions Programs may be found at http://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx.
“Officer’s Certificate” means a certificate of a Senior Financial Officer or of any other officer of the Company whose responsibilities extend to the subject matter of such certificate.
“Original Subsidiary Guarantors” means, collectively, CIM Controlled Company Management, LLC, a Delaware limited liability company; CIM Atlanta Manager, LLC, a Delaware limited liability company; CIM Service Provider, LLC, a Delaware limited liability company; CIM Capital SA Management, LLC, a Delaware limited liability company; CCO Group, LLC, a Delaware limited liability company; CIM Real Estate Finance Management, LLC, a Delaware limited liability company; CREI Advisors, LLC, an Arizona limited liability company; CIM Management, Inc., a California corporation; CIM Group, L.P., a California limited partnership; CIM SBA Staffing, LLC, a Delaware limited liability company; 246 Spring Street
(NY) Manager, LLC, a Delaware limited liability company; 432 Park Management, LLC, a Delaware limited liability company; CIM Group Hotel, LLC, a California limited liability company; CIM Real Estate Services, LLC, a Delaware limited liability company; CIM NY Management, LLC, a New York limited liability company; CIM TX Management, LLC, a Delaware limited liability company; CIM Capital, LLC, a Delaware limited liability company; CIM Capital Securities Management, LLC, a Delaware limited liability company; CIM Capital RE Debt Management, LLC, a Delaware limited liability company; CIM Capital Real Property Management, LLC, a Delaware limited liability company; CIM Capital Controlled Company Management, LLC, a Delaware limited liability company; CIM Capital IC Management, LLC, a Delaware limited liability company; CIM Lending Services, LLC, a Delaware limited liability company; and CIM RE Debt Management, LLC, a Delaware limited liability company; L-55 Hawthorne Co-Investor Manager, LLC, a Delaware limited liability company; H-55 Hawthorne REIT Manager, LLC, a Delaware limited liability company; CMMT Partners GP, LLC, a Delaware limited liability company; CMMT Korea GP, LLC, a Delaware limited liability company; CIM Opportunity Zone Fund SLP, LLC, a Delaware limited liability company; CIM EPIC II QOF SLP, LLC a Delaware limited liability company; H-Turtle Creek Village Co-Investor Manager, LLC, a Delaware limited liability company; CMMT SLP, LLC, a Delaware limited liability company; CIM SMA I Sponsor, LLC, a California limited liability company; CIM Infrastructure SLP, LLC, a California limited liability company; CIM Infrastructure II SLP, LLC, a Delaware limited liability company; CIM Infrastructure III SLP, LLC, a Delaware limited liability company; CIM Fund IX SLP, LLC, a Delaware limited liability company; CIM Urban Income Investments GP, LLC, a Delaware limited liability company; S-9th Avenue Co-Investor Manager, LLC, a Delaware limited liability company; and CIM Income NAV Management, LLC, a Delaware limited liability company.
“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA.
“Permitted Dispositions” means (a) Dispositions of assets in the ordinary course of business on fair and reasonable terms, (b) Dispositions of property by an Obligor to any other Obligor or to a Wholly-Owned Subsidiary, (c) Dispositions by any Subsidiary which is not an Obligor to another Subsidiary, (d) Dispositions of obsolete, damaged, uneconomic or worn out assets, or assets no longer used or useful in the conduct of the Obligors’ business and (e) Dispositions consisting of Restricted Payments permitted in accordance with Section 10.7.
“Permitted Investors” means (a) any of the CIM Founding Principals, (b) any of the Key Employees (excluding any such Key Employees who were not Key Employees at least twelve (12) months prior to obtaining a majority or more of the outstanding Equity Interests of the Company);
(c) any Immediate Family Relative of any of the CIM Founding Principals or Key Employees; (d) any Estate Planning Entity for the benefit of any person(s) described in clauses (a) through (c), (e) any family charitable foundation over which any person(s) described in subclauses (a) through (c) has direction, (f) Mitsui & Co., Ltd. and its controlled affiliates, (g) Sabre Investments LLC and its controlled affiliates and (h) any group (as defined in section 13(d) of the Exchange Act) containing any of the foregoing “Permitted Investors” so long as such members of such group own and control legal and beneficially at least 50.1% of the outstanding voting Equity Interests of the group.
“Permitted Tax Distributions” means, for each taxable year (or portion thereof) of the Company for which the Company is treated as a disregarded entity or partnership for U.S. federal, state and/or local income tax purposes, distributions to the Company’s direct owner(s) to fund the
U.S. federal, state and/or local income tax liability of such owner(s) (or, if a direct owner is a disregarded entity or partnership for U.S. federal, state and/or local income tax purposes, of the Company’s ultimate indirect owner(s)) for such taxable year (or portion thereof) attributable to the operations and activities of the Company (and those of any Subsidiaries that are treated as disregarded entities or partnerships for U.S. federal, state and/or local income tax purposes), in an amount not to exceed the product of (a) the amount of net taxable income (for the avoidance of doubt, calculated in accordance with the assumptions and limitations set forth in this definition) of the Company (and the Company’s allocable share of the net taxable income of any Subsidiaries that are treated as disregarded entities or partnerships for U.S. federal, state and/or local income tax purposes) for such taxable year (or portion thereof), reduced by net taxable loss or tax credit of the Company (and the Company’s allocable share of the net taxable loss or tax credit of any Subsidiaries that are treated as disregarded entities or partnerships for U.S. federal, state and/or local income tax purposes) with respect to the current taxable year and all prior taxable years (or portions thereof) to the extent deductible or creditable against such taxable income and to the extent such loss or credit has not previously been applied to reduce taxable income under this clause (a), times (b) the maximum combined U.S. federal, state and local income tax rates applicable to such income for such taxable year (or portion thereof) applicable to an individual residing in New York City, taking into account the character of the Company’s income, the deductibility (and any limitations thereon) of state and local income taxes and the deductibility (and any limitations thereon) of expenses.
“Person” means an individual, partnership, corporation, limited liability company, association, trust, unincorporated organization, business entity or governmental authority.
“Plan” means an “employee benefit plan” (as defined in section 3(3) of ERISA) subject to Title I of ERISA that is or, within the preceding five years, has been established or maintained, or to which contributions are or, within the preceding five years, have been made or required to be made, by the Company or any ERISA Affiliate or with respect to which the Company or any ERISA Affiliate may have any liability.
“Preferred Stock” means any class of capital stock of a Person that is preferred over any other class of capital stock (or similar equity interests) of such Person as to the payment of dividends or the payment of any amount upon liquidation or dissolution of such Person.
“Private Rating Letter” means a letter issued by an Acceptable Rating Agency in connection with any private debt rating for a Series of the Notes, which (a) sets forth the Debt Rating for such Series of the Notes, (b) refers to the Private Placement Number issued by Standard & Poor’s CUSIP Bureau Service in respect of such Series of the Notes, (c) addresses the likelihood of payment of both principal and interest on the Notes (which requirement shall be deemed satisfied if either (x) such letter includes confirmation that the rating reflects the Acceptable Rating Agency’s assessment of the Company’s ability to make timely payment of principal and interest on the Notes or a similar statement or (y) such letter is silent as to the Acceptable Rating Agency’s assessment of the likelihood of payment of both principal and interest and does not include any indication to the contrary), (d) includes such other information describing the relevant terms of the
Notes as may be required from time to time by the SVO or any other Governmental Authority having jurisdiction over any holder of any Notes and (e) shall not be subject to confidentiality provisions or other restrictions which would prevent or limit the letter from being shared with the SVO or any other Governmental Authority having jurisdiction over any holder of any Notes.
“Private Rating Rationale Report” means, with respect to any Private Rating Letter, a report issued by the Acceptable Rating Agency in connection with such Private Rating Letter setting forth an analytical review of the Notes explaining the transaction structure, methodology relied upon, and, as appropriate, analysis of the credit, legal, and operational risks and mitigants supporting the assigned Private Rating for the relevant Series of the Notes, in each case, on the letterhead of the Acceptable Rating Agency or its controlled website and generally consistent with the work product that an Acceptable Rating Agency would produce for a similar publicly rated security and otherwise in form and substance generally required by the SVO or any other Governmental Authority having jurisdiction over any holder of any Notes from time to time. Such report shall not be subject to confidentiality provisions or other restrictions which would prevent or limit the report from being shared with the SVO or any other Governmental Authority having jurisdiction over any holder of any Notes.
