Ares Commercial Real Estate Corp (Form: 8-K, Received: 11/15/2021 06:32:08)

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

_____________________________________________________________________

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

Date of report (Date of earliest event reported): November 12, 2021

ARES COMMERCIAL REAL ESTATE CORPORATION

(Exact Name of Registrant as Specified in Charter)

Maryland

001-35517

45-3148087

(State or Other Jurisdiction
of Incorporation)

(Commission
File Number)

(IRS Employer
Identification No.)

245 Park Avenue,

42nd Floor,

New York,

10167

(Address of Principal Executive Offices)

(Zip Code)

Registrant’s telephone number, including area code (212) 750-7300

(Former Name or Former Address, if Changed Since Last Report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

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


Title of each class	Trading Symbol(s)	Name of each exchange on which registered
Common Stock, $0.01 par value per share	ACRE	New York Stock Exchange

Indicate by check mark whether the registrant is an emerging growth company as defined in as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).


Emerging growth company			☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. o

Item 1.01 Entry into a Material Definitive Agreement.

Term Loan Credit Agreement

On November 12, 2021 (the “TL Closing Date”), Ares Commercial Real Estate Corporation (the “Company”), as borrower, and ACRC Holdings LLC, ACRC Mezz Holdings LLC and ACRC Warehouse Holdings LLC, wholly-owned subsidiaries of the Company, as guarantors (collectively, the “Guarantors”), entered into an Amended & Restated Credit and Guaranty Agreement (the “A&R Term Loan Agreement”) with the lenders referred to therein (the “Lenders”) and Cortland Capital Market Services LLC, as the administrative agent and collateral agent for the Lenders (the “Collateral Agent”), which amends and restates the Credit and Guaranty Agreement entered into on December 9, 2015 (as amended prior to the date hereof, the “Existing Term Loan Agreement”).

Except as described in this Current Report on Form 8-K, the terms and conditions of the A&R Term Loan Agreement remain substantially consistent with the Existing Term Loan Agreement. The A&R Term Loan Agreement includes a total drawn term loan commitment of $150,000,000. The term loan was funded net of an original issue discount amount equal to 0.50% of the drawn term loan commitment. The A&R Term Loan Agreement also amends the financial covenants with respect to the Company such that the minimum asset coverage ratio is 115%, the minimum unencumbered asset ratio is 125%, the maximum total net leverage ratio is 4.50:1.00, and a minimum interest coverage ratio of 1.10:1.00 was added.

The A&R Term Loan Agreement has a term of five (5) years from the TL Closing Date. Pursuant to the A&R Term Loan Agreement, interest accrues at the following fixed rates: (i) commencing on the TL Closing Date until the 42-month anniversary of the TL Closing Date, the fixed rate is 4.500% per annum; (ii) after the 42-month anniversary of the TL Closing Date through the 48-month anniversary date, the interest rate increases 12.5 basis points every three months; and (iii) after the 48-month anniversary date of the TL Closing Date through the 60-month anniversary date, the interest rate increases 25.0 basis points every three months.

The A&R Term Loan Agreement is subject to a prepayment premium for the first 36 months following the TL Closing Date (through November 12, 2024), which is equal to the greater of (i) 1.00% of the outstanding principal amount of the term loan; and (ii) the present value of the amount that the lender would earn if that portion of the term loan being repaid were invested in U.S. treasury obligations.

The obligations of the Company under the A&R Term Loan Agreement continue to be guaranteed by the Guarantors, including pursuant to a Reaffirmation Agreement with the Collateral Agent pursuant to which the Company and the Guarantors reaffirmed the security interests and guarantees, in each case, granted in favor of the Collateral Agent.

The foregoing descriptions of the A&R Term Loan Agreement and the Reaffirmation Agreement are only summaries of certain material provisions of the agreements relating to the term loan and are qualified in their entirety by reference to copies of such agreements, which are filed herewith as Exhibits 10.1 and 10.2, respectively, and by this reference incorporated herein.

CNB Facility

On November 12, 2021 (the “CNB Facility Closing Date”), ACRC Lender LLC (“ACRC Lender”), a subsidiary of the Company, entered into an amendment to its secured revolving credit facility (the “CNB Facility”) with City National Bank. The purpose of the amendment to the CNB Facility was to, among other things: (1) increase the commitment amount from $50.0 million to $75.0 million and (2) amend the financial covenants with respect to the Company, as guarantor, to delete the financial covenant regarding recourse debt to tangible net worth and to set the maximum debt to tangible net worth ratio to 4.50 to 1.00. In connection with the increased commitment, the $25.0 million accordion feature was also removed. Under the CNB Facility, ACRC Lender may request advances as SOFR loans or base rate loans. The interest rate on advances after the CNB Facility Closing Date will accrue at a per annum rate equal to (a) with respect to SOFR loans, Daily Simple SOFR (with a 0.35% floor) plus 2.65% and (b) with respect to base rate loans, the greater of (i) a base rate (which is the highest of a prime rate, the federal funds rate plus 0.50%, or Daily Simple SOFR plus 1.00%) plus 1.00% and (ii) 2.65%.

The foregoing description of the CNB Facility is only a summary of certain material provisions of the amendment to the CNB Facility and is qualified in its entirety by reference to a copy of such agreement, which is filed herewith as Exhibit 10.3, and by this reference incorporated herein.

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

The information required by Item 2.03 contained in Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.

Item 7.01. Regulation FD Disclosure.

On November 15, 2021, the Company issued a press release announcing the entry into the A&R Term Loan Agreement and the amendment to the CNB Facility. A copy of the press release is furnished herewith as Exhibit 99.1 and by this reference incorporated herein.

The information disclosed under this Item 7.01, including Exhibit 99.1 hereto, is being furnished and shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934 (the “Exchange Act”), and shall not be deemed incorporated by reference into any filing made under the Securities Act of 1933 or the Exchange Act, except as expressly set forth by specific reference in such filing.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits:


Exhibit Number						Description
10.1						Amended and Restated Credit and Guaranty Agreement, dated as of November 12, 2021, by and among, Wilmington Trust, National Association, as grantor trust trustee, as lender, Cortland Capital Market Services LLC, as the administrative agent and the collateral agent for the lenders, and Ares Commercial Real Estate Corporation, as borrower, and ACRC Holdings LLC, ACRC Mezz Holdings LLC and ACRC Warehouse Holdings LLC, as guarantors.
10.2						Reaffirmation Agreement, dated as of November 12, 2021, by and among, Cortland Capital Market Services LLC, as the collateral agent for the lenders, and Ares Commercial Real Estate Corporation, as borrower, ACRC Holdings LLC, ACRC Mezz Holdings LLC and ACRC Warehouse Holdings LLC, as guarantors.
10.3						Amendment Number Eight to Credit Agreement and Amendment to General Continuing Guaranty, dated as of November 12, 2021, by and among ACRC Lender LLC, as borrower, City National Bank, a national banking association, as arranger and administrative agent, the lenders party thereto, and Ares Commercial Real Estate Corporation, as guarantor.
99.1						Press Release, dated November 15, 2021
104						Cover Page Interactive Data File - the cover page XBRL tags are embedded within the Inline XBRL document

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.


			ARES COMMERCIAL REAL ESTATE CORPORATION

Date:	November 15, 2021	By:	/s/ Anton Feingold
		Name:	Anton Feingold
		Title:	General Counsel, Vice President and Secretary

Exhibit 10.1

════════════════════════════════════════════════════

AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT

by and among

ARES COMMERCIAL REAL ESTATE CORPORATION

as Borrower,

ACRC HOLDINGS LLC, ACRC MEZZ HOLDINGS LLC and ACRC WAREHOUSE HOLDINGS LLC

as Guarantors,

THE LENDERS PARTIES HERETO FROM TIME TO TIME

as the Lenders,

CORTLAND CAPITAL MARKET SERVICES LLC,

together with its successors and assigns

as the Administrative Agent

and

CORTLAND CAPITAL MARKET SERVICES LLC,

together with its successors and assigns

as the Collateral Agent

Dated as of November 12, 2021

════════════════════════════════════════════════════

TABLE OF CONTENTS


ARTICLE I DEFINITION AND CONSTRUCTION
1.1			Definitions
1.2			Construction
1.3			Accounting Terms; GAAP; Pro Forma Calculations

ARTICLE II AMOUNT AND TERMS OF LOANS
2.1			Credit Facilities
2.2			[Reserved]
2.3			Interest Rates; Payment of Principal and Interest
2.4			Computation of Interest and Fees; Maximum Interest Rate
2.5			Request for Borrowing
2.6			[Reserved]
2.7			Repayment of Borrowings
2.8			Prepayments
2.9			Fees
2.10			Maintenance of Loan Account; Statements of Obligations
2.11			Increased Costs
2.12			Delayed Draw Term Loans
2.13			Funding Sources
2.14			Place of Loans
2.15			Incremental Term Loans
2.16			Mitigation of Obligations
2.17			Pro Rata Treatment

ARTICLE III CONDITIONS TO LOANS
3.1			Conditions Precedent to the Initial Term Loan and the A&R Effective Date Term Loan
3.2			Conditions Precedent to All Loans
3.3			Maturity Date

ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE BORROWER
4.1			Due Organization
4.2			Securities and Subsidiaries
4.3			Requisite Power and Authorization
4.4			Binding Agreements
4.5			Other Agreements
4.6			Litigation: Adverse Facts and Compliance with Laws
4.7			Government Consents
4.8			Title to Assets; Liens
4.9			ERISA
4.10			Payment of Taxes
4.11			Governmental Regulation
4.12			Disclosure
4.13			Debt
4.14			Existing Defaults
4.15			No Material Adverse Effect
4.16			Security Documents
4.17			Solvency.
4.18			Use of Proceeds


TABLE OF CONTENTS
(continued)

4.19			Anti-Corruption and Anti-Money Laundering Laws and Sanctions.

ARTICLE V AFFIRMATIVE COVENANTS OF THE BORROWER
5.1			Accounting Records and Inspection
5.2			Financial Statements.
5.3			Certificates; Other Information
5.4			Existence
5.5			Payment of Taxes and Claims
5.6			Compliance with Laws and Material Contractual Obligations
5.7			Further Assurances
5.8			Payment of Obligations
5.9			Maintenance of Insurance
5.10			Maintenance of Property and Licenses
5.11			Covenant to Guarantee Obligations and Give Security
5.12			ERISA
5.13			Post-Closing Items

ARTICLE VI NEGATIVE COVENANTS OF the BORROWER
6.1			Debt
6.2			Liens
6.3			Debt Prepayments
6.4			Dividends
6.5			Restriction on Fundamental Changes
6.6			Sale of Assets
6.7			Transactions with Shareholders and Affiliates
6.8			Conduct of Business
6.9			Amendments or Waivers of Certain Documents; Actions Requiring the Consent of the Agents
6.10			Limitation on Negative Pledges
6.11			Margin Regulation
6.12			Financial Covenants
6.13			Plans

ARTICLE VII EVENTS OF DEFAULT AND REMEDIES
7.1			Events of Default
7.2			Remedies
7.3			Borrower’s Right to Cure

ARTICLE VIII EXPENSES AND INDEMNITIES
8.1			Expenses
8.2			Indemnity

ARTICLE IX ASSIGNMENT AND PARTICIPATIONS
9.1			Successors and Assigns Generally

ARTICLE X AGENT; THE LENDER GROUP
10.1			Appointment and Authorization of Agent
10.2			Delegation of Duties
10.3			General Immunity


TABLE OF CONTENTS
(continued)

10.4			Reliance by Agent
10.5			Knowledge of Defaults/Events of Default
10.6			Credit Decision
10.7			Costs and Expenses; Indemnification
10.8			Agent in Individual Capacity
10.9			Successor Agent
10.10			Lender in Individual Capacity
10.11			Withholding Taxes
10.12			Collateral and Guarantor Matters
10.13			Restrictions on Actions by Lenders; Sharing of Payments
10.14			Agency for Perfection
10.15			Payments by Agent to the Lenders
10.16			Concerning the Collateral and Related Loan Documents
10.17			Field Examinations and Examination Reports; Confidentiality; Disclaimers by Lenders; Other Reports and Information
10.18			Several Obligations; No Liability
10.19			Bank Product Providers
10.20			Representations and Warranties of each Agent
10.21			Erroneous Payments.

ARTICLE XI MISCELLANEOUS
11.1			No Waivers, Remedies
11.2			Waivers and Amendments
11.3			Notices
11.4			Release of Borrowing Base Eligible Assets
11.5			Valuation Confirmation Process
11.6			Headings
11.7			Execution in Counterparts; Effectiveness
11.8			GOVERNING LAW
11.9			JURISDICTION AND VENUE
11.10			WAIVER OF TRIAL BY JURY
11.11			Independence of Covenants
11.12			Confidentiality
11.13			Complete Agreement
11.14			USA Patriot Act Notice

ARTICLE XII THE GUARANTY
12.1			The Guarantee
12.2			Obligations Unconditional
12.3			Reinstatement
12.4			Certain Additional Waivers
12.5			Remedies
12.6			Rights of Contribution
12.7			Guaranty of Payment; Continuing Guarantee
12.8			Amendment and Restatement
12.9			Grantor Trust Trustee.

AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT

THIS AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT, dated as of November 12, 2021, is entered into by and among, on the one hand, the lenders identified on the signature pages hereof, CORTLAND CAPITAL MARKET SERVICES LLC (“Cortland”), as the administrative agent for the Lenders (in such capacity, together with its successors and permitted assigns in such capacity, “Administrative Agent”), and as the collateral agent for the Lenders (in such capacity, together with its successors and permitted assigns in such capacity, “Collateral Agent” and, together with the Administrative Agent, the “Agents”), and, on the other hand, ARES COMMERCIAL REAL ESTATE CORPORATION, a Maryland corporation (“Borrower”), ACRC HOLDINGS LLC, a Delaware limited liability company (“ACRC Holdings”), ACRC MEZZ HOLDINGS LLC, a Delaware limited liability company (“ACRC Mezz”) and ACRC WAREHOUSE HOLDINGS LLC, a Delaware limited liability company (“ACRC Warehouse,” together with ACRC Holdings and ACRC Mezz, the “Guarantors” and each individually a “Guarantor”).

The parties to this Agreement are party to that certain Credit and Guaranty Agreement, dated as of December 9, 2015 (the “Original Credit Agreement”), as amended by that certain First Amendment thereto, dated as of December 22, 2017 and as may be further amended, supplemented or otherwise modified prior to the date hereof (the Original Credit Agreement, as so amended, supplemented or otherwise modified prior to the date hereof, the “Existing Credit Agreement”); and

Such parties wish to amend and restate in its entirety the Existing Credit Agreement by the execution and delivery of this Agreement, intending that such execution and delivery shall constitute a continuation of the transactions contemplated by the Existing Credit Agreement and not a novation of the Existing Credit Agreement.

ARTICLE I

DEFINITION AND CONSTRUCTION

1.1 Definitions. For purposes of this Agreement (as defined below), the following initially capitalized terms shall have the following meanings:

“A&R Effective Date” shall mean November 12, 2021.

“A&R Effective Date Subsidiary” means any direct wholly-owned Subsidiary of the Borrower formed after the Original Closing Date but on or before the A&R Effective Date.

“A&R Effective Date Term Loan” has the meaning set forth in Section 2.1(a)(ii).

“A&R Effective Date Term Loan Commitment” has the meaning set forth in Section 2.1(a)(ii).

“A&R Effective Date Transactions” means collectively, the transactions to occur on or prior to the A&R Effective Date including the execution and delivery of this Agreement and the performance of this Agreement and the other Loan Documents, the making of the A&R Term Loan Commitment and the borrowing of the A&R Effective Date Term Loans and the use of proceeds thereof.

“ACRC Lender” means ACRC Lender LLC, a Delaware limited liability company.

“ACRC Mezz” has the meaning set forth in the preamble to this Agreement.

“Additional Lender” has the meaning set forth in Section 2.15(b).

“Administrative Agent” has the meaning set forth in the preamble to this Agreement.

“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.

“Affiliate” means, with respect to any Person, any other Person which, directly or indirectly, controls, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” (together with the correlative meanings of “controlled by” and “under common control with”) means possession, directly or indirectly, of the power (a) to vote 10% or more of the securities (on a fully diluted basis) having ordinary voting power for the directors or managing general partners (or their equivalent) of such Person, or (b) to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by contract, or otherwise; provided, that no issuer of a Specified Third Party Securitization shall be considered an “Affiliate” of such Person.

“Agency” means The Federal National Mortgage Association, The Federal Home Loan Mortgage Corporation, The Government National Mortgage Association, the Federal Housing Administration, a division of HUD, and including the Federal Housing Commissioner and the Secretary of HUD where appropriate under the FHA Regulations, United States Department of Housing and Urban Development, Consumer Financial Protection Bureau, an agency of the United States, the U.S. Department of Veterans Affairs, an executive branch department of the United States of America headed by the Secretary of Veterans Affairs, or any successor of the foregoing.

“Agent” or “Agents” has the meaning set forth in the preamble to this Agreement.

“Agent’s Account” means a Deposit Account as designated in writing by the applicable Agent to the Borrower and the Lenders form time to time.

“Agent Fee Letter” means that certain fee letter agreement dated as of December 22, 2017 by and between Borrower and Cortland.

“Agent-Related Persons” means any Agent, together with its Affiliates, partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives.

“Agreement” means this Amended and Restated Credit and Guaranty Agreement by and among the Borrower, the Guarantors, the Lenders and the Agents, together with all exhibits and schedules hereto.

“All-In Yield” means, as to any Debt, the yield thereof, whether in the form of interest rate, margin, OID or upfront fees (subject to any applicable “cap,” “floor” or limit pursuant to any Swap Agreement); provided that OID and upfront fees shall be equated to interest rate assuming the stated life to maturity at the time of incurrence of the applicable Debt; provided, further, that “All-In Yield” shall not include arrangement fees, structuring fees, underwriting fees or other fees not paid to all providers of such Debt.

“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to any Loan Party from time to time concerning or relating to bribery or corruption, including without limitation the United States Foreign Corrupt Practices Act of 1977, as amended and other similar legislation in any other jurisdictions.

“Anti-Money Laundering Laws” means applicable laws or regulations in any jurisdiction in which the Borrower or any Loan Party is located or doing business that relates to money laundering, any predicate crime to money laundering, or any financial record keeping and reporting requirements related thereto.

“Applicable Advance Rate” means, for each Borrowing Base Eligible Asset, the percentage as set forth below:


Senior Commercial Real Estate Loan:			75%
Senior Commercial Real Estate Construction Loan:			65%
Subordinated Commercial Real Estate Loan:			50%
Preferred Equity Investment:			45%
Borrowing Base Debt Subsidiary:			50%
Triple Net Leased Properties:			40%

The Applicable Advance Rate for a Borrowing Base Eligible Asset comprised of equity interests in a Borrowing Base Subsidiary (other than a Borrowing Base Debt Subsidiary) shall be determined and applied with respect to each Mortgage Asset held by such Borrowing Base Subsidiary based on the Applicable Advance Rates applicable to such type of Mortgage Asset as set forth above.

“Application Event” means the occurrence of (a) a failure by the Borrower to repay in full all of the Obligations on the Maturity Date, or (b) an Event of Default and the election by the Required Lenders to require that payments and Proceeds of Collateral be applied pursuant to Section 2.3(a)(ii)(E) and (F) of this Agreement.

“Approved Fund” means any fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

“Asset” means any interest of a Person in any kind of property or asset, whether real, personal, or mixed real and personal, or whether tangible or intangible; provided, that “Assets” shall be determined without regard to the effects of consolidation of any issuer of a Specified Third Party Securitization on the financial statements of such Person under Accounting Standards Codification Section 810, as amended, modified or supplemented from time to time, or otherwise under GAAP.

“Asset Coverage Ratio” means, at any date, the ratio of (a) the Borrowing Base to (b) the aggregate principal amount of the Loans outstanding under this Agreement.

“Assigned Value” means, as of any date of determination, as to any single asset included as a Borrowing Base Eligible Asset, the value of such Borrowing Base Eligible Asset as of such date of determination as set forth below:

(a) at any time prior to the occurrence of a VAE:

(i) which is a Mortgage Asset shall, in each case, be the current outstanding principal balance of such Borrowing Base Eligible Asset (net of any specific reserves);

(ii) which is comprised of the equity interests of a Borrowing Base Debt Subsidiary shall be the excess of (A) the current outstanding principal balance of the Mortgage Assets held by such Borrowing Base Debt Subsidiary (net of any specific reserves) over (B) the current outstanding principal balance of the associated Warehousing Debt, Securitization Indebtedness and/or all other debt outstanding related to such Mortgage Assets (net of any specific reserves);

(iii) which is comprised of the equity interests of a Borrowing Base Subsidiary that is not a Borrowing Base Debt Subsidiary, shall be the current outstanding principal balance of the Mortgage Assets held by such Borrowing Base Subsidiary (net of any specific reserves, outstanding Debt and other liabilities);

(iv) which is a Triple Net Leased Property, the purchase price (net of any outstanding Debt and other liabilities); and

(v) for all other Borrowing Base Eligible Assets, the current outstanding principal balance of such Borrowing Base Eligible Assets (net of any specific reserves, outstanding Debt and other liabilities);

(b) At any time following the occurrence of a VAE, the “Assigned Value” in respect of any Borrowing Base Eligible Asset:

(i) which is either a Senior Commercial Real Estate Loan, a Senior Commercial Real Estate Construction Loan or a Borrowing Base Eligible Asset that is not covered under clauses (ii) through (vi) below and has experienced a VAE under clause (i), (ii) or (iii) of the definition thereof, the Assigned Value determined in clause (a)(i) above; provided that if such Assigned Value is disputed by the Required Agents, which notice of such dispute shall be delivered to the Borrower in writing within five (5) business days after the Agents receive notice that a VAE has occurred with respect to such Borrowing Base Eligible Assets, the Determined Valuation shall apply;

(ii) which is either a Subordinated Commercial Real Estate Loan, Preferred Equity Investment or Triple Net Leased Property and has experienced a VAE under clause (i) or (ii) of the definition thereof, for the first 30 days after the VAE, 50% times the Assigned Value determined pursuant to clause (a)(i) above and, thereafter for so long as such VAE continues to apply, zero (unless a valuation by a valuation agent has been obtained by the Borrower, in which case, the Determined Valuation shall apply);

(iii) which is either a Subordinated Commercial Real Estate Loan, Preferred Equity Investment or Triple Net Leased Property and has experienced a VAE under clause (iii), (iv) or (vi) of the definition thereof, for the first 30 days after the VAE, 75% times the Assigned Value determined pursuant to clause (a)(i) above and, thereafter for so long as such VAE continues to apply, zero (unless a valuation by a valuation agent has been obtained by the Borrower, in which case, the Determined Valuation shall apply);

(iv) which is comprised of the equity interests of a Borrowing Base Debt Subsidiary and has experienced a VAE under clause (i) or (ii) of the definition thereof (and which Assigned Value shall only be applied to the particular underlying Mortgage Asset(s) which has experienced a VAE), for the first 30 days after such VAE, 50% times the Assigned Value determined pursuant to clause (a)(ii) above and, thereafter for so long as such VAE continues to apply, zero (unless a valuation by a valuation agent has been obtained by the Borrower, in which case, the Determined Valuation shall apply);

(v) which is comprised of the equity interests of a Borrowing Base Debt Subsidiary and has experienced a VAE under clause (v) of the definition thereof, clause (vi) of the definition thereof (but only to the extent the occurrence of a material modification of an Borrowing Base Eligible Asset or a Mortgage Asset held by a Borrowing Base Debt Subsidiary results in a modification that has a material adverse effect on such Borrowing Base Debt Subsidiary) or clause (vii) of the definition thereof, for the first 30 days after such VAE, 75% times the Assigned Value determined pursuant to clause (a)(ii) above and, thereafter for so long as such VAE continues to apply, zero (unless a valuation by a valuation agent has been obtained by the Borrower, in which case, the Determined Valuation shall apply); and

(vi) which is comprised of the equity interests of a Borrowing Base Subsidiary that is not a Borrowing Base Debt Subsidiary (and which Assigned Value shall be applied only to the particular underlying Mortgage Asset(s) which has experienced a VAE), the Assigned Value shall be determined and applied with respect to each Mortgage Asset held by such Borrowing Base Subsidiary based on clauses (i), (ii), (iii) and (vii) of this section (b).

“Assignment and Acceptance” means an Assignment and Acceptance Agreement substantially in the form of Exhibit A-1 or such other form approved by the Administrative Agent.

“B Note” means a promissory note secured by a mortgage on multi-family or commercial real estate property, which note is subordinate in right of payment to one or more separate promissory notes secured by the same property.

“Bank Product” means any financial accommodation extended to a Loan Party by a Bank Product Provider in connection with Swap Agreements.

“Bank Product Agreements” means those agreements entered into from time to time by any Loan Party with a Bank Product Provider in connection with the obtaining of any of the Bank Products.

“Bank Product Obligations” means all obligations, liabilities, contingent reimbursement obligations, fees, and expenses owing by any Loan Party to any Bank Product Provider pursuant to or evidenced by the Bank Product Agreements and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising.

“Bank Product Provider” means each counterparty to any Loan Party under a Bank Product Agreement.

“Bankruptcy Code” means Title 11 of the United States Code, as amended or supplemented from time to time, and any successor statute, and all of the rules and regulations issued or promulgated in connection therewith.

“Bankruptcy Plan” has the meaning set forth in Section 9.1(f)(iii).

“Basel III” means the agreements on capital requirements, leverage ratio and liquidity standards contained in “Basel III: A global regulatory framework for more resilient banks and banking systems”, “Basel III: International framework for liquidity risk measurement, standards and monitoring” and “Guidance for national authorities operating the countercyclical capital buffer” published by the Basel Committee on Banking Supervision on 16 December 2010, each as amended, supplemented or restated.

“Board of Directors” means, as to any Person, the board of directors (or comparable managers) of such Person, or any committee thereof duly authorized to act on behalf of the board of directors (or comparable managers).

“Board of Governors” means the Board of Governors of the Federal Reserve System of the United States of America, or any successor thereto.

“Borrower” has the meaning set forth in the introduction to this Agreement.

“Borrower Affiliate” means any Affiliate of the Borrower (other than a natural Person, or a holding company, investment vehicle or trust for or owned and operated for the primary benefit of a natural Person or the Borrower and its Subsidiaries).

“Borrower DACA” means the deposit account control agreement by and among the Borrower, Bank of America, N.A. and the Collateral Agent respect to the Borrower’s deposit account number 8188693212.

“Borrowing Base” means, as of any date of determination, the sum of the Borrowing Base Value of each Borrowing Base Eligible Asset as of such date as determined by the most recent Borrowing Base Certificate and adjusted as reflected in any Determined Valuation; provided that, at the time of origination or purchase by the Borrower or its Subsidiaries of a Borrowing Base Eligible Asset, the allocated Borrowing Base Value of any single property underlying any Borrowing Base Eligible Asset shall not comprise in excess of 10.0% of the total Borrowing Base Value of all Borrowing Base Eligible Assets (and any such excess shall be disregarded for purposes of determining the Borrowing Base); provided, further, that the Borrowing Base shall be recalculated on (i) the last day of each fiscal quarter, (ii) the date on which any Loan is requested and (iii) the date on which the Borrower has actual knowledge of a VAE.

“Borrowing Base Certificate” means a certificate, signed and certified as accurate and complete by a Responsible Officer of the Borrower, in substantially the form of Exhibit B-2.

“Borrowing Base Debt Subsidiary” means any Subsidiary of the Borrower listed on Schedule C-2 that has associated Warehousing Debt, Securitization Indebtedness or other debt outstanding; provided, that, such Subsidiary shall be a “Borrowing Base Debt Subsidiary” only to the extent that the Borrower, directly or indirectly, holds all of the non-rated debt issued in connection with any Securitization Transaction and all of the preferred or other equity interests and all risk retention interests related to any such Warehousing Debt, Securitization Indebtedness or other debt, as applicable.

“Borrowing Base Deficiency” means the circumstance that exists in the event that the outstanding aggregate principal amount of the Loans outstanding under this Agreement exceeds the Borrowing Base on any date of determination

“Borrowing Base Eligibility Criteria” means, with respect to an asset which the Borrower represents and warrants is a Borrowing Base Eligible Asset:

(i) Such asset is (x) held by the Borrower or a Subsidiary thereof (other than a Borrowing Base Subsidiary) and is (A) a Senior Commercial Real Estate Loan, (B) a Subordinated Commercial Real Estate Loan, (C) a Preferred Equity Investment (directly or indirectly), (D) a Senior Commercial Real Estate Construction Loan acceptable to the Required Lenders (in their sole discretion) , or (E) such other asset (including an interest in a CRE-CLO and/or CMBS) acceptable to the Required Lenders (in their sole and absolute discretion), (y) an equity interest in a Borrowing Base Subsidiary that is not a Borrowing Base Debt Subsidiary, which subsidiary holds (directly or indirectly), any asset referred to in subclause (x) of this clause (i) that would otherwise qualify as Borrowing Base Eligible Asset or (z) an equity interest in a Borrowing Base Debt Subsidiary that (A) owns (directly or indirectly), any asset referred to in subclause (x) of this clause (i) that would otherwise qualify as Borrowing Base Eligible Assets and (B) to the extent the Borrowing Base Debt Subsidiary owns any asset of the type set forth in subclauses (x)(B) or (x)(C) of this clause (i), such assets do not exceed 15% of the total assets held by such subsidiary as measured by the respective outstanding principal balance of all assets held by such subsidiary, including, without limitation, any assets of the type set forth in subclauses (x)(B) or (x)(C) of this clause (i);

(ii) such asset (or, in the case of any Borrowing Base Subsidiary, the associated Mortgage Asset), together with the underlying loan documents related thereto (A) is in full force and

effect and constitutes the legal, valid and binding obligation of the obligor thereunder (subject to customary qualifications and exceptions), (B) is not subject to any material litigation or dispute and (C) contains provisions that the obligor’s payment obligations thereunder are absolute and unconditional without any right of rescission, setoff, counterclaim or defense against the holder thereof (subject to customary qualifications and exceptions);

(iii) such asset (or, in the case of any Borrowing Base Subsidiary, the associated Mortgage Asset) and any related collateral are each in compliance in all material respects with any applicable laws (subject to customary qualifications and exceptions);

(iv) at the time of purchase or origination (as applicable), such asset (or, in the case of any Borrowing Base Subsidiary, the associated Mortgage Asset) is not in payment default. At any time thereafter, such asset or Mortgage Asset is not in payment default after giving effect to any applicable grace, cure or notice periods (as such periods may be extended);

(v) for any Subordinated Commercial Real Estate Loan or Preferred Equity Investment, such asset (or, in the case of any Borrowing Base Subsidiary, the associated Mortgage Asset) is eligible to be sold and does not by its terms prohibit the granting of a security interest therein, subject to Section 6.2(d);

(vi) such asset (or, in the case of any Borrowing Base Subsidiary, the associated Mortgage Asset) does not contain a confidentiality provision that would prohibit the Agents from reviewing the asset and underlying loan documentation (notwithstanding that the Agents are advised of the confidential nature of information relating to the asset and agrees to keep such information confidential);

(vii) the applicable Subsidiary of the Borrower has good and marketable title to, and is the sole owner of, such asset (or, in the case of any Borrowing Base Subsidiary, the associated Mortgage Asset) subject, in the case of Mortgage Assets of Borrowing Base Debt Subsidiaries, to the terms of the associated Warehousing Debt, Securitization Indebtedness or other applicable debt;

(viii) such asset (or, in the case of any Borrowing Base Subsidiary, the associated Mortgage Asset) will not cause the Borrower to be required to register as an investment company under the Investment Company Act of 1940;

(ix) such asset (or, in the case of any Borrowing Base Subsidiary, the associated Mortgage Asset) is not a Margin Security;

(x) for any Subordinated Commercial Real Estate Loan or Preferred Equity Investment, whether held directly or by a Borrowing Base Subsidiary or Borrowing Base Debt Subsidiary, the loan to value percentage of all indebtedness senior to such asset (or, in the case of any Borrowing Base Subsidiary or Borrowing Base Debt Subsidiary, the associated Mortgage Asset) does not exceed 80%;

(xi) such asset is cash or Cash Equivalents held in a Deposit Account that is the subject of a control agreement in favor of the Collateral Agent for the benefit of the Secured Parties; provided that, any cash or Cash Equivalents pledged under Section 6.2(c) to secure Debt permitted under Section 6.1(o) shall not be a Borrowing Base Eligible Asset;

(xii) such asset is (x) a Triple Net Leased Property or (y) an equity interest in a Subsidiary of the Borrower that owns a Triple Net Leased Property; and

(xiii) such asset does not include any option that would allow the tenant on the property to purchase the property;

(xiv) for any Securities that are encumbered by or otherwise subject to a Permitted Collateral Lien (other than in respect to Liens arising pursuant to clauses (d) and (g) of the definition thereof) such Securities have not been encumbered by or otherwise subject to such Permitted Collateral Lien for longer than 10 Business Days after Borrower or any Grantor, as applicable, obtains knowledge thereof.

“Borrowing Base Eligible Assets” means (a) on and from the A&R Effective Date, the assets set forth on Schedule C-1 and (b) as of any date of determination after the A&R Effective Date, the assets that (pursuant to a Borrowing Base Certificate) the Borrower has represented and warranted satisfies the Borrowing Base Eligibility Criteria (except to the extent compliance with any one or more of such Borrowing Base Eligibility Criteria is waived by the Agents in writing with respect to any such asset); provided that Liens arising pursuant to clauses (d) and (g) of the definition of Permitted Collateral Liens shall not be subject to such 10 Business Day limitation.

“Borrowing Base Subsidiary” means any Subsidiary of the Borrower whose equity interests constitute Borrowing Base Eligible Assets pursuant to subclauses (i)(y) or (i)(z) of the definition of Borrowing Base Eligibility Criteria and shall include, without limitation, all Borrowing Base Debt Subsidiaries listed on Schedule C-2.

“Borrowing Base Value” means, with respect to any Borrowing Base Eligible Asset as of any date of determination, the sum of (a) product of (x) the Applicable Advance Rate for such Borrowing Base Eligible Asset as of such date and (y) the Assigned Value of such Borrowing Base Eligible Asset as of such date, plus (b) the consolidated unrestricted cash and Cash Equivalent of the Borrower and its Subsidiaries.

“Business Day” means a day when major commercial banks are open for business in New York, New York, other than Saturdays or Sundays.

“Capitalized Lease Obligations” means with respect to any Person, the amount of all obligations of such Person to pay rent or other amounts under a lease of property to the extent and in the amount that such obligations are required to be classified and accounted for as a capital lease on a balance sheet of such Person in accordance with GAAP.

“Cash Cure Amount” has the meaning set forth in Section 7.3(c).

United States or any state thereof having at the date of acquisition thereof combined capital and surplus of not less than $250,000,000, (e) demand deposit accounts maintained with any bank organized under the laws of the United States or any state thereof having combined capital and surplus of not less than $1,000,000,000, so long as the amount maintained with any individual bank is less than or equal to $1,000,000 and is insured by the Federal Deposit Insurance Corporation, or larger amounts, to the extent that such amounts are covered by insurance which is reasonably satisfactory to the Required Agents, (f) demand deposit accounts maintained with any of the financial institutions listed on Schedule A-2 hereto (as may be modified from time to time with the consent of the Required Agents, which consent shall not be unreasonably withheld or delayed), Affiliates thereof, or any Lender that is a bank that is insured by the Federal Deposit Insurance Corporation, and (g) Investments in money market funds substantially all of whose assets are invested in the types of assets described in clauses (a) through (e) above.

