Execution Version #97570842v91 CREDIT AGREEMENT dated as of February 2, 2024, among PAGAYA TECHNOLOGIES LTD., and PAGAYA US HOLDING COMPANY LLC, individually and collectively as the context may require, as the Borrower, THE SEVERAL LENDERS FROM TIME...
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Execution Version #97570842v91 CREDIT AGREEMENT dated as of February 2, 2024, among PAGAYA TECHNOLOGIES LTD., and PAGAYA US HOLDING COMPANY LLC, individually and collectively as the context may require, as the Borrower, THE SEVERAL LENDERS FROM TIME TO TIME PARTY HERETO, and ACQUIOM AGENCY SERVICES LLC, as Administrative Agent
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v #97570842v91 10.15 Acknowledgements ...................................................................................................................... 170 10.16 [Reserved]. ................................................................................................................................... 171 10.17 Treatment of Certain Information; Confidentiality ...................................................................... 171 10.18 [Reserved] .................................................................................................................................... 172 10.19 Judgment Currency ...................................................................................................................... 172 10.20 Patriot Act; Other Regulations ..................................................................................................... 172 10.21 Acknowledgement and Consent to Bail-In of Affected Financial Institutions ............................ 172 10.22 Acknowledgement Regarding Any Supported QFCs .................................................................. 173 10.23 Acknowledgement Regarding Israeli Banking Laws ................................................................... 174 10.24 Original Issue Discount Legend ................................................................................................... 174
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Table of Contents (continued) vi #97570842v91 SCHEDULES Schedule 1.1A: Commitments Schedule 4.4: Governmental Approvals, Consents, etc. Schedule 4.15: Subsidiaries Schedule 4.19(a): Financing Statements and Other Filings Schedule 7.2(e): Existing Indebtedness Schedule 7.3(f): Existing Liens Schedule 7.7(e): Existing Investments EXHIBITS Exhibit A: Form of Guarantee and Collateral Agreement Exhibit B: Form of Compliance Certificate Exhibit C: [Reserved] Exhibit D: Form of Solvency Certificate Exhibit E: Form of Assignment and Assumption Exhibits F-1 β F-4: Forms of U.S. Tax Compliance Certificate Exhibit G-1: Form of Revolving Loan Note Exhibit G-2: Form of Swingline Loan Note Exhibit H: Form of Collateral Information Certificate Exhibit I: Term Loan Note Exhibit J Form of Notice of Borrowing Exhibit K: Form of Notice of Conversion/Continuation Exhibit K-1: Form of Floating Charge Debenture Exhibit K-2: Form of Fixed Charge Debenture Exhibit L: Form of Affiliated Lender Assignment and Assumption Exhibit M: Form of Secured Party Designation Notice Exhibit N: Form of Liquidity Certificate
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1 #97570842v91 CREDIT AGREEMENT THIS CREDIT AGREEMENT, dated as of February 2, 2024 (this βAgreementβ), is entered into by and among PAGAYA TECHNOLOGIES LTD., a company organized under the laws of Israel (the βPagaya Parentβ), PAGAYA US HOLDING COMPANY LLC, a Delaware limited liability company (βPagaya USβ), the several banks and other financial institutions or entities from time to time party to this Agreement as lenders (for so long as such lender remains a party hereto in such capacity, each, a βLenderβ and, collectively, the βLendersβ), VALLEY NATIONAL BANK (βVNBβ), as the Issuing Lender and the Swingline Lender (each, as defined below) and ACQUIOM AGENCY SERVICES LLC, as administrative agent for the Lenders and collateral agent for the Secured Parties (in such capacities, together with any successors and permitted assigns in such capacities, the βAdministrative Agentβ). RECITALS: WHEREAS, the Borrower desires to obtain financing to refinance the Existing SVB Credit Facility and to provide for working capital financing and general corporate purposes and letter of credit facilities; WHEREAS, the Lenders have agreed to extend credit facilities to the Borrower, upon the terms and conditions specified in this Agreement, consisting of a term loan facility in the aggregate principal amount of $255,000,000, and a revolving loan facility in an aggregate principal amount of up to $50,000,000; WHEREAS, the Borrower has agreed to secure all of its Obligations by granting to the Administrative Agent, for the benefit of the Secured Parties, a first priority lien (subject to Liens permitted by the Loan Documents) on its interests in the Collateral (as defined below); and WHEREAS, each of the Guarantors has agreed to guarantee the Obligations of the Borrower and to secure the Obligations by granting to the Administrative Agent, for the benefit of the Secured Parties, a first priority lien (subject to Liens permitted by the Loan Documents) on its interests in the Collateral. NOW, THEREFORE, the parties hereto hereby agree as follows: SECTION 1 DEFINITIONS 1.1 Defined Terms. As used in this Agreement (including the recitals hereof), the terms listed in this Section 1.1 shall have the respective meanings set forth in this Section 1.1. βABRβ: for any day, a rate per annum equal to the highest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect for such day plus 0.50% and (c) Adjusted Term SOFR for a one-month tenor in effect on such day plus 1.00%; provided that in no event shall the ABR be deemed to be less than 2.00%. If the Administrative Agent shall have determined (which determination shall be conclusive absent manifest error) that it is unable to ascertain the Federal Funds Effective Rate or Adjusted Term SOFR for any reason, the ABR shall be determined without regard to clause (b) or (c) above, as applicable, until the circumstances giving rise to such inability no longer exist. Any change in the ABR due to a change in the Prime Rate, the Federal Funds Effective Rate or Adjusted Term SOFR, as the case may be, shall be effective as of the opening of business on the effective day of the change in such rates. βABR Loansβ: Loans, the rate of interest applicable to which is based upon the ABR.
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2 #97570842v91 βABR Term SOFR Determination Dayβ: as defined in the definition of βTerm SOFRβ. βAcceptable Intercreditor Agreementβ: an intercreditor agreement that is reasonably satisfactory to the Administrative Agent (at the direction of the Required Lenders) (which may, if applicable, consist of a payment βwaterfallβ). βAccount Bankβ: as defined in Section 7.21(b). βAccountsβ: all βaccountsβ (as defined in the UCC) of a Person, including, without limitation, accounts, accounts receivable, monies due or to become due and obligations in any form (whether arising in connection with contracts, contract rights, instruments, general intangibles, or chattel paper), in each case whether arising out of goods sold or services rendered or from any other transaction and whether or not earned by performance, now or hereafter in existence, and all documents of title or other documents representing any of the foregoing, and all collateral security and guaranties of any kind, now or hereafter in existence, given by any Person with respect to any of the foregoing. βAccrued DP Interestβ: the interest accruing and payable on the portion of the DP Amounts that have not been paid. βAdditional Revolving Commitmentβ: as defined in Section 2.23(a). βAdjusted Term SOFRβ: for purposes of any calculation and subject to the provisions of Section 2.14(b), the rate per annum equal to Term SOFR for such calculation; provided that if Adjusted Term SOFR as so determined shall ever be less than the Floor, then Adjusted Term SOFR shall be deemed to be equal to the Floor. βAdministrative Agentβ: as defined in the preamble hereto. βAdministrative Borrowerβ: as defined in Section 2.24(c). βAdministrative Questionnaireβ means an Administrative Questionnaire in a form supplied by the Administrative Agent. βAffected Financial Institutionβ: (a) any EEA Financial Institution or (b) any UK Financial Institution. βAffected Lenderβ: as defined in Section 2.20. βAffiliateβ: with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified; provided that, neither the Administrative Agent nor the Lenders nor any Cash Management Bank shall be deemed Affiliates of the Loan Parties as a result of the exercise of their rights and remedies under the Loan Documents or Specified Cash Management Agreements. For purposes of this Agreement and the other Loan Documents, Jefferies LLC and its Affiliates shall be deemed to be Affiliates of Jefferies Finance LLC and its Affiliates. βAffiliated Lenderβ: the Borrower and/or any of its Subsidiaries. βAffiliated Lender Assignment and Assumptionβ: an assignment and assumption entered into by a Xxxxxx and an Affiliated Lender (with the consent of any party whose consent is required by Section
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3 #97570842v91 10.6) and accepted by the Administrative Agent in the form of Exhibit L or any other form (including electronic documentation generated by MarkitClear or other electronic platform) approved by the Administrative Agent and the Borrower. βAgent Fee Letterβ: the fee letter dated February 2, 2024, between the Borrower and the Administrative Agent. βAgent Partiesβ: as defined in Section 10.2(c)(ii). βAggregate Exposureβ: with respect to any Lender at any time, an amount equal to the sum of (a) the aggregate then unpaid principal amount of such Lenderβs Term Loans, (b) the aggregate amount of such Lenderβs unused Term Loan Commitments then in effect, (c) the amount of such Lenderβs Revolving Commitment then in effect or, if the Revolving Commitments have been terminated, the amount of such Lenderβs Revolving Extensions of Credit then outstanding, and (d) without duplication of clause (c), the L/C Commitment of such Lender then in effect (as a sublimit of the Revolving Commitment of such Lender). βAggregate Exposure Percentageβ: with respect to any Lender at any time, the ratio (expressed as a percentage) of such Xxxxxxβs Aggregate Exposure at such time to the Aggregate Exposure of all Lenders at such time. βAgreementβ: as defined in the preamble hereto. βAgreement Currencyβ: as defined in Section 10.19. βApplicable Foreign Obligor Documentsβ: as defined in Section 4.27(a). βApplicable Marginβ: (i) with respect to SOFR Loans, 7.50% per annum, and (ii) with respect to ABR Loans, 6.50% per annum. βApplicable RR Personβ: as defined in Section 7.21(b). βApplicationβ: an application, in such form as the Issuing Lender may specify from time to time, requesting the Issuing Lender to issue a Letter of Credit. βApproved Fundβ: any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender, or (c) an entity or an Affiliate of an entity that administers or manages a Lender. βAsset Saleβ: any Disposition of property or series of related Dispositions of property that yields gross proceeds to any Group Member. βAssignment and Assumptionβ: an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 10.6), and accepted by the Administrative Agent, in substantially the form of Exhibit E or any other form (including electronic documentation generated by MarkitClear or other electronic platform) approved by the Administrative Agent. βAvailable Amountβ: on any date of determination, the sum, without duplication and in each case to the extent Not Otherwise Applied, of:
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5 #97570842v91 Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other Insolvency Proceedings). βBankruptcy Codeβ: Title 11 of the United States Code entitled βBankruptcy.β βBenchmarkβ: initially, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate or the then-current Benchmark, then βBenchmarkβ means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.14(b)(i). βBenchmark Replacementβ: with respect to any Benchmark Transition Event, the first alternative set forth in the order below that (x) can be determined by the Administrative Agent (acting at the direction of the Required Lenders) for the applicable Benchmark Replacement Date and (y) is administratively feasible as determined by the Administrative Agent: (a) the sum of (i) Daily Simple SOFR and (ii) the related Benchmark Replacement Adjustment; (b) the sum of: (i) the alternate benchmark rate that has been selected by the Administrative Agent (acting at the direction of the Required Lenders) and the Administrative Borrower giving due consideration to (A) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (B) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated syndicated credit facilities at such time and (ii) the related Benchmark Replacement Adjustment. If the Benchmark Replacement as determined pursuant to clause (a) or (b) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents. βBenchmark Replacement Adjustmentβ: with respect to any replacement of the then current Benchmark with an Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent (acting at the direction of the Required Lenders) and the Administrative Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities at such time; provided, that any such Benchmark Replacement shall be administratively feasible as determined by the Administrative Agent. βBenchmark Replacement Dateβ: a date and time determined by the Administrative Agent (at the direction of the Required Lenders), which date shall be no later than the earliest to occur of the following events with respect to the then-current Benchmark:
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6 #97570842v91 (a) in the case of clause (a) or (b) of the definition of βBenchmark Transition Event,β the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); (b) in the case of clause (c) of the definition of βBenchmark Transition Eventβ, the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative; provided that such non- representativeness will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date; The βBenchmark Replacement Dateβ will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof). βBenchmark Transition Eventβ: the occurrence of one or more of the following events with respect to the then-current Benchmark: (a) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); (b) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Board of Governors of the Federal Reserve System, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or (c) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative. A βBenchmark Transition Eventβ will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then- current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
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7 #97570842v91 βBenchmark Unavailability Periodβ: with respect to any Benchmark, the period (if any) (x) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.14(b) and (y) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.14(b). βBeneficial Ownership Certificationβ: a certification regarding beneficial ownership required by the Beneficial Ownership Regulation, which certification shall be substantially similar in form and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association. βBeneficial Ownership Regulationβ: United States 31 C.F.R. Β§ 1010.230. βBenefitted Lenderβ: as defined in Section 10.7(a). βBHC Act Affiliateβ: as defined in Section 10.22(b)(i). βBlackRock Lendersβ means, collectively, the Lenders that are funds or accounts under management of BlackRock Capital Investment Advisors, LLC (or its Affiliates). βBlocked Personβ: as defined in Section 7.20. βBoardβ: the Board of Governors of the Federal Reserve System of the United States (or any successor). βBorrowerβ: Pagaya Parent and/or Pagaya US, individually and collectively, as the context may require. βBorrowing Dateβ: any Business Day specified by the Borrower in a Notice of Borrowing as a date on which the Borrower requests the relevant Lenders to make Loans hereunder. βBusiness Dayβ: a day other than a Saturday, Sunday or other day on which commercial banks in the State of New York or the State of California are authorized or required by law to close. βCapital Expendituresβ: as applied to any Person for any period, the aggregate amount, without duplication, of all expenditures (whether paid in cash or accrued as liabilities and including in all events all amounts expended or capitalized under Finance Leases) that in accordance with GAAP, are, or are required to be included as, capital expenditures on the consolidated statement of cash flows for such Person for such period. βCapital Stockβ: with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.
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8 #97570842v91 βCapitalized Software Expendituresβ means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities) by the Group Members during such period in respect of purchased software or internally developed software and software enhancements that, in conformity with GAAP, are or are required to be reflected as capitalized costs on the consolidated balance sheet (excluding the footnotes thereto) of the Group Members. βCash Collateralizeβ: to pledge and deposit with or deliver to (a) with respect to Obligations in respect of Letters of Credit, the Administrative Agent, for the benefit of the Issuing Lender and one or more of the Lenders, as applicable, as collateral for L/C Exposure or obligations of the Lenders to fund participations in respect thereof, cash or deposit account balances or, if the Issuing Lender shall agree in its sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to the Administrative Agent and such Issuing Lender; (b) with respect to Obligations arising under any Specified Cash Management Agreement in connection with Cash Management Services, the applicable Cash Management Bank, for its own or any of its applicable Affiliateβs benefit, as provider of such Cash Management Services, cash or deposit account balances or, if the applicable Cash Management Bank shall agree in their sole discretion, other credit support, in each case pursuant to documentation in form and substance reasonably satisfactory to such Cash Management Bank; or (c) with respect to Obligations in respect of any Specified Swap Agreements, the applicable Qualified Counterparty, as Collateral for such Obligations, cash or deposit account balances or, if such Qualified Counterparty shall agree in its sole discretion, other credit support, in each case pursuant to documentation in form and substance reasonably satisfactory to such Qualified Counterparty. βCash Collateralβ shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support. βCash Equivalentsβ: (a) marketable direct obligations issued by, or unconditionally guaranteed or insured by, the federal government of the United States or issued by any agency thereof and backed by the full faith and credit of the United States, in each case, maturing within twelve (12) months from the date of acquisition; (b) certificates of deposit, time deposits, eurodollar time deposits or overnight bank deposits having maturities of twelve (12) months or less from the date of acquisition issued by any Lender, the Administrative Agent or one of their Affiliates (or any Person that was a Lender, the Administrative Agent or one of their Affiliates at the time of the acquisition thereof) or by any commercial bank organized under the laws of the United States or any state thereof having combined capital and surplus of not less than $250,000,000; (c) commercial paper of an issuer rated at least A-2 by S&P or P-2 by Xxxxxβx, or carrying an equivalent rating by a nationally recognized rating agency, if both of the two named rating agencies cease publishing ratings of commercial paper issuers generally provided that, if, after the acquisition thereof, any such commercial paper suffers a ratings downgrade such that it is no longer rated at least A-2 by S&P or P-2 by Xxxxxβx, or an equivalent rating by a nationally recognized rating agency, such commercial paper shall deemed to be a Cash Equivalent until the date that is thirty (30) days following the date on which a Responsible Officer of the Borrower has knowledge of such ratings change), and maturing within twelve (12) months from the date of acquisition; (d) repurchase obligations of any Lender, the Administrative Agent or one of their Affiliates (or any Person that was a Lender, the Administrative Agent or one of their Affiliates at the time of the acquisition thereof) or of any commercial bank satisfying the requirements of clause (b) of this definition having a term of not more than thirty (30) days, with respect to securities issued or fully guaranteed or insured by the United States government; (e) securities with maturities of one (1) year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at least A by S&P or A by Xxxxxβx, or carrying an equivalent rating by a nationally recognized rating agency if both of the two named rating agencies cease publishing such ratings generally (provided that, if, after the acquisition thereof, any such security suffers a ratings downgrade such that it is no longer
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9 #97570842v91 rated at least A by S&P or A by Xxxxxβx, or an equivalent rating by a nationally recognized rating agency, such security shall deemed to be a Cash Equivalent until the date that is thirty (30) days following the date on which a Responsible Officer of the Borrower has knowledge of such ratings change)); (f) securities with maturities of twelve (12) months or less from the date of acquisition backed by standby letters of credit issued by any Lender, the Administrative Agent or one of their Affiliates (or any Person that was a Lender, the Administrative Agent or one of their Affiliates at the time of the acquisition thereof) or any commercial bank satisfying the requirements of clause (b) of this definition; (g) money market mutual or similar funds that invest primarily in assets satisfying the requirements of clauses (a) through (f) of this definition; (h) money market funds that (i) comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act of 1940, as amended, (ii) are rated AAA by S&P and Aaa by Xxxxxβx, or carrying an equivalent rating by a nationally recognized rating agency if both of the two named rating agencies cease publishing such ratings generally (provided that, if, after the acquisition thereof, any such money market fund suffers a ratings downgrade such that it is no longer rated at least AAA by S&P or Aaa by Xxxxxβx, or an equivalent rating by a nationally recognized rating agency, such money market fund shall deemed to be a Cash Equivalent until the date that is thirty (30) days following the date on which a Responsible Officer of the Borrower has knowledge of such ratings change)) and (iii) have portfolio assets of at least $5,000,000,000; (i) currencies held by the Borrower or its Subsidiaries from time to time in the ordinary course of business; and (j) with respect to any Foreign Subsidiary, (i) time deposits, certificates of deposit or bankersβ acceptances issued by any commercial bank which is organized and existing under the laws of the country in which such Foreign Subsidiary maintains its chief executive office or principal place of business, or payable to such Foreign Subsidiary promptly following demand and maturing within twelve (12) months of the date of acquisition and (ii) other investments of a similar type to those described in clauses (a) β (h) of this definition, which have been permitted pursuant to Borrowerβs investment policy as approved by the board of directors (or committee thereof) of the Borrower from time to time, in the country where such Foreign Subsidiary maintains its chief executive office or principal place of business; provided that such (1) investments of the type and maturity described in clause (a) above are with foreign commercial banks, which investments or commercial banks (or the parents of such commercial banks) have comparable credit quality and are customarily used by companies in the jurisdictions of such Foreign Subsidiaries for cash management purposes and (2) other short-term investments utilized by Foreign Subsidiaries in accordance with normal investment practices for cash management of comparable tenure and credit quality to those described in clause (a) above or other high quality short term investments, in each case, customarily utilized in countries in which such Foreign Subsidiary operates for short term cash management purposes. βCash Management Agreementβ: an agreement with any Person to provide cash management and other services provided to one or more of the Group Members, which may include treasury, depository, return items, overdraft, controlled disbursement, merchant store value cards, e-payables services, electronic funds transfer, interstate depository network, automatic clearing house transfer (including the Automated Clearing House processing of electronic funds transfers through the direct Federal Reserve Fedline system), merchant services, direct deposit of payroll, business credit card (including so-called βpurchase cardsβ, βprocurement cardsβ or βp-cardsβ), credit card processing services, debit cards, stored value cards, and check cashing services. βCash Management Bankβ: any Person that, at the time it enters into a Cash Management Agreement, is the Administrative Agent or a Lender or an Affiliate of the Administrative Agent or a Lender or, with respect to any Cash Management Agreement entered into prior to the Closing Date, was a Lender, Administrative Agent or an Affiliate thereof as of the Closing Date, in each case in its capacity as a party to such Cash Management Agreement; provided that, in each case, such Person and the Borrower shall have executed and delivered to the Administrative Agent a Secured Party Designation Notice.
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10 #97570842v91 βCash Management Servicesβ: cash management and other services provided to one or more of the Group Members by a Cash Management Bank which may include treasury, depository, return items, overdraft, controlled disbursement, merchant store value cards, e-payables services, electronic funds transfer, interstate depository network, automatic clearing house transfer (including the Automated Clearing House processing of electronic funds transfers through the direct Federal Reserve Fedline system), merchant services, direct deposit of payroll, business credit card (including so-called βpurchase cardsβ, βprocurement cardsβ or βp-cardsβ), credit card processing services, debit cards, stored value cards, and check cashing services identified in such Cash Management Bankβs Specified Cash Management Agreements. βCasualty Eventβ: any damage to or any destruction of, or any condemnation or other taking by any Governmental Authority of any property of a Group Member. βCertificated Securitiesβ: as defined in Section 4.19(a). βCFCβ shall mean a Foreign Subsidiary that is a controlled foreign corporation within the meaning of Section 957 of the Code. βCFC Holding Companyβ: any direct or indirect Domestic Subsidiary of the Borrower, substantially all of the assets of which consist of the Capital Stock (or Capital Stock and other securities) of one or more CFCs or other CFC Holding Companies. βChange of Controlβ: (a) at any time, any βpersonβ or βgroupβ (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) shall become, or obtain rights (whether by means of warrants, options or otherwise) to become, the βbeneficial ownerβ (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of 35% or more of the ordinary voting power for the election of directors of Xxxxxx Xxxxxx (determined on a fully diluted basis), other than any Permitted Holder or (b) any time that Pagaya Parent shall cease to own and control, of record and beneficially, directly or indirectly, 100% of each class of outstanding Capital Stock of Pagaya US free and clear of all Liens other than Liens permitted by Sections 7.3. Any Permitted Holder that pledges any Common Stock and grants a security interest in such Common Stock to secure a bona fide loan or other indebtedness transaction shall be deemed to remain the beneficial owner of such Common Stock for so long as such Permitted Holder continues to exercise voting control over such pledged Common Stock prior to the foreclosure of such shares or exercise of rights by the applicable lender. βClosing Dateβ: the date on which all of the conditions precedent set forth in Section 5.1 are satisfied or waived by the Administrative Agent and, as applicable, the Lenders or the Required Lenders, which date is February 2, 2024. βCodeβ: the Internal Revenue Code of 1986, as amended from time to time. βCollateralβ: the βCollateralβ (as defined in the Guarantee and Collateral Agreement) and the βCharged Propertyβ (as defined in the Debentures). βCollateral Information Certificateβ: the Collateral Information Certificate executed and delivered by the Borrower pursuant to Section 5.1 on or prior to the Closing Date, substantially in the form of Exhibit H. βCollateral-Related Expensesβ: all reasonable, documented, out-of-pocket costs and expenses of the Administrative Agent paid or incurred in connection with any sale, collection or other realization on the
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11 #97570842v91 Collateral, including reasonable compensation to the Administrative Agent and its agents and counsel, and reimbursement for all other reasonable and documented costs, expenses and liabilities and advances made or incurred by the Administrative Agent in connection therewith (including as described in Section 6.6 of the Guarantee and Collateral Agreement), and all amounts for which the Administrative Agent is entitled to indemnification under the Security Documents and all advances made by the Administrative Agent under the Security Documents for the account of any Loan Party; provided that, with respect to the Loan Parties, such amounts are subject to any applicable limitations set forth in Section 10.5. βCommercial Bankβ: a financial institution organized primarily for the purpose of engaging in the commercial banking business and shall be deemed to include JPMorgan Chase Bank, N.A., Valley National Bank, Israel Discount Bank Limited and Bank Leumi Le-Israel B.M, so long as each is a Lender. βCommitmentβ: as to any Lender, the sum of its Term Loan Commitment and its Revolving Commitment. βCommitment Fee Rateβ: 0.25% per annum. βCommodity Exchange Actβ: the Commodity Exchange Act (7 U.S.C. Section 1 et seq.), as amended from time to time, and any successor statute. βCommon Stockβ: the ordinary shares of Pagaya Parent. βCommunicationsβ: as defined in Section 10.2(c)(ii). βCompliance Certificateβ: a certificate duly executed by a Responsible Officer of the Borrower substantially in the form of Exhibit B. βConforming Changesβ: with respect to either the use or administration of any Benchmark or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of βABRβ, the definition of βBusiness Day,β the definition of βU.S. Government Securities Business Day,β the definition of βInterest Periodβ or any similar or analogous definition (or the addition of a concept of βinterest periodβ), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of any breakage provision and other technical, administrative or operational matters) that the Administrative Agent (acting at the direction of the Required Lenders) decides may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent (acting at the direction of the Required Lenders) determines that no market practice for the administration of any such rate exists, in such other manner of administration as (x) the Administrative Agent (acting at the direction of the Required Xxxxxxx) decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents and (y) is administratively feasible as determined by the Administrative Agent). βConnection Income Taxesβ: Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes. βConsolidated Adjusted EBITDAβ: with respect to the Group Members for any period,
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12 #97570842v91 (a) the sum, without duplication, of the amounts for such period of: (i) Consolidated Net Income, plus (ii) Consolidated Interest Expense, plus (iii) provisions for taxes based on income, plus (iv) total depreciation expense, plus (v) total amortization expense, plus (vi) noncash stock based compensation expense, plus (vii) extraordinary, unusual or nonrecurring expenses, losses or charges; provided that the aggregate amount for all such items under this clause (vii) will not exceed 20% of Consolidated Adjusted EBITDA (or such higher amount as may be approved by the Required Lenders in their sole discretion) in any four consecutive fiscal quarter period in the aggregate when calculated with all amounts added back pursuant to clauses (xi), (xiii) and (xviii) below and adjustments pursuant to the second proviso to Section 1.7(b) (calculated, in each case, after giving effect to all addbacks permitted under this definition), plus (viii) fair value adjustment to warrant liability, plus (ix) impairment loss on any Investments, plus (x) write-downs of capitalized software, plus (xi) (x) the amount of any restructuring charge, accrual or reserve, integration cost or other business optimization expense, including any restructuring costs incurred in connection with acquisitions, mergers or consolidations and any other restructuring expenses, severance expenses, one-time compensation charges, post-retirement employee benefits plans, any expenses relating to reconstruction, expenses or charges relating to facility closing costs, acquisition integration costs and signing, retention or completion bonuses or expenses and (y) the amount of any costs, charges, accruals, reserves or expenses attributable to the undertaking and/or implementation of such restructuring, integration and optimization initiatives and the other items specified in this clause (xi); provided that the aggregate amount for all such items under this clause (xi) will not exceed 20% of Consolidated Adjusted EBITDA (or such higher amount as may be approved by the Required Lenders in their sole discretion) in any four consecutive fiscal quarter period in the aggregate when calculated with all amounts added back pursuant to clause (vii) above, clauses (xiii) and (xviii) below and adjustments pursuant to the second proviso to Section 1.7(b) (calculated, in each case, after giving effect to all addbacks permitted under this definition), plus (xii) costs, fees and expenses in connection with the execution and delivery of this Agreement and the other Loan Documents and any amendments or other modifications thereto, plus (xiii) one-time costs, fees, and expenses in connection with Permitted Acquisitions, Investments, dispositions, issuances or repurchases of Capital Stock (excluding, in each case, ordinary course transaction costs, fees and expenses in connection with Permitted Risk Retention Facilities, Permitted Secured Financings or Limited Guarantees), or the incurrence, amendment or waiver of Indebtedness (in each case solely to the extent permitted hereunder), in each case, whether or not