“property” or “properties” means, unless otherwise specifically limited, real or personal property of any kind, tangible or intangible, choate or inchoate.
“PTE” is defined in Section 6.2(a).
“Public Market” means (a) a Public Offering has been consummated or (b) the Company has a class of Equity Interests registered under Section 12(b) or 12(g) of the Exchange Act.
“Public Offering” means a public offering of the Equity Interests of the Company in an underwritten primary public offering (other than a public offering pursuant to a registration statement on Form S-8 (or successor form)) or a direct listing, in each case, pursuant to an effective registration statement filed with the SEC in accordance with the Securities Act (whether alone or in connection with a secondary public offering).
“Purchaser” or “Purchasers” means each of the purchasers that has executed and delivered this Agreement to the Company and such Purchaser’s successors and assigns (so long as any such assignment complies with Section 13.2), provided, however, that any Purchaser of a Note that ceases to be the registered holder or a beneficial owner (through a nominee) of such Note as the result of a transfer thereof pursuant to Section 13.2 shall cease to be included within the meaning of “Purchaser” of such Note for the purposes of this Agreement upon such transfer.
“Purchasers’ Special Counsel” is defined in Section 4.4.
“Purchaser Schedule” means the Purchaser Schedule to this Agreement listing the Purchasers of the Notes and including their notice and payment information.
“Qualified Institutional Buyer” means any Person who is a “qualified institutional buyer” within the meaning of such term as set forth in Rule 144A(a)(1) under the Securities Act.
“QPAM Exemption” is defined in Section 6.2(d).
“Related Fund” means, with respect to any holder of any Note, any fund or entity that
(a) invests in Securities or bank loans, and (b) is advised or managed by such holder, the same investment advisor as such holder or by an affiliate of such holder or such investment advisor.
“Required Holders” means at any time on or after the Closing, the holders of more than 50% in principal amount of the Notes at the time outstanding (exclusive of Notes then owned by the Company or any of its Affiliates).
“Responsible Officer” means any Senior Financial Officer and any other officer of the Company with responsibility for the administration of the relevant portion of this Agreement.
“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests of any Person, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such Equity Interests or on account of any return of capital to such Person’s stockholders, partners or members (or the equivalent Person thereof), or any option, warrant or other right to acquire any such dividend or other distribution or payment.
“Revolving Credit Agreement” means that certain Amended and Restated Revolving Credit Agreement, dated December 17, 2019, among the Company, the Lenders (as defined therein) from time to time party thereto and Comerica Bank, as administrative agent, including any renewals, extensions, amendments, supplements, restatements, replacements or refinancings thereof.
“S&P” means Standard & Poor’s Rating Services, a Standard & Poor’s Financial Services LLC business, and any successor thereto.
“SEC” means the Securities and Exchange Commission of the United States of America.
“Securities” or “Security” shall have the meaning specified in section 2(1) of the Securities Act.
“Securities Act” means the Securities Act of 1933 and the rules and regulations promulgated thereunder from time to time in effect.
“Senior Financial Officer” means the chief financial officer, principal accounting officer, treasurer or comptroller of the Company.
“Series” means any one or more Series of Notes issued hereunder.
“Series A Notes” is defined in Section 1.1(a). “Series B Notes” is defined in Section 1.1(b). “Series C Notes” is defined in Section 1.1(c).
“Significant Subsidiary” means at any time any Subsidiary that would at such time constitute a “significant subsidiary” (as such term is defined in Regulation S-X of the SEC as in effect on the date of the Closing) of the Company.
“Source” is defined in Section 6.2.
“Specified Equity Contribution” is defined in Section 10.8(a).
“State Sanctions List” means a list that is adopted by any state Governmental Authority within the United States of America pertaining to Persons that engage in investment or other commercial activities in Iran or any other country that is a target of economic sanctions imposed under U.S. Economic Sanctions Laws.
“Subsidiary” means, as to any Person, any other Person in which such first Person or one or more of its Subsidiaries or such first Person and one or more of its Subsidiaries owns sufficient equity or voting interests to enable it or them (as a group) ordinarily, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such second Person, and any partnership or joint venture if more than a 50% interest in the profits or capital thereof is owned by such first Person or one or more of its Subsidiaries or such first Person and one or more of its Subsidiaries (unless such partnership or joint venture can and does ordinarily take major business actions without the prior approval of such Person or one or more of its Subsidiaries). Unless the context otherwise clearly requires, any reference to a “Subsidiary” is a reference to a Subsidiary of the Company.
“Subsidiary Guarantor” means is defined in Section 1.2 “Subsidiary Guaranty” is defined in Section 1.2. “Substitute Purchaser” is defined in Section 21.
“SVO” means the Securities Valuation Office of the NAIC.
“Swap Contract” means (a) any and all interest rate swap transactions, basis swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward foreign exchange transactions, cap transactions, floor transactions, currency options, spot contracts or any other similar transactions or any of the foregoing (including any options to enter into any of the foregoing), and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc. or any International Foreign Exchange Master Agreement.
“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amounts(s) determined as the mark-to-market
values(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts.
“Synthetic Lease” means, at any time, any lease (including leases that may be terminated by the lessee at any time) of any property (a) that is accounted for as an operating lease under GAAP and (b) in respect of which the lessee retains or obtains ownership of the property so leased for U.S. federal income tax purposes, other than any such lease under which such Person is the lessor.
“United States Person” has the meaning set forth in Section 7701(a)(30) of the Code.
“USA PATRIOT Act” means United States Public Law 107-56, Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 and the rules and regulations promulgated thereunder from time to time in effect.
“U.S. Economic Sanctions Laws” means those laws, executive orders, enabling legislation or regulations administered and enforced by the United States pursuant to which economic sanctions have been imposed on any Person, entity, organization, country or regime, including the Trading with the Enemy Act, the International Emergency Economic Powers Act, the Iran Sanctions Act, the Sudan Accountability and Divestment Act and any other OFAC Sanctions Program.
“Wholly-Owned Subsidiary” means, at any time, any Subsidiary all of the equity interests (except directors’ qualifying shares, employee and profit-sharing interests) and voting interests of which are owned by any one or more of the Company and the Company’s other Wholly-Owned Subsidiaries at such time.
SCHEDULE 1.1(a) [FORM OF SERIES A NOTE]
CIM GROUP MANAGEMENT, LLC
6.42% SERIES A SENIOR NOTE DUE AUGUST 30, 2029
No. RA-[ ] [ ], [ ]
$[ ] PPN 12761* AA2
FOR VALUE RECEIVED, the undersigned, CIM GROUP MANAGEMENT, LLC
(herein called the “Company”), a limited liability company organized and existing under the laws of the State of Delaware, hereby promises to pay to [ ], or registered assigns, the principal sum of [ ] DOLLARS (or so much thereof as shall not have been prepaid) on August 30, 2029 (the “Maturity Date”), with interest (computed on the basis of a 360-day year of twelve 30-day months) (a) on the unpaid balance hereof at the rate of 6.42% per annum from the date hereof, payable semiannually, on the 28th day of February and the 30th day of August in each year, commencing with the February 28 or August 30 next succeeding the date hereof, and on the Maturity Date, until the principal hereof shall have become due and payable, and (b) to the extent permitted by law, (x) on any overdue payment of interest and (y) during the continuance of an Event of Default, on such unpaid balance and on any overdue payment of any Make-Whole Amount, at a rate per annum from time to time equal to the Default Rate, payable semiannually as aforesaid (or, at the option of the registered holder hereof, on demand).
Payments of principal of, interest on and any Make-Whole Amount with respect to this Note are to be made in lawful money of the United States of America at Citibank, N.A. in New York, New York or at such other place as the Company shall have designated by written notice to the holder of this Note as provided in the Note Purchase Agreement referred to below.
This Note is one of a series of Series A Senior Notes (herein called the “Notes”) issued pursuant to the Note Purchase Agreement, dated August 30, 2022 (as from time to time amended, the “Note Purchase Agreement”), between the Company and the respective Purchasers named therein and is entitled to the benefits thereof. Each holder of this Note will be deemed, by its acceptance hereof, to have (i) agreed to the confidentiality provisions set forth in Section 20 of the Note Purchase Agreement and (ii) made the representation set forth in Section 6.2 of the Note Purchase Agreement. Unless otherwise indicated, capitalized terms used in this Note shall have the respective meanings ascribed to such terms in the Note Purchase Agreement.