“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty. (b) any change in law, rule or treaty in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

“Change of Control Event” means the occurrence of any of the following events has occurred without the prior written approval of the Required Lenders:

(a) any “person” or “group” (within the meaning of Section 13(d) or 14(d) of the Exchange Act) shall become, or obtain rights (whether by means of warrants, options or otherwise) to become, the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of a percentage of the total voting power of all classes of capital stock of the Borrower entitled to vote generally in the election of directors, of thirty-five percent (35%) or more;

(b) the Borrower shall cease to maintain its status as a publicly traded REIT;

(c) the consummation of a merger or consolidation of the Borrower with or into another entity or any other reorganization of the Borrower pursuant to which the Borrower is not the surviving entity following such merger, consolidation or reorganization;

(d) a transfer of all or substantially all of the Borrower’s Assets (excluding any transfer in connection with any Securitization Transaction or any repurchase or other similar transactions);

provided that, notwithstanding anything to the contrary herein, any event that does not result in a Change of Manager Event, will not constitute a Change of Control Event.

“Change of Manager Event” means Ares Management, L.P. or any of its Affiliates ceases to be the manager of the Borrower and a replacement for such manager, which replacement shall be approved by the Required Lenders (in their sole discretion), has not occurred within 90 days.

“City National Bank Facility” means that certain Credit Agreement dated as of March 12, 2014, by and among ACRC Lender, the lenders party thereto and City National Bank, as arranger and administrative agent (as amended by Amendment Number One to Credit Agreement and Consent, dated

July 30, 2014, by and among the Lenders (as defined therein) party thereto, City National Bank, as administrative agent and ACRC Lender, as further amended by the Amendment Number Two to Credit Agreement, dated August 17, 2015, by and among the Lenders (as defined therein) party thereto, City National Bank, as administrative agent and ACRC Lender, as further amended by the Amendment Number Three to Credit Agreement, dated February 26, 2016, by and among the Lenders (as defined therein) party thereto, City National Bank, as administrative agent and ACRC Lender, as further amended by the Amendment Number Four to Credit Agreement and Amendment Number One to General Continuing Guaranty, dated December 27, 2016, by and among the Lenders (as defined therein) party thereto, City National Bank, as administrative agent and ACRC Lender, as further amended by the Amendment Number Five to Credit Agreement, dated March 2, 2017, by and among the Lenders (as defined therein) party thereto, City National Bank, as administrative agent and ACRC Lender, as further amended by the Amendment Number Six to Credit Agreement, dated April 19, 2017, by and among the Lenders (as defined therein) party thereto, City National Bank, as administrative agent and ACRC Lender and as further amended by the Amendment Number Seven to Credit Agreement, dated June 5, 2019, by and among the Lenders (as defined therein) party thereto, City National Bank, as administrative agent and ACRC Lender), as amended, restated, amended and restated, refinanced, renewed, replaced, supplemented or otherwise modified from time to time.

“Code” means the Internal Revenue Code of 1986, as amended or supplemented from time to time, and any successor statute, and all of the rules and regulations issued or promulgated in connection therewith.

“Collateral” has the meaning ascribed thereto in the Security Agreement; provided, however, that, to the extent such Collateral is denominated in a currency, such denomination shall be in Dollars.

“Collateral Agent” has the meaning set forth in the preamble to this Agreement.

“Collateral Agent’s Liens” means the Liens granted by any Loan Party to the Collateral Agent, for the benefit of the Lenders, under the Loan Documents.

“Collections” means all cash, checks, notes, instruments, and other items of payment.

“Commitments” means any Term Loan Commitment, Incremental Term Loan Commitment or Delayed Draw Term Loan Commitment, as applicable.

“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

“Compliance Certificate” means a certificate duly executed by a Responsible Officer of the Borrower, substantially in the form of Exhibit P-1.

“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

advance, stock purchase, capital contribution, or otherwise) (i) for the purchase, repurchase, or payment of any such primary obligation or any Asset constituting direct or indirect security therefor, or (ii) to maintain working capital or equity capital of the primary obligor, or otherwise to maintain the net worth, solvency, or other financial condition of the primary obligor, or (c) to purchase or make payment for any Asset, securities, services, or noncancellable lease if 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.

“Contractual Obligation” means, as applied to any Person, any indenture, mortgage, deed of trust, contract, undertaking, agreement, or other instrument to which that Person is a party or by which any of its Assets is subject.

“Cortland” has the meaning set forth in the introduction to this Agreement.

“Credit Facilities” means each of (a) the Term Loan Commitments and the Initial Term Loans and the A&R Effective Date Term Loans made thereunder (the “Term Loan Facility”), (b) the Delayed Draw Term Loan Commitments and the Delayed Draw Term Loans made thereunder (the “Delayed Draw Term Loan Facility”) and (c) the Incremental Term Commitments and the Incremental Term Loans made thereunder.

“Cure Expiration Date” has the meaning set forth in Section 7.3(a).

“Debt” means, with respect to any Person, (a) all indebtedness, whether or not represented by bonds, debentures, notes, securities, or other evidences of indebtedness, for the repayment of money borrowed, (b) all indebtedness representing deferred payment of the purchase price of property or Assets, exclusive of trade payables that are due and payable in the ordinary course of such Person’s business, (c) all Capitalized Lease Obligations of such Person and (d) all indebtedness currently due under guaranties, endorsements, assumptions, or other Contingent Obligations in respect of the foregoing; provided that “Debt” shall be determined without regard to the effects of consolidation of any issuer of a Specified Third Party Securitization on the financial statements of such Person under Accounting Standards Codification Section 810, as amended, modified or supplemented from time to time, or otherwise under GAAP.

“Debt Service” means, for any Test Period, the sum of (a) Interest Expense for the Borrower and the Guarantors determined on a consolidated basis for such period, and (b) all regularly scheduled principal payments made with respect to Indebtedness of Guarantor and its Subsidiaries during such period, other than (i) any voluntary or involuntary prepayment or (ii) prepayment occasioned by the repayment of an underlying asset, or any balloon, bullet, margin or similar principal payment which repays such Indebtedness in part or in full.

“Debtor Relief Laws” means the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization or similar debtor relief laws of the United States of America or other applicable jurisdictions from time to time in effect.

“Default” means an event, act, or occurrence which, with the giving of notice or the passage of time, would become an Event of Default.

“Defaulting Lender” means any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Agents and the Borrower in writing that such failure is the result of such Lender’s good faith 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 Agents or any other Lender any other amount required to be paid by it hereunder within two (2) Business Days of the date when due, (b) has notified the Borrower or the Agents in writing that it does not intend to comply with its funding obligations hereunder, or has, subject to Section 11.12, made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s good faith 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 Agents or the Borrower, to confirm in writing to the Agents and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Agents and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity; 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 Required Agents 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 upon delivery of written notice of such determination to the Borrower and each Lender; provided that either Agent can declare the other Agent to be a Defaulting Lender under any one or more of clauses (a) through (d) above.

“Defaulting Lender Rate” means the Federal Funds Rate.

“Delayed Draw Availability Period” shall mean the period from and including the day after the A&R Effective Date until and including January 12, 2022

“Delayed Draw Funding Date” has the meaning assigned to such term in Section 2.12(a).

“Delayed Draw Term Loan Commitment” shall mean, with respect to each Lender, the commitment, if any, of such Lender to make Delayed Draw Term Loans to the Borrower hereunder in a principal amount not to exceed the amount set forth under the heading “Delayed Draw Term Loan Commitment” opposite such Lender’s name on Annex A-2 or in the Assignment and Acceptance pursuant to which such Lender assumed its Delayed Draw Term Loan Commitment, as applicable, as the same may be reduced from time to time pursuant to Section 2.8. The total amount of the Delayed Draw Term Loan Commitments as of the A&R Effective Date is $50,000,000. The total amount of the Delayed Draw Term Loan Commitments to be funded on the A&R Effective Date is $50,000,000.

“Delayed Draw Term Loans” has the meaning set forth in Section 2.1(b)(i).

“Delayed Draw Term Loan Facilities” has the meaning set forth in the definition of “Credit Facilities”.

“Delayed Draw Term Loan Lender” means each Lender that has a Delayed Draw Term Loan Commitment or that holds a Delayed Draw Term Loan.

“Deposit Account” means any “deposit account” (as that term is defined in the UCC).

“Designated Account” means account number 8188090603 of the Borrower maintained with Bank of America, N.A., or such other deposit account of the Borrower (located within the United States) designated, in writing, from time to time, by the Borrower to the Agents.

“Determined Valuation” has the meaning set forth in Section 11.5.

“Distribution” has the meaning set forth in Section 6.4.

“Dollars” or “$” means United States dollars.

“EBITDA” means, with respect to any Person and for any Test Period, an amount equal to the sum of (a) Net Income (or loss) of such Person (prior to any impact from minority or non-controlling interests or joint venture net income and before deduction of any dividends on preferred stock of such Person), plus the following (but only to the extent actually included in determination of such Net Income (or loss)): (i) depreciation and amortization expense (other than those related to capital expenditures that have not been included in the calculation of Fixed Charges), (ii) Interest Expense, (iii) income tax expense, (iv) extraordinary or non-recurring gains, losses and expenses including but not limited to transaction expenses relating to business combinations, other acquisitions and unconsummated transactions, (v) unrealized loan loss reserves, impairments and other similar charges and (vi) unrealized gains, losses and expenses associated with (A) derivative liabilities including but not limited to convertible note issuances and (B) mortgage servicing rights (other than the initial revenue recognition of recording an asset), plus (b) such Person’s proportionate share of Net Income (prior to any impact from minority or noncontrolling interests or joint venture net income and before deduction of any dividends on preferred stock of such Person) of the joint venture investments and unconsolidated Affiliates of such Person, all with respect to such period.

“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 9.1(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required under Section 9.1(b)(iii)); provided however, that “Eligible Assignee” shall not include (a) any natural Person or (b) any Defaulting Lender, its parent, any of its Subsidiaries or any Person who, upon becoming a Lender hereunder, would constitute a Defaulting Lender or a Subsidiary thereof.

“Environmental Law” means any federal, state, provincial, foreign or local statute, law, rule, regulation, ordinance, code, binding and enforceable guideline, binding and enforceable written policy, or rule of common law now or hereafter in effect and in each case as amended, or any legally binding judicial or administrative interpretation thereof, including any judicial or administrative order, consent decree or judgment, in each case, to the extent applicable to Borrower or any of its Subsidiaries, relating to the environment, the effect of the environment on employee health, or Hazardous Materials, in each case as amended from time to time.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, the regulations promulgated thereunder and any successor thereto.

“ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with any Loan Party, is treated as a single employer under Section 414(b) or (c) of the Code, or solely for purposes of Section 302 or 303 of ERISA or Section 412 or 430 of the Code, is treated as a single employer under Section 414 of the Code. Any former ERISA Affiliate of the Loan Parties shall continue to be considered an ERISA Affiliate of the Loan Parties within the meaning of this definition with respect to the period such entity was an ERISA Affiliate of any Loan Party and with respect to liabilities arising after such period for which any Loan Party could be liable under the Code or ERISA.

“ERISA Event” means (a) a “reportable event” within the meaning of Section 4043 of ERISA and the regulations issued thereunder with respect to any Single Employer Plan (excluding those for which the provision for 30 day notice to the PBGC has been waived by regulation in effect on the date hereof); (b) the failure to meet all applicable requirements of the Pension Funding Rules with respect to any Single Employer Plan, whether or not waived; (c) the filing of an application for a waiver of the minimum funding standards under the Pension Funding Rules with respect to any Single Employer Plan; (d) the termination of any Single Employer Plan or the withdrawal or partial withdrawal of any Loan Party from any Single Employer Plan or Multiemployer Plan; (e) a determination that any Single Employer Plan is, or is expected to be, in “at risk” status (as defined in Section 430 of the Code or Section 303 of ERISA); (f) a determination that any Multiemployer Plan is, or is expected to be, in “critical” or “endangered” status under Section 432 of the Code or Section 305 of ERISA; (g) the receipt by any Loan Party or any of their respective ERISA Affiliates from the PBGC or a plan administrator of any notice relating to an intention to terminate any Single Employer Plan or to appoint a trustee to administer any Single Employer Plan; (h) the adoption of any amendment to a Single Employer Plan that would require the provision of security pursuant to Section 436(f) of the Code; (i) the receipt by any Loan Party or any of their respective ERISA Affiliates of any notice, or the receipt by any Multiemployer Plan from any Loan Party or any of their respective ERISA Affiliates of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent, within the meaning of Title IV of ERISA; (j) the failure by any Loan Party or any of their respective ERISA Affiliates to make a required contribution to a Multiemployer Plan; (k) the occurrence of a nonexempt prohibited transaction (within the meaning of Section 4975 of the Code or Section 406 of ERISA) which could reasonably be expected to result in material liability to any Loan Party; (l) the receipt from the IRS of notice of disqualification of any Plan intended to qualify under Section 401(a) of the Code, or the disqualification of any trust forming part of any Plan intended to qualify for exemption from taxation under Section 501(a) of the Code; (m) the imposition of a lien pursuant to Section 430(k) of the Code or Section 303(k) of ERISA or a violation of Section 436 of the Code with respect to any Single Employer Plan; (n) the assertion of a material claim (other than routine claims for benefits) against any Plan other than a Multiemployer Plan or the assets thereof, or against any Loan Party or any of their respective ERISA Affiliates in connection with any Plan; or (o) the occurrence of an act or omission which could give rise to the imposition on any Loan Party or any of their respective ERISA Affiliates of any fine, penalty, tax or related charge under Chapter 43 of the Code or under Section 409, Section 502(c), (i) or (l), or Section 4071 of ERISA in respect of any Plan.

“Erroneous Payment” has the meaning set forth in Section 10.21 of this Agreement.

“Event of Default” has the meaning set forth in Article VII of this Agreement.

“Excess Refinancing Indebtedness” has the meaning set forth in Section 6.1(p) of this Agreement.

“Exchange Act” means the Securities Exchange Act of 1934, as amended or supplemented from time to time, and any successor statute, and all of the rules and regulations issued or promulgated in connection therewith.

“Excluded Assets” has the meaning as set forth in the Security Agreement.

“Excluded Information” means any non-public information with respect to the Borrower or its Subsidiaries or any of their respective securities to the extent such information could have a material effect upon, or otherwise be material to, an assigning Lender’s decision to assign Initial Term Loans or A&R Effective Date Term Loans or a purchasing Lender’s decision to purchase Initial Term Loans or A&R Effective Date Term Loans.

“Excluded Swap Obligation” means, with respect to any Guarantor, (x) as it relates to all or a portion of the Guaranty of such Guarantor, any Swap Obligation if, and to the extent that, such Swap Obligation (or any Guaranty 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 Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guaranty of such Guarantor becomes effective with respect to such Swap Obligation or (y) as it relates to all or a portion of the grant by such Guarantor of a security interest, any Swap Obligation if, and to the extent that, such Swap Obligation (or such security interest in respect 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 Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the security interest of such Guarantor becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guaranty or security interest is or becomes illegal.

“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Recipient with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Recipient acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 11.2) or (ii) such Recipient changes its lending office, except in each case to the extent that, pursuant to Section 10.11, amounts with respect to such Taxes were payable either to such Recipient's assignor immediately before such Recipient became a party hereto or to such Recipient immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 10.11(b), (c) or (g) and (d) any U.S. federal withholding Taxes imposed under FATCA.

“Executive Order No. 13224” means the Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001, as the same as been, or shall hereafter be, renewed, extended, amended or replaced.

"Existing Credit Agreement" has the meaning set forth in the preamble hereto.

“Expenses Cap” has the meaning set forth in Section 8.1 of this Agreement.

“Extraordinary Restricted Payments” means (i) the purchase, redemption, or retirement for value by the Borrower of any of their respective Securities or the making of special distributions by the Borrower of capital to their respective stockholders not otherwise in the ordinary course of business (specifically excluding any dividends or distributions by the Borrower necessary for it to maintain its status as a REIT) or (ii) voluntary repurchases or prepayments of unsecured Debt (other than in respect of scheduled maturities or principal amortization).

“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, any intergovernmental agreement entered into in connection

with the implementation of such Sections of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to such intergovernmental agreement.

“Fixed Charges” means, with respect to the Borrower or any Guarantor at any time, the sum of (a) Debt Service, (b) all preferred dividends that the Borrower or any Guarantor is required, pursuant to the terms of the certificate of designation or other similar document governing the rights of preferred shareholders, to pay and is not permitted to defer, (c) capital lease obligations paid or accrued during such period, and (d) any amounts payable under any ground lease.

“Federal Funds Rate” means, for any day, the rate per annum (rounded upwards, if necessary, to the next 1/100th of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with member banks of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the next succeeding Business Day or if such rate is not so published for any Business Day, the Federal Funds Rate for such day shall be the average rounded upwards, if necessary, to the next 1/100th of 1% of the quotations for such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by the Administrative Agent.

“Federal Reserve Board” means the Board of Governors of the Federal Reserve System or any successor thereto.

“Fundamental Change” has the meaning set forth in Section 6.5.

“Funding Date” means the date on which any Loan is made by the Lenders.

“Funding Losses” has the meaning set forth in Section 2.5(b)(ii).

“GAAP” means generally accepted accounting principles in the United States of America in effect from time to time.

“Governing Documents” means, with respect to any Person, the certificate or articles of incorporation, by-laws, or other organizational documents of such Person.

“Governmental Authority” means the government of the United States of America or any other nation, or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government, including any supranational bodies such as the European Union or the European Central Bank.

“Grantor” has the meaning ascribed thereto in the Security Agreement.

“Guarantors” has the meaning set forth in the preamble hereto (and each individually, a “Guarantor”).

“Guaranty” means the Guarantee set forth in Article XII.

“Hazardous Materials” means (a) substances that are defined or listed in, or otherwise classified pursuant to, any applicable laws or regulations as “hazardous substances,” “hazardous materials,” “hazardous wastes,” “toxic substances,” or any other formulation intended to define, list, or classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity, toxicity, or “EP toxicity”, (b) oil, petroleum, or petroleum derived substances, natural gas, natural gas liquids, synthetic gas, drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil, natural gas, or geothermal resources, (c) any flammable

substances or explosives or any radioactive materials, and (d) asbestos in any form, toxic mold, mycotoxins, polychlorinated biphenyls or electrical equipment that contains any oil or dielectric fluid containing levels of polychlorinated biphenyls in excess of 50 parts per million.

“Highest Lawful Rate” means the maximum non-usurious interest rate, as in effect from time to time, that may be charged, contracted for, reserved, received, or collected by a Lender in connection with this Agreement or the other Loan Documents.

“Immaterial Subsidiary” means, at any time, any Subsidiary with a Tangible Net Worth on the last day of the most recently ended Test Period of $10,000,000 or less; provided that, at any time, the aggregate Tangible Net Worth attributable to all Immaterial Subsidiaries shall not exceed $30,000,000.

“Incremental Amendment” has the meaning set forth in Section 2.15(f)(i).

“Incremental Facility Closing Date” has the meaning set forth in Section 2.15(d).

“Incremental Lender” has the meaning set forth in Section 2.15(b).

“Incremental Term Commitments” has the meaning set forth in Section 2.15(a).

“Incremental Term Loan” has the meaning set forth in Section 2.15(c).

“Incremental Term Loan Request” has the meaning set forth in Section 2.15(a).

“Indemnified Liabilities” has the meaning set forth in Section 8.2.

“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrower under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.

“Indemnitee” has the meaning set forth in Section 8.2.

“Information” has the meaning set forth in Section 11.10.

“Initial Dispute Notice” has the meaning as set forth in Section 11.5.

“Initial Term Loan” has the meaning set forth in Section 2.1(a)(i).

“Initial Valuation” has the meaning as set forth in Section 11.5.

“Initial Valuation Agent” means Duff & Phelps and its affiliates, or such other broker reasonably acceptable to the Required Lenders in consultation with the Borrower.

“Insolvency Proceeding” means any proceeding commenced by or against any Person under any provision of the Bankruptcy Code or under any other state or federal bankruptcy or insolvency law, assignments for the benefit of creditors, formal or informal moratoria, compositions, extensions generally with creditors, or proceedings seeking reorganization, arrangement, or other similar relief.

“Intercompany Subordination Agreement” means an intercompany subordination agreement executed and delivered by the Borrower, any Affiliate of the Borrower and the Agents, the form and substance of which is reasonably satisfactory to the Agents.

“Interest Coverage Ratio” means, at any date, the ratio of (a) EBITDA to (b) Interest Expense.

“Interest Expense” means, with respect to any Person and for any Test Period, the amount of total interest expense incurred by such Person, including capitalized or accruing interest, leases that are treated as capital leases under GAAP, plus such Person’s proportionate share of interest expense from the joint venture investments and unconsolidated Affiliates of such Person, all with respect to such period.

“Interest Payment Date” means the last day of each Interest Period and the final Maturity Date of such Loan; provided, however, that, if any Interest Period for a Loan is longer than three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates.

“Interest Period” means, with respect to any Loan, the period commencing on the date such Loan is made and ending on the date which is three (3) months thereafter or, with respect to the Loan made on the A&R Effective Date, such shorter period as may be agreed by the Administrative Agent, as selected by the Borrower; provided, however, that no Interest Period may extend beyond the Maturity Date. Whenever the last day of any Interest Period would otherwise occur on a day other than a Business Day, the last day of such Interest Period shall be extended to occur on the next succeeding Business Day, provided that if such extension would cause the last day of such Interest Period to occur in the next following calendar month, the last day of such Interest Period shall occur on the next preceding Business Day, and any Interest Period which begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month in which it would have ended if there were a numerically corresponding day in such calendar month.

“Interest Rate” shall mean (a)(i) after the A&R Effective Date but on or prior to the 42-month anniversary of the A&R Effective Date, 4.500% per annum, (ii) after the 42-month anniversary of the A&R Effective Date but on or prior to the 45-month anniversary of the A&R Effective Date, 4.625%, (iii) after the 45-month anniversary of the A&R Effective Date but on or prior to the 48-month anniversary of the A&R Effective Date, 4.750%, (iv) after the 48-month anniversary of the A&R Effective Date but on or prior to the 51-month anniversary of the A&R Effective Date, 5.000%, (v) after the 51-month anniversary of the A&R Effective Date but on or prior to the 54-month anniversary of the A&R Effective Date, 5.250%, (vi) after the 54-month anniversary of the A&R Effective Date but on or prior to the 57-month anniversary of the A&R Effective Date, 5.500% and (vii) after the 57-month anniversary of the A&R Effective Date but on or prior to the 60-month anniversary of the A&R Effective Date, 5.750% plus (b) automatically and with written notice of such increase in the interest rate to be provided by the Lenders to the Administrative Agent, after the occurrence or during the continuance of an Event of Default described in Section 7.1(a), Section 7.1(b)(i) but solely as it relates to an Event of Default that has occurred under Section 6.12 (which, for the avoidance of doubt, shall be subject to Section 7.3(a)), Section 7.1(d), Section 7.1(e) and Section 7.1(f), 2.0% per annum, in each case, from the date of such Event of Default or if later, the date specified in any such notice, until such Event of Default is cured or waived.

“Investment” means, as applied to any Person, any direct or indirect purchase or other acquisition by that Person of, or beneficial interest in, stock, instruments, bonds, debentures or other securities of any other Person, or any direct or indirect loan, advance, or capital contribution by such Person to any other Person, including all indebtedness and accounts receivable due from that other Person that did not arise from sales or the rendition of services to that other Person in the ordinary and usual course of such Person’s business, and deposit accounts (including certificates of deposit).

“IRS” means the United States Internal Revenue Service.

“Lender” means each lender that (a) has a Term Loan Commitment or is the holder of an Initial Term Loan or an A&R Effective Date Term Loan, (b) has a Delayed Draw Term Loan Commitment or is

the holder of a Delayed Draw Term Loan or (c) has an Incremental Term Commitment or is the holder of an Incremental Term Loan.

“Lender Group” means, individually and collectively, the Lenders and the Agents.

“Lender Group Expenses” has the meaning given in Section 8.1.

“Lender-Related Person” means, with respect to any Lender, such Lender, together with such Lender’s Affiliates, officers, directors, employees, attorneys, and agents.

“Lien” means any lien, hypothecation, mortgage, pledge, assignment (including any assignment of rights to receive payments of money or any easement, right-of-way, zoning restriction and similar encumbrance on real property) for security, security interest, charge and encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any agreement to give any security interest).

“Loan Account” has the meaning set forth in Section 2.10.

“Loan Documents” means this Agreement, the Security Agreement, any Notes, the Agent Fee Letter, the Negative Pledge Agreement, the Borrower DACA, the Mezz DACA, any other deposit account control agreements, any Bank Product Agreement relating to Bank Product Obligations that are Secured Obligations, any Swap Agreement relating to Swap Obligations that are Secured Obligations, each Intercompany Subordination Agreement and any and all other documents, agreements, or instruments that have been or are entered into by the Borrower or Guarantor, on the one hand, and the Agents, on the other hand, in connection with the transactions contemplated by this Agreement.

“Loan Party” means Borrower or Guarantor, and “Loan Parties” means, collectively, jointly and severally, the Borrower and the Guarantor.

“Loans” has the meaning set forth in Section 2.1(b)(i).

“Margin Securities” means “margin stock” as that term is defined in Regulation U of the Federal Reserve Board.

“Material Adverse Effect” means a material adverse effect on and/or material adverse developments with respect to (a) the business, operations, properties, assets or financial condition of the Borrower and its Subsidiaries taken as a whole; (b) the ability of the Loan Parties, taken as a whole, to fully and timely perform their Obligations or (c) the validity, binding effect or enforceability against any Loan Party of this Agreement or any other Loan Document to which it is a party.

“Material Agreements” means (a) the Loan Documents and (b) any agreements, documents, contracts, indentures and instruments pursuant to which a default, breach or termination thereof could reasonably be expected to result in a Material Adverse Effect.

“Material Modification” means an amendment, waiver, forbearance or other modification to or with respect to any (a) Borrowing Base Eligible Asset or (b) Borrowing Base Subsidiary (or any associated Mortgage Asset), as applicable, that:

(i) forgives, reduces, waives or forebears from collection one or more payments of principal or interest, or permits any interest payment due in cash to be deferred or capitalized and added to the principal amount of such Borrowing Base Eligible Asset or Mortgage Asset, as applicable (other than as permitted pursuant to the applicable underlying instrument);

(ii) contractually or structurally subordinates such Borrowing Base Eligible Asset or Mortgage Asset, as applicable (other than pursuant to subordination required under the related documents for such Borrowing Base Eligible Asset or Mortgage Asset, as applicable) by operation of a priority of payments, turnover provisions, consents to the transfer or encumbrance of (or waivers or forbears from exercising rights under any provision restricting transfer or encumbrance of any such Borrowing Base Eligible Asset or Mortgage Asset), as applicable, or to a transfer or encumbrance of assets in order to limit recourse to the related obligor or the granting of liens (other than permitted liens) on any of the collateral securing such Borrowing Base Eligible Asset or Mortgage Asset, as applicable, in a manner that materially and adversely affects the value of such Borrowing Base Eligible Asset or Mortgage Asset, as applicable;

(iii) substitutes, alters or releases the collateral securing such Borrowing Base Eligible Asset or Mortgage Asset, as applicable (other than as permitted pursuant to the applicable underlying instrument), and each such substitution, alteration or release, as determined in the sole discretion of the Required Agents, materially and adversely affects the value of such Borrowing Base Eligible Asset or Mortgage Asset, as applicable;

(iv) delays, postpones or extends (A) the maturity date (after giving effect to any contractual rights of extension) for such Borrowing Base Eligible Asset or Mortgage Asset, as applicable or (B) the required scheduled payments in any way that, individually or in the aggregate, increases the weighted average life of such Borrowing Base Eligible Asset or Mortgage Asset, as applicable, by 0.50 years or more;

(v) modifications of, waivers of, or forbearances from exercising rights with respect to defaults, events of defaults, grace periods, cure periods, or any financial covenants contained in any of the documents governing such Borrowing Base Eligible Asset or Mortgage Asset to the extent such modification, waiver or forbearance materially and adversely affects the value of such Borrowing Base Eligible Asset or Mortgage Asset, in each case, as a whole, as applicable;

(vi) except for any monetary default arising from the occurrence of a maturity date that is permitted to be delayed, postponed, or extended pursuant to clause (iv) above, any waiver of or forbearance from exercising rights with respect to a monetary default involving an amount due under any of the collateral documents to the extent such waiver or forbearance materially and adversely affects the value of such applicable Borrowing Base Eligible Asset or Mortgage Asset, in each case, as a whole; or

(vii) amends, waives, forbears, supplements or otherwise modifies (A) the meaning of “Net Operating Income” or any respective comparable definitions in the underlying loan documents for such Borrowing Base Eligible Asset or Mortgage Asset, as applicable or (B) any term or provision of such underlying loan documents referenced in or utilized in the calculation of “Net Operating Income” or any respective comparable definitions for such Borrowing Base Eligible Asset or Mortgage Asset, as applicable, in either case in a manner that is materially adverse to the Lenders.

“Maturity Date” has the meaning set forth in Section 3.3(a).

“Mezz DACA” means the deposit account control agreement to be entered into by and among ACRC Mezz, Bank of America, N.A. and the Collateral Agent respect to ACRC Mezz’s deposit account to be established at Bank of America, N.A.

“Mezzanine Loan” means a whole loan (or interest therein) subordinate to a senior loan that is secured by one or more direct or indirect ownership interests in a Person owning, operating or controlling, directly or indirectly, one or more multi-family or commercial real estate properties that are either fully constructed or undergoing full or partial construction or renovation.

“Mortgage Assets” means any Borrowing Base Eligible Asset that is (a) Senior Commercial Real Estate Loan, (b) Senior Commercial Real Estate Construction Loan, (c) Subordinated Commercial Real Estate Loan or (d) a Preferred Equity Investment.

“MSR” means current and future agency commercial mortgage servicing rights held by the Borrower and its Subsidiaries.

“Multiemployer Plan” means a Plan that is a “multiemployer plan” as defined in Section 3(37) or Section 4001(a)(3) of ERISA to which any Loan Party or ERISA Affiliate is obligated to make contributions, or during the preceding five (5) plan years, has made or been obligated to make contributions.

“Negative Pledge Agreement” means that certain Negative Pledge Agreement, dated as of the Original Closing Date, among the Borrower, ACRC Lender, the other Negative Pledgors (as defined therein) from time to time party thereto and the Collateral Agent.

“Negative Pledgor Subsidiary” means ACRC Lender.

“Net Income” means, with respect to any Person for any period, the net income of such Person for such period as determined in accordance with GAAP.

“Non-Consenting Lender” has the meaning set forth in Section 11.2.

“Notes” means any promissory note requested by an Lender evidencing a Loan made under this Agreement.

“Obligations” means all loans (including the Loans), debts, principal, interest (including any interest that accrues after the commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding), premiums, liabilities (including all amounts charged to the Borrower’s Loan Account pursuant hereto), obligations (including indemnification obligations), fees, charges, costs, expenses (including Lender Group Expenses) (including any portion thereof that accrues after the commencement of an Insolvency Proceeding, whether or not allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding), lease payments, guaranties, covenants, and duties of any kind and description incurred and outstanding by the Borrower to the Lender Group pursuant to or evidenced by the Loan Documents and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and including all interest not paid when due and all expenses that the Borrower is required to pay or reimburse by the Loan Documents, by law, or otherwise, Bank Product Obligations and Swap Obligations. Any reference in this Agreement or in the Loan Documents to the Obligations shall include all extensions, modifications, renewals, or alterations thereof, both prior and subsequent to any Insolvency Proceeding.

“OFAC” means the Office of Foreign Assets Control of the U.S. Department of the Treasury.

“OID” means original issue discount.

“OID Amount” means an amount equal to 0.50% of the aggregate principal amount of any Initial Term Loan or Delayed Draw Term Loan, as applicable.

“Original Closing Date” means December 9, 2015.

“Original Credit Agreement” has the meaning set forth in the preamble hereto.

“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising solely from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

“Other Taxes” means 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 11.2).

“Participant” has the meaning set forth in Section 9.1(d).

“Participant Register” has the meaning set forth in Section 9.1(d).

“PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), as the same has been, or shall hereafter be, renewed, extended, amended or replaced.

“Payment Date Statement” means the payment date statement to be provided by the Administrative Agent to the Lenders pursuant to Section 10.1, substantially in the form of Exhibit C-1 hereto.

“Payment Default” means an Event of Default described in Section 7.1(a) hereof.

“PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA (or any successor).

“Pension Act” means the Pension Protection Act of 2006.

“Pension Funding Rules” means the rules of the Code and ERISA regarding minimum funding standards and minimum required contributions (including any installment payment thereof) to a Single Employer Plan or Multiemployer Plan and set forth in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412 of the Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter, Sections 412, 430, 431 and 436 of the Code and Sections 302,303, 304 and 305 of ERISA.

“Permitted Collateral Liens” means: (a) Liens for taxes, assessments, or governmental charges or claims the payment of which is not, at such time, required by Section 5.5 hereof, (b) any attachment or judgment Lien and Liens incurred to secure any surety bonds, appeal bonds, supersedeas bonds, or other instruments serving a similar purpose in connection with the appeal of any such judgment, in each case, so long as such judgments do not constitute an Event of Default under Section 7.1(h) of the Agreement, (c) banker’s Liens in the nature of rights of setoff arising in the ordinary course of business of the Borrower or any of its Subsidiaries, (d) Liens granted by the Borrower or any of its Subsidiaries to the Collateral

Agent, for the benefit of the Secured Parties, in order to secure its Obligations under this Agreement and the other Loan Documents and Bank Product Agreements to which it is a party, (e) Liens and deposits in connection with workers’ compensation, unemployment insurance, social security and other legislation affecting the Assets, (f) Liens arising by operation of law in favor of carriers, warehousemen, landlords, mechanics, materialmen, laborers or employees for sums that are not yet delinquent or are being diligently contested in good faith, (g) easements, rights of way, zoning restrictions and similar encumbrances on real property and minor irregularities in the title thereto that do not (i) secure obligations for the payment of money or (ii) materially impair the value of such property or its use by any Loan Party or any of its Subsidiaries in the normal conduct of such Person’s business, (h) leases or subleases granted to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries, (i) Liens in connection with the financing of insurance premiums permitted by Section 6.1(l) provided that such Liens are limited to the applicable unearned insurance premiums, (j) Liens in favor of any escrow agent solely on and in respect of any cash earnest money deposits made by the Borrower or any of its Subsidiaries incurred in the ordinary course of business and in connection with any letter of intent or purchase agreement (to the extent that the acquisition or disposition with respect thereto is otherwise permitted hereunder), (k) Liens encumbering customary initial deposits and margin deposits, and similar Liens and margin deposits, and similar Liens attaching to commodity trading accounts and other brokerage accounts incurred in the ordinary course of business, (l) Liens deemed to exist as a matter of law in connection with permitted repurchase obligations incurred in the ordinary course of business or set-off rights and (m) Liens in favor of collecting banks arising under Section 4-210 of the UCC.

“Permitted Debt Certificate” has the meaning set forth in Section 10.12(a)(ii)(A).

“Permitted Liens” means the collective reference to the Liens permitted by Section 6.2.

