CREDIT AGREEMENT among DRP URBAN RENEWAL 4, LLC as the Borrower, DELAWARE RIVER PARTNERS LLC, as DRP, The Several Lenders from Time to Time Party Hereto, DEUTSCHE BANK TRUST COMPANY AMERICAS, as Administrative Agent, and DEUTSCHE BANK AG, NEW YORK...

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SECTION 1.		DEFINITIONS	1
	Section 1.1	Defined Terms	1
	Section 1.2	Other Definitional Provisions	15
	Section 1.3	Timing of Payment or Performance	16
	Section 1.4	Other Defined Terms	16
	Section 1.5	Divisions	17
SECTION 2.		LOANS	18
	Section 2.1	Loans	18
	Section 2.2	Pro Rata Shares; Availability of Funds	18
	Section 2.3	Use of Proceeds	19
	Section 2.4	Evidence of Debt; Register; Lenders’ Books and Records; Notes	19
	Section 2.5	Interest on Loans	20
	Section 2.6	Letters of Credit	20
	Section 2.7	Default Interest	23
	Section 2.8	Fees	24
	Section 2.9	Amortization of Term Loans.	24
	Section 2.10	Voluntary Prepayments	24
	Section 2.11	Mandatory Prepayments	25
	Section 2.12	Application of Prepayments/Reductions	26
	Section 2.13	General Provisions Regarding Payments	27
	Section 2.14	Ratable Sharing	28
	Section 2.15	Yield Protection Premium	28
	Section 2.16	Taxes	29
	Section 2.17	Obligation to Mitigate	32
	Section 2.18	Removal or Replacement of a Lender	33
	Section 2.19	Extension of Maturity Date	34
SECTION 3.		REPRESENTATIONS AND WARRANTIES	35
	Section 3.1	Financial Condition	35
	Section 3.2	No Change	35
	Section 3.3	Existence; Compliance with Law	35
	Section 3.4	Power; Authorization; Enforceable Obligations	35
	Section 3.5	No Legal Bar	36
	Section 3.6	No Material Litigation	36
	Section 3.7	No Default	36
	Section 3.8	Ownership of Property; Security Interests	36
	Section 3.9	Intellectual Property	36
	Section 3.10	Taxes	36
	Section 3.11	Federal Regulations	37
	Section 3.12	Labor Matters	37
	Section 3.13	ERISA	37
	Section 3.14	Investment Company Act	37
	Section 3.15	Subsidiaries	37
	Section 3.16	Use of Proceeds	37
	Section 3.17	Environmental Matters	37
	Section 3.18	Accuracy of Information, Etc.	38

	Section 3.19	Security Documents	38
	Section 3.20	Solvency	39
	Section 3.21	No Default Under Material Project Contracts.	39
	Section 3.22	Anti-Money Laundering and Anti-Corruption Laws; Sanctions	39
	Section 3.23	Insurance	40
SECTION 4.		CONDITIONS PRECEDENT	40
	Section 4.1	Closing Date	40
SECTION 5.		COVENANTS	44
	Section 5.1	Financial Statements	44
	Section 5.2	Construction Reports; Other Information	45
	Section 5.3	Collateral Agency Agreement	46
	Section 5.4	Insurance	46
	Section 5.5	Post-Closing Covenant	47
	Section 5.6	Inspection of Property; Books and Records; Discussions	47
	Section 5.7	Notices	48
	Section 5.8	Further Assurances	49
	Section 5.9	Compliance with Laws; Governmental Approvals; Etc.	50
	Section 5.10	Proposed Modifications.	50
	Section 5.11	Use of Proceeds	50
	Section 5.12	Plans	50
	Section 5.13	Anti-Money Laundering and Anti-Corruption Laws; Sanctions	50
	Section 5.14	Maintenance of Properties.	51
	Section 5.15	Payment of Taxes.	51
	Section 5.16	Maintenance of Existence; Project.	51
	Section 5.17	Project Accounts.	51
	Section 5.18	O&M Budget.	52
	Section 5.19	Restriction on New Projects.	52
	Section 5.20	Restriction on Asset Sales.	52
	Section 5.21	Restriction on Distributions; Dividends.	52
	Section 5.22	Restriction on Indebtedness.	52
	Section 5.23	Transaction with Affiliates.	52
	Section 5.24	Swap Agreements	53
	Section 5.25	Financial Covenant.	53
	Section 5.26	Change in Nature of Business, Etc.	53
	Section 5.27	Material Project Documents; Etc.	53
	Section 5.28	Collateral Assignment of Material Project Contracts.	54
	Section 5.29	Affiliate Credit Agreement; Material Project Contracts.	54
SECTION 6.		EVENTS OF DEFAULT	54
	Section 6.1	Events of Default	54
	Section 6.2	Application of Proceeds	57
SECTION 7.		THE ADMINISTRATIVE AGENT	58
	Section 7.1	Appointment and Authority	58
	Section 7.2	Rights as a Lender	58
	Section 7.3	Exculpatory Provisions	59
	Section 7.4	Reliance by Administrative Agent	60
	Section 7.5	Delegation of Duties	60

	Section 7.6	Resignation of Administrative Agent	61
	Section 7.7	Non-Reliance on Administrative Agent and Other Lenders	61
	Section 7.8	[Reserved]	61
	Section 7.9	Administrative Agent May File Proofs of Claim	61
	Section 7.10	Force Majeure	62
	Section 7.11	Withholding Taxes	62
	Section 7.12	Return of Certain Payments	63
	Section 7.13	ERISA	65
SECTION 8.		MISCELLANEOUS	67
	Section 8.1	Amendments and Waivers	67
	Section 8.2	Notices	69
	Section 8.3	No Waiver; Cumulative Remedies	70
	Section 8.4	Survival of Representations and Warranties	70
	Section 8.5	Payment of Expenses; Indemnification	71
	Section 8.6	Successors and Assigns; Participations and Assignments	72
	Section 8.7	Set-off	75
	Section 8.8	Counterparts	76
	Section 8.9	Severability	76
	Section 8.10	Integration	76
	Section 8.11	GOVERNING LAW	76
	Section 8.12	Submission To Jurisdiction; Waivers	76
	Section 8.13	Acknowledgments	77
	Section 8.14	Confidentiality	78
	Section 8.15	Accounting Changes	79
	Section 8.16	WAIVERS OF JURY TRIAL	79
	Section 8.17	[Reserved]	79
	Section 8.18	USA PATRIOT ACT	79
	Section 8.19	Payments Set Aside	79
	Section 8.20	Releases of Collateral; Termination of Credit Agreement	79
	Section 8.21	Time	80
	Section 8.22	Acknowledgment and Consent to Bail-In of Affected Financial Institutions	80
	Section 8.23	Acknowledgment Regarding Any Supported QFCs	81