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13 #97570842v91 consummated; provided that the aggregate amount for all such items under this clause (xiii) will not exceed 20% of Consolidated Adjusted EBITDA (or such higher amount as may be approved by the Required Lenders in their sole discretion) in any four consecutive fiscal quarter period in the aggregate when calculated with all amounts added back pursuant to clauses (vii) and (xi) above, clause (xviii) below and adjustments pursuant to the second proviso to Section 1.7(b) (calculated, in each case, after giving effect to all addbacks permitted under this definition), plus (xiv) noncash exchange, transaction or performance losses relating to any foreign currency hedging transactions or currency fluctuations, plus (xv) without duplication of any amounts added back pursuant to clause (xiii) above, noncash purchase accounting adjustments (including, but not limited to deferred revenue write down) and any adjustments as required or permitted by GAAP, in each case, in connection with Permitted Acquisitions, plus (xvi) without duplication of any addback made pursuant to clauses (iv) and (v) above, noncash charges for goodwill and other intangible write-offs and write-downs in connection with Permitted Acquisitions or otherwise, plus (xvii) other non-cash items reducing Consolidated Net Income (excluding any such non-cash item to the extent that it represents an accrual or reserve for potential cash items in any future period or amortization of a prepaid cash item that was paid in a prior period) approved by the Required Lenders in writing as an βadd backβ to Consolidated Adjusted EBITDA, plus (xviii) the amount of βrun-rateβ cost savings, operating expense reductions and synergies related to the Transactions, any Specified Transaction or any other restructuring, cost saving initiative or other initiative that are reasonably identifiable (as determined and certified in good faith by the Borrower), factually supportable and projected by such Person in good faith to result from actions taken or committed to be taken no later than 12 months after the end of such Test Period (which amounts will be determined by such Person in good faith and calculated on a Pro Forma Basis as though such amounts had been realized on the first day of such Test Period), net of the amount of actual benefits realized during such Test Period from such actions; provided that the aggregate amount for all such items under this clause (xviii) will not exceed 20% of Consolidated Adjusted EBITDA (or such higher amount as may be approved by the Required Lenders in their sole discretion) in any four consecutive fiscal quarter period in the aggregate when calculated with all amounts added back pursuant to clauses (vii), (xi) and (xiii) above and adjustments pursuant to the second proviso to Section 1.7(b) (calculated, in each case, after giving effect to all addbacks permitted under this definition), plus (xix) at the option of the Borrower, any other adjustments, exclusions and add- backs (x) that are consistent with Regulation S-X (other than any βmanagement adjustmentsβ that are not consistent with Regulation S-X as in effect prior to January 1, 2021) or (z) that are set forth in any quality of earnings analysis or report prepared by financial advisors of recognized standing or any other firm reasonably acceptable to the Administrative Agent (at the direction of the Required Lenders) (it being understood that the βBig Fourβ accounting firms are acceptable) and delivered to the Administrative Agent (for distribution to the Lenders) in connection with any Permitted Acquisition or other similar Investment permitted hereunder; minus (b) the sum, without duplication of the amounts for such period of: (i) other non-cash items increasing Consolidated Net Income for such period (excluding
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14 #97570842v91 any such non-cash item to the extent it represents the reversal of an accrual or reserve for potential cash item in any prior period), plus (ii) interest income, plus (iii) extraordinary, unusual or nonrecurring gains, additions or credits. Notwithstanding the foregoing, the βConsolidated Adjusted EBITDAβ for the consolidated Group Members for the periods identified in the following table shall be deemed to be as follows: Period (fiscal quarter Ending) Consolidated Adjusted EBITDA March 31, 2023 $2,048,000 June 30, 2023 $17,494,000 September 30, 2023 $28,261,000 βConsolidated First Lien Leverage Ratioβ: as of any date of determination, the ratio of (a) Consolidated Secured Debt (other than Permitted Risk Retention Facilities and Permitted Secured Financings) as of such date secured by Liens that are pari passu (including, without limitation, any first lien Indebtedness incurred under this Facility) with, or senior to, the Liens securing the Facility to (b)(i) Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis as of the applicable date of determination minus (ii) Consolidated Interest Expense relating to Permitted Risk Retention Facilities paid in cash during such Test Period. βConsolidated Funded Indebtednessβ: as of any date of determination, for the Group Members determined on a consolidated basis in accordance with GAAP (but excluding the effects of any discounting of Indebtedness resulting from the application of the acquisition method accounting in connection with any Permitted Acquisition (or other Investment permitted hereunder) and exclusive of any Indebtedness of the Group Members to any other Group Member), (1) the sum (without duplication) of (a) the outstanding principal amount of all Indebtedness for borrowed money, (b) the outstanding principal amount of all Indebtedness outstanding under bonds, notes, debentures, indentures, loan agreements and similar obligations, (c) the aggregate amount of all obligations in respect of Finance Leases, (d) all unreimbursed drawings in respect of letters of credit (and similar facilities), (e) earnouts payable in cash once the amount of the asserted payment is reasonably determined and becomes a liability on the balance sheet in accordance with GAAP (other than references thereto in the footnotes) and (f) all Guarantees (excluding, for the avoidance of doubt, Limited Guarantees) with respect to outstanding Indebtedness of the types specified in clauses (a), (b), (c), (d) and (e) above of Persons other than any Group Member and (2) net of the Unrestricted Cash Amount not to exceed $50,000,000. Notwithstanding the foregoing, Consolidated Funded Indebtedness shall not include any Defeased Indebtedness. βConsolidated Interest Expenseβ: for any period, total interest expense (including that attributable to Finance Lease Obligations) of the Group Members for such period with respect to all outstanding Indebtedness of such Persons (including all commissions, discounts and other fees and charges owed with respect to letters of credit and bankersβ guarantees and acceptance financing and net costs under Swap Agreements in respect of interest rates to the extent such net costs are allocable to such period in accordance with GAAP). βConsolidated Net Incomeβ: for any period, the consolidated net income (or loss) of the Group Members, determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded from the calculation of βConsolidated Net Incomeβ (a) the income (or deficit) of any such Person
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15 #97570842v91 accrued prior to the date it becomes a Subsidiary of the Borrower or is merged into or consolidated with a Group Member, (b) the income (or deficit) of any such Person (other than a Subsidiary of the Borrower) in which a Group Member has an ownership interest, except to the extent that any such income is actually received by a Group Member in the form of dividends or similar distributions, and (c) the undistributed earnings of any Subsidiary of the Borrower to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary is not at the time permitted by the terms of any Contractual Obligation (other than under any Loan Document) or Requirement of Law applicable to such Subsidiary. βConsolidated Secured Debtβ: as of any date of determination, Consolidated Funded Indebtedness that is secured by a Lien on any asset of the Group Members. βConsolidated Secured Leverage Ratioβ: as of any date of determination, the ratio of (a) Consolidated Secured Debt (other than Permitted Risk Retention Facilities and Permitted Secured Financings) on such date to (b) Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis as of the applicable date of determination. βConsolidated Total Assetsβ: at any time of determination, the total assets of the Group Members, determined on a consolidated basis in accordance with GAAP, as shown on the most recent consolidating balance sheet delivered on or prior to the Closing Date or pursuant to Section 6.1(a) or (b). βConsolidated Total Leverage Ratioβ: as of any date of determination, the ratio of (a) Consolidated Funded Indebtedness (other than Permitted Risk Retention Facilities and Permitted Secured Financings) as of such date to (b) Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis as of the applicable date of determination. βContractual Obligationβ: as to any Person, any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound. βControlβ: the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. βControllingβ and βControlledβ have meanings correlative thereto. βControl Agreementβ: any Deposit Account Control Agreement or Securities Account Control Agreement. βCovered Entityβ: as defined in Section 10.22(b)(ii). βCovered Partyβ: as defined in Section 10.22(a). βCovered Risk Retention Financingβ: any Permitted Risk Retention Facility that is recourse (by guaranty or otherwise) to any Group Member (other than the primary obligor with respect thereto that owns the applicable Risk Retention Investments and no other material assets), which Risk Retention Investments consist, at least in part, of an eligible horizontal residual interest (as defined in Regulation RR under the Exchange Act (17 C.F.R. Β§246.1, et seq.)) in the underlying financing vehicles or investments. βDaily Simple SOFRβ: for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Administrative Agent (acting at the direction of the Required Lenders) in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining βDaily Simple SOFRβ for syndicated business loans; provided that if the Administrative Agent decides that any such convention is not administratively feasible for the
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16 #97570842v91 Administrative Agent, then the Administrative Agent (acting at the direction of the Required Lenders) may establish another convention in its reasonable discretion that is administratively feasible for the Administrative Agent. βDebenturesβ: (i) a first ranking floating charge dated as of the Closing Date executed and delivered by Xxxxxx Xxxxxx and any other Israeli Loan Party, in favor of the Administrative Agent (as amended, supplemented, or otherwise modified from time to time in accordance with the provisions thereof) substantially in the form of Exhibit K-1; and (ii) a first ranking fixed charge dated as of the Closing Date executed and delivered by Xxxxxx Xxxxxx and any other Israeli Loan Party, in favor of the Administrative Agent (as amended, supplemented, or otherwise modified from time to time in accordance with the provisions thereof) substantially in the form of Exhibit K-2. βDebtor Relief Lawsβ: the (i) Bankruptcy Code, (ii) Israeli Insolvency and Economic Rehabilitation Law, 2018, and (iii) in each case, all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States, Israel or other applicable jurisdictions from time to time in effect, including without limitation, the Israeli Companies Ordinance 5743-1983, the Israeli Companies Law 5759-1999 or any other bankruptcy or insolvency law. βDeclined Amountβ: as defined in Section 2.9(g). βDefaultβ: any of the events specified in Section 8.1, whether or not any requirement for the giving of notice, the lapse of time, or both, has been satisfied. βDefault Rateβ: as defined in Section 2.12(c). βDefault Rightβ: as defined in Section 10.22(b)(iii). βDefaulting Lenderβ: subject to Section 2.21(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Administrative Borrower in writing that such failure is the result of such Lenderβs reasonable determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, the Issuing Lender, the Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swingline Loans) within two (2) Business Days of the date when due, (b) has notified the Administrative Borrower, the Administrative Agent, the Issuing Lender or the Swingline Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Xxxxxxβs obligation to fund a Loan hereunder and states that such position is based on such Xxxxxxβs reasonable determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by the Administrative Agent or the Administrative Borrower, to confirm in writing to the Administrative Agent and the Administrative Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Administrative Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) become the subject of a Bail-In Action or (iii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with
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17 #97570842v91 reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.21(b)) upon delivery of written notice of such determination to the Administrative Borrower, the Issuing Lender, the Swingline Lender and each Lender. βDefeased Indebtednessβ: Indebtedness (a) that has been defeased or satisfied and discharged in accordance with the terms of an indenture or other agreement under which it was issued, (b) that has been called for redemption and for which funds sufficient to redeem such Indebtedness have been set aside by the Borrower or another Group Member, (c) for which amounts are set aside in trust or are held by a representative of the holders of such Indebtedness or any third party escrow agent pending satisfaction or waiver of the conditions for the release of such funds or (d) that has otherwise been defeased or satisfied and discharged to the satisfaction of the Administrative Agent (at the direction of the Required Lenders). βDeposit Accountβ: any βdeposit accountβ as defined in the UCC with such additions to such term as may hereafter be made. βDeposit Account Control Agreementβ: any control agreement, in form and substance reasonably satisfactory to the Administrative Agent (at the direction of the Required Lenders), entered into by the Administrative Agent, a Loan Party and a financial institution holding a Deposit Account of such Loan Party pursuant to which the Administrative Agent obtains or is otherwise granted βcontrolβ (for purposes of the UCC or any other applicable law) over such Deposit Account. βDesignated Jurisdictionβ: any country, region or territory to the extent that such country, region or territory itself is the subject of any Sanction; it being understood that, as of the Closing Date, the Crimea, Donetsk, and Luhansk regions of Ukraine, Cuba, Iran, North Korea and Syria are Designated Jurisdictions. βDesignated Non-Cash Considerationβ: non-cash consideration received by the Borrower or any other Group Member in connection with a Disposition pursuant to Section 7.5(p) that is designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent, which certificate shall set forth the fair market valuation of such non-cash consideration as of such date. The outstanding amount of Designated Non-Cash Consideration as of any date shall be reduced by the fair market value of the portion of any consideration previously designated as Designated Non-Cash Consideration that is converted to cash or Cash Equivalents. βDischarge of Obligationsβ: subject to Section 10.8, the satisfaction of the Obligations (other than Obligations relating to Cash Management Services and Obligations in respect of Specified Swap Agreements) by the payment in full, in cash of the principal of and interest on or other liabilities relating to each Loan and all fees and all other expenses or amounts payable under any Loan Document (other than inchoate indemnification obligations, expense reimbursement obligations and any other obligations which pursuant to the terms of any Loan Document specifically survive repayment of the Loans for which no claim has been made), (c) no Letter of Credit shall be outstanding (or, as applicable, each outstanding and
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18 #97570842v91 undrawn Letter of Credit has been Cash Collateralized in accordance with the terms hereof), and (d) the aggregate Commitments of the Lenders are terminated. βDispositionβ: with respect to any property (including, without limitation, Capital Stock of any Subsidiary of any Group Member), any sale, lease, license, Sale Leaseback Transaction, assignment, conveyance, transfer, encumbrance or other disposition thereof (in one transaction or in a series of transactions and whether effected pursuant to a Division or otherwise) and any issuance of Capital Stock of any of the Borrowerβs Subsidiaries. The terms βDisposeβ and βDisposed ofβ shall have correlative meanings. βDisqualified Stockβ: any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case at the option of the holder thereof), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder thereof, in whole or in part, on or prior to the date that is ninety-one (91) days after the date on which the Loans mature. The amount of Disqualified Stock deemed to be outstanding at any time for purposes of this Agreement will be the maximum amount that the Borrower and the other Group Members may become obligated to pay upon maturity of, or pursuant to any mandatory redemption provisions of, such Disqualified Stock or portion thereof, plus accrued dividends. βDivisionβ: in reference to any Person which is an entity, the division of such Person into two (2) or more separate Persons, with the dividing Person either continuing or terminating its existence as part of such division, including as contemplated under Section 18-217 of the Delaware Limited Liability Company Act, or any analogous action taken pursuant to any other applicable Requirements of Law. βDollar Equivalentβ is, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to the amount of any Letter of Credit denominated in a Foreign Currency (or any LC Disbursement in respect thereof), at any date of determination thereof, an amount in Dollars equivalent to such amount calculated by the Issuing Lender on the basis of the Spot Rate. In the event the Issuing Lender makes any determination of the Dollar Equivalent in respect of a Letter of Credit denominated in a Foreign Currency, the Issuing Lender shall give prompt written notice thereof (by e-mail or facsimile) to the Administrative Agent (it being agreed by each of the parties hereto that the Administrative Agent may conclusively rely on such written notice from the Issuing Lender as to the Dollar Equivalent of such Letter of Credit (or LC Disbursement in respect thereof) for all purposes of the Loan Documents (including, without limitation, for purposes of determining commitments fees payable under Section 2.6(b), Letter of Credit Fees under Section 3.3(a), the unused Revolving Commitments, the Revolving Extensions of Credit of the Revolving Lenders, the LC Exposure, and similar calculations)). Notwithstanding anything contained herein or in any other Loan Document to the contrary, the Dollar Equivalent at any time in respect of any Letter of Credit denominated in a Foreign Currency shall be the Dollar Equivalent of such Letter of Credit as most recently notified by the Issuing Lender to the Administrative Agent on or prior to such time. βDollarsβ and β$β: dollars in lawful currency of the United States. βDomestic Subsidiaryβ: any Subsidiary of the Borrower organized under the laws of any jurisdiction within the United States (excluding any territories or possessions thereof). βDP Amountsβ: any and all deferred payments, holdbacks or similar deferred consideration in connection with a Permitted Acquisition, calculated in accordance with GAAP as the estimated amount thereof on the closing date for the applicable Permitted Acquisition, which determination shall be made on
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19 #97570842v91 the date the definitive documentation for the applicable Permitted Acquisition is entered into. Notwithstanding anything herein to the contrary, Permitted Seller Debt that does not require any cash interest or principal payments while any Obligations remain outstanding shall not constitute DP Amounts or be included in the calculation of the DP Amounts. βEarn-Out Obligationsβ: all obligations of the Group Members consisting of earn-outs related to the enhanced performance of an entity acquired in connection with a Permitted Acquisition, calculated in accordance with GAAP as the estimated amount thereof on the closing date for the applicable Permitted Acquisition, which determination shall be made on the date the definitive documentation for the applicable Permitted Acquisition is entered into; provided that any such obligations are subordinated to the Obligations on terms and conditions reasonably acceptable to the Administrative Agent (acting at the direction of the Required Lenders). βECF Prepayment Amountβ: as defined in Section 2.9(d). βXXXXXβ: the SECβs Electronic Data Gathering, Analysis and Retrieval system or any successor thereto. βEEA Financial Institutionβ: (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a Subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent. βEEA Member Countryβ: any of the member states of the European Union, Iceland, Liechtenstein, and Norway. βEEA Resolution Authorityβ: any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution. βEffective Yieldβ: as to any Indebtedness, the effective yield applicable thereto calculated by the Required Lenders in consultation with the Borrower in a manner consistent with generally accepted financial practices, taking into account interest rate, margin, original issue discount, upfront fees, any interest rate floors (the effect of which floors shall be determined in a manner set forth in the further proviso below) or otherwise, in each case, incurred or payable generally to all the lenders of such indebtedness; provided that original issue discount and upfront fees shall be equated to interest rate assuming a 4-year life to maturity (or, if less, the stated life to maturity at the time of its incurrence of the applicable Indebtedness); and provided further that with respect to any Indebtedness that includes a βSOFR floorβ or βABR floor,β (i) to the extent that Adjusted Term SOFR or ABR (without giving effect to any floors in such definitions), as applicable, on the date that the Effective Yield is being calculated is less than such floor, the amount of such difference shall be deemed added to the interest rate margin for such Indebtedness for the purpose of calculating the Effective Yield and (ii) to the extent that Adjusted Term SOFR or ABR (without giving effect to any floors in such definitions), as applicable, on the date that the Effective Yield is being calculated is greater than such floor, then the floor shall be disregarded in calculating the Effective Yield. βEligible Assigneeβ: (a) any Person (other than an Excluded Lender) that meets the requirements to be an assignee under Section 10.6(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required under Section 10.6(b)(iii)) and (b) any Affiliated Lender to the extent permitted by Section 10.6(h).
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20 #97570842v91 βEnvironmental Lawsβ: any and all foreign, Federal, state, local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, requirements of any Governmental Authority or other Requirements of Law (including common law) regulating, relating to or imposing liability or standards of conduct concerning protection of human health or the environment, as now or may at any time hereafter be in effect. βEnvironmental Liabilityβ: any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower, any other Loan Party or any other Group Member directly or indirectly resulting from or based upon (a) a violation of an Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Materials of Environmental Concern, (c) exposure to any Materials of Environmental Concern, (d) the release or threatened release of any Materials of Environmental Concern into the environment, or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing. βERISAβ: the Employee Retirement Income Security Act of 1974, as amended, including (unless the context otherwise requires) any rules or regulations promulgated thereunder. βERISA Affiliateβ: each business or entity which is, or within the last six years was: a member of a βcontrolled group of corporations,β under βcommon controlβ or an βaffiliated service groupβ with any Loan Party within the meaning of Section 414(b), (c), (m) or (n) of the Code, required to be aggregated with any Loan Party under Section 414(o) of the Code, or is, or within the last six years was, under βcommon controlβ with any Loan Party, within the meaning of Section 4001(a)(14) of ERISA. βERISA Eventβ: (a) a βreportable eventβ within the meaning of Section 4043 of ERISA and the regulations issued thereunder with respect to any Pension Plan (excluding those for which the 30-day notice period has been waived); (b) the failure to meet the minimum funding standard of Section 412 of the Code with respect to any Pension Plan, or the filing of any request for or receipt of a minimum funding waiver under Section 412 of the Code with respect to any Pension Plan; (c) engaging in a non-exempt prohibited transaction within the meaning of Section 4975 of the Code or Section 406 of ERISA with respect to a Pension Plan (but only with respect to the Borrower or any other Group Member); (d) the provision by the administrator of any Pension Plan pursuant to Section 4041(a)(2) or Section 302 of ERISA of a notice of intent to terminate such plan in a distress termination described in Section 4041(c) of ERISA; (e) the withdrawal by the Borrower, any other Group Member or any of their respective ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the termination of any such Pension Plan resulting in liability to the Borrower, any other Group Member or any of their respective ERISA Affiliates pursuant to Section 4063 or 4064 of ERISA; (f) the institution by the PBGC of proceedings to terminate any Pension Plan; (g) the imposition of liability on the Borrower, any other Group Member or any of their respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (h) a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) of the Borrower, any other Group Member or any of their respective ERISA Affiliates from any Multiemployer Plan if there is any potential liability therefor under Title IV of ERISA, or the receipt by the Borrower, any other Group Member or any of their respective ERISA Affiliates of notice from any Multiemployer Plan that it is insolvent pursuant to Section 4245 of ERISA, or that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA; or (i) the incurrence of liability or the imposition of a Lien pursuant to Section 436 or 430(k) of the Code or pursuant to ERISA with respect to any Pension Plan. βERISA Funding Rulesβ: the rules regarding minimum required contributions (including any installment payment thereof) to Pension Plans, as set forth in Section 412 of the Code and Section 302 of
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21 #97570842v91 ERISA, with respect to Plan years ending prior to the effective date of the Pension Protection Act of 2006, and thereafter, as set forth in Sections 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA. βErroneous Paymentβ: as defined in Section 9.14(a). βErroneous Payment Subrogation Rightsβ: as defined in Section 9.14(d). βEU Bail-In Legislation Scheduleβ: the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time. βEvent of Defaultβ: any of the events specified in Section 8.1; provided that any requirement for the giving of notice, the lapse of time, or both, has been satisfied. βExcess Cash Flowβ: for each full fiscal year of Pagaya Parent (starting with the fiscal year ending on December 31, 2024), an amount (if positive) equal to: (a) the sum (without duplication) of: (i) Consolidated Adjusted EBITDA for such fiscal year; plus (ii) the aggregate amount of any extraordinary, unusual or non-recurring cash gains for such fiscal year; minus (b) the sum (without duplication) of: (i) the aggregate amount of Restricted Payments pursuant to Section 7.6 (in each case, to the extent made to a Person other than the Borrower or another Group Member, and not made in reliance on clause (a) of the definition of βAvailable Amountβ) made in cash by the Borrower during such fiscal year except, in each case, to the extent financed with long-term Indebtedness (other than revolving Indebtedness); plus (ii) any required up-front cash payments by the Borrower or any other Group Member in respect of interest rate Swap Agreements during such fiscal year to the extent not financed with the proceeds of long-term Indebtedness (other than revolving Indebtedness) and not deducted in arriving at such Consolidated Adjusted EBITDA for such fiscal year; plus (iii) the aggregate amount of all principal payments and purchases of Indebtedness of the Borrower and the other Group Members made during such fiscal year and the aggregate amount of any premiums, make-whole or penalty payments actually paid in cash or Cash Equivalents by the Borrower and/or any other Group Member that are or were required to be made in connection with any prepayment or repurchase of Indebtedness (including (A) scheduled principal payments with respect to the Loans pursuant to Section 2.1(b) and (B) the principal component of payments in respect of Finance Leases, but excluding (1) (x) all other repayments or prepayments of Loans and (y) all non-scheduled repayments or prepayments of Indebtedness deducted under Section 2.9(c), (2) all repayments of any revolving credit facility arrangements (except to the extent there is an equivalent permanent reduction in
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22 #97570842v91 commitments thereunder that is not being made in connection with a refinancing or replacement thereof)) and (3) in each case, any such payments and purchases to the extent financed with the proceeds of long-term Indebtedness (other than revolving Indebtedness); plus (iv) the aggregate consolidated interest expense actually paid in cash by the Borrower or any other Group Member during such fiscal year; plus (v) income taxes and foreign withholding taxes actually paid in cash by the Borrower and the other Group Members during such fiscal year or reserves in respect of taxes set aside during such period or that will be paid within six months after the end of such period; provided that, any amount so deducted that will be paid after the end of such period shall not be deducted again in a subsequent period; plus (vi) the aggregate amount of any extraordinary, unusual or non-recurring cash losses during such fiscal year; plus (vii) subject to clause (ix) below, the aggregate amount of Capital Expenditures for such fiscal year to the extent paid in cash by the Borrower or any other Group Member and not financed from the proceeds of long-term Indebtedness (other than revolving Indebtedness); plus (viii) the aggregate consideration actually paid in cash by the Borrower or any other Group Member during such fiscal year with respect to Investments permitted under Section 7.7 (other than Investments (x) in cash or Cash Equivalents but, including for the avoidance of doubt, Investments in Financing Asset or (y) made in reliance on clause (a) of the definition of βAvailable Amountβ)) except to the extent financed with long-term Indebtedness (other than revolving Indebtedness); plus (ix) without duplication of amounts deducted from Excess Cash Flow in respect of a prior period, at the option of the Borrower, the aggregate consideration expected or budgeted to be paid in cash during the immediately succeeding period of four consecutive fiscal quarters by the Borrower or any other Group Member (the βPlanned Considerationβ) relating to Capital Expenditures or Investments permitted under Section 7.7 (other than Investments in cash or Cash Equivalents but including, for the avoidance of doubt, Investments in Financing Assets) to be made during the period of four consecutive fiscal quarters of the Borrower following the end of such fiscal year (except, in each case, to the extent financed with long-term Indebtedness (other than revolving Indebtedness)); provided that, to the extent the aggregate amount actually utilized in cash to finance such Capital Expenditures or such Investments during such subsequent period of four consecutive fiscal quarters is less than the Planned Consideration, the amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end of such subsequent period of four consecutive fiscal quarters; plus (x) the aggregate amount of any other items added in the calculation of Consolidated Adjusted EBITDA or Consolidated Net Income, in each case, to the extent paid in cash.