“Person” means and includes natural persons, corporations, partnerships, limited liability companies, joint ventures, associations, companies, business trusts, or other organizations, irrespective of whether they are legal entities.

“Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA which is sponsored, maintained or contributed to by, or required to be contributed to by, the Borrower or any of its ERISA Affiliates or with respect to which the Borrower or any of its ERISA Affiliates has or could reasonably be expected to have liability, contingent or otherwise, under ERISA.

“Pledged Equity Interests” has the meaning set forth in the Security Agreement.

“Pledged Securities” has the meaning set forth in the Security Agreement.

“Post-A&R Effective Date Equity Issuance” has the meaning set forth in Section 6.1(t).

“Preferred Equity Investment” means a direct or indirect preferred equity ownership interest in a Person owning, operating or controlling, directly or indirectly, one or more multi-family or commercial real estate properties that are either fully constructed or undergoing full or partial construction or renovation.

“Prepayment Premium” means, as of the date of any applicable prepayment, (i) after the A&R Effective Date but on or prior to the Yield Maintenance Date, the greater of (x) 1.0% of the outstanding principal amount of the Loans and (y) the sum of the respective present values (computed as of the date of prepayment) of the remaining scheduled payments (assuming such payments are made as scheduled) of principal and interest with respect to the portion of the Loans prepaid prior to the Yield Maintenance Date (assuming no prepayments or acceleration of the Loans ahead of the Yield Maintenance Date and all remaining principal amount on the Loans on the Yield Maintenance Date is paid in a single balloon

payment on the Yield Maintenance Date), determined by discounting such payments to the date on which such prepayment is made at a rate, when compounded monthly, is equivalent to the Treasury Constant Yield when compounded semi-annually and (ii) thereafter, zero.

“Pro Rata Share” means, as of any date of determination, with respect to a Lender’s obligation to make Loans and receive payments of principal, interest, fees, costs, and expenses or other amounts with respect thereto, the percentage obtained by dividing (y) the aggregate outstanding principal amount of such Lender’s Loans by (z) the aggregate outstanding principal amount of all Loans; provided, that if at the time of such determination, all Loans have been paid-in-full, then such determination shall be based on the outstanding principal amount of the Loans as of the next preceding Business Day prior to the last date on which any Loans were outstanding.

“Purchase Money Obligation” shall mean, for any Person, the obligations of such Person in respect of Debt (including Capitalized Lease Obligations) incurred for the purpose of financing all or any part of the purchase price of any fixed or capital assets or the cost of installation, construction or improvement of any fixed or capital assets; provided, however, that (i) such Debt is incurred within 90 days after such acquisition, installation, construction or improvement of such fixed or capital assets by such Person and (ii) the amount of such Debt does not exceed the lesser of 100% of the fair market value of such fixed or capital asset or the cost of the acquisition, installation, construction or improvement thereof, as the case may be.

“Proceeds” shall mean all “proceeds” as such term is defined in Section 9-102(a)(64) of the UCC and, in any event, shall include, without limitation, all dividends or other income from the Pledged Securities, collections thereon and distributions or payments with respect thereto.

“Reaffirmation Agreement” means that certain reaffirmation agreement, dated as of November 12, 2021, by and among the Borrower, the Guarantors and ACRC Lender in favor of the Collateral Agent.

“Recipient” means any Agent and any Lender, as applicable.

“Register” has the meaning set forth in Section 9.1(c).

“Regulation T” means Regulation T of the Board of Governors as in effect from time to time.

“Regulation U” means Regulation U of the Board of Governors as in effect from time to time.

“Regulation X” means Regulation X of the Board of Governors as in effect from time to time.

“REIT” has the meaning set forth in Section 6.4.

“Removal Event” shall have occurred in respect of a Person then serving as an Agent under this Agreement if a court of competent jurisdiction shall have determined that such Person, or any of its officers, directors, employees or agents, or other persons under its direction or control, shall have engaged in any actions or omissions that constitute gross negligence, willful misconduct or fraud in connection with the performance of its obligations under this Agreement as Agent and such actions or omissions have a material adverse effect on the Lenders or if an Insolvency Proceeding has commenced with respect to an Agent.

“Report” has the meaning set forth in Section 10.17(a).

further detail in Exhibit R-1 attached hereto) to the Administrative Agent of the Borrower’s request for a Loan, which notice shall be substantially in the form of Exhibit R-2 attached hereto.

“Required Agents” means, at any time, either Agent acting at the direction of the Required Lenders.

“Required Lenders” means, at any time, (a) Lenders holding 100% of the aggregate amount of the Loans and the Delayed Draw Term Loan Commitments then in effect plus unpaid principal balance of the Loans then outstanding at any time there are two or fewer Lenders and (b) Lenders holding more than 50% of the aggregate amount of the Loans and the Delayed Draw Term Loan Commitments then in effect plus unpaid principal balance of the Loans then outstanding at any time there are three or more Lenders; provided that, for purposes of determining whether there are two or fewer or three or more Lenders at any time, Affiliates and Approved Funds of any Lender shall, collectively, be deemed to be one Lender.

“Resignation Effective Date” has the meaning set forth in Section 10.9(a).

“Responsible Officer” means the president, chief executive officer, chief operating officer, chief financial officer, secretary, general counsel, vice president, manager, treasurer or controller of a Person, or such other officer of such Person designated by a Responsible Officer in a writing delivered to the Agents.

“Restricted Asset” has the meaning ascribed thereto in the Negative Pledge Agreement.

“Sanctioned Country” means, at any time, a country, region or territory that is subject to any country-wide or territory-wide Sanctions.

“Sanctioned Person” means, 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, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person or Persons described in the foregoing clauses (a) or (b).

“Sanctions” means all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by OFAC or the U.S. Department of State or (b) the United Nations Security Council.

“SEC” means the Securities and Exchange Commission of the United States of America or any successor thereto.

“Second Valuation” has the meaning as set forth in Section 11.5.

“Second Valuation Agent” means any independent broker (other than the Initial Valuation Agent) acceptable to the Borrower undertaken to determine the Second Valuation.

“Secured Obligations” means all Obligations; provided that, notwithstanding anything to the contrary, the Secured Obligations shall exclude (i) any Excluded Swap Obligations and (ii) Bank Product Obligations with respect to any Bank Product Agreement and Swap Obligations with respect to any Swap Agreement, in each case, entered into with any counterparty that was not a Lender or an Affiliate of a Lender on the date of entry into such Bank Product Agreement or Swap Agreement.

“Secured Parties” has the meaning set forth in the Security Agreement.

securities, and other interests which may be exercised in respect of, converted into or otherwise relate to such Person’s capital stock, membership interests, partnership interests (whether limited or general) or other equity interests and any other securities, including debt securities of such Person.

“Securitization Entity” has the meaning defined in the definition of “Securitization Transaction.”

“Securitization Indebtedness” means (a) indebtedness of any Subsidiaries of the Borrower incurred pursuant to on-balance sheet Securitization Transactions treated as financings and (b) any indebtedness or other securities issued by a Securitization Entity or a Subsidiary of the Borrower pursuant to a Securitization Transaction, which, in each case, is non-recourse to the Borrower (except for customary representations, warranties, covenants, indemnities and other agreements made or given by the Borrower, or made or given by a Subsidiary of the Borrower and guaranteed by the Borrower, in connection with a Securitization Transaction).

“Securitization Transaction” means a public or private transfer, sale or financing of servicing advances and/or mortgage loans, installment contracts, other loans and any other financial asset capable of being securitized by which the Borrower or any of its Subsidiaries directly or indirectly securitizes a pool of specified financial assets including, without limitation, any such transaction involving the sale of specified servicing advances or mortgage loans (directly or through a depositor) to a special purpose entity (a “Securitization Entity”) established for the purpose of issuing asset-backed or mortgaged-backed or mortgage pass-through securities of any kind.

“Security Agreement” means that certain Pledge and Security Agreement, dated as of the Original Closing Date, among Borrower, the Guarantors, ACRC Lender, the other Grantors from time to time party thereto and the Collateral Agent.

“Senior Commercial Real Estate Construction Loan” means a whole loan (or senior or pari passu interest therein) made to finance the construction of multi-family or commercial real estate properties and secured by a mortgage thereon, which loan is not subordinate in right of payment to any separate loan secured by the same property.

“Senior Commercial Real Estate Loan” means a whole loan (or senior or pari passu interest therein) secured by a mortgage on multi-family or commercial real estate properties, which loan is not subordinate in right of payment to any separate loan secured by the same property; provided, that a Senior Commercial Real Estate Construction Loan shall not constitute a Senior Commercial Real Estate Loan.

“Single Employer Plan” means any Plan that is covered by Title IV of ERISA or the Pension Funding Rules, but which is not a Multiemployer Plan.

“Solvent” means, with respect to any Person, as of any date of determination, (a) the amount of the “present fair saleable value” of the assets of such Person will, as of such date, exceed the amount of all “liabilities of such Person, contingent or otherwise,” as of such date, (b) the “present fair saleable value” of the assets of such Person will, as of such date, be greater than the amount that will be required to pay the liability of such Person on its debts as such debts become absolute and matured, (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 as they mature and (e) such Person is not insolvent within the meaning of any applicable requirements of law. For purposes of this definition, (i) “debt” shall mean liability on a “claim,” (ii) “claim” shall mean any (A) 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 (B) 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 and (iii) such other quoted terms used in this definition shall be determined in accordance with applicable federal and state laws governing determinations of the insolvency of debtors.

“Specified Third Party Securitization” means any securitization transaction that was not established or sponsored by Borrower or any of its Affiliates.

“Stock” means all shares, options, warrants, interests, participations, or other equivalents (regardless of how designated) of or in a Person, whether voting or nonvoting, including common stock, preferred stock, or any other “equity security” (as such term is defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the SEC under the Exchange Act).

“Subordinated Commercial Real Estate Loan” means (1) a whole loan (or interest therein) secured by a mortgage on multi-family or commercial real estate properties, which loan is subordinate in right of payment to one or more separate loans secured by the same applicable property, (2) a subordinate interest in a Senior Commercial Real Estate Loan or a Senior Commercial Real Estate Construction Loan (including, without limitation, a B Note) or (3) a Mezzanine Loan secured with a pledge of 100% of the property owner’s membership interests in the related obligor and subject to a commercially reasonable intercreditor arrangement on market terms with the senior lender; provided, that for the avoidance of doubt, a Preferred Equity Investment shall not constitute a Subordinated Commercial Real Estate Loan.

“Subsidiary” means, with respect to any Person, any corporation, partnership, association, joint venture, limited liability company or other entity (heretofore, now or hereafter established) of which at least a majority of the securities or other ownership interests having by the terms thereof ordinary voting power to elect a majority of the board of directors or other persons performing similar functions of such corporation, partnership, limited liability company or other entity (without regard to the occurrence of any contingency) is at the time directly or indirectly owned or controlled by such Person or one or more Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person, and shall include all Persons the accounts of which are consolidated with those of such Person pursuant to GAAP; provided that no issuer of a Specified Third Party Securitization shall be considered a “Subsidiary” of Borrower or any of its Affiliates.

“Swap Agreement” means any agreement with respect to any swap, forward, future or derivative transaction or option or similar 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 no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of any of the Loan Parties shall be a Swap Agreement.

“Swap Obligations” means any and all obligations of any Loan Party, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor), under (a) any and all cancellations, buy backs, reversals, terminations or assignments of any such Swap Agreement transaction and (b) any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.

“Tangible Net Worth” means with respect to any Person and any date, all amounts that would be included under capital or shareholder's equity (or any like caption) on the balance sheet of such Person, minus (a) amounts owing to that Person from any Affiliate thereof, or from officers, employees, partners, members, directors, shareholders or other Persons similarly affiliated with such Person or any Affiliate thereof, (b) intangible assets, and (c) prepaid taxes and/or expenses, plus deferred origination fees, net of

deferred origination costs, all on or as of such date; provided that “Tangible Net Worth” shall be determined without regard to the effects of consolidation of any issuer of a Specified Third Party Securitization on the financial statements of such Person under Accounting Standards Codification Section 810, as amended, modified or supplemented from time to time, or otherwise under GAAP. For sake of clarity, mortgage servicing rights shall not be deemed to be intangible assets.

“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

“Term Loan Commitment” means, as to any Lender, the obligation of such Lender, if any, to make an Initial Term Loan or an A&R Effective Date Term Loan, as applicable, to the Borrower hereunder in a principal amount not to exceed the amount set forth under the heading “Term Loan Commitment” opposite such Lender’s name on Annex A-1 or, as the case may be, in the Assignment and Acceptance pursuant to which such Lender became a party hereto, as the same may be changed from time to time pursuant to the terms hereof. The aggregate principal amount of the Term Loan Commitments on the A&R Effective Date is $100,000,000.

“Term Loan Facilities” has the meaning set forth in the definition of “Credit Facilities”.

“Term Loan Increase” has the meaning set forth in Section 2.15(a).

“Term Loan Maturity Date” means (a) with respect to the Initial Term Loans, the Delayed Draw Term Loans and the A&R Effective Date Term Loan, the Maturity Date and (b) with respect to any Incremental Term Loans, the final maturity date as specified in the applicable Incremental Amendment; provided that, if any such day is not a Business Day, the applicable Term Loan Maturity Date shall be the Business Day immediately succeeding such day.

“Test Period” means the time period from the first day of each fiscal quarter, through and including the last day of such fiscal quarter.

“Third Valuation” has the meaning as set forth in Section 11.5.

“Third Valuation Agent” means any independent broker (other than the Initial Valuation Agent and the Second Valuation Agent) acceptable to the Borrower and the Required Lenders undertaken to determine the Third Valuation.

“Total Net Leverage Ratio” means, at any date, the ratio of (a) aggregate outstanding consolidated Debt of the Borrower and its Subsidiaries (net of any unrestricted cash and Cash Equivalents and Warehousing Debt secured by loans available for sale) on such date to (b) consolidated Tangible Net Worth of the Borrower and its Subsidiaries for the most recently ended Test Period.

“Transactions” means collectively, the transactions to occur on or prior to the Original Closing Date including the execution, delivery and performance of the Loan Documents entered into on the Original Closing Date, the initial borrowings thereunder and the use of proceeds thereof.

“Treasury Constant Yield” means the arithmetic mean of the rates published as “Treasury Constant Maturities” as of 5:00 p.m. (Eastern time), for the five (5) Business Days preceding the date on which acceleration has been declared, or, as applicable, the date on which a prepayment subject to a Prepayment Premium pursuant to this Agreement is made, as shown on the USD screen of Reuters (or such other page as may replace that page on that service, or such other page or replacement therefor on any successor service), or if such service is not available, the Bloomberg Service (or any successor service), or if neither

Reuters nor the Bloomberg Service is available, under Section 504 in the weekly statistical release designated H.15(519) (or any successor publication) published by the Board of Governors of the Federal Reserve System, for “On the Run” United States Treasury obligations with a term corresponding to the period beginning on the date of prepayment and ending on the Yield Maintenance Date. If no such maturity shall so exactly correspond, yields for the two most closely corresponding published maturities shall be calculated pursuant to the foregoing sentence and the Treasury Constant Yield shall be interpolated or extrapolated (as applicable) from such yields on a straight-line basis (rounding, in the case of relevant periods, to the nearest month).

“Triple Net Leased Property” means any real property that is the subject of a lease with a at least a seven (7) year term pursuant to which a single tenant of such property is responsible for net real estate taxes, net building insurance, and net common area maintenance relating to the real property (in addition to the rental fee).

“Trustee”: means Wilmington Trust, National Association, as Grantor Trust Trustee under the Trust Agreement.

“Trustee Fee”: means, for so long as Wilmington Trust, National Association acts as Trustee pursuant to the Trust Agreement, the fee to be paid monthly by the Borrower in advance to Wilmington Trust, National Association, as compensation for services rendered by it in its capacity as Grantor Trust Trustee under the Trust Agreement and if a replacement Trustee is appointed pursuant to the Trust Agreement, the fees of such trustee, so long as such fee is reasonable and commercially accepted for trustees providing similar services in similar transactions.

“Trust Agreement” for so long as the Lenders under this Agreement are entities managed by J.P. Morgan Investment Management, Inc., that certain Trust Agreement, dated as of the date of December 22, 2017 between ACRC TL 2017 LLC and Wilmington Trust, National Association.

“UCC” means the New York Uniform Commercial Code as in effect from time to time.

“Unencumbered Asset Ratio” means, at any date, the ratio of (a) the sum of (i) the Assigned Value of the Borrowing Base Eligible Assets comprised of Senior Commercial Real Estate Loans and Senior Commercial Real Estate Construction Loans that are not encumbered by a Lien other than Permitted Liens plus (ii) the Assigned Value of other Borrowing Base Eligible Assets that are not encumbered by a Lien other than Permitted Liens to (b) the aggregate principal amount of funded and outstanding Loans.

“Updated Valuation” has the meaning set forth in Section 11.5.

“VAE” means with respect to (a) any Borrowing Base Eligible Asset or (b) in the case of a Borrowing Base Eligible Asset that is comprised of Securities in a Borrowing Base Subsidiary, one or more related Mortgage Assets, as applicable, the occurrence of any of the following:

(i) any payment default or any other default(s) (in each case, after giving effect to any applicable grace, cure or notice periods in accordance with the underlying loan documents) that, in the case of a non-payment default, could, individually or in the aggregate, reasonably be expected to materially and adversely affect value of such Borrowing Base Eligible Asset or Mortgage Asset as a whole;

(ii) an insolvency event with respect to an underlying borrower;

(iii) the loan to value percentage is greater than 90%;

(iv) for any Subordinated Commercial Real Estate Loan or Preferred Equity Investment, the first lien loan to value is greater than 80%;

(v) for any Mortgage Assets held by a Borrowing Base Debt Subsidiary, the aggregate outstanding principal balance of the associated Warehousing Debt, Securitization Indebtedness or other debt exceeds 90% of the aggregate outstanding principal balance of all Mortgage Assets of such Borrowing Base Debt Subsidiary;

(vi) the occurrence of a Material Modification with respect to such Borrowing Base Eligible Asset or Mortgage Asset, as applicable; and

(vii) a default (after giving effect to any applicable grace, cure or notice periods as such periods may be extended with the approval of the applicable counterparties to such Warehousing Debt) that occurs under any Warehousing Debt or Securitization Indebtedness for which a Borrowing Base Debt Subsidiary is a sponsor, issuer or borrower that results in a Material Adverse Effect on the value of such Borrowing Base Debt Subsidiary as a whole.

“Valuation Confirmation Process” has the meaning as set forth in Section 11.5.

“Valuation Report” has the meaning as set forth in Section 11.5.

“Warehousing Debt” means any warehouse, purchase, repurchase, participation or other similar financing facility extended by a lender or repo buyer to the Borrower or a Subsidiary thereof to finance the funding, acquisition or ownership of (a) Senior Commercial Real Estate Loans, (b) Senior Commercial Real Estate Construction Loan, (c) Subordinated Commercial Real Estate Loan, (d) Mezzanine Loans or (e) mortgage loans, mortgaged-backed or mortgage pass-through securities or other mortgage-related assets of any kind, but only for such time as the foregoing remain financed under such facility.

“Weighted Average Life to Maturity” means, when applied to any Debt at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Debt.

“Withdrawal Liability” means any liability to a Multiemployer Plan as a result of a “complete withdrawal” or “partial withdrawal” from such Multiemployer Plan, as such terms are defined in Section 4201(b) of ERISA.

“Withholding Agent” means any Loan Party and any Agent.

“Yield Differential” has the meaning set forth in Section 2.15(e)(ii).

“Yield Maintenance Date” means the 36-month anniversary of the A&R Effective Date

1.2 Construction. Unless the context of this Agreement clearly requires otherwise, references to the plural include the singular and to the singular include the plural, the part includes the whole, the term “including” is not limiting, and the term “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase “and/or.” References in this Agreement to a “determination” or “designation” include estimates by the Agents (in the case of quantitative determinations or designations), and beliefs by the Agents (in the case of qualitative determinations or designations). The words “hereof,” “herein,” “hereby,” “hereunder,” and similar terms in this Agreement refer to this Agreement as a whole and not to

any particular provision of this Agreement. Article, section, subsection, clause, exhibit, and schedule references are to this Agreement unless otherwise specified. Any reference herein to this Agreement or any of the Loan Documents includes any and all alterations, amendments, restatements, changes, extensions, modifications, renewals, or supplements thereto or thereof, as applicable, made in accordance with the terms hereof or thereof. Any reference herein or in any other Loan Document to the satisfaction or repayment in full of the Obligations, any reference herein or in any other Loan Document to the Obligations being “paid in full” or “repaid in full” (except as set forth in Section 2.3(a)(v)), and any reference herein or in any other Loan Document to the action by any Person to repay the Obligations in full, shall mean the repayment in full in cash in Dollars of all Obligations other than contingent indemnification Obligations as to which no claim has been asserted or is anticipated and other than any Bank Product Obligations that, at such time, are allowed by the applicable Bank Product Provider to remain outstanding and are not required to be repaid or cash collateralized pursuant to the provisions of this Agreement. All payments hereunder or any other Loan Document in respect of the Obligations shall be made in Dollars.

1.3 Accounting Terms; GAAP; Pro Forma Calculations. (a) Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided that, if the Borrower notifies Agents that the Borrower wishes to amend any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if any Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then the Borrower’s (and the Guarantor’s, as applicable) compliance with such provision shall be determined on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.

ARTICLE II
AMOUNT AND TERMS OF LOANS

2.1 Credit Facilities. Subject to the terms and conditions of this Agreement:

(a) Term Loan Facility.

(i) Each Lender as of the Original Closing Date made an Initial Term Loan (the “Initial Term Loan”) to the Borrower on the Original Closing Date in an amount equal to the Term Loan Commitment of such Lender as of the Original Closing Date, which Initial Term Loan was funded net of the OID Amount.

(ii) Each Lender as of the date hereof agrees, severally and not jointly, to make an additional loan in an aggregate principal amount of $100,000,000 (the “A&R Effective Date Term Loan Commitment” and, the loan thereunder, the “A&R Effective Date Term Loan”) to the Borrower on the A&R Effective Date, which such A&R Effective Date Term Loan shall be funded inclusive of the OID Amount with respect to the A&R Effective Date Term Loan Commitment and the Delayed Draw Term Loan Commitment, and the Borrower shall promptly pay on the A&R Effective Date to each Lender its pro rata share of the OID Amount in accordance with the flow of funds. Notwithstanding the foregoing, all calculations of interest and fees in respect of the A&R Effective Date Term Loan will be calculated on the basis of their full stated principal amount. No later than 2:00 p.m. on the A&R Effective Date, each Lender shall make available to the Administrative Agent to the account of the Administrative Agent an amount in immediately available funds equal to the A&R Effective Date Term Loan to be made by such Lender. Upon receipt of all requested

funds, the Administrative Agent shall make the proceeds of the A&R Effective Date Term Loan available to the Borrower on the A&R Effective Date by wiring all such proceeds of the A&R Effective Date Term Loan to the account of the Borrower or to such other account as may be designated in writing to the Administrative Agent by the Borrower.

(iii) The Borrower may make only one borrowing under the A&R Effective Date Term Loan Commitment pursuant to Section 2.1(a)(ii), which shall be on the A&R Effective Date. Any amount borrowed under this Section 2.1(a) and subsequently repaid or prepaid may not be reborrowed. Subject to Section 2.7 and Section 2.8, all amounts owed hereunder with respect to the Initial Term Loans and the A&R Effective Date Term Loans shall be paid in full no later than the Maturity Date. Each Lender’s A&R Effective Date Term Loan Commitment shall terminate immediately and without further action on the A&R Effective Date after giving effect to the deemed funding of such Lender’s A&R Effective Date Term Loan Commitment on the A&R Effective Date.

(iv) The terms and provisions of the A&R Effective Date Term Loan shall be identical to those of the Initial Term Loans and shall rank pari passu in right of payment and in respect of the Collateral with the Initial Term Loans.

(v) With effect from the A&R Effective Date, the A&R Effective Date Term Loan shall be an “Incremental Term Loan and a “Term Loan” and the related Lenders shall be a Lender with an outstanding Term Loan.

(vi) For all purposes under this Agreement and the other Loan Documents, (i) the A&R Effective Date Term Loan Commitment will constitute Commitments, Term Loan Commitments and Incremental Term Loan Commitments, (ii) the A&R Effective Date Term Loan will constitute Loans, Term Loans and Incremental Term Loans, (iii) the related Lender will be a Lender and (iv) the A&R Effective Date Term Loan and the Term Loans funded under the Existing Credit Agreement prior to the A&R Effective Date shall collectively constitute the one and the same Class of Term Loans.

(b) Delayed Draw Term Loan Facility.

(i) Each Delayed Draw Term Loan Lender agrees, severally and not jointly, to make Delayed Draw Term Loans (the “Delayed Draw Term Loans” and, together with the Initial Term Loan and any Incremental Term Loans, as applicable, collectively, the “Loans”) to the Borrower pursuant to Section 2.12 on the last day of any Interest Period during the Delayed Draw Availability Period, in an aggregate principal amount not to exceed at any time the Delayed Draw Term Loan Commitments in effect at such time. Notwithstanding the foregoing, all calculations of interest and fees in respect of the Delayed Draw Term Loans will be calculated on the basis of their full stated principal amount.

(ii) Amounts paid or prepaid in respect of Delayed Draw Term Loans may not be reborrowed. All unused Delayed Draw Term Loan Commitments shall automatically terminate at 5:00 p.m. (Eastern Time) on the last Business Day of the Delayed Draw Availability Period, to the extent such amount of Delayed Draw Term Loan Commitments is not funded prior to such time.

(iii) Notwithstanding anything herein to the contrary, following the A&R Effective Date, the Borrower shall have, and the Delayed Draw Term Lenders shall provide, no more than two drawings of Delayed Draw Term Loans, each in an amount at least equal to $25,000,000, but not to exceed $25,000,000 per each drawing and not to exceed $50,000,000 in the aggregate, in each case, subject to the conditions set forth in Section 2.12.

2.2 [Reserved].

2.3 Interest Rates; Payment of Principal and Interest.

(a) Borrower shall make each payment due hereunder by making, or causing to be made in Dollars in immediately available funds, the amount thereof available to Agent’s Account, not later than 1:00 p.m. (Eastern Time), on the date of payment, for the account of the Lender Group. All payments received by the Administrative Agent after 1:00 p.m. (Eastern Time), may be deemed received on the next Business Day (in the Administrative Agent’s sole discretion) and any applicable interest shall continue to accrue.

(i) Unless the Administrative Agent receives notice from Borrower prior to the date on which any payment is due to the Lenders that the Borrower will not make such payment in full in Dollars in immediately available funds as and when required, the Administrative Agent may assume that the Borrower has made (or will make) such payment in full to the Administrative Agent on such date in Dollars in immediately available funds and the Administrative Agent may (but shall not be so required), in reliance upon such assumption, distribute to each Lender on such due date an amount equal to the amount then due such Lender.

(ii) Except as otherwise provided with respect to Defaulting Lenders, aggregate principal and interest payments shall be apportioned among the Lenders in accordance with their Pro Rata Share and applied thereto and payments of fees and expenses (other than fees or expenses that are for the Administrative Agent's separate account, after giving effect to any agreements between the Agents and individual Lenders) shall be apportioned ratably among the Lenders in accordance with Section 2.17. All payments shall be remitted to the Agents and all such payments, and all Proceeds of Collateral received by the Agents, shall be applied as follows:

(A) first, to pay any fees and Lender Group Expenses then due to the Agents under the Loan Documents, until paid in full,

(B) second, upon written notice from Borrower of the amounts to be paid and to whom such payments should be made, to pay any Bank Product Obligations that are Secured Obligations as cash collateral in an amount up to the amount determined by the applicable Bank Product Provider, in its reasonable discretion, as the amount necessary to secure Borrower’s or its Subsidiaries’ Bank Product Obligations that remain outstanding, until paid in full,

(C) third, to pay any fees and Lender Group Expenses then due to the Lenders (other than Defaulting Lenders) under the Loan Documents, on a ratable basis, until paid in full,

(D) fourth, ratably to pay interest due to the Lenders (other than Defaulting Lenders) in respect of the Loans until paid in full,

(E) fifth, to pay the principal of all Loans then due to the Lenders (other than Defaulting Lenders) until paid in full,

(F) sixth, to pay any other Obligations owed to Lenders (other than Defaulting Lenders), until paid in full,

(G) seventh, to pay any Obligations owed to Defaulting Lenders until paid in full, and

(H) eighth, to the Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.

(iii) the Administrative Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive.

(iv) For purposes of the foregoing, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding, other than contingent indemnification Obligations as to which no claim has been asserted or is anticipated and other than any Bank Product Obligations that, at such time, are allowed by the applicable Bank Product Provider to remain outstanding and that are not required by the provisions of this Agreement to be repaid or cash collateralized.

(v) In the event of a direct conflict between the priority provisions of this Section 2.3 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this

Section 2.3 shall control and govern.

(b) Each Loan shall bear interest upon the unpaid principal balance thereof, from the date advanced or continued, at a rate, per annum, equal to the lesser of (i) Interest Rate and (ii) the Highest Lawful Rate. Interest due with respect to each Loan shall be due and payable, in arrears, on each Interest Payment Date applicable to that Loan and on the Maturity Date. .

(c) Unless prepaid in accordance with the terms hereof, the outstanding principal balance of all Loans, together with accrued and unpaid interest thereon, shall be due and payable, in full, on the Maturity Date.

(d) Any Lender by written notice to the Borrower (with a copy to the Agents) may request that Loans made by it be evidenced by a promissory note. In such event, the Borrower shall execute and deliver to such Lender a promissory note, substantially in the form of Exhibit A-2 payable to such Lender (or, if requested by such Lender, to such Lender and its registered assigns). Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 9.1) be represented by one or more promissory notes in such form payable to the payee named therein (or to such payee and its registered assigns). For the avoidance of doubt, assignments of any Loans by Lenders (irrespective of whether promissory notes are issued hereunder) shall be in accordance with the provisions of Section 9.1 of this Agreement.

2.4 Computation of Interest and Fees; Maximum Interest Rate.

(a) All computations of interest with respect to the Loans and computations of the fees due hereunder for any period shall be calculated on the basis of a year of 360 days for the actual number of days elapsed in such period. Interest shall accrue from the first day of the making of a Loan (or the date on which interest or fees or other payments are due hereunder, if applicable) to (but not including) the date of repayment of such Loan (or the date of the payment of interest or fees or other payments, if applicable) in accordance with the provisions hereof.

(b) Anything to the contrary contained in this Agreement notwithstanding, the Borrower shall not be obligated to pay, and the Agents shall not be entitled to charge, collect, receive, reserve, or take interest (it being understood that interest shall be calculated as the aggregate of all charges which constitute interest under applicable law that are contracted for, charged, reserved, received, or paid) in excess of the Highest Lawful Rate. During any period of time in which the interest rates specified herein exceed the Highest Lawful Rate, interest shall accrue and be payable at such Highest Lawful Rate; provided, however, that, if the interest rate otherwise applicable hereunder declines below the Highest Lawful Rate, interest shall continue to accrue and be payable at the Highest Lawful Rate (so long as there remains any unpaid principal with respect to the Loans) until the interest that has been paid hereunder equals the amount of interest that would have been paid if interest had at all times accrued and been payable at the applicable interest rates otherwise specified in this Agreement. For purposes of this Section 2.4, the term “applicable law” shall mean that law in effect from time to time and applicable to this loan transaction which lawfully permits the charging and collection of the highest permissible, lawful, non-usurious rate of interest on such loan transaction and this Agreement, including laws of the State of New York and, to the extent controlling or the laws of the United States of America.

2.5 Request for Borrowing.

(a) Each Loan shall be made on a Business Day.

(b) Each Loan that is proposed to be made after the A&R Effective Date shall be made upon written notice, by way of a Request for Borrowing, which Request for Borrowing shall be irrevocable and shall be given by telefacsimile, mail, electronic mail (in a format bearing a copy of the signature(s) required thereon), or personal service, and delivered to the Administrative Agent at the address provided in Exhibit 11.3, by the Borrower giving the Administrative Agent notice at least ten (10) Business Days before the date the Loan is to be made, and such notice shall specify that a Loan is requested and state the amount and Interest Period thereof (subject to the provisions of this Article II).

(c) If the notice provided for in clause (b) of this Section 2.5 with respect to a Loan is received by the Administrative Agent not later than 1:00 p.m. (Eastern Time), on a Business Day, such day shall be treated as the first Business Day of the required notice period. In any other event, such notice will be treated as having been received immediately before 1:00 p.m. (Eastern Time) of the next Business Day and such day shall be treated as the first Business Day of the required notice period.

(d) Promptly after receipt of a Request for Borrowing pursuant to Section 2.5(b), the Administrative Agent shall notify the Lenders, not later than 4:00 p.m. (Eastern Time) on the tenth Business Day preceding the Funding Date, by telecopy, electronic mail (in a format bearing a copy of the signature(s) required thereon) or other similar form of transmission, of the requested Loan. Each Lender shall make the amount of such Lender’s Pro Rata Share of the requested Loan available to the Administrative Agent in immediately available funds, to Agent’s Account, not later than 1:00 p.m. (Eastern Time) on the Funding Date applicable thereto. After the Administrative Agent’s receipt of all the proceeds of such Loans, the Administrative Agent shall make the proceeds thereof available to the Borrower on the applicable Funding Date by transferring to the Designated Account immediately available funds equal to the proceeds that are requested by the Borrower to be sent to the Borrower in the applicable Request for Borrowing or apply such proceeds (after the deduction of the OID Amount) as directed by the Borrower.

(e) Unless the Administrative Agent receives notice from a Lender, prior to 12:00 p.m. (Eastern Time) on the date of such Loan, that such Lender will not make available as and when required hereunder to the Administrative Agent for the account of the Borrower the amount of that Lender’s Pro Rata Share of the Loan, the Administrative Agent may assume that each Lender has made or will make such amount available to the Administrative Agent in immediately available funds on the Funding Date and the

Administrative Agent may (but shall not be so required), in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. If and to the extent any Lender (other than the Administrative Agent) shall not have made its full amount available to the Administrative Agent in immediately available funds and the Administrative Agent in such circumstances has made available to the Borrower such amount, that Lender shall on the Business Day following such Funding Date make such amount available to the Administrative Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by the Administrative Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to the Administrative Agent shall constitute such Lender’s Loan on the date of such Loan for all purposes of this Agreement. If such amount is not made available to the Administrative Agent on the Business Day following the Funding Date, the Administrative Agent will notify Borrower of such failure to fund and, upon demand by the Administrative Agent, the Borrower shall pay such amount to the Administrative Agent for the Administrative Agent’s account, together with interest thereon for each day elapsed since the date of such Loan, at a rate per annum equal to the interest rate applicable at the time to the Loans composing such Loan, without in any way prejudicing the rights and remedies of the Borrower against the Defaulting Lender.