1.1	Commitments
3.6	Material Litigation
3.8	Real Property
3.15	Subsidiaries
3.17	Environmental Matters
3.23	Insurance
5.5	Post-Closing Actions
5.29(b)	Outstanding Material Project Contract Payments
6.1(k)	Part A - Specified Material Project Contracts
	Part B - Applicable Material Project Contracts

A	Form of Assignment and Acceptance
B	Form of Note
C	Form of Solvency Certificate
D	Form of Funding Notice
E-1	Form of U.S. Tax Compliance Certificate
E-2	Form of U.S. Tax Compliance Certificate
E-3	Form of U.S. Tax Compliance Certificate
E-4	Form of U.S. Tax Compliance Certificate

Defined Term	Section
“Accounting Change”	8.15
“Agent Parties”	8.2
“Aggregate Amounts Due”	2.14
“Agreement Currency”	8.17(b)
“Anti-Money Laundering Laws”	3.22(a)
“Applicable Creditor”	8.17(b)
“Assignee”	8.6(c)
“Assignor”	8.6(c)
“Borrower Materials”	8.2
“Cash Interest Rate”	2.5(a)
“Closing Date Refinancing”	2.3(a)
“Covered Party”	8.23
“Declining Lender”	2.11(f)
“Erroneous Payment”	7.12(a)
“Erroneous Payment Deficiency Assignment”	7.12(d)(i)
“Erroneous Payment Impacted Class”	7.12(d)(i)
“Erroneous Payment Return Deficiency”	7.12(d)(i)
“Erroneous Payment Subrogation Rights”	7.12(e)
“Exit Fee”	2.8(a)

Defined Term	Section
“Extended Maturity Date”	2.23
“FCPA”	3.22(b)
“Final Maturity Date”	2.23
“Granting Lender”	8.6(g)
“Increased Cost Lender”	2.19
“Indemnified Liabilities”	8.5(a)
“Indemnitee”	8.5(a)
“Information”	8.14
“Judgment Currency”	8.17(b)
“LC Reimbursement Amount”	2.6(d)
“LC Reimbursement Payment Date”	2.6(d)
“Letter of Credit Loan”	2.6(d)
“Non-Consenting Lender”	2.19
“Participant”	8.6(b)
“Participant Register”	8.6(b)
“Payment Recipient”	7.12(a)
“PIK Interest Rate”	2.5(a)
“Platform”	5.2
“Private Side Information”	5.2
“Proposed Modification”	2.11(c)
“QFC Credit Support”	8.23
“Register”	2.4(b)
“Replacement Lender”	2.19
“Representatives”	8.14
“Sanctions”	3.22(c)
“Second Extended Maturity Date”	2.23
“SPC”	8.6(g)
“Stock Certificates”	4.1
“Supported QFC”	8.23
“Terminated Lender”	2.19
“Transferee”	8.14
“UCC Filing Collateral”	4.1
“U.S. Special Resolutions Regimes”	8.23
“U.S. Tax Compliance Certificate”	2.17(f)(iii)

Date	Target Debt Balance ($)
March 31, 2027	$97,166,666.67
June 30, 2027	$88,333,333.33
September 30, 2027	$79,500,000.00
December 31, 2027	$70,666,666.67
March 31, 2028	$61,833,333.33

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Section 8.5          Payment of Expenses; Indemnification.

 