This Note is a registered Note and, as provided in the Note Purchase Agreement, upon surrender of this Note for registration of transfer accompanied by a written instrument of transfer duly executed, by the registered holder hereof or such holder’s attorney duly authorized in writing, a new Note for a like principal amount will be issued to, and registered in the name of, the transferee. Prior to due presentment for registration of transfer, the Company may treat the Person
SCHEDULE 1.1(a)
(to Note Purchase Agreement)
in whose name this Note is registered as the owner hereof for the purpose of receiving payment and for all other purposes, and the Company will not be affected by any notice to the contrary.
This Note is subject to prepayment, in whole or from time to time in part, at the times and on the terms specified in the Note Purchase Agreement, but not otherwise.
If an Event of Default occurs and is continuing, the principal of this Note may be declared or otherwise become due and payable in the manner, at the price (including any applicable Make-Whole Amount) and with the effect provided in the Note Purchase Agreement.
This Note shall be construed and enforced in accordance with, and the rights of the Company and the holder of this Note shall be governed by, the law of the State of New York excluding choice-of-law principles of the law of such State that would permit the application of the laws of a jurisdiction other than such State.
CIM GROUP MANAGEMENT, LLC
By Name:
Title:
SCHEDULE 1.1(a)
(to Note Purchase Agreement)
-2-
SCHEDULE 1.1(b) [FORM OF SERIES B NOTE]
CIM GROUP MANAGEMENT, LLC
6.50% SERIES B SENIOR NOTE DUE AUGUST 30, 2032
No. RB-[ ] [ ], [ ]
$[ ] PPN 12761* AB0
FOR VALUE RECEIVED, the undersigned, CIM GROUP MANAGEMENT, LLC
(herein called the “Company”), a limited liability company organized and existing under the laws of the State of Delaware, hereby promises to pay to [ ], or registered assigns, the principal sum of [ ] DOLLARS (or so much thereof as shall not have been prepaid) on August 30, 2032 (the “Maturity Date”), with interest (computed on the basis of a 360-day year of twelve 30-day months) (a) on the unpaid balance hereof at the rate of 6.50% per annum from the date hereof, payable semiannually, on the 28th day of February and the 30th day of August in each year, commencing with the February 28 or August 30 next succeeding the date hereof, and on the Maturity Date, until the principal hereof shall have become due and payable, and (b) to the extent permitted by law, (x) on any overdue payment of interest and (y) during the continuance of an Event of Default, on such unpaid balance and on any overdue payment of any Make-Whole Amount, at a rate per annum from time to time equal to the Default Rate, payable semiannually as aforesaid (or, at the option of the registered holder hereof, on demand).
Payments of principal of, interest on and any Make-Whole Amount with respect to this Note are to be made in lawful money of the United States of America at Citibank, N.A. in New York, New York or at such other place as the Company shall have designated by written notice to the holder of this Note as provided in the Note Purchase Agreement referred to below.
This Note is one of a series of Series B Senior Notes (herein called the “Notes”) issued pursuant to the Note Purchase Agreement, dated August 30, 2022 (as from time to time amended, the “Note Purchase Agreement”), between the Company and the respective Purchasers named therein and is entitled to the benefits thereof. Each holder of this Note will be deemed, by its acceptance hereof, to have (i) agreed to the confidentiality provisions set forth in Section 20 of the Note Purchase Agreement and (ii) made the representation set forth in Section 6.2 of the Note Purchase Agreement. Unless otherwise indicated, capitalized terms used in this Note shall have the respective meanings ascribed to such terms in the Note Purchase Agreement.
This Note is a registered Note and, as provided in the Note Purchase Agreement, upon surrender of this Note for registration of transfer accompanied by a written instrument of transfer duly executed, by the registered holder hereof or such holder’s attorney duly authorized in writing, a new Note for a like principal amount will be issued to, and registered in the name of, the transferee. Prior to due presentment for registration of transfer, the Company may treat the Person
SCHEDULE 1.1(b)
(to Note Purchase Agreement)
in whose name this Note is registered as the owner hereof for the purpose of receiving payment and for all other purposes, and the Company will not be affected by any notice to the contrary.
This Note is subject to prepayment, in whole or from time to time in part, at the times and on the terms specified in the Note Purchase Agreement, but not otherwise.
If an Event of Default occurs and is continuing, the principal of this Note may be declared or otherwise become due and payable in the manner, at the price (including any applicable Make-Whole Amount) and with the effect provided in the Note Purchase Agreement.
This Note shall be construed and enforced in accordance with, and the rights of the Company and the holder of this Note shall be governed by, the law of the State of New York excluding choice-of-law principles of the law of such State that would permit the application of the laws of a jurisdiction other than such State.
CIM GROUP MANAGEMENT, LLC
By Name:
Title:
SCHEDULE 1.1(b)
(to Note Purchase Agreement)
-2-
SCHEDULE 1.1(c) [FORM OF SERIES C NOTE]
CIM GROUP MANAGEMENT, LLC
6.75% SERIES C SENIOR NOTE DUE AUGUST 30, 2034
No. RC-[ ] [ ], [ ]
$[ ] PPN 12761* AC8
FOR VALUE RECEIVED, the undersigned, CIM GROUP MANAGEMENT, LLC
(herein called the “Company”), a limited liability company organized and existing under the laws of the State of Delaware, hereby promises to pay to [ ], or registered assigns, the principal sum of [ ] DOLLARS (or so much thereof as shall not have been prepaid) on August 30, 2034 (the “Maturity Date”), with interest (computed on the basis of a 360-day year of twelve 30-day months) (a) on the unpaid balance hereof at the rate of 6.75% per annum from the date hereof, payable semiannually, on the 28th day of February and the 30th day of August in each year, commencing with the February 28 or August 30 next succeeding the date hereof, and on the Maturity Date, until the principal hereof shall have become due and payable, and (b) to the extent permitted by law, (x) on any overdue payment of interest and (y) during the continuance of an Event of Default, on such unpaid balance and on any overdue payment of any Make-Whole Amount, at a rate per annum from time to time equal to the Default Rate, payable semiannually as aforesaid (or, at the option of the registered holder hereof, on demand).
Payments of principal of, interest on and any Make-Whole Amount with respect to this Note are to be made in lawful money of the United States of America at Citibank, N.A. in New York, New York or at such other place as the Company shall have designated by written notice to the holder of this Note as provided in the Note Purchase Agreement referred to below.
This Note is one of a series of Series C Senior Notes (herein called the “Notes”) issued pursuant to the Note Purchase Agreement, dated August 30, 2022 (as from time to time amended, the “Note Purchase Agreement”), between the Company and the respective Purchasers named therein and is entitled to the benefits thereof. Each holder of this Note will be deemed, by its acceptance hereof, to have (i) agreed to the confidentiality provisions set forth in Section 20 of the Note Purchase Agreement and (ii) made the representation set forth in Section 6.2 of the Note Purchase Agreement. Unless otherwise indicated, capitalized terms used in this Note shall have the respective meanings ascribed to such terms in the Note Purchase Agreement.
This Note is a registered Note and, as provided in the Note Purchase Agreement, upon surrender of this Note for registration of transfer accompanied by a written instrument of transfer duly executed, by the registered holder hereof or such holder’s attorney duly authorized in writing, a new Note for a like principal amount will be issued to, and registered in the name of, the
SCHEDULE 1.1(c)
(to Note Purchase Agreement)
transferee. Prior to due presentment for registration of transfer, the Company may treat the Person in whose name this Note is registered as the owner hereof for the purpose of receiving payment and for all other purposes, and the Company will not be affected by any notice to the contrary.
This Note is subject to prepayment, in whole or from time to time in part, at the times and on the terms specified in the Note Purchase Agreement, but not otherwise.
If an Event of Default occurs and is continuing, the principal of this Note may be declared or otherwise become due and payable in the manner, at the price (including any applicable Make-Whole Amount) and with the effect provided in the Note Purchase Agreement.