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23 #97570842v91 βExcess SPV Cashβ: as at any date, any amount, if any, in excess of the sum of the amount required to be maintained as βminimum liquidityβ or βminimum cash balanceβ or similar concept in any such SPV Subsidiaryβs accounts pursuant to the definitive documentation of such SPV Subsidiaryβs Permitted Secured Financings. βExchange Actβ: the Securities Exchange Act of 1934, as amended from time to time and any successor statute. βExcluded Accountsβ: (i) Deposit Accounts or Security Accounts of any Group Member having average daily balances (calculated on a trailing monthly basis) that do not exceed $1,000,000 individually or $5,000,000 in the aggregate, (ii) Deposit Accounts or Security Accounts of any Group Member that are used primarily for the purpose of (a) payroll, accrued payroll or employee benefits, (b) tax, customs and other similar deposits, or (c) benefits or other trust accounts, (iii) zero balance accounts, (iv) Deposit Accounts and Security Accounts specially and exclusively used to cash-collateralize (A) Letters of Credit to the extent permitted pursuant to this Agreement and (B) obligations permitted to be secured under 7.3(a), (g), (l), (w), (ee) and (jj) and (v) solely for purposes of satisfying any requirement in a Loan Document to deliver a Control Agreement, any Deposit Accounts or Security Accounts held at an Israeli bank where the applicable account bank has not provided a consent for the pledge of such accounts in favor of the Secured Parties so long as the applicable Loan Party has used commercially reasonable efforts to obtain such consent. βExcluded Assetsβ: as defined in the Guarantee and Collateral Agreement. βExcluded Foreign Subsidiaryβ: any Foreign Subsidiary (X)(a) that is a CFC, or (b) that is a Subsidiary of a CFC described in clause (X)(a) hereof or (Y) in respect of which either (a) the pledge of (i) all of the Capital Stock of such Subsidiary as Collateral or (ii) any Capital Stock of any Subsidiary of such Subsidiary as Collateral, or (b) the guaranteeing by such Subsidiary of the Obligations, would, in the good faith judgment of Borrower, reasonably be expected to result in material adverse tax consequences to Borrower or any of its Subsidiaries. βExcluded Lenderβ: (a) any operating company engaged in substantially similar business operations as the Loan Parties or their Subsidiaries in each case, that has been specifically identified by name in writing from time to time by the Administrative Borrower to the Administrative Agent (for distribution to the Lenders) (each a βCompetitorβ), (b) those Persons that have been specified in writing by name to the Administrative Agent and the Lenders by the Administrative Borrower prior to the Closing Date (each a βDisqualified Lenderβ) and (c) any Affiliate of any Competitor or Disqualified Lender, in each case, that has been specifically identified by name in writing by the Administrative Borrower to the Administrative Agent (for distribution to the Lenders) (which notice may be through the Platform) from time to time; provided that, no such submission of additional Excluded Lenders pursuant to clause (a) or (c) of this definition shall be effective until three (3) Business Days after receipt by the Administrative Agent (and distribution by the Administrative Agent to the Lenders) of such names; provided, further, that the inclusion of such Persons as Excluded Lenders shall not retroactively apply to prior assignments or participations in respect of any Loan under this Agreement, but such Excluded Lender shall be prohibited from obtaining additional assignments or participations with respect to the Loans and other extensions of credit under this Agreement. βExcluded Subsidiaryβ: any Subsidiary that is (a) a CFC Holding Company or any other Subsidiary, if becoming a Guarantor hereunder would, or would reasonably be expected to, result in material adverse tax consequences to any Loan Party or any of its Subsidiaries as determined by the Administrative Borrower in good faith, (b) an Excluded Foreign Subsidiary, (c) an SPV Subsidiary and any
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24 #97570842v91 other special purpose entity solely used for any permitted securitization or receivables facility or financing (including any Permitted Risk Retention Facility or Permitted Secured Financing), (d) not a wholly-owned Subsidiary of the Borrower (other than as a result of the issuance or sale of shares of any such Subsidiaryβs Capital Stock to qualify directors if required by applicable law), (e) an Immaterial Subsidiary (unless the Borrower has elected to have such Immaterial Subsidiary become a Guarantor), (f) acquired pursuant to a Permitted Acquisition or other Investment permitted by this Agreement that has assumed Indebtedness not incurred in contemplation of such Permitted Acquisition or other Investment and any Subsidiary thereof that guarantees such Indebtedness, in each case to the extent the terms of such Indebtedness prohibit such subsidiary from becoming a Guarantor and such terms were not created in contemplation of such acquisition or investment, (g) prohibited or restricted by law, rule or regulation or contractual obligation (in the case of contractual obligations, solely to the extent such contractual obligations exist on the Closing Date or the date such applicable Subsidiary is acquired) from providing a guarantee or that would require a governmental (including regulatory) or third party consent, approval, license or authorization to provide a guarantee (including under any financial assistance, corporate benefit, thin capitalization, capital maintenance, liquidity maintenance or similar legal principles) unless such consent has been received, it being understood that the Borrower and its subsidiaries shall have no obligation to seek or obtain any such consent, approval, license or authorization, (h) any captive insurance subsidiary or subsidiary that is a broker-dealer and (i) any other Subsidiary with respect to which, in the good faith judgment of the Administrative Agent (at the direction of the Required Lenders) and the Administrative Borrower, the burden or cost of providing a guarantee outweighs, or is excessive in light of, the benefits afforded thereby; provided that no Excluded Subsidiary shall (1) own any Capital Stock of any Loan Party or any other Person that owns or otherwise holds or controls (including through an exclusive license of) any Material Intellectual Property, or (2) own or otherwise hold or control (including through an exclusive license of) any Material Intellectual Property, except for non-exclusive licenses in the ordinary course of business; provided further that no Guarantor as of the Closing Date is an Excluded Subsidiary. βExcluded Swap Obligationsβ: with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee Obligation of such Guarantor with respect to, or the grant by such Guarantor of a Lien to secure, such Swap Obligation (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantorβs failure for any reason to constitute an βeligible contract participantβ as defined in the Commodity Exchange Act at the time such Guarantee Obligation of such Guarantor, or the grant by such Guarantor of such Lien, becomes effective with respect to such Swap Obligation. If such a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee Obligation or Lien is or becomes excluded in accordance with the first sentence of this definition. βExcluded Taxesβ: any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on (i) the later of (A) the date on which such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 2.20) or (B) the Closing Date, or (ii) the date on which such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.17, amounts with respect to such Taxes were payable either to such Xxxxxx's assignor immediately before such Lender
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25 #97570842v91 became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipientβs failure to comply with Section 2.17(f), (d) any U.S. federal withholding Taxes imposed under FATCA and (e) solely with respect to Revolving Loans, any withholding Taxes imposed with respect to payments made by Borrower, remitted by the Borrower or any Loan Party to the Israeli Tax Authorities in accordance with the provisions hereto, in accordance with the Israeli Income Tax Ordinance and the rules and regulations promulgated thereunder, and the Convention between the Government of the State of Israel and the Government of the United States of America with respect to taxes on income (such withholding Taxes, the βSpecified Israeli Taxesβ); provided that no amount of such Specified Israeli Taxes shall be Excluded Taxes if such Lender (A) has received an exemption from or reduction of such withholding rate from the Israeli Tax Authority (an βIsraeli Tax Certificateβ) and delivered a copy of such Israeli Tax Certificate to the Borrower, (B) is using commercially reasonable efforts to obtain an Israeli Tax Certificate or (C) used commercially reasonable efforts to obtain an Israeli Tax Certificate and was denied or otherwise failed to qualify for an Israeli Tax Certificate. βExisting SVB Credit Facilityβ: the credit facility governed by that certain Senior Secured Revolving Credit Agreement, dated as of September 2, 2022, among Pagaya Technologies Ltd., and Pagaya US Holding Company LLC, as the borrowers, the several lenders from time to time party thereto, Silicon Valley Bank, a division of First-Citizens Bank & Trust Company, as administrative agent, issuing lender and swingline lender, as the same may be amended, restated, amended and restated or otherwise modified from time to time prior to the Closing Date. βExtended Revolving Commitmentβ: as defined in Section 2.25(a). βExtended Term Loansβ: as defined in Section 2.25(a). βExtending Lenderβ: as defined in Section 2.25(a). βExtensionβ: as defined in Section 2.25(a). βExtension Offerβ: as defined in Section 2.25(a). βFacilityβ: each of (a) the Term Loan Facility, (b) the L/C Facility (which is a sub-facility of the Revolving Facility), (c) the Swingline Facility (which is a sub-facility of the Revolving Facility) and (d) the Revolving Facility. βFATCAβ: Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code. βFederal Funds Effective Rateβ: for any day, the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System, as published on the next succeeding Business Day by the Federal Reserve Bank of New York; provided that (a) if such day is not a Business Day, the Federal Funds Effective Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Effective Rate for such day shall be the average of the quotations (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) for such day for such transactions received by the Administrative Agent from three (3) commercial banks of
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26 #97570842v91 recognized standing selected by it; provided, further, that if the Federal Funds Effective Rate as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement. βFee Lettersβ: the Agent Fee Letter and the Lender Fee Letters. βFinancing Assetsβ: assets that are (a) Risk Retention Investments, (b) investments in consumer loans (including consumer auto loans and consumer real estate loans), consumer credit card receivables and securities in the ordinary course of business, (c) fee receivables (including related party receivables and consumer credit card receivables, solely to the extent and without duplication that they are not deemed to be investments pursuant to clause (b)) accrued in the ordinary course of business, and in each case the proceeds thereof and (d) other financial assets (as defined in the UCC) or any other related assets, rights or property or the proceeds therefrom. βFinance Lease Obligationsβ: subject to the final paragraph of the definition of βGAAPβ, with respect to any Person, at the time any determination thereof is to be made, the obligations of such Person to pay rent or other amounts under any lease of (or other similar arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as finance leases on a balance sheet of such Person under GAAP (excluding the footnotes thereto) and, for purposes hereof, the amount of such obligations at any time will be the capitalized amount thereof at such time determined in accordance with GAAP. βFinance Leasesβ: subject to the final paragraph of the definition of βGAAPβ, all leases that have been or are required to be, in accordance with GAAP as in effect on the Closing Date, recorded as finance leases. βFixed Charge Coverage Ratioβ: for any Test Period, the ratio of (a) the total for such period of Consolidated Adjusted EBITDA minus the sum, without duplication, of (i) all income taxes paid or payable in cash by the Group Members (including for this purpose any permitted tax distributions), plus (ii) all unfinanced Capital Expenditures and Capitalized Software Expenditures (defined as Capital Expenditures and Capitalized Software Expenditures for the Test Period, exclusive of the portion of Capital Expenditures and Capitalized Software Expenditures financed during the Computation Period under permitted Finance Leases or other permitted Indebtedness (Indebtedness, for this purpose, does not include drawings under the Revolving Commitment)) of the Group Members, plus (iii) all amounts added back pursuant to clause (xviii) of the definition of βConsolidated Adjusted EBITDAβ or similar adjustments pursuant to the second proviso to Section 1.7(b) to (b) the sum for such period of (i) Consolidated Interest Expense paid or payable in cash by the Group Members (excluding in all instances any interest paid in kind), net of interest income received in cash by the Group Members, plus (ii) scheduled payments of principal with respect to all Indebtedness (including the portion of scheduled payments under Finance Leases allocable to principal but excluding repayments of Revolving Loans and other Indebtedness subject to reborrowing to the extent not accompanied by a concurrent and permanent reduction of the Revolving Commitment (or equivalent loan commitment) plus (iii) scheduled Restricted Payments paid or payable in cash by the Group Members; provided, however, that in the case of any Permitted Acquisition, the deductions from Consolidated Adjusted EBITDA described in clause (a) above and the items described in clause (b) above shall, in each case, be excluded from this calculation to the extent they pertain to the target of such Permitted Acquisition prior to the date such Permitted Acquisition was consummated unless such calculations are being made on a Pro Forma Basis as otherwise permitted or required under this Agreement. βFlood Insurance Lawsβ: collectively, (i) the National Flood Insurance Reform Act of 1994 (which comprehensively revised the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973) as now or hereafter in effect or any successor statute thereto, (ii) the Flood Insurance
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27 #97570842v91 Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (iii) the Xxxxxxx- Xxxxxx Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto and in each case, together with all statutory and regulatory provisions consolidating, amending, replacing, supplementing, implementing or interpreting any of the foregoing, as amended or modified from time to time. βFloorβ: a rate of interest equal to 1.00% per annum. βForeign Currencyβ: New Israeli Shekel. βForeign L/C Sublimitβ: as defined in the definition of βTotal L/C Commitmentsβ. βForeign Lenderβ: (a) if the Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if the Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes. βForeign Obligorβ: is any Loan Party that is organized in a jurisdiction other than the United States (excluding any territories or possessions thereof). βForeign Subsidiaryβ: any Subsidiary of the Borrower that is not a Domestic Subsidiary. βFounderβ: any of Xxx Xxxxxxxx, Xxxxx Xxxxxxx and Xxxxxx Xxxxx. βFronting Exposureβ: at any time there is a Defaulting Lender, as applicable, (a) with respect to the Issuing Lender, such Defaulting Lenderβs L/C Percentage of the outstanding L/C Exposure other than L/C Exposure as to which such Defaulting Lenderβs participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swingline Lender, such Defaulting Lenderβs Revolving Percentage of outstanding Swingline Loans made by the Swingline Lender other than Swingline Loans as to which such Defaulting Lenderβs participation obligation has been reallocated to other Lenders. βFundβ: any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit in the ordinary course of its activities. βFunding Accountβ: the Revolving Loan Funding Account or the Term Loan Funding Account, as the context requires. βGAAPβ: subject to Section 1.2(b), generally accepted accounting principles in the United States as in effect from time to time, except that for purposes of Section 7.1, GAAP shall be determined on the basis of such principles in effect on the date hereof and consistent with those used in the preparation of the most recent audited financial statements referred to in Section 4.1. In the event that any βAccounting Changeβ (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, then the Borrower and the Required Lenders agree to enter into negotiations to amend such provisions of this Agreement so as to reflect equitably such Accounting Changes with the desired result that the criteria for evaluating the Borrowerβs financial condition shall be the same after such Accounting Changes as if such Accounting Changes had not been made. Until such time as such an amendment shall have been executed and delivered by the Borrower, the Administrative Agent and the Required Lenders, all financial covenants, standards and terms in this Agreement shall continue to be calculated or construed as if such Accounting Changes had not occurred.
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28 #97570842v91 βAccounting Changesβ refers to changes in accounting principles required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants or, if applicable, the SEC, or the adoption of IFRS. βGeneral Dispositions Basketβ: as defined in Section 7.5(p). βGlobal Intercompany Noteβ: a promissory note, reasonably satisfactory to the Administrative Agent (at the direction of the Required Lenders), evidencing all Indebtedness of the Group Members owed to other Group Members from time to time. βGovernmental Approvalβ: any consent, authorization, approval, order, license, franchise, permit, certificate, accreditation, registration, filing or notice, of, issued by, from or to, or other act by or in respect of, any Governmental Authority. βGovernmental Authorityβ: the government of the United States, the State of Israel, or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank (including for the avoidance of doubt the Bank of Israel) or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank), and any group or body charged with setting accounting or regulatory capital rules or standards (including the Financial Accounting Standards Board, the Bank for International Settlements, the Basel Committee on Banking Supervision and any successor or similar authority to any of the foregoing). βGroup Membersβ: the collective reference to the Borrower and its Subsidiaries; provided that any Person that is (i) not consolidated with the Borrower in accordance with GAAP or (ii) an SPV Subsidiary (unless such SPV Subsidiary is consolidated with the Borrower in accordance with GAAP), in either case, shall not be a Group Member. βGuarantee and Collateral Agreementβ: the Guarantee and Collateral Agreement to be executed and delivered by the Loan Parties, substantially in the form of Exhibit A. βGuarantee Obligationβ: as to any Person (the βguaranteeing personβ), any obligation, including a reimbursement, counterindemnity or similar obligation, of the guaranteeing person that guarantees or in effect guarantees, or which is given to induce the creation of a separate obligation by another Person (including any bank under any letter of credit) that guarantees or in effect guarantees, any Indebtedness (the βprimary obligationsβ) of any other third Person (the βprimary obligorβ) in any manner, whether directly or indirectly, including any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any such primary obligation or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided that the term Guarantee Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee Obligation is made and (b) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation, unless such primary obligation and the maximum
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29 #97570842v91 amount for which such guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee Obligation shall be such guaranteeing personβs maximum reasonably anticipated liability in respect thereof as determined by the Borrower in good faith. βGuarantorsβ: a collective reference to each entity that has become a Guarantor under the Guarantee and Collateral Agreement and each other wholly-owned (other than as a result of the issuance or sale of shares of any such Subsidiaryβs Capital Stock to qualify directors if required by applicable law) Subsidiary of the Borrower which has become a Guarantor pursuant to the requirements of Section 6.12 hereof and the Guarantee and Collateral Agreement, unless and until such entity becomes an Excluded Subsidiary or ceases to be a party to the Loan Documents in a transaction permitted hereby. Notwithstanding the foregoing or any contrary provision herein or in any other Loan Document, (i) no Excluded Subsidiary shall be required to be a Guarantor, and no Subsidiary shall be required to become a Guarantor if, in the reasonable judgment of the Administrative Agent (at the direction of the Required Lenders) and the Administrative Borrower, the burden or cost of providing a guarantee shall be excessive in view of the benefits to be obtained by the Secured Parties therefrom and (ii) the Borrower may from time to time, upon notice to the Administrative Agent, elect (x) to cause any subsidiary that would otherwise be an Excluded Subsidiary to become a Guarantor hereunder (but shall have no obligation to do so), subject to the satisfaction of guarantee and collateral requirements consistent with Section 6.12 or otherwise reasonably acceptable to the Borrower and the Administrative Agent (acting at the direction of the Required Lenders) or (y) to cause any Subsidiary that would otherwise become an Excluded Subsidiary and be automatically released from its Guarantee Obligations under the Loan Documents to remain a Guarantor thereunder. βGuaranty Accountβ: as defined in Section 7.21(b). βIFRSβ: international accounting standards within the meaning of IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements delivered under or referred to herein. βIIAβ: the Israel Innovation Authority of the Israeli Ministry of the Economy. βIllegality Noticeβ: as defined in Section 2.16(a). βImmaterial Subsidiaryβ: at any date of determination, any Subsidiary of any Loan Party (other than a Borrower or a Guarantor) designated as such by the Administrative Borrower in writing to the Administrative Agent and which as of such date (a) holds assets representing 5% or less of the Borrowerβs consolidated total assets as of such date (determined in accordance with GAAP), (b) has generated less than 5% of the Borrowerβs consolidated total revenues determined in accordance with GAAP for the four fiscal quarter period ending on the last day of the most recent period for which financial statements have been delivered after the Closing Date pursuant to Section 6.1(b); provided that all Subsidiaries that are individually βImmaterial Subsidiariesβ shall not have aggregate consolidated total assets that would represent 10% or more of the Borrowerβs consolidated total assets as of such date or have generated 10% or more of the Borrowerβs consolidated total revenues for such four fiscal quarter period, in each case determined in accordance with GAAP, (c) owns no Capital Stock of any Subsidiary that is not an Immaterial Subsidiary, (d) owns or otherwise holds or controls (including through an exclusive license) no Material Intellectual Property; provided that if the Borrower elects to have an Immaterial Subsidiary become a Guarantor, such Subsidiary may own such Capital Stock or Material Intellectual Property, and will no longer be considered an βImmaterial Subsidiaryβ for any purposes under the Loan Documents, so long as such Subsidiary remains a Guarantor and (e) does not Guarantee, or otherwise provide any credit support for, any Indebtedness of the Loan Parties. As of the Closing Date, the Immaterial Subsidiaries are listed on Schedule 4.15.
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30 #97570842v91 βIncrease Effective Dateβ: as defined in Section 2.23(c). βIncremental Facilityβ: as defined in Section 2.23(a). βIncremental Ratio Amountβ: as defined in the definition of βMaximum Incremental Facilities Amountβ. βIncremental Revolving Increaseβ: as defined in Section 2.23(a). βIncremental Term Loanβ: as defined in Section 2.23(a). βIndebtednessβ: of any Person at any date, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase price of property or services (other than (i) current trade payables incurred in the ordinary course of such Personβs business, (ii) DP Amounts, Earn-Out Obligations, purchase price adjustments and indemnity obligations, in the case of this clause (ii), unless and until the amount of the asserted payment is reasonably determined and becomes a liability on the balance sheet of the person in accordance with GAAP (other than references thereto in the footnotes), (iii) trade accounts payable and accrued obligations incurred in the ordinary course of business which are not overdue by more than forty-five (45) days, (iv) the financing of insurance premiums and (v) any such obligations payable solely through the issuance of Capital Stock (which is not Disqualified Stock)), (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (e) all Finance Lease Obligations of such Person, (f) all obligations of such Person, contingent or otherwise, as an account party or applicant under or in respect of bankersβ guarantees or acceptances, letters of credit, surety bonds or similar arrangements (provided that obligations in respect of bankersβ guarantees or acceptances, letters of credit, surety bonds or similar arrangements issued in support of obligations not otherwise constituting Indebtedness shall not constitute Indebtedness except to the extent such bankersβ guarantees or acceptances, letters of credit, surety bonds or similar arrangements are drawn and not reimbursed within three (3) Business Days of such drawing), (g) all obligations of such Person in respect of Disqualified Stock, (h) all Guarantee Obligations of such Person in respect of obligations of the kind referred to in clauses (a) through (g) above, (i) all obligations of the kind referred to in clauses (a) through (h) above secured by (or for which the holder of such obligation has an existing right, contingent or otherwise, to be secured by) any Lien on property (including accounts and contract rights) owned by such Person, whether or not such Person has assumed or become liable for the payment of such obligation (with the amount of such Indebtedness outstanding being deemed to be the lesser of (1) the principal amount of such obligations outstanding and (2) the value of the assets of such Person securing such Indebtedness), and (j) the net obligations of such Person in respect of Swap Agreements. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Personβs ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness expressly provide that such Person is not liable therefor. The amount of any net obligation under any Swap Agreement on any date shall be deemed to be zero unless and until such Indebtedness in respect of such Swap Obligation shall be terminated, in which case, the amount of such Indebtedness shall be the Swap Termination Value thereof as of such date. βIndemnified Taxesβ: (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
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31 #97570842v91 βIndemniteeβ: as defined in Section 10.5(b). βInformationβ: as defined in Section 10.17. βInsolvency Proceedingβ: (a) any case, action or proceeding (including an Israeli Insolvency Proceeding) before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, or (b) any general assignment for the benefit of creditors, composition, marshalling of assets for creditors, or other, similar arrangement in respect of any Personβs creditors generally or any substantial portion of such Personβs creditors, in each case undertaken under Israeli, U.S. Federal, state or foreign law, including any Debtor Relief Law. βIntellectual Propertyβ: the collective reference to all rights, priorities and privileges in, to or under intellectual property, whether arising under United States, multinational or foreign laws or otherwise, including copyrights, copyright licenses, patents, patent licenses, trademarks, trademark licenses and proprietary technology, know-how and processes, and all rights to sue at law or in equity for any infringement or other impairment thereof, including the right to receive all proceeds and damages therefrom. βIntellectual Property Security Agreementβ: an intellectual property security agreement entered into between a Loan Party and the Administrative Agent pursuant to the terms of the Guarantee and Collateral Agreement in form and substance reasonably satisfactory to the Administrative Agent (at the direction of the Required Lenders), together with each other intellectual property security agreement and supplement thereto delivered pursuant to Section 6.12, in each case as amended, restated, supplemented or otherwise modified from time to time. βInterest Payment Dateβ: (a) as to any ABR Loan (including any Swingline Loan), the last Business Day of each calendar quarter to occur while such Loan is outstanding and the final maturity date of such Loan, (b) as to any SOFR Loan, (i) having an Interest Period of three (3) months or less, the last Business Day of such Interest Period and the final maturity date of such Loan and (ii) having an Interest Period longer than three (3) months, each Business Day that is three (3) months after the first (1st) day of such Interest Period, the last Business Day of such Interest Period and the final maturity date of such Loan, and (c) as to any Loan, the date of any repayment or prepayment made in respect thereof. βInterest Periodβ: as to any SOFR Loan, (a) initially, the period commencing on the borrowing or conversion date, as the case may be, with respect to such SOFR Loan and ending on the numerically corresponding day in the month that is one (1) or three (3) months thereafter, as selected by the Borrower by irrevocable notice to the Administrative Agent in its Notice of Borrowing or Notice of Conversion/Continuation, as the case may be, given with respect thereto; and (b) thereafter, each period commencing on the last day of the next preceding Interest Period applicable to such SOFR Loan and ending on the numerically corresponding day in the month that is one (1) or three (3) months thereafter, as selected by the Borrower in a Notice of Conversion/Continuation delivered to the Administrative Agent not later than 10:00 A.M. on the date that is three (3) U.S. Government Securities Business Days prior to the last day of the then current Interest Period with respect thereto; provided that all of the foregoing provisions relating to Interest Periods are subject to the following: (i) if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless the result of such extension would be to carry such Interest Period into another calendar month in which event such Interest Period shall end on the immediately preceding Business Day;
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32 #97570842v91 (ii) the Borrower may not select an Interest Period under a particular Facility that would extend beyond the Revolving Termination Date (in the case of Revolving Facility) or beyond the Term Loan Maturity Date (in the case of Term Loans); (iii) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month at the end of such Interest Period) shall end on the last Business Day of a calendar month; and (iv) no tenor that has been removed from this definition pursuant to Section 2.14(b) shall be available for specification in any Notice of Borrowing or Notice of Conversion/Continuation. βInterest Rate Agreementβ: any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedging agreement or other similar agreement or arrangement, each of which is (a) for the purpose of hedging the interest rate exposure associated with Borrowerβs and its Subsidiariesβ operations, and (b) not for speculative purposes. βInventoryβ: all βinventory,β as such term is defined in the UCC, now owned or hereafter acquired by any Group Member, wherever located, and in any event including inventory, merchandise, goods and other personal property that are held by or on behalf of any Group Member for sale or lease or are furnished or are to be furnished under a contract of service, or that constitutes raw materials, work in process, finished goods, returned goods, or materials or supplies of any kind used or consumed or to be used or consumed in such Group Memberβs business or in the processing, production, packaging, promotion, delivery or shipping of the same, including all supplies and embedded software. βInvestmentsβ: as defined in Section 7.7. βIRSβ: the United States Internal Revenue Service, or any successor thereto. βISPβ: with respect to any Letter of Credit, the βInternational Standby Practices 1998β published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance). βIsraeli Insolvency Proceedingβ means any proceeding by or against any Person under the Israeli Companies Ordinance 5743-1983, the Israeli Companies Law 5759-1999, the Israeli Insolvency and Economic Rehabilitation Law 5788-2018, or any other bankruptcy or insolvency law, including assignments for the benefit of creditors, compositions, extensions generally with its creditors, or proceedings seeking reorganization, arrangement, receivership or other relief. βIsraeli Lenderβ: any Lender organized under the laws of the State of Israel that is a banking corporations as defined under Israeli Banking Law (Licensing) 5741-1981. βIsraeli Loan Partyβ: Pagaya Parent and each other Guarantor organized under the laws of the State of Israel from time to time party to the Loan Documents. βIsraeli Tax Certificateβ: as defined in the definition of βExcluded Taxesβ. βIssuing Lenderβ: as the context may require, (a) VNB or any Affiliate thereof, in its capacity as issuer of any Letter of Credit (including, without limitation, each Existing Letter of Credit), and (b) any other Lender or an Affiliate thereof that may become an Issuing Lender pursuant to Section 3.11 or 3.12,
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33 #97570842v91 with respect to Letters of Credit issued by such Lender or its Affiliate. The Issuing Lender may, in its discretion and with written notice to the Administrative Agent, arrange for one or more Letters of Credit to be issued by Affiliates of the Issuing Lender or other financial institutions, in which case the term βIssuing Lenderβ shall include any such Affiliate or other financial institution with respect to Letters of Credit issued by such Affiliate or other financial institution. βIssuing Lender Feesβ: as defined in Section 3.3(a). βJudgment Currencyβ: as defined in Section 10.19. βL/C Advanceβ: each L/C Lenderβs funding of its participation in any L/C Disbursement in accordance with its L/C Percentage of the L/C Commitment. βL/C Commitmentβ: as to any L/C Lender, the obligation of such L/C Lender, if any, to purchase an undivided interest in the Issuing Lendersβ obligations and rights under and in respect of each Letter of Credit (including to make payments with respect to draws made under any Letter of Credit pursuant to Section 3.5(b)) in an aggregate Dollar Equivalent principal amount not to exceed the amount set forth under the heading βL/C Commitmentβ opposite such L/C Lenderβs name on Schedule 1.1A or in the Assignment and Assumption pursuant to which such L/C Lender becomes a party hereto, as the same may be changed from time to time pursuant to the terms hereof. The L/C Commitment is a sublimit of the Revolving Commitment and the aggregate amount of the L/C Commitments shall not exceed the amount of the Total L/C Commitments at any time. βL/C Disbursementsβ: a payment or disbursement made by the Issuing Lender pursuant to a Letter of Credit. βL/C Exposureβ: at any time, the sum of (a) the aggregate undrawn Dollar Equivalent amount of all outstanding Letters of Credit at such time, and (b) the aggregate Dollar Equivalent amount of all L/C Disbursements that have not yet been reimbursed or converted into Revolving Loans or Swingline Loans at such time. The L/C Exposure of any L/C Lender at any time shall equal its L/C Percentage of the aggregate L/C Exposure at such time. βL/C Facilityβ: the L/C Commitments and the extensions of credit made thereunder. βL/C Lenderβ: a Lender with an L/C Commitment. βL/C Percentageβ: as to any L/C Lender at any time, the percentage of the Total L/C Commitments represented by such L/C Lenderβs L/C Commitment, as such percentage may be adjusted as provided in Section 2.21. βL/C-Related Documentsβ: collectively, each Letter of Credit, all applications for any Letter of Credit (and applications for the amendment of any Letter of Credit) submitted by the Borrower to the Issuing Lender and any other document, agreement and instrument relating to any Letter of Credit, including any of the Issuing Xxxxxxβs standard form documents for letter of credit issuances. βLender Fee Lettersβ: (a) the letter agreement dated February 2, 2024, between the Borrower and the Lenders providing Term Loan Commitments and (b) the letter agreement dated February 2, 2024, between the Borrower and the Revolving Lenders.