(a)          The Borrower agrees (i) to pay or reimburse the Administrative Agent and the Lead Arranger for all their reasonable and documented out-of-pocket costs and expenses incurred in connection with the syndication of the Loans (other than fees payable to syndicate members) and the development, negotiation, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the transactions contemplated hereby and thereby, including the reasonable and documented fees and disbursements of a single law firm as counsel to the Administrative Agent, a single law firm as counsel to the Lead Arranger and Lenders, and one local counsel to the Administrative Agent in any relevant jurisdiction and the charges of any Platform, (ii) to pay or reimburse each Lender, the Issuing Bank, the Administrative Agent and the Lead Arranger, for all their reasonable and documented out-of-pocket costs and expenses incurred in connection with the enforcement or preservation of any rights under this Agreement, the other Loan Documents and any other documents prepared in connection herewith or therewith, including all costs and expenses incurred during any legal proceeding, including any proceeding under any Debtor Relief Laws, the reasonable and documented fees and disbursements of a single law firm as counsel to the Lenders and the Issuing Bank, taken as a whole, and a single law firm as counsel to the Administrative Agent and one local counsel to the Lenders, the Issuing Bank and the Administrative Agent taken as a whole in any relevant material jurisdiction (or, with respect to enforcement, any relevant jurisdiction) and, if a conflict exists among such Persons, one additional primary counsel and, if necessary or advisable, one local counsel in each relevant jurisdiction, (iii) to pay or reimburse the Issuing Bank and the Administrative Agent for all reasonable and documented out-of-pocket expenses incurred by any Issuing Bank in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iv) to pay, indemnify or reimburse each Lender, the Issuing Bank, the Administrative Agent and the Lead Arranger, their respective affiliates, and their respective officers, directors, trustees, employees, advisors, agents and controlling persons (each, an “Indemnitee”) for, and hold each Indemnitee harmless from and against any and all other liabilities, obligations, losses, damages, penalties, claims (including Environmental Claims), actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever (limited to, in the case of counsel, the reasonable and documented fees and disbursements of a single law firm as counsel to the Indemnitees taken as a whole and one local counsel to the Indemnitees taken as a whole in any relevant jurisdiction and, if a conflict exists among such Persons, one additional primary counsel and, if necessary or advisable, one local counsel in each relevant jurisdiction); (provided that the Administrative Agent and its related Indemnitees shall be indemnified for all fees and disbursements of its own single law firm counsel and for one local counsel in any relevant jurisdiction) whether direct, indirect, special or consequential, incurred by an Indemnitee or asserted against any Indemnitee arising out of, in connection with, or as a result of (A) the execution, enforcement or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto or thereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, (B) any Loan or Letter of Credit or the use or proposed use of the proceeds thereof (including any refusal by the Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (C) any actual or alleged presence or Release of Hazardous Materials on, at, under or from any property owned, occupied or operated by the Borrower, DRP or any of their respective Subsidiaries, or any liability under any Environmental Law related in any way to the Borrower, DRP or any of their respective Subsidiaries or any of their respective properties, or (D) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by any third party or by the Borrower or any other Loan Party or any Loan Party’s affiliates, creditors or securityholders, and regardless of whether any Indemnitee is a party thereto (all the foregoing in this clause (iii), collectively, the “Indemnified Liabilities”), but excluding, in each case, Taxes other than any Taxes that represent Indemnified Liabilities, arising from a non-tax claim; provided that the Borrower shall have no obligation hereunder to any Indemnitee with respect to Indemnified Liabilities to the extent such Indemnified Liabilities (x) are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from the gross negligence, bad faith, willful misconduct or, other than with respect to the Administrative Agent and its related Indemnitees, material breach of its obligations under this Agreement of such Indemnitee or (y) resulted from any dispute that does not involve an act or failure to act in violation with any agreement with the Lenders by the Borrower or any of its affiliates, shareholders, partners or other equity holders and that is brought by an Indemnitee against another Indemnitee other than any claims against an Indemnitee in its capacity or in fulfilling its role as the Administrative Agent hereunder.  No Indemnitee shall be liable for any damages arising from the use by unauthorized persons of information or other materials sent through electronic, telecommunications or other information transmission systems that are intercepted by such persons or for any special, indirect, consequential or punitive damages in connection with the Loans.  Without limiting the foregoing, and to the extent permitted by applicable Law, the Borrower agrees not to assert and to cause its Subsidiaries not to assert, and hereby waives and agrees to cause its Subsidiaries so to waive, all rights for contribution or any other rights of recovery with respect to all claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or nature, under or related to Environmental Laws, that any of them might have by statute or otherwise against any Indemnitee other than those that are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from the gross negligence, bad faith, willful misconduct or, other than with respect to the Administrative Agent and its related Indemnitees material breach of its obligations under this Agreement of any Indemnitee.  All amounts due under this Section 8.5 shall be payable not later than ten (10) days after written demand therefor.  Statements payable by the Borrower pursuant to this Section 8.5 shall be submitted to ▇▇▇ ▇▇▇▇▇▇▇▇▇, (Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇), at the address of the Borrower set forth in Section 8.2, or to such other Person or address as may be hereafter designated by the Borrower in a notice to the Administrative Agent.  The agreements in this Section 8.5 shall survive the termination of the Commitments and the repayment of the Loans and all other amounts payable hereunder and the resignation or replacement of the Administrative Agent.

 

(b)       Reimbursement by ▇▇▇▇▇▇▇.  To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under subsection (a) of this Section 8.5 to be paid by it to the Administrative Agent (or any sub-agent thereof) or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent) or such Related Party, as the case may be, such ▇▇▇▇▇▇’s Pro Rata Share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent) in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent) in connection with such capacity.  The Lender’s obligations under this Section 8.5(b) shall survive the resignation or replacement of the Administrative Agent.

 

Section 8.6          Successors and Assigns; Participations and Assignments.

 

(a)         This Agreement shall be binding upon and inure to the benefit of the Borrower, the Lenders, the Administrative Agent, all future holders of the Loans and their respective successors and assigns (including any Affiliate of any Issuing Bank that issues any Letter of Credit), except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Administrative Agent and each Lender.

 

(b)       Any Lender may, without the consent of the Borrower, in accordance with applicable Law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Term Loan Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents; provided, however, that no Lender shall be permitted to sell any such participating interest to (i) any of the Permitted Holders, any of their respective Affiliates or any of their respective associated investment funds or (ii) a natural person (or a holding company, investment vehicle or trust for, or owned and operated by or for the primary benefit of a natural person).  In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such ▇▇▇▇▇▇’s rights and obligations under this Agreement and the other Loan Documents.  In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders or all affected Lenders pursuant to Sections 8.1(a)(i), (ii), (iii), (vi), or (vii).  The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable Law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement; provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 2.14 as fully as if such Participant were a Lender hereunder.  The Borrower also agrees that each Participant shall be entitled through the Lender granting the participation to the benefits of Section 2.16 (subject to the requirements and limitations of Section 2.17, including the requirements of Sections 2.16(f) through (i) (it being agreed that any required documentation shall be provided solely to the participating Lender)) with respect to its participation in the Term Loan Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided that no Participant shall be entitled to receive any greater amount pursuant to Section 2.16 than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except (1) to the extent that entitlement to a greater amount results from a Change in Law that occurs after such Participant acquires the applicable participation or (2) if such transfer was made with the Borrower’s prior written consent (which consent shall not be unreasonably withheld or delayed).  Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal and interest amounts of each Participant’s interest in the Loans held by it (the “Participant Register”).  The entries in the Participant Register shall be conclusive, absent manifest error, and such Lender shall treat each person whose name is recorded in the Participant Register as the owner of the participation in question for all purposes of this Agreement, notwithstanding notice to the contrary.  No Lender shall have any obligation to disclose all or any portion of a Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations.