This Note shall be construed and enforced in accordance with, and the rights of the Company and the holder of this Note shall be governed by, the law of the State of New York excluding choice-of-law principles of the law of such State that would permit the application of the laws of a jurisdiction other than such State.
CIM GROUP MANAGEMENT, LLC
By Name:
Title:
SCHEDULE 1.1(c)
(to Note Purchase Agreement)
-2-
SCHEDULE 1.2
FORM OF SUBSIDIARY GUARANTY
See attached.
SCHEDULE 1.2
(to Note Purchase Agreement)
GUARANTY AGREEMENT
This Guaranty Agreement, dated August 30, 2022 (this “Guaranty Agreement”), is made by each of the undersigned (each a “Guarantor” and, together with each of the other signatories hereto and any other entities from time to time parties hereto pursuant to Section 14.1 hereof, the “Guarantors”) in favor of the Purchasers (as defined below) and the other holders from time to time of the Notes (as defined below). The Purchasers and such other holders are herein collectively called the “holders” and individually a “holder.”
Preliminary Statements:
I. CIM Group Management, LLC, a Delaware limited liability company (the “Company”), is entering into a Note Purchase Agreement dated August 30, 2022 (as amended, modified, supplemented or restated from time to time, the “Note Agreement”) with the Persons listed on the signature pages thereto (the “Purchasers”) simultaneously with the delivery of this Guaranty Agreement. Capitalized terms used herein have the meanings specified in the Note Agreement unless otherwise defined herein.
II. Pursuant to the Note Agreement, the Company proposes to issue and sell (a) 6.42% Series A Senior Notes due August 30, 2029 in the aggregate principal amount of $50,000,000 (the “Series A Notes”), (b) 6.50% Series B Senior Notes due August 30, 2032 in the aggregate principal amount of $75,000,000 (the “Series B Notes”) and (c) 6.75% Series C Senior Notes due August 30, 2034 in the aggregate principal amount of $25,000,000 (the “Series C Notes” and together with the Series A Notes and the Series B Notes, including any notes issued in substitution therefor, collectively, the “Notes” and individually a “Note”).
III. It is a condition to the agreement of the Purchasers to purchase the Notes that this Guaranty Agreement shall have been executed and delivered by each Guarantor and shall be in full force and effect.
IV. Each Guarantor will receive direct and indirect benefits from the financing arrangements contemplated by the Note Agreement. The Board of Directors or equivalent governing body, as applicable, of each Guarantor has determined that the incurrence of such obligations is in the best interests of such Guarantor.
NOW, THEREFORE, in order to induce, and in consideration of, the execution and delivery of the Note Agreement and the purchase of the Notes by each of the Purchasers, each Guarantor hereby covenants and agrees with, and represents and warrants to each of the holders as follows:
Section 1. Guaranty.
Each Guarantor hereby irrevocably, unconditionally and jointly and severally with the other Guarantors guarantees to each holder, the due and punctual payment in full of (a) the principal of, Make-Whole Amount, if any, and interest on (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), and any other amounts due under, the Notes when and as the same
shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise) and (b) any other sums which may become due under the terms and provisions of the Notes, the Note Agreement or any other instrument referred to therein (all such obligations described in clauses (a) and (b) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectability and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes (including, without limitation, any other Guarantor hereunder) or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations, each Guarantor agrees to pay the same when due to the holders entitled thereto, without demand, presentment, protest or notice of any kind, in lawful money of the United States of America, pursuant to the requirements for payment specified in the Notes, the Note Agreement and the other Financing Documents. Each default in payment of any of the Guaranteed Obligations shall give rise to a separate cause of action hereunder and separate suits may be brought hereunder as each cause of action arises. Each Guarantor agrees that the Notes issued in connection with the Note Agreement may (but need not) make reference to this Guaranty Agreement.
Each Guarantor hereby acknowledges and agrees that such Guarantor’s liability hereunder is joint and several with the other Guarantors and any other Person(s) who may guarantee the obligations and Indebtedness under and in respect of the Notes, the Note Agreement and any other Financing Document.
Notwithstanding the foregoing provisions or any other provision of this Guaranty Agreement, the Purchasers (on behalf of themselves and their successors and assigns) and each Guarantor hereby agrees that if at any time the Guaranteed Obligations exceed the Maximum Guaranteed Amount determined as of such time with regard to such Guarantor, then this Guaranty Agreement shall be automatically amended to reduce the Guaranteed Obligations to the Maximum Guaranteed Amount. Such amendment shall not require the written consent of any Guarantor or any holder and shall be deemed to have been automatically consented to by each Guarantor and each holder. Each Guarantor agrees that the Guaranteed Obligations may at any time exceed the Maximum Guaranteed Amount without affecting or impairing the obligation of such Guarantor. “Maximum Guaranteed Amount” means as of the date of determination with respect to a Guarantor, the lesser of (a) the amount of the Guaranteed Obligations outstanding on such date and (b) the maximum amount that would not render such Guarantor’s liability under this Guaranty Agreement subject to avoidance under Section 548 of the United States Bankruptcy Code (or any successor provision) or any comparable provision of applicable state law.
Section 2. Obligations Absolute.
The obligations of each Guarantor hereunder shall be primary, absolute, irrevocable and unconditional, irrespective of the validity or enforceability of the Notes, the Note Agreement, the other Financing Documents or any other instrument referred to therein, shall not be subject to any counterclaim, setoff, deduction or defense based upon any claim such Guarantor may have against the Company or any holder or otherwise, and shall remain in full force and effect without regard to, and shall not be released, discharged or in any way affected by, any circumstance or condition
whatsoever (whether or not such Guarantor shall have any knowledge or notice thereof), including, without limitation: (a) any amendment to, modification of, supplement to or restatement of the
Notes, the Note Agreement, any other Financing Document or any other instrument referred to therein (it being agreed that the obligations of each Guarantor hereunder shall apply to the Notes, the Note Agreement, any other Financing Document or any such other instrument as so amended, modified, supplemented or restated) or any assignment or transfer of any thereof or of any interest therein, or any furnishing, acceptance or release of any security for the Notes or the addition, substitution or release of any other Guarantor or any other entity or other Person primarily or secondarily liable in respect of the Guaranteed Obligations; (b) any waiver, consent, extension, indulgence or other action or inaction under or in respect of the Notes, the Note Agreement, any other Financing Document or any other instrument referred to therein; (c) any bankruptcy, insolvency, arrangement, reorganization, readjustment, composition, liquidation or similar proceeding with respect to the Company or its property; (d) any merger, amalgamation or consolidation of any Guarantor or of the Company into or with any other Person or any sale, lease or transfer of any or all of the assets of any Guarantor or of the Company to any Person; (e) any failure on the part of the Company for any reason to comply with or perform any of the terms of any other agreement with any Guarantor; (f) any failure on the part of any holder to obtain, maintain, register or otherwise perfect any security; or (g) any other event or circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor (whether or not similar to the foregoing), and in any event however material or prejudicial it may be to any Guarantor or to any subrogation, contribution or reimbursement rights any Guarantor may otherwise have. Each Guarantor covenants that its obligations hereunder will not be discharged except by indefeasible payment in full in cash of all of the Guaranteed Obligations (other than amounts in respect of indemnification, expense reimbursement or other contingent obligations, in each case, in respect of which no claim has been made) or upon the release of such Guarantor in accordance with Section 9.2 hereof.
Section 3. Waiver.
Each Guarantor unconditionally waives to the fullest extent permitted by law, (a) notice of acceptance hereof, of any action taken or omitted in reliance hereon and of any default by the Company in the payment of any amounts due under the Notes, the Note Agreement, any other Financing Document or any other instrument referred to therein, and of any of the matters referred to in Section 2 hereof, (b) all notices which may be required by statute, rule of law or otherwise to preserve any of the rights of any holder against such Guarantor, including, without limitation, presentment to or demand for payment from the Company or any Guarantor with respect to any Note, notice to the Company or to any Guarantor of default or protest for nonpayment or dishonor and the filing of claims with a court in the event of the bankruptcy of the Company, (c) any right to require any holder to enforce, assert or exercise any right, power or remedy including, without limitation, any right, power or remedy conferred in the Note Agreement, the Notes or any other Financing Document (d) any requirement for diligence on the part of any holder and (e) any other act or omission or thing or delay in doing any other act or thing which might in any manner or to any extent vary the risk of such Guarantor or otherwise operate as a discharge of such Guarantor or in any manner lessen the obligations of such Guarantor hereunder.