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34 #97570842v91 βLendersβ: as defined in the preamble hereto; provided that unless the context otherwise requires, each reference herein to the Lenders shall be deemed to include the Issuing Lender, any L/C Lender and the Swingline Lender. βLetter of Creditβ: as defined in Section 3.1(a) and including each Existing Letter of Credit. βLetter of Credit Availability Periodβ: the period from and including the Closing Date to but excluding the Letter of Credit Maturity Date. βLetter of Credit Feesβ: as defined in Section 3.3(a). βLetter of Credit Fronting Feesβ: as defined in Section 3.3(a). βLetter of Credit Maturity Dateβ: the date occurring fifteen (15) days prior to the Revolving Termination Date then in effect (or, if such day is not a Business Day, the next preceding Business Day). βLienβ: any mortgage, deed of trust, pledge, hypothecation, collateral assignment, deposit arrangement, encumbrance, lien (statutory or other), charge or other security interest or any preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement and any finance lease having substantially the same economic effect as any of the foregoing). βLimited Condition Acquisitionβ: means any Permitted Acquisition or other similar Investment permitted by this Agreement, including by way of merger, by the Borrower or one or more of the other Group Members permitted pursuant to this Agreement whose consummation is not conditioned upon the availability of, or on obtaining, third party financing; provided, that in the event the consummation of any such Permitted Acquisition or other similar permitted Investment shall not have occurred on or prior to the date that is one hundred twenty (120) days following the signing of the applicable acquisition agreement, such Permitted Acquisition or other similar permitted Investment shall no longer constitute a Limited Condition Acquisition for any purpose. βLimited Guarantyβ: means a customary unsecured βbad actsβ guaranty for Permitted Risk Retention Facilities, Permitted Secured Financings, sponsored securitizations, warehouse facilities and other similar facilities or financings, or a guaranty or similar agreement which may cover any losses incurred after (i) the occurrence of customary βbad actsβ, (ii) a bankruptcy, (iii) the incurrence of non- permitted Indebtedness and (iv) fees and expenses (x) incurred following the occurrence of customary βbad actsβ or (y) related to enforcing the Limited Guaranty. βLiquidity Certificateβ: a liquidity certificate in substantially the form of Exhibit N. βLiquidity Computation Periodβ: for each calendar month ending on or after January 31, 2024, means the period of five (5) consecutive days prior to the end of each such month through and including the five (5) consecutive days after the end of such month. βLoanβ: any loan made or maintained by any Lender pursuant to this Agreement. βLoan Documentsβ: this Agreement, each Security Document, each Note, the Fee Letters, each Assignment and Assumption, each Compliance Certificate, each Liquidity Certificate, each Notice of Borrowing, each Notice of Conversion/Continuation, the Solvency Certificate, the Collateral Information Certificate, each L/C-Related Document, each subordination or intercreditor agreement and any agreement
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35 #97570842v91 creating or perfecting rights in cash collateral pursuant to the provisions of Section 3.10, or otherwise, any other agreement, document or instrument designated as a βLoan Documentβ by the parties thereto, and any amendment, waiver, supplement or other modification to any of the foregoing. βLoan Partiesβ: the Borrower and each Guarantor. βMaterial Adverse Effectβ: (a) a material adverse change in, or a material adverse effect on, the operations, business, assets, properties, liabilities (actual or contingent), or financial condition of the Group Members, taken as a whole; (b) a material impairment of the rights and remedies, taken as a whole, of the Administrative Agent and the Lenders under any Loan Document, or of the ability of the Loan Parties, taken as a whole, to perform their obligations under the Loan Documents; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party of any material Loan Document to which it is a party, including a material impairment in the perfection or priority of the Administrative Agentβs Lien in any material Collateral or in the value of such Collateral. βMaterial Intellectual Propertyβ: any Intellectual Property that, individually or collectively, is material to the business of the Group Members, taken as a whole (as reasonably determined by the Borrower in good faith). βMaterials of Environmental Concernβ: any substance, material or waste that is defined, regulated, governed or otherwise characterized under any Environmental Law as hazardous or toxic or as a pollutant or contaminant (or by words of similar meaning and regulatory effect), any petroleum or petroleum products, asbestos, polychlorinated biphenyls, urea-formaldehyde insulation, molds or fungus, and radioactivity, radiofrequency radiation at levels known to be hazardous to human health and safety. βMaximum Incremental Facilities Amountβ means at any date of determination, the sum of (a) $25,000,000 (minus, without duplication, outstanding amounts incurred or commitments obtained prior to the date of determination in respect of all Incremental Facilities in reliance on this clause (a)), plus (b) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the notional principal amount of the loans so repaid or cancelled) of any Term Loans (other than Incremental Term Loans incurred in reliance on the Incremental Ratio Amount) or Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the commitments therefor) (other than Incremental Revolving Increases incurred in reliance on the Incremental Ratio Amount), in each case, to the extent not made with the proceeds of any long-term Indebtedness (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Facility)) plus (c) an additional unlimited amount if, after giving pro forma effect to the incurrence of such additional amount (and the use of proceeds thereof), with respect to any Incremental Facility (i) to be secured on a pari passu basis with the Obligations, the Consolidated First Lien Leverage Ratio calculated on a Pro Forma Basis for the Test Period then most recently ended is equal to or less than 2.25:1.00 (x) assuming for this purpose that the full amount of any Incremental Revolving Increase that is proposed to be established on such date is incurred (whether or not actually borrowed) and (y) with all proceeds from any Incremental Facility not being netted from Consolidated Funded Indebtedness in calculating the numerator of such Consolidated First Lien Leverage Ratio, but giving full pro forma effect to the use of proceeds of the entire amount of such Indebtedness and the related transactions), (ii) to be secured on a junior basis with the Obligations, the Consolidated Secured Leverage Ratio calculated on a Pro Forma Basis for the Test Period then most recently ended is equal to or less than 2.75:1.00 (x) assuming for this purpose that the full amount of any Incremental Revolving Increase that is proposed to be established on such date is incurred (whether or not actually borrowed) and (y) with all proceeds from any Incremental Facility not being netted from Consolidated Funded Indebtedness in calculating the numerator of such Consolidated Secured Leverage Ratio, but giving full pro forma effect to the use of proceeds of the entire amount of such Indebtedness and
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36 #97570842v91 the related transactions) and (iii) to be unsecured, the Consolidated Total Leverage Ratio calculated on a Pro Forma Basis for the Test Period then most recently ended is equal to or less than 3.00:1.00 (x) assuming for this purpose that the full amount of any Incremental Revolving Increase that is proposed to be established on such date is incurred (whether or not actually borrowed) and (y) with all proceeds from any Incremental Facility not being netted from Consolidated Funded Indebtedness in calculating the numerator of such Consolidated Total Leverage Ratio, but giving full pro forma effect to the use of proceeds of the entire amount of such Indebtedness and the related transactions) (the Indebtedness permitted to be incurred pursuant to preceding clause (c), βIncremental Ratio Amountβ). βMaximum Rateβ: as defined in Section 10.9. βMinimum Extension Conditionβ: as defined in Section 2.25(b). βMinimum Tranche Amountβ: as defined in Section 2.25(b). βMinority Lenderβ: as defined in Section 10.1(b). βMoodyβsβ: Xxxxxβx Investors Service, Inc. βMortgaged Propertiesβ: the real properties as to which, pursuant to Section 6.12(b), the Administrative Agent, for the benefit of the Secured Parties, shall be granted a Lien pursuant to the Mortgages. βMortgagesβ: each of the mortgages, deeds of trust, deeds to secure debt or such equivalent documents hereafter entered into and executed and delivered by one or more of the Loan Parties to the Administrative Agent, in each case, as such documents may be amended, amended and restated, supplemented or otherwise modified, renewed or replaced from time to time and in form and substance reasonably acceptable to the Administrative Agent (at the direction of the Required Lenders). βMultiemployer Planβ: a βmultiemployer planβ (within the meaning of Section 3(37) of ERISA) that is subject to Title IV of ERISA to which any Loan Party or any ERISA Affiliate thereof makes, is making, or is obligated to make contributions, or to which it has any liability. βNet Cash Proceedsβ: means, with respect to (A) any Asset Sale or any Recovery Event, the excess, if any, of (a) the sum of cash and Cash Equivalents received in connection with such transaction (including any cash received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received and excluding business interruption and delay in completion insurance proceeds) over (b) the sum of (i) the amount of any Indebtedness that is secured by such asset and that is required to be repaid in connection with such transaction (other than (x) Indebtedness under the Loan Documents and other Indebtedness that is secured by a Lien on the Collateral on a pari passu basis with the Loans and (y) Indebtedness that is secured by the Collateral on a junior basis to the Loans), including secured Indebtedness repaid in order to obtain a necessary consent to such Asset Sale or Recovery Event or required to be repaid by applicable law, (ii) the reasonable out-of-pocket expenses incurred by the Borrower or any other Group Member (in each case, other than Indebtedness described in clause (x) or (y) in the parenthetical above in this clause (b)(i)) in connection with such transaction, (iii) all federal, state, provincial, foreign and local taxes arising in connection with such Asset Sale or Recovery Event that are paid or required to be accrued as a liability under GAAP by the Borrower or another Group Member, and (iv) all contractually required distributions and other payments made to minority interest holders (other than Affiliates of a Group Member) in Group Members of such Person as a result of such Asset Sale or Recovery Event which would otherwise constitute Net Cash Proceeds, and (B) in the case of
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37 #97570842v91 any issuance of Capital Stock or Indebtedness, the aggregate cash payments received by the Borrower and the other Group Members less customary fees, taxes and expenses (including legal fees, investment banking fees, costs, underwriting discounts and commissions) incurred by the Borrower and the other Group Members in connection therewith. βNon-Consenting Lenderβ: any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all Affected Lenders in accordance with the terms of Section 10.1 and (b) has been approved by the Required Lenders. βNon-Defaulting Lenderβ: at any time, each Lender that is not a Defaulting Lender at such time. βNot Otherwise Appliedβ means, with reference to any amount of net proceeds of any transaction or event, that such amount (a) was not required to be applied to prepay the Loans pursuant to this Agreement, and (b) was not previously (and is not concurrently being) applied in determining the permissibility of a transaction under the Loan Documents where such permissibility was or is (or may have been) contingent on receipt of such amount or utilization of such amount for a specified purpose. βNoteβ: a Term Loan Note, a Revolving Loan Note or a Swingline Loan Note. βNotice of Borrowingβ: a notice substantially in the form of Exhibit J. βNotice of Conversion/Continuationβ: a notice substantially in the form of Exhibit K. βObligationsβ: (a) the unpaid principal of and interest on (including interest accruing after the maturity of the Loans and interest accruing after the filing of any petition in bankruptcy, or the commencement of any Insolvency Proceeding relating to any Loan Party, whether or not a claim for post- filing or post-petition interest is allowed or allowable in such proceeding) the Loans and all other obligations and liabilities (including any fees or expenses that accrue after the filing of any petition in bankruptcy, or the commencement of any Insolvency Proceeding relating to any Loan Party, whether or not a claim for post-filing or post-petition interest is allowed or allowable in such proceeding) of the Loan Parties (and the other Group Members in the case of obligations in respect of Cash Management Services provided by a Cash Management Bank) to the Administrative Agent, the Issuing Lender, any other Lender, any applicable Cash Management Bank, and any Qualified Counterparty, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement, any other Loan Document, the Letters of Credit, any Specified Cash Management Agreement, any Specified Swap Agreement or any other document made, delivered or given in connection herewith or therewith, whether on account of principal, interest, reimbursement obligations, payment obligations, fees, indemnities, costs, expenses (including all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent, the Issuing Lender, any other Lender, any applicable Cash Management Bank, to the extent that any applicable Specified Cash Management Agreement requires the reimbursement by any applicable Group Member of any such expenses, and any Qualified Counterparty) that are required to be paid by any Group Member pursuant any Loan Document, Specified Cash Management Agreement, Specified Swap Agreement or otherwise and (b) Erroneous Payment Subrogation Rights. The Obligations shall not include (i) any obligations arising under any warrants or other equity instruments issued by any Loan Party to any Lender, or (ii) solely with respect to any Guarantor that is not a Qualified ECP Guarantor, any Excluded Swap Obligations of such Guarantor. βOFACβ: the Office of Foreign Assets Control of the United States Department of the Treasury and any successor thereto.
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38 #97570842v91 βOIDβ: as defined in Section 10.24. βOperating Documentsβ: for any Person as of any date, such Personβs constitutional documents, formation documents and/or certificate of incorporation (or equivalent thereof), as certified (if applicable) by such Personβs jurisdiction of formation as of a recent date, and, (a) if such Person is a corporation, its bylaws or memorandum and articles of association (or equivalent thereof) in current form, (b) if such Person is a limited liability company, its limited liability company agreement (or similar agreement), and (c) if such Person is a partnership, its partnership agreement (or similar agreement), each of the foregoing with all current amendments or modifications thereto. βOther Applicable Indebtednessβ: as defined in Section 2.9(d). βOther Connection Taxesβ: with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document). βOther Taxesβ: all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.20). βOveradvanceβ: as defined in Section 2.5. βPagaya Parentβ: as defined in the preamble hereto. βPagaya USβ: as defined in the preamble hereto. βParticipantβ: as defined in Section 10.6(d). βParticipant Registerβ: as defined in Section 10.6(d). βPatriot Actβ: the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Title III of Pub. L. 107-56, signed into law October 26, 2001. βPayment Deferral Periodβ: as defined in 7.21(b). βPayment Deferral Period Outside Dateβ: with respect to any Payment Deferral Period, if an Event of Default giving rise to such Payment Deferral Period is (a) a Specified Event of Default, such Payment Deferral Period will end on the date that such Specified Event of Default is cured or waived, (b) an Event of Default under Section 7.1, such Payment Deferral Period will end on the date that is 225 days following the start of such Payment Deferral Period or (c) any other Event of Default, such Payment Deferral Period will end on the date that is 135 days following the start of such Payment Deferral Period. βPayment Recipientβ: as defined in Section 9.14(a).
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39 #97570842v91 βPBGCβ: the Pension Benefit Guaranty Corporation, or any successor thereto. βPension Planβ: an employee benefit plan (as defined in Section 3(3) of ERISA) other than a Multiemployer Plan (a) that is or was at any time maintained or sponsored by any Loan Party or any ERISA Affiliate thereof or to which any Loan Party or any ERISA Affiliate thereof has ever made, or was obligated to make, contributions, (b) that is or was subject to Section 412 of the Code, Section 302 of ERISA or Title IV of ERISA, and (c) with respect to which a Loan Party has or would reasonably be expected to have any liability. βPeriodic Term SOFR Determination Dayβ: as defined in the definition of βTerm SOFRβ. βPermitted Acquisitionβ: any acquisition of all or substantially all the assets of, or all the Equity Interests (other than directorsβ qualifying shares) in, a Person or division or line of business of a Person (or any subsequent investment made in a Person, division or line of business previously acquired in a Permitted Acquisition) where the Borrower has given the Administrative Agent at least twenty Business Daysβ prior written notice of the closing (or if execution of the related purchase agreement or similar agreement will occur simultaneously with closing, then ten Business Days prior notice, or such shorter period as the Administrative Agent (at the direction of the Required Lenders) may agree to) of any such purchase or acquisition; provided that immediately after giving effect thereto: (a) subject to Section 1.6, immediately before and immediately after giving effect to any such purchase or other acquisition, no Event of Default shall have occurred and be continuing or would result therefrom; (b) the total consideration paid by the Loan Parties for (i) the acquisition, directly or indirectly, of any Person that does not become a Loan Party and (ii) in the case of an asset acquisition, assets that are not acquired by a Loan Party, when taken together with the total consideration paid by the Loan Parties for all such acquired Persons and assets acquired after the Closing Date, shall not exceed $15,000,000 during the term of this Agreement; and (c) the total consideration paid by the Loan Parties for all Permitted Acquisitions after the Closing Date shall not exceed $100,000,000 at the time of any such Permitted Acquisition; provided that this limitation shall not apply to any acquisition to the extent such acquisition is made with Capital stock that is not Disqualified Stock, the proceeds of sales of or equity contributions in respect of, Capital Stock that is not Disqualified Stock and, in each case, so long as Not Otherwise Applied (and for the avoidance of doubt, not constituting Cure Amounts) and not with any cash or other assets of the Group Members; (d) subject to Section 1.6, compliance on a Pro Forma Basis with Section 7.1; (e) the Group Members shall be in compliance with Section 7.16; (f) all transactions related thereto shall have been consummated in all material respects in accordance with applicable Requirements of Law; and (g) the Borrower shall provide to the Administrative Agent as soon as available but in any event not later than five (5) Business Days after the execution thereof, a copy of any executed purchase agreement or similar agreement with respect to any such purchase or acquisition.
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40 #97570842v91 βPermitted Equityβ means (i) common equity, (ii) any Capital Stock that is not Disqualified Stock or (iii) other preferred Capital Stock or other instruments (in the case of clause (iii), having terms reasonably acceptable to the Administrative Agent (at the direction of the Required Lenders)). βPermitted Holderβ: (i) each Founder and each Founder's spouse, siblings, descendants (including children or grandchildren by adoption) and the descendants of any of their siblings; (ii) any spouse or domestic partner of any Person described in clause (i) that receives any Common Stock pursuant to a court order or upon divorce, as required by settlement, order or decree, or as required by a domestic relations settlement, order or decree; (iii) in the event of the incompetence or death of any of the Persons described in clause (i) or (ii), such Person's estate, executor, administrator, committee or other personal representative, in each case who at any particular date shall beneficially own or have the right to acquire, directly or indirectly, the relevant Common Stock; (iv) any trust created for the benefit of the Persons described in clause (i), (ii) or (iii) or any trust for the benefit of any such trust; or (v) any Person Controlled by any of the Persons described in clause (i), (ii), (iii) or (iv). βPermitted Refinancing Indebtednessβ any Indebtedness (the βRefinancing Indebtednessβ), the proceeds of which are used to refinance, refund, renew, extend or replace outstanding Indebtedness (such outstanding Indebtedness, the βRefinanced Indebtednessβ); provided that (a) the principal amount (or accreted value, if applicable) of such Refinancing Indebtedness (including any unused commitments thereunder) is not greater than the principal amount (or accreted value, if applicable) of the Refinanced Indebtedness at the time of such refinancing, refunding, renewal, extension or replacement, except by an amount equal to any original issue discount thereon and the amount of unpaid accrued interest and premium thereon plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such refinancing, refunding, renewal, extension or replacement, and by an amount equal to any existing commitments thereunder that have not been utilized at the time of such refinancing, refunding, renewal, extension or replacement (provided that, the principal amount of such Indebtedness may exceed the amount set forth in this clause (a) so long as such additional principal amount was otherwise permitted to be incurred pursuant to Section 7.2; and provided, further, that such excess amount was a utilization (prior to the date of such refinancing) of such other provision(s) under Section 7.2 in the amount of such excess); (b) other than in the case of customary βbridgeβ facilities (so long as the long term debt into which any such customary βbridgeβ facility is to be automatically converted or may be converted at the Borrowerβs option on customary terms satisfies the following requirements); provided further in each case of clauses (a) and (b), the final stated maturity and Weighted Average Life To Maturity (determined without giving effect to prepayments that reduce amortization) of such Refinancing Indebtedness shall not be prior to or shorter than that applicable to the Refinanced Indebtedness and such Refinancing Indebtedness does not require any scheduled payment of principal, mandatory repayment, redemption or repurchase that is materially more favorable to the holders of the Refinancing Indebtedness than the corresponding terms (if any) of the Refinanced Indebtedness; (c) such Refinancing Indebtedness shall not be secured by (i) Liens on assets other than assets securing the Refinanced Indebtedness at the time of such refinancing, refunding, renewal, extension or replacement and extensions thereof or improvements thereon (unless such assets become Collateral) or (ii) Liens having a higher priority than the Liens, if any, securing the Refinanced Indebtedness at the time of such refinancing, refunding, renewal, extension or replacement; (d) such Refinancing Indebtedness shall not be guaranteed by or otherwise recourse to any Person other than the Person(s) to whom the Refinanced Indebtedness is recourse or by whom it is guaranteed, in each case as of the time of such refinancing, refunding, renewal, extension or replacement (unless such other Person becomes a Guarantor); (e) to the extent such Refinanced Indebtedness is subordinated in right of payment to the Obligations (or the Liens securing such Indebtedness were originally contractually subordinated to the Liens securing the Collateral pursuant to the Security Documents), such refinancing, refunding, renewal, extension or replacement is subordinated in right of payment to the Obligations (or the Liens securing such Indebtedness shall be subordinated to the Liens securing the Collateral pursuant to the Security Documents)
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41 #97570842v91 on terms at least as favorable to the Lenders as those contained in the documentation governing such Refinanced Indebtedness or otherwise reasonably acceptable to the Administrative Agent (acting at the direction of the Required Lenders); and (f) the covenants with respect to such Refinancing Indebtedness, when taken as a whole, are not materially more restrictive to the Borrower and the other Group Members than those in the Refinanced Indebtedness (taken as a whole) as determined by the Borrower in good faith. βPermitted Risk Retention Facilityβ: a financing (however structured) that (a) complies with the Risk Retention Requirements, (b) is extended by a Person that is not a Group Member to the Borrower and/or any other Group Member and (c) is secured only by Risk Retention Investments. βPermitted RR Paymentsβ: as defined in Section 7.21(a). βPermitted Secured Financingβ: in which the Borrower or any Group Member sells or transfers Financing Assets to an SPV Subsidiary which issues or incurs debt that is secured by the cash flows from such Financing Assets to a Person that is not a Group Member; provided that such Indebtedness is non- recourse to any Loan Party or other Group Member (other than pursuant to a Limited Guaranty). βPermitted Seller Debtβ: the unsecured Indebtedness (other than Earn-Out Obligations and DP Amounts) owing to the sellers of assets or Capital Stock to a Group Member that is incurred by a Group Member in connection with the consummation of one or more Permitted Acquisitions, so long as (i) with respect to any such Indebtedness that requires cash interest or principal payments while any Obligations remain outstanding, the aggregate principal amount for all such unsecured Indebtedness does not exceed $2,500,000 at any one time outstanding and such Indebtedness is otherwise on terms and conditions reasonably acceptable to the Administrative Agent (acting at the direction of the Required Lenders), and (ii) any such Indebtedness is subordinated to the Obligations on terms and conditions reasonably acceptable to the Administrative Agent (acting at the direction of the Required Lenders). βPersonβ: any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity. βPlanβ: an employee benefit plan (as defined in Section 3(3) of ERISA) other than a Multiemployer Plan which is or was at any time maintained or sponsored by any Loan Party or any Subsidiary thereof or to which any Loan Party or any Subsidiary thereof has ever made, or was obligated to make, contributions, including a Pension Plan, and a Qualified Plan. βPlanned Considerationβ: as defined in clause (b)(ix) of the definition of βExcess Cash Flowβ. βPlatformβ: is any of Debt Domain, Intralinks, Syndtrak, DebtX or a substantially similar electronic transmission system. βPrime Rateβ: the rate of interest per annum last quoted by The Wall Street Journal as the βPrime Rateβ in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve System in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the βbank prime loanβ rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve System (as determined by the Administrative Agent). Any change in the Prime Rate shall take effect at the opening of business on the day such change is publicly announced or quoted as being effective.
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42 #97570842v91 βPro Forma Basisβ or βpro forma effectβ: with respect to compliance with any test or covenant or calculation hereunder, the determination or calculation of such test, covenant or ratio (including in connection with Specified Transactions) in accordance with Section 1.7. βProtected Transactionβ: (i) a prepayment of Term Loans pursuant to Sections 2.8, 2.9(a) or 2.9(b), (ii) any required assignment by a Minority Lender pursuant to Section 2.20 or (iii) the acceleration of the Loans, the commencement of an insolvency proceeding against the Borrower, foreclosure and sale of, or collection of, the Collateral, or restructure, reorganization, or compromise of the Loans and other obligations by the confirmation of a plan of reorganization or any other plan of compromise, restructure, or arrangement in any such insolvency proceeding. βPublic Company Costsβ: as to any Person, costs associated with, or in anticipation of, or preparation for, compliance with the requirements of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in connection therewith and costs relating to compliance with the provisions of the Securities Act of 1933 (as amended, and the rules and regulations of the SEC promulgated thereunder, as amended) and the Securities Exchange Act of 1934 (as amended, and the rules and regulations of the SEC promulgated thereunder, as amended) or any other comparable body of laws, rules or regulations, as companies with listed equity, directorsβ compensation, fees and expense reimbursement, costs relating to enhanced accounting functions and investor relations, stockholder meetings and reports to stockholders, directorsβ and officersβ insurance and other executive costs, legal and other professional fees, listing fees and other transaction costs, in each case to the extent arising solely by virtue of the listing of such Personβs equity securities on a national securities exchange or issuance of public debt securities. βQFCβ: as defined in Section 10.22(b)(iv). βQFC Credit Supportβ: as defined in Section 10.22. βQualified Counterpartyβ: with respect to any Specified Swap Agreement, any counterparty thereto that is the Administrative Agent, a Lender or an Affiliate of the Administrative Agent or a Lender at the time such Specified Swap Agreement was entered into; provided that in each case, such counterparty shall not constitute a Qualified Counterparty unless and until it has delivered to the Administrative Agent a Secured Party Designation Notice executed by it and the Borrower. βQualified ECP Guarantorβ: in respect of any Swap Obligation, (a) each Guarantor that has total assets exceeding $10,000,000 at the time the relevant Guarantee Obligation of such Guarantor provided in respect of, or the Lien granted by such Guarantor to secure, such Swap Obligation (or guaranty thereof) becomes effective with respect to such Swap Obligation, and (b) any other Guarantor that (i) constitutes an βeligible contract participantβ under the Commodity Exchange Act or any regulations promulgated thereunder, or (ii) can cause another Person (including any other Guarantor not then constituting a βQualified ECP Guarantorβ) to qualify as an βeligible contract participantβ at such time by entering into a βkeepwell, support, or other agreementβ as contemplated by Section 1a(18)(A)(v)(II) of the Commodity Exchange Act. βQualified Planβ: an employee benefit plan (as defined in Section 3(3) of ERISA) other than a Multiemployer Plan (a) that is or was at any time maintained or sponsored by any Loan Party or any ERISA Affiliate thereof or to which any Loan Party or any ERISA Affiliate thereof has ever made, or was ever obligated to make, contributions, (b) that is intended to be tax qualified under Section 401(a) of the Code, and (c) to which a Loan Party has or would reasonably be expected to have any liability. βRecipientβ: the (a) Administrative Agent, (b) any Lender or (c) the Issuing Lender, as applicable.
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43 #97570842v91 βRecovery Eventβ: any settlement of or payment in respect of any property or casualty insurance claim or any condemnation proceeding relating to any asset of any Group Member. βRefunded Swingline Loansβ: as defined in Section 2.4(b). βRefinancingβ: the repayment in full of all principal, interest, fees and other amounts due or outstanding under the Existing SVB Credit Facility, the termination of all commitments under the Existing SVB Credit Facility and the termination and release of all guarantees and security in support of the Existing SVB Credit Facility. βRefinancing Amendmentβ means an amendment to this Agreement that is reasonably satisfactory to the Administrative Agent (at the direction of the Required Lenders) and the Borrower executed by the Borrower, the Administrative Agent and each Lender that agrees to provide all or any portion of the Replacement Term Loans being incurred pursuant thereto and in accordance with Section 10.1(g). βRegisterβ: as defined in Section 10.6(c). βRegulation Dβ: Regulation D of the Board, as in effect from time to time and all official rulings and interpretations thereunder or thereof. βRegulation Uβ: Regulation U of the Board as in effect from time to time. βRegulation Xβ: Regulation X of the Board as in effect from time to time. βRejection Noticeβ: as defined in Section 2.9(g). βRelated Partiesβ: with respect to any Person, such Personβs Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors, representatives, general partners, limited partners, investors (including any potential investors), managed funds and accounts and financing sources of such Person and of such Personβs Affiliates. βRelevant Governmental Bodyβ: the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or any successor thereto. βRemaining Present Valueβ means, as of any date with respect to any lease, the present value as of such date of the scheduled future lease payments with respect to such lease, determined with a discount rate equal to a market rate of interest for such lease reasonably determined at the time such lease was entered into. βRemoval Effective Dateβ: as defined in Section 9.9(b). βReplacement Lenderβ: as defined in Section 2.20. βReplaced Term Loansβ: as defined in Section 10.1(g). βReplacement Term Loansβ: as defined in Section 10.1(g).
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44 #97570842v91 βRequired Lendersβ: at any time, Lenders who hold more than 50.0% of the sum of (i) the aggregate unpaid principal amount of the Term Loans or unused Term Loan Commitments, as applicable, then outstanding, and (ii) the Total Revolving Commitments (including, without duplication, the L/C Commitments) then in effect or, if the Revolving Commitments have been terminated, the Total Revolving Extensions of Credit then outstanding; provided that, the outstanding principal amount of the Term Loans held by any Defaulting Lender and the Revolving Commitments of, and the portion of the Revolving Loans and participations in L/C Exposure and Swingline Loans held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders; provided further, that (x) so long as the BlackRock Lenders collectively hold more than 60.0% of the aggregate principal amount of the Term Loans or Term Loan Commitments, as applicable, held by the BlackRock Lenders as of the initial date of the acquisition (in connection with customary fronting arrangements) of such Term Loans or Term Loan Commitments, as applicable, then the Required Lenders must include the BlackRock Lenders (it being understood that this clause (x) will not apply to any amendment or waiver that by its terms only affects the rights or duties of the Revolving Lenders) and (y) at any time when there are two or more Lenders (who are not Affiliates of one another or Defaulting Lenders), (A) βRequired Lendersβ must include at least two Lenders (who are not Affiliates of one another) and (B) other than in connection with the taking of enforcement actions and exercise of remedies (including, without limitation, any determination with respect thereto (including the occurrence thereof) or the delivery of related notices or the institution of the default rate) pursuant to Section 8.2 or otherwise, βRequired Lendersβ must include at least one Commercial Bank. βRequirement of Lawβ: as to any Person, the Operating Documents of such Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority (including the Basel Committee on Banking Supervision and any successor thereto or similar authority or successor thereto), in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject. βResignation Effective Dateβ: as defined in Section 9.9(a). βResolution Authorityβ: an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority. βResponsible Officerβ: with respect to any Person, the chief executive officer, president, chief financial officer, treasurer, controller, executive vice president or officer with similar duties of such Person, but in any event, with respect to financial matters, the chief financial officer, treasurer or controller of such Person. βRestricted Amountβ: as defined in Section 2.9(h). βRestricted Paymentsβ: as defined in Section 7.6. βRetained Excess Cash Flowβ means, for any full fiscal year completed after the Closing Date, the amount of Excess Cash Flow for such period that has not been required to be applied to prepay Term Loans (or any portion thereof) pursuant to Section 2.9(c) or any Other Applicable Indebtedness pursuant to the terms thereof. βRevaluation Dateβ: with respect to any Letter of Credit denominated in a Foreign Currency, each of the following: (a) each date of issuance, amendment and/or extension of such Letter of Credit, (b) each date of any payment by the Issuing Lender under such Letter of Credit, (c) the first (1st) Business Day of each calendar month and (d) such additional dates as (i) the Administrative Agent shall request in writing to the Issuing Lender, (ii) the Issuing Lender shall determine or (iii) the Required Lenders shall require, in
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45 #97570842v91 the case of clauses (ii) and (iii), upon written notice to the Administrative Agent (and, in the case of clause (iii), the Issuing Lender). βRevolving Commitmentβ: as to any Lender, the obligation of such Lender, if any, to make Revolving Loans and participate in Swingline Loans and Letters of Credit in an aggregate principal amount not to exceed the amount set forth under the heading βRevolving Commitmentβ opposite such Xxxxxxβs name on Schedule 1.1A or in the Assignment and Assumption or Increase Joinder pursuant to which such Lender became a party hereto, as the same may be changed from time to time pursuant to the terms hereof (including in connection with assignments and Revolving Commitment Increases permitted hereunder). The amount of the Total Revolving Commitments as of the Closing Date is $25,000,000. The L/C Commitment and the Swingline Commitment are each sublimits of the Total Revolving Commitments. Notwithstanding anything to the contrary in this Agreement, until the Revolving Commitments are increased to at most $50,000,000, the Administrative Borrower shall have the right to join additional Revolving Lenders after the Closing Date subject solely to the absence of any continuing Event of Default and, for so long as VNB is an Issuing Lender and/or Swingline Lender, consent of VNB over any new Revolving Lender (other than an Affiliate of an existing Revolving Lender). βRevolving Commitment Increaseβ: as defined in Section 2.23(a). βRevolving Commitment Periodβ: the period from and including the Closing Date to the Revolving Termination Date. βRevolving Extensions of Creditβ: as to any Revolving Lender at any time, an amount equal to the sum of (a) the aggregate principal amount of all Revolving Loans held by such Lender then outstanding, plus (b) such Lenderβs L/C Percentage of the aggregate undrawn Dollar Equivalent amount of all outstanding Letters of Credit at such time, plus (c) such Lenderβs L/C Percentage of the aggregate Dollar Equivalent amount of all L/C Disbursements that have not yet been reimbursed or converted into Revolving Loans or Swingline Loans at such time, plus (d) such Lenderβs Revolving Percentage of the aggregate principal amount of Swingline Loans then outstanding. βRevolving Facilityβ: the Revolving Commitments and the extensions of credit made thereunder. βRevolving Lenderβ: each Lender that has a Revolving Commitment or that holds Revolving Loans. βRevolving Loan Conversionβ: as defined in Section 3.5(b). βRevolving Loan Funding Accountβ: the account of the Administrative Agent as may be specified from time to time by the Administrative Agent as its funding account by written notice to the Borrower and the Lenders. βRevolving Loan Noteβ: a promissory note in the form of Exhibit G-1, as it may be amended, supplemented or otherwise modified from time to time. βRevolving Loansβ: as defined in Section 2.1(c)). βRevolving Percentageβ: as to any Revolving Lender at any time, the percentage which such Xxxxxxβs Revolving Commitment then constitutes of the Total Revolving Commitments or, at any time after the Revolving Commitments of all Lenders shall have expired or terminated, the percentage which the aggregate principal amount of such Xxxxxxβs Revolving Loans then outstanding constitutes of the aggregate
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46 #97570842v91 principal amount of all Revolving Loans then outstanding; provided that in the event that the Revolving Loans are paid in full prior to the reduction to zero of the Total Revolving Commitments, the Revolving Percentages shall be determined in a manner designed to ensure that the other outstanding Revolving Extensions of Credit shall be held by the Revolving Lenders on a comparable basis. βRevolving Termination Dateβ: February 2, 2029. βRisk Retention Investmentsβ: Investments made in connection with Risk Retention Requirements applicable to any Loan Party or other Group Member. βRisk Retention Payment Deferral Provisionβ: as defined in Section 7.21(b). βRisk Retention Requirementsβ: the requirements of Section 941 of The Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act, as amended, and the rules and regulations thereunder, or any successor law, rules or regulations. βS&Pβ: S&P Global Inc. βSale Leaseback Transactionβ: any arrangement with any Person or Persons, whereby in contemporaneous or substantially contemporaneous transactions a Loan Party sells substantially all of its right, title and interest in any property and, in connection therewith, acquires, leases or licenses back the right to use all or a material portion of such property. βSame Day Fundsβ: (a) with respect to disbursements and payments in Dollars, immediately available funds, and (b) with respect to disbursements and payments in a Foreign Currency, same day or other funds as may be determined by the Issuing Lender, to be customary in the place of disbursement or payment for the settlement of international banking transactions in the relevant Foreign Currency. βSanction(s)β: any international economic sanction administered or enforced by the United States Government (including OFAC), the United Nations Security Council, the European Union, any European Union member state, His Majestyβs Treasury, the Israeli Ministry of Finance, or other relevant (Israeli or otherwise) sanctions authority or Governmental Authority. βSanctioned Personβ: at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC, the U.S. Department of State, the United Nations Security Council, the European Union, Israel, any European Union member state, His Majestyβs Treasury of the United Kingdom or other relevant sanctions authority, (b) any Person located, organized or ordinarily resident in a Designated Jurisdiction, (c) any Person owned or controlled by any such Person or Persons described in the foregoing clauses (a) or (b), or (d) any Person otherwise the target of any Sanctions. βSECβ: the Securities and Exchange Commission, any successor thereto and any analogous Governmental Authority. βSecured Partiesβ: the collective reference to the Administrative Agent, the Lenders (including any Issuing Lender in its capacity as Issuing Lender and any Swingline Lender in its capacity as Swingline Lender), any Cash Management Bank (in its or their respective capacities as providers of Cash Management Services), and any Qualified Counterparties. βSecured Party Designation Noticeβ means a notice from a Cash Management Bank or Qualified Counterparty and the Borrower substantially in the form of Exhibit M.