 

(c)        Any Lender (an “Assignor”) may, in accordance with applicable Law and the written acknowledgement of the Administrative Agent (which shall not be unreasonably withheld or delayed) and, so long as no Event of Default under Sections 6.1(a) or (f) has occurred and is continuing, the Borrower (which shall not be unreasonably withheld or delayed)(provided that the Borrower shall be deemed to have consented to any such assignment unless they shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof), at any time and from time to time assign to any Lender or any affiliate, Related Fund or Control Investment Affiliate thereof, or to an additional bank, financial institution or other entity (an “Assignee”) all or any part of its rights and obligations under this Agreement pursuant to an Assignment and Acceptance executed by such Assignee and such Assignor and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that assignments made to any Lender, an affiliate of a Lender or a Related Fund will not be subject to the above described consents; provided, further, that unless an Event of Default under Section 6.1(a) or (f) has occurred and is continuing, no assignment to an Assignee (other than any Lender or any affiliate thereof) of Term Loan Commitments or Loans shall be in an aggregate principal amount of less than $1,000,000 (other than in the case of an assignment of all of a Lender’s interests in the Loans under this Agreement) and, after giving effect thereto, the assigning Lender (if it shall retain any Term Loan Commitment or Loan) shall have a Term Loan Commitment or Loan of at least $1,000,000 unless otherwise agreed by the Administrative Agent and the Borrower; provided, however, no Lender shall be permitted to assign all or any part of its rights and obligations under this Agreement to (i) any of the Permitted Holders, any of their respective Affiliates or any of their respective associated investment funds, (ii) the Borrower, DRP or any of their Subsidiaries or (iii) any natural person (or a holding company, investment vehicle or trust for, or owned and operated by or for the primary benefit of a natural person).  Upon such execution, delivery, acceptance and recording in the Register, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with Term Loan Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent of the interest assigned in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to Sections 2.16 and 8.5 in respect of the period prior to such effective date).  For purposes of the minimum assignment amounts set forth in this clause (c), multiple assignments by two or more Related Funds shall be aggregated.

 

(d)          [reserved].

 

(e)          Upon its receipt of an Assignment and Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section 8.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (provided, however, that (i) Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment and (ii) no such fee shall be required to be paid (A) in connection with an assignment by or to the Administrative Agent or any Affiliate thereof or (B) in the case of an Assignee which is already a Lender or any affiliate, Related Fund or Control Investment Affiliate thereof), the Administrative Agent shall (1) promptly following completion of any required know-your-customer checks, accept such Assignment and Acceptance and (2) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Borrower.  On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the applicable Notes of the assigning Lender) a new Note to such Assignee in an amount equal to the Term Loan Commitment or Loan assumed or acquired by it pursuant to such Assignment and Acceptance and, if the Assignor has retained a Term Loan Commitment or Loan, upon request, a new Note to the Assignor in an amount equal to the Term Loan Commitment or Loan, as applicable, retained by it hereunder.  Such new Note or Notes shall be in the form of the Note or Notes replaced thereby.

 

(f)         For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 8.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable Law.

 

(g)         Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof.  The making of a Loan by an SPC hereunder shall utilize the Loan Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender.  Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender).  In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one (1) year and one (1) day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof.  Each party hereto also agrees that each SPC shall be entitled to the benefits of Sections 2.16 (subject to the requirements and limitations of Section 2.17, including the requirements of Sections 2.16(f) through (i) (it being agreed that any required forms shall be provided solely to the Granting Lender)) with respect to its granted interest in the Term Loan Commitments and the Loans outstanding from time to time as if such SPC were a Lender; provided that, no SPC shall be entitled to receive any greater amount pursuant to Section 2.16 than the Granting Lender would have been entitled to receive in respect of the amount of the interest granted by such Granting Lender to such SPC had no such grant occurred, except (1) to the extent that entitlement to a greater amount results from a Change in Law that occurs after such interest was granted or (2) if such transfer was made with the Borrower’s prior written consent (which consent shall not be unreasonably withheld or delayed).  In addition, notwithstanding anything to the contrary in this Section 8.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and with the payment of a processing fee in the amount of $3,500 (which processing fee may be waived by the Administrative Agent in its sole discretion), assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) and with the payment of a processing fee in the amount of $3,500 (which processing fee may be waived by the Administrative Agent in its sole discretion) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower or its Affiliates may be disclosed only with the Borrower’s consent which will not be unreasonably withheld.  This Section 8.6(g) may not be amended without the written consent of any SPC with Loans outstanding at the time of such proposed amendment.  To the extent an SPC provides a Loan, the applicable Lender may maintain a register on behalf of the Borrower and the SPC’s interest must be entered in the register.

 

Section 8.7         Set-off.  In addition to any rights and remedies of the Lenders provided by law, upon the occurrence and during the continuation of any Event of Default, each Lender shall have the right, without prior notice to the Borrower, any such notice being expressly waived by the Borrower to the extent permitted by applicable Law, upon any amount becoming due and payable by the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of the Borrower.  Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender; provided that the failure to give such notice shall not affect the validity of such setoff and application.

 

Section 8.8         Counterparts.  This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument.  Delivery of an executed signature page of this Agreement by facsimile or other electronic transmission shall be effective as delivery of a manually executed counterpart hereof.  A set of the copies of this Agreement signed by all the parties shall be lodged with the Borrower and the Administrative Agent.  For the avoidance of doubt, the words “execution,” “signed,” “signature,” and words of like import in this Agreement, any other Loan Document or any Assignment and Acceptance shall be deemed to include electronic signatures 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; provided that (x) nothing herein shall require the Lender or Issuing Bank to accept electronic signature counterparts in any form or format and (y) the Administrative Agent reserves the right to require, at any time and in its sole discretion, the delivery of manually executed counterpart signatures to this Agreement or any other document signed in connection with this Agreement and the parties hereto agree to promptly delivery such manually executed counterpart signature pages if requested.

 

Section 8.9       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 not invalidate or render unenforceable such provision in any other jurisdiction.

 

Section 8.10        Integration.  This Agreement and the other Loan Documents represent the entire agreement of the Borrower, the Administrative Agent, the Issuing Bank and the Lenders with respect to the subject matter hereof and thereof, and there are no promises, undertakings, representations or warranties by the Administrative Agent, the Issuing Bank or any Lender relative to the subject matter hereof not expressly set forth or referred to herein or in the other Loan Documents.