Section 4. Obligations Unimpaired.
Each Guarantor authorizes the holders, without notice or demand to such Guarantor or any other Guarantor and without affecting its obligations hereunder, from time to time: (a) to renew,
compromise, extend, accelerate or otherwise change the time for payment of, all or any part of the Notes, the Note Agreement, any other Financing Document or any other instrument referred to therein; (b) to change any of the representations, covenants, events of default or any other terms or conditions of or pertaining to the Notes, the Note Agreement, any other Financing Document or any other instrument referred to therein, including, without limitation, decreases or increases in amounts of principal, rates of interest, the Make-Whole Amount or any other obligation; (c) to take and hold security for the payment of the Notes, the Note Agreement, any other Financing Document or any other instrument referred to therein, for the performance of this Guaranty Agreement or otherwise for the Indebtedness guaranteed hereby and to exchange, enforce, waive, subordinate and release any such security; (d) to apply any such security and to direct the order or manner of sale thereof as the holders in their sole discretion may determine; (e) to obtain additional or substitute endorsers or guarantors or release any other Guarantor or any other Person or entity primarily or secondarily liable in respect of the Guaranteed Obligations; (f) to exercise or refrain from exercising any rights against the Company, any Guarantor or any other Person; and (g) to apply any sums, by whomsoever paid or however realized, to the payment of the Guaranteed Obligations and all other obligations owed hereunder. The holders shall have no obligation to proceed against any additional or substitute endorsers or guarantors or to pursue or exhaust any security provided by the Company, such Guarantor or any other Guarantor or any other Person or to pursue any other remedy available to the holders.
If an event permitting the acceleration of the maturity of the principal amount of any Notes shall exist and such acceleration shall at such time be prevented or the right of any holder to receive any payment on account of the Guaranteed Obligations shall at such time be delayed or otherwise affected by reason of the pendency against the Company, any Guarantor or any other guarantors of a case or proceeding under a bankruptcy or insolvency law, such Guarantor agrees that, for purposes of this Guaranty Agreement and its obligations hereunder, the maturity of such principal amount shall be deemed to have been accelerated with the same effect as if the holder thereof had accelerated the same in accordance with the terms of the Note Agreement, and such Guarantor shall forthwith pay such accelerated Guaranteed Obligations.
Section 5. Subrogation and Subordination.
(a) Each Guarantor will not exercise any rights which it may have acquired by way of subrogation under this Guaranty Agreement, by any payment made hereunder or otherwise, or accept any payment on account of such subrogation rights, or any rights of reimbursement, contribution or indemnity or any rights or recourse to any security for the Notes or this Guaranty Agreement unless and until all of the Guaranteed Obligations (other than amounts in respect of indemnification, expense reimbursement or other contingent obligations, in each case, in respect of which no claim has been made) shall have been indefeasibly paid in full in cash.
(b) Upon the occurrence and during the continuance of an Event of Default, each Guarantor hereby subordinates the payment of all Indebtedness and other obligations of the Company or any other guarantor of the Guaranteed Obligations owing to such Guarantor, whether now existing or hereafter arising, including, without limitation, all rights and claims described in clause (a) of this Section 5, to the indefeasible payment in full in cash of all of the Guaranteed Obligations (other than amounts in respect of indemnification, expense reimbursement or other contingent obligations, in each case, in respect of which no claim has been made). If the Required
Holders so request, any such Indebtedness or other obligations shall be enforced and performance received by such Guarantor as trustee for the holders and the proceeds thereof shall be paid over to the holders promptly, in the form received (together with any necessary endorsements) to be applied to the Guaranteed Obligations, whether matured or unmatured, as may be directed by the Required Holders, but without reducing or affecting in any manner the liability of any Guarantor under this Guaranty Agreement.
(c) If any amount or other payment is made to or accepted by any Guarantor in violation of any of the preceding clauses (a) and (b) of this Section 5, such amount shall be deemed to have been paid to such Guarantor for the benefit of, and held in trust for the benefit of, the holders and shall be paid over to the holders promptly, in the form received (together with any necessary endorsements) to be applied to the Guaranteed Obligations, whether matured or unmatured, as may be directed by the Required Holders, but without reducing or affecting in any manner the liability of such Guarantor under this Guaranty Agreement.
(d) Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Note Agreement and any other Financing Document and that its agreements set forth in this Guaranty Agreement (including this Section 5) are knowingly made in contemplation of such benefits.
(e) Each Guarantor hereby agrees that, to the extent that a Guarantor shall have paid an amount hereunder to any holder that is greater than the net value of the benefits received, directly or indirectly, by such paying Guarantor as a result of the issuance and sale of the Notes (such net value, its “Proportionate Share”), such paying Guarantor shall, subject to Section 5(a) and 5(b), be entitled to contribution from any Guarantor that has not paid its Proportionate Share of the Guaranteed Obligations. Any amount payable as a contribution under this Section 5(e) shall be determined as of the date on which the related payment is made by such Guarantor seeking contribution and each Guarantor acknowledges that the right to contribution hereunder shall constitute an asset of such Guarantor to which such contribution is owed. Notwithstanding the foregoing, the provisions of this Section 5(e) shall in no respect limit the obligations and liabilities of any Guarantor to the holders of the Notes hereunder or under the Notes, the Note Agreement, any other Financing Document or any other document, instrument or agreement executed in connection therewith, and each Guarantor shall remain jointly and severally liable for the full payment and performance of the Guaranteed Obligations.
Section 6. Reinstatement of Guaranty.
This Guaranty Agreement shall continue to be effective, or be reinstated, as the case may be, if and to the extent at any time payment, in whole or in part, of any of the sums due to any
holder on account of the Guaranteed Obligations is rescinded or must otherwise be restored or returned by a holder upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Company or any other guarantors, or upon or as a result of the appointment of a custodian, receiver, trustee or other officer with similar powers with respect to the Company or any other guarantors or any part of its or their property, or otherwise, all as though such payments had not been made.
Section 7. Rank of Guaranty.
Each Guarantor will ensure that its payment obligations under this Guaranty Agreement will at all times rank at least pari passu, without preference or priority, with all other unsecured and unsubordinated Indebtedness of such Guarantor now or hereafter existing.
Section 8. Representations and Warranties of Each Guarantor.
Each Guarantor represents and warrants to each holder as follows:
Section 8.1 Organization; Power and Authority. Such Guarantor is a limited liability company, corporation, limited partnership or other legal entity, as applicable, duly organized, validly existing and in good standing under the laws of its jurisdiction of formation, organization or incorporation, as applicable, and is duly qualified as a foreign limited liability company, corporation, limited partnership or other legal entity, as applicable, and is in good standing in each jurisdiction in which such qualification is required by law, except for any failures to be so qualified or in good standing that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Such Guarantor has the limited liability company, corporation, limited partnership or other legal entity, as applicable, power and authority to own or hold under lease the properties it purports to own or hold under lease, to transact the business it transacts and proposes to transact, to execute and deliver this Guaranty Agreement and to perform the provisions hereof.
Section 8.2 Authorization, Etc. This Guaranty Agreement has been duly authorized by all necessary limited liability company, corporate, limited partnership or equivalent action on the part of such Guarantor, and this Guaranty Agreement constitutes a legal, valid and binding obligation of such Guarantor enforceable against such Guarantor in accordance with its terms, except as such enforceability may be limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (b) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
Section 8.3 Compliance with Laws, Other Instruments, Etc. The execution, delivery and performance by such Guarantor of this Guaranty Agreement will not (a) contravene, result in any breach of, or constitute a default under, or result in the creation of any Lien in respect of any property of such Guarantor or any of its Subsidiaries under, any indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease, organizational documents, or any other agreement or instrument to which such Guarantor or any of its Subsidiaries is bound or by which such Guarantor or any of its Subsidiaries or any of their respective properties may be bound or affected, (b) conflict with or result in a breach of any of the terms, conditions or provisions of any order, judgment,
decree, or ruling of any court, arbitrator or Governmental Authority applicable to such Guarantor or any of its Subsidiaries or (c) violate any provision of any statute or other rule or regulation of any Governmental Authority applicable to such Guarantor or any of its Subsidiaries. “Governmental Authority” means (x) the government of (i) the United States of America or any State or other political subdivision thereof, or (ii) any other jurisdiction in which such Guarantor or any of its Subsidiaries conducts all or any part of its business, or which asserts jurisdiction over any properties of such Guarantor or any of its Subsidiaries, or (y) any entity exercising executive, legislative, judicial, regulatory or administrative functions of, or pertaining to, any such government.