(f) Notwithstanding the provisions of Section 2.3(a)(ii), the Administrative Agent shall not be obligated to transfer to a Defaulting Lender any payments made by the Borrower to the Administrative Agent for the Defaulting Lender’s benefit or any Proceeds of Collateral that would otherwise be remitted hereunder to the Defaulting Lender, and, in the absence of such transfer to the Defaulting Lender, the Administrative Agent shall transfer any such payments (i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Required Agents, (iii) third, if so determined by the Required Agents and the Borrower, to be held in a deposit account and released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement, (iv) fourth, to the payment of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (v) fifth, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender's breach of its obligations under this Agreement, and (vi) sixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made at a time when the conditions set forth in Section 3.2 were satisfied or waived, such payment shall be applied solely to pay the Loans of all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of such Defaulting Lender until such time as all Loans are held by the Lenders in accordance with their Pro Rata Share. 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 pursuant to this Section 2.5(f) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents (including the calculation of Pro Rata Share in connection therewith) and for the purpose of calculating the fee payable under Section 2.9(b), such Defaulting Lender shall be deemed not to be a “Lender”, such Lender’s Delayed Draw Term Loan Commitment shall be deemed to be zero and such Lender’s Incremental Term Commitment shall be deemed to be zero; provided, that the foregoing shall not apply to any of the matters governed by Section 11.2(a) through (c). This Section shall remain effective with respect to such Defaulting Lender until the earlier of (y) the date on which all of the non-Defaulting Lenders, the

Required Agents and the Borrower shall have waived, in writing, the application of this Section 2.5(f) to such Defaulting Lender, or (z) the date on which such Defaulting Lender makes payment of all amounts that it was obligated to fund hereunder, pays to the Administrative Agent all amounts owing by Defaulting Lender in respect of the amounts that it was obligated to fund hereunder, and, if requested by the Required Agents, provides adequate assurance of its ability to perform its future obligations hereunder (on which earlier date, so long as no Event of Default has occurred and is continuing, any remaining cash collateral held by the Collateral Agent pursuant to Section 2.5(f)(ii) shall be released to the Borrower). The operation of this Section shall not be construed to increase or otherwise affect the Delayed Draw Term Loan Commitment or the Incremental Term Commitment of any Lender, if any, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by the Borrower of its duties and obligations hereunder to the Agents or to the Lenders other than such Defaulting Lender. Any failure by any Defaulting Lender to fund amounts that it was obligated to fund hereunder shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle the Borrower at its option, upon written notice to the Agents, to arrange for a substitute Lender to assume the duties and obligations of such Defaulting Lender, such substitute Lender to be reasonably acceptable to the Required Agents. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations, but including all interest, fees, and other amounts that may be due and payable in respect thereof); provided, that any such assumption of the duties and obligations of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or the Borrower’s rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund, including Borrower’s right to require Defaulting Lender to reimburse the Borrower for any fees, charges or expenses incurred by the Borrower under this Section 2.5(f) as a result of the failure by any Defaulting Lender to fund amounts that it was obligated to fund hereunder. In the event of a direct conflict between the priority provisions of this Section 2.5(f) and any other provision contained in this Agreement or any other Loan Document, it is the intention of the parties hereto that such provisions be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5(f) shall control and govern.

(g) All Loans shall be made by the Lenders contemporaneously and in accordance with their Pro Rata Shares. It is understood that (i) no Lender shall be responsible for any failure by any other Lender to perform its obligation to make any Loan (or other extension of credit) hereunder, nor shall any Commitment of any Lender be increased or decreased as a result of any failure by any other Lender to perform its obligations hereunder, and (ii) no failure by any Lender to perform its obligations hereunder shall excuse any other Lender from its obligations hereunder.

2.6 [Reserved]..

2.7 Repayment of Borrowings.

(a) The Borrower shall pay to the Administrative Agent in full and without notice or demand for the account of the Lenders, on the Maturity Date, all amounts of the Loans then outstanding, in each case, together with accrued and unpaid interest on the principal amount to be paid to but excluding the date of such payment.

(b) All repayments of the Loans made pursuant to this Section 2.7 shall be applied in the manner set forth in Section 2.3(a)(ii).

2.8 Prepayments.

(a) Subject to Section 2.8(c), the Borrower shall have the right to prepay the Loans. The Borrower shall give the Administrative Agent written notice no later than 1:00 p.m. (Eastern Time) not less than three (3) Business Day prior to any such prepayment. In each case, such notice shall specify the date on which such prepayment is to be made (which shall be a Business Day), and the amount of such prepayment. Each such prepayment shall be in an aggregate minimum amount of $500,000 and shall include the Prepayment Premium, if applicable, as well as interest accrued on the principal amount prepaid to, but not including, the date of payment in accordance with the terms hereof (or, in each case, such lesser amount constituting the amount of all Loans then outstanding). .

(b) Within three (3) Business Days after the occurrence of a Borrowing Base Deficiency, the Borrower shall prepay the outstanding principal amount of the Loans in an amount equal to (x) the aggregate amount necessary to eliminate such Borrowing Base Deficiency plus (y) the Prepayment Premium applicable to the principal amount of the Loan prepaid on such prepayment date, if any.

(c) Voluntary prepayments of Loans shall be applied first, to reduce any outstanding Lender Group Expenses and, second, in such order as the Borrower may direct. The Borrower may prepay the Loans subject to the payment of any accrued interest plus the Prepayment Premium applicable to such prepayment.

(d) [Reserved]

(e) If a Change of Manager Event occurs, the Borrower will, at the Lenders’ option (as provided by Lenders in writing to Borrower and Agents), prepay the Loans, plus accrued interest plus the Prepayment Premium applicable to the principal amount of the Loan prepaid on such prepayment date, if any.

(f) If a Change of Control Event occurs, the Borrower will, at the Lenders’ option (as provided by Lenders in writing to Borrower and Agents), prepay the Loans plus accrued interest plus the Prepayment Premium applicable to the principal amount of the Loan prepaid on such prepayment date, if any.

2.9 Fees.

(a) [Reserved].

(b) Agent Fees. The Borrower agrees to pay to the Agents for their own benefit the fees in the amount and at the times set forth in the Agent Fee Letter. Such fees shall be fully earned when paid and shall be non-refundable for any reason whatsoever.

(c) Trustee Fees. For so long as the Lenders under this Agreement are entities managed by J.P. Morgan Investment Management, Inc., and to the extent applicable, the Borrower agrees to pay to the Trustee, the Trustee Fee as required under the fee letter, dated as of December 15, 2017, between ACRC TL 2017 LLC and the Trustee.

2.10 Maintenance of Loan Account; Statements of Obligations. The Administrative Agent shall maintain an account on its books in the name of the Borrower (the “Loan Account”) on which the Borrower will be charged with all Loans made by the Lenders (or the Administrative Agent on behalf thereof) to the Borrower or for the Borrower’s account and all interest, fees, and expenses (in each case, as and when payable hereunder or under the other Loan Documents (which shall exclude Bank Product Obligations)). The Administrative Agent shall render statements regarding the Loan Account to the Borrower, including principal, interest, fees, and including an itemization of all expenses owing, and, subject to the entries in

the Register, which shall be controlling absent manifest error, such statements shall be conclusively presumed to be correct and accurate (absent manifest error) and constitute an account stated between the Borrower and the Administrative Agent unless, within 90 days after receipt thereof by the Borrower, the Borrower shall deliver to the Administrative Agent written objection thereto describing the error or errors contained in any such statements.

2.11 Increased Costs.

(a) If any change in, or the introduction, adoption, effectiveness, interpretation or reinterpretation or phase-in, in each case after the date hereof, of any law or regulation, directive, guideline, decision or request (whether or not having the force of law) of any court, central bank, regulator or other Governmental Authority (a “Regulatory Change”) affects the amount of capital required to be maintained by any Lender and such Lender determines (in its good faith discretion) that the rate of return on its capital as a consequence of the Loans or other advances of funds made by such Lender pursuant to this Agreement or any of the Loan Documents relating to fundings or commitments under this Agreement is reduced to a level below that which such Lender would have achieved but for the occurrence of any such circumstance, then, in any such case within thirty (30) days after written notice (which may be by email) from time to time by such Lender to the Borrower, the Borrower shall pay to such Lender compensation sufficient to compensate such Lender for such reduction in rate of return; provided, that such Lender shall provide the Borrower with such notice within a reasonable period of time following such Lender’s discovery of such increased costs or reductions. A statement of such Lender as to any such additional amount or amounts (including calculations thereof in reasonable detail), in the absence of manifest error, shall be conclusive and binding on the Borrower and such Lender. Notwithstanding the forgoing, (a) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith, and (b) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign Governmental Authorities, in each case pursuant to Basel III, shall, in the case of clause (a) and clause (b), be deemed to be introduced, adopted, implemented and/or effective after the date hereof (regardless of the date enacted, adopted, issued, implemented and/or effective). Notwithstanding anything to the contrary in this Section 2.11(a), the Borrower shall not be required to compensate any Lender pursuant to this Section 2.11(a) for any amounts incurred more than nine months prior to the date that such Lender notifies the Borrower of such Lender’s intention to claim compensation therefor; provided that, if the circumstances giving rise to such claim have a retroactive effect, then such nine month period shall be extended to include the period of such retroactive effect.

(b) If any Change in Law shall:

(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender;

(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or

(iii) impose on any Lender any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any participation therein;

and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, converting to, continuing or maintaining any Loan or of maintaining its obligation to make any such Loan or to reduce the amount of any sum received or receivable by such Lender or other Recipient hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or other Recipient, the Borrower will pay to such Lender or other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender or other Recipient, as the case may be, for such additional costs incurred or reduction suffered.

2.12 Delayed Draw Term Loans.

(a) The Borrower may, by submission of a Request for Borrowing to the Administrative Agent from time to time after the A&R Effective Date and prior to the end of the Delayed Draw Availability Period, but no more than two (2) times within any 60-day period, request a borrowing of Delayed Draw Term Loans to be made prior to the end of the Delayed Draw Availability Period, so long as, at the time any such borrowing (such borrowing, a “Delayed Draw Term Loan”) is requested and at the time such Delayed Draw Term Loans are incurred (giving pro forma effect to the incurrence of such Delayed Draw Term Loans), (x) the aggregate principal amount of such Delayed Draw Term Loans, taken together with all other Delayed Draw Term Loans and unused Delayed Draw Term Loan Commitments then outstanding, does not exceed $50,000,000 and (y) the Borrower is in compliance with the covenants set forth in Section 6.12 and no Default or Event of Default has occurred and is continuing. The Borrower shall notify the Administrative Agent of such request by delivering the Request for Borrowing, not later than 1:00 p.m. (Eastern Time), at least ten (10) Business Days prior to the requested date of a proposed Loan. Each such Request for Borrowing shall be irrevocable, and shall specify the following information: (i) the date of such Delayed Draw Term Loan (which shall be a Business Day) (the “Delayed Draw Funding Date”); (ii) the number and location of the account to which funds are to be disbursed; (iii) the amount of such Delayed Draw Term Loan (which shall be in minimum increments of $5,000,000 or such other amounts as the Required Agents may agree to); (iv) the Interest Period with respect thereto; and (v) a general statement as to the proposed use of proceeds of the draw; provided, however, that, notwithstanding any contrary specification in any Request for Borrowing, each requested Delayed Draw Term Loan shall comply with the requirements set forth in Section 2.1(b). The Administrative Agent shall promptly advise the applicable Lenders of any notice given pursuant to this Section 2.12 (and the contents thereof), and of each Lender’s portion of the requested borrowing.

(b) Notwithstanding the foregoing, no Delayed Draw Term Loans shall be made (and no Delayed Draw Term Loan Lender would be required to fund such Delayed Draw Term Loans) unless on the date of such Delayed Draw Term Loan, (i) the conditions set forth in Section 2.12(a) above shall be satisfied, (ii) after giving effect to such Delayed Draw Term Loan, the conditions of Section 3.2 are satisfied, (iii) the Agents shall have received a certificate, executed by a Responsible Officer of the Borrower, as to the matters set forth in the foregoing.

2.13 Funding Sources. Nothing herein shall be deemed to obligate the Lenders (or the Agents on behalf thereof) to obtain the funds to make any Loan in any particular place or manner and nothing herein shall be deemed to constitute representation by the Agents or any Lender that it has obtained or will obtain such funds in any particular place or manner.

2.14 Place of Loans. All Loans made hereunder shall be disbursed by credit to the Designated Account or as may otherwise be agreed to between Borrower and the Agents.

2.15 Incremental Term Loans.

(a) Incremental Term Commitments. The Borrower may at any time or from time to time after the A&R Effective Date, by written notice to the Agents (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) (an “Incremental Term Loan Request”), request the establishment of one or more new commitments which shall be in the same Credit Facility as any outstanding Initial Term Loans and any outstanding A&R Effective Date Term Loan (a “Term Loan Increase” and, collectively with any Term Loan Increase, the “Incremental Term Commitments”) in an aggregate principal amount not to exceed, $150,000,000.

(b) Incremental Term Loan Request. Each Incremental Term Loan Request from the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans. Incremental Term Loans may be made by any existing Lender (but no existing Lender will have an obligation to make any Incremental Term Commitment) or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”) (each such existing Lender or Additional Lender providing such, an “Incremental Lender”); provided that (i) the Required Lenders shall have consented in writing (not to be unreasonably withheld or delayed) to such Lender’s or Additional Lender’s making such Term Loan Increase; and (ii) Borrower shall only be permitted to request all or a portion (as applicable) of the Term Loan Increase from Additional Lenders if the Borrower has offered each of the existing Lenders an opportunity to provide such Term Loan Increase and the existing Lenders have declined to provide all or a portion of the Term Loan Increase (or have not responded in writing to the Borrower within ten (10) Business Days of any such offer); provided, further, that each Additional Lender, prior to becoming an Incremental Lender hereunder, shall have provided the Agents with a duly executed IRS From W-9, or such other applicable IRS Form, a fully completed Administrative Agent Questionnaire, and all “know your customer” documentation requested by the Agents.

(c) Incremental Term Loans. On any Incremental Facility Closing Date on which any Incremental Term Commitments are effected, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Incremental Lender shall make a loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Commitment and (ii) each Incremental Lender shall become a Lender hereunder with respect to the Incremental Term Commitment and the Incremental Term Loans made pursuant thereto.

(d) Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions:

(i) no Default or Event of Default has occurred and is continuing or would result from the Incremental Term Loan; provided that, solely with respect to any Incremental Term Loans incurred in connection with an acquisition that is permitted under this Agreement, no Default or Event of Default shall exist at the time the definitive documentation for such acquisition is executed;

(ii) after giving effect to such Incremental Term Commitments, the conditions of Section 3.2(a) shall be satisfied (it being understood that all references to “such date” or similar language in such Section 3.2(a) shall be deemed to refer to the effective date of such Incremental Amendment); provided that, if the proceeds of any Incremental Term Commitments are being used to finance an acquisition permitted hereunder, (x) the reference in Section 3.2(a) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute “specified representations” and the representations and warranties in the relevant acquisition agreement the breach of which would permit the buyer to terminate its obligations thereunder or decline to consummate such acquisition and (y) the

reference to “Material Adverse Effect” in the “specified representations” shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such acquisition permitted hereunder;

(iii) after giving effect to such Incremental Term Commitments, the Borrower is in compliance with the financial covenants set forth in Section 6.12; provided that, solely with respect to any Incremental Term Loans incurred in connection with an acquisition that is permitted under this Agreement, compliance with the financial covenants set forth in Section 6.12 shall exist at the time the definitive documentation for such acquisition is executed; and

(iv) to the extent reasonably requested by the Agents, the Agents shall have received (A) customary legal opinions addressed to the Agents and the Lenders, board resolutions and officers’ certificates consistent with those delivered on the Original Closing Date other than changes to such legal opinion resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Agents and (B) reaffirmation agreements and/or such amendments to the Security Agreement, as may be reasonably requested by the Agents in order to ensure that the enforceability of the Security Agreement and the perfection and priority of the Liens thereunder are preserved and maintained.

(e) Required Terms. The terms, provisions and documentation of the Incremental Term Loans and Incremental Term Commitments shall be as agreed between the Borrower and the applicable Incremental Lenders providing such Incremental Term Commitments, and except (x) to the extent otherwise permitted under this Section 2.15, (y) to the extent more restrictive on the Borrower or the Guarantors (when taken as a whole) in any material respect than those with respect to the Initial Term Loans or the A&R Effective Date Term Loans existing on the Incremental Facility Closing Date (but excluding any terms or conditions applicable after the Maturity Date) or (z) to the extent relating only to provisions of a mechanical or administrative nature, shall be reasonably satisfactory to the Agents. In any event:

(i) the Incremental Term Loans:

(A) shall rank pari passu in right of payment and in respect of the Collateral with the Initial Term Loans and the A&R Effective Date Term Loans;

(B) shall not mature earlier than the Maturity Date of any Initial Term Loans or any A&R Effective Date Term Loans outstanding at the time of incurrence of such Incremental Term Loans;

(C) shall have a Weighted Average Life to Maturity no shorter than the remaining Weighted Average Life to Maturity of any Initial Term Loans or any A&R Effective Date Term Loans outstanding at the time of incurrence of such Incremental Term Loans;

(D) subject to Section 2.15(f) below, shall have an applicable rate and amortization determined by the Borrower and the applicable Incremental Lenders; and

(E) may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Initial Term Loans or A&R Effective Date Term Loans hereunder, as specified in the applicable Incremental Amendment;

(ii) subject to the foregoing, the amortization schedule applicable to any Incremental Term Loans and the All-In Yield applicable to the Incremental Term Loans shall be determined by the

Borrower and the applicable Incremental Lenders and shall be set forth in each applicable Incremental Amendment; provided, however, that with respect to any Loans under Incremental Term Commitments, if the All-In Yield applicable to such Incremental Term Loans shall be greater than the applicable All-In Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to Initial Term Loans or the A&R Effective Date Term Loans by more than 50 basis points per annum (the amount of such excess, the “Yield Differential”), then the interest rate with respect to the Initial Term Loans or the A&R Effective Date Term Loans shall be increased by the applicable Yield Differential, as applicable; and

(iii) the proceeds, if any of the Incremental Term Loans, will be used for general corporate purposes of the Borrower and its Subsidiaries including, without limitation, for capital expenditures, permitted acquisitions and other permitted investments, restricted payments, refinancing of indebtedness and any other transaction not prohibited by this Agreement.

(f) Incremental Amendment.

(i) Incremental Term Commitments shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, amendments to the other Loan Documents, executed by the Borrower, each Incremental Lender providing such Commitments and the Agents, as applicable. The Incremental Amendment may, without the consent of any other Loan Party or, Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Agents and the Borrower, to effect the provisions of this Section 2.15.

(ii) The Lenders hereby irrevocably authorize the Agents to enter into amendments to this Agreement and the other Loan Documents with the Loan Parties as may be necessary in order to establish new Loans or commitments made or established pursuant to this Section 2.15 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Agents and the Borrower in connection with the establishment of such new Loans, in each case on terms consistent with this Section 2.15, including any amendments that are not adverse to the interests of any Lender that are made to effectuate changes necessary to enable any Incremental Term Loans to be fungible for United States federal income tax purposes with the Initial Term Loans and the A&R Effective Date Term Loans, which shall include any amendments that do not reduce the ratable amortization received by each Lender thereunder.

(g) This Section 2.15 shall supersede any provisions in Section 9.1 or Section 11.2 to the contrary.

2.16 Mitigation of Obligations. If any Lender requests compensation under Section 2.11, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 10.11, then such Lender shall use reasonable efforts to designate a different one of its lending offices or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if (i) in the reasonable judgment of such Lender, such designation or assignment would eliminate or reduce amounts payable pursuant to Sections 2.11, or 10.11, as applicable, and (ii) in the reasonable judgment of such Lender, such designation or assignment would not subject such Lender to any material unreimbursed cost or expense and would not otherwise be materially disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

2.17 Pro Rata Treatment.

(a) Each Loan shall be allocated among the Lenders in accordance with their respective Pro Rata Share.

(b) Except for prepayments contemplated by Section 2.8(d)(y), each repayment by the Borrower in respect of principal or interest on the Initial Term Loans or the A&R Effective Date Term Loans and each payment in respect of fees or expenses payable hereunder shall be applied to the amounts of such obligations owing to the Lenders entitled thereto in accordance with their respective Pro Rata Share. Each voluntary prepayment by the Borrower of Initial Term Loans or the A&R Effective Date Term Loans shall be applied to the amounts of such obligations owing to the Lenders in accordance with their respective Pro Rata Share (unless such payment is made in accordance with Section 9.1(f), in which case it shall be made in accordance with such Section). Except for prepayments contemplated by Section 2.8(d), each repayment by the Borrower in respect of principal or interest on the Delayed Draw Term Loans and each payment in respect of fees or expenses payable hereunder shall be applied to the amounts of such obligations owing to the Lenders entitled thereto in accordance with their respective Pro Rata Share. Each voluntary prepayment by the Borrower of Delayed Draw Term Loans shall be applied to the amounts of such obligations owing to the Delayed Draw Term Loan Lenders in accordance with their respective Pro Rata Share (unless such payment is made in accordance with Section 9.1(f), in which case it shall be made in accordance with such Section).

ARTICLE III

CONDITIONS TO LOANS

3.1 Conditions Precedent to the Initial Term Loan and the A&R Effective Date Term Loan

(a) Conditions Precedent to the Initial Term Loans. The effectiveness of the Original Credit Agreement, including the Lenders’ obligation to make the Initial Term Loans, was subject to the fulfillment, to the reasonable satisfaction of Agents and each Lender and its counsel, of the conditions precedent set forth in Section 3.1 of the Original Credit Agreement, in addition to the conditions set forth in Section 3.2 hereof.

(b) Conditions Precedent to the A&R Effective Date Term Loans. The obligation of each Lender to make the A&R Effective Date Term Loans hereunder on or after the date hereof is, in addition to the conditions set forth in Section 3.2 hereof, subject to the fulfillment, to the reasonable satisfaction of Agents and each Lender and its counsel, of each of the following conditions on or before the A&R Effective Date:

(i) The Agents shall have received the results of a recent lien, tax lien, judgment and litigation search in each of the jurisdictions or offices in which UCC financing statement or other filings or recordations should be made to evidence or perfect security interests in all assets of the Loan Parties (or would have been made at any time during the five years immediately preceding the A&R Effective Date to evidence or perfect Liens on any assets of the Loan Parties), and such search shall reveal no Liens or judgments on any of the assets of the Loan Parties, except for Permitted Liens or Liens and judgments to be terminated on the A&R Effective Date pursuant to documentation satisfactory to the Agents;

(ii) The Agents shall have received this Agreement and the Reaffirmation Agreement, each duly executed and delivered by each party thereto, each in form and substance reasonably satisfactory to the Agents;

(iii) The Agents shall have received the written opinions, dated the date of this Agreement, of counsel to the Loan Parties and the grantors party to the Negative Pledge Agreement, with respect to this Agreement and the other Loan Documents, which written opinions shall be in form and substance reasonably satisfactory to the Agents and their counsel;

(iv) The Agents shall have received a certificate of status with respect to each Loan Party dated within 30 days of the date of this Agreement, or confirmed by telefacsimile, if telefacsimile confirmation is available, such certificate to be issued by the Secretary of State of the jurisdiction of organization of each Loan Party, which certificate shall indicate that such Loan Party is in good standing in such State;

(v) The Agents shall have received a copy of each Loan Party’s Governing Documents, certified by a Responsible Officer with respect to such Loan Party;

(vi) The Agents shall have received a copy of the resolutions or the unanimous written consent with respect to each Loan Party, certified as of the A&R Effective Date by a Responsible Officer of such Loan Party, authorizing (A) the execution, delivery and performance by such Loan Party of this Agreement, the Fee Letter and the Reaffirmation Agreement to which such Loan Party is or will be a party and (B) the execution and delivery of the other documents to be delivered by such Loan Party in connection herewith and therewith;

(vii) The Agents shall have received a signature and incumbency certificate of the Responsible Officer with respect to each Loan Party executing this Agreement, the Fee Letter, the Reaffirmation Agreement and the other Loan Documents not previously delivered to each Agent to which each Loan Party is a party, certified by a Responsible Officer with respect to each Loan Party;

(viii) Since December 31, 2020, no Material Adverse Effect has occurred;

(ix) the Borrower shall have paid all fees incurred in connection with the transactions evidenced by this Agreement on the A&R Effective Date and, in each case subject to the Expenses Cap (unless, at any Lender’s reasonable request, the Borrower consents to reimburse the Lenders for any out-of-pocket costs and expenses incurred on or before the A&R Effective Date that exceed the Expenses Cap, which if not reimbursed, the Lenders may elect not to proceed with the transactions evidenced by this Agreement), all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement for which the Borrower received an invoice at least 3 Business Days prior to the A&R Effective Date; and

(x) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered or executed or recorded and shall be in form and substance reasonably satisfactory to Agents and their counsel.

3.2 Conditions Precedent to All Loans. The obligation of the Lenders to make any Loan hereunder (or to extend any other credit hereunder) is subject to the fulfillment, at or prior to the time of the making of such Loan, of each of the following conditions:

(a) The representations and warranties of the Borrower contained in this Agreement and the other Loan Documents shall be true and correct on the A&R Effective Date or, with respect to any Loans made after the A&R Effective Date, in all material respects (except that such materiality qualifier shall not be applicable to any representation or warranty to the extent that such representation or warranty is qualified or modified by materiality) on and as of the date of such Loan as though

made on and as of such date (except to the extent that such representations and warranties solely relate to an earlier date) (subject in the case of Incremental Term Loans to Section 2.15(d)(ii));

(b) No Event of Default or Default shall have occurred and be continuing on the date of such Loan, nor shall either result from the making of such Loan (subject in the case of Incremental Term Loans to Section 2.15(d)(i));

(c) The Borrower is in compliance with the covenants set forth in Section 6.12 both before and after giving effect to such Loan (subject in the case of Incremental Term Loans to Section 2.15(d)(iii));

(d) The Borrower shall have delivered to the Administrative Agent a Request for Borrowing pursuant to the terms of Section 2.1(b), Section 2.5 and Section 2.15 hereof, as applicable;

(e) The Borrower shall have delivered a Borrowing Base Certificate to the Agents at least three (3) Business Days prior to the date of any such Loan, including a general statement as to the proposed use of proceeds of the draw; and

(f) The aggregate principal amount of all Incremental Term Loans under this Agreement, irrespective of whether such Incremental Term Loans have been repaid or prepaid, shall not exceed (a) $150,000,000 plus (b) the amount of Incremental Term Loans incurred pursuant to Section 6.1(x) (subject to Section 2.15).

3.3 Maturity Date.

(a) This Agreement shall continue in full force and effect for a term ending on the earlier of (the “Maturity Date”): (a) the five year anniversary of the A&R Effective Date and (b) such earlier date on which the Loans shall become due and payable in accordance with the terms of this Agreement and the other Loan Documents.

ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE BORROWER

Each Loan Party makes the following representations and warranties as of the A&R Effective Date and on and as of the date of each Loan as though made on and as of the date of the making of such Loan (except to the extent that such representations and warranties relate solely to an earlier date) and such representations and warranties shall survive the execution and delivery of this Agreement and the making of the Loans:

4.1 Due Organization. Each of the Borrower and its Subsidiaries is a duly organized and validly existing limited liability company in good standing under the laws of the jurisdiction of its incorporation or organization and is duly qualified to conduct business in all other jurisdictions where its failure to do so could reasonably be expected to have a Material Adverse Effect.

4.2 Securities and Subsidiaries. Schedule 4.2 sets forth (i) each Loan Party and its jurisdiction of incorporation or organization as of the A&R Effective Date and (ii) the number of each class of its Securities authorized, and the number outstanding, on the A&R Effective Date and the number of Securities covered by all outstanding options, warrants, rights of conversion or purchase and similar rights on the A&R Effective Date. All Securities of each Loan Party are duly and validly issued and are fully paid and non-assessable, and, other than the Securities of the Borrower, are owned by the Borrower, directly or indirectly. Each Loan Party is the record and beneficial owner of, and has good and marketable

title to, the Securities pledged by (or purported to be pledged by) it under the Security Agreement, to the knowledge of each Loan Party, free of any and all Permitted Collateral Liens (other than in respect to Liens arising pursuant to clause (d) of the definition thereof), and, as of the A&R Effective Date, there are no outstanding warrants, options or other rights (including derivatives) to purchase, or shareholder, voting trust or similar agreements outstanding with respect to, or property that is convertible into, or that requires the issuance or sale of, any such Securities (or any economic or voting interests therein).

4.3 Requisite Power and Authorization. Each Loan Party has all requisite power and authority to execute and deliver this Agreement and the other Loan Documents to which it is a party, and, if applicable, to borrow the sums provided for in this Agreement. Each of the Borrower and its Subsidiaries has all governmental licenses, authorizations, consents, and approvals necessary to own and operate its Assets and to carry on its businesses as now conducted and as proposed to be conducted, other than licenses, authorizations, consents, and approvals that are not currently required or the failure to obtain which could not reasonably be expected to be materially adverse to any Lender. The execution, delivery, and performance of this Agreement and the other Loan Documents have been duly authorized by each Loan Party and all necessary limited liability company or corporate action in respect thereof has been taken, and, other than as set forth on Schedule 4.3, the execution, delivery, and performance thereof do not require any other material consent or approval of any other Person that has not been obtained.

4.4 Binding Agreements. This Agreement and the other Loan Documents to which any Loan Party is a party, when executed and delivered by such Loan Party, will constitute the legal, valid, and binding obligations of such Loan Party, enforceable against such Loan Party in accordance with their terms except as the enforceability hereof or thereof may be affected by: (a) bankruptcy, insolvency, reorganization, moratorium, or other similar laws affecting the enforcement of creditors’ rights generally, and (b) equitable principles of general applicability (whether considered in a proceeding in equity or law).

4.5 Other Agreements. The execution, delivery, and performance by each Loan Party of this Agreement and the other Loan Documents to which any Loan Party is a party, do not and will not: (a) violate (i) in any material respect any provision of any federal (including the Exchange Act), state or local law, rule, or regulation (including Regulations T, U, and X of the Federal Reserve Board) binding on any Loan Party, (ii) in any material respect any order of any Governmental Authority, court, arbitration board or tribunal binding on any Loan Party or (iii) the Governing Documents of any Loan Party, or (b) contravene any provisions of, result in a breach of, constitute (with the giving of notice or the lapse of time) a default under, or result in the creation of any Lien (other than Liens granted by the Loan Parties to the Collateral Agent, for the benefit of the Secured Parties, to secure the Obligations under this Agreement) upon any of the Assets of any Loan Party pursuant to any Material Agreement, or (c) require termination of any Material Agreement, or (d) constitute a tortious interference with any material Contractual Obligation of the Borrower or its Subsidiaries.

4.6 Litigation: Adverse Facts and Compliance with Laws.

(a) There is no action, suit, proceeding, or arbitration (irrespective of whether purportedly on behalf of any Loan Party) at law or in equity, or before or by any federal, state, municipal, or other governmental department, commission, board, bureau, agency, or instrumentality, domestic or foreign, pending or threatened in writing against or affecting the Borrower and any of its Subsidiaries, that could reasonably be expected to have a Material Adverse Effect, or could reasonably be expected to materially and adversely affect any Loan Party’s ability to perform its obligations under the Loan Documents to which it is a party (including Borrower’s or the Guarantor’s ability to repay any or all of the Loans when due);

(b) Neither the Borrower nor any of its Subsidiaries is subject to or in default with respect to any order, final judgment, writ, injunction, decree, rule, or regulation of any Governmental Authority in a manner that could reasonably be expected to have a Material Adverse Effect or could reasonably be expected to materially and adversely affect any Loan Party’s ability to perform its obligations under the Loan Documents to which it is a party (including Borrower’s or the Guarantor’s ability to repay any or all of the Loans when due);

(c) Neither the Borrower nor any of its Subsidiaries (i) has failed to comply with Environmental Laws or to obtain, maintain and comply with any permit, license or other approval required to be obtained by the Borrower or any of its Subsidiaries under any Environmental Law, (ii) is subject to any material liability under Environmental Law, (iii) has received written notice of any claim alleging that it is in violation of Environmental Law or has liability under Environmental Law or (iv) has actual knowledge of existing facts or circumstances that would reasonably be expected to form the basis of a claim that it has liability under Environmental Law, except, in the case of each of items (i) through (iv) above, would not reasonably be expected to have a Material Adverse Effect; and

(d) (i) there is no action, suit, proceeding or investigation pending or, to the best of the Borrower’s knowledge, threatened in writing against or affecting the Borrower or any of its Subsidiaries that questions the validity or the enforceability of this Agreement or other the Loan Documents, and (ii) there is no action, suit, or proceeding pending against or affecting any Loan Party pursuant to which, on the date of the making of any Loan hereunder, there is not in effect a binding injunction that could reasonably be expected to materially and adversely affect the validity or enforceability of this Agreement or the other Loan Documents.

4.7 Government Consents. Other than such as may have previously been obtained, filed, or given, as applicable, no consent, license, permit, approval, or authorization of, exemption by, notice to, report to or registration, filing, or declaration with, any Governmental Authority is required in connection with the execution, delivery, and performance by the Loan Parties of the Loan Documents to which they are a party, in each case, except as could not reasonably be expected to have a Material Adverse Effect.

4.8 Title to Assets; Liens. Except for Permitted Liens, all of the Assets held by the Borrower and its Subsidiaries are free from all Liens of any nature whatsoever. Except for Permitted Liens, the Borrower and its Subsidiaries have good and sufficient title to all of the Assets held by the Borrower and its Subsidiaries.

4.9 ERISA. Except as could not reasonably expected to have a Material Adverse Effect, each Plan is in compliance with the applicable provisions of ERISA, the Code and other Federal and state laws. Except as could not reasonably be expected to have a Material Adverse Effect, (i) no ERISA Event has occurred or is reasonably expected to occur; (ii) no Loan Party has incurred, or reasonably expects to incur, any liability (including liability as an ERISA Affiliate of another Person) under Title IV of ERISA with respect to any Single Employer Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (iii) no Loan Party has incurred or reasonably expects to incur any liability (including liability as an ERISA Affiliate of another Person), and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability, under Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (iv) no Loan Party and, to the knowledge of any Loan Party, no ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or 4212(c) of ERISA.

4.10 Payment of Taxes. All material tax returns and reports of the Loan Parties (and all parent entities of such Loan Parties with which any Loan Party is or has been consolidated or combined) required to be filed by it have been timely filed (inclusive of any permitted extensions), and all material Taxes, governmental

assessments, fees, and amounts required to be withheld and paid to a Governmental Authority and all other governmental charges imposed upon the Loan Parties, and upon their Collateral, income, and franchises, that are due and payable have been paid except for any claims for Taxes that are being contested, in good faith, by appropriate proceedings promptly instituted and diligently conducted, and with respect to which an adequate reserve or other appropriate provision, if any, shall have been made in order to be in conformity with GAAP.

4.11 Governmental Regulation.

(a) The Loan Parties are not, nor immediately after the application by the Borrower of the proceeds of the Loans will they be, required to be registered as an “investment company” under the Investment Company Act of 1940, as amended.

(b) No Loan Party holds any interest in any Margin Securities. No part of the proceeds of the loans made to the Borrower will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or for any purpose that violates the provisions of Regulation T, U or X of the Board of Governors.

(c) No Loan Party is subject to regulation under any federal, state, or local law, rule, or regulation generally limiting its ability to incur Debt.

4.12 Disclosure. No representation or warranty of any Loan Party contained in this Agreement or any other document, certificate, or written statement furnished to any Agent or any Lender with respect to the business, operations, Collateral, or condition (financial or otherwise) of the Loan Parties in connection with the transactions contemplated by this Agreement (other than projections, pro forma financial statements and budgets and information of a general economic or industry-wide nature) contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein, in light of the circumstances under which they were made, not materially misleading. There is no fact known to any Loan Party (other than matters of a general economic industry-wide nature) that any Loan Party believes reasonably could be expected to have a Material Adverse Effect, that has not been disclosed herein or in such other documents, certificates, and statements furnished to any Agent or any Lender for use in connection with the transactions contemplated hereby.