 

Section 8.11      GOVERNING LAW.  THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE (WHETHER IN CONTRACT, TORT OR OTHERWISE AND WHETHER AT LAW OR IN EQUITY) BASED UPON, ARISING UNDER OR RELATED TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

 

Section 8.12         Submission To Jurisdiction; Waivers.  Each party hereto hereby irrevocably and unconditionally:

 

(a)         submits for itself and its Property in any legal action or proceeding (whether in contract, tort or otherwise and whether at law or in equity) relating to this Agreement and the other Loan Documents to which it is a party, or for recognition and enforcement of any judgment in respect thereof, to the exclusive general jurisdiction of the courts of the State of New York, the courts of the United States of America for the Southern District of New York, in each case, in the County of New York, Borough of Manhattan, and appellate courts from any thereof;

 

(b)        consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;

 

(c)        agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to its address set forth in Section 8.2 or at such other address of which the Administrative Agent (or in the case of the Administrative Agent, the other parties hereto) shall have been notified pursuant thereto;

 

(d)          agrees that the Administrative Agent and the Lenders retain the right to bring proceedings against any Loan Party in the courts of any other jurisdiction in connection with the exercise of any rights under any Security Document or the enforcement of any judgment;

 

(e)          agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law; and

 

(f)          waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to in this Section 8.12 any special, exemplary, punitive or consequential damages.

 

Section 8.13        Acknowledgments.  In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), the Borrower acknowledges and agrees, and acknowledges its Affiliates’ understanding, that:  (a)(i) the arranging and other services regarding this Agreement provided by the Administrative Agent are arm’s-length commercial transactions between the Borrower and its Affiliates, on the one hand, and the Administrative Agent, on the other hand, (ii) the Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (iii) the Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (b)(i) the Administrative Agent is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Borrower or any of its Affiliates, or any other Person and (ii) the Administrative Agent has no obligation to the Borrower or any of its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (c) the Administrative Agent and its Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower and its Affiliates, and the Administrative Agent has no obligation to disclose any of such interests to the Borrower or any of its Affiliates.  To the fullest extent permitted by law, the Borrower hereby waives and releases any claims that it may have against the Administrative Agent with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.

 

Section 8.14        Confidentiality.  Each of the Administrative Agent, the Issuing Bank and the Lenders agrees to keep confidential, and shall cause any Transferees or Representatives to keep confidential, all non-public information provided to it by any Loan Party pursuant to this Agreement (“Information”); provided that nothing herein shall prevent the Administrative Agent or any Lender from disclosing any such information (a) to the Administrative Agent, the Issuing Bank, any other Lender or any affiliate of any thereof, (b) to any Participant or assignee (each, a “Transferee”) or prospective Transferee that agrees to comply with the provisions of this Section 8.14 or substantially equivalent provisions, (c) to any of its or its affiliates’ employees, directors, agents, attorneys, accountants and other professional advisors and customary service providers to the lending industry and to the Administrative Agent, the Issuing Bank or any Lender in connection with the administration of this Agreement, any other Loan Document and Term Loan Commitments (provided that such information disclosed to such service providers shall be limited to the terms or existence of the financing hereunder and the activities of the Administrative Agent, the Issuing Bank and the Lenders, but shall not include confidential business information relating to the Borrower of any of its affiliates) (such persons, “Representatives”), it being understood and agreed that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential, (d) to any financial institution that is a direct or indirect contractual counterparty in swap or derivative transaction relating to the Borrower, DRP or any of their respective Subsidiaries, or any if their respective obligations hereunder or such contractual counterparty’s professional advisor (so long as such contractual counterparty or professional advisor to such contractual counterparty agrees to be bound by the provisions of this Section or substantially equivalent provisions), (e) upon the request or demand of any Governmental Authority having jurisdiction over it (including any self-regulatory authority), (f) to the extent required in response to any order of any court or other Governmental Authority (including any self-regulatory authority) or to the extent otherwise required pursuant to any Requirement of Law, (g) in connection with any litigation or similar proceeding, (h) that has been publicly disclosed other than in breach of this Section 8.14, (i) to the National Association of Insurance Commissioners or any similar organization or any nationally recognized rating agency that requires access to information about a Lender’s investment portfolio in connection with ratings issued with respect to such Lender, (j) to any other party hereto, (k) with the consent of the Borrower, (l) in connection with the exercise of any remedy hereunder or under any other Loan Document, (m) for purposes of establishing a “due diligence” defense, (n) to the extent required by a potential or actual insurer or reinsurer in connection with providing insurance, reinsurance or credit risk mitigation coverage under which payments are to be made or may be made by reference to this Agreement and (o) subject to the Borrower’s prior approval of the information to be disclosed, to rating agencies in connection with obtaining a rating contemplated by this Agreement on a confidential basis; provided that, in the event a Lender or Issuing Bank receives a summons or subpoena to disclose confidential information to any party, such Lender or Issuing Bank shall, if legally permitted, endeavor to notify the Borrower thereof as soon as possible after receipt of such request, summons or subpoena and to afford the Loan Parties an opportunity to seek protective orders, or such other confidential treatment of such disclosed information, as the Loan Parties may deem reasonable.  Any Person required to maintain the confidentiality of Information as provided in this Section 8.14 shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.  It is understood and agreed that no Lender or Issuing Bank may advertise or promote its role in arranging or providing any portion of any the Term Loans or Letters of Credit (including in any newspaper or other periodical, on any website or similar place for dissemination of information on the internet, as part of a “case study” incorporated into promotional materials, in the form of a “tombstone” advertisement or otherwise) without the prior written consent of the Borrower (which consent may not be unreasonably withheld or delayed).

 

For the avoidance of doubt, nothing herein prohibits any individual from communicating or disclosing information regarding suspected violations of laws, rules, or regulations to a governmental, regulatory, or self-regulatory authority without any notification to any person.