Section 8.4 Governmental Authorizations, Etc. No consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority is required in connection with the execution, delivery or performance by such Guarantor of this Guaranty Agreement.
Section 8.5 Information Regarding the Company. Such Guarantor now has and will continue to have independent means of obtaining information concerning the affairs, financial condition and business of the Company. No holder shall have any duty or responsibility to provide such Guarantor with any credit or other information concerning the affairs, financial condition or business of the Company which may come into possession of the holders. Such Guarantor has executed and delivered this Guaranty Agreement without reliance upon any representation by the holders including, without limitation, with respect to (a) the due execution, validity, effectiveness or enforceability of any instrument, document or agreement evidencing or relating to any of the Guaranteed Obligations or any loan or other financial accommodation made or granted to the Company, (b) the validity, genuineness, enforceability, existence, value or sufficiency of any property securing any of the Guaranteed Obligations or the creation, perfection or priority of any lien or security interest in such property or (c) the existence, number, financial condition or creditworthiness of other guarantors or sureties, if any, with respect to any of the Guaranteed Obligations.
Section 9. Term of Guaranty.
Section 9.1 Term of Guaranty Agreement. This Guaranty Agreement and all guarantees, covenants and agreements of the Guarantors contained herein shall continue in full force and effect and shall not be discharged until such time as all of the Guaranteed Obligations (other than amounts in respect of indemnification, expense reimbursement or other contingent obligations, in each case, in respect of which no claim has been made) shall be indefeasibly paid in full in cash and shall be subject to reinstatement pursuant to Section 6.
Section 9.2 Release of Guarantors.
(a) Upon the payment in full in cash of the Guaranteed Obligations (other than amounts in respect of indemnification, expense reimbursement or other contingent obligations, in each case, in respect of which no claim has been made), the Guarantors shall be fully and automatically released from their obligations hereunder (other than with respect to indemnification, expense reimbursement and other Guaranteed Obligations that by their terms survive repayment in full of the Guaranteed Obligations).
(b) Notwithstanding anything to the contrary in this Guaranty Agreement or the Note Agreement, upon (x) the merger, conveyance, transfer, or lease of all or substantially all of a Guarantor’s assets, whether in a single transaction or series of transactions, permitted under the Note Agreement, (y) any other transaction or series of transactions permitted under the Note Agreement as a result of which the Guarantor ceases to be a Subsidiary of the Company or (z) upon the written election of the Company accompanied by a certificate demonstrating in reasonable detail that the Company shall be in compliance with Sections 9.7 and 9.8 of the Note Agreement after giving effect to such release, such Guarantor shall be released and discharged from its obligations under this Guaranty Agreement and shall cease to be a Guarantor hereunder
and for all purposes under the Note Agreement.
Section 10. Survival of Representations and Warranties; Entire Agreement.
All representations and warranties contained herein shall survive the execution and delivery of this Guaranty Agreement and may be relied upon by any subsequent holder, regardless of any investigation made at any time by or on behalf of any Purchaser or any other holder. This Guaranty Agreement embodies the entire agreement and understanding between each holder and the Guarantors and supersedes all prior agreements and understandings relating to the subject matter hereof.
Section 11. Amendment and Waiver.
Section 11.1 Requirements. Except as otherwise provided in the fourth paragraph of Section 1 of this Guaranty Agreement, this Guaranty Agreement may be amended, and the observance of any term hereof may be waived (either retroactively or prospectively), with (and only with) the written consent of each Guarantor and the Required Holders, except that no amendment or waiver (a) of any of the first three paragraphs of Section 1 or any of the provisions of Section 2, 3, 4, 5, 6, 7, 9 or 11 hereof, or any defined term (as it is used therein), or (b) which results in the limitation of the liability of any Guarantor hereunder (except to the extent provided in the fourth paragraph of Section 1 of this Guaranty Agreement or Section 9.2 hereof) will be effective as to any holder unless consented to by such holder in writing.
Section 11.2 Solicitation of Holders of Notes.
(a) Solicitation. Each Guarantor will provide each holder of the Notes (irrespective of the amount of Notes then owned by it) with sufficient information, sufficiently far in advance of the date a decision is required, to enable such holder to make an informed and considered decision with respect to any proposed amendment, waiver or consent in respect of any of the provisions hereof. Each Guarantor will deliver executed or true and correct copies of each amendment, waiver or consent effected pursuant to the provisions of this Section 11.2 to each holder promptly following the date on which it is executed and delivered by, or receives the consent or approval of, the requisite holders of Notes.
(b) Payment. The Guarantors will not directly or indirectly pay or cause to be paid any remuneration, whether by way of supplemental or additional interest, fee or otherwise, or grant any security or provide other credit support, to any holder as consideration for or as an inducement to the entering into by any holder of any waiver or amendment of any of the terms and provisions
hereof unless such remuneration is concurrently paid, or security is concurrently granted or other credit support concurrently provided, on the same terms, ratably to each holder even if such holder did not consent to such waiver or amendment.
(c) Consent in Contemplation of Transfer. Any consent made pursuant to this Section 11 by a holder that has transferred or has agreed to transfer its Notes to the Company, any Subsidiary or any Affiliate (including any Guarantor) of the Company and has provided or has agreed to provide such written consent as a condition to such transfer shall be void and of no force or effect except solely as to such holder, and any amendments effected or waivers granted or to be effected or granted that would not have been or would not be so effected or granted but for such
consent (and the consents of all other holders of Notes that were acquired under the same or similar conditions) shall be void and of no force or effect except solely as to such holder.
Section 11.3 Binding Effect. Any amendment or waiver consented to as provided in this Section 11 applies equally to all holders and is binding upon them and upon each future holder and upon each Guarantor without regard to whether any Note has been marked to indicate such amendment or waiver. No such amendment or waiver will extend to or affect any obligation, covenant or agreement not expressly amended or waived or impair any right consequent thereon. No course of dealing between a Guarantor and the holder nor any delay in exercising any rights hereunder or under any Note shall operate as a waiver of any rights of any holder. As used herein, the term “this Guaranty Agreement” and references thereto shall mean this Guaranty Agreement as it may be amended, modified, supplemented or restated from time to time.
Section 11.4 Notes Held By Company, Etc. Solely for the purpose of determining whether the holders of the requisite percentage of the aggregate principal amount of Notes then outstanding approved or consented to any amendment, waiver or consent to be given under this Guaranty Agreement, or have directed the taking of any action provided herein to be taken upon the direction of the holders of a specified percentage of the aggregate principal amount of Notes then outstanding, Notes directly or indirectly owned by any Guarantor, the Company or any of their respective Affiliates shall be deemed not to be outstanding.
Section 12. Notices.
Subject to the requirements set forth in the parenthetical in clause (ii) below, all notices and communications provided for hereunder shall be in writing and sent (a) by telecopy if the sender on the same day sends a confirming copy of such notice by a recognized overnight delivery service (charges prepaid), or (b) by registered or certified mail with return receipt requested (postage prepaid), or (c) by a recognized overnight delivery service (with charges prepaid). Any such notice must be sent:
(i) if to any Guarantor, to c/o CIM Group Management, LLC, 4700 Wilshire Boulevard, Los Angeles, CA 90010 to the attention of the following representatives, or such other address as such Guarantor shall have specified to the holders in writing:
Attention:
David Thompson
Principal, Chief Financial Officer 4700 Wilshire Boulevard
Los Angeles, CA 90010 Phone: (323) 860-7413
Mobile: (323) 362-2085
E-mail: dthompson@cimgroup.com
Jordan Dembo, Esq.
Principal & Chief Legal Officer, Legal 4700 Wilshire Boulevard
Los Angeles, CA 90010 Phone: (323) 860-9546
Mobile: (310) 980-4571
E-mail: jdembo@cimgroup.com, or
(ii) if to any holder, to such holder at the addresses specified for such communications set forth in the Purchaser Schedule to the Note Agreement, or such other address as such holder shall have specified to the Guarantors in writing (with a copy sent to such holder via e-mail at the e-mail address, if any, specified for such communications by such holder in writing).