4.13 Debt. The Borrower and its Subsidiaries do not have any Debt outstanding other than Debt permitted by Section 6.1 hereof.

4.14 Existing Defaults. Neither the Borrower nor any of its Subsidiaries is in default in the performance, observance or fulfillment of any of the obligations contained in any Contractual Obligation applicable to it, and no condition exists which, with or without the giving of notice or the lapse of time, would constitute a default under any such Contractual Obligation, except, in any such case, where the consequences, direct or indirect, of such default or defaults, if any, could not reasonably be expected to have a Material Adverse Effect.

4.15 No Material Adverse Effect. No event or development has occurred which could reasonably be expected to result in a Material Adverse Effect.

4.16 Security Documents. The Security Agreement is effective to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a legal, valid, binding and enforceable first-priority security interest in the Collateral described herein and therein and in proceeds and products thereof as set forth herein and therein (subject to Permitted Collateral Liens). In the case of (i) Pledged Securities represented by certificates, (x) when such certificates are delivered to the Collateral Agent or (y) when financing

statements in appropriate form are filed in the offices specified on Schedule 4.16, and (ii) the other Collateral described in the Security Agreement, when financing statements in appropriate form are filed in the offices specified on Schedule 4.16 and such other filings as are specified on Schedule 2 to the Security Agreement have been completed, the Lien created by the Security Agreement shall constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in such Collateral and the proceeds and products thereof, as security for the Secured Obligations (as defined in the Security Agreement), in each case, prior and superior in right to any other Person (subject to Permitted Collateral Liens).

4.17 Solvency. The Borrower is, each Loan Party and ACRC Lender are, and the other Subsidiaries of the Borrower are taken as a whole, both immediately before and immediately following the making of each Loan and after giving effect to the application of the proceeds of each Loan, the pledge of Collateral and the guarantee in favor of the Agents and the Lenders, as applicable, Solvent.

4.18 Use of Proceeds.

(a) The proceeds of the Loans shall be used (i) to refinance existing Debt of the Borrower and its Subsidiaries, (ii) to permit the Borrower and its Subsidiaries to purchase or originate and hold Borrowing Base Eligible Assets, (iii) for any general other corporate purposes of the Borrower and its Subsidiaries (including for capital expenditures, permitted acquisitions and other permitted investments, restricted payments, refinancing of indebtedness and any other transaction not prohibited by the Loan Documents) and (iv) to pay fees and expenses related to the transactions contemplated by the Loan Documents.

(b) No part of the proceeds of the Loans will be used, directly or indirectly, for any payment to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended.

4.19 Anti-Corruption and Anti-Money Laundering Laws and Sanctions. Each Loan Party has implemented and maintains in effect policies and procedures reasonably designed to ensure compliance by each Loan Party, their Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws, Anti-Money Laundering Laws and Sanctions, and each Loan Party and its Subsidiaries and their respective directors, officers and employees are, to the knowledge of each Loan Party, its directors and agents, in compliance with Anti-Corruption Laws, Anti-Money Laundering Laws, and Sanctions in all material respects. None of (i) the Loan Parties or, to the knowledge of each Loan Party, their Subsidiaries, or to the knowledge of the Loan Parties or such Subsidiaries, any of their respective directors, officers or employees, or (ii) to the knowledge of the Loan Parties, any agent of the Loan Parties or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Loan, use of proceeds from this Agreement or other transaction contemplated by this Agreement will violate Anti-Corruption Laws, Anti-Money Laundering Laws or Sanctions.

ARTICLE V
AFFIRMATIVE COVENANTS OF THE BORROWER

The Borrower covenants and agrees that until payment, in full, of the Loans, with interest accrued and unpaid thereon, the Borrower will, and will cause its Subsidiaries to, do each and all of the following:

5.1 Accounting Records and Inspection.

(a) Maintain adequate financial and accounting books and records in accordance with sound business practices and GAAP consistently applied; and

(b) permit any representative of the Agents (and after the occurrence and during the continuance of an Event of Default, any representatives of each Lender) upon reasonable notice to the Borrower, at any time during usual business hours, to inspect, audit, and examine the Borrower’s financial and accounting books and records and to make copies and take extracts therefrom, and to discuss its affairs, financing, and accounts with the Borrower’s or the Guarantors’ officers and independent public accountants (provided that the Borrower shall have the opportunity to be present at any meeting with its independent public accountants); provided that unless an Event of Default has occurred and is continuing, no more than one inspection per year may be made at the Borrower’s expense.

5.2 Financial Statements. Furnish to the Agents:

(a) As soon as publicly available (including, pursuant to any filing under the Exchange Act or with any national securities exchange), but in any event within 90 days after the end of each fiscal year of the Borrower (commencing with the fiscal year ended December 31, 2015), a copy of the consolidated balance sheet of the Borrower as at the end of such fiscal year and the related consolidated statements of income or operations, changes in stockholders’ equity and cash flows for such fiscal year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a customary report and opinion of an independent certified public accounting firm of nationally recognized standing (including without limitation Ernst & Young, PricewaterhouseCoopers LLP, Deloitte and KPMG) which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit (other than a “going concern” qualification resulting solely from an upcoming maturity date under the Credit Facilities occurring within one year from the time such opinion is delivered); and

(b) As soon as publicly available (including, pursuant to any filing under the Exchange Act or with any national securities exchange), but in any event within 40 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower (commencing with the fiscal quarter ended September 30, 2015), a copy of the unaudited consolidated balance sheet of the Borrower as at the end of such fiscal quarter and the related unaudited consolidated statements of income or operations, changes in stockholders’ equity and cash flows for such fiscal quarter and the portion of the fiscal year through the end of such fiscal quarter, all in reasonable detail (subject only to normal year-end audit adjustments).

5.3 Certificates; Other Information. Furnish to the Agents:

(a) concurrently with the delivery of the financial statements pursuant to Section 5.2(a) and (b), (i) a completed Compliance Certificate duly executed by a Responsible Office of the Borrower containing all information and calculations necessary (in reasonable detail) for determining (A) that no Event of Default or any Default has occurred or is continuing, (B) if an Default has occurred, a statement as to the nature thereof and the action which is proposed to be taken in respect thereto and (C) compliance by the Borrower with Section 6.12, in each case, as of the last day of the fiscal quarter or fiscal year of the Borrower, (ii) a duly completed Borrowing Base Certificate setting forth the Borrowing Base based on the most recent Borrowing Base Value and (iii) notice of any event giving rise to the occurrence of a VAE;

(b) promptly (but in any event within five (5) Business Days unless otherwise specified), after a Responsible Officer of the Borrower or any Guarantor has knowledge thereof, written notice of:

(i) the occurrence of any Event of Default or any Default;

(ii) any Material Modification that occurs and, in any such event, the Borrower shall also supply the Agents with copies of any modifications, waivers or forbearances allowed by the Borrower pursuant thereto within five (5) Business Days following the occurrence thereof;

(iii) the occurrence of a VAE in respect of any Borrowing Base Eligible Asset within ten (10) Business Days following the occurrence thereof;

(iv) [Reserved]

(v) a judgment by any competent court against the Borrower or any of its Subsidiaries for the payment of money in an amount greater than $15,000,000;

(vi) any default or event of default as defined in any Contractual Obligation relating to Debt, in each case in an amount not less than $15,000,000 and irrespective of whether such Debt is accelerated or such default waived;

(c) as soon as practicable, written notice of any condition or event which has resulted or could reasonably be expected to result in a Material Adverse Effect.

(d) such other information as any Agent may reasonably request from time to time in connection with the Collateral or other business or financial information of the Borrower and its Subsidiaries; and

(e) If requested by any Agent from time to time, promptly deliver to the Agents copies of any annual report to be filed in connection with each Plan.

5.4 Existence. Preserve and maintain its legal existence and all of its material rights, privileges, licenses and franchises.

5.5 Payment of Taxes and Claims. File all material Tax returns including income Tax returns required to be filed by or on behalf of the Loan Parties. Pay all (a) material Taxes, governmental assessments, and other governmental charges imposed on any of the Loan Parties or upon any of the Borrowing Base Eligible Assets or the Collateral or in respect of any of its businesses, incomes, Collateral, or Borrowing Base Eligible Assets before any penalty or interest accrues thereon, and (b) all claims in excess of $100,000 in the aggregate (including claims for labor, services, materials, and supplies) for sums which have become due and payable and which by law have or may become a Lien upon any of the Collateral or Borrowing Base Eligible Assets, prior to the time when any penalty or fine shall be incurred with respect thereto; provided, however, that, unless such Taxes, assessments, charges, or claims have become a federal tax Lien on any of the Collateral or the Borrowing Base Eligible Assets, no such Tax, assessment, charge, or claim need be paid if the same is being diligently contested, in good faith, by appropriate proceedings promptly instituted and diligently conducted and if an adequate reserve or other appropriate provision, if any, shall have been made therefor as required in order to be in conformity with GAAP.

5.6 Compliance with Laws and Material Contractual Obligations. (a) Comply in all material respects with the requirements of all applicable laws, rules, regulations (including Regulations T, U and X of the Federal Reserve Board), and orders of any Governmental Authority, noncompliance with which could

reasonably be expected to have a Material Adverse Effect and (b) perform in all material respects its obligations under Material Agreements to which it is a party.

5.7 Further Assurances. At any time or from time to time upon the request of the Agents, execute and deliver such further documents and do such other acts and things as the Agents may reasonably request in order to effect fully the purposes of this Agreement or the other Loan Documents and to provide for payment of the Loans made hereunder, with interest thereon, in accordance with the terms of this Agreement.

5.8 Payment of Obligations. Pay, discharge or otherwise satisfy as the same shall become due and payable in the normal conduct of its business all its material obligations and liabilities including, without limitation, any such material obligations pursuant to any agreement by which it or any of its properties is bound.

5.9 Maintenance of Insurance. Maintain with financially sound and reputable insurance companies not Affiliates of the Borrower insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or a similar business of such types and in such amounts (after giving effect to any self-insurance compatible with the following standards) as are customarily carried under similar circumstances by such other Persons.

5.10 Maintenance of Property and Licenses. In addition to the requirements of the Security Agreement, (a) protect and preserve all property necessary in and material to their business then being conducted, including copyrights, patents, real estate, trade names, service marks and trademarks, (b) maintain in good working order and condition, ordinary wear and tear and casualty excepted, all buildings, equipment and other tangible real and personal property necessary and material to its business as then being conducted and (c) from time to time make or cause to be made all repairs, renewals and replacements thereof and additions to such property necessary and material for the conduct of its business as then being conducted, so that the business carried on in connection therewith may be conducted in a commercially reasonable manner.

5.11 Covenant to Guarantee Obligations and Give Security. Execute any and all further documents, financing statements, agreements and instruments, and take all further action (including filing Uniform Commercial Code and other financing statements) that may be required under applicable requirements of law, or that the Required Lenders or the Agents may reasonably request, in order to effectuate the transactions contemplated by the Loan Documents and in order to grant, preserve, protect and perfect the validity and priority of the security interests created or intended to be created by the Loan Documents. Notwithstanding anything to the contrary set forth herein, in no event shall this Section 5.11 require the granting of any Lien on any Excluded Assets.

5.12 ERISA. (a) Make, or cause to be made, timely payment of contributions required to meet the requirements of the Pension Funding Rules with respect to each Single Employer Plan; (b) notify the Agents as soon as practicable (but in any event within five (5) Business Days) of any ERISA Event; and (c) furnish to the Agents, promptly upon Agent’s request therefor, such additional information concerning any Single Employer Plan as may be reasonably requested by the Agents from time to time.

5.13 Post-Closing Items. Within the time periods specified on Schedule 5.13 (or such later date to which the Agents consent in writing), comply with the provisions set forth in Schedule 5.13.

ARTICLE VI
NEGATIVE COVENANTS OF THE BORROWER

The Borrower covenants and agrees that, until payment, in full, of the Loans, with interest accrued and unpaid thereon, the Borrower will not and will not permit any of its Subsidiaries to do any of the following:

6.1 Debt. Create, incur, assume, permit, guarantee, or otherwise become or remain, directly or indirectly, liable with respect to any Debt, except:

(a) Debt evidenced by this Agreement and the other Loan Documents;

(b) Debt or amounts available under Debt facilities (whether or not drawn) existing on the A&R Effective Date and listed on Schedule 6.1 and any draws, refinancings, renewals or extensions thereof so long as: (i) such draws, refinancings, renewals, replacements or extensions do not result in an increase in the aggregate maximum principal amount of the Debt permitted under such Debt facilities so drawn, refinanced, renewed, or extended (other than for accrued interest and premiums and fees), (ii) such draws, refinancings, renewals, replacements, or extensions do not result in a shortening of the average weighted maturity of the Debt so drawn, refinanced, renewed, , replaced, or extended, nor are they on terms or conditions that, taken as a whole, are materially more burdensome or restrictive to the Borrower or any of its Subsidiaries, and (iii) the Debt that is drawn, refinanced, renewed, , replaced, or extended is not recourse to any Person that is liable on account of the Loans other than those Persons which were obligated with respect to the Debt that was drawn, refinanced, renewed, replaced, or extended; provided that, ACRC Lender (or its replacement, successor or permitted assign) may, to the extent the Borrower is in pro forma compliance with the covenants set forth in Section 6.12, increase the maximum commitments and amounts drawn by ACRC Lender (or its replacement, successor or permitted assign) under the City National Bank Facility in a proportionate amount equal to the aggregate amount of the proceeds of any Post-A&R Effective Date Equity Issuance (as defined below) divided by Tangible Net Worth as of the last day of the most recent Test Period so long as the increase in the maximum commitments and amounts drawn under the City National Bank Facility, when added together with unsecured Debt incurred by the Borrower in reliance on clause (t) below, does not exceed $200 million;

(d) Securitization Indebtedness;

(e) Debt in respect of Capitalized Lease Obligations and Purchase Money Obligations financing an acquisition, construction, repair, replacement, lease or improvement of a fixed or capital asset incurred by the Borrower or any of its Subsidiaries within 270 days after the acquisition, construction, repair, replacement, lease or improvement of the applicable asset in an aggregate principal amount not to exceed $10,000,000;

(f) Contingent Obligations resulting from the endorsement of instruments for collection in the ordinary course of business;

(g) Debt between the Borrower and any of its Subsidiaries and so long as such Debt is evidenced by a promissory note and, to the extent such note constitutes Collateral, it is delivered to the

Collateral Agent and subordinated pursuant to an Intercompany Subordination Agreement to the extent requested by the Lenders;

(h) Debt which may be deemed to exist pursuant to any performance bonds, surety bonds, statutory bonds, appeal bonds or similar obligations incurred in the ordinary course of business;

(i) Debt in respect of netting services, overdraft protections and otherwise in connection with deposit accounts incurred in the ordinary course of business;

(j) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;

(k) Debt of the Borrower or any of its Subsidiaries in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments created or issued in the ordinary course of business in connection with workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Debt with respect to reimbursement-type obligations regarding workers’ compensation claims;

(l) Debt owing to any insurance company in connection with the financing of any insurance premiums permitted by such insurance company in the ordinary course of business in an amount not exceed $1,000,000 at any time outstanding;

(m) (i) Debt representing deferred compensation or stock-based compensation incurred in the ordinary course of business and (ii) Debt issued by the Borrower or any Subsidiary to current or former officers, directors, employees, managers and consultants, and their respective personnel, estates, spouses or former spouses, of any the Borrower or any Subsidiary, in lieu of or combined with cash payments, to finance the purchase or redemption by any such Person of Securities of the Borrower or any Subsidiary, in each case, to the extent such purchase or redemption is permitted by Section 6.4;

(n) for the avoidance of doubt, any amounts payable by the Borrower or any of its Subsidiaries with respect to declared and unpaid dividends that were permitted by Section 6.4 at the time of declaration;

(o) Debt of the Borrower or any of its Subsidiaries under any Swap Agreements so long as such Swap Agreements are used solely as a part of its normal business operations as a risk management strategy or a hedge against changes resulting from market operations and not as a means to speculate for investment purposes on trends and shifts in financial or commodities markets;

(p) Debt incurred in the ordinary course of business under incentive, non-compete, consulting, deferred compensation, or other similar arrangements incurred by the Borrower or any of its Subsidiaries;

(q) Debt in respect of Taxes, governmental assessments or governmental charges to the extent that payment thereof shall not at the time be required to be made hereunder;

(r)unsecured Debt of the Borrower or any A&R Effective Date Subsidiary that (1) is fully and expressly subordinated to the Borrower’s obligations under this Agreement and which cannot be paid prior to payments due under this Agreement following the occurrence and continuation of an Event of Default and (2) has a final maturity no earlier than 91 days following the Maturity Date and (3) has an All-In Yield that will not be more than 2.0% higher than the corresponding All-In Yield (after giving effect to interest rate margins, OID (with OID being equated to interest based

on an assumed life to maturity) and upfront fees (which shall be deemed to constitute like amounts of OID), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all lenders providing such unsecured indebtedness) for the existing Credit Facilities;

(s) [Reserved]

(t) unsecured Debt of the Borrower or any A&R Effective Date Subsidiary in an amount not to exceed three times any amounts of common or preferred equity capital raised by the Borrower since the A&R Effective Date (“Post-A&R Effective Date Equity Issuance”) consisting of the issuance of unsecured senior or subordinated notes or loans, in each case issued in a public offering or private placement or bridge in lieu of the foregoing; provided that (x) any such Debt shall not, when added together with any increase in the maximum commitments and amounts drawn by ACRC Lender under the City National Bank Facility in reliance on clause (b) above, exceed $200 million, (y) after giving pro forma effect to the incurrence of the unsecured Debt (and after giving effect to all customary pro forma events and adjustments) and the Post-A&R Effective Date Equity Issuance, the Borrower would not be in breach of the financial covenants under Section 6.12, and (z) such unsecured Debt (i) will have a final maturity no earlier than 91 days following the Maturity Date, (ii) shall have a weighted average life to maturity that is no shorter than the weighted average life to maturity of the Loans and (iii) shall have an All-In Yield that will not be more than 2.0% higher than the corresponding All-In Yield (after giving effect to interest rate margins, OID (with OID being equated to interest based on an assumed life to maturity) and upfront fees (which shall be deemed to constitute like amounts of OID), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all lenders providing such unsecured Debt) for the existing Loans;

(u) Debt assumed or incurred by any Subsidiary with respect to any Asset acquired by such Subsidiary as a result of a foreclosure, deed-in-lieu or other similar proceeding or transactions in connection with the ownership by such Subsidiary of any Senior Commercial Real Estate Loans, Senior Commercial Real Estate Construction Loans, Mezzanine Loans, Subordinated Commercial Real Estate Loans or Preferred Equity Investment so long as, with respect to any new Debt that is incurred, the loan-to-value ratio of such Debt does not exceed 70% at the time incurred (it being understood that any such Debt shall be non-recourse to the Borrower and the documents governing such Debt may include customary carve-outs to limit recourse such as recourse to the Borrower for environmental matters, fraud, misrepresentation or voluntary and involuntary bankruptcy filings);

(v) Debt of any Subsidiary on any Asset of such Subsidiary which is a Triple Net Leased Property (so long as the loan-to-value ratio of such Debt does not exceed 70% at the time incurred) in an aggregate amount not to exceed $50,000,000 at any time outstanding (it being understood that any such Debt shall be non-recourse to the Borrower and the documents governing such Debt may include customary carve-outs to limit recourse such as recourse to the Borrower for environmental matters, fraud, misrepresentation or voluntary and involuntary bankruptcy filings);

(w) other unsecured Debt of the Borrower or any of its Subsidiaries, including guarantee obligations, in an aggregate principal amount not to exceed $10,000,000; and

(x) Debt in an amount not to exceed $25,000,000 which Debt may (but is not required to) be incurred in the form of Incremental Term Loans under and in accordance with Section 2.15; provided that such Debt is incurred in the form of Incremental Term Loans or is otherwise secured on a pari passu basis with the Loans, the Borrower shall first offer to the then existing Lenders the opportunity to provide such Debt a pro rata basis in accordance with their Pro Rata Shares (and on

a non-pro rata basis, pursuant to terms acceptable to the Agents, with respect to the then existing Lenders that elect to cover declining Lenders’ declined amounts) and may be made at the election of each such existing Lender (it being understood that no existing Lender will have any obligation to provide any portion of such Debt unless it so agrees in writing), and then, to the extent any amounts remain uncommitted to by the then existing Lenders; provided that, to the extent such Lenders have not provided a non-binding indication of interest to provide such commitment within 5 Business Days following the date of such offer and a written commitment on terms and conditions satisfactory to the Borrower within 5 Business Days following the date of such offer or have otherwise rejected such offer, after being provided such opportunity to do so, then the Borrower may offer to any other Eligible Assignee (which may include existing Lenders) to provide such Debt.

For the avoidance of doubt, Post-A&R Effective Date Equity Issuances shall not include any Cash Cure Amounts.

6.2 Liens. Create, incur, assume, or permit to exist, directly or indirectly, any Lien on or with respect to any of its Assets, of any kind, whether now owned or hereafter acquired, or any income or profits therefrom, except:

(a) Permitted Collateral Liens;

(b) Liens on the Securities of any Securitization Entity (or Securities of a direct holding company of any Securitization Entity) to the extent such Liens are permitted to be incurred by such Securitization Entity;

(c) Liens on Assets securing Debt permitted under Sections 6.1(a), (c), (d), (e), (k), (o), (t) and (v) (subject to the express limitations set forth in clause (b) above and clauses (d) and (e) below); provided that, with respect to any Liens securing Debt permitted under Section 6.1(o), such Liens shall be permitted to the extent they are created, incurred, or exist on or with respect to cash, Cash Equivalents and/or letters of credit (and proceeds thereof) in an aggregate amount not to exceed 10% of the Tangible Net Worth of the Borrower and its Subsidiaries;

(d) Liens on Senior Commercial Real Estate Loans and Senior Commercial Real Estate Construction Loans to the extent securing Debt permitted under Section 6.1(b), (c) and (d) and Liens on Mezzanine Loans, Subordinated Commercial Real Estate Loans and Preferred Equity Investments to the extent securing Debt permitted under Sections 6.1(c) and (d); and

(e) Liens on Mezzanine Loans, Subordinated Commercial Real Estate Loans and Preferred Equity Investments to the extent securing the City National Bank Facility described in clause (i) of the definition thereof in an amount not to exceed a minimum aggregate principal amount of Mezzanine Loans, Subordinated Commercial Real Estate Loans and Preferred Equity Investments that would be required to satisfy the borrowing base requirement applicable to the maximum facility amount permitted under such City National Bank Facility (including, without limitation, any increases in the City National Bank Facility described in clause (i) of the definition thereof pursuant to Section 6.1(b));

(f) Liens securing Debt or amounts available under Debt facilities (whether or not drawn) existing on the A&R Effective Date and listed on Schedule 6.2; and

(g) other Liens with respect to obligations that do not exceed $10,000,000 in the aggregate at any time outstanding.

6.3 Debt Prepayments. Make or offer to make (or give any notice in respect thereof) any optional or voluntary payment, prepayment, repurchase or redemption of, or voluntarily or optionally defease, or otherwise satisfy prior to the scheduled maturity thereof in any manner, any Debt (other than the Loans and, for the avoidance of doubt, any revolving credit facilities, overdraft lines of credit or other similar revolving obligations); except that (a) the Borrower or any of its Subsidiaries may make such voluntary payments, repayments, repurchases or redemptions of, or voluntary or optional defeasements, or otherwise satisfy prior to the scheduled maturity thereof in any manner (other than payments, repayments, repurchases, redemptions or defeasements constituting Extraordinary Restricted Payments), any Debt so long as (i) no Event of Default or Default has occurred and is continuing or would result therefrom and (ii) the Borrower is in pro forma compliance with the financial covenants set forth in Section 6.12 immediately before and after giving effect to such payments and (b) the Borrower shall be permitted to make Extraordinary Restricted Payments so long as, after giving effect to such Extraordinary Restricted Payment, (i) no Event of Default or Default has occurred and is continuing or would result therefrom, (ii) the Total Net Leverage Ratio as tested on a pro forma basis for the most recently ended fiscal quarter is not greater than 4.50:1.00 and (iii) the Asset Coverage Ratio as tested on a pro forma basis for the most recently ended fiscal quarter is at least 115%. For the avoidance of doubt, notwithstanding any other provision in any Loan Document, ACRC Lender shall be permitted at all times to repay and/or reborrow any Debt under the City National Bank Facility so long as the aggregate principal amount of commitments thereunder are not terminated in full,.

6.4 Dividends. The Borrower shall not make or declare, directly or indirectly, any dividend or other payment or distribution on account of any interest of any class of equity securities in Borrower, whether now or hereafter outstanding (collectively, a “Distribution”); except (a) the Borrower may make Distributions (other than Extraordinary Restricted Payments) so long as (i) no Event of Default or Default has occurred and is continuing or would result therefrom and (ii) the Borrower is in pro forma compliance with the financial covenants set forth in Section 6.12 immediately before and after giving effect to such Distribution; (b) notwithstanding anything to the contrary, the Borrower may make Distributions at any time to its shareholders in an amount necessary to maintain its status as a “real estate investment trust” as defined in Section 856 the Code (“REIT”) and avoid the imposition of income and excise tax on the Borrower and (c) the Borrower shall be permitted to make Extraordinary Restricted Payments so long as, after giving effect to such Extraordinary Restricted Payment, (i) the Total Net Leverage Ratio as tested on a pro forma basis for the most recently ended fiscal quarter is not greater than 4.50:1.00 and (ii) the Asset Coverage Ratio as tested on a pro forma basis for the most recently ended fiscal quarter is at least 115%.

6.5 Restriction on Fundamental Changes. Change its name, change the nature of its business, enter into any merger, consolidation, reorganization, or recapitalization, or reclassify its partnership interests (whether limited or general) or membership interests, as applicable, or convey, sell, assign, lease, transfer, or otherwise dispose of, in one transaction or a series of transactions, all or any substantial part of its business or Assets, whether now owned or hereafter acquired (each, a “Fundamental Change”) except:

(a) Borrower or any of its Subsidiaries may sell Assets in accordance with the provisions of Section 6.6;

(b) Borrower or any of its Subsidiaries may change its name or corporate, partnership or limited liability structure so long as (i) the Loan Parties provide written notice thereof (together with copies of any documents evidencing any such change) to the Agents on or before the date that is 10 Business Days prior to the date when such name or structure change occurs and (ii) any other Subsidiaries of the Borrower provide written notice thereof (together with copies of any documents evidencing any such change) to the Agents on or before the date that is 30 days after the date when such name or structure change occurs; and

(c) the conveyance, sale, assignment, lease, transfer, or other disposal of all or any substantial part of its business or Collateral, merger, consolidation or reorganization of any Person, on the one hand, with and into the Borrower or any of its Subsidiaries, provided that (i) the Lender Group’s rights in any Assets, including, without limitation, the existence, perfection and priority of any Lien thereon, are not adversely affected by such merger, consolidation or reorganization, (ii) upon the consummation of such conveyance, sale, assignment, lease, transfer, or other disposal of all or any substantial part of its business or Assets, merger, consolidation or reorganization, the Borrower and any applicable Subsidiary expressly reaffirms its Obligations to the Lender Group under this Agreement and the other Loan Documents to which it is a party and (iii) such acts do not result in a Change of Control Event.

6.6 Sale of Assets. Sell, assign, transfer, convey, or otherwise dispose of its Assets (any such transaction, a “Sale”), whether now owned or hereafter acquired, except for (a) any Sale of obsolete, worn out or surplus tangible property, (b) any Sale of Assets for the liquidation, dissolution or winding up of a wholly-owned Subsidiary of the Borrower (i) if from a non-Loan Party Subsidiary, to any another Subsidiary and (ii) if from a Loan Party, to another Loan Party, (c) any transaction permitted by Sections 6.4 or 6.5 of this Agreement; (d) any Sale pursuant to, or in connection with, any Securitization Transaction or Warehousing Debt; or (e) any other Sale of Assets of the Borrower and the Subsidiaries so long as (i) the Borrower is in compliance with the financial covenants set forth in Section 6.12 immediately before such Sale of Assets, and immediately after giving effect thereto, (ii) any such Sale of Assets shall be for fair market value consideration (as determined by the Borrower in good faith and consistent with the Assigned Value given such Asset for purposes of this Agreement in the most recent Borrowing Base Certificate delivered to the Agents) and of which at least 75% of such consideration shall be comprised of cash or Cash Equivalents and (iii) no Default or Event of Default has occurred and is continuing or would result therefrom, in each case, immediately prior to and after giving effect to such Sale for fair market value.

6.7 Transactions with Shareholders and Affiliates. Enter into or permit to exist, directly or indirectly, any transaction (including the purchase, sale, lease, or exchange of any Asset or the rendering of any service) with any holder of 10% or more of any class of Securities of the Borrower or any of its Subsidiaries or Affiliates, or with any Affiliate of the Borrower or of any such holder, in each case other than (x) a Loan Party or (y) any Subsidiary of the Borrower, on terms that are less favorable to such Subsidiary, than those terms that might be obtained at the time from Persons who are not such a holder, Subsidiary, or Affiliate, or, if such transaction is not one in which terms could be obtained from such other Person, on terms that are no less favorable than terms negotiated in good faith on an arm’s length basis. Prior to the Borrower or any of its Subsidiaries engaging in any such transaction described in this Section 6.7, other than transactions in de minimis amounts, the Borrower shall determine that such transaction has been negotiated in good faith and on an arm’s length basis. In no event shall the foregoing restrictive covenant apply to (a) any transaction permitted by Section 6.4, or (b) transactions involving the use, transfer, or other disposition of any Asset, to the extent that (i) the Distribution by the Borrower of such Asset would not have violated this Agreement and (ii) such use, transfer, or other disposition would not otherwise result in an Event of Default or an Default.

6.8 Conduct of Business. Engage in any business other than the business to which it is engaged as of the A&R Effective Date and any related businesses or activities substantially similar or related thereto or reasonable extensions of any such business or activities including, without limitation, the commercial real estate mortgage business, commercial real estate brokerage business, commercial real estate business, commercial real estate-related securities acquisitions and acquisitions of MSRs.

6.9 Amendments or Waivers of Certain Documents; Actions Requiring the Consent of the Agents. Agree to any amendment to or waiver of the terms or provisions of its Governing Documents except for

amendments or waivers which would not, either individually or collectively, be materially adverse to the interests of the Lender Group.

6.10 Limitation on Negative Pledges. Enter into or suffer to exist or become effective any agreement or other arrangement that prohibits, restricts or imposes any condition upon the ability of the Borrower or any of its Subsidiaries to create, incur, assume or suffer to exist any Lien upon any Collateral (other than Securities in Securitization Entities), whether now owned or hereafter acquired, to secure the Obligations, except for any restrictions that:

(a) exist under this Agreement and the other Loan Documents;

(b) exist on the date hereof and (to the extent not otherwise permitted by this Section 6.10) are listed on Schedule 6.10 hereto;

(c) are binding on a Subsidiary or its Assets at the time such Subsidiary or its Assets first becomes a Subsidiary or owned by a Subsidiary, as applicable, so long as such restrictions were not entered into solely in contemplation of such Person becoming a Subsidiary;

(d) are customary restrictions and conditions contained in any agreement relating to any transaction permitted by Section 6.6 pending the consummation of such transaction; provided that such restrictions and conditions apply only to the property that is the subject of such transaction and not to the proceeds to be received by the Borrower or any of its Subsidiaries in connection with such transaction;

(e) are customary restrictions in leases, subleases, licenses or asset sale agreements otherwise permitted hereby so long as such restrictions relate solely to the assets subject thereto;

(f) are customary provisions restricting subletting or assignment of any lease governing a leasehold interest of the Borrower or any Subsidiary;

(g) are customary provisions restricting assignment or transfer of any agreement entered into in the ordinary course of business; and

(h) are amendments, modifications, restatements, refinancings or renewals of the agreements, contracts or instruments referred to in Section 6.10(b) through (g) above; provided that such amendments, modifications, restatements, refinancings or renewals, taken as a whole, are not materially more restrictive with respect to such encumbrances and restrictions than those contained in such predecessor agreements, contracts or instruments.

6.11 Margin Regulation. Use any portion of the proceeds of any of the Loans in any manner which could reasonably be expected to cause the Loans, the application of such proceeds, or the Transactions to violate Regulations T, U or X of the Federal Reserve Board, or any other regulation of such board, or to violate the Exchange Act, or to violate the Investment Company Act of 1940.

6.12 Financial Covenants. The Borrower shall not:

(a) Minimum Asset Coverage Ratio. Commencing with the fiscal quarter ending December 31, 2021, permit the Asset Coverage Ratio on the last day of each Test Period, be less than 115%.

(b) Minimum Unencumbered Asset Ratio. Commencing with the fiscal quarter ending December 31, 2021, permit the Unencumbered Asset Ratio on the last day of each Test Period, be less than 125%.

(c) Maximum Total Net Leverage Ratio. Commencing with the fiscal quarter ending December 31, 2021, permit the Total Net Leverage Ratio on the last day of each Test Period to exceed 4.50:1.00

(d)Minimum Tangible Net Worth. Permit the Tangible Net Worth on the last day of each Test Period (commencing with the fiscal quarter ending December 31, 2021), to be less than the amount equal to the sum of (i) eighty percent (80%) of the Borrower’s and its Subsidiaries’ Tangible Net Worth as of September 30, 2021, which Tangible Net Worth is equal to $708,278,355 as of such date, plus (ii) eighty percent (80%) of the net proceeds (after deducting transaction costs) that the Borrower and its Subsidiaries receive from issuances of preferred equity or common equity.

(e) Loan Concentration. Permit less than 65.0% of loans held for investment (as defined in the consolidated balance sheet of the Borrower) by the Borrower to be comprised of Senior Commercial Real Estate Loans, as measured by the average daily outstanding principal balance of all loans held for investment (as defined in the consolidated balance sheet of the Borrower) during a fiscal quarter and as adjusted for non-controlling interests.

(f) Minimum Interest Coverage Ratio. Commencing with the fiscal quarter ending December 31, 2021, permit the Interest Coverage Ratio on the last day of each Test Period to be less than 1.10:1.00.

(g) Facilities with Other Lenders. In the event that the Borrower shall enter into, or shall amend or modify, any other agreement for pari passu Debt (for the avoidance of doubt, excluding any guarantee made by the Borrower with respect to any commercial real estate loan revolving repurchase agreement or commercial real estate loan revolving secured warehouse facility) with any other lender (each as in effect after giving effect to all amendments thereof, a “Third Party Agreement”) which Third Party Agreement includes any financial covenant that is comparable to any of the financial covenants set forth in this Agreement or in any other Loan Document, and such comparable financial covenant is more restrictive to the Borrower or otherwise more favorable to the related lender or buyer thereunder than any financial covenant set forth in this Agreement or in any other Loan Document, or is in addition to any financial covenant set forth in this Agreement or in any other Loan Document (each, a “Third Party Financial Covenant”), then such Third Party Financial Covenant shall, for so long as such other facility remains outstanding, with no further action required on the part of the Borrower or the Agents, automatically become a part of this Agreement or any other Loan Document and be incorporated herein and/or therein, and the Borrower hereby covenants to maintain compliance with such Third Party Financial Covenant as required under such Third Party Agreement at all times throughout the remaining term of this Agreement to the extent that, and for so long as, such Third Party Agreement (and related Third Party Financial Covenant) remains in effect. In connection herewith, the Borrower agrees to promptly notify (in writing) Agents of the execution of any agreement or other document that would cause the provisions of this Section 6.12(g) to become effective. Each party agrees to execute and deliver any new guaranties, agreements or amendments to this Agreement or any other Loan Document necessary to evidence all such new or modified provisions, provided that the execution of such amendment shall not be a precondition to the effectiveness of such amendment, but shall merely be for the convenience of the parties hereto and thereto.