 

Section 8.15      Accounting Changes.  In the event that any “Accounting Change” (as defined below) shall occur and such change results in a change in the method of calculation of financial covenants, standards or terms in this Agreement, and either the Borrower or the Required Lenders shall so request (or if the Administrative Agent notifies the Borrower that the Required Lenders so request), then the Borrower, the Issuing Bank and the Lenders agree to enter into negotiations in order to amend such provisions of this Agreement so as to equitably reflect such Accounting Change with the desired result that the criteria for evaluating the Borrower’s financial condition shall be the same after such Accounting Change as if such Accounting Change had not been made.  Until such time as such an amendment shall have been executed and delivered in accordance with Section 8.1, all financial covenants, standards and terms in this Agreement shall continue to be calculated or construed as if such Accounting Change had not occurred.  “Accounting Change” refers to any change in accounting principles required by the promulgation of any rule, regulation, pronouncement or opinion by the FASB, GAAP, any other generally accepted accounting authority which provides regulation standard or, if applicable, the SEC.

 

Section 8.16     WAIVERS OF JURY TRIAL.  EACH LOAN PARTY, THE ADMINISTRATIVE AGENT, THE ISSUING BANK AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING (WHETHER IN CONTRACT, TORT OR OTHERWISE AND WHETHER AT LAW OR IN EQUITY) RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.

 

Section 8.17        [Reserved].

 

Section 8.18        USA PATRIOT ACT.  Each Lender that is subject to the PATRIOT Act and the Beneficial Ownership Regulation and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the PATRIOT Act and the Beneficial Ownership Regulation, it is required to obtain, verify and record information that identifies each Loan Party, which information includes the name and address of each Loan Party and other information that will allow such Lender or the Administrative Agent, as applicable, to identify each Loan Party in accordance with the PATRIOT Act and the Beneficial Ownership Regulation.  The Borrower shall, promptly following a request by the Administrative Agent or any Lender, provide all documentation and other information that the Administrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the Beneficial Ownership Regulation.

 

Section 8.19       Payments Set Aside.  To the extent that any payment by or on behalf of the Borrower is made to the Administrative Agent or any Lender, or the Administrative Agent or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Administrative Agent or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender severally agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Effective Rate from time to time in effect.  The obligations of the Lenders under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement.

 

Section 8.20        Releases of Collateral; Termination of Credit Agreement.

 

(a)        Each of the Lenders and Issuing Bank agrees that the Collateral Agent’s Security Interest on any property granted to or held by the Collateral Agent under any Security Document shall be automatically released at the time the Property subject to such Security Interest is sold (other than to any other Person that would be required pursuant to this Agreement or any Security Document to grant a Security Interest on such Collateral to the Collateral Agent for the benefit of the Secured Parties after giving effect to such Asset Sale) as part or in connection with any Asset Sale permitted under this Agreement.

 

(b)        Each of the Lenders and Issuing Bank agrees that the Collateral Agent’s Security Interest on any property granted to or held by the Collateral Agent under any Security Document shall be automatically released to the extent such property becomes an Excluded Asset (as defined in the Security Agreement (as defined in the Collateral Agency Agreement)) or otherwise pursuant to the terms thereof.

 

(c)        Each of the Lenders and Issuing Bank agrees that, on the date that the Termination Conditions are satisfied, the Obligations will no longer be secured under the Security Documents.

 

(d)         The Administrative Agent, the Issuing Bank and the Lenders hereby agree that, upon the satisfaction of the Termination Conditions, this Agreement and the obligations of the Loan Parties hereunder shall be terminated, released, discharged and satisfied in full (other than any obligation set forth in this Agreement that, pursuant to its express terms, survives termination of this Agreement), and the Administrative Agent agrees to execute such documentation as may be reasonably requested by the Borrower to evidence (including to the Collateral Agent) such termination, release, discharge and satisfaction; provided that the foregoing shall be at the Borrower’s expense and in form and substance reasonably satisfactory to the Administrative Agent.

 

Section 8.21        Time.  Time is of the essence in all respects hereof.

 

Section 8.22        Acknowledgment and Consent to Bail-In of Affected Financial Institutions.  Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Lender that is an Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

 

(a)       the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto to any Lender that is an Affected Financial Institution; and

 

(b)          the effects of any Bail-In Action on any such liability, including, if applicable:

 

(i)          A reduction in full or in part or cancellation of any such liability;

 

(ii)       a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or

 

(iii)       The variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution Authority.

 

Section 8.23        Acknowledgment Regarding Any Supported QFCs.  To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any agreement or instrument that is a QFC (such support, “QFC Credit Support” and each such QFC a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States).  In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States.  In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States.

 

[Signature pages follow]

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written.

 

Schedule 1.1

[Omitted]

Schedule 3.6

 

[Omitted]

 

Schedule 3.8

 

[Omitted]

 

Schedule 3.15

 

[Omitted]

 

Schedule 3.17

 

[Omitted]

 

Schedule 3.23

 

[Omitted]

Schedule 5.5

 

[Omitted]

Schedule 5.29(b)

[Omitted]

Schedule 6.1(k)

[Omitted]

 

EXHIBIT A TO

CREDIT AGREEMENT

 

[FORM OF] ASSIGNMENT AND ACCEPTANCE AGREEMENT

 

This Assignment and Acceptance Agreement (this “Assignment”) is dated as of the Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the “Assignor”) and [Insert name of Assignee] (the “Assignee”).  Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as it may be amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee.  The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment as if set forth herein in full.

 

For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below, (i) all of the Assignor’s rights and obligations in its capacity as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of the Assignor’s outstanding rights and obligations under the respective facilities identified below (including, without limitation, any guarantees included in such facilities), and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by the Assignor to the Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as the “Assigned Interest”).  Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment, without representation or warranty by the Assignor.

 

Effective Date:                     , 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]

 

7.          Notice and Wire Instructions:

 

[Remainder of page intentionally left blank]

 

¹          Set forth, to at least 9 decimals, as a percentage of the Loans of all Lenders thereunder.