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47 #97570842v91 βSecurities Accountβ: any βsecurities accountβ as defined in the UCC with such additions to such term as may hereafter be made. βSecurities Actβ: the Securities Act of 1933, as amended from time to time and any successor statute. βSecurities Account Control Agreementβ: any control agreement, in form and substance reasonably satisfactory to the Administrative Agent (at the direction of the Required Lenders), entered into by the Administrative Agent, a Loan Party and a securities intermediary holding a Securities Account of such Loan Party pursuant to which the Administrative Agent obtains or is otherwise granted βcontrolβ (for purposes of the UCC or any other applicable law) over such Securities Account. βSecurity Documentsβ: the collective reference to (a) the Guarantee and Collateral Agreement, (b) the Mortgages (if any), (c) each Intellectual Property Security Agreement, (d) the Debentures and required notices to the applicable registrars (as required), (e) each Control Agreement, (f) all other security documents hereafter delivered to the Administrative Agent granting a Lien on any property of any Person to secure the Obligations of any Loan Party arising under any Loan Document, (g) all other security documents hereafter delivered to any applicable Cash Management Bank or any Qualified Counterparty granting a Lien on any property of any Person to secure the Obligations of any Group Member arising under any Specified Cash Management Agreement or any Specified Swap Agreement and (h) all financing statements, fixture filings, assignments, acknowledgments and other filings, documents and agreements made or delivered pursuant to any of the foregoing. βSOFRβ: a rate equal to the secured overnight financing rate as administered by the SOFR Administrator. βSOFR Administratorβ: the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate). βSOFR Administratorβs Websiteβ: the website of the Federal Reserve Bank of New York, currently at xxxx://xxx.xxxxxxxxxx.xxx, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time. βSOFR Borrowingβ: as to any borrowing hereunder, the SOFR Loans comprising such borrowing. βSOFR Loanβ: a Loan that bears interest at a rate based on Adjusted Term SOFR, other than pursuant to clause (c) of the definition of βABRβ. βSOFR Trancheβ: the collective reference to SOFR Loans under a particular Facility (other than the L/C Facility), the then current Interest Periods with respect to all of which begin on the same date and end on the same later date (whether or not such Loans shall originally have been made on the same day). βSolvency Certificateβ: the Solvency Certificate, dated the Closing Date, and in substantially the form of Exhibit D. βSolventβ: when used with respect to any Person, as of any date of determination, (a) the amount of the βfair valueβ of the assets of such Person will, as of such date, exceed the amount of all βliabilities of such Person, contingent or otherwise,β as of such date, as such quoted terms are determined in accordance with applicable federal and state laws governing determinations of the insolvency of debtors, (b) the βpresent fair saleable valueβ of the assets of such Person will, as of such date, be greater than the amount
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48 #97570842v91 that will be required to pay the liability of such Person on its debts as such debts become absolute and matured, as such quoted terms are determined in accordance with applicable federal and state laws governing determinations of the insolvency of debtors, (c) such Person will not have, as of such date, an unreasonably small amount of capital with which to conduct its business, (d) such Person will be able to pay its debts generally as they mature, taking into account any bona fide potential refinancing opportunities and (e) with respect to any Israeli Loan Party, such Person is not βinsolventβ, as defined in the Israeli Insolvency and Economic Rehabilitation Law 5788-2018. For purposes of this definition, (i) βdebtβ means liability on a βclaim,β and (ii) βclaimβ means any (x) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured or unsecured. βSpecified Cash Management Agreementβ: any Cash Management Agreement with any Cash Management Bank to provide Cash Management Services to one or more of the Loan Parties or any of their Subsidiaries. βSpecified Event of Defaultβ: an Event of Default arising under Sections 8.1(a) or (f). βSpecified Israeli Taxesβ: as defined in the definition of βExcluded Taxesβ. βSpecified Risk Retention Financingsβ: Covered Risk Retention Financings that include or are otherwise subject to the Risk Retention Payment Deferral Provisions. βSpecified Swap Agreementβ: any Swap Agreement entered into by a Loan Party or any of its Subsidiaries and any Qualified Counterparty (or any Person who was a Qualified Counterparty as of the Closing Date or as of the date such Swap Agreement was entered into) to the extent permitted under Section 7.2(c)(i). βSpecified Transactionβ means any Investment that results in a Person becoming a Group Member, any designation of a Group Member as an SPV Subsidiary or the designation of an SPV Subsidiary as Group Member, any Permitted Acquisition, any Disposition that results in a Group Member ceasing to be a Subsidiary of the Borrower, any Investment constituting an acquisition of assets constituting a business unit, line of business or division of another Person or a facility or any parcels of or interests (including leasehold interests) in real property and all improvements and fixtures thereon or any Disposition of a business unit, line of business or division or a facility or any parcels of or interests (including leasehold interests) in real property and all improvements and fixtures thereon (including any buyout or conversion of a non-Finance Lease to a Finance Lease) of the Borrower or another Group Member, in each case whether by merger, consolidation, amalgamation or otherwise, or any incurrence or repayment of Indebtedness (other than Indebtedness incurred or repaid under any revolving credit facility in the ordinary course of business for working capital purposes), Restricted Payment or Incremental Facility that by the terms of this Agreement requires such test to be calculated on a βPro Forma Basisβ or after giving βpro forma effect.β βSpot Rateβ: for any currency, the rate determined by the Issuing Lender to be the rate quoted by the Issuing Lender as the spot rate for the purchase of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 A.M. on the date two (2) Business Days prior to the date as of which the foreign exchange computation is made; provided that the Issuing Lender may obtain such spot rate from another financial institution designated by it if the Issuing Lender does not have as of the date of determination a spot buying rate for any such currency; provided, further, that if at any time there is no Issuing Lender, the βSpot Rateβ shall mean, in relation to the conversion of one currency
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49 #97570842v91 into another currency, the spot rate of exchange for such conversion as published on the applicable Bloomberg screen page (or such other publicly available service for displaying exchange rates selected by the Required Lender) at approximately 11:00 A.M. on the date two (2) Business Days prior to the date as of which the foreign exchange computation is made. Once the Exchange Rate for a currency is revalued by the Issuing Lender, the Issuing Lender will advise the Administrative Agent and the Administrative Borrower of the new Spot Rate for such currency. βSPV Subsidiaryβ: a direct or indirect special purpose, bankruptcy remote securitization vehicle Subsidiary of the Borrower: (1) established in connection with, or otherwise designated as a party to, a Permitted Secured Financing, (2) is organized in a manner intended to reduce the likelihood that it would be substantively consolidated with the Borrower or any of the Subsidiaries in the event the Borrower or any such Subsidiary becomes subject to an Insolvency Proceeding, (3) that does not engage in, and whose charter prohibits it from engaging in, any activities other than Permitted Secured Financings and any activity necessary, incidental or related thereto, (4) other than with respect to any Limited Guaranty, no portion of the Indebtedness or any other obligation, contingent or otherwise, of which (A) is guaranteed by the Borrower or any other Group Member, (B) is recourse to or obligates the Borrower or any other Group Member in any way, or (C) subjects any property or asset of the Borrower or any other Group Member, directly or indirectly, contingently or otherwise, to the satisfaction thereof, (5) with respect to which neither the Borrower nor any other Group Member (other than a SPV Subsidiary) has any obligation to maintain or preserve its financial condition or cause it to achieve certain levels of operating results, other than, in respect of clause (4) and (5), pursuant to (x) a Limited Guaranty and (y) services performed or to be performed by the Borrower or any other Group Member in the ordinary course of business with respect to such Permitted Secured Financing and the related Financing Assets and (6) such Subsidiaryβs only material assets are the Financing Assets being financed pursuant to such Permitted Secured Financings. βSubordinated Debt Documentβ: any agreement, certificate, document or instrument executed or delivered by any Group Member and evidencing Indebtedness of such Group Member which is subordinated to the payment of the Obligations or the Liens securing such Indebtedness is subordinated to the Administrative Agentβs Lien, in each case, in a manner approved in writing by the Administrative Agent (at the direction of the Required Lenders), and any renewals, modifications, or amendments thereof which are approved in writing by the Administrative Agent (at the direction of the Required Lenders). βSubordinated Indebtednessβ: Indebtedness of a Loan Party expressly subordinated to the Obligations pursuant to subordination terms (including payment and lien and remedies subordination terms, as applicable) reasonably acceptable to the Administrative Agent (acting at the direction of the Required Lenders) (other than Indebtedness among the Borrower and/or its Subsidiaries to the extent subject to the Global Intercompany Note). βSubsidiaryβ: as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise qualified, all references to a βSubsidiaryβ or to βSubsidiariesβ in this Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower. βSupported QFCβ: as defined in Section 10.22.
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50 #97570842v91 βSwap Agreementβ: any agreement with respect to any swap, hedge, forward, future or derivative transaction or option or similar agreement (including, without limitation, any Interest Rate Agreement) involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; provided that the following shall not constitute βSwap Agreementsβ: (a) any phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Borrower and its Subsidiaries, (b) any stock option or warrant agreement for the purchase of Capital Stock of the Borrower or any of its Subsidiaries, (c) the purchase of Capital Stock or Indebtedness (including securities convertible into Capital Stock) of the Borrower or any of its Subsidiaries pursuant to delayed delivery contracts, accelerated stock repurchase agreements, forward contracts or other similar agreements and (d) any of the items specified in the foregoing clauses (a) through (c), to the extent the same constitutes a derivative embedded in a convertible security issued by the Borrower or any of its Subsidiaries. βSwap Obligationβ: with respect to any Guarantor, any obligation of such Guarantor to pay or perform under any agreement, contract or transaction that constitutes a βswapβ within the meaning of Section 1a(47) of the Commodity Exchange Act. βSwap Termination Valueβ: in respect of any one or more Swap Agreements, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Agreements, (a) for any date on or after the date any such Swap Agreement has been closed out and termination value determined in accordance therewith, such termination value, and (b) for any date prior to the date referenced in clause (a), the amount determined as the mark-to-market value for such Swap Agreement, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Agreements (which may include a Qualified Counterparty). βSwingline Commitmentβ: the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.3 in an aggregate principal amount at any one time outstanding not to exceed $20,000,000. βSwingline Facilityβ: the Swingline Commitment and the extensions of credit made thereunder. βSwingline Lenderβ: VNB, in its capacity as the lender of Swingline Loans or such other Lender as the Administrative Borrower may from time to time select as the Swingline Lender hereunder pursuant to Section 2.4(f); provided that such Xxxxxx has agreed to be a Swingline Lender. βSwingline Loan Noteβ: a promissory note in the form of Exhibit G-2, as it may be amended, supplemented or otherwise modified from time to time. βSwingline Loansβ: as defined in Section 2.3. βSwingline Participation Amountβ: as defined in Section 2.4(c). βTaxesβ: all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto. βTangible Book Valueβ: total shareholderβs equity of Pagaya Parent (including preferred shares) less good will and any other intangibles, in each case determined in accordance with GAAP and as set forth on the consolidated balance sheet of Pagaya Parent.
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51 #97570842v91 βTBV Ratioβ: as of any date of determination, the ratio of (a) Tangible Book Value to (b) Consolidated Secured Debt (other than Permitted Risk Retention Facilities and Permitted Secured Financings) as of such date that is secured by Liens that are pari passu (including, without limitation, any secured Indebtedness incurred under this Facility) with, or senior to, the Liens securing the Facility. βTerm Loanβ: the term loans made by the Lenders pursuant to Section 2.1, and to the extent funded, any Incremental Term Loans made by the Term Loan Lenders pursuant to Section 2.23. βTerm Loan Commitmentβ: as to any Lender, the obligation of such Lender, if any, to make a Term Loan to Pagaya US in an aggregate principal amount not to exceed the amount set forth under the heading βTerm Loan Commitmentβ opposite such Lenderβs name on Schedule 1.1A (as such Schedule 1.1A may be amended from time to time pursuant to Section 2.23, if any Incremental Term Loans are advanced thereunder). The original aggregate principal amount of the Term Loan Commitments was $255,000,000 as of the Closing Date. βTerm Loan Facilityβ: the Term Loan Commitments and the Term Loans made thereunder. βTerm Loan Funding Accountβ: the account of the Administrative Agent as may be specified from time to time by the Administrative Agent as its funding office by written notice to Pagaya US and the Lenders. βTerm Loan Lenderβ: each Lender that has a Term Loan Commitment or that holds a Term Loan. βTerm Loan Maturity Dateβ: February 2, 2029. βTerm Loan Noteβ: a promissory note in the form of Exhibit I, as it may be amended, supplemented or otherwise modified from time to time. βTerm Loan Percentageβ: as to any Term Loan Lender at any time, the percentage which such Xxxxxxβs unused Term Loan Commitments and funded Term Loans then constitutes of the aggregate unused Term Loan Commitments and funded Term Loans of all Lenders. βTerm SOFRβ: (a) for any calculation with respect to a SOFR Loan, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the βPeriodic Term SOFR Determination Dayβ) that is two (2) U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day; and (b) for any calculation with respect to an ABR Loan on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day, the βABR Term SOFR Determination Dayβ) that is two (2) U.S. Government Securities Business Days prior to such day, as such rate is published by the Term
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52 #97570842v91 SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any ABR Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such ABR SOFR Determination Day; provided, further, that if Term SOFR determined as provided above (including pursuant to the proviso under clause (a) or clause (b) above) shall ever be less than the Floor, then Term SOFR shall be deemed to be the Floor. βTerm SOFR Administratorβ: the CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its reasonable discretion). βTerm SOFR Borrowingβ: as to any borrowing hereunder, the Loans bearing interest at a rate based on Adjusted Term SOFR comprising such borrowing. βTerm SOFR Reference Rateβ: the forward-looking term rate based on SOFR. βTest Periodβ means, as of any date, the period of four consecutive fiscal quarters then most recently ended for which financial statements under Section 6.1(a) or, for the first three fiscal quarters of each fiscal year, (b), as applicable, have been delivered (or are required to have been delivered); it being understood and agreed that prior to the first delivery (or required delivery) of financial statements under Section 6.1(a) or, for the first three fiscal quarters of each fiscal year, (b), βTest Periodβ means the period of four consecutive fiscal quarters most recently ended for which financial statements of the Borrower and its consolidated Subsidiaries are available. βThreshold Amountβ: $24,500,000. βTotal Credit Exposureβ: as to any Lender at any time, the unused Commitments, Revolving Extensions of Credit and outstanding Term Loans of such Lender at such time. βTotal L/C Commitmentsβ: at any time, the sum of all L/C Commitments at such time, as the same may be reduced from time to time pursuant to Section 2.7 or 3.5(b). The initial amount of the Total L/C Commitments on the Closing Date is $25,000,000, which may be increased to $50,000,000 with the consent of the Issuing Lender; provided that no more than the Dollar Equivalent of $20,000,000 of such L/C Commitments (such amount, the βForeign L/C Sublimitβ) may be issued in a Foreign Currency. βTotal Revolving Commitmentsβ: at any time, the aggregate amount of the Revolving Commitments then in effect. βTotal Revolving Extensions of Creditβ: at any time, the aggregate amount of the Revolving Extensions of Credit outstanding at such time. βTrade Dateβ: as defined in Section 10.6(b)(i)(B). βTransactionsβ: as defined in Sections 4.16.
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53 #97570842v91 βTypeβ: as to any Loan, its nature as an ABR Loan or a SOFR Loan. βUK Financial Institutionβ: any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms. βUK Resolution Authorityβ: the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution. βUnadjusted Benchmark Replacementβ: the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment. βUniform Commercial Codeβ or βUCCβ: the Uniform Commercial Code (or any similar or equivalent legislation) as in effect from time to time in the State of New York, or as the context may require, any other applicable jurisdiction. βUnited Statesβ and βU.S.β: the United States of America. βUnrestricted Cash Amountβ means, the amount of (a) unrestricted cash and Cash Equivalents of the Group Members and (b) cash and Cash Equivalents of the Group Members that are restricted in favor of the Facility, in each case as determined in accordance with GAAP and, from and after the date that is 90 days after the Closing Date, to the extent such cash and Cash Equivalents are subject to a first-priority security interest perfected by Control Agreements. βU.S. Borrowerβ: any Borrower that is a U.S. Person. βU.S. Government Securities Business Dayβ: any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities. βU.S. Personβ: any Person that is a βUnited States Personβ as defined in Section 7701(a)(30) of the Code. βU.S. Special Resolution Regimesβ: as defined in Section 10.22. βU.S. Tax Compliance Certificateβ: as defined in Section 2.17(f)(ii)(B)(3). βWeighted Average Life to Maturityβ means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required scheduled payments of principal, including payment at final maturity, in respect thereof by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Indebtedness; provided that the effect of (x) any prepayment made in respect of such Indebtedness shall be disregarded in making such calculation and (y) any βAHYDO catch- upβ payment that may be required to be made in respect of such Indebtedness shall be disregarded in making such calculation.
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55 #97570842v91 (e) Any reference in any Loan Document to a merger, transfer, consolidation, amalgamation, consolidation, 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, transfer, consolidation, amalgamation, consolidation, assignment, sale 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 Loan 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 or entity) on the first date of its existence. In connection with any Division, if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then such asset shall be deemed to have been transferred from the original Person to the subsequent Person. (f) For purposes of determining compliance at any time with Sections 7.2, 7.3, 7.5, 7.6 and 7.7 in the event that any Indebtedness, Lien, Restricted Payment, Investment or Disposition or portion thereof, as applicable, at any time meets the criteria of more than one of the categories of transactions or items permitted pursuant to any clause of such Sections 7.2 (other than Sections 7.2(a) (in the case of Indebtedness incurred on the Closing Date), 7.2(b) and 7.2(e)), 7.3 (other than Section 7.3(b)), 7.5 (other than Section 7.5(g)(ii)), 7.6 and 7.7 (other than Section 7.7(a)(A)) (each of the foregoing, a βReclassifiable Itemβ), the Borrower, in its sole discretion, may, from time to time, divide, classify or reclassify such Reclassifiable Item (or portion thereof) under one or more clauses within the same such Section and will only be required to include such Reclassifiable Item (or portion thereof) in any one category; provided that, upon delivery of any financial statements pursuant to Section 6.1(a) or (b) following the initial incurrence or making of any such Reclassifiable Item, if such Reclassifiable Item could, based on such financial statements, have been incurred or made in reliance on any βratio-basedβ basket or exception (in the case of all other Reclassifiable Items), such Reclassifiable Item shall automatically be reclassified as having been incurred or made under the such βratio-basedβ basket or exception, as applicable. It is understood and agreed that any Indebtedness, Lien, Restricted Payment, Investment, Disposition and/or Affiliate transaction need not be permitted solely by reference to one category of permitted Indebtedness, Lien, Restricted Payment, Investment, Disposition and/or Affiliate transaction under Sections 7.2, 7.3, 7.5, 7.6, 7.7 and 7.9, respectively, but may instead be permitted in part under any combination thereof or under any other available exception within the same Section. (g) Notwithstanding anything to the contrary herein, unless the Borrower otherwise notifies the Administrative Agent, with respect to any amount incurred or transaction entered into (or consummated) in reliance on a provision of this Agreement that does not require compliance with a financial ratio or financial test (any such amount, including any amount drawn under the Revolving Facility or any other permitted revolving facility and any cap expressed as a percentage of Consolidated Adjusted EBITDA, a βFixed Amountβ) substantially concurrently with any amount incurred or transaction entered into (or consummated) in reliance on a provision of this Agreement that requires compliance with a financial ratio or financial test (any such amount, an βIncurrence-Based Amountβ), it is understood and agreed that (i) the incurrence of the Incurrence-Based Amount shall be calculated first without giving effect to any Fixed Amount but giving full pro forma effect to the use of proceeds of such Fixed Amount and the related transactions and (ii) the incurrence of the Fixed Amount shall be calculated thereafter. Unless the Borrower elects otherwise, the Borrower shall be deemed to have used amounts under an Incurrence-Based Amount then available to the Borrower prior to utilization of any amount under a Fixed Amount then available to the Borrower. (h) To the extent this Agreement or any other Loan Document permits the Administrative Agent (including at the direction of the Required Lenders) or any other Person to grant an extension of time for the performance of any covenant, duty or obligation hereunder or thereunder, such
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58 #97570842v91 (b) For purposes of calculating the Consolidated First Lien Leverage Ratio, the Consolidated Secured Leverage Ratio, the Consolidated Total Leverage Ratio or any other financial ratio, Specified Transactions (and the incurrence or repayment of any Indebtedness in connection therewith) that have been made (a) during the applicable Test Period or (b) subsequent to such Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made shall be calculated on a pro forma basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated Adjusted EBITDA and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period. If since the beginning of any applicable Test Period any Person that subsequently became a Group Member or was merged, amalgamated or consolidated with or into the Borrower or any other Group Member since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.7, then the financial ratios shall be calculated to give pro forma effect thereto in accordance with this Section 1.7. Whenever pro forma effect is to be given to a Specified Transaction, the pro forma calculations shall be made in good faith by a Responsible Officer and may include, for the avoidance of doubt, the amount of βrun rateβ cost savings, operating expense reductions and synergies that are reasonably identifiable (as determined and certified in good faith by the Borrower), factually supportable and projected by the Borrower in good faith to be realized as a result of specified actions taken or committed to be taken (calculated on a pro forma basis as though such cost savings, operating expense reductions and synergies had been realized on the first day of such Test Period and as if such cost savings, operating expense reductions and synergies were realized during the entirety of such period but, for the avoidance of doubt, subject to the limitations set forth in clause (xviii) of the definition of βConsolidated Adjusted EBITDAβ) relating to such Specified Transaction, net of the amount of actual benefits realized during such period from such actions (such cost savings and synergies; provided, that no amounts shall be added pursuant to this clause (b) to the extent duplicative of any amounts that are otherwise added back in calculating Consolidated Adjusted EBITDA, whether through a pro forma adjustment or otherwise, with respect to such period; provided further, that, the aggregate amount of all such βrun rateβ cost savings, operating expense reductions or synergies added back pursuant to this Section 1.7(b) shall not exceed 20% of Consolidated Adjusted EBITDA (or such higher amount as may be approved by the Required Lenders in their sole discretion) in any four consecutive fiscal quarter period in the aggregate when calculated with all amounts added back pursuant to clauses (vii), (xi), (xiii) and (xviii) of the definition of βConsolidated Adjusted EBITDAβ (calculated, in each case, after giving effect to all applicable addbacks). (c) In the event that the Borrower or any other Group Member incurs (including by assumption or guarantees) or repays (including by voluntary or mandatory redemption, repayment, retirement or extinguishment) any Indebtedness included in the calculations of a financial ratio (in each case, other than Indebtedness incurred or repaid under any revolving credit facility in the ordinary course of business for working capital purposes), (x) during the applicable Test Period or (y) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then each financial ratio shall be calculated giving pro forma effect to such incurrence or repayment of Indebtedness, to the extent required, as if the same had occurred on the last day of the applicable Test Period. SECTION 2 AMOUNT AND TERMS OF COMMITMENTS 2.1 Term Loans and Revolving Loans. (a) Closing Date Term Loans. Subject to the terms and conditions hereof, each Term Loan Lender severally agrees to make a Term Loan to Pagaya US on the Closing Date in Dollars in an
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65 #97570842v91 (c) Within ten Business Days after financial statements have been delivered pursuant to Section 6.1(a) (together with the related Compliance Certificate pursuant to Section 6.2(a)), beginning with the fiscal year ending December 31, 2024 and for each fiscal year thereafter, Pagaya US shall prepay an aggregate principal amount of Term Loans (such prepayments to be applied as set forth in clause (d) below) equal to the remainder of (A) 50% of Excess Cash Flow for the fiscal year covered by such financial statements minus (B) the sum of, other than to the extent made with the proceeds of long-term Indebtedness (other than revolving Indebtedness), (1) the aggregate principal amount of voluntary prepayments of Term Loans made during such fiscal year pursuant to Section 2.8, (2) the aggregate amount of any reduction in the outstanding principal amount of Term Loans resulting from assignments to Pagaya US made during such fiscal year in accordance with Section 10.6(h) (but, in the case of this clause (2), limited to the amount of cash actually used to purchase principal of such Term Loans), (3) the aggregate principal amount of any voluntary prepayments of Revolving Loans made during such fiscal year pursuant to Section 2.8, but, in the case of this clause (3), only to the extent accompanied by a like voluntary reduction in the Revolving Commitments made during such fiscal year pursuant to Section 2.7 and (4) the aggregate principal amount of any voluntary prepayments or purchases of Other Applicable Indebtedness made during such fiscal year (but, in the case of this clause (4), limited to the amount of cash actually used to purchase principal of such Indebtedness if purchased at a discount); provided that (i) such percentage shall be reduced to 25% if the Consolidated First Lien Leverage Ratio, determined on a Pro Forma Basis as of the last day of the applicable fiscal year, was less than or equal to 2.00:1.00, (ii) no mandatory prepayment under this Section 2.9(c) shall be required if the Consolidated First Lien Leverage Ratio, determined on a Pro Form Basis as of the last day of the applicable fiscal year, was less than or equal to 1.50:1.00 and (iii), at the option of Pagaya US, no prepayment under this Section 2.9(c) shall be required unless the amount of Excess Cash Flow so required to be applied to a prepayment of the Term Loans exceeds $3,500,000 (and Pagaya US shall be required to prepay Term Loans in an amount equal to all such Excess Cash Flow so determined). (d) Notwithstanding anything to the contrary in Section 2.9(b) and (c), as applicable, (i) if at the time that any prepayment pursuant to Section 2.9(b) would be required, Pagaya US is required to prepay or offer to prepay or repurchase any Indebtedness that is secured by the Collateral on a pari passu basis and is pari passu in right of payment, in each case, with the Term Loans pursuant to the terms of the documentation governing such Indebtedness (such Indebtedness required to be so prepaid or offered to be so prepaid or repurchased, βOther Applicable Indebtednessβ) with a portion of such prepayment, then Pagaya US may apply such portion of such Net Cash Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided that the portion of such Net Cash Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such Net Cash Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof and the remaining amount, if any, of such Net Cash Proceeds shall be allocated to the Term Loans in accordance with Section 2.9(e) below) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to Section 2.9(b) shall be reduced accordingly, (ii) if at the time that any prepayment pursuant to Section 2.9(c) would be required (the amount of any such prepayment, the βECF Prepayment Amountβ), Pagaya US is required to prepay or offer to prepay or repurchase any Other Applicable Indebtedness with a portion of such ECF Prepayment Amount, then Pagaya US may apply such portion of such ECF Prepayment Amount on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided that the portion of such ECF Prepayment Amount allocated to the Other Applicable Indebtedness shall not exceed the amount of such ECF Prepayment Amount required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof and the remaining amount, if any, of such Net Cash Proceeds shall be allocated to the Term Loans in accordance with Section 2.9(e) below) to the prepayment of the Term Loans and to the repurchase or prepayment of
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66 #97570842v91 Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to Section 2.9(c) shall be reduced accordingly and (iii) to the extent the holders of Other Applicable Indebtedness decline to have such Indebtedness repurchased or prepaid as described in preceding clauses (i) and/or (ii), the declined amount (other than any such amount declined by the Lenders pursuant to Section 2.9(g) below) shall promptly (and in any event within five Business Day after the date of such rejection) be applied to prepay the Term Loans in accordance with Section 2.9(e) below. (e) All prepayments of Term Loans made pursuant to this Section 2.9 shall be applied ratably to each tranche of outstanding Term Loans (unless the Lenders under any such tranche of Term Loans incurred after the Closing Date have elected to be paid on a less than ratable basis). Any mandatory prepayment of Term Loans shall be applied first to reduce outstanding ABR Loans, and any amounts remaining after each such application shall be applied to prepay SOFR Loans in direct order of Interest Period maturities. (f) All prepayments of each tranche of Term Loans shall be applied to the scheduled installments thereof in direct order of maturity (unless a different order of application has been agreed to in respect of any tranche of Term Loans incurred after the Closing Date). (g) Xxxxxx US shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to Sections 2.9(a), (b) and (c) at least two Business Days prior to the date of such prepayment (or such shorter period as may be agreed to by the Administrative Agent in any particular instance). Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each appropriate Lender of the contents of Pagaya USβs prepayment notice and of such appropriate Lenderβs applicable percentage of the prepayment. Each Term Loan Lender may reject all or a portion of its applicable percentage of any mandatory prepayment (such declined amounts, the βDeclined Amountsβ) of Term Loans required to be made pursuant to Section 2.9(b) or (c) by providing written notice (each, a βRejection Noticeβ) to the Administrative Agent and Pagaya US no later than 2:00 p.m. one (1) Business Day prior to the date on which such prepayment is due. Each Rejection Notice from a given Term Loan Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Term Loan Lender. If a Term Loan Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Amounts remaining thereafter shall be retained by Pagaya US. (h) Notwithstanding any provision under this Section 2.9 to the contrary, (i) any amounts that would otherwise be required to be paid by Pagaya US pursuant to Sections 2.9(b) or (c) shall not be required to be so prepaid to the extent of any such Excess Cash Flow that is generated by a Foreign Subsidiary or such Net Cash Proceeds are received by a Foreign Subsidiary, for so long as the repatriation to the United States of any such amounts would be prohibited under any requirement of law or conflict with the fiduciary duties of such Foreign Subsidiaryβs directors, or result in, or could reasonably be expected to result in, a material risk of personal or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (the Borrower agreeing to cause the applicable Foreign Subsidiary to promptly take all commercially reasonable actions required by the applicable local law to permit such repatriation), and once such repatriation, unless the provisions of clause (iii) below are applicable, of any such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable requirement of law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or could reasonably be expected to result in, a material risk of personal
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70 #97570842v91 (ii) the Required Lenders determine that for any reason, in connection with any request for a SOFR Loan or a conversion thereto or a continuation thereof that βAdjusted Term SOFRβ for any requested Interest Period with respect to a proposed SOFR Loan does not adequately and fairly reflect the cost to such Lenders of making and maintaining such Loan, and the Required Lenders have provided notice of such determination to the Administrative Agent, the Administrative Agent will promptly so notify the Administrative Borrower and each Lender. Upon notice thereof by the Administrative Agent to the Administrative Borrower, any obligation of the Lenders to make and any right of the Borrower to continue SOFR Loans or to convert ABR Loans to SOFR Loans shall be suspended (to the extent of the affected SOFR Loans or, in the case of a Term SOFR Borrowing, the affected Interest Periods) until the Administrative Agent (with respect to clause (ii), at the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, (i) the Borrower may revoke any pending request for a borrowing of, conversion to or continuation of SOFR Loans (to the extent of the affected SOFR Loans or, in the case of a Term SOFR Borrowing, the affected Interest Periods) or, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR Loans in the amount specified therein and (ii) any outstanding affected SOFR Loans will be deemed to have been converted into ABR Loans immediately or, in the case of a Term SOFR Borrowing, at the end of the applicable Interest Period. Upon any such conversion, the Borrower shall also pay accrued interest on the amount so converted, together with any additional amounts required pursuant to Section 2.18. Subject to Section 2.14(b), if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that βAdjusted Term SOFRβ cannot be determined pursuant to the definition thereof on any given day, the interest rate on ABR Loans shall be determined by the Administrative Agent without reference to clause (c) of the definition of βABRβ until the Administrative Agent revokes such determination. (b) Benchmark Replacement Setting. (i) Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (a) of the definition of βBenchmark Replacementβ for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and the definition of βAdjusted Term SOFRβ shall be deemed modified to delete the addition of the Term SOFR Adjustment to Term SOFR for any calculation and (y) if a Benchmark Replacement is determined in accordance with clause (b) of the definition of βBenchmark Replacementβ for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 P.M. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the affected Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders. If the Benchmark Replacement is Daily Simple SOFR, all interest payments will be payable on a monthly basis. (ii) Benchmark Replacement Conforming Changes. In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes
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71 #97570842v91 will become effective without any further action or consent of any other party to this Agreement or any other Loan Document other than written notice thereof to the Administrative Borrower pursuant to clause (iii) below (and, in connection with any Conforming Changes, the Lenders hereby (i) authorize and direct the Administrative Agent to make any Conforming Changes (and to enter into any modifications to this Agreement or other Loan Documents implementing such Conforming Changes) that have been consented or agreed to by the Required Lenders, or in respect of which the Administrative Agent has received a direction from the Required Lenders to implement and (ii) acknowledge and agree that the Administrative Agent shall be entitled to all of the exculpations, protections and indemnifications provided for in this Agreement in favor of the Administrative Agent in implementing any Conforming Changes (or in entering into any modifications to this Agreement or the other Loan Documents implementing same) that have been consented or agreed to by the Required Lenders, or in respect of which the Administrative Agent has received a direction from the Required Lenders to implement). (iii) Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Administrative Borrower and the Lenders of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming Changes in connection with the use, administration, adoption or implementation of a Benchmark Replacement. The Administrative Agent will notify the Administrative Borrower of (x) the removal or reinstatement of any tenor of a Benchmark pursuant to Section 2.14(b)(iv) and (y) the commencement of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.14(b), including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.14(b). (iv) Unavailability of Tenor of Benchmark. Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Xxxxxxxxx has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent may modify by providing notice thereof (which may be via email) to the Administrative Borrower and the Lenders) the definition of βInterest Periodβ (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement therefor) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify by providing notice thereof (which may be via email) to the Administrative Borrower and the Lenders) the definition of βInterest Periodβ (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor. (v) Benchmark Unavailability Period. Upon the Administrative Borrowerβs receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any pending request for a SOFR Borrowing of, conversion to or continuation of SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, (i) the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR
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73 #97570842v91 but excluding the date of payment to the Administrative Agent, at (i) in the case of a payment to be made by such Lender, a rate equal to the greater of (A) the Federal Funds Effective Rate and (B) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, and (ii) in the case of a payment to be made by the Borrower, the rate per annum applicable to ABR Loans under the relevant Facility. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable borrowing to the Administrative Agent, then the amount so paid shall constitute such Lenderβs Loan included in such borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent. (e) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Lender hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Lender, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing Lender, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Lender, with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. Nothing in this clause (e) shall be deemed to limit the rights of Administrative Agent or any Lender against any Loan Party. (f) If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Section 2, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable extension of credit set forth in Section 5.1 or Section 5.2 are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest. (g) The obligations of the Lenders hereunder to (i) make Term Loans, (ii) make Revolving Loans, (iii) fund its participations in L/C Disbursements in accordance with its respective L/C Percentage, (iv) fund its respective Swingline Participation Amount of any Swingline Loan, and (vi) make payments pursuant to Section 9.7, as applicable, are several and not joint. The failure of any Lender to make any such Loan or, as applicable, to fund any such participation or to make any such payment under Section 9.7 on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its applicable Loan, to purchase its participations, as applicable, or to make its payment under Section 9.7. (h) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner. (i) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, interest and fees then due hereunder, such funds shall be applied (i) first, toward payment of interest and fees, and Overadvances then due hereunder (with amounts being applied first to fees, second to interest and then to Overadvances), ratably among the parties entitled thereto
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77 #97570842v91 For purposes of this Section 2.17, the term βLenderβ includes the Issuing Lender and the term βapplicable lawβ includes FATCA. (a) Payments Free of Taxes. Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable law, and the Borrower shall, and shall cause each other Loan Party, to comply with the requirements set forth in this Section 2.17. If any applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 2.17) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made. (b) Payment of Other Taxes. The Borrower shall, and the Borrower shall cause each other Loan Party to, timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes applicable to such Loan Party. (c) Evidence of Payments. As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section 2.17, the Borrower shall, or shall cause such other Loan Party to, deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent. (d) Indemnification by Loan Parties. The Borrower shall, and shall cause each other Loan Party to, jointly and severally indemnify each Recipient, within ten (10) days after written demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 2.17) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate setting forth in reasonable detail the amount and calculation of such payment or liability delivered to the Administrative Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. (e) Indemnification by Xxxxxxx. Each Lender shall severally indemnify the Administrative Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Xxxxxxβs failure to comply with the provisions of Section 10.6 relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the
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78 #97570842v91 Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this Section 2.17(e). (f) Status of Lenders. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Administrative Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Sections 2.17(f)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if the Lender is not legally entitled to complete, execute or deliver such documentation or, in the Lenderβs reasonable judgment, such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. (ii) Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Person, (A) any Lender that is a U.S. Person shall deliver to the Administrative Borrower, any U.S. Borrower, and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is not subject to U.S. federal backup withholding tax; (B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Administrative Borrower, any U.S. Borrower, and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable: (1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable (or any successor form) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the βinterestβ article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable (or any successor form) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the βbusiness profitsβ or βother incomeβ article of such tax treaty; (2) executed copies of IRS Form W-8ECI; (3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form
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79 #97570842v91 of Exhibit F-1 to the effect that such Foreign Lender is not a βbankβ within the meaning of Section 881(c)(3)(A) of the Code, a β10 percent shareholderβ of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a βcontrolled foreign corporationβ described in Section 881(c)(3)(C) of the Code (a βU.S. Tax Compliance Certificateβ) and (y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable (or any successor form); or (4) to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable (or any successor form), a U.S. Tax Compliance Certificate substantially in the form of Exhibit F-2 or Exhibit F-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit F-4 on behalf of each such direct and indirect partner; (C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Administrative Borrower, any U.S. Borrower, and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and (D) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Administrative Borrower, any U.S. Borrower, and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the recipient such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Xxxxxx has complied with such Xxxxxxβs obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), βFATCAβ shall include any amendments made to FATCA after the date of this Agreement. (iii) Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the recipients and the Administrative Agent in writing of its legal inability to do so. Each Foreign Lender shall promptly notify the recipients at any time it determines that it is no longer in a position to provide any previously delivered certificate to them (or any other form of certification adopted by the U.S. taxing authorities for such purpose). Notwithstanding any other provision of this paragraph, a Foreign Lender shall not be required to deliver any form pursuant to this paragraph that such Foreign Lender is not legally able to deliver. (g) Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.17 (including by the payment of additional amounts pursuant to this Section 2.17),
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83 #97570842v91 without giving effect to Section 2.21(a)(iv). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto. (iii) Certain Fees. (A) No Defaulting Lender shall be entitled to receive any fee pursuant to Section 2.6(b) for any period during which such Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to such Defaulting Lender). (B) Each Defaulting Lender shall be limited in its right to receive Letter of Credit Fees as provided in Section 3.3(d). (C) With respect to any Letter of Credit Fee not required to be paid to any Defaulting Lender pursuant to clause (A) or (B) above, the Borrower shall (x) pay to each Non- Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lenderβs participation in Letters of Credit or Swingline Loans that has been reallocated to such Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to the Issuing Lender and the Swingline Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to the Issuing Lenderβs or the Swingline Lenderβs Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee. (iv) Reallocation of Pro Rata Share to Reduce Fronting Exposure. During any period in which there is a Defaulting Lender, for purposes of computing the amount of the obligation of each Non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit pursuant to Section 3.4 or in Swingline Loans pursuant to Section 2.4(c), the L/C Percentage of each Non-Defaulting Lender of any such Letter of Credit and the Revolving Percentage of each Non-Defaulting Lender of any such Swingline Loan, as the case may be, shall be computed without giving effect to the Revolving Commitment of such Defaulting Lender; provided that, (A) each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Event of Default has occurred and is continuing; and (B) the aggregate obligations of each Non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit and Swingline Loans shall not exceed the positive difference, if any, of (1) the Revolving Commitment of that Non-Defaulting Lender minus (2) the aggregate outstanding amount of the Revolving Loans of that Lender plus the aggregate Dollar Equivalent amount of that Lenderβs L/C Percentage of then outstanding Letters of Credit, plus the aggregate amount of such Xxxxxxβs pro-rata percentage of the then outstanding Swingline Loans. Subject to Section 10.21, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Xxxxxx having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Xxxxxxβs increased exposure following such reallocation. (v) Cash Collateral, Repayment of Swingline Loans. If the reallocation described in clause (iv) above cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under law, (x) first, prepay Swingline Loans in an amount equal to the Swingline Lenderβs Fronting Exposure and (y) second, Cash Collateralize the Issuing Lenderβs Fronting Exposure in accordance with the procedures set forth in Section 3.10. (b) Defaulting Lender Cure. If the Administrative Borrower, the Administrative Agent, the Swingline Lender and the Issuing Lender agree in writing that a Lender is no longer a Defaulting
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85 #97570842v91 either case, such lesser amount as may be acceptable to the Administrative Agent (acting at the direction of the Required Lenders) or as is equal to all remaining availability under the Maximum Incremental Facilities Amount). (b) Notification by Administrative Agent; Additional Lenders. Any Incremental Facility may, at the option of the Borrower, be provided by existing Lenders or, subject to the approval of the Administrative Agent, each Issuing Lender and the Swingline Lender to the extent that such approvals would otherwise be required pursuant to Section 10.6(b), the Borrower may also invite additional Eligible Assignees to become Lenders pursuant to a joinder agreement in form and substance reasonably satisfactory to the Administrative Agent; provided that, the opportunity to commit to provide all or a portion of any Incremental Term Loans shall be offered by the Borrower first to all existing Term Lenders pursuant to a bona fide offer on a pro rata basis and to the extent that such existing Term Lenders have not agreed to provide such Incremental Term Loans within five (5) Business Days after receiving such offer from the Borrower or the Administrative Agent or any arranger of such Incremental Term Loans on behalf of the Borrower, on the terms specified by the Borrower, the Borrower may then offer such opportunity to other Persons (which may include existing Lenders). For the avoidance of doubt, no existing Lender shall have any obligation to provide any portion of any Incremental Facility. (c) Effective Date and Allocations. If the Facilities are increased in accordance with this Section 2.23 the Administrative Agent and the Borrower shall determine the effective date (the βIncrease Effective Dateβ) and, subject to the proviso contained in Section 2.23(b), the Borrower shall determine the final allocation of such increase. The Borrower shall promptly notify the Administrative Agent (who shall in turn notify the Lenders) of the final allocation of such increase and the Increase Effective Date. (d) Conditions to Effectiveness of Increase. An Incremental Facility shall become effective as of such Increase Effective Date; provided that (i) no Event of Default exists on such Increase Effective Date immediately after giving effect to such Incremental Facility and the making of any Loans pursuant thereto and any transaction consummated in connection therewith (provided that, in the case of Incremental Term Loans incurred to finance a Limited Condition Acquisition, if the Borrower has made an LCA Election, such condition shall be that (x) no Event of Default shall have occurred and be continuing at the LCA Test Date and (y) no Specified Event of Default shall exist as of the respective Increase Effective Date); (ii) any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Facility (including the maturity date in respect thereof) (provided the applicable margin applicable thereto may be increased if necessary to be consistent with that for the Revolving Commitment Increase); (iii) any Additional Revolving Commitments (A) shall rank pari passu in right of payment and security with the Revolving Loans and the Term Loans, (B) shall be secured solely by Collateral, (C) shall not be guaranteed by any entity that is not a Guarantor, (D) shall not mature earlier than (and shall not have any mandatory commitment reduction earlier than) the latest Revolving Termination Date, (E) except as set forth above, shall be on substantially the same terms and pursuant to the same documentation applicable to the Revolving Facility or otherwise reasonably acceptable to the Administrative Agent (acting at the direction of the Required Lenders) (it being understood that terms that are not substantially the same as those applicable to the Revolving Facility but which are applicable only after the then-existing latest Revolving Termination Date, shall be deemed acceptable to the Administrative Agent and the Required Lenders) and (F) the Applicable Margin for the Additional Revolving Commitments shall be determined by the Borrower and the applicable new Lenders; and (iv) any Incremental Term Loans (A) shall rank pari passu in right of payment and pari passu or junior in right of security or shall be unsecured, in each case, as permitted under the Maximum Incremental Facilities Amount, with the Revolving Loans and the other Term Loans, (B) shall be secured solely by Collateral, (C) shall not be guaranteed by any entity that is not a Guarantor, (D) shall not mature earlier than the latest
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86 #97570842v91 Term Loan Maturity Date, (E) shall not have a shorter weighted average life to maturity than the weighted average life to maturity of the Term Loans, (F) the Applicable Margin for the Incremental Term Loans shall be determined by the Borrower and the applicable new Lenders; provided, however, in the event that the Effective Yield for such Incremental Term Loans is greater than the Effective Yield for the Term Loans by more than 0.50%, the Applicable Margin for the Term Loans shall be increased to the extent necessary so that the Effective Yield for such Incremental Term Loans is not more than 0.50% higher than the Effective Yield for the Term Loans, (G) each of the representations and warranties made by each Loan Party in or pursuant to any Loan Document (i) that is qualified by materiality shall be true and correct in all respects, and (ii) that is not qualified by materiality, shall be true and correct in all material respects, in each case, on and as of such Increase Effective Date immediately after giving effect to such Incremental Facility and the making of any Loans pursuant thereto and any transaction consummated in connection therewith as if made on and as of such date, except to the extent any such representation and warranty expressly relates to an earlier date, in which case such representation and warranty shall have been true and correct in all material (or, all respects to the extent already qualified by materiality) respects as of such earlier date (provided that if the Incremental Facility is being incurred in connection with a Limited Condition Acquisition, the references in this clause (H) to each of the representations and warranties shall be deemed to be a reference to customary βspecified representationsβ to the extent required by the providers of such Incremental Facility), (I) the Incremental Term Loans shall otherwise be on terms and pursuant to documentation to be determined by the Borrower, provided that, to the extent such terms and documentation are not consistent with the Term Loan Facility (except to the extent permitted by clauses (i), (iv)(D), (iv)(E) and (iv)(F) above and clause (iv)(I) below), they shall be reasonably satisfactory to the Administrative Agent (at the direction of the Required Lenders) (it being understood (x) to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Loans, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant is also added for the benefit of any corresponding existing Term Loans and (y) that terms that are not consistent with the Term Loan Facility but which are applicable only after the then-existing latest Term Loan Maturity Date, shall be deemed acceptable to the Administrative Agent and the Required Lenders) and (J) subject to clauses (D) and (E) above, the amortization schedule applicable to the Incremental Term Loans shall be determined by the Borrower and the Lenders thereof. (e) Incremental Amendment. (i) Commitments in respect of Incremental Term Loans and Incremental Revolving Increases shall become Commitments for all purposes of this Agreement and (ii) Incremental Term Loans and loans under any Incremental Revolving Increases shall become Loans for all purposes of this Agreement, in each case, pursuant to an amendment or an amendment and restatement (an βIncremental Amendmentβ) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each other Loan Party, each Lender providing such Loans and/or Commitments and the Administrative Agent. The Incremental Amendment may, without the consent of any other Loan Party, the Administrative Agent or any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.23, including, in the case of Additional Revolving Commitments, to permit the Lenders providing such Commitments to participate in the payment, borrowing, participation and commitment reduction provisions herein with any then outstanding Revolving Loans and Revolving Commitments. The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Amendment and any amendment to any of the other Loan Documents with the Loan Parties as may be necessary in order to establish new tranches or sub- tranches in respect of Loans or Commitments increased or extended pursuant to this Section 2.23 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new tranches or sub-tranches (which may include amending and restating the Loan Documents), in each case on terms consistent with this
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87 #97570842v91 Section 2.23, including any changes to Section 2.1(b), modifications to interest rate margins or call protection provisions made for the benefit of the Term Lenders or other modifications necessary or appropriate to ensure such Incremental Term Loans are fungible with Term Loans if such Incremental Term Loans are intended to be of the same class as the Term Loans. (f) On the date of the making of any Incremental Term Loan that will be of the same class as the Term Loans, and notwithstanding anything to the contrary set forth in Section 2.12, such Incremental Term Loan shall be added to (and constitute a part of and be of the same Type as and have, if applicable, the same Interest Period as) each borrowing of outstanding Term Loans on a pro rata basis (based on the relative sizes of such borrowings), so that each Lender providing such Incremental Term Loans will participate proportionately in each then outstanding borrowing of Term Loans. (g) On the Increase Effective Date of any Revolving Commitment Increase, the Borrower shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Revolving Lenders, and incur additional Revolving Loans from certain other Revolving Lenders, in each case, to the extent necessary so that all of the Revolving Lenders (including those providing Revolving Commitment Increases) participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Revolving Commitments (after giving effect to such Revolving Commitment Increase) and with the Borrower being obligated to pay to the respective Revolving Lenders any costs of the type referred to in Section 3.5 in connection with any such repayment and/or borrowing. (h) Conflicting Provisions. This Section 2.23 shall supersede any provisions in Section 2.15 or 10.1 to the contrary. 2.24 Several Obligations of the Borrowers. (a) The respective obligations of the Borrowers hereunder are several and not joint. References herein to βObligations of the Borrowersβ or similar words of import are used solely for administrative convenience and are not intended to create liability that is joint and several. (b) Each Borrower hereby agrees that, after the occurrence and during the continuance of any Default or Event of Default, the payment of any amounts due with respect to the indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Borrower will not demand, sue for or otherwise attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee for the Administrative Agent, and such Borrower shall deliver any such amounts to the Administrative Agent for application to the Obligations in accordance with Section 8.3. (c) Each entity composing the Borrower and each other Loan Party hereby irrevocably appoints Pagaya Technologies Ltd. as the borrowing agent and attorney-in-fact for all entities composing the Borrower (the βAdministrative Borrowerβ), which appointment shall remain in full force and effect unless and until the Administrative Agent shall have received prior written notice signed by each entity composing the Borrower that such appointment has been revoked and that another entity composing the Borrower has been appointed Administrative Borrower. Each entity composing the Borrower hereby irrevocably appoints and authorizes the Administrative Borrower (a) to provide the Administrative Agent with all notices with respect to Loans and Letters of Credit obtained for the benefit of any entity composing the Borrower and all other notices and instructions under this Agreement and the other Loan Documents,
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105 #97570842v91 Loan proceeds on the Closing Date, have been paid in full and (C) subject to Section 5.3(b), evidence reasonably satisfactory to the Required Lenders, in their reasonable discretion, that all Liens created in connection with the Existing SVB Credit Facility were terminated and released. (g) Collateral Matters. (i) Lien Searches. The Lenders shall have received the results of recent lien, judgment and litigation searches in each of the jurisdictions reasonably required by the Required Lenders, and such searches shall reveal no liens on any of the assets of the Loan Parties except for Liens permitted by Section 7.3, or Liens to be discharged on or prior to the Closing Date. (ii) Pledged Stock; Stock Powers; Pledged Notes. Other than as agreed to by the Required Lenders in their reasonable discretion or as subject to Section 5.3 below, the Administrative Agent shall have received (A) the certificates representing the shares of Capital Stock pledged to the Administrative Agent (for the benefit of the Secured Parties) pursuant to the Guarantee and Collateral Agreement and the Debentures, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof, and (B) each promissory note (if any) pledged to the Administrative Agent (for the benefit of the Secured Parties) pursuant to the Guarantee and Collateral Agreement and the Debentures, endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof. (iii) Filings, Registrations, Recordings, Agreements, Etc. Subject to the provisions of Section 5.3, each document or instrument (including any UCC financing statements, notices in connection with the Debentures, the Intellectual Property Security Agreement and the Control Agreements) required by the Security Documents to be filed, registered or recorded to create in favor of the Administrative Agent (for the benefit of the Secured Parties), a perfected (to the extent perfection is required under the Loan Documents) Lien on the Collateral described therein, prior and superior in right and priority to any Lien in the Collateral held by any other Person (other than with respect to Liens expressly permitted by Section 7.3), shall have been executed and/or delivered (if applicable) to the Administrative Agent or, as applicable, be in proper form for filing, registration or recordation. (i) Insurance Certificates. The Administrative Agent and the Lenders shall have received customary certificates of insurance reasonably satisfactory to the Required Lenders evidencing the existence of insurance required to be maintained pursuant to Section 6.6. (h) Fees. The Lenders and the Administrative Agent shall have received all fees required to be paid on or prior to the Closing Date (including pursuant to the Fee Letters), and all reasonable and documented fees and expenses for which invoices have been presented (including the reasonable and documented fees and expenses of legal counsel to the Administrative Agent) for payment three (3) Business Days (or such later date as may be agreed by the Borrower) before the Closing Date. The Administrative Agent shall have received a fully executed copy of the Agent Fee Letter. (i) Legal Opinions. The Administrative Agent and the Lenders shall have received the executed legal opinions of (i) Xxxxx Xxxx & Xxxxxxxx LLP, New York counsel to the Loan Parties, (ii) Xxxxxxxx Xxxxx Xxxxxxxx, Israeli counsel to the Loan Parties and (iii) Xxxxxx, Xxxxxxx, Arsht & Xxxxxxx LLP, Delaware counsel to the Loan Parties, in each case, in form and substance reasonably satisfactory to the Required Lenders. (j) Borrowing Notices. The Administrative Agent shall have received, (i) in respect of the Term Loans to be made on the Closing Date, a completed Notice of Borrowing executed by Xxxxxx
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114 #97570842v91 (b) With respect to any fee interest in any real property (i) having a fair market value (together with improvements thereof) of at least $5,000,000 and (ii) is not identified by the Federal Emergency Management Agency (or any successor agency) as a special flood hazard area with respect to which flood insurance has been made available under the Flood Insurance Laws acquired after the Closing Date by any Loan Party (other than any such real property subject to a Lien expressly permitted by Section 7.3(i) or any such real property obtained by a Loan Party in connection with an exercise of remedies under an Investment held by such Loan Party), promptly (and in any event within ninety (90) days (or such longer time period as the Administrative Agent (at the direction of the Required Lenders) may agree in its sole discretion)) after such acquisition, to the extent requested by the Administrative Agent (at the direction of the Required Lenders), (i) execute and deliver a first priority Mortgage, subject to Liens permitted by Section 7.3, in favor of the Administrative Agent, for the benefit of the Secured Parties, covering such real property, it being understood that if a mortgage tax or similar charge will be owed on the entire amount of Indebtedness secured herby, then the amount secured by such Mortgage shall be limited to no more than the fair market value of the property as reasonably specified by the Borrower, (ii) if requested by the Administrative Agent (at the direction of the Required Lenders), provide the Lenders with title and extended coverage insurance covering such real property in an amount no more than the fair market value of the property as shall be reasonably specified by the Borrower as well as a current ALTA survey thereof, if available, together with a surveyorβs certificate, each of the foregoing in form and substance reasonably satisfactory to the Administrative Agent (at the direction of the Required Lenders) and (iii) if requested by the Administrative Agent (at the direction of the Required Lenders), deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent (at the direction of the Required Lenders). Notwithstanding the foregoing, no real property will be pledged as Collateral until the Lenders have had a reasonable opportunity to review and confirm compliance with applicable Flood Insurance Laws. As of the Closing Date, no real property is pledged as Collateral. (c) With respect to any new direct or indirect Subsidiary (other than an Excluded Subsidiary or SPV Subsidiary) created or acquired after the Closing Date by any Loan Party (including pursuant to a Permitted Acquisition), any Subsidiary formed by a Division or if an Excluded Subsidiary ceases to qualify as an Excluded Subsidiary, promptly (and in any event within sixty (60) days) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement and, in the case of any such Group Member incorporated or organized in Israel, the Debentures as the Administrative Agent (at the direction of the Required Lenders) reasonably deems necessary or advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such Subsidiary that is owned directly by such Loan Party, (ii) deliver to the Administrative Agent such documents and instruments as may be required to grant, perfect, protect and ensure the priority of such security interest, including but not limited to, the certificates representing such Capital Stock (if applicable), together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such Subsidiary (A) to become a party to the Guarantee and Collateral Agreement and, in the case of any such Group Member incorporated or organized in Israel, the Debentures, (B) to take such actions as are necessary or advisable in the opinion of the Administrative Agent (at the direction of the Required Lenders) to grant to the Administrative Agent for the benefit of the Secured Parties a perfected first priority security interest in the Collateral described in the Guarantee and Collateral Agreement and, if applicable, the Debentures, with respect to such Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement and, if applicable, the Debentures or by law or as may be reasonably requested by the Administrative Agent (at the direction of the Required Lenders) and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, in a form reasonably satisfactory to the Administrative Agent (at the direction of the Required Lenders), with appropriate insertions and
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115 #97570842v91 attachments, and (iv) if requested by the Administrative Agent (at the direction of the Required Lenders), deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent (at the direction of the Required Lenders); it being agreed that if such Subsidiary is formed by a Division, the foregoing requirements shall be satisfied substantially concurrently with the formation of such Subsidiary. Notwithstanding anything to the contrary in this Agreement or in the Loan Documents, neither Borrower nor any Subsidiary shall have any obligation to perfect Liens in any Intellectual Property created, registered or applied-for in any jurisdiction other than the United States or Israel, in any case, to the extent that such Intellectual Property is not material to the business of the Loan Parties (or as otherwise agreed to by the Administrative Agent (at the direction of the Required Lenders) in its reasonable discretion). (d) With respect to any new Excluded Foreign Subsidiary, promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement and, if applicable, the Debentures, as the Administrative Agent (at the direction of the Required Lenders) deems necessary or advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such new Excluded Foreign Subsidiary that is a CFC or CFC Holding Company that is directly owned by any such Loan Party (provided that in no event shall more than 66% of the total outstanding voting Capital Stock of any such new Excluded Foreign Subsidiary that is a CFC or CFC Holding Company be required to be so pledged; provided further that no Capital Stock (or other ownership or profit interests) of an SPV Subsidiary shall be required to be pledged) and (ii) deliver to the Administrative Agent the certificates representing such Capital Stock (if certificated), together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, and take such other action (including, as applicable, the delivery of any foreign law pledge documents reasonably requested by the Administrative Agent (at the direction of the Required Lenders)) as may be necessary or, in the opinion of the Administrative Agent (at the direction of the Required Lenders), desirable to perfect the Administrative Agentβs security interest therein, and (iii) if reasonably requested by the Administrative Agent (at the direction of the Required Lenders), deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent (at the direction of the Required Lenders). (e) Notwithstanding the foregoing, (i) in the case of Foreign Subsidiaries, all guarantees and security shall be subject to any applicable general mandatory statutory limitations, fraudulent preference, financial assistance, equitable subordination, foreign exchange laws or regulations (or analogous restrictions), transfer pricing or βthin capitalizationβ rules, earnings stripping, exchange control restrictions, applicable maintenance of capital, retention of title claims, employee consultation or approval requirements, corporate benefit, financial assistance, protection of liquidity, and similar laws, rules and regulations and customary guarantee limitation language in the relevant jurisdiction, (ii) Foreign Subsidiaries may be excluded from the guarantee requirements in circumstances where (1) the Administrative Borrower and the Administrative Agent (at the direction of the Required Lenders) reasonably agree that the cost or other consequence of providing such a guarantee is excessive in relation to the value afforded thereby or (2) such requirements would contravene any legal prohibition, would reasonably be expected to result in any violation or breach of, or conflict with, fiduciary duties, any Contractual Obligations or applicable Requirement of Law or result in a risk of personal or criminal liability on the part of any officer, director, member or manager of such Subsidiary. As a result of the limitations in clause (i) above, the Administrative Agent (at the direction of the Required Lenders) may elect to waive the requirement to cause a Group Member to become a Guarantor hereunder and such Group Member shall not be a Loan Party for any purposes hereof.