6.13 Plans. No Loan Party shall become a party to any Multiemployer Plan or Single Employer Plan other than any such plan to which the Loan Party as a party on the date of this Agreement without first notifying the Agents, or fail to meet all of the requirements of the Pension Funding Rules with respect to a Single Employer Plan. No Loan Party shall, or shall cause or permit any ERISA Affiliate to (a) cause or permit to occur any event that could result in the imposition of a Lien against a Loan Party under the

Pension Funding Rules or (b) cause or permit to occur an ERISA Event which could reasonably be expected to have a Material Adverse Effect.

ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES

7.1 Events of Default. The occurrence of any one or more of the following events, acts, or occurrences shall constitute an event of default (“Event of Default”) hereunder:

(a) Failure to Make Payments When Due.

(i) Any Loan Party shall (A) fail to pay any amount owing hereunder with respect to the principal of any of the Loans when such amount is due, whether at stated maturity, by acceleration, or otherwise or (B) fail to comply with Section 2.8(b); or

(ii) Any Loan Party shall fail to pay, within three (3) Business Days of the date when due, any amount owing hereunder with respect to interest on any of the Loans or with respect to any other amounts (including fees, costs, or expenses) other than the amounts specified in clause (i) above, payable in connection herewith.

(b) Breach of Certain Covenants.

(i) Any Loan Party shall fail to perform or comply with any covenant, term, or condition contained in Article VI of this Agreement; provided that an Event of Default with respect to Section 6.12 shall not occur until the Cure Expiration Date; and

(ii) Any Loan Party shall fail to perform or comply with any other covenant, term, or condition contained in this Agreement or other Loan Documents to which it is a party and such failure shall not have been remedied or waived within 20 days after the earlier of (x) knowledge of the occurrence thereof by the Borrower or (y) receipt of notice from any Agent of the occurrence thereof; provided, however, that this clause (ii) shall not apply to: (1) the covenants, terms, or conditions referred to in subsections (a) and (c) of this Section 7.1; or (2) the covenants, terms, or conditions referred to in clause (i) above of this subsection (b).

(c) Breach of Representation or Warranty. Any financial statement, representation, warranty, or certification made or furnished by the Borrower or any other Loan Party under this Agreement or in any document, letter, or other writing or instrument furnished or delivered by the Borrower to any Agent or any Lender pursuant to or in connection with this Agreement or any other Loan Document to which it is a party shall have been false, incorrect, or incomplete in any material respect (except that such materiality qualifier shall not be applicable to any representation or warranty to the extent that such representation or warranty is qualified or modified by materiality or “Material Adverse Effect”) when made, deemed made or reaffirmed, as the case may be.

(d) Involuntary Bankruptcy.

(i) If an involuntary case seeking the liquidation or reorganization of any of the Borrower or any of its Subsidiaries (other than Immaterial Subsidiaries) under Chapter 7 or Chapter 11, respectively, of the Bankruptcy Code or any similar proceeding shall be commenced against the Borrower or any of its Subsidiaries (other than Immaterial Subsidiaries) under any other applicable law and any of the following events occur: (1) such Person consents to

the institution of the involuntary case or similar proceeding; (2) the petition commencing the involuntary case or similar proceeding is not timely controverted; (3) the petition commencing the involuntary case or similar proceeding is not dismissed within 60 days of the date of the filing thereof; provided, however, that, during the pendency of such period, the Lender Group shall be relieved of its obligation to make additional Loans; (4) an interim trustee is appointed to take possession of all or a substantial portion of the Collateral of the Borrower or any of its Subsidiaries (other than Immaterial Subsidiaries); or (5) an order for relief shall have been issued or entered therein.

(ii) A decree or order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator, custodian, trustee, or other officer having similar powers over the Borrower or any of its Subsidiaries (other than Immaterial Subsidiaries) to take possession of all or a substantial portion of its Collateral shall have been entered and, within 60 days from the date of entry, is not vacated, discharged, or bonded against, provided, however, that, during the pendency of such period, the Lender Group shall be relieved of its obligations to make additional Loans.

(e) Voluntary Bankruptcy. The Borrower or any of its Subsidiaries (other than Immaterial Subsidiaries) shall institute a voluntary case seeking liquidation or reorganization under Chapter 7 or Chapter 11, respectively, of the Bankruptcy Code; the Borrower or any of its Subsidiaries (other than Immaterial Subsidiaries) shall file a petition, answer, or complaint or shall otherwise institute any similar proceeding under any other applicable law, or shall consent thereto; the Borrower or any of its Subsidiaries (other than Immaterial Subsidiaries) shall consent to the conversion of an involuntary case to a voluntary case; or the Borrower or any of its Subsidiaries (other than Immaterial Subsidiaries) shall consent or acquiesce to the appointment of a receiver, liquidator, sequestrator, custodian, trustee, or other officer with similar powers to take possession of all or a substantial portion of its Collateral; the Borrower or any of its Subsidiaries (other than Immaterial Subsidiaries) shall generally fail to pay debts as such debts become due or shall admit in writing its inability to pay its debts generally; or the Borrower or any of its Subsidiaries (other than Immaterial Subsidiaries) shall make a general assignment for the benefit of creditors.

(f) Dissolution. Any order, judgment, or decree shall be entered decreeing the dissolution of the Borrower or any of its Subsidiaries (other than Immaterial Subsidiaries), and such order, judgment or decree shall remain undischarged or unstayed for a period in excess of 60 days.

(g) Change of Control. A Change of Control Event shall occur.

(h) Judgments and Attachments. The Borrower or any of its Subsidiaries shall suffer any money judgment, writ, or warrant of attachment, or similar process involving payment of money in an amount, net of any portion thereof that is covered by or recoverable by the Borrower or such Subsidiary under applicable insurance policies (if any) in excess of $15,000,000 and shall not discharge, vacate, bond, or stay the same within a period of 60 days.

(i) Guaranty. (1) If the obligation of any Guarantor under the Guaranty is limited or terminated by operation of law or such Guarantor thereunder, (2) if any Guarantor shall fail to perform or comply with any covenant, term, or condition contained in the Guaranty or (3) any financial statement, representation, warranty, or certification made or furnished by any Guarantor under this Agreement, the Guaranty or in any document, letter, or other writing or instrument furnished or delivered by such Guarantor to any Agent or any Lender pursuant to or in connection with this Agreement, the Guaranty or any other Loan Document to which it is a party, or as an inducement to the Lender Group to enter into this Agreement or any other Loan Document shall have been

false, incorrect, or incomplete in any material respect (except that such materiality qualifier shall not be applicable to any representation or warranty to the extent that such representation or warranty is qualified or modified by materiality or “Material Adverse Effect”) when made, deemed made or reaffirmed, as the case may be.

(j) Cross-Default. The Borrower or any of its Subsidiaries shall be in default relating to Debt (other than Debt evidenced by this Agreement) which is outstanding in excess of a principal amount of $15,000,000, individually or in the aggregate, and such default shall continue beyond any and all applicable grace, cure and notice periods relating to such Debt (as such periods may be extended with the approval of the applicable counterparties to such Debt and by the Required Lenders).

(k) ERISA. There occurs one or more other ERISA Events which has resulted or could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.

(l) Agent’s Liens. If any Loan Document that purports to create a Lien shall fail or cease to create, except to the extent permitted by the terms of any such Loan Document, a valid and perfected Lien on the Collateral; and

(m) Loan Documents. Any provision of any Loan Document shall at any time for any reason be declared to be null and void, or the validity or enforceability thereof shall be diligently contested by any Loan Party or the Negative Pledgor Subsidiary, or a proceeding shall be commenced by any Loan Party, or the Negative Pledgor Subsidiary or by any Governmental Authority having jurisdiction over any Loan Party or the Negative Pledgor Subsidiary, seeking to establish the invalidity or unenforceability thereof, or any Loan Party or the Negative Pledgor Subsidiary shall deny in writing that any Loan Party or the Negative Pledgor Subsidiary has any liability or obligation purported to be created under any Loan Document.

7.2 Remedies. Upon the occurrence of an Event of Default:

(a) If such Event of Default arises under subsections (d) or (e) of Section 7.1 hereof, then the Delayed Draw Term Loan Commitments (if any) hereunder immediately shall terminate and all of the Obligations owing hereunder or under the other Loan Documents automatically shall become immediately due and payable, without presentment, demand, protest, notice, or other requirements of any kind, all of which are hereby expressly waived by the Borrower; and

(b) In the case of any other Event of Default that has occurred and is continuing, the Required Agents may declare the Delayed Draw Term Loan Commitments hereunder terminated and all of the Obligations owing hereunder or under the Loan Documents to be, and the same immediately shall become due and payable, without presentment, demand, protest, further notice, or other requirements of any kind, all of which are hereby expressly waived by the Borrower.

Upon any exercise of rights pursuant to Sections 7.2(a) and (b) above, the Agents (without notice to or demand upon the Borrower, which are expressly waived by the Borrower to the fullest extent permitted by law), shall be entitled to proceed to protect, exercise, and enforce the Lender Group’s rights and remedies hereunder or under the other Loan Documents, or any other rights and remedies as are provided by law or equity. The Agents may determine, in their sole discretion, the order and manner in which the Lender Group’s rights and remedies are to be exercised. All payments received by the Agents shall be applied in accordance with Section 2.3(a)(ii).

7.3 Borrower’s Right to Cure.

(a) Notwithstanding anything to the contrary contained in Section 7.1, for purposes of determining whether an Event of Default has occurred under any financial covenant set forth in Sections 6.12, any cash received by the Borrower after the last day of the fiscal quarter in respect of which such Event of Default has occurred and on or prior to the date that is five (5) Business Days after the date on which financial statements are required to be delivered for such fiscal quarter (the “Cure Expiration Date”) will, at the request of the Borrower, be included in the calculation of Borrowing Base or the Borrowing Base Eligible Assets solely for the purposes of determining compliance with the financial covenants set forth in Sections 6.12 at the end of such fiscal quarter and any subsequent period that includes such fiscal quarter (a “Cash Cure Amount”); provided that (a) the amount of any Cash Cure Amount and the use of proceeds therefrom will be no greater than the amount required to cause the Borrower to be in compliance with the financial covenants set forth in Section 6.12 and (b) the proceeds of all Cash Cure Amounts shall be applied to prepay the Loans and accompanied by the applicable Prepayment Premium required by Section 2.8(d) (if any). Upon the delivery of the Cash Cure Amount to the Borrower prior to the Cure Expiration Date, any Event of Default that has occurred pursuant to Section 6.12 shall be deemed to not have occurred and, for the avoidance of doubt, neither any Agent nor any Lender shall exercise the right to accelerate the Loans or terminate the Delayed Draw Term Loan Commitments and none of any Agent, any Lender or any Secured Party shall exercise any right to foreclose on or take possession of the Collateral or exercise any other remedy pursuant to Section 7.2, the other Loan Documents or applicable law prior to the Cure Expiration Date solely on the basis of an Event of Default having occurred and continuing under Section 6.12 (except to the extent that the Borrower has confirmed that in writing that it does not intend to provide a Cash Cure Amount). For the avoidance of doubt, the Borrower shall not be able to obtain any Loan hereunder until receipt by the Agents of the Cash Cure Amount; and

(b) Notwithstanding anything to the contrary herein, the Borrower shall (to the extent capable of cure) have five (5) Business Days to cure any event that would give rise to a reduction in value of any Borrowing Base Eligible Asset, including, for the avoidance of doubt, a VAE and any event described in Section 11.5.

ARTICLE VIII
EXPENSES AND INDEMNITIES

8.1 Expenses. The Borrower shall pay without duplication, (i) all reasonable and documented out-of-pocket costs and expenses (except allocated costs of in-house counsel) reasonably incurred by the Agents and the Lenders in connection with the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents, or any amendments, modifications or waivers of the provisions hereof or thereof, including the reasonable and documented fees, charges and disbursements of counsel (but limited to (A) one primary counsel for the Agents, (B) one primary counsel for the Lenders and (C) if necessary, one local counsel in each relevant jurisdiction (which may include a single special counsel acting in multiple jurisdictions) and in the case of an actual or perceived conflict of interest, where the party affected by such conflict, informs the Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for each such affected person); provided, however, that the Borrower is not obligated to reimburse the Lenders for out-of-pocket costs and expenses incurred on or before the A&R Effective Date in connection with the preparation of this Agreement and the other Loan Documents to the extent that such out-of-pocket costs and expenses exceed $300,000 (the “Expenses Cap”) unless, at any Lender’s reasonable request from time to time, the Borrower consents (such consent not to be unreasonably, withheld, conditioned or delayed) to reimburse the Lenders for any out-of-pocket costs and expenses incurred on or before the A&R Effective Date that exceed the Expenses Cap, (ii) all out-of-

pocket costs and expenses incurred by each Agent or each Lender (including the fees, charges and disbursements of any counsel for any Agent or any Lender) in connection with the development, preparation, negotiation and execution of any amendment, waiver, consent or other modification of the provisions of this Agreement or any other Loan Document and the enforcement or protection of any rights and remedies under this Agreement (including, without limitation, with respect to the Collateral) and the other Loan Documents, including all such costs and expenses incurred during any legal proceeding, including any proceeding under any Debtor Relief Law, and including in connection with any workout, restructuring or negotiations in respect of the Credit Facilities and the Loan Documents, including the customary and reasonable fees, charges and disbursements of counsel and (iii) all out-of-pocket costs and expenses incurred by each Agent or each Lender (including the customary and reasonable fees, charges and disbursements of any counsel, third party pricing agent, trustee, tax administrator and other professionals indicated in writing by the Agent or any Lender) in connection with the day-to-day operation of the Lender as a trust; provided, that such expenses under this clause (iii) shall not exceed $45,000 per annum (collectively, the expenses set forth in clauses (i), (ii) and (iii), the “Lender Group Expenses”).

8.2 Indemnity. In addition to the payment of expenses pursuant to Section 8.1 hereof, the Borrower agrees to indemnify, exonerate, defend, pay, and hold harmless the Agent-Related Persons and the Lender-Related Persons (collectively the “Indemnitees” and individually as “Indemnitee”) from and against any and all liabilities, obligations, losses, damages, penalties, actions, causes of action, judgments, suits, claims, costs, expenses, and disbursements of any kind or nature whatsoever (including the reasonable and documented fees and disbursements of (A) one primary counsel for the Agent-Related Persons, taken as a whole, (B) one primary counsel for the Lender-Related Persons, taken as a whole, and (C) if reasonably necessary, one local counsel in each relevant jurisdiction for the Agent-Related Persons and Lender-Related Persons (which may include a single special counsel acting in multiple jurisdictions) and in the case of an actual or perceived conflict of interest, where the party affected by such conflict informs the Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for each such affected person) in connection with any investigation, administrative, or judicial proceeding, whether such Indemnitee shall be designated a party thereto), that may be imposed on, incurred by, or asserted against such Indemnitee, in any manner relating to or arising out of the execution a, delivery, enforcement, performance, syndication or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby, the business or Assets of any Loan Party (to include, without limitation, any actual or alleged presence or release of Hazardous Material on or from any property currently or formerly owned or operated by Borrower, any Subsidiary or any other Loan Party, or any violation of any Environmental Law related in any way to the Borrower, and any Subsidiary or any other Loan Party), the Commitments, the use or intended use of the proceeds of the Loans or the consummation of the transactions contemplated by this Agreement, including any matter relating to or arising out of the filing or recordation of any of the Loan Documents which filing or recordation is done based upon information supplied by the Borrower to the Agents and its counsel (the “Indemnified Liabilities”); provided, that the Borrower shall have no obligation hereunder to any Indemnitee to the extent (x) that such Indemnified Liabilities are found in a final non-appealable judgment by a court of competent jurisdiction to have resulted from the gross negligence, bad faith, or willful misconduct of such Indemnitee or (y) any dispute solely among Indemnitees (other than any claims against an Indemnitee in its capacity or in fulfilling its role as an agent or arranger or any similar role hereunder or under any other Loan Document and other than any claims arising out of any act or omission of the Borrower). The obligations of the Borrower under this Section 8.2 shall survive the termination of this Agreement and the discharge of the Borrower’s other obligations hereunder. This Section 8.2 shall not apply with respect to Taxes, which shall be governed by Section 10.11, other than any Taxes that represent liabilities, obligations, losses or damages, arising from a non-Tax claim.

ARTICLE IX
ASSIGNMENT AND PARTICIPATIONS

9.1 Successors and Assigns Generally. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that, subject to Section 9.1(f), neither the Borrower nor any other Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Agents and each Lender, and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of Section 9.1(b), (ii) by way of participation in accordance with the provisions of Section 9.1(d), or (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 9.1(e) (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in Section 9.1(d) and, to the extent expressly contemplated hereby, the Agent-Related Persons of each of the Agents and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

(b) Assignments by Lenders. Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it); provided that (in each case with respect to any Credit Facility) any such assignment shall be subject to the following conditions:

(i) Minimum Amounts. Except in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, 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 Acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000, unless the Required Agents and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consents in writing (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 Lender’s rights and obligations under this Agreement with respect to the Loan or the Commitment assigned, except that this clause (ii) shall not prohibit any Lender from assigning all or a portion of its rights and obligations among Delayed Draw Term Loan Commitments and Initial Term Loans on a non-pro rata basis.

(iii) Required Consents. No consent shall be required for any assignment except to the extent required by Section 9.1(b)(i) and, in addition:

(A) the written consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (x) a Default (after expiry of any grace, cure and notice periods or as further extended with the approval of the Required Lenders) or an Event of Default has occurred and is continuing at the time of such assignment or (y) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Agents within ten (10) Business Days after having received notice thereof (which notice shall provide, in bold type face, that if the Borrower does not object in writing to such assignment within ten Business Days, the Borrower’s consent shall have been deemed to have been provided); and

(B) the consent of the Agents (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect of (i) any unfunded Commitments with respect to the Delayed Draw Term Loan Facility if such assignment is to a Person that is not a Lender with a Commitment in respect of such Term Loan Facility, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Loans to a Person who is not a Lender, an Affiliate of a Lender or an Approved Fund.

(iv) Assignment and Acceptance. The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a processing and recordation fee of $3,500; provided that the Required Agents may, in their sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Agents an Administrative Questionnaire, a duly executed IRAS Form W-9, or such other IRS Form as applicable, and all “know your customer” documentation requested by the Administrative Agent.

(v) No Assignment to Certain Persons. No such assignment shall be made to the Borrower or any of the Borrower’s Affiliates or Subsidiaries except as permitted by Section 9.1(f).

(vi) 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 Borrower and the Required Agents, 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 pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Agents and each other Lender hereunder (and interest accrued thereon), in accordance with its applicable 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 Section 9.1(c), and receipt of all requirements under Section 9.1(b)(iv) by the Administrative Agent, from and after the Administrative Agent has recorded such Assignment and Acceptance in the Register, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Acceptance, 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 Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Section 2.11, Section 8.1 and Section 8.2 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 9.1(d).

(c) Register. The Administrative Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at one of its offices in Chicago, Illinois a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior written notice.

(b) Participations.

(i) Any Lender may at any time, sell participations to any Person (other than a natural Person, or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural Person, or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent and Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.

(ii) Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in Sections 11.2(a)-(h) that affects such Participant. The Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.11, 2.16, and 10.11 (subject to the requirements and limitations therein, including the requirements under Section 10.11 (it being understood that the documentation required under Section 10.11 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 2.16 as if it were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater payment under Sections 2.11 or 10.11, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.13 as though it were a Lender; provided that such Participant agrees to be subject to Section 10.13 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat

each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.

(iii) No consent shall be required for any participation except that the consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (x) a Default (after expiry of any grace, cure and notice periods or as further extended with the approval of the Required Lenders) or an Event of Default has occurred and is continuing at the time of such participation or (y) such participation is to a Lender, an Affiliate of a Lender or an Approved Fund; provided that the Borrower shall be deemed to have consented to any such participation unless it shall object thereto by written notice to the Agents within ten (10) Business Days after having received notice thereof (which notice shall provide, in bold type face, that if the Borrower does not object in writing to such participation within ten Business Days, the Borrower’s consent shall have been deemed to have been provided).

(c) Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

(d) Assignments to Borrower and Borrower Affiliates. Notwithstanding anything in this Agreement to the contrary, any Lender may, at any time, assign all or a portion of its Loans on a pro rata basis to the Borrower or any Borrower Affiliate, subject to the following limitations:

(i) immediately and automatically, without any further action on the part of the Borrower, any Lender, any Agent or any other Person, upon the effectiveness of such assignment of Loans from a Lender to the Borrower, such Loans and all rights and obligations as a Lender related thereto shall, for all purposes under this Agreement, the other Loan Documents and otherwise, be deemed to be irrevocably prepaid, terminated, extinguished, cancelled and of no further force and effect (and which, for the avoidance of doubt, shall not constitute voluntary or mandatory payments or prepayments for purposes of Section 2.8 hereof) and the Borrower shall neither obtain nor have any rights as a Lender hereunder or under the other Loan Documents by virtue of such assignment such purchases (and the payments made by the Borrower and the cancellation of the purchased Loans, in each case in connection therewith);

(ii) any Borrower Affiliate may, with the consent of the Borrower, including without limitation, in exchange for Debt or Securities permitted to be issued, contribute, directly or indirectly, the principal amount of such Loans or any portion thereof, plus all accrued and unpaid interest thereon, to the Borrower for the purpose of cancelling and extinguishing such Loans; provided that, upon the date of such contribution, assignment or transfer, (x) the aggregate outstanding principal amount of Loans shall reflect such cancellation and extinguishing of the Loans then held by the Borrower and (y) the Borrower shall promptly provide notice to the Agents of such contribution of such Loans, and the Administrative Agent, upon receipt of such notice, shall reflect the cancellation of the applicable Loans in the Register;

(iii) (A) for purposes of any consent to any amendment, waiver or modification of, or any action under, and for the purpose of any direction to any Agent or any Lender to undertake

any action (or refrain from taking any action) under, this Agreement or any other Loan Document, each applicable Borrower Affiliate will be deemed to have consented in the same proportion as the Lenders that are not Borrower Affiliate consented to such matter, unless such matter requires the consent of all or all affected Lenders and adversely affects such Borrower Affiliate more than other Lenders in any material respect, (B) for purposes of voting on any plan of reorganization or plan of liquidation pursuant to any Debtor Relief Laws (a “Bankruptcy Plan”), each Borrower Affiliate hereby agrees (x) not to vote on such Bankruptcy Plan, (y) if such Borrower Affiliate does vote on such Bankruptcy Plan notwithstanding the restriction in the foregoing clause (x), such vote will be deemed not to be in good faith and shall be “designated” pursuant to Section 1126(e) of the Bankruptcy Code (or any similar provision in any other Debtor Relief Laws), and such vote shall not be counted in determining whether the applicable class has accepted or rejected such Bankruptcy Plan in accordance with Section 1126(c) of the Bankruptcy Code (or any similar provision in any other Debtor Relief Laws) and (z) not to contest any request by any party for a determination by a court of competent jurisdiction effectuating the foregoing clause (y), in each case under this clause (B) unless such Bankruptcy Plan adversely affects such Borrower Affiliate more than other Lenders in any material respect and (C) each Borrower Affiliate hereby irrevocably appoints the Agents (such appointment being coupled with an interest) as such Borrower Affiliate’s attorney-in-fact, with full authority in the place and stead of such Borrower Affiliate and in the name of such Borrower Affiliate (solely in respect of Loans held by such Borrower Affiliate and not in respect of any other claim or status such Borrower Affiliate may otherwise have), from time to time in either Agent’s discretion to take any action and to execute any instrument that the Agents may deem reasonably necessary or appropriate to carry out the provisions of this Section 9.1(f)(iv), including to ensure that any vote of such Borrower Affiliate on any Bankruptcy Plan is withdrawn or otherwise not counted;

(iv) the Borrower and any Borrower Affiliate shall represent and warrant, on the date of any such assignment, that neither it, its Affiliates nor any of its respective directors or officers has any Excluded Information that has not been disclosed to the Lenders generally (other than to the extent any such Lender does not wish to receive material non-public information with respect to the Borrower or its Subsidiaries or any of their respective securities) prior to such date;

(v) all parties to the relevant transactions shall render customary “big boy” disclaimer letters; and

(vi) no Event of Default shall have occurred and be continuing before or immediately after giving effect to such assignment.

ARTICLE X
AGENT; THE LENDER GROUP

10.1 Appointment and Authorization of Agent. Each Lender under the Existing Credit Agreement has designated and appointed (and each Lender hereby reaffirms such designation and appointment) Cortland as the Administrative Agent and Collateral Agent as their representatives under this Agreement and the other Loan Documents and each Lender has irrevocably authorized (and each Lender hereby reaffirms such authorization) (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to designate, appoint, and authorize) each Agent to execute and deliver each of the other Loan Documents on its behalf and to take such other action on its behalf under the provisions of this Agreement

and each other Loan Document and to exercise such powers and perform such duties as are expressly delegated to each Agent by the terms of this Agreement or any other Loan Document, together with such powers as are reasonably incidental thereto. The Agents agree in their respective capacities as Administrative Agent and Collateral Agent, as applicable, to act as agent for and on behalf of the Lenders (and the Bank Product Providers) on the express conditions contained in this Article X. The provisions of this Article X (other than Section 10.9 and Section 10.11) are solely for the benefit of the Agents, and the Lenders, and the Borrower and its Subsidiaries shall have no rights as a third party beneficiary of any of the provisions contained herein. The Agents shall not have any duties or responsibilities, except those expressly set forth herein, nor shall the Agents have or be deemed to have any fiduciary relationship with any Lender (or Bank Product Provider), and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Agents; it being expressly understood and agreed that the use of the word “Agent” is for convenience only, that the Agents are merely the representative of the Lenders, and only has the contractual duties set forth herein. Without limiting the generality of the foregoing, the use of the term “agent” in this Agreement or the other Loan Documents with reference to Agents is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only a representative relationship between independent contracting parties. Each Lender hereby further authorizes (and by its entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to authorize) the Collateral Agent to act as the secured party under each of the Loan Documents that create a Lien on any item of Collateral. Except as expressly otherwise provided in this Agreement, the Agents shall have and may use their sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions that the Agents expressly are entitled to take or assert under or pursuant to this Agreement and the other Loan Documents. Without limiting the generality of the foregoing, or of any other provision of the Loan Documents that provides rights or powers to the Agents, the Lenders agree that the Agents shall have the right to exercise the following powers as long as this Agreement remains in effect: (a) maintain, in accordance with its customary business practices, ledgers and records reflecting the status of the Obligations, the Collateral, the Collections of the Borrower and its Subsidiaries, and related matters, (b) execute or file any and all financing or similar statements or notices, amendments, renewals, supplements, documents, instruments, proofs of claim, notices and other written agreements with respect to the Loan Documents, (c) make Loans, for itself (to the extent such Agent is also a Lender) or on behalf of Lenders as provided in the Loan Documents, (d) exclusively receive, apply, and distribute the Collections of the Borrower and its Subsidiaries as provided in the Loan Documents, (e) open and maintain such bank accounts and cash management arrangements as the Agents deem necessary and appropriate in accordance with the Loan Documents for the foregoing purposes with respect to the Collateral and the Collections of the Borrower and its Subsidiaries, (f) perform, exercise, and enforce any and all other rights and remedies of the Lender Group with respect to the Borrower, the Obligations, the Collateral, the Collections of the Borrower and its Subsidiaries, or otherwise related to any of same as provided in the Loan Documents, and (g) incur and pay such Lender Group Expenses as the Agents may deem necessary or appropriate for the performance and fulfillment of its functions and powers pursuant to the Loan Documents. At least three Business Days prior to any Interest Payment Date and with respect to any other payment in respect of the Loans hereunder, promptly upon receipt of a prepayment notice from the Borrowers, the Administrative Agent shall provide the Lenders with a Payment Date Statement relating to such payment to Lenders.

10.2 Delegation of Duties. The Agents may execute any of its duties under this Agreement or any other Loan Document by or through agents, employees or attorneys in fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Agents shall not be responsible for the negligence or misconduct of any agent or attorney in fact selected by it with reasonable care except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the such Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. In

connection with perfecting its security interest in any Collateral which constitutes Instruments or certificated Pledged Securities, for so long as Cortland is the Collateral Agent under this Agreement, it shall appoint (and maintain an agreement with) a sub-agent who has secure and fire resistant facilities in accordance with customary standards for custody of Instruments and certificated Pledged Securities, who shall take possession of the related Collateral and maintain it in such location for purposes of custodial safe keeping.

10.3 General Immunity.

(a) No Responsibility for Certain Matters. No Agent shall be responsible to any Lender (or any other Secured Party) for the execution, effectiveness, genuineness, validity, enforceability, collectability or sufficiency hereof or any other Loan Document or for any representations, warranties, recitals or statements made herein or therein or made in any written or oral statements or in any financial or other statements, instruments, reports or certificates or any other documents furnished or made by any Agent to the Lenders (or any other Secured Party) or by or on behalf of any Loan Party to any Agent or any Lender (or any other Secured Party) in connection with the Loan Documents and the transactions contemplated thereby or for the financial condition or business affairs of any Loan Party or any other Person liable for the payment of any Obligations, nor shall any Agent be required to ascertain or inquire as to the performance or observance of any of the terms, conditions, provisions, covenants or agreements contained in any of the Loan Documents or as to the use of the proceeds of the Loans or as to the existence or possible existence of any Default or Event of Default or to make any disclosures with respect to the foregoing. Anything contained herein to the contrary notwithstanding, the Agents shall not have any liability arising from confirmations of the amount of outstanding Loans or the component amounts thereof.

(b) Exculpatory Provisions. No Agent-Related Person shall be liable for any action taken or omitted by any Agent under or in connection with any of the Loan Documents except to the extent caused by such Agent’s gross negligence or willful misconduct, as determined by a court of competent jurisdiction in a final, non-appealable order; provided, that any action taken or omitted by any Agent at the direction of the Required lenders (or such other Lenders as the case may be) shall not constitute gross negligence or willful misconduct on the part of such Agent. Each Agent shall be entitled to refrain from any act or the taking of any action (including the failure to take an action) in connection herewith or any of the other Loan Documents or from the exercise of any power, discretion or authority vested in it hereunder or thereunder unless and until such Agent shall have received instructions in respect thereof from Required Lenders (or such other Lenders as may be required to give such instructions under Section 11.2) and, upon receipt of such instructions from Required Lenders (or such other Lenders, as the case may be), such Agent shall be entitled to act or (where so instructed) refrain from acting, or to exercise such power, discretion or authority, in accordance with such instructions. Without prejudice to the generality of the foregoing, (i) each Agent shall be entitled to rely, and shall be fully protected in relying, upon any communication, instrument or document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons, and shall be entitled to rely and shall be protected in relying on opinions and judgments of attorneys (who may be attorneys for the Loan Parties), accountants, experts and other professional advisors selected by it; and (ii) no party hereto shall have any right of action whatsoever against any Agent in such capacity as a result of such Agent in such capacity acting or (where so instructed) refraining from acting hereunder or any of the other Loan Documents in accordance with the instructions of Required Lenders (or such other Lenders as may be required to give such instructions under Section 11.2).

10.4 Reliance by Agent. The Agents shall be fully justified in failing or refusing to take any action under this Agreement or any other Loan Document unless Agent shall first receive such advice or concurrence of

the Lenders as it deems appropriate and until such instructions are received, the Agents shall act, or refrain from acting, as it deems advisable. If an Agent so requests, it shall first be indemnified to its reasonable satisfaction by the Lenders against any and all liability and expense that may be incurred by it by reason of taking or continuing to take any such action. The Agents shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement or any other Loan Document in accordance with a request or consent of the requisite Lenders and such request or consent and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.

10.5 Knowledge of Defaults/Events of Default. The Agents shall not be deemed to have knowledge or notice of the occurrence of any Default and/or Event of Default, unless the Agents shall have received written notice from a Lender or the Borrower referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Administrative Agent will notify the Lenders of its receipt of any such notice. The Agents shall take such action with respect to such Default and/or Event of Default in accordance with Article VII; provided that, unless and until the Agents have received any such direction, the Agents (but shall not be obligated to) take any action, or refrain from taking any action, with respect to such Default and/or Event of Default as it shall deem advisable or in the best interest of the Lenders.

10.6 Credit Decision. Each Lender acknowledges that none of the Agent-Related Persons has made any representation or warranty to it, and that no act by any Agent hereinafter taken, including any review of the affairs of the Borrower and its Subsidiaries or Affiliates, shall be deemed to constitute any representation or warranty by any Agent-Related Person to any Lender. Each Lender represents (and by its entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to represent) to the Agents that it has, independently and without reliance upon any Agent-Related Person and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, prospects, operations, property, financial and other condition and creditworthiness of the Borrower and any other Person party to a Loan Document, and all applicable bank regulatory laws relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to the Borrower. Each Lender also represents (and by its entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to represent) that it will, independently and without reliance upon any Agent-Related Person and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of the Borrower and any other Person party to a Loan Document. Except for notices, reports, and other documents expressly herein required to be furnished to the Lenders by the Agents, the Agents shall not have any duty or responsibility to provide any Lender (or any Bank Product Provider) with any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of the Borrower and any other Person party to a Loan Document that may come into the possession of any of the Agent-Related Persons.

10.7 Costs and Expenses; Indemnification. The Agents may incur and pay Lender Group Expenses to the extent such Agent reasonably deems necessary or appropriate for the performance and fulfillment of its functions, powers, and obligations pursuant to the Loan Documents, including court costs, attorneys’ fees and expenses, fees and expenses of financial accountants, advisors, consultants, and appraisers, costs of collection by outside collection agencies, auctioneer fees and expenses, and costs of security guards or insurance premiums paid to maintain the Collateral, whether or not Borrower is obligated to reimburse the Agents or Lenders for such expenses pursuant to this Agreement or otherwise. The Agents are authorized and directed to deduct and retain sufficient amounts from the Collections of the Borrower and its Subsidiaries received by the Agents to reimburse the Agents for such out-of-pocket costs and expenses prior to the distribution of any amounts to Lenders. In the event the Agents are not reimbursed for such

costs and expenses by the Borrower or from the Collections of the Borrower and its Subsidiaries received by the Agents, each Lender hereby agrees that it is and shall be obligated to pay to or reimburse the Agents for the amount of such Lender’s Pro Rata Share thereof. Whether or not the transactions contemplated hereby are consummated, the Lenders shall indemnify upon demand the Agent-Related Persons (to the extent not reimbursed by or on behalf of the Borrower and without limiting the obligation of the Borrower to do so), according to their Pro Rata Shares, from and against any and all Indemnified Liabilities; provided, however, that no Lender shall be liable for the payment to any Agent-Related Person of any portion of such Indemnified Liabilities resulting solely from such Person’s gross negligence or willful misconduct nor shall any Lender be liable for the obligations of any Defaulting Lender in failing to make a Loan or other extension of credit hereunder. Without limitation of the foregoing, each Lender shall reimburse the Agents upon demand for such Lender’s Pro Rata Share of any costs or out of pocket expenses (including attorneys, accountants, advisors, and consultants fees and expenses) incurred by any Agent in connection with the preparation, execution, delivery, administration, modification, amendment, or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any other Loan Document, or any document contemplated by or referred to herein, to the extent that any Agent is not reimbursed for such expenses by or on behalf of the Borrower; provided, however, that following the occurrence and continuance of an Event of Default, to the extent the Agents seek to take an action which will cause them to incur a cost or expense in excess of $10,000, the Agents shall promptly seek prior written consent of the Required Lenders with respect to such action. The undertaking in this Section shall survive the payment of all Obligations hereunder and the resignation or replacement of any Agent.