The terms set forth in this Assignment are hereby agreed to:

 

Consented to and Accepted:

 

]²

ANNEX 1

 

STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT

AND ASSUMPTION AGREEMENT

 

1.          Representations and Warranties.

 

1.1        Assignor.  The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and to consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with any Credit Document (as defined below), (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement or any other instrument or document delivered pursuant thereto, other than this Assignment (herein collectively the “Credit Documents”), or any collateral thereunder, (iii) the financial condition of Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Credit Document or (iv) the performance or observance by Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Credit Document.

 

1.2        Assignee.  The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iii) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring assets of such type, (iv) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 5.1 thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and to purchase the Assigned Interest, (v) it has, independently and without reliance upon Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and to purchase the Assigned Interest, and (vi) if it is a Non-U.S. Lender, attached to this Assignment is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without reliance on Administrative Agent, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Credit Documents are required to be performed by it as a Lender.

 

2.        Payments.  From and after the Effective Date, Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date.  Notwithstanding the foregoing, Administrative Agent shall make all payments of interest, fees or other amounts paid or payable in kind from and after the Effective Date to the Assignee.

 

3.         General Provisions.  This Assignment shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns.  This Assignment may be executed in any number of counterparts, which together shall constitute one instrument.  Delivery of an executed counterpart of a signature page of this Assignment by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment.  This Assignment shall be governed by, and construed in accordance with, the internal laws of the State of New York without regard to conflict of laws principles thereof.

 

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EXHIBIT B TO

CREDIT AGREEMENT

 

[FORM OF] NOTE

 

$[¹][___,___,___][²]

[mm/dd/yy]

New York, New York

FOR VALUE RECEIVED, DRP URBAN RENEWAL 4, LLC, a Delaware limited liability company (the “Borrower”), hereby promises to pay to [_____________________] (the “Lender”) or its registered assigns in accordance with the provisions of the Credit Agreement (as hereinafter defined), the principal amount of each Term Loan from time to time made by the Lender to the Borrower under that certain Credit Agreement, dated as of May 28, 2025 (as amended, restated, amended and restated, extended, supplemented or otherwise modified in writing from time to time, the “Credit Agreement;” the terms defined therein being used herein as therein defined), among the Borrower, the Lenders from time to time party thereto, and Deutsche Bank Trust Company Americas, as Administrative Agent.

 

The Borrower promises to pay interest on the unpaid principal amount of each Term Loan from the date of such Term Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Credit Agreement.  All payments of principal and interest shall be made to the Administrative Agent for the account of the Lender in Dollars in immediately available funds at the Principal Office of the Administrative Agent.  If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Credit Agreement.

 

This Note (this “Note”) is one of the Notes referred to in the Credit Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein.  Upon the occurrence and continuation of one or more of the Events of Default specified in the Credit Agreement, all amounts then remaining unpaid on this Note shall become, or may be declared to be, immediately due and payable all as provided in the Credit Agreement.  Term Loans made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business.  The Lender may also attach schedules to this Note and endorse thereon the date, amount and maturity of its Term Loans and payments with respect thereto.

 

All communications and notices hereunder shall be in writing and given as provided in Section 8.2 of the Credit Agreement.

 

FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, THIS NOTE IS BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR U.S. FEDERAL INCOME TAX PURPOSES. INFORMATION ABOUT ORIGINAL ISSUE DISCOUNT, ISSUE PRICE, ISSUE DATE AND THE YIELD TO MATURITY OF THIS NOTE MAY BE OBTAINED BY CONTACTING DRP URBAN RENEWAL 4, LLC C/O FTAI INFRASTRUCTURE INC., ATTENTION:  [CHIEF FINANCIAL OFFICER], ▇▇▇▇ ▇^▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, TELEPHONE [•].

 

THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF THE BORROWER AND THE LENDER HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

 

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IN WITNESS WHEREOF, ▇▇▇▇▇▇▇▇ has caused this Note to be duly executed and delivered by its officer thereunto duly authorized as of the date and at the place first written above.

 

EXHIBIT C TO

CREDIT AGREEMENT

 

[FORM OF] SOLVENCY CERTIFICATE

 

[●], 20[●]

 

 

This Solvency Certificate is being executed and delivered pursuant to Section 4.1(d) of that certain Credit Agreement, dated as of May 28, 2025, by and among DRP URBAN RENEWAL 4, LLC, a Delaware limited liability company (the “Borrower”), the Lenders from time to time part thereto, and Deutsche Bank Trust Company Americas, as Administrative Agent (the “Credit Agreement”; the terms defined therein being used herein as therein defined).

 

I, [●], the [Responsible Officer] of the Borrower, in such capacity and not in an individual capacity, hereby certify as follows:

 

 

 

[Signature Page to Follow]

 

IN WITNESS WHEREOF, I have executed this Solvency Certificate on the date first written above.

 

EXHIBIT D TO

CREDIT AGREEMENT

 

[FORM OF] FUNDING NOTICE

 

Reference is made to the Credit Agreement, to be dated on or about May 28, 2025 (as it may be amended, supplemented or otherwise modified, the “Credit Agreement”; the terms defined therein and not otherwise defined herein being used herein as therein defined), by and among DRP URBAN RENEWAL 4, LLC, a Delaware limited liability company (the “Borrower”), the several banks and other financial institutions or entities from time to time parties thereto, as the Lenders, and Deutsche Bank Trust Company Americas, as Administrative Agent.

 

Pursuant to Section 2.1(b) of the Credit Agreement, the Borrower desires that Lenders make the following Term Loans to the Borrower in accordance with the applicable terms and conditions of the Credit Agreement on [mm/dd/yy] (the “Credit Date”):

 

The proceeds of the Term Loans on the Credit Date may be net funded by the Lenders providing such Term Loans and as directed by the Administrative Agent to the satisfaction of certain fees of the Administrative Agent as specified by the letter of direction relating to such Term Loans.

 

The Borrower desires that the proceeds of the Term Loans on the Credit Date be disbursed in accordance with the following selection:

 

 

Delivery of an executed counterpart of this Funding Notice by facsimile or other electronic method of transmission shall be effective as delivery of an original executed counterpart of this Funding Notice.