Section 13. Miscellaneous.
Section 13.1 Successors and Assigns; Joinder. All covenants and other agreements contained in this Guaranty Agreement by or on behalf of any of the parties hereto bind and inure to the benefit of their respective successors and assigns whether so expressed or not. It is agreed and understood that any Person may become a Guarantor hereunder by executing a Guarantor Supplement substantially in the form of Exhibit A attached hereto and delivering the same to the Holders. Any such Person shall thereafter be a “Guarantor” for all purposes under this Guaranty Agreement.
Section 13.2 Severability. Any provision of this Guaranty Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall (to the full extent permitted by law), not invalidate or render unenforceable such provision in any other jurisdiction.
Section 13.3 Construction. Each covenant contained herein shall be construed (absent express provision to the contrary) as being independent of each other covenant contained herein, so that compliance with any one covenant shall not (absent such express contrary provision) be deemed to excuse compliance with any other covenant. Whether any provision herein refers to action to be taken by any Person, or which such Person is prohibited from taking, such provision shall be applicable whether such action is taken directly or indirectly by such Person.
The section and subsection headings in this Guaranty Agreement are for convenience of reference only and shall neither be deemed to be a part of this Guaranty Agreement nor modify, define, expand or limit any of the terms or provisions hereof. All references herein to numbered sections, unless otherwise indicated, are to sections of this Guaranty Agreement. Words and definitions in the singular shall be read and construed as though in the plural and vice versa, and words in the masculine, neuter or feminine gender shall be read and construed as though in either of the other genders where the context so requires.
Section 13.4 Further Assurances. Each Guarantor agrees to execute and deliver all such instruments and take all such action as the Required Holders may from time to time reasonably request in order to effectuate fully the purposes of this Guaranty Agreement.
Section 13.5 Governing Law. This Guaranty Agreement shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the law of the State of New York, excluding choice-of-law principles of the law of such State that would permit the application of the laws of a jurisdiction other than such State.
Section 13.6 Jurisdiction and Process; Waiver of Jury Trial.
(a) Each Guarantor irrevocably submits to the non-exclusive jurisdiction of any New York State or federal court sitting in the Borough of Manhattan, The City of New York, over any suit, action or proceeding arising out of or relating to this Guaranty Agreement. To the fullest extent permitted by applicable law, each Guarantor irrevocably waives and agrees not to assert, by way of motion, as a defense or otherwise, any claim that it is not subject to the jurisdiction of any such court, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
(b) Each Guarantor consents to process being served by or on behalf of any holder in any suit, action or proceeding of the nature referred to in Section 13.6(a) by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, return receipt requested, to it at its address specified in Section 12 or at such other address of which such holder shall then have been notified pursuant to Section 12. Each Guarantor agrees that such service upon receipt (i) shall be deemed in every respect effective service of process upon it in any such suit, action or proceeding and (ii) shall, to the fullest extent permitted by applicable law, be taken and held to be valid personal service upon and personal delivery to it. Notices hereunder shall be conclusively presumed received as evidenced by a delivery receipt furnished by the United States Postal Service or any reputable commercial delivery service.
(c) Nothing in this Section 13.6 shall affect the right of any holder to serve process in any manner permitted by law, or limit any right that the holders may have to bring proceedings against any Guarantor in the courts of any appropriate jurisdiction or to enforce in any lawful manner a judgment obtained in one jurisdiction in any other jurisdiction.
(d) THE GUARANTORS AND THE HOLDERS HEREBY WAIVE TRIAL BY JURY IN ANY ACTION BROUGHT ON OR WITH RESPECT TO THIS GUARANTY AGREEMENT OR OTHER DOCUMENT EXECUTED IN CONNECTION HEREWITH.
Section 13.7 Reproduction of Documents; Electronic Signatures. This Guaranty Agreement may be reproduced by any holder by any photographic, photostatic, electronic, digital, or other similar process and such holder may destroy any original document so reproduced. Each Guarantor agrees and stipulates that, to the extent permitted by applicable law, any such reproduction shall be admissible in evidence as the original itself in any judicial or administrative proceeding (whether or not the original is in existence and whether or not such reproduction was made by such holder in the regular course of business) and any enlargement, facsimile or further reproduction of such reproduction shall likewise be admissible in evidence. This Section 13.7 shall not prohibit any Guarantor or any holder of Notes from contesting any such reproduction to the same extent that it could contest the original, or from introducing evidence to demonstrate the inaccuracy of any such reproduction. Delivery of an electronic signature to or a signed copy of
this Guaranty Agreement or any Guarantor Supplement by facsimile, email or other electronic transmission shall be fully binding on the parties to the same extent as the delivery of the signed originals and shall be admissible into evidence for all purposes. The words “execution,” “execute,” “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this Guaranty Agreement and any Guarantor Supplement shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Company, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act. Notwithstanding the foregoing, if any holder of Notes shall request manually signed counterpart signatures to this Guaranty Agreement or any Guarantor Supplement, each Guarantor hereby agrees to use its reasonable endeavors to provide such manually signed signature pages as soon as reasonably practicable.
[Remainder of page intentionally left blank. Signature pages follow.]
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty Agreement to be duly executed and delivered on the date and year first above written.
CIM Capital, LLC,
a Delaware limited liability company
By: CIM Group Management, LLC, a Delaware limited liability company, its sole equity member
By: /s/ David Thompson Name: David Thompson
Its: Chief Financial Officer
CCO Group, LLC,
a Delaware limited liability company
By: CIM Group Management, LLC, a Delaware limited liability company, its managing member
By: /s/ David Thompson Name: David Thompson
Its: Chief Financial Officer
Signature Page to Guaranty Agreement – CIM Group Management, LLC
CIM Group, L.P.,
a Delaware limited partnership
By: CIM Management, Inc. a California corporation,
its general partner
By: /s/ David Thompson Name: David Thompson
Its: Chief Financial Officer
CIM SMA I Sponsor, LLC.,
a California limited liability company
By: CIM SMA I MLP, LLC,
A Delaware limited liability company, its managing member
By: CIM Group Management, LLC, a Delaware limited liability company, its managing member
By: /s/ David Thompson Name: David Thompson
Its: Chief Financial Officer
Signature Page to Guaranty Agreement – CIM Group Management, LLC
CIM Atlanta Manager, LLC,
a Delaware limited liability company
By: CIM Group Management, LLC, a Delaware limited liability company, its sole equity member
By: /s/ David Thompson Name: David Thompson
Its: Chief Financial Officer
CIM Service Provider, LLC,
a Delaware limited liability company
By: CIM Group Management, LLC, a Delaware limited liability company, its sole equity member
By: /s/ David Thompson Name: David Thompson
Its: Chief Financial Officer
Signature Page to Guaranty Agreement – CIM Group Management, LLC
CIM Capital SA Management, LLC, a Delaware limited liability company
By: CIM Group Management, LLC, a Delaware limited liability company, its sole equity member
By: /s/ David Thompson Name: David Thompson
Its: Chief Financial Officer
CIM Urban Income Investments GP, LLC, a Delaware limited liability company
By: CIM Group Management, LLC, a Delaware limited liability company, its sole equity member
By: /s/ David Thompson Name: David Thompson
Its: Chief Financial Officer
Signature Page to Guaranty Agreement – CIM Group Management, LLC
S-9th Avenue Co-Investor Manager, LLC, a Delaware limited liability company
By: S-MWC Co-Investor Manager, LLC,
a Delaware limited liability company, its sole member
By: CIM Group Management, LLC, a Delaware limited liability company, its sole member