10.8 Agent in Individual Capacity. The Agents and their Affiliates may make loans to, accept deposits from, acquire Securities in, and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with Borrower and its Subsidiaries and Affiliates and any other Person party to any Loan Documents as though the Agents were not Agents hereunder, and, in each case, without notice to or consent of the other members of the Lender Group. The other members of the Lender Group acknowledge (and by its entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to acknowledge) that, pursuant to such activities, the Agents or their Affiliates may receive information regarding Borrower or its Affiliates and any other Person party to any Loan Documents that is subject to confidentiality obligations in favor of the Borrower or such other Person and that prohibit the disclosure of such information to the Lenders, and the Lenders acknowledge (and by its entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to acknowledge) that, in such circumstances (and in the absence of a waiver of such confidentiality obligations, which waiver the Agents will use commercially reasonable efforts to obtain), the Agents shall not be under any obligation to provide such information to them. The terms “Lender” and “Lenders” include each Agent in its individual capacity.

10.9 Successor Agent.

(a) Any Agent may at any time give notice of its resignation to the Lenders and the Borrower. At any time, the Agent may be removed by the Required Lenders or the Borrower, upon thirty days’ prior written notice to such Agent, the Lenders and the Borrower. Upon receipt of any such notice of resignation or removal, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor Agent for the Lenders. In connection with a resignation, if no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Agent gives notice of its resignation (or such earlier date as may be agreed by the Required Lenders) (the “Resignation Effective Date”), then the retiring Agent may (but shall not be obligated to), on behalf of the Lenders, appoint a successor Agent meeting the qualifications set forth above; provided that in no event shall any such successor Agent be a Defaulting Lender. Whether or not a successor has been appointed, such

resignation shall become effective in accordance with such notice on the Resignation Effective Date. Upon the occurrence of a Removal Event, an Agent may be removed upon five (5) Business Days’ prior written notice by the Required Lenders or the Borrower, delivered to such Agent, the Lenders and the Borrower; provided, however, that, such removal shall not be effective until a successor Agent acceptable to the Required Lenders has been selected; provided, further, that if no such successor Agent has been appointed within thirty (30) days of such removal, the Required Lenders or the Borrower may petition any court of competent jurisdiction for the appointment of a successor Agent.

(b) If the Person serving as Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by applicable law, by notice in writing to the Borrower and such Person remove such Person as Agent and, in consultation with the Borrower, appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date.

(c) With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (i) the retiring or removed Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Collateral Agent on behalf of the Lenders under any of the Loan Documents, the retiring or removed Collateral Agent shall continue to hold such collateral security until such time as a successor Collateral Agent is appointed) and (ii) except for any indemnity payments owed to the retiring or removed Agent, all payments, communications and determinations provided to be made by, to or through the Agent shall instead be made by or to each Lender directly, until such time, if any, as the Required Lenders appoint a successor Agent as provided for above. Upon the acceptance of a successor’s appointment as an Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring or removed Agent (other than any rights to indemnity payments owed to the retiring or removed Agent), and the retiring or removed Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring or removed Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Article X and Section 8.1 shall continue in effect for the benefit of such retiring or removed Agent, its subagents and their respective Agent-Related Persons in respect of any actions taken or omitted to be taken by any of them while the retiring or removed Agent was acting as Agent.

10.10 Lender in Individual Capacity. Any Lender and its respective Affiliates may make loans to, accept deposits from, acquire Securities in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with Borrower and its Subsidiaries and Affiliates and any other Person party to any Loan Documents as though such Lender were not a Lender hereunder without notice to or consent of the other members of the Lender Group. The other members of the Lender Group acknowledge (and by its entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to acknowledge) that, pursuant to such activities, such Lender and its respective Affiliates may receive information regarding Borrower or its Affiliates and any other Person party to any Loan Documents that is subject to confidentiality obligations in favor of the Borrower or such other Person and that prohibit the disclosure of such information to the Lenders, and the Lenders acknowledge (and by its entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to acknowledge) that, in such circumstances (and in the absence of a waiver of such confidentiality obligations, which waiver such

Lender will use commercially reasonable efforts to obtain), such Lender shall not be under any obligation to provide such information to them.

10.11 Withholding Taxes.

(a) Any and all payments made by the Borrower hereunder or under any note or other Loan Document will be made free and clear of, and without deduction or withholding for, any present or future Taxes, except as required by applicable law. If any applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by 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 Borrower 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) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made. The Borrower shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of any Other Taxes. The Borrower will furnish to the Administrative Agent as promptly as possible after the date the payment of any Tax is due pursuant to applicable law certified copies of tax receipts issued by the applicable Governmental Authority evidencing such payment of such Tax by the Borrower, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent. The Borrower shall indemnify each Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to an amount payable under this Section 10.11, 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 as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the an Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. For purposes of this Section 10.11, the term “applicable law” includes FATCA.

(b) Each Agent shall deliver to the Borrower a properly completed and executed IRS Form W-9 on or prior to the date it becomes an Agent under this Agreement and at any other time reasonably requested by the Administrative Agent or the Borrower. If a Lender is entitled to claim an exemption from, or reduction of, United States withholding tax, Lender agrees with and in favor of the Administrative Agent and the Borrower, to deliver to the Administrative Agent whichever of the following is applicable:

(i) if such Lender claims an exemption from United States federal withholding tax pursuant to the portfolio interest exception under Section 881(c) of the Code, (A) a statement of the Lender, signed under penalty of perjury, that it is not (I) a “bank” as described in Section 881(c)(3)(A) of the Code, (II) a 10.0% shareholder of the Borrower (within the meaning of Section 881(c)(3)(B) of the Code), or (III) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and (B) a properly completed and executed IRS Form W-8BEN or W-8BEN-E (or successor form), as applicable, on or prior to the date it becomes a Lender under this Agreement and at any other time reasonably requested by Administrative Agent or the Borrower;

(ii) if such Lender claims an exemption from, or a reduction of, withholding tax under an income tax treaty to which the United States is a party, two properly completed and executed copies of IRS Form W-8BEN or W-8BEN-E (or successor form), as applicable, on or prior to the date it becomes a Lender under this Agreement and at any other time reasonably requested by the Administrative Agent or the Borrower;

(iii) if such Lender claims that interest paid under this Agreement is exempt from United States withholding tax because it is effectively connected with a United States trade or business of such Lender, two properly completed and executed copies of IRS Form W-8ECI (or successor form) (together with applicable attachments) on or prior to the date it becomes a Lender under this Agreement and at any other time reasonably requested by the Administrative Agent or the Borrower;

(iv) two properly completed and executed copies of IRS Form W-8IMY (or successor form) (together with the relevant documentation under this Section 10.11(b) and/or any other certification documents from each beneficial owner, as applicable) on or prior to the date it becomes a Lender under this Agreement and at any other time reasonably requested by the Administrative Agent or the Borrower; or

(v) such other form or forms, including IRS Form W-9 (or successor form), as may be required under the Code or other laws of the United States as a condition to exemption from, or reduction of, United States withholding or backup withholding tax on or prior to the date it becomes a Lender under this Agreement and at any other time reasonably requested by the Administrative Agent or the Borrower.

Each Agent and each such Lender agree to promptly notify, in writing, the Administrative Agent and the Borrower of any change in circumstances which would modify or render invalid any claimed exemption or reduction. Each Agent and each such Lender agree to update any expired, obsolete or inaccurate form provided pursuant to Section 10.11(b), (c) or (g) or to promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.

(c) If an Agent or a Lender is entitled to an exemption from, or reduction of, withholding tax in a jurisdiction other than the United States or backup withholding, such Agent or such Lender agrees with and in favor of the Administrative Agent and the Borrower to deliver to the Administrative Agent any such form or forms as may be required as a condition to exemption from, or reduction of, foreign withholding or backup withholding tax on or prior to the date it becomes an Agent or a Lender under this Agreement and at any other time reasonably requested by the Administrative Agent or the Borrower.

Each Agent and each such Lender agrees promptly to notify, in writing, the Administrative Agent and the Borrower of any change in circumstances which would modify or render invalid any claimed exemption or reduction.

(d) If any Lender claims exemption from, or reduction of, withholding tax and such Lender sells, assigns, grants a participation in, or otherwise transfers all or part of the Obligations of the Borrower, such Lender agrees to notify the Administrative Agent and the Borrower of the percentage amount in which it is no longer the beneficial owner of Obligations of the Borrower. To the extent of such percentage amount, the Administrative Agent and the Borrower will treat such Lender’s documentation provided pursuant to Sections 10.11(b), 10.11(c) or 10.11(g) as no longer valid. With respect to such percentage amount, such Lender may provide new documentation, pursuant to Sections 10.11(b), 10.11(c) or 10.11(g), if applicable.

(e) If any Lender is entitled to a reduction in the applicable withholding tax, the Administrative Agent may withhold from any payment to such Lender an amount equivalent to the applicable withholding tax after taking into account such reduction. If the forms or other documentation required by subsection (b), (c) or (g) of this Section 10.11 are not delivered to the Administrative Agent, then the Administrative Agent may withhold from any payment to such Lender not providing such forms or other documentation an amount equivalent to the applicable withholding tax.

(f) 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 10.11 (including by the payment of additional amounts pursuant to this Section 10.11), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 10.11 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (f) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (f), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (f) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

(g) 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 Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this Section 10.11(g), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

(h) Each party’s obligations under this Section 10.11 shall survive the resignation or replacement of the Agents or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.

10.12 Collateral and Guarantor Matters.

(a) The Lenders hereby irrevocably authorize (and by its entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to authorize) the Collateral Agent to, and the Collateral Agent shall:

(i) release any Lien and/or negative pledge granted pursuant to the Negative Pledge Agreement, as applicable, on any Asset (including, for the avoidance of doubt, the Proceeds of such Asset) upon the termination of the Commitments and payment and satisfaction in full by the Borrower of all Obligations;

(ii) release any Lien and/or negative pledge granted pursuant to the Negative Pledge Agreement, as applicable, on any Asset (including, for the avoidance of doubt, the Proceeds of such Asset), including any Subsidiary of the Borrower:

(A) (x) in contemplation of the incurrence, assumption or purchase of Debt pursuant to Section 6.1 (and the imposition of a Permitted Lien pursuant to Section 6.2) if the Borrower certifies to the Collateral Agent that such Debt is contemplated to be incurred within 15 days of the delivery of such certificate (the “Permitted Debt Certificate”) or (y) in connection with the incurrence, assumption or purchase of Debt pursuant to Section 6.1 (and the imposition of a Permitted Lien pursuant to Section 6.2), in each case on such terms (including, for the avoidance of doubt, in respect to the priority of such Liens granted, in each case in connection with the incurrence, assumption or purchase of such Debt) as is reasonably satisfactory to the party incurring, assuming or acquiring such Debt and the lender of any such Debt; provided however, if, in the event the Borrower or any of its Subsidiaries does not incur Debt contemplated by subclause (x) of this clause (A) within 15 days of the delivery of the Permitted Debt Certificate, any Lien and/or negative pledge that was released by the Collateral Agent in connection with such Permitted Debt Certificate shall be reinstated with respect to such released Collateral and such Grantor shall deliver such additional pledge and security documents as the Collateral Agent may reasonably request in order to give effect to such reinstatement; or

(B) that is being sold by any Loan Party, any Grantor or any Negative Pledgor if the Borrower certifies to the Collateral Agent that the Sale is permitted under Section 6.6 of this Agreement or the other Loan Documents (and the Collateral Agent may rely conclusively on any such certificate, without further inquiry); or

(iii) release any Guarantor, Negative Pledgor or Grantor from its obligations hereunder if the Borrower certifies to the Collateral Agent that such Guarantor, Negative Pledgor or Grantor is being sold pursuant to a Sale that is permitted under Section 6.6 of this Agreement or the other Loan Documents (and the Collateral Agent may rely conclusively on any such certificate, without further inquiry).

(b) Upon the occurrence of any event set forth in clause (a) above, (i) each applicable Asset (including, for the avoidance of doubt, the Proceeds of such Asset) shall automatically, and without further action, be released as Collateral for all purposes under the Loan Documents; provided however, if, in the event the Borrower or any of its Subsidiaries does not incur Debt contemplated by clause (a)(ii)(A)(x) above within 15 days of the delivery of the Permitted Debt Certificate, any Collateral that was released shall be reinstated with respect to such released

Collateral and such Grantor shall deliver such additional pledge and security documents as the Collateral Agent may reasonably request in order to give effect to such reinstatement and (ii) upon the request, and at the expense of the Borrower, the Agents agree, as applicable, to execute and deliver such release documents and take such other actions to acknowledge, evidence or complete any such release of such Asset or Person as may be reasonably requested by the Borrower or any of its Subsidiaries; provided, however, that upon request by the Collateral Agent or the Borrower or any of its Subsidiaries at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any such Liens and/or negative pledges granted pursuant to the Negative Pledge Agreement, as applicable, on particular types or items of Assets (including, for the avoidance of doubt, the Proceeds of such Asset) pursuant to this Section 10.12; provided, further, that (1) the Collateral Agent shall not be required to execute any document necessary to evidence such release on terms that, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligation or entail any consequence other than the release of such Lien without recourse, representation, or warranty, and (2) such release shall not in any manner discharge, affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of the Borrower or any of its Subsidiaries in respect of) all interests retained by the Borrower or any of its Subsidiaries, including, the proceeds of any sale, all of which shall continue to constitute part of the Collateral.

(c) The Agents shall have no obligation whatsoever to any of the Lenders (or the Bank Product Providers) to assure that the Collateral exists or is owned by the Borrower or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, or enforced or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Agents pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, subject to the terms and conditions contained herein, the Agents may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral in its capacity as a Secured Party and that the Agents shall have no other duty or liability whatsoever to any Lender (or to any Bank Product Provider) as to any of the foregoing, except as otherwise provided herein.

10.13 Restrictions on Actions by Lenders; Sharing of Payments.

(a) Each of the Lenders agrees that it shall not, until an Event of Default has occurred and is continuing, without the express written consent of the Agents, and that it shall, to the extent it is lawfully entitled to do so, upon the written request of the Agents, set off against the Obligations, any amounts owing by such Lender to the Borrower or any deposit accounts of the Borrower now or hereafter maintained with such Lender. Each of the Lenders further agrees that it shall not, unless specifically requested to do so in writing by the Agents (which request shall not be made by the Agents unless an Event of Default has occurred and is continuing), take or cause to be taken any action, including, the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral.

(b) If, at any time or times any Lender shall receive (i) by payment, foreclosure, setoff, or otherwise, any Proceeds of Collateral or any payments with respect to the Obligations, except for any such proceeds or payments received by such Lender from the Agents pursuant to the terms of this Agreement, or (ii) payments from the Agents in excess of such Lender’s ratable portion of all such distributions by the Agents, such Lender promptly shall (1) turn the same over to the Agents, in kind, and with such endorsements as may be required to negotiate the same to the Agents, or in immediately available funds, as applicable, for the account of all of the Lenders and for application

to the Obligations in accordance with the applicable provisions of this Agreement, or (2) purchase, without recourse or warranty, an undivided interest and participation in the Obligations owed to the other Lenders so that such excess payment received shall be applied ratably as among the Lenders in accordance with their Pro Rata Shares; provided, however, that to the extent that such excess payment received by the purchasing party is thereafter recovered from it, those purchases of participations shall be rescinded in whole or in part, as applicable, and the applicable portion of the purchase price paid therefor shall be returned to such purchasing party, but without interest except to the extent that such purchasing party is required to pay interest in connection with the recovery of the excess payment.

10.14 Agency for Perfection. The Collateral Agent hereby appoints the
Administrative Agent and each other Lender (and each Bank Product Provider) as its agent (and the Administrative Agent and each Lender hereby accepts (and by its entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to accept) such appointment) for the purpose of perfecting the Collateral Agent’s Liens in assets which, in accordance with Article 8 or Article 9, as applicable, of the Uniform Commercial Code can be perfected only by possession or control. Should any Lender obtain possession or control of any such Collateral, such Lender shall notify the Agents thereof, and, promptly upon either Agent’s request therefor shall deliver possession or control of such Collateral to the Collateral Agent or in accordance with either Agent’s instructions.

10.15 Payments by Agent to the Lenders. All payments to be made by the Agents to the Lenders shall be made by bank wire transfer of immediately available funds pursuant to such wire transfer instructions as each party may designate for itself by written notice to the Agents.

10.16 Concerning the Collateral and Related Loan Documents. Each member of the Lender Group authorizes and directs the Agents to enter into this Agreement and the other Loan Documents. Each member of the Lender Group agrees (and by its entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to agree) that any action taken by the Agents in accordance with the terms of this Agreement or the other Loan Documents relating to the Collateral and the exercise by the Agents of their powers set forth therein or herein, together with such other powers that are reasonably incidental thereto, shall be binding upon all of the Lenders (and such Bank Product Provider).

10.17 Field Examinations and Examination Reports; Confidentiality; Disclaimers by Lenders; Other Reports and Information. By becoming a party to this Agreement, each Lender:

(a) is deemed to have requested that the Agents furnish such Lender, promptly after it becomes available, (i) a copy of each field examination or examination report prepared by the Agents, and (ii) a copy of each document delivered to the Agents pursuant to Sections 5.3(a), (b) and (c) (each a “Report” and collectively, “Reports”), and the Agents shall so furnish each Lender with such Reports,

(b) expressly agrees and acknowledges that the Agents do not (i) make any representation or warranty as to the accuracy of any Report, and (ii) shall not be liable for any information contained in any Report,

(c) expressly agrees and acknowledges that the Reports are not comprehensive audits or examinations, that the Agents or other party performing any examination will inspect only specific information regarding Borrower and will rely significantly upon the books of the Borrower and the other Loan Parties, as well as on representations of the Borrower’s personnel,

(d) agrees to keep all Reports and other material, non-public information regarding Borrower and its Subsidiaries and their operations, assets, and existing and contemplated business plans in a confidential manner in accordance with Section 11.12, and

(e) without limiting the generality of any other indemnification provision contained in this Agreement, agrees: (i) to hold any Agent and any other Lender preparing a Report harmless from any action the indemnifying Lender may take or fail to take or any conclusion the indemnifying Lender may reach or draw from any Report in connection with any loans or other credit accommodations that the indemnifying Lender has made or may make to the Borrower, or the indemnifying Lender’s participation in, or the indemnifying Lender’s purchase of, a loan or loans of the Borrower, and (ii) to pay and protect, and indemnify, defend and hold any Agent, and any such other Lender preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including, attorneys' fees and costs) incurred by any Agent and any such other Lender preparing a Report as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender.

In addition to the foregoing: (x) any Lender may from time to time request of the Agent in writing that the Agents provide to such Lender a copy of any report or document provided by the Borrower to the Agents that has not been contemporaneously provided by the Borrower to such Lender, and, upon receipt of such request, the Agents promptly shall provide a copy of same to such Lender, (y) to the extent that the Agents are entitled, under any provision of the Loan Documents, to request additional reports or information from Borrower, any Lender may, from time to time, reasonably request the Agents to exercise such right as specified in such Lender’s notice to the Agents, whereupon the Agents promptly shall request of the Borrower the additional reports or information reasonably specified by such Lender, and, upon receipt thereof from Borrower, the Agents promptly shall provide a copy of same to such Lender, and (z) any time that the Administrative Agent renders to the Borrower a statement regarding the Loan Account, the Administrative Agent shall send a copy of such statement to each Lender.

10.18 Several Obligations; No Liability. Notwithstanding that certain of the Loan Documents now or hereafter may have been or will be executed only by or in favor of the Agents in its capacity as such, and not by or in favor of the Lenders, any and all obligations on the part of any Agent to make any credit available hereunder shall constitute the several (and not joint) obligations of the respective Lenders on a ratable basis, according to their respective Commitments, to make an amount of such credit not to exceed, in principal amount, at any one time outstanding, the amount of their respective Commitments. Nothing contained herein shall confer upon any Lender any interest in, or subject any Lender to any liability for, or in respect of, the business, assets, profits, losses, or liabilities of any other Lender. Each Lender shall be solely responsible for notifying its Participants of any matters relating to the Loan Documents to the extent any such notice may be required, and no Lender shall have any obligation, duty, or liability to any Participant of any other Lender. Except as provided in Section 10.7, no member of the Lender Group shall have any liability for the acts of any other member of the Lender Group. No Lender shall be responsible to the Borrower or any other Person for any failure by any other Lender to fulfill its obligations to make credit available hereunder, nor to take any other action on its behalf hereunder or in connection with the financing contemplated herein.

10.19 Bank Product Providers. Each Bank Product Provider shall be deemed a third party beneficiary hereof and of the provisions of the other Loan Documents for purposes of any reference in a Loan Document to the parties for whom an Agent is acting. The Collateral Agent hereby agrees to act as agent for such Bank Product Providers in respect of the Collateral and the Liens granted therein and, by virtue of entering into a Bank Product Agreement, the applicable Bank Product Provider shall be automatically deemed to have appointed the Collateral Agent as its agent (in respect of the Collateral and the Liens granted therein) and to have accepted the benefits of the Loan Documents; it being understood and agreed

that the rights and benefits of each Bank Product Provider under the Loan Documents consist exclusively of such Bank Product Provider’s being a beneficiary of the Liens and security interests (and, if applicable, guarantees) granted to the Collateral Agent and the right to share in payments and collections out of the Collateral as more fully set forth herein. In addition, each Bank Product Provider, by virtue of entering into a Bank Product Agreement, shall be automatically deemed to have agreed that the Collateral Agent shall have the right, but shall have no obligation, to establish, maintain, relax, or release reserves in respect of the Bank Product Obligations and that if reserves are established there is no obligation on the part of the Agents to determine or insure whether the amount of any such reserve is appropriate or not. In connection with any such distribution of payments or Proceeds of Collateral, the Collateral Agent shall be entitled to assume no amounts are due or owing to any Bank Product Provider unless such Bank Product Provider has provided a written certification (setting forth a reasonably detailed calculation) to the Agents as to the amounts that are due and owing to it and such written certification is received by the Agents a reasonable period of time prior to the making of such distribution. The Agents shall have no obligation to calculate the amount due and payable with respect to any Bank Products, but may rely upon the written certification of the amount due and payable from the relevant Bank Product Provider. In the absence of an updated certification, the Agents shall be entitled to assume that the amount due and payable to the relevant Bank Product Provider is the amount last certified to the Agents by such Bank Product Provider as being due and payable (less any distributions made to such Bank Product Provider on account thereof). The Borrower or any of its Subsidiaries may obtain Bank Products from any Bank Product Provider, although neither the Borrower nor its Subsidiaries is required to do so. The Borrower acknowledges and agrees that no Bank Product Provider has committed to provide any Bank Products and that the providing of Bank Products by any Bank Product Provider is in the sole and absolute discretion of such Bank Product Provider. Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Product 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 such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or Guarantor.

10.20 Representations and Warranties of each Agent. Each Agent makes the following representations and warranties as of the A&R Effective Date:

(a) It is duly organized and existing under the laws of the jurisdiction of its organization with full power and authority to execute and deliver this Agreement and to perform all of the duties and obligations to be performed by it hereunder;

(b) This Agreement will be, legally and validly entered into by such Agent, does not, and will not, violate any ordinance, charter, by law, rule or statute applicable to it, and is enforceable against such Agent in accordance with its terms, except as may be limited by bankruptcy, insolvency or similar laws, or by equitable principles relating to or limiting creditors' rights generally; and

10.21 Erroneous Payments.

(a) Each Lender hereby agrees that (i) if the Administrative Agent or the Collateral Agent notifies such Lender that the Administrative Agent or the Collateral Agent has determined in its sole discretion that any funds received by such Lender from the Administrative Agent or any of its Affiliates or the Collateral Agent or any of its Affiliates were erroneously or mistakenly

transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than fifteen (15) Business Days thereafter, return to the Administrative Agent or the Collateral Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including such fifteenth (15th) Business Day (assuming such Erroneous Payment (or any remaining portion thereof) shall be unpaid as of such date) to the date such amount is repaid to the Administrative Agent or the Collateral Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent or the Collateral Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent or the Collateral Agent for the return of any Erroneous Payments received, including, without limitation, waiver of any defense based on “discharge for value” or any similar theory or doctrine. A notice of the Administrative Agent or the Collateral Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.

(b) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason (and without limiting the Administrative Agent’s or the Collateral Agent’s rights and remedies under this Section 10.21), the Administrative Agent or the Collateral Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party.

© In addition to any rights and remedies of the Administrative Agent or the Collateral Agent provided by law, Administrative Agent or the Collateral Agent shall have the right, without prior notice to any Lender, any such notice being expressly waived by such Lender to the extent permitted by applicable law, with respect to any Erroneous Payment for which a demand has been made in accordance with this Section 10.21 and which has not been returned to the Administrative Agent or the Collateral Agent, to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final but excluding trust accounts), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by Administrative Agent or the Collateral Agent or any of their Affiliate, branch or agency thereof to or for the credit or the account of such Lender. Administrative Agent and the Collateral Agent agrees promptly to notify the Lender after any such setoff and application made by Administrative Agent or the Collateral Agent, as applicable; provided, that the failure to give such notice shall not affect the validity of such setoff and application.

(d) Each party’s obligations under this Section 10.21 shall survive the resignation or replacement of the Administrative Agent or the Collateral Agent, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.

ARTICLE XI
MISCELLANEOUS

11.1 No Waivers, Remedies. No failure or delay on the part of any Agent or any Lender, or the holder of any interest in this Agreement in exercising any right, power, privilege, or remedy under this Agreement or any of the other Loan Documents shall impair or operate as a waiver thereof, nor shall any single or partial exercise of any such right, power, privilege, or remedy preclude any other or further exercise thereof or the exercise of any other right, power, privilege, or remedy. The waiver of any such right, power, privilege, or remedy with respect to particular facts and circumstances shall not be deemed to be a waiver with respect to other facts and circumstances. The remedies provided for under this Agreement or the other Loan Documents are cumulative and are not exclusive of any remedies that may be available to any Agent or any Lender, or the holder of any interest in this Agreement at law, in equity, or otherwise.

11.2 Waivers and Amendments. No amendment or waiver of any provision of this Agreement or any other Loan Document (other than Bank Product Agreements), and no consent with respect to any departure by the Borrower therefrom, shall be effective unless the same shall be in writing and signed by the Administrative Agent, Required Lenders (or by the Agents at the written request of the Required Lenders) and the Borrower and then any such waiver or consent shall be effective, but only in the specific instance and for the specific purpose for which given; provided, however, that no such waiver, amendment, or consent shall:

(a) increase or extend any Delayed Draw Term Loan Commitment of any Lender; provided that no amendment, modification or waiver of any condition precedent, covenant, Event of Default or Default shall constitute an increase in any Delayed Draw Term Loan Commitment of any Lender, without the written consent of each Lender directly and adversely affected thereby,

(b) postpone or delay any date fixed by this Agreement or any other Loan Document for any payment of principal, interest, fees, or other amounts due hereunder or under any other Loan Document, without the written consent of each Lender directly and adversely affected thereby,

(c) reduce the principal of, or the rate of interest on, or the Prepayment Premium, if any, any Loan or other extension of credit hereunder, or reduce any fees or other amounts payable hereunder or under any other Loan Document, without the written consent of each Lender directly and adversely affected thereby,

(d) change the Pro Rata Share that is required to take any action hereunder, without the written consent of each Lender,

(e) amend or modify this Section or any provision of the Agreement providing for consent or other action by all Lenders, without the written consent of each Lender,

(f) other than as permitted by Section 10.12, release the Collateral Agent’s Lien in and to any of the Collateral, without the written consent of each Lender,

(g) change the definition of “Required Lenders” or “Pro Rata Share”, without the written consent of each Lender,

(h) other than as permitted by Section 10.12, release any Loan Party from any obligation for the payment of money, without the written consent of each Lender, or

(i) amend any of the provisions of Article X, without the written consent of each Lender.

and, provided further, however, that no amendment, waiver or consent shall, unless in writing and signed by the Agents, affect the rights or duties of the Agents under this Agreement or any other Loan Document.

Notwithstanding the foregoing, no amendment, termination or waiver of any provision of the Loan Documents, or consent to any departure by any Loan Party therefrom, shall be made other than by a solicitation of all Lenders, in a manner that treats all Lenders in the same manner, and that requires that any consent fee or other consideration payable in connection therewith be payable ratably to all Lenders who consent to the requested amendment, termination, waiver or consent.

If, in connection with any proposed amendment, waiver or consent requiring the consent of “each Lender” or “each Lender directly affected thereby,” the consent of the Required Lenders is obtained, but the consent of other necessary Lenders is not obtained (any such Lender whose consent is necessary but not obtained being referred to herein as a “Non-Consenting Lender”), then the Borrower may at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 9.1), all of its interests, rights (other than its existing rights to payments pursuant to Section 2.11 or Section 10.11) and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that:

(i) the Borrower shall have paid to the Administrative Agent the assignment fee (if any) specified in Section 9.1(b)(iv);

(ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts);

(iii) in the case of any such assignment resulting from a claim for compensation under Section 2.11 or payments required to be made pursuant to Section 10.11, such assignment will result in a reduction in such compensation or payments thereafter;

(iv) such assignment does not conflict with applicable law; and

(v) in the case of any assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the applicable amendment, waiver or consent.

A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.

11.3 Notices. Except as otherwise provided herein, all notices, demands, instructions, requests, and other communications required or permitted to be given to, or made upon, any party hereto shall be in writing and shall be delivered or sent by registered or certified mail, postage prepaid, return receipt requested, or by courier, electronic mail (at such e-mail addresses as a party may designate in accordance herewith), or telefacsimile and shall be deemed to be given for purposes of this Agreement on the day that such writing is received by the Person to whom it is to be sent pursuant to the provisions of this Agreement. Unless otherwise specified in a notice sent or delivered in accordance with the foregoing provisions of this Section 11.3, notices, demands, requests, instructions, and other communications in writing shall be given to or made upon the respective parties hereto at their respective addresses (or to their respective telefacsimile numbers) indicated on Exhibit 11.3 attached hereto.

11.4 Release of Borrowing Base Eligible Assets. Upon receipt by the Agents of a notice from the Borrower at least five (5) Business Days prior to the date that the Borrower wishes to remove an Asset from the pool of Borrowing Base Eligible Assets (including but not limited to pursuant to Section 10.12 hereof), for all purposes herein, such Asset shall be removed from the pool of Borrowing Base Eligible Assets for all purposes hereunder upon satisfaction of the following:

(a) the Borrower shall deliver to the Agents a description of the relevant Asset to be removed;

(b) the Borrower shall deliver to the Agents a certificate of a Responsible Officer certifying that on a pro forma basis after giving effect to such removal, the Borrower is in compliance with the financial covenants set forth in Section 6.12; and

11.5 Valuation Confirmation Process. Notwithstanding the foregoing, the Borrower may, at any time retain the Initial Valuation Agent to undertake a valuation report (the “Valuation Report”) with respect to any Borrowing Base Eligible Asset (the Assigned Value in such Valuation Report, the “Initial Valuation”).

(a) Following the receipt by the Borrower of a Valuation Report (and delivery of a copy thereof to the Agents), the Assigned Value in respect of the relevant Borrowing Base Eligible Asset for the purposes of clause (b) of the definition of “Assigned Value” shall be the amount of the Initial Valuation unless the Required Agents notify the Borrower in writing (the “Initial Dispute Notice”) within five (5) Business Days following receipt of such Valuation Report that the Required Agents dispute the Initial Valuation.

(b) If the Required Lenders dispute the Initial Valuation as set forth in Section 11.5(a) above, the Borrower and the Required Lenders shall enter into good faith negotiations for two (2) Business Days to agree upon an amount that shall be used as the Assigned Value for the relevant Borrowing Base Eligible Asset.

(c) If the Borrower and the Required Lenders cannot agree upon such amount, the Borrower shall then have the right to retain the Second Valuation Agent to undertake a valuation report with respect to the Borrowing Base Eligible Asset (the Assigned Value in such additional valuation report, the “Second Valuation”). Following the receipt by the Borrower of such additional valuation report (and delivery of a copy thereof to the Agents) and if the amount of the Second Valuation is no more than 10.0% greater or lesser than the amount of the Initial Valuation, the Assigned Value in respect of the relevant Borrowing Base Eligible Asset for the purposes of clause (b) of the definition of “Assigned Value” shall be the amount equal to the average of the Initial Valuation and the Second Valuation.

(d) If the Second Valuation is more than 10.0% greater or lesser than the amount of the Initial Valuation and either (i) the Required Agents notify the Borrower in writing within five (5) Business Days following receipt of such additional valuation report that the Required Lenders dispute the Second Valuation or (ii) the Borrower notifies the Agents in writing within five (5) Business Days following receipt of such additional valuation report that it disputes the Second Valuation, the Borrower shall retain the Third Valuation Agent that is reasonably acceptable to the Required Lenders to undertake a valuation report with respect to the Borrowing Base Eligible Asset (the Assigned Value in such additional valuation report, the “Third Valuation”). If the amount of the Third Valuation falls within the range of the Initial Valuation and the Second Valuation, the Assigned Value for such Borrowing Base Eligible Asset for the purposes of clause (b) above shall be the amount of the Third Valuation. If the amount of the Third Valuation falls outside the range of the Initial Valuation and the Second Valuation, the Assigned Value in respect of the relevant Borrowing Base Eligible Asset for purposes of clause (b) of the definition of “Assigned Value” shall be the average of the Initial Valuation, the Second Valuation and the Third Valuation. The “Determined Valuation” shall mean the valuation of any Borrowing Base Eligible Asset pursuant to the process referred to above in these clauses (a)-(d) (such process, the “Valuation Confirmation Process”).

It is understood and agreed that, if a Valuation Confirmation Process is commenced, (i) the Valuation Confirmation Process shall be completed within 30 days of the delivery of the Initial Dispute Notice, (ii) the Initial Valuation shall apply for all purposes until the completion of the Valuation Confirmation Process and (iii) after the completion of the Valuation Confirmation Process, the Determined Valuation shall apply to such Borrowing Base Eligible Asset unless (a) the applicable VAE is continuing for a period of 90 days or more (other than pursuant to clause (vi) of the definition thereof) or (b) a new VAE has occurred, in which instance the Borrower shall retain the valuation agent that conducted the Determined Valuation to undertake an updated valuation (the “Updated Valuation”) for such Borrowing Base Eligible Asset every 90 days; the value of such Borrowing Base Eligible Asset shall be as determined in the Updated Valuation, provided, however, that the

Required Lenders shall be entitled to dispute the Updated Valuation, in which case the Borrower and the Required Lenders shall follow the procedures set forth in the Valuation Confirmation Process in respect of the Updated Valuation.

At the time of origination or purchase by the Borrower or its Subsidiaries of any Borrowing Base Eligible Asset, the outstanding principal balance of any single property underlying any Borrowing Base Eligible Asset shall not exceed 10.0% of the aggregate outstanding principal balance of the value of all properties underlying all Borrowing Base Eligible Assets.