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117 #97570842v91 June 30, 2025 2.75:1.00 September 30, 2025 2.50:1.00 December 31, 2025 2.25:1.00 March 31, 2026 and each fiscal quarter of the Borrower thereafter 2.00:1.00 (b) Fixed Charge Coverage Ratio. On the last day of any Test Period ending on or after the last day of the fiscal quarter ending on June 30, 2024, the Borrower shall not permit the Fixed Charge Coverage Ratio to be less than the ratio set forth below for such Test Period: Test Period Ending Minimum Fixed Charge Coverage Ratio June 30, 2024 1.00:1.00 September 30, 2024 1.00:1.00 December 31, 2024 1.25:1.00 March 31, 2025 1.25:1.00 June 30, 2025 1.25:1.00 September 30, 2025 1.50:1.00 December 31, 2025 1.50:1.00 March 31, 2026 and each fiscal quarter of the Borrower thereafter 1.60:1.00 (c) Equity Cure. Notwithstanding anything to the contrary in this Agreement (including Section 8), the Borrower shall have the right (the βCure Rightβ) at any time during any fiscal quarter or thereafter until the date that is 10 Business Days after the date on which financial statements for such fiscal quarter are required to be delivered pursuant to Section 6.1(a) or, for the first three fiscal quarters of each fiscal year, (b), as applicable, to issue Permitted Equity for cash or Cash Equivalents or otherwise receive cash or Cash Equivalent contributions in respect of Permitted Equity (the βCure Amountβ), and thereupon the Borrowerβs compliance with Sections 7.1(a) and (b) shall be recalculated by increasing Consolidated Adjusted EBITDA (notwithstanding the absence of a related addback in the definition of βConsolidated Adjusted EBITDAβ), solely for the purpose of determining compliance with Sections 7.1(a) and (b) as of the end of such fiscal quarter and for applicable subsequent periods that include such fiscal quarter, by an amount equal to the Cure Amount. If, after giving effect to the foregoing recalculation (but not, for the avoidance of doubt, except as expressly set forth below, taking into account any immediate repayment of Indebtedness in connection therewith), the requirements of Sections 7.1(a) and (b) would be satisfied, then the requirements of Sections 7.1(a) and (b) shall be deemed satisfied as of the end of the relevant fiscal quarter with the same effect as though there had been no failure to comply therewith at such
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118 #97570842v91 date, and the applicable breach or default of Sections 7.1(a) or (b) that had occurred (or would have occurred) shall be deemed cured for the purposes of this Agreement. Notwithstanding anything herein to the contrary, (i) the Cure Right shall not be exercised in consecutive fiscal quarters, (ii) during the term of this Agreement, the Cure Right shall not be exercised more than five times, (iii) the Cure Amount shall be no greater than the amount required for the purpose of complying with Sections 7.1(a) and (b), (iv) upon the Administrative Agentβs receipt of a written notice from the Borrower that the Borrower intends to exercise the Cure Right (a βNotice of Intent to Cureβ), until the 10th Business Day following the date on which financial statements for the fiscal quarter to which such Notice of Intent to Cure relates are required to be delivered pursuant to Section 6.1(a) or, for the first three fiscal quarters of each fiscal year, (b), as applicable, neither the Administrative Agent (nor any sub-agent therefor) nor any Lender shall exercise any right to accelerate the Loans or terminate the Revolving Commitments and none of the Administrative Agent (nor any sub-agent therefor) nor any Lender or Secured Party shall exercise any right to foreclose on or take possession of the Collateral or any other right or remedy under the Loan Documents, in each case solely on the basis of the relevant Event of Default under Sections 7.1(a) or (b), (v) during any Test Period in which any Cure Amount is included in the calculation of Consolidated Adjusted EBITDA as a result of any exercise of the Cure Right, such Cure Amount shall be (A) counted solely as an increase to Consolidated Adjusted EBITDA (and not as a reduction of any other Indebtedness (by netting or otherwise), except that, for any fiscal quarter after the fiscal quarter in which the Cure Right is exercised, any portion of the Cure Amount that is actually applied to repay Indebtedness may be taken into account as a reduction of such Indebtedness so repaid) for the purpose of determining compliance with Sections 7.1(a) and (b) and (B) disregarded for all other purposes, including the purpose of determining whether any financial ratio-based condition has been satisfied or the availability of any carve-out set forth in Section 7 of this Agreement and (vi) no Revolving Lender or Issuing Lender shall be required to make any Revolving Loan or issue any Letter of Credit hereunder if an Event of Default under Sections 7.1(a) or (b) exists during the 10 Business Day period during which the Borrower may exercise a Cure Right above unless and until the Cure Amount is actually received. (d) Tangible Book Value. On the last day of any Test Period ending on or after the last day of the fiscal quarter ending on March 31, 2024, the Borrower shall not permit the TBV Ratio to be less than the ratio set forth below for any such Test Period: Fiscal Quarter Ending Minimum TBV Ratio March 31, 2024 1.50:1.00 June 30, 2024 1.50:1.00 September 30, 2024 1.50:1.00 December 31, 2024 1.50:1.00 March 31, 2025 1.50:1.00 June 30, 2025 1.50:1.00 September 30, 2025 2.00:1.00 December 31, 2025 2.00:1.00
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120 #97570842v91 provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business and Indebtedness arising out of advances on exports, advances on imports, advances on trade receivables, customer prepayments and similar transactions in the ordinary course of business and consistent with past practice; (g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services in the ordinary course of business; (h) Indebtedness of a Group Member acquired after the Closing Date or a Person merged into or consolidated with any Group Member after the Closing Date and Indebtedness assumed in connection with the acquisition of assets, which Indebtedness, in each case, exists at the time of such acquisition, merger or consolidation and is not created in contemplation of such event and where such acquisition, merger or consolidation is permitted by this Agreement; provided that the aggregate principal amount of such Indebtedness at the time of, and after giving effect to, such acquisition, merger or consolidation or such assumption, as applicable (together with all other Indebtedness outstanding pursuant to Section 7.2(i) and the Remaining Present Value of outstanding leases permitted under Section 7.11), would not exceed $10,000,000; (i) Finance Lease Obligations, mortgage financings and purchase money Indebtedness incurred any Group Member prior to or within 270 days after the acquisition, lease or improvement of the respective asset permitted under this Agreement in order to finance such acquisition or improvement, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof (together with all other Indebtedness outstanding pursuant to Section 7.2(h) and the Remaining Present Value of leases permitted under Section 7.11) would not exceed $10,000,000; (j) Finance Lease Obligations incurred by any Group Member in respect of any Sale Leaseback Transaction that is permitted under Section 7.11. (k) [reserved]; (l) Guarantee Obligations (i) by the Loan Parties of Permitted Refinancing Indebtedness (ii) by any Loan Party of any Indebtedness of the Borrower or any Loan Party expressly permitted to be incurred under this Agreement, (iii) by any Group Member of Indebtedness otherwise expressly permitted hereunder of any Group Member that is not a Loan Party to the extent permitted by Section 7.7, and (iv) by any Group Member that is not a Loan Party of Indebtedness of another Group Member; (m) Indebtedness arising from agreements of any Group Member providing for indemnification, adjustment of purchase price, earn outs, Permitted Seller Debt, Earn-Out Obligations, deferred compensation, or other arrangements representing acquisition consideration or deferred payments of a similar nature or similar obligations and any DP Amount and Accrued DP Interest, in each case, incurred or assumed in connection with the acquisition or disposition of any business, assets or a Group Member, other than Guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Group Member for the purpose of financing such acquisition, in an aggregate amount at any time outstanding pursuant to this Section 7.2(m) not in excess of $10,000,000; (n) [reserved];
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122 #97570842v91 (a) Liens on property or assets of the Group Members existing on the Closing Date and set forth on Schedule 7.3 and Liens in connection with a Permitted Refinancing Indebtedness secured by such property or assets arising after the Closing Date on any property or asset that substitutes or replaces the property or asset that is the subject of Liens existing on the Closing Date and set forth on Schedule 7.3; (b) any Lien created under the Loan Documents; (c) any Lien on any property or asset of any Group Member; provided that (i) such Lien does not apply to any other property or assets of the Group Members not securing such Indebtedness at the date of the acquisition of such property or asset (other than after-acquired property subjected to a Lien securing Indebtedness and other obligations incurred prior to such date and which Indebtedness and other obligations are permitted hereunder that require a pledge of after-acquired property, it being understood that such requirement shall not be permitted to apply to any property to which such requirement would not have applied but for such acquisition), (ii) such Lien is not created in contemplation of or in connection with such acquisition and (iii) in the case of a Lien securing a Permitted Refinancing Indebtedness, such Lien is permitted in accordance with the definition thereof; (d) Liens for Taxes, assessments or other governmental charges or levies not yet delinquent or that are being contested in compliance with Section 6.4; (e) Liens imposed by law (including, without limitation, Liens in favor of customers for equipment under order or in respect of advances paid in connection therewith but excluding any Lien imposed by ERISA) such as landlordβs, carriersβ, warehousemenβs, mechanicsβ, materialmenβs, repairmenβs, construction or other like Liens arising in the ordinary course of business and securing obligations that are not overdue by more than 60 days or that are being contested in good faith by appropriate proceedings and in respect of which, if applicable, the Borrower or any other Group Member shall have set aside on its books reserves in accordance with GAAP; (f) (i) pledges and deposits made in the ordinary course of business in compliance with the Federal Employers Liability Act or any other workersβ compensation, unemployment insurance and other social security laws or regulations under U.S. or foreign law and deposits securing liability to insurance carriers under insurance or self-insurance arrangements in respect of such obligations and (ii) pledges and deposits securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit, bankersβ acceptances or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to any Group Member; (g) deposits or Liens to secure the performance of bids, trade contracts (other than for Indebtedness), leases (other than Finance Lease Obligations), bankersβ guarantees or acceptances (other than to support an obligation constituting Indebtedness), statutory obligations, surety and appeal bonds, performance and return of money bonds, warranty bonds, bids, leases, trade contracts, government contracts, completion or performance guarantees and other obligations of a like nature incurred in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business; (h) zoning restrictions, easements, trackage rights, leases (other than Finance Lease Obligations), licenses, special assessments, rights-of-way, restrictions on use of real property and other similar encumbrances incurred in the ordinary course of business that do not render title unmarketable and that, in the aggregate, do not interfere in any material respect with the ordinary conduct of the business of the Group Members or would not reasonably be expected to result in a Material Adverse Effect;
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123 #97570842v91 (i) purchase money security interests in equipment or other property or improvements thereto hereafter acquired (or, in the case of improvements, constructed) by any Group Member (including the interests of vendors and lessors under conditional sale and title retention agreements); provided that (i) such security interests secure Indebtedness permitted by Section 7.2(i) (including any Permitted Refinancing Indebtedness in respect thereof), (ii) such security interests are incurred, and the Indebtedness secured thereby is created, within 270 days after such acquisition (or construction), (iii) the Indebtedness secured thereby does not exceed 100% of the cost of such equipment or other property or improvements at the time of such acquisition (or construction), including transaction costs incurred by any Group Member in connection with such acquisition (or construction) and (iv) such security interests do not apply to any other property or assets of any Group Member (other than to accessions to such equipment or other property or improvements); provided further that individual financings of equipment provided by a single lender may be cross-collateralized to other financings of equipment provided solely by such lender; (j) Liens arising out of finance lease transactions permitted under Section 7.11, so long as such Liens attach only to the property sold and being leased in such transaction and any accessions thereto or proceeds thereof and related property; (k) Liens securing judgments that do not constitute an Event of Default under Section 8.1(h); (l) Liens with respect to property or assets of any Group Member with an aggregate fair market value (valued at the time of creation thereof) of not more than $5,000,000; provided that Liens permitted by this Section 7.3(l) shall not secure Indebtedness; (m) Liens disclosed by the title insurance policies (that were not granted in contemplation of this Agreement) and any replacement, extension or renewal of any such Lien; provided that such replacement, extension or renewal Lien shall not cover any property other than the property that was subject to such Lien prior to such replacement, extension or renewal; provided further that the Indebtedness and other obligations secured by such replacement, extension or renewal Lien are permitted by this Agreement; (n) Liens securing obligations permitted under Section 7.2(p); (o) any interest or title of, or Liens created by, a lessor under any leases or subleases entered into by any Group Member, as tenant, in the ordinary course of business; (p) Liens that are contractual rights of set-off (i) relating to the establishment of depository relations with banks not given in connection with the incurrence of Indebtedness, (ii) relating to pooled deposit or sweep accounts of any Group Member to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Group Members or (iii) relating to purchase orders and other agreements entered into with customers of any Group Member in the ordinary course of business; (q) Liens arising solely by virtue of any statutory or common law provision relating to bankerβs liens, rights of set-off or similar rights; (r) Liens securing obligations in respect of trade-related letters of credit permitted under Section 7.3(f) and covering the goods (or the documents of title in respect of such goods) financed by such letters of credit and the proceeds and products thereof;
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124 #97570842v91 (s) [reserved]; (t) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods; (u) [reserved]; (v) Liens upon specific items of inventory or other goods and proceeds of the Group Members securing such Personβs obligations in respect of bankersβ acceptances or guarantee issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods; (w) Liens solely on any xxxx xxxxxxx money deposits or other accounts in connection with any acquisition or Investment not otherwise prohibited or to secure any other obligation arising in the ordinary course of business; (x) Liens arising from precautionary Uniform Commercial Code financing statement filings entered into by any Group Member in the ordinary course of business, including (i) operating leases or consignment or bailee arrangements entered into in the ordinary course of business and (ii) the sale of receivables in the ordinary course of business for which a UCC financing statement or similar financing statement under applicable Requirements of Law is required; (y) Liens on insurance policies and proceeds thereof, or other deposits, to secure insurance premium financing arrangements in the ordinary course of business so long as any Indebtedness so secured shall not be in excess of the amount of the unpaid cost of such insurance and any related interest costs; (z) Liens on the Collateral securing obligations in respect of cash management obligations and Swap Obligations and related transactions in the ordinary course of business; (aa) [reserved]; (bb) [reserved]; (cc) Liens securing obligations in respect of Permitted Refinancing Indebtedness (to the extent the Indebtedness being refinanced by such Permitted Refinancing Indebtedness was permitted to be secured pursuant to Loan Documents); (dd) [reserved]; (ee) Liens constituting cash collateral securing Indebtedness permitted under Section 7.2(o); provided that, the aggregate amount of cash collateral securing such Indebtedness shall not exceed 103% of the aggregate face amount of the letters of credit, bankersβ acceptances and bank guarantees issued and outstanding at such time pursuant to Section 7.2(o); (ff) [reserved]; (gg) [reserved];
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126 #97570842v91 (c) Dispositions permitted by Sections 7.4(b)(i)(A) and (b)(ii)(A); (d) the sale or issuance of the Capital Stock of a Subsidiary of Pagaya Parent (i) to the Borrower or any other Loan Party, or (ii) by a Group Member that is not a Loan Party to another Group Member that is not a Loan Party or (iii) in connection with any transaction that does not result in a Change of Control; (e) the use or transfer of money, cash or Cash Equivalents in a manner that is not prohibited by the terms of this Agreement or the other Loan Documents; (f) the (i) non-exclusive licensing of patents, trademarks, copyrights, and other Intellectual Property rights in the ordinary course of business and (ii) licensing of patents, trademarks, copyrights, and other Intellectual Property rights customary for companies of similar size and in the same industry as Borrower which would not result in a legal transfer of title of such licensed Intellectual Property, but that may be exclusive in respects other than territory and that may be exclusive as to territory only as to discrete geographical areas outside of the United States or Israel; (g) the Disposition of property (i) from any Loan Party to any other Loan Party, (ii) from any Loan Party to any other Group Member that is not a Loan Party; provided that, in respect of clause (ii), (x)(A) such Disposition is for fair market value and the aggregate amount of all such Dispositions does not exceed $5,000,000 or (B) such Disposition shall be treated as an Investment and made in compliance with Section 7.7 and (y) such property is not Material Intellectual Property or the Capital Stock of any Group Member, and (iii) from any Group Member (which is not a Loan Party) to any other Group Member; (h) Dispositions of property subject to a Casualty Event; (i) leases or subleases of real property; (j) the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof. (k) Dispositions of other property having a book value not to exceed $10,000,000 in the aggregate for any fiscal year of the Borrower so long as, at the time of any such Disposition, no Event of Default shall have occurred and be continuing or would result from such Disposition; (l) any abandonment, cancellation, non-renewal or discontinuance of use or maintenance of Intellectual Property (or rights relating thereto) of any Group Member that the Borrower determines in good faith is desirable in the conduct of its business, not materially disadvantageous to the interests of the Lenders and would not reasonably be expected to have a Material Adverse Effect; (m) Restricted Payments permitted by Section 7.6, Investments permitted by Section 7.7 and Liens permitted by Section 7.3; (n) Dispositions of Financing Assets to any Person in connection with any Investment permitted under Section 7.7 or otherwise in the ordinary course of business, in each case, in which the terms thereof in favor of a Loan Party shall be made in good faith on an armβs length basis for fair value (as determined by the Borrower in good faith on such date);
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128 #97570842v91 (c) each Group Member may repurchase, redeem or otherwise acquire or retire (or make dividends or distributions to Pagaya Parent to finance any such repurchase, redemption or other acquisition or retirement) for value any Capital Stock of Pagaya Parent or any Subsidiary held by any current or former officer, director, consultant or employee of Pagaya Parent or any Subsidiary pursuant to any equity subscription agreement, equity grant agreement, stock option agreement, shareholdersβ, membersβ or partnership agreement or similar agreement, plan or arrangement and Group Members may declare and pay dividends to the Borrower or any other Group Member the proceeds of which are used for such purpose so long as (x) no Event of Default shall have occurred and is continuing or would result therefrom, (y) the Borrower would, on a Pro Forma Basis giving effect thereto as if such Restricted Payment had been made at the beginning of the Test Period most recently-ended, be in compliance with the financial covenants set forth in Section 7.1 and (z) such repurchase, redemption or other acquisition or retirement is made in the ordinary course of business consistent with past practice; provided that the aggregate amount of such purchases, redemptions, acquisitions or retirements (other than in connection with facilitating employee tax events relating to vesting and distribution of incentive compensation) under this Section 7.6(c) shall not exceed in any fiscal year $10,000,000 (plus the amount of net proceeds (x) received by the Borrower during such fiscal year from sales of Qualified Equity Interests of Pagaya Parent to directors, consultants, officers or employees of any Group Member in connection with permitted employee compensation and incentive arrangements, in each case to the extent Not Otherwise Applied, and (y) of any key-man life insurance policies recorded during such fiscal year), which, if not used in any year, may be carried forward to the next subsequent fiscal year, with such unused basket only available to be used once the current yearβs capacity for such Restricted Payments under this Section 7.6(c) has been exhausted; (d) non-cash repurchases of Capital Stock deemed to occur upon exercise of stock options or warrants if such Capital Stock represent a portion of the exercise price of such options or warrants, including repurchases of Capital Stock deemed to occur upon the withholding of a portion of the Capital Stock granted or awarded to a current or former officer, director, employee or consultant to pay for the Taxes payable by such Person upon such grant or award (or upon vesting thereof); (e) (x) payments by any SPV Subsidiary to holders of Permitted Secured Financings or ownership interests of such SPV Subsidiary pursuant to the terms of such Permitted Secured Financing or (y) Restricted Payments to the holders of any Permitted Risk Retention Facility, the Borrower or any wholly owned Group Member of the Borrower, in the case of this clause (y) to the extent not prohibited by Section 7.21; (f) the Borrower may declare and pay Restricted Payments in an aggregate amount of up to 6.0% per calendar year of the net cash proceeds, in excess of $50,000,000 since the Closing Date, received by or contributed to the Borrower from any public offering of the Qualified Equity Interests of Pagaya Parent (or any direct or indirect parent thereof, to the extent such proceeds have been contributed as common equity to the capital of Pagaya Parent), in each case to the extent Not Otherwise Applied; provided that (i) no Default or Event of Default shall have occurred and is continuing or would result therefrom and (ii) the Borrower would, on a Pro Forma Basis giving effect thereto as if such Restricted Payment had been made at the beginning of the Test Period most recently-ended, be in compliance with the financial covenants set forth in Section 7.1; (g) the Borrower may declare and pay other Restricted Payments in an aggregate amount not to exceed the Available Amount; provided that, (i) no Default or Event of Default shall have occurred and is continuing or would result therefrom and (ii) with respect to the use of clause (a) of the Available Amount, (x) on a Pro Forma Basis giving effect thereto as if such Restricted Payment had been made at the beginning of the Test Period most recently-ended, the Consolidated First Lien Leverage Ratio is less than 2.00:1.00 and (y) the Borrower would, on a Pro Forma Basis giving effect thereto as if such
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130 #97570842v91 thereof) and (ii) advances of payroll payments and expenses to employees in the ordinary course of business and Investments in Group Members to fund payroll payments in the ordinary course of business; (e) accounts receivable arising and trade credit granted in the ordinary course of business and any securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business; (f) Swap Agreements that are not entered into for purposes of speculation; (g) Investments existing on the Closing Date and set forth on Schedule 7.7; (h) Investments resulting from pledges and deposits made to secure the performance of leases, licenses or contracts in the ordinary course of business, and other deposits made in connection with the incurrence of Liens permitted under Section 7.3; (i) Investments by any Group Member in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write downs or write offs thereof) not to exceed the portion, if any, of the Available Amount on the date of such election that the Borrower elects to apply to this Section 7.7(i); provided that, (I) no Specified Event of Default shall have occurred and is continuing or would result therefrom and (II) with respect to the use of clause (a) of the Available Amount so long as, determined at the time such Investment is proposed to be made, (x) on a Pro Forma Basis giving effect thereto as if such Investment had been made at the beginning of the Test Period most recently-ended, the Consolidated First Lien Leverage Ratio is less than 2.50:1.00 and (y) the Borrower would, on a Pro Forma Basis giving effect thereto as if such Investment had been made at the beginning of the Test Period most recently-ended, be in compliance with the financial covenants set forth in Section 7.1; (j) Investments constituting Permitted Acquisitions; (k) Investments by any Group Member so long as (i) on a Pro Forma Basis giving effect thereto as if such Investment had been made at the beginning of the Test Period most recently-ended, the Consolidated First Lien Leverage Ratio is less than 2.50:1.00, (ii) no Event of Default shall have occurred and is continuing or would result therefrom, (iii) the Borrower would, on a Pro Forma Basis giving effect thereto as if such Investment had been made at the beginning of the Test Period most recently-ended, be in compliance with the financial covenants set forth in Section 7.1 and (iv) any such Investments by Loan Parties in Group Members that are not Loan Parties, together with Indebtedness of Group Members that are not Loan Parties owing to any Loan Party pursuant to Section 7.2(e) and any Investments by Loan Parties in Group Members that are not Loan Parties pursuant to Section 7.7(a)(A) or Section 7.7(l), not to exceed in the aggregate, an amount equal to $10,000,000 (plus any return of capital actually received by the respective investors in respect of Investments previously made by them pursuant to this Section 7.7(k), Section 7.7(a)(A) or Section 7.7(l)); (l) Investments in an aggregate amount at any time outstanding not to exceed $60,000,000 so long as no Event of Default shall have occurred and is continuing or would result therefrom and any such Investments by Loan Parties in Group Members that are not Loan Parties, together with Indebtedness of Group Members that are not Loan Parties owing to any Loan Party pursuant to Section 7.2(e) and any Investments by Loan Parties in Group Members that are not Loan Parties pursuant to Section 7.7(a)(A) or Section 7.7(k), not to exceed in the aggregate, an amount equal to $10,000,000 (plus any return of capital actually received by the respective investors in respect of Investments previously made by them pursuant to this Section 7.7(l), Section 7.7(a)(A) or Section 7.7(k));
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131 #97570842v91 (m) (i) Investments arising as a result of Permitted Secured Financings or Permitted Risk Retention Facilities, in each case, including repurchases of assets pursuant to repurchase agreements in respect thereof and (ii) so long as no Event of Default shall have occurred and is continuing or would result therefrom, Investments made with Financing Assets in Group Members or SPV Subsidiaries in connection with Permitted Risk Retention Facilities or Permitted Secured Financings (including, for the avoidance of doubt, Investments made by any Loan Party in any Group Member, so long as the proceeds of such Investment are solely and substantially contemporaneously used to purchase Financing Assets in connection with a Permitted Secured Financing); (n) [reserved]; (o) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business; (p) Investments of a Group Member acquired after the Closing Date or of a Person merged into the Borrower or merged into or consolidated with another Group Member in accordance with Section 7.4 after the Closing Date to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation and any modification, replacement, renewal or extension of any such Investment so long as no such modification, replacement, renewal or extension thereof increases the amount of such Investment except as otherwise permitted by this Section 7.7; (q) [reserved]; (r) Guarantee Obligations permitted by Section 7.2; (s) [reserved]; (t) Investments arising out of purchases of all remaining outstanding asset-backed securities of any SPV Subsidiary consistent with the terms of the related Permitted Secured Financing; (u) Investments by any Group Member in the form of loans extended to non-Affiliated borrowers in connection with any loan origination business of the Group Members in the ordinary course of business; (v) [reserved]; (w) so long as no Event of Default shall have occurred and is continuing or would result therefrom, Investments in Financing Assets in the ordinary course of business; (x) endorsements of negotiable instruments and documents in the ordinary course of business; (y) Investments in respect of accounts receivable, trade credit or advances to customers in the ordinary course of business; (z) [reserved]; (aa) [reserved];
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136 #97570842v91 of the Secured Parties, and together with their respective successors and assigns) will be deemed to be a third-party beneficiary of the applicable Risk Retention Payment Deferral Provisions as implemented in each applicable Specified Risk Retention Financing and will be permitted to enforce such provisions as against the applicable beneficiaries in its own name, all on terms reasonably satisfactory to the Administrative Agent (acting at the direction of the Required Lenders) (it being understood that the form of guaranty with respect to Specified Risk Retention Financings agreed to prior to the Closing Date among the Administrative Borrower, the Administrative Agent and the Lenders shall be deemed satisfactory); provided that the Risk Retention Payment Deferral Provisions may provide that: (i) for the avoidance of doubt, Permitted RR Payments and any payments βin kindβ made during an Event of Default by adding the amount thereof to the principal amount owed under such Specified Risk Retention Financing shall be permitted during a Payment Deferral Period; and (ii) in determining whether an Event of Default exists and is continuing for the purpose of any Risk Retention Payment Deferral Provision, any amendment following the effectiveness of the applicable Risk Retention Payment Deferral Provisions to any Loan Document that adds an express prohibition on payment of the applicable obligations under an applicable Specified Risk Retention Financing shall be disregarded (solely in respect of such Specified Risk Retention Financing) unless otherwise agreed to by one or more of the other parties to such Specified Risk Retention Financing. (c) Once effective, the Risk Retention Payment Deferral Provisions may not be amended, modified or waived without the consent of the Required Lenders. No financing documents relating to any Specified Risk Retention Financing may be amended, modified or waived, without the consent of the Required Lenders, (i) to add additional collateral or expand the types of collateral securing the guaranteed obligations or (ii) in a manner that is materially adverse to the Secured Parties. (d) Upon the occurrence and at any time during the continuation of any Event of Default, the Administrative Agent (at the direction of the Required Lenders) may deliver (i) a written notice to the Applicable RR Person and the applicable Loan Party guarantor notifying them that a Payment Deferral Period has commenced and specifying which category of Event of Default, as set forth in the definition of Payment Deferral Period Outside Date, has given rise to such Payment Deferral Period and/or (ii) if applicable, a notice of control to the applicable Account Bank under the applicable Control Agreement governing the applicable Guaranty Account and thereupon control over such Guaranty Account will be shifted to the Administrative Agent and any sweeps to the applicable certificate account from such Guaranty Account will cease. Upon the cure or waiver in accordance with this Agreement of any Event of Default that triggered a Payment Deferral Period, the Administrative Agent shall, and is hereby directed by the Lenders to, promptly deliver written notice to such Applicable RR Person (i) that the Event of Default that triggered the Payment Deferral Period has been cured or waived and (ii) confirming that as a result of such waiver or cure, the applicable Payment Deferral Period (but not any other Payment Deferral Period that may then be in effect) has ended (whereupon, in the case of this clause (ii), such Payment Deferral Period (but not any other Payment Deferral Period that may then be in effect) shall end in accordance with the procedures set forth in the applicable Specified Risk Retention Financing. Upon the occurrence of the Payment Deferral Outside Date with respect to any Payment Deferral Period, the Administrative Agent shall, and is hereby directed by the Lenders to, (i) promptly deliver written notice to such Applicable RR Person that the Payment Deferral Outside Date with respect to such Payment Deferral Period has occurred (whereupon the applicable Payment Deferral Period (but for the avoidance of doubt not any other Payment Deferral Period that may then be in effect) shall end in accordance with the procedures set forth in the applicable Specified Risk Retention Financing and (ii) if applicable, substantially concurrently with the