By: /s/ David Thompson Name: David Thompson
Its: Chief Financial Officer
CIM Capital Controlled Company Management, LLC
a Delaware limited liability company
By: CIM Capital, LLC,
a Delaware limited liability company, its sole equity member
By: CIM Group Management, LLC, a Delaware limited liability company, its sole equity member
By: /s/ David Thompson Name: David Thompson
Its: Chief Financial Officer
Signature Page to Guaranty Agreement – CIM Group Management, LLC
CIM Capital RE Debt Management, LLC
a Delaware limited liability company
By: CIM Capital, LLC,
a Delaware limited liability company, its sole equity member
By: CIM Group Management, LLC, a Delaware limited liability company, its sole equity member
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
CIM Capital Securities Management, LLC
a Delaware limited liability company
By: CIM Capital, LLC,
a Delaware limited liability company, its sole equity member
By: CIM Group Management, LLC, a Delaware limited liability company, its sole equity member
By: /s/ David Thompson Name: David Thompson
Its: Chief Financial Officer
Signature Page to Guaranty Agreement – CIM Group Management, LLC
CIM Capital Real Property Management, LLC
a Delaware limited liability company
By: CIM Capital, LLC,
a Delaware limited liability company, its sole equity member
By: CIM Group Management, LLC, a Delaware limited liability company, its sole equity member
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
CIM Capital IC Management, LLC, a Delaware limited liability company
By: CIM Group Management, LLC, a Delaware limited liability company, its sole equity member
By: /s/ David Thompson Name: David Thompson
Its: Chief Financial Officer
Signature Page to Guaranty Agreement – CIM Group Management, LLC
CIM Lending Services, LLC,
a Delaware limited liability company
By: CIM Group Management, LLC, a Delaware limited liability company, its sole equity member
By: /s/ David Thompson Name: David Thompson
Its: Chief Financial Officer
L-55 Hawthorne Co-Investor Manager, LLC, a Delaware limited liability company
By: CIM Group Management, LLC, a Delaware limited liability company, its sole equity member
By: /s/ David Thompson Name: David Thompson
Its: Chief Financial Officer
Signature Page to Guaranty Agreement – CIM Group Management, LLC
H-55 Hawthorne REIT Manager, LLC, a Delaware limited liability company
By: CIM Group Management, LLC, a Delaware limited liability company, its sole equity member
By: /s/ David Thompson Name: David Thompson
Its: Chief Financial Officer
CMMT Partners GP, LLC,
a Delaware limited liability company
By: CIM Group Management, LLC, a Delaware limited liability company, its sole equity member
By: /s/ David Thompson Name: David Thompson
Its: Chief Financial Officer
Signature Page to Guaranty Agreement – CIM Group Management, LLC
CIM Controlled Company Management, LLC, a Delaware limited liability company
By: CIM Group Management, LLC, a Delaware limited liability company, its sole equity member
By: /s/ David Thompson Name: David Thompson
Its: Chief Financial Officer
CMMT Korea GP, LLC,
a Delaware limited liability company
By: CIM Group Management, LLC, a Delaware limited liability company, its sole equity member
By: /s/ David Thompson Name: David Thompson
Its: Chief Financial Officer
Signature Page to Guaranty Agreement – CIM Group Management, LLC
CIM RE Debt Management, LLC, a Delaware limited liability company
By: CIM Group Management, LLC, a Delaware limited liability company, its sole equity member
By: /s/ David Thompson Name: David Thompson
Its: Chief Financial Officer
CIM EPIC II QOF SLP, LLC,
a Delaware limited liability company
By: CIM Group Management, LLC, a Delaware limited liability company, its sole equity member
By: /s/ David Thompson Name: David Thompson
Its: Chief Financial Officer
Signature Page to Guaranty Agreement – CIM Group Management, LLC
CIM Management, Inc., a California corporation
By: /s/ David Thompson Name: David Thompson
Its: Chief Financial Officer
H-Turtle Creek Village Co-Investor Manager, LLC,
a Delaware limited liability company
By: CIM Group Management, LLC, a Delaware limited liability company, its sole equity member
By: /s/ David Thompson Name: David Thompson
Its: Chief Financial Officer
Signature Page to Guaranty Agreement – CIM Group Management, LLC
CMMT SLP, LLC,
a Delaware limited liability company
By: CIM Group Management, LLC, a Delaware limited liability company, its sole equity member
By: /s/ David Thompson Name: David Thompson
Its: Chief Financial Officer
CIM Infrastructure SLP, LLC,
a California limited liability company
By: CIM Group Management, LLC, a Delaware limited liability company, its managing member
By: /s/ David Thompson Name: David Thompson
Its: Chief Financial Officer
Signature Page to Guaranty Agreement – CIM Group Management, LLC
CIM Infrastructure II SLP, LLC, a Delaware limited liability company
By: CIM Group Management, LLC, a Delaware limited liability company, its managing member
By: /s/ David Thompson Name: David Thompson
Its: Chief Financial Officer
CIM Infrastructure III SLP, LLC, a Delaware limited liability company
By: CIM Infrastructure III SLP Holdings, L.P. a Delaware limited liability company,
its sole equity member
By: CIM Fund SLP GP, LLC,
A Delaware limited liability company, its general partner
By: CIM Group Management, LLC, a Delaware limited liability company, its sole equity member
By: /s/ David Thompson Name: David Thompson
Its: Chief Financial Officer
Signature Page to Guaranty Agreement – CIM Group Management, LLC
CIM Fund IX SLP, LLC,
a Delaware limited liability company
By: CIM Group Management, LLC, a Delaware limited liability company, its managing member
By: /s/ David Thompson Name: David Thompson
Its: Chief Financial Officer
CIM Opportunity Zone Fund SLP, LLC, a Delaware limited liability company
By: CIM Group Management, LLC, a Delaware limited liability company, its sole equity member
By: /s/ David Thompson Name: David Thompson
Its: Chief Financial Officer
Signature Page to Guaranty Agreement – CIM Group Management, LLC
CIM Real Estate Finance Management, LLC, a Delaware limited liability company
By: CCO Group, LLC,
a Delaware limited liability company, its sole equity member
By: CIM Group Management, LLC, a Delaware limited liability company, its managing member
By: /s/ David Thompson Name: David Thompson
Its: Chief Financial Officer
CREI Advisors, LLC,
an Arizona limited liability company
By: /s/ Christina Mayo Name: Christina Mayo
Its: Manager
Signature Page to Guaranty Agreement – CIM Group Management, LLC
CIM Income NAV Management, LLC, a Delaware limited liability company
By: CCO Group, LLC,
a Delaware limited liability company, its sole equity member
By: CIM Group Management, LLC, a Delaware limited liability company, its managing member
By: /s/ David Thompson Name: David Thompson
Its: Chief Financial Officer
CIM SBA Staffing, LLC,
a Delaware limited liability company
By: CIM Group, L.P.,
a Delaware limited partnership, its sole equity member
By: CIM Management, Inc., a California corporation,
its general partner
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
Signature Page to Guaranty Agreement – CIM Group Management, LLC
246 Spring Street (NY) Manager, LLC, a Delaware limited liability company
By: CIM Group, L.P.,
a Delaware limited partnership, its sole equity member
By: CIM Management, Inc., a California corporation,
its general partner
By: /s/ David Thompson Name: David Thompson
Its: Chief Financial Officer
432 Park Management, LLC,
a Delaware limited liability company
By: CIM Group, L.P.,
a Delaware limited partnership, its sole equity member
By: CIM Management, Inc., a California corporation,
its general partner
By: /s/ David Thompson Name: David Thompson
Its: Chief Financial Officer
Signature Page to Guaranty Agreement – CIM Group Management, LLC
CIM Group Hotel, LLC,
a California limited liability company
By: CIM Group, L.P.,
a Delaware limited partnership, its sole equity member
By: CIM Management, Inc., a California corporation,
its general partner
By: /s/ David Thompson Name: David Thompson
Its: Chief Financial Officer
CIM Real Estate Services, LLC,
a Delaware limited liability company
By: /s/ Sara L. Martens Name: Sara L. Martens
Its: Manager
Signature Page to Guaranty Agreement – CIM Group Management, LLC
CIM NY Management, LLC,
a New York limited liability company
By: CIM Group, L.P,
a Delaware limited partnership, its sole equity member
By: CIM Management, Inc., a California corporation,
its general partner
By: /s/ David Thompson Name: David Thompson
Its: Chief Financial Officer
CIM TX Management, LLC,
a Delaware limited liability company
By: CIM Group, L.P.,
a Delaware limited partnership, its managing member
By: CIM Management, Inc., a California corporation,
its general partner
By: /s/ David Thompson Name: David Thompson
Its: Chief Financial Officer
Signature Page to Guaranty Agreement – CIM Group Management, LLC