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EXHIBIT E-1 TO

CREDIT AGREEMENT

 

[FORM OF]

U.S. TAX COMPLIANCE CERTIFICATE

(For Non-U.S. Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Credit Agreement dated as of May 28, 2025 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among DRP URBAN RENEWAL 4, LLC, a Delaware limited liability company (the “Borrower”), the Lenders party thereto and Deutsche Bank Trust Company Americas, as Administrative Agent.  Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

Pursuant to the provisions of Section 2.17 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Term Loan(s) (as well as any Note(s) evidencing such Term Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a “10- percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code and (v) no payments under any Loan Document are effectively connected with the undersigned’s conduct of a U.S. trade or business.

The undersigned has furnished the Borrower and the Administrative Agent with a certificate of its non-U.S. Person status on IRS Form W-8BEN or W-8BEN-E, as applicable.  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, or if a lapse in time or change in circumstances renders the information on this certificate obsolete, expired or inaccurate in any respect, the undersigned shall promptly so inform the Borrower and the Administrative Agent in writing and deliver promptly to the Borrower and the Administrative Agent an updated certificate or other appropriate documentation (including any new documentation reasonably requested by the Borrower or the Administrative Agent) or promptly notify the Borrower and the Administrative Agent in writing of its legal ineligibility to do so, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding each such payment.

EXHIBIT E-2 TO

CREDIT AGREEMENT

 

[FORM OF]

U.S. TAX COMPLIANCE CERTIFICATE

(For Non-U.S. Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Credit Agreement dated as of May 28, 2025 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among DRP URBAN RENEWAL 4, LLC, a Delaware limited liability company (the “Borrower”), the Lenders party thereto and Deutsche Bank Trust Company Americas, as Administrative Agent.  Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

Pursuant to the provisions of Section 2.17 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a “10-percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code and (v) no payments under any Loan Document are effectively connected with the undersigned’s conduct of a U.S. trade or business.

The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN or W-8BEN-E, as applicable.  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, or if a lapse in time or change in circumstances renders the information on this certificate obsolete, expired or inaccurate in any respect, the undersigned shall promptly so inform such Lender in writing and deliver promptly to such Lender an updated certificate or other appropriate documentation (including any new documentation reasonably requested by such Lender) or promptly notify such Lender in writing of its legal ineligibility to do so, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding each such payment.

EXHIBIT E-3 TO

CREDIT AGREEMENT

 

[FORM OF]

U.S. TAX COMPLIANCE CERTIFICATE

(For Non-U.S. Participants That Are Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Credit Agreement dated as of May 28, 2025 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among DRP URBAN RENEWAL 4, LLC, a Delaware limited liability company (the “Borrower”), the Lenders party thereto and Deutsche Bank Trust Company Americas, as Administrative Agent.  Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

Pursuant to the provisions of Section 2.17 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii)  neither the undersigned nor any of its direct or indirect partners/members that is claiming the portfolio interest exemption on behalf of itself or any of its beneficial owners is a bank within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members claiming the portfolio interest exemption on its own behalf is a “10-percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, (v) none of its Applicable Partners/Members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code and (vi) no payments under any Loan Document are effectively connected with the conduct of a U.S. trade or business by the undersigned or any of its direct or indirect partners/members claiming the portfolio interest exemption on behalf of itself or any of its beneficial owners.

The undersigned has furnished its participating Lender with an IRS Form W-8IMY accompanied by one of the following forms from each of its direct or indirect partners/members that is claiming the portfolio interest exemption claiming the portfolio interest exemption on behalf of itself or any of its beneficial owners:  an IRS Form W-8BEN, IRS Form W-8BEN-E, or IRS Form W-8IMY, as applicable.  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, or if a lapse in time or change in circumstances renders the information on this certificate obsolete, expired or inaccurate in any respect, the undersigned shall promptly so inform such Lender in writing and deliver promptly to such Lender an updated certificate or other appropriate documentation (including any new documentation reasonably requested by such Lender) or promptly notify such Lender in writing of its legal ineligibility to do so, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding each such payment.

EXHIBIT E-4 TO

CREDIT AGREEMENT

 

[FORM OF]

U.S. TAX COMPLIANCE CERTIFICATE

(For Non-U.S. Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Credit Agreement dated as of May 28, 2025 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among DRP URBAN RENEWAL 4, LLC, a Delaware limited liability company (the “Borrower”), the Lenders party thereto and Deutsche Bank Trust Company Americas, as Administrative Agent.  Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

Pursuant to the provisions of Section 2.17 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Term Loan(s) (as well as any Note(s) evidencing such Term Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Term Loan(s) (as well as any Note(s) evidencing such Term Loan(s)), (iii) neither the undersigned nor any of its direct or indirect partners/members that is claiming the portfolio interest exemption on behalf of itself or any of its beneficial owners is a bank within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of direct or indirect partners/members claiming the portfolio interest exemption on its own behalf is a “10-percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, (v) none of its direct or indirect partners/members claiming the portfolio interest exemption on its own behalf is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code and (vi) no payments under any Loan Document are effectively connected with the conduct of a U.S. trade or business by the undersigned or any of its direct or indirect partners/members claiming the portfolio interest exemption on behalf of itself or any of its beneficial owners.

The undersigned has furnished the Borrower and the Administrative Agent with an IRS Form W-8IMY accompanied by one of the following forms from each of its direct or indirect partners/members that is claiming the portfolio interest exemption claiming the portfolio interest exemption on behalf of itself or any of its beneficial owners: an IRS Form W-8BEN, IRS Form W-8BEN-E, or IRS Form W-8IMY, as applicable.  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, or if a lapse in time or change in circumstances renders the information on this certificate obsolete, expired or inaccurate in any respect, the undersigned shall promptly so inform the Borrower and the Administrative Agent in writing and deliver promptly to the Borrower and the Administrative Agent an updated certificate or other appropriate documentation (including any new documentation reasonably requested by the Borrower or the Administrative Agent) or promptly notify the Borrower and the Administrative Agent in writing of its legal ineligibility to do so, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding each such payment.

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