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138 #97570842v91 furnished by it at any time under or in connection with this Agreement or any such other Loan Document shall be incorrect or misleading in any material respect when made or deemed made and, to the extent capable of being cured, shall remain untrue for a period of 30 days after being made or deemed made; or (c) (i) any Loan Party shall default in the observance or performance of any agreement contained in Section 5.3, Section 6.5 (as it applies to the preservation of the existence of the Borrower), Section 6.8(a), Section 6.13 or Section 7; provided that, notwithstanding this clause (c), it is understood and agreed that any breach of (x) Section 7.1(f), shall continue unremedied for 60 days after the end of the relevant fiscal quarter and (y) Sections 7.1(a) or (b) is subject to cure as provided in Section 7.1(c), and no Event of Default shall arise under Sections 7.1(a) or (b) until the 10th Business Day after the day on which financial statements are required to be delivered for the relevant Fiscal Quarter under Section 6.1(a) or (b), as applicable, and then only to the extent the Cure Amount has not been received on or prior to such date or (ii) any Loan Party shall default in the performance of Section 6.1, Section 6.2(a)(ii), Section 6.2(b) or Section 6.2(f) and such default shall continue unremedied for a period of five (5) Business Days from a Responsible Officer of the Borrower having knowledge thereof; or (d) any Loan Party shall default in the observance or performance of any other agreement contained in this Agreement or any other Loan Document (other than as provided in paragraphs (a) through (c) of this Section), and such default shall continue unremedied for a period of thirty (30) days from a Responsible Officer of the Borrower having knowledge thereof; or (e) any Group Member or SPV Subsidiary shall (i) default in making any payment of any principal of any Indebtedness (including, without limitation, any Indebtedness under any Permitted Risk Retention Facility and any Guarantee Obligation (including, without limitation, relating to any Permitted Risk Retention Facility), but excluding the Loans) on the scheduled or original due date with respect thereto (taking into account all applicable extension or grace periods); (ii) default in making any payment of any interest, fees, costs or expenses on any such Indebtedness (other than the Loans) beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; (iii) default in making any payment or delivery under any such Indebtedness (other than the Loans) constituting a Swap Agreement beyond the period of grace, if any, provided in such Swap Agreement; or (iv) default in the observance or performance of any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist), in each case beyond the applicable notice period and grace period, if any, the effect of which default or other event or condition is to (1) cause, or to permit the holder or beneficiary of, or, in the case of any such Indebtedness constituting a Swap Agreement, counterparty under, such Indebtedness (or a trustee or agent on behalf of such holder, beneficiary, or counterparty) to cause, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity or (in the case of any such Indebtedness constituting a Guarantee Obligation) to become payable or (in the case of any such Indebtedness constituting a Swap Agreement) to be terminated, or (2) to cause, with the giving of notice if required and beyond any grace period, any Group Member or other SPV Subsidiary to purchase, redeem, mandatorily prepay or make an offer to purchase, redeem or mandatorily prepay such Indebtedness prior to its stated maturity (provided that this clause (iv) shall not apply to (x) secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property securing such Indebtedness if such sale or transfer is permitted hereunder or (y) any redemption, repurchase, conversion, exchange or settlement with respect to any debt securities or other Indebtedness, the terms of which provide for conversion into, or exchange for, Capital Stock, cash in lieu thereof or a combination of Equity Interests and cash pursuant to its terms unless such redemption, repurchase, conversion, exchange or settlement results from an event of default thereunder beyond the applicable notice period and grace period, if any); provided that, a default, event or condition described in clauses (i), (ii), (iii), or (iv) of this Section 8.1(e) shall not at any time constitute an Event of Default unless, at such time, one or more defaults, events or
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139 #97570842v91 conditions of the type described in any of clauses (i), (ii), (iii), or (iv) of this Section 8.1(e) shall have occurred with respect to Indebtedness, the outstanding principal amount (and, in the case of Swap Agreements, other than Specified Swap Agreements, the Swap Termination Value) of which, individually or in the aggregate for all such Indebtedness, exceeds the Threshold Amount. (f) (i) any Group Member (other than an Immaterial Subsidiary) or other SPV Subsidiary shall commence any case, proceeding or other action (a) under any Debtor Relief Law seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (b) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or any Group Member (other than an Immaterial Subsidiary) or other SPV Subsidiary shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against any Group Member (other than an Immaterial Subsidiary) or other SPV Subsidiary any case, proceeding or other action of a nature referred to in clause (i) above that (x) results in the entry of an order for relief or any such adjudication or appointment or (y) remains undismissed, undischarged or unbonded for a period of sixty (60) days (provided that, during such sixty (60) day period, no Loan shall be advanced or Letters of Credit issued hereunder); or (iii) there shall be commenced against any Group Member (other than an Immaterial Subsidiary) or other SPV Subsidiary any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets that results in the entry of an order for any such relief that shall not have been vacated, discharged, or stayed or bonded pending appeal within sixty (60) days from the entry thereof (provided that, during such sixty (60) day period, no Loan shall be advanced or Letters of Credit issued hereunder); or (iv) any Group Member (other than an Immaterial Subsidiary) or other SPV Subsidiary shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; or (g) there shall occur one or more ERISA Events which individually or in the aggregate results in or could reasonably be expected to result in a Material Adverse Effect; or (h) there is entered against any Group Member (other than an Immaterial Subsidiary) or other SPV Subsidiary (i) one or more final judgments or orders for the payment of money involving in the aggregate a liability (to the extent not paid or covered by insurance as to which the relevant insurance company has not denied coverage) in excess of the Threshold Amount, or (ii) one or more non-monetary final judgments that have, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) all such judgments or decrees shall not have been paid, vacated, discharged, stayed or bonded pending appeal within sixty (60) days from the entry thereof; or (i) any of the Security Documents (other than those set forth in clause (b) of the definition thereof) shall cease, for any reason, to be in full force and effect, or any Loan Party shall so assert in writing, or any Lien created by any of the Security Documents shall cease to be enforceable and of the same effect and priority purported to be created thereby (other than (x) pursuant to the terms thereof, (y) due to the gross negligence, willful misconduct or bad faith of any Secured Party, as determined in a final and nonappealable judgment by a court of competent jurisdiction or (z) except in the case of Collateral consisting of real property to the extent such losses are covered by a lenderβs title insurance policy and such insurer has not denied coverage); or (j) the guarantee contained in Section 2 of the Guarantee and Collateral Agreement shall cease, for any reason, to be in full force and effect (except as otherwise permitted pursuant to the terms of the Loan Documents) or any Loan Party shall so assert; or
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142 #97570842v91 Fifth, to payment of that portion of the Obligations constituting unpaid principal of the Loans, L/C Disbursements which have not yet been converted into Revolving Loans, and settlement amounts, payment amounts and other termination payment obligations under any Specified Swap Agreements and Specified Cash Management Agreements, in each case, ratably among the Lenders, any applicable Cash Management Bank (in its respective capacity as a provider of such Cash Management Services), and any applicable Qualified Counterparties, in each case, ratably among them in proportion to the respective amounts described in this clause Fifth and payable to them; Sixth, to the Administrative Agent for the account of the Issuing Lender, to Cash Collateralize that portion of the L/C Exposure comprised of the aggregate undrawn Dollar Equivalent amount of Letters of Credit pursuant to Section 3.10; Seventh, for the account of any applicable Qualified Counterparty and any applicable Cash Management Bank, to any settlement amounts, payment amounts and other termination payment obligations under any Specified Swap Agreements and Specified Cash Management Agreements not paid pursuant to clause Fifth and to Cash Collateralize Obligations arising under any then outstanding Specified Swap Agreements and Specified Cash Management Agreements, in each case, ratably among them in proportion to the respective amounts described in this clause Seventh payable to them; Eighth, to the payment of all other Obligations of the Loan Parties that are then due and payable to the Administrative Agent and the other Secured Parties on such date, in each case, ratably among them in proportion to the respective aggregate amounts of all such Obligations described in this clause Eight and payable to them; and Last, the balance, if any, after the Discharge of Obligations, to the Borrower or as otherwise required by applicable law. Subject to Sections 2.21(a), 3.4, 3.5 and 3.10, amounts used to Cash Collateralize the aggregate undrawn Dollar Equivalent amount of Letters of Credit pursuant to clause Sixth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral for Letters of Credit after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above. Notwithstanding the foregoing, no Excluded Swap Obligation of any Guarantor shall be paid with amounts received from such Guarantor or from any Collateral in which such Guarantor has granted to the Administrative Agent a Lien (for the benefit of the Secured Parties) pursuant to the Guarantee and Collateral Agreement and the Debentures; provided, however, that each party to this Agreement hereby acknowledges and agrees that appropriate adjustments shall be made by the Administrative Agent (which adjustments shall be controlling in the absence of manifest error) with respect to payments received from other Loan Parties to preserve the allocation of such payments to the satisfaction of the Obligations in the order otherwise contemplated in this Section 8.3. Notwithstanding the foregoing, Obligations arising under Specified Cash Management Agreements or Specified Swap Agreements shall be excluded from the application of payments described above if the Administrative Agent has not received written notice thereof, together with such supporting documentation as the Administrative Agent may reasonably request, from the applicable Qualified Counterparty or Cash Management Bank, as the case may be. Each Qualified Counterparty or Cash Management Bank not a party to this Agreement that has given the notice contemplated by the preceding sentence shall, by such notice,
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150 #97570842v91 any Person that owns or is the exclusive licensee of any Material Intellectual Property or (z) own any Capital Stock of any Loan Party and (3) both immediately before and immediately after such transaction, no Specified Event of Default has occurred and is continuing. Notwithstanding the foregoing, except as expressly set forth in Section 9.11(a)(i)(A) or (D), in no event shall this Section 9.10 require the Administrative Agent to release (i) the Liens securing the Obligations on any Material Intellectual Property or the Capital Stock of any Person that owns any Material Intellectual Property or (ii) any Guarantor from its obligations if such Guarantor owns any Material Intellectual Property or any Capital Stock of any Person that owns any Material Intellectual Property. Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agentβs authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the guaranty pursuant to this Section 9.10. In each case as specified in this Section 9.10, the Administrative Agent will, at the Borrowerβs expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request (and in form and substance reasonably satisfactory to the Administrative Agent (at the direction of the Required Lenders)) to evidence the release of such item of Collateral from the assignment and security interest granted under the applicable Loan Documents or to subordinate its interest in such item, or to release such Guarantor from its obligations under the Loan Documents, in each case in accordance with this Section 9.10; provided that the Borrower shall have in each case delivered to the Administrative Agent a certificate of the Borrower certifying that the release of such Guarantor or release or subordination of such Lien on Collateral, as applicable, is in compliance with the Loan Documents (and the Secured Parties hereby authorize the Administrative Agent to rely on such certificate in performing its obligations under this Section 9.10). (b) The Administrative Agent shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Administrative Agentβs Lien thereon, or any certificate prepared by any Loan Party in connection therewith, nor shall the Administrative Agent be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral. (c) Notwithstanding anything contained in any Loan Document, no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce any guaranty of the Obligations (including any such guaranty provided by the Guarantors pursuant to the Guarantee and Collateral Agreement), it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms thereof; provided that, in no event shall a Secured Party be restricted hereunder from filing a proof of claim on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law or any other judicial proceeding. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or other disposition, the Administrative Agent or any Secured Party may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, and the Administrative Agent, as agent for and representative of such Secured Party (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent on behalf of the Secured Parties at such sale or other disposition. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the guarantees of the Obligations provided by the Loan Parties under the Guarantee and Collateral Agreement and the Debentures, to have agreed to the foregoing provisions. In furtherance of the
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153 #97570842v91 distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender, Issuing Lender, Swingline Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case: (i) in the case of immediately preceding clauses (x) or (y), an error shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error has been made (in the case of immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and (ii) such Lender, Issuing Lender, Swingline Lender or Secured Party shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one (1) Business Day of its knowledge of such error) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.14(b). (c) Each Lender, Issuing Lender, Swingline Lender or Secured Party hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender, Issuing Lender, Swingline Lender or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender, Issuing Lender, Swingline Lender or Secured Party under any Loan Document with respect to any payment of principal, interest, fees or other amounts, against any amount that the Administrative Agent has demanded to be returned under the preceding clause (a) or under the indemnification provisions of this Agreement. (d) The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights and interests of such Payment Recipient (and, in the case of any Payment Recipient who has received funds on behalf of a Lender, to the rights and interests of such Lender, as the case may be) under the Loan Documents with respect to such amount (the βErroneous Payment Subrogation Rightsβ) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; provided that this Section 9.14 shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower relative to the amount (or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent; provided, further, that for the avoidance of doubt, the immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower for the purpose of making such Erroneous Payment. (e) Notwithstanding anything to the contrary contained herein, and for the avoidance of doubt, in no event shall the occurrence of an Erroneous Payment (or any Erroneous Payment Subrogation Rights or other rights of the Administrative Agent in respect of an Erroneous Payment) result in the Administrative Agent becoming, or being deemed to be, a Lender hereunder or the holder of any Loans hereunder.
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155 #97570842v91 Agreement, without the written consent of all Lenders; (G) amend, modify or waive the pro rata requirements of Section 2.15 or any other provision of the Loan Documents requiring pro rata treatment of the Lenders in a manner that adversely affects any Lender without the written consent of each such Lender, (H) amend or modify the application of payments set forth in Section 8.3 without the written consent of each affected Lender or (I) amend or modify the financial covenant set forth in Section 7.1(e) in a manner that is materially adverse to the Lenders without the written consent of each affected Lender; provided that (x) no such waiver and no such amendment shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Lender, L/C Lender or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, such Issuing Lender, such L/C Lender or such Swingline Lender, as the case may be, and, to the extent such amendment affects the Lenders, the Required Lenders and (y) only the consent of the parties to the Agent Fee Letter shall be required to amend, modify, waive or supplement the terms thereof. Any such waiver and any such amendment, supplement or modification shall apply equally to each of the Lenders and shall be binding upon the Loan Parties, the Lenders, the Administrative Agent, the Issuing Lender, each Cash Management Bank, each Qualified Counterparty, and all future holders of the Loans. In the case of any waiver, the Loan Parties, the Lenders and the Administrative Agent shall be restored to their former position and rights hereunder and under the other Loan Documents, and any Default or Event of Default waived shall be deemed to be cured during the period such waiver is effective; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon. Notwithstanding the foregoing, the Issuing Lender may amend any of the L/C Related Documents without the consent of the Administrative Agent or any other Lender and the Issuing Lender, Administrative Agent and the Borrower may make customary technical amendments if any Letter of Credit shall be issued hereunder in a currency other than U.S. Dollars. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Revolving Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the consent of such Defaulting Lender. Notwithstanding anything in this Agreement or any other Loan Document to the contrary, any amendment or waiver that by its terms affects the rights or duties of Lenders holding Term Loans or Commitments of a particular class (but not the Lenders holding Term Loans or Commitments of any other class) will require only the requisite percentage in interest of the affected class of Lenders that would be required to consent thereto if such class of Lenders were the only class of Lenders. (b) Notwithstanding anything to the contrary contained in Section 10.1(a) above, in the event that the Borrower requests that this Agreement or any of the other Loan Documents be amended or otherwise modified in a manner which would require the consent of all of the Lenders or all of the affected Lenders (in each case, including on a class basis) and such amendment or other modification is agreed to by the Borrower, the Required Lenders (or the Required Lenders of an applicable class) and the Administrative Agent, then, with the consent of the Administrative Borrower, the Administrative Agent and the Required Lenders, this Agreement or such other Loan Document may be amended without the consent of the Lender or Lenders who are unwilling to agree to such amendment or other modification (each, a βMinority Lenderβ), to provide for: (i) the termination of the Commitment of each such Minority Lender; (ii) the assumption of the Loans and Commitment of each such Minority Lender by one or more Replacement Lenders pursuant to the provisions of Section 2.20; and
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156 #97570842v91 (iii) the payment of all interest, fees (including premium) and other obligations payable or accrued in favor of each Minority Lender and such other modifications to this Agreement or to such Loan Documents as the Administrative Borrower, the Administrative Agent and the Required Lenders may determine to be appropriate in connection therewith. (c) Notwithstanding any provision herein to the contrary, any Specified Cash Management Agreement and any Specified Swap Agreement may be amended or otherwise modified by the parties thereto in accordance with the terms thereof without the consent of the Administrative Agent or any Lender. (d) Notwithstanding any provision herein or in any other Loan Document to the contrary, no Cash Management Bank and no Qualified Counterparty shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of Cash Management Services or Specified Swap Agreements or Obligations owing thereunder, nor shall the consent of any such Cash Management Bank or Qualified Counterparty, as applicable, be required for any matter, other than in their capacities as Lenders, to the extent applicable. (e) Notwithstanding any other provision, no consent of any Lender (or other Secured Party other than the Administrative Agent) shall be required to effectuate any amendment to implement any Incremental Facility permitted by Section 2.23, any Extension permitted by Section 2.25 or as contemplated by Section 7.13. (f) If the Administrative Agent and the Borrower have jointly identified any ambiguity, mistake, defect, inconsistency, obvious error or any error or omission of a technical or administrative nature or any necessary or desirable technical change, in each case, in any provision of any Loan Document, then the Administrative Agent (at the direction of the Required Lenders) and the Borrower shall be permitted to amend such provision solely to address such matter as reasonably determined by them acting jointly without the input or consent of any other Lender, (g) Notwithstanding the foregoing, this Agreement may be amended: (i) with the written consent of the Borrower and the Lenders providing the relevant Replacement Term Loans to permit the refinancing or replacement of all or any portion of the outstanding Term Loans under any applicable class (any such loans being refinanced or replaced, the βReplaced Term Loansβ) with one or more replacement term loans hereunder (βReplacement Term Loansβ) pursuant to a Refinancing Amendment; provided that: (A) the aggregate principal amount of any Replacement Term Loans shall not exceed the aggregate principal amount of the Replaced Term Loans (plus any additional amounts permitted to be incurred under Section 7.2 and, to the extent any such additional amounts are secured, the related Liens are permitted under Section 7.3 plus the amount of accrued interest, penalties and premium (including any tender premium) thereon, any committed but undrawn amount and underwriting discounts, fees (including upfront fees, original issue discount or initial yield payments), commissions and expenses associated therewith), (B) any Replacement Term Loans must have a final maturity date that is equal to or later than the final maturity date of, and have a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Replaced Term Loans at the time of the relevant refinancing,
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158 #97570842v91 Borrower: Pagaya Technologies Ltd. 00 Xxxx Xxxxxx Xxx Xxxx, XX 00000 Attention: Xxxxxxx Xxxxxxxxx E-Mail: xxxxxxx.xxxxxxxxx@xxxxxx.xxx with a copy (which shall not constitute notice) to: Xxxxx Xxxx & Xxxxxxxx LLP 000 Xxxxxxxxx Xxx Xxx Xxxx, XX 00000 Attention: Xxxxx Xxxxxxx and Xxxx Xxx E-Mail: xxxxx.xxxxxxx@xxxxxxxxx.xxx xxxx.xxx@xxxxxxxxx.xxx Administrative Agent: Acquiom Agency Services LLC 000 00xx Xxxxxx, Xxxxx 0000 Xxxxxx, XX 00000 Attention: Xxxxxxxx Xxxxxxxx/Loan Agency Team Email: xxxxxxxxxx@xxxxxxxxxx.xxx with a copy (that shall not constitute notice) to: Xxxxxx & Xxxxxx Xxxx Xxxxxxx LLP 000 Xxxx 00xx Xxxxxx Xxx Xxxx, XX 00000-0000 Attention: Xxxx Xxxxxx Telephone: 000-000-0000 Email: xxxx.xxxxxx@xxxxxxxxxxxx.xxx provided that any notice, request or demand to or upon the Administrative Agent or the Lenders shall not be effective until received. (a) Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communications (including email and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices to any Lender pursuant to Section 2 unless otherwise agreed by the Administrative Agent and the applicable Lender. The Administrative Agent or any Loan Party may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications. Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an email address shall be deemed received upon the senderβs receipt of an acknowledgment from the intended recipient (such as by the βreturn receipt requestedβ function, as available, return email or other written acknowledgment); and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its email address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the
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159 #97570842v91 website address therefor; provided that, for both clauses (i) and (ii), if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient. (b) Any party hereto may change its address or facsimile number for notices and other communications hereunder by notice to the other parties hereto. (c) (i) Each Loan Party agrees that (x) the Administrative Agent may, but shall not be obligated to, make the Communications (as defined below) available to the Issuing Lender and the other Lenders by posting the Communications on the Platform and (y) certain of the Lenders (each, a βPublic Lenderβ) may have personnel who do not wish to receive material non-public information (within the meaning of United States federal and state securities laws) and who may be engaged in investment and other market-related activities with respect to such Personsβ securities. The Borrower hereby agrees that it will identify that portion of the Communications that may be distributed to the Public Lenders and that (w) all such Communications shall be clearly and conspicuously marked βPUBLICβ which, at a minimum, shall mean that the word βPUBLICβ shall appear prominently on the first page thereof; (x) by marking Communications βPUBLIC,β the Borrower shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Communications as not containing any material non-public information (although it may be sensitive and proprietary) (provided, however, that to the extent such Communications constitute non-public information, they shall be treated as set forth in Section 10.17); (y) all Communications marked βPUBLICβ are permitted to be made available through a portion of the Platform designated βPublic Side Informationβ; and (z) prior to distributing any Communications that contain material non-public information (i.e., not marked βPUBLICβ), the Borrower will notify each Public Lender that such information constitutes material non-public information and will not distribute such materials to the Administrative Agent to be distributed on the Platform without the consent of all Public Lenders or directly to any Public Lender without the consent of such Lender. The Administrative Agent shall be entitled to treat any Communications that are not marked βPUBLICβ as being suitable only for posting on a portion of the Platform not designated βPublic Side Informationβ. Notwithstanding the foregoing, the Borrower shall be under no obligation to mark any Communications βPUBLICβ; provided, however, that the following Communications shall be deemed to be marked βPUBLICβ unless the Borrower notifies the Administrative Agent promptly that any such document contains material non-public information: (1) the Loan Documents and (2) all information delivered pursuant to Section 6.01(a) and (b). (ii) The Platform is provided βas isβ and βas available.β The Agent Parties (as defined below) do not warrant the adequacy of the Platform and expressly disclaim liability for errors or omissions in the Communications. No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or the Platform. In no event shall the Administrative Agent or any of its Related Parties (collectively, the βAgent Partiesβ) have any liability to the Borrower or the other Loan Parties, any Lender or any other Person or entity for damages of any kind, including direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of the Borrowerβs, any Loan Partyβs or the Administrative Agentβs transmission of communications through the Platform. βCommunicationsβ means, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of any Loan Party pursuant to any Loan Document or the transactions contemplated therein which is distributed to the Administrative Agent, any Lender or the Issuing Lender by means of electronic communications pursuant to this Section, including through the Platform.
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161 #97570842v91 expenses (including the reasonable and documented, out-of-pocket fees, charges and disbursements of any counsel for any Indemnitee (to be limited to a single counsel for the Administrative Agent and its Related Parties, taken as a whole, and a single counsel for the Lenders taken as a whole, and if applicable, of a single local counsel to the Administrative Agent and its Related Parties, taken as a whole, in each relevant jurisdiction (which may include a single special counsel acting in multiple other jurisdictions), and a single local counsel to the Lenders taken as a whole in each relevant jurisdiction (which may include a single special counsel acting in multiple other jurisdictions) and of such other counsel retained with the prior written consent of the Administrative Borrower (such consent not to be unreasonably withheld or delayed) and of such other counsel retained by a Lender or a group of Lenders in the event of any actual or perceived conflict for the matters covered thereby), incurred by any Indemnitee or asserted against any Indemnitee by any Person (including the Borrower or any other Loan Party) other than such Indemnitee and its Related Parties arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the Issuing Lender to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Materials of Environmental Concern on or from any property owned or operated by the Group Members, or any Environmental Liability related in any way to the Group Members, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the bad faith (other than in the case of the Administrative Agent and its Related Parties), gross negligence or willful misconduct of such Indemnitee, (y) other than in the case of the Administrative Agent and its Related Parties, result from a claim brought by the Borrower or any other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee's obligations hereunder or under any other Loan Document, if the Borrower or such Loan Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction or (z) result from a claim not involving an act or omission of the Borrower in violation of the Loan Documents that is brought by an Indemnitee against another Indemnitee (other than claims against the Administrative Agent in its capacity as such). This Section 10.5(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim. (c) Reimbursement by Xxxxxxx. To the extent that the Borrower for any reason fails indefeasibly to pay any amount required under paragraph (a) or (b) of this Section to be paid by it to the Administrative Agent (or any sub-agent thereof), the Issuing Lender, the Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), the Issuing Lender, the Swingline Lender or such Related Party, as the case may be, such Lenderβs Aggregate Exposure Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought (or, if such unreimbursed expense or indemnity payment is sought after the date upon which the Commitments shall have terminated and the Loans shall have been paid in full, determined as of immediately prior to the date on which the Loans were paid in full and the Commitments were terminated)) 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), the Issuing Lender or the Swingline Lender in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent
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163 #97570842v91 Commitment and the Loans at the time owing to it); provided that (in each case with respect to any Facility) any such assignment shall be subject to the following conditions: (i) Minimum Amounts. (A) in the case of an assignment of the entire remaining amount of the assigning Xxxxxxβs Commitment and/or the Loans at the time owing to it (in each case with respect to any Facility) or contemporaneous assignments to related Approved Funds (determined after giving effect to such assignments) that equal at least the amount specified in paragraph (b)(i)(B) of this Section in the aggregate or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and (B) in any case not described in paragraph (b)(i)(A) of this Section, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the applicable Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if βTrade Dateβ is specified in the Assignment and Assumption, as of the Trade Date) shall not be less than $5,000,000, in the case of Revolving Loans and Revolving Commitments, and $1,000,000, in the case of Term Loans, unless each of the Administrative Agent and, so long as no Default or Event of Default has occurred and is continuing, the Administrative Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed). (ii) Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Xxxxxxβs rights and obligations under this Agreement with respect to the Loan or the Commitment assigned, except that this clause (ii) shall not prohibit any Lender from assigning all or a portion of its rights and obligations among separate Facilities on a non-pro rata basis. Notwithstanding the foregoing or anything herein to the contrary, the L/C Facility is a sublimit of the Revolving Facility and the commitments and obligations in respect of the Revolving Facility and the L/C Facility shall be assigned on a pro rata basis with each other. (iii) Required Consents. No consent shall be required for any assignment except to the extent required by paragraph (b)(i)(B) of this Section and, in addition: (A) the consent of the Administrative Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (x) a Specified Event of Default has occurred and is continuing at the time of such assignment, or (y) such assignment is to a Lender or, in the case of Term Loans, an Affiliate of a Lender or an Approved Fund; provided that the Administrative Borrower shall be deemed to have consented to any such assignment of Term Loans unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof; and (B) the consent of (i) the Administrative Agent and (ii) except in the case of Term Loans, the Issuing Lender and the Swingline Lender (in each case, such consent not to be unreasonably withheld or delayed, or, for so long as VNB is an Issuing Lender and/or Swingline Lender, in VNBβs sole discretion) shall be required for assignments if such assignment is to a Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender. (iv) Assignment and Assumption. The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and
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164 #97570842v91 recordation fee of $3,500; provided that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment and which fee shall not apply for any assignment to an Affiliated Lender. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire, any tax forms required by Section 2.17(f) and any documentation and other information required by regulatory authorities under applicable βknow your customerβ and anti- money laundering rules and regulations, including, without limitation, the USA Patriot Act, reasonably requested by the Administrative Agent. (v) No Assignment to Certain Persons. No such assignment shall be made to (A) in the case of Revolving Loans or Revolving Commitments, the Borrower or any of the Borrowerβs Subsidiaries, (B) any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B), (C) any Excluded Lender or (D) any Affiliate of the Loan Parties. (vi) No Assignment to Natural Persons. No such assignment shall be made to a natural Person (or a holding company, investment vehicle or trust established for, or owned and operated for the primary benefit of, a natural Person). (vii) Certain Additional Payments. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Administrative Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, the Issuing Lender, the Swingline Lender and each other Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swingline Loans in accordance with its Revolving Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs. Subject to acceptance and recording thereof by the Administrative Agent pursuant to paragraph (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lenderβs rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 2.16, 2.17, 2.18 and 10.5 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Xxxxxxβs having been a Defaulting Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (d) of this Section.
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[Signature Page to Credit Agreement] 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. BORROWER: PAGAYA TECHNOLOGIES LTD. By: Name: Xxx Xxxxxxxx Title: Chief Executive Officer By: Name: Xxxx Xxxx Title: Chief Operating Officer PAGAYA US HOLDING COMPANY LLC By: Name: Xxx Xxxxxxxx Title: Chief Executive Officer By: Name: Xxxx Xxxx Title: Chief Operating Officer DocuSign Envelope ID: 2D5E8A91-FEF7-4758-9A2F-2F6DA8587536
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[Signature Page to Credit Agreement] 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. BORROWER: PAGAYA TECHNOLOGIES LTD. By: Name: Xxx Xxxxxxxx Title: Chief Executive Officer By: Name: Xxxx Xxxx Title: Chief Operating Officer PAGAYA US HOLDING COMPANY LLC By: Name: Xxx Xxxxxxxx Title: Chief Executive Officer By: Name: Xxxx Xxxx Title: Chief Operating Officer DocuSign Envelope ID: 2D5E8A91-FEF7-4758-9A2F-2F6DA8587536
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Signature Page to Credit Agreement ADMINISTRATIVE AGENT: ACQUIOM AGENCY SERVICES LLC By: Name: Title: Xxxxxxxx Xxxxxxxx Senior Director
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[Signature Page to Credit Agreement] VALLEY NATIONAL BANK, as a Lender By: Name: Xxxxxx Xxxxx Title: Senior Vice President
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[Signature Page to Credit Agreement] JEFFERIES FINANCE LLC, as a Lender By: Name: Xxxx Xxxxxxx Title: Managing Director