11.6 Headings. Article and Section headings used in this Agreement and the table of contents preceding this Agreement are for convenience of reference only and shall neither constitute a part of this Agreement for any other purpose nor affect the construction of this Agreement. The foregoing shall apply to each other Loan Document mutatis mutandis.

11.7 Execution in Counterparts; Effectiveness. This Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Agreement. Delivery of an executed counterpart of this Agreement by telefacsimile or other electronic method of transmission shall be equally as effective as delivery of an original executed counterpart of this Agreement. Any party delivering an executed counterpart of this Agreement by telefacsimile or other electronic method of transmission also shall deliver an original executed counterpart of this Agreement but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Agreement. The foregoing shall apply to each other Loan Document mutatis mutandis.

11.8 GOVERNING LAW. EXCEPT AS SPECIFICALLY SET FORTH IN ANY OTHER LOAN DOCUMENT: (A) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE DEEMED TO HAVE BEEN MADE IN THE STATE OF NEW YORK; AND (B) THE VALIDITY OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AND THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF AND THEREOF, AND THE RIGHTS OF THE PARTIES THERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.

11.9 JURISDICTION AND VENUE. TO THE EXTENT THEY MAY LEGALLY DO SO, THE PARTIES HERETO AGREE THAT ALL ACTIONS, SUITS, OR PROCEEDINGS ARISING BETWEEN ANY MEMBER OF THE LENDER GROUP OR THE BORROWER AND ITS SUBSIDIARIES IN CONNECTION WITH THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS SHALL BE TRIED AND LITIGATED ONLY IN THE STATE OR FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK; PROVIDED HOWEVER THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT AT ANY AGENT’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE ANY AGENT ELECTS TO BRING SUCH ACTION TO THE EXTENT SUCH COURTS HAVE IN PERSONAM JURISDICTION OVER THE RELEVANT OBLIGOR OR IN REM JURISDICTION OVER SUCH COLLATERAL OR OTHER PROPERTY. THE BORROWER AND ITS SUBSIDIARIES AND EACH MEMBER OF THE LENDER GROUP, TO THE EXTENT THEY MAY LEGALLY DO SO, HEREBY WAIVE ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 11.9 AND STIPULATE THAT THE STATE AND FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK SHALL HAVE IN PERSONAM JURISDICTION AND VENUE OVER SUCH PERSON FOR THE PURPOSE OF LITIGATING ANY SUCH DISPUTE, CONTROVERSY, OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS. TO THE EXTENT PERMITTED BY LAW, SERVICE OF PROCESS SUFFICIENT FOR PERSONAL JURISDICTION IN ANY ACTION AGAINST BORROWER OR ANY MEMBER OF THE LENDER GROUP MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO ITS ADDRESS INDICATED ON EXHIBIT 11.3 ATTACHED HERETO.

11.10 WAIVER OF TRIAL BY JURY. THE BORROWER AND ITS SUBSIDIARIES AND EACH MEMBER OF THE LENDER GROUP, TO THE EXTENT THEY MAY LEGALLY DO SO, HEREBY EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, CAUSE OF ACTION, OR PROCEEDING ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS, OR IN ANY WAY CONNECTED WITH, OR RELATED TO, OR INCIDENTAL TO, THE DEALINGS OF THE PARTIES HERETO WITH RESPECT TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND IRRESPECTIVE OF WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE. TO THE EXTENT THEY MAY LEGALLY DO SO, THE BORROWER AND ITS SUBSIDIARIES AND EACH MEMBER OF THE LENDER GROUP HEREBY AGREE THAT ANY SUCH CLAIM, DEMAND, ACTION, CAUSE OF ACTION, OR PROCEEDING SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 11.10 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE OTHER PARTY OR PARTIES HERETO TO WAIVER OF ITS OR THEIR RIGHT TO TRIAL BY JURY.

11.11 Independence of Covenants. All covenants under this Agreement and other Loan Documents shall be given independent effect so that if a particular action or condition is not permitted by any one covenant, the fact that it would be permitted by another covenant shall not avoid the occurrence of an Event of Default or Default if such action is taken or condition exists.

11.12 Confidentiality. Each of the Agents and the Lenders agree to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its Agent-Related Persons (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential); (b) to the extent required or requested by any regulatory authority purporting to have jurisdiction over such Person or its Agent-Related Persons (including any self-regulatory authority, such as the National Association of Insurance Commissioners); (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process (in which case such Person shall notify the Borrower (except in the case of a non-targeted, routine audit or review) as soon as practicable in the event of such disclosure by such Person unless such notification is prohibited by law, rule or regulation; provided that, such Person shall not have any liability for failure to provide such notice); (d) to any other party hereto; (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder; (f) subject to an agreement containing provisions substantially the same as those of this Section 11.12, to (i) any Eligible Assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights and obligations under this Agreement, or (ii) any actual or prospective party (or its Agent-Related Persons) to any swap, derivative or other transaction under which payments are to be made by reference to the Borrower and its obligations, this Agreement or payments hereunder; (g) on a confidential basis to (i) any rating agency in connection with rating the Borrower or its Subsidiaries or the Facilities or (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the Facilities; (h) with the consent of the Borrower; or (i) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section 11.12 or (y) becomes available to the Agents, any Lender or any of their respective Affiliates on a non confidential basis from a source other than the Borrower. In addition, the Agents and the Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry and service providers to the Agents and the Lenders in connection with the administration of this Agreement, the other Loan Documents, and the Commitments.

For purposes of this Section, “Information” means all information received from the Borrower or any of its Subsidiaries relating to the Borrower or any of its Subsidiaries or any of their respective businesses, other than any such information that is available to the Agents or any Lender prior to disclosure by the Borrower or any of its Subsidiaries. Any of the Lenders on the A&R Effective Date shall be considered to have complied with its obligation to maintain the confidentiality of Information as provided in this Section if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.

11.13 Complete Agreement. This Agreement, together with the schedules and exhibits hereto and the other Loan Documents is intended by the parties hereto as a final expression of their agreement and is intended as a complete statement of the terms and conditions of their agreement with respect to the subject matter of this Agreement and

shall not be contradicted or qualified by any other agreement, oral or written, before the date hereof. The foregoing to the contrary notwithstanding, all Bank Product Agreements, if any, are independent agreements governed by the written provisions of such Bank Product Agreements, which will remain in full force and effect, unaffected by any repayment, prepayments, acceleration, reduction, increase, or change in the terms of any credit extended hereunder, except as otherwise expressly provided in such Bank Product Agreement.

11.14 USA Patriot Act Notice. Each Lender hereby notifies the Borrower that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56) signed into law October 26, 2001 (the “USA Patriot Act”), it may be required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow such Lender to identify the Borrower in accordance with the USA Patriot Act.

ARTICLE XII
THE GUARANTY

12.1 The Guarantee.

(a) The Guarantors hereby, jointly and severally, guarantee to each Secured Party as hereinafter provided, as primary obligor and not merely as surety, the payment of the Secured Obligations in full in cash when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) strictly in accordance with the terms thereof. Each Guarantor hereby further jointly and severally agrees that if any of the Secured Obligations are not paid in full in cash when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise), each Guarantor will promptly pay the same, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Secured Obligations, the same will be promptly paid in full in cash when due (whether at extended maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) in accordance with the terms of such extension or renewal.

(b) Each Guarantor, and by its acceptance of this Guaranty, the Agents and each other Secured Party, hereby confirms that it is the intention of all such Persons that this Guaranty and the Obligations of each Guarantor hereunder not constitute a fraudulent transfer or conveyance for purposes of any debtor relief law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign, federal or state law to the extent applicable to this Guaranty and the Obligations of each Guarantor hereunder. To effectuate the foregoing intention, the Agents, the other Secured Parties and the Guarantors hereby irrevocably agree that the Obligations of each Guarantor under this Guaranty at any time shall be limited to the maximum amount as will result in the Obligations of such Guarantor under this Guaranty not constituting a fraudulent transfer or conveyance under applicable law after giving full effect to such Guarantor’s contribution rights but before taking into account any liabilities of such Guarantor under any other guarantee of such Guarantor other than any other guarantee of any obligations that are secured on a pari passu basis with the Obligations.

12.2 Obligations Unconditional.

(a) The obligations of the Guarantors under Section 12.1 are absolute and unconditional, irrespective of the value, genuineness, validity, regularity or enforceability of any of the Loan Documents or other documents relating to the Secured Obligations, or any substitution, release, impairment or exchange of any other guarantee of or security for any of the Secured Obligations, and, to the fullest extent permitted by applicable law, irrespective of any other circumstance whatsoever which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor (other than payment in full in cash of the Secured Obligations, other than Obligations (or any portion thereof) that are contingent in nature and for which no claim has been made (“Unliquidated Obligations”)), it being the intent of this Section 12.2 that the obligations of the Guarantors hereunder shall be absolute and unconditional under any and all circumstances. Each Guarantor agrees that it shall have no right of subrogation, indemnity, reimbursement

or contribution against any other Guarantor for amounts paid under this Article XII until such time as the Secured Obligations (other than Unliquidated Obligations) have been indefeasibly paid in full in cash and the Commitments have expired or terminated.

Without limiting the generality of the foregoing, it is agreed that, to the fullest extent permitted by law, the occurrence of any one or more of the following shall not alter or impair the liability of any Guarantor hereunder, which shall remain absolute and unconditional as described above:

(b) at any time or from time to time, without notice to any Guarantor, the time for any performance of or compliance with any of the Secured Obligations shall be extended, or such performance or compliance shall be waived;

(c) the maturity of any of the Secured Obligations shall be accelerated, or any of the Secured Obligations shall be modified, supplemented or amended in any respect, or any right under any of the Loan Documents or other documents relating to the Secured Obligations shall be waived or any other guarantee of any of the Secured Obligations or any security therefor shall be released, impaired or exchanged in whole or in part or otherwise dealt with;

(d) any Lien granted to, or in favor of, the Collateral Agent or any other holder of the Secured Obligations as security for any of the Secured Obligations shall fail to attach or be perfected; or

(e) any of the Secured Obligations shall be determined to be void or voidable (including, without limitation, for the benefit of any creditor of any Guarantor) or shall be subordinated to the claims of any Person (including, without limitation, any creditor of Guarantor).

(f) any failure or omission to assert or enforce or agreement or election not to assert or enforce, delay in enforcement, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under any Loan Document, any Swap Agreement or any Bank Product Agreement, at law, in equity or otherwise) with respect to the Secured Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Secured Obligations;

(g) any exercise of remedies with respect to any security for the Secured Obligations (including, without limitation, any collateral, including the Collateral, securing or purporting to secure any of the Secured Obligations) at such time and in such order and in such manner as the Agents and the Secured Parties may decide and whether or not every aspect thereof is commercially reasonable and whether or not such action constitutes an election of remedies and even if such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy that any Guarantor would otherwise have, and without limiting the generality of the foregoing or any other provisions hereof, each Guarantor hereby expressly waives any and all benefits which might otherwise be available to such Guarantor under applicable law, including without limitation, California Civil Code Sections 2809, 2810, 2819, 2939, 2845, 2848, 2849, 2850, 2855, 2899 and 3433;

(h) any other circumstance whatsoever which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Secured Obligations or which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower or any other Guarantor for the Secured Obligations, or of such Guarantor under the guarantee contained in this Article XII or of any security interest granted by any Guarantor, whether in an Insolvency Proceeding or in any other instance; or

(i) with respect to its obligations hereunder, each Guarantor hereby expressly waives diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that the Agents or any other holder of the Secured Obligations exhaust any right, power or remedy or proceed against any Person under any of the Loan Documents or other documents relating to the Secured Obligations, or against any other Person under any other guarantee of, or security for, any of the Secured Obligations.

12.3 Reinstatement. The obligations of each Guarantor under this Article XII shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of any Person in respect of the Secured Obligations is rescinded or must be otherwise restored by any holder of any of the Secured Obligations, whether as a result of any proceedings under any debtor relief law, and each Guarantor agrees that it will jointly and severally indemnify the Agents and each holder of the Secured Obligations on demand for all reasonable costs and expenses (including, without limitation, the fees, charges and disbursements of one counsel for the Agents, taken as a whole, and one counsel for the holders of any Secured Obligations, taken as a whole) incurred by the Agents or such holders of the Secured Obligations in connection with such rescission or restoration, including any such costs and expenses incurred in defending against any claim alleging that such payment constituted a preference, fraudulent transfer or similar payment under any proceedings under any debtor relief law.

12.4 Certain Additional Waivers. Each Guarantor further agrees that it shall have no right of recourse to security for the Secured Obligations, except through the exercise of rights of subrogation pursuant to Section 12.2 and through the exercise of rights of contribution pursuant to Section 12.6.

12.5 Remedies. Each Guarantor agrees that, to the fullest extent permitted by law, as between the Guarantors, on the one hand, and the Agents and the other holders of the Secured Obligations, on the other hand, the Secured Obligations may be declared to be forthwith due and payable as provided in Article VII (and shall be deemed to have become automatically due and payable in the circumstances provided in said Article VII) for purposes of Section 12.1 notwithstanding any stay, injunction or other prohibition preventing such declaration (or preventing the Secured Obligations from becoming automatically due and payable) as against any other Person and that, in the event of such declaration (or the Secured Obligations being deemed to have become automatically due and payable), the Secured Obligations (whether or not due and payable by any other Person) shall forthwith become due and payable by each Guarantor for purposes of Section 12.1. Each Guarantor acknowledges and agrees that its respective obligations hereunder are secured in accordance with the terms of the Loan Documents and that the holders of the Secured Obligations may exercise their remedies thereunder in accordance with the terms thereof.

12.6 Rights of Contribution. Each Guarantor agrees that, in connection with payments made hereunder, each Guarantor shall have contribution rights against the other Guarantors as permitted under applicable law. Such contribution rights shall be subordinate and subject in right of payment to the obligations of such Guarantors under the Loan Documents and no Guarantor shall exercise such rights of contribution until all Secured Obligations (other than Unliquidated Obligations) have been indefeasibly paid in full in cash and the Commitments have terminated.

12.7 Guaranty of Payment; Continuing Guarantee. The guarantee given by each Guarantor in this Article XII is a guaranty of payment and not of collection, is a continuing guarantee, and shall apply to all Secured Obligations whenever arising.

12.8 Amendment and Restatement (j)This Agreement amends and restates in its entirety the Existing Credit Agreement. The parties hereto acknowledge and agree that (i) this Agreement and the other documents entered into in connection herewith do not constitute a novation, payment and reborrowing, or termination of the outstanding “Loans” or “Obligations” (each as defined in the Existing Credit Agreement) under the Existing Credit Agreement, as in effect prior to the A&R Effective Date and (ii) such outstanding “Loans” and “Obligations” are in all respects continuing (as amended and restated hereby) as indebtedness and obligations outstanding under this Agreement.

12.9 Grantor Trust Trustee. It is expressly understood and agreed by the parties hereto that, (a) this Agreement is executed and delivered by Wilmington Trust, National Association, not individually or personally but solely as Trustee under the Trust Agreement (in such capacity, the “Grantor Trust Trustee”), in the exercise of the powers and authority conferred upon and vested in it under the Trust Agreement, (b) each of the representations, undertakings and agreements herein made on the part of the Grantor Trust Trustee as a Lender is made and intended not as the personal representation, undertaking or agreement of Wilmington Trust, National Association but is made and intended for the purpose of binding only the trust estate created pursuant to the Trust Agreement, (c) nothing herein contained shall be construed as creating any liability on the part of Wilmington Trust, National Association individually or personally, to perform any covenant or obligation of the Grantor Trust Trustee as a Lender, either expressed or implied, contained herein, all such liability, if any, being expressly waived by the parties hereto and by any Person claiming by, through or under the parties hereto, (d) Wilmington Trust, National Association has not made any investigation as to the accuracy of any representations, warranties or other obligations of the Grantor

Trust Trustee as a Lender under this Agreement or any other related documents and (e) under no circumstances shall Wilmington Trust, National Association be personally liable for the payment of any indebtedness or expenses of the Grantor Trust Trustee as a Lender or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Grantor Trust Trustee as a Lender under this Agreement or any other related documents. Notwithstanding the foregoing, if the Grantor Trust Trustee is no longer a Lender under this Agreement, this Section 12.9 shall have no applicability to any Lender succeeding to the Grantor Trust Trustee’s interests as Lender under this Agreement.

[Signature pages to follow.]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered as of the date first set forth above.


									ARES COMMERCIAL REAL ESTATE CORPORATION, a Maryland corporation, as Borrower

						By:			/s/ Elaine McKay
						Name:			Elaine McKay
						Title:			Vice President


									ACRC HOLDINGS LLC, a Delaware limited liability company, as Guarantor

						By:			/s/ Elaine McKay
						Name:			Elaine McKay
						Title:			Vice President


									ACRC WAREHOUSE HOLDINGS LLC, a Delaware limited liability company, as Guarantor

						By:			/s/ Elaine McKay
						Name:			Elaine McKay
						Title:			Vice President


									ACRC MEZZ HOLDINGS LLC, a Delaware limited liability company, as Guarantor

						By:			/s/ Elaine McKay
						Name:			Elaine McKay
						Title:			Vice President


									WILMINGTON TRUST, NATIONAL ASSOCIATION, not in its individual capacity but solely as Trustee under the Trust Agreement

						By:			/s/ Beverly D. Capers
						Name:			Beverly D. Capers
						Title:			Assistant Vice President


									CORTLAND CAPITAL MARKET SERVICES LLC, as Administrative Agent and Collateral Agent

						By:			/s/ Winnalynn N. Kantaris
						Name:			Winnalynn N. Kantaris
						Title:			Associate General Counsel

ANNEXES, EXHIBITS AND SCHEDULES

Annex A-1 Lender Commitments

Annex A-2 Delayed Draw Lender Commitments

Exhibit A-1 Form of Assignment and Acceptance

Exhibit A-2 Form of Secured Promissory Note for Loans

Exhibit B-2 Form of Borrowing Base Certificate

Exhibit P-1 Form of Compliance Certificate

Exhibit R-1 Persons Authorized to Request a Loan

Exhibit R-2 Form of Request for Borrowing

Exhibit R-3 [Reserved]

Exhibit 11.3 Addresses and Information for Notices

Schedule A-1 Agent’s Account

Schedule A-2 Demand Deposit Accounts

Schedule C-1 A&R Effective Date Borrowing Base Eligible Assets

Schedule C-2 Borrowing Base Debt Subsidiaries

Schedule 4.2 Securities and Subsidiaries

Schedule 4.3 Consents

Schedule 4.16 Locations of UCC Filings

Schedule 5.13 Post-Closing Items

Schedule 6.1 Debt Outstanding on A&R Effective Date

Schedule 6.2 Liens Securing Debt Outstanding on A&R Effective Date

Schedule 6.10 Negative Pledges

Exhibit 10.2

REAFFIRMATION AGREEMENT

THIS REAFFIRMATION AGREEMENT (this “Agreement”), dated as of November 12, 2021, is made by Ares Commercial Real Estate Corporation, as Borrower (the “Borrower”), ACRC Holdings LLC (“ACRC Holdings”), ACRC Mezz Holdings LLC (“ACRC Mezz”), and ACRC Warehouse Holdings LLC (“ACRC Warehouse” and, together with ACRC Holdings and ACRC Mezz, the “Guarantors” and, each a “Guarantor”), ACRC Lender LLC (“ACRC Lender”) and Cortland Capital Market Services LLC (“Cortland”), as Collateral Agent (as defined below). Capitalized terms used herein without definition shall have the same meanings herein as set forth in the A&R Credit Agreement (defined below).

INTRODUCTORY STATEMENTS

WHEREAS, the Borrower, the Guarantors, ACRC Lender, the other Grantors from time to time party thereto and the Collateral Agent (as successor in interest to DBD Credit Funding LLC) are parties to that certain Pledge and Security Agreement, dated December 9, 2015 (as amended, restated, supplemented or otherwise modified, the “Security Agreement”);

WHEREAS, the Borrower, ACRC Lender and the Collateral Agent (as successor in interest to DBD Credit Funding LLC) are parties to that certain Negative Pledge Agreement, dated December 9, 2015 (as amended, restated, supplemented or otherwise modified the “Negative Pledge Agreement”);

WHEREAS, the Borrower, Bank of America, N.A. and the Collateral Agent (as successor in interest to DBD Credit Funding LLC) are parties to that certain Deposit Account Control Agreement, dated December 9, 2015 (as amended, restated, supplemented or otherwise modified the “Borrower DACA”) with respect to the Borrower’s deposit account number 8188693212;

WHEREAS, ACRC Mezz, Bank of America, N.A. and the Collateral Agent (as successor in interest to DBD Credit Funding LLC) are parties to that certain Deposit Account Control Agreement, dated December 9, 2015 (as amended, restated, supplemented or otherwise modified, the “Mezz DACA”) with respect to ACRC Mezz’s deposit account number 8188693378;

WHEREAS, the Borrower, the Guarantors, the lenders parties thereto from time to time as lenders (the “Lenders”), Cortland, as the collateral agent for the Lenders (in such capacity, together with its successors and permitted assigns in such capacity, the “Collateral Agent”) and as administrative agent for the Lenders (the “Administrative Agent”), are entering into that certain Amended and Restated Credit and Guaranty Agreement (as amended, restated, supplemented or otherwise modified, the “A&R Credit Agreement”), on the date hereof (the “A&R Effective Date”), which A&R Credit Agreement amends and restates in its entirety the Credit and Guaranty Agreement, dated December 9, 2015 (as amended prior to the date hereof, the “Existing Credit Agreement”), by and among, inter alia, the Borrower, the Guarantors, the Lenders, the Collateral Agent and the Administrative Agent;

WHEREAS, as a condition precedent to, and concurrently with, the execution and delivery of the A&R Credit Agreement, the signatories hereto execute and deliver this Reaffirmation Agreement.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

Section 1. Reaffirmation.

(a) The Borrower hereby (i) agrees that, notwithstanding the occurrence of the A&R Effective Date, each of the guarantees, the Security Agreement, the Negative Pledge Agreement and the Borrower DACA continue to be in full force and effect and are not impaired or adversely affected in any manner whatsoever, (ii) confirms its guarantee of the Obligations and its grant of a security interest in its assets as Collateral therefor, all as provided in the Loan Documents as originally executed and (iii) acknowledges that such guarantee and grant continues in full force and effect in respect of, and to secure, the Obligations under the A&R Credit Agreement and the other Loan Documents. In furtherance of the foregoing, the Borrower does hereby grant to the Collateral Agent a security interest in all collateral described in the A&R Credit Agreement and any other Loan Document as security for the Obligations, as amended, restated, increased and/or extended pursuant to the A&R Credit Agreement.

(b) The Guarantors hereby (i) agree that, notwithstanding the occurrence of the A&R Effective Date, each of the guarantees, the Security Agreement, the Negative Pledge Agreement and, solely with respect to ACRC Mezz, the Mezz DACA continue to be in full force and effect and are not impaired or adversely affected in any manner whatsoever, (ii) confirm their guarantee of the Obligations and its grant of a security interest in its assets as Collateral therefor, all as provided in the Loan Documents as originally executed and (iii) acknowledge that such guarantee and grant continues in full force and effect in respect of, and to secure, the Obligations under the A&R Credit Agreement and the other Loan Documents. In furtherance of the foregoing, each Guarantor does hereby grant to the Collateral Agent a security interest in all collateral described in the A&R Credit Agreement and any other Loan Document as security for the Obligations, as amended, restated, increased and/or extended pursuant to the A&R Credit Agreement.

(c) ACRC Lender hereby (i) agrees that, notwithstanding the occurrence of the A&R Effective Date, each of the Security Agreement and the Negative Pledge Agreement continue to be in full force and effect and are not impaired or adversely affected in any manner whatsoever, (ii) confirms its grant of a security interest in its assets as Collateral therefor, all as provided in the Loan Documents as originally executed and (iii) acknowledges that such grant continues in full force and effect in respect of, and to secure, the Obligations under the A&R Credit Agreement and the other Loan Documents. In furtherance of the foregoing, ACRC Lender does hereby grant to the Collateral Agent a security interest in all collateral described in the A&R Credit Agreement and any other Loan Document as security for the Obligations, as amended, restated, increased and/or extended pursuant to the A&R Credit Agreement.

Section 2. Amendment. The schedules to the Security Agreement shall hereby be amended and restated as set forth in Annex I hereto.

Section 3. Counterparts. This Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Agreement. Signature pages to this Agreement delivered by electronic transmission (including by email in .pdf format) shall be as effective as delivery of a manually executed counterpart thereof. The words “execution,” “execute,” “signed,” “signature” and words of like import herein shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act or any other similar state Laws based on the

Uniform Electronic Transactions Act. The foregoing shall apply to each other Loan Document mutatis mutandis.

Section 4. Successors and Assigns. This Agreement shall be binding upon the successors and assigns of each Grantor and shall inure to the benefit of the Collateral Agent and each other Secured Party and their respective successors and assigns in accordance with the provisions of the A&R Credit Agreement.

Section 5. Section Headings. The Section headings used in this Agreement are for convenience of reference only and shall neither constitute a part of this Agreement for any other purpose nor affect the construction of this Agreement.

Section 6. GOVERNING LAW. EXCEPT AS SPECIFICALLY SET FORTH IN ANY OTHER LOAN DOCUMENT: (A) THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE IN THE STATE OF NEW YORK; AND (B) THE VALIDITY OF THIS AGREEMENT, AND THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF AND THEREOF, AND THE RIGHTS OF THE PARTIES THERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.

Section 7. JURISDICTION AND VENUE. TO THE EXTENT THEY MAY LEGALLY DO SO, THE PARTIES HERETO AGREE THAT ALL ACTIONS, SUITS, OR PROCEEDINGS ARISING BETWEEN ANY MEMBER OF THE LENDER GROUP OR THE BORROWER AND ITS SUBSIDIARIES IN CONNECTION WITH THIS AGREEMENT SHALL BE TRIED AND LITIGATED ONLY IN THE STATE OR FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK; PROVIDED HOWEVER THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT AT ANY AGENT’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE ANY AGENT ELECTS TO BRING SUCH ACTION TO THE EXTENT SUCH COURTS HAVE IN PERSONAM JURISDICTION OVER THE RELEVANT OBLIGOR OR IN REM JURISDICTION OVER SUCH COLLATERAL OR OTHER PROPERTY. THE BORROWER AND ITS SUBSIDIARIES AND EACH MEMBER OF THE LENDER GROUP, TO THE EXTENT THEY MAY LEGALLY DO SO, HEREBY WAIVE ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION AND STIPULATE THAT THE STATE AND FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK SHALL HAVE IN PERSONAM JURISDICTION AND VENUE OVER SUCH PERSON FOR THE PURPOSE OF LITIGATING ANY SUCH DISPUTE, CONTROVERSY, OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT. TO THE EXTENT PERMITTED BY LAW, SERVICE OF PROCESS SUFFICIENT FOR PERSONAL JURISDICTION IN ANY ACTION AGAINST BORROWER OR ANY MEMBER OF THE LENDER GROUP MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO ITS ADDRESS INDICATED ON EXHIBIT 11.3 OF THE INDENTURE.

Section 8. WAIVER OF TRIAL BY JURY. THE BORROWER AND ITS SUBSIDIARIES AND EACH MEMBER OF THE LENDER GROUP, TO THE EXTENT THEY MAY LEGALLY DO SO, HEREBY EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, CAUSE OF ACTION, OR PROCEEDING ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT, OR IN ANY WAY CONNECTED WITH, OR RELATED TO, OR INCIDENTAL TO, THE DEALINGS OF THE PARTIES HERETO WITH RESPECT TO THIS AGREEMENT, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND IRRESPECTIVE OF WHETHER

SOUNDING IN CONTRACT, TORT, OR OTHERWISE. TO THE EXTENT THEY MAY LEGALLY DO SO, THE BORROWER AND ITS SUBSIDIARIES AND EACH MEMBER OF THE LENDER GROUP HEREBY AGREE THAT ANY SUCH CLAIM, DEMAND, ACTION, CAUSE OF ACTION, OR PROCEEDING SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE OTHER PARTY OR PARTIES HERETO TO WAIVER OF ITS OR THEIR RIGHT TO TRIAL BY JURY.

Section 9. Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

[Remainder of Page Intentionally Left Blank]

Each of the undersigned has caused this Reaffirmation Agreement to be duly executed and delivered as of the date first written above.


									ARES COMMERCIAL REAL ESTATE CORPORATION, a Maryland corporation, as Borrower

						By:			/s/ Elaine McKay
						Name:			Elaine McKay
						Title:			Vice President


									ACRC HOLDINGS LLC, a Delaware limited liability company, as Guarantor

						By:			/s/ Elaine McKay
						Name:			Elaine McKay
						Title:			Vice President


									ACRC WAREHOUSE HOLDINGS LLC, a Delaware limited liability company, as Guarantor

						By:			/s/ Elaine McKay
						Name:			Elaine McKay
						Title:			Vice President


									ACRC LENDER LLC, a Delaware limited liability company

						By:			/s/ Elaine McKay
						Name:			Elaine McKay
						Title:			Vice President


									CORTLAND CAPITAL MARKET SERVICES LLC, as Administrative Agent and Collateral Agent

						By:			/s/ Winnalynn N. Kantaris
						Name:			Winnalynn N. Kantaris
						Title:			Associate General Counsel

Exhibit 10.3

AMENDMENT NUMBER EIGHT TO CREDIT AGREEMENT,
AMENDMENT TO SECURITY AGREEMENT,
AND AMENDMENT TO GENERAL CONTINUING GUARANTY

THIS AMENDMENT NUMBER EIGHT TO CREDIT AGREEMENT, AMENDMENT TO SECURITY AGREEMENT, AND AMENDMENT TO GENERAL CONTINUING GUARANTY (this “Amendment”), dated as of November 8, 2021, is entered into by and among, on the one hand, the several banks and other financial institutions and lenders from time to time party hereto (such lenders, together with their respective successors and permitted assigns, are referred to hereinafter each individually as a “Lender” and, collectively, as the “Lenders”), and CITY NATIONAL BANK, a national banking association, as administrative agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, “Agent”), and, on the other hand, ACRC LENDER LLC, a Delaware limited liability company (the “Borrower”) and ARES COMMERCIAL REAL ESTATE CORPORATION, a Maryland corporation (the “Guarantor”), and in light of the following:

W I T N E S S E T H

WHEREAS, Borrower, Lenders, and Agent are parties to that certain Credit Agreement, dated as of March 12, 2014 (as amended, restated, supplemented, or otherwise modified from time to time, the “Credit Agreement”);

WHEREAS, Borrower has requested that Agent and Lenders make certain amendments to the Credit Agreement and Security Agreement;

WHEREAS, Guarantor provided that certain General Continuing Guaranty, dated as of March 12, 2014 (as amended, restated, supplemented, or otherwise modified from time to time, the “Guaranty”) for the benefit of Agent;

WHEREAS, Guarantor has requested that Agent and Lenders make certain amendments to the Guaranty; and

WHEREAS, upon the terms and conditions set forth herein, Agent and Lenders are willing to make certain amendments to the Credit Agreement and Security Agreement and the Guaranty.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

1. Defined Terms. All initially capitalized terms used herein and not otherwise defined herein (including the preamble and recitals hereof) shall have the meanings ascribed thereto in the Credit Agreement.

2. Amendments to the Credit Agreement.

(a) The Credit Agreement is hereby amended as set forth in Exhibit A attached hereto, with stricken text (indicated textually in the same manner as the following examples: stricken text or stricken text) to indicate deletions of text and double-underlined text (indicated textually in the same manner as the following examples: double-underlined text or double-underlined text) to indicate insertions of text.

(b) The Credit Agreement is hereby amended by amending and restating Exhibit R-2 thereto in the form attached hereto as Exhibit B.

(c) The Credit Agreement is hereby amended by amending and restating Exhibit R-3 thereto in the form attached hereto as Exhibit C.

(d) The Credit Agreement is hereby amended by amending and restating Schedule C-1 thereto in the form attached hereto as Exhibit D.

3. Amendment to Security Agreement.

(a) The Security Agreement is hereby amended by amending the definition of Collateral appearing in Section 1.1 thereof by replacing “all other Investments identified as Pledged Investments on any Pledged Investments Certificate” with the following text: “all other Investments identified as Pledged Investments, regardless of whether or not such Investments constitute Pledged Investments, on any Pledged Investments Certificate”.

4. Amendments to Guaranty.

(a) The Guaranty is hereby amended by deleting Section 8(b)(i) and Section 8(b)(ii) entirely and replacing them with the following:

“(i) Have a ratio of Debt to Tangible Net Worth on a consolidated basis, measured at the end of each Test Period, of not greater than 4.50 to 1.00.

(ii) [Intentionally Omitted].”

(b) The Guaranty is hereby amended by amending and restating Exhibit A thereto in the form attached hereto as Exhibit E.

5. Conditions Precedent to Amendment. The satisfaction of each of the following shall constitute conditions precedent to the effectiveness of the Amendment (such date being the “Eighth Amendment Effective Date”):

(a) Agent shall have received this Amendment, duly executed by the parties hereto, and the same shall be in full force and effect.

(b) Agent shall have received the reaffirmation and consent of Guarantor attached hereto as Exhibit F, duly executed and delivered by an authorized officer of Guarantor.

(c) Agent shall have received the Fourth Amended and Restated Fee Letter, dated as of the date hereof (the “Fourth A&R Fee Letter”), duly executed by the parties hereto and shall be in form and substance reasonably satisfactory to Agent.

(d) Agent shall have received a Pledged Investments Certificate dated as of the date hereof, duly executed by the Borrower, in form and substance reasonably satisfactory to Agent, identifying certain new Investments as Pledged Investments.

(e) After giving effect to this Amendment, the representations and warranties herein and in the Credit Agreement and the other Loan Documents shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that are already qualified or modified by materiality in the text thereof) on and as of the date hereof as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date).

(f) No litigation, inquiry, other action or proceeding (governmental or otherwise), or injunction or other restraining order prohibiting, directly or indirectly, the consummation of the

transactions contemplated herein shall be pending or, to Borrower’s knowledge, overtly threatened that could reasonably be expected to have: (i) a material adverse effect on Borrower’s ability to repay the Loans or (ii) a Material Adverse Effect on Borrower.

(g) After giving effect to this Amendment, no Event of Default or Unmatured Event of Default shall have occurred and be continuing or shall result from the consummation of the transactions contemplated herein.

(h) Agent shall have received, in immediately available funds, the Eighth Amendment Fee as defined in the Fourth A&R Fee Letter.

(i) All other documents and legal matters in connection with the transactions contemplated by this Amendment shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent.

6. Representations and Warranties. Borrower hereby represents and warrants to Agent and the Lenders as follows:

(a) Each condition set forth in clauses (b)(i) through (vi) of the definition of “Pledged Investments” are satisfied as of the date hereof; and for the avoidance of doubt, (x) Agent holds a first priority perfected Lien on 100% of the Stock issued by FL3 Holder and (y) FL3 Holder holds 100% of the securities issued by FL3 LLC and FL3 Ltd.

(b) as of the date hereof Agent holds a first priority perfected Lien on Borrower’s Investment in the Hyatt Deerfield, evidenced by certain notes in the original principal amount of $32,900,000.00 made pursuant to that certain Loan and Security Agreement by and between 1750 Deerfield Owner, LLC and ACRC Lender LLC, dated as of April 17, 2018 (as amended from time to time) and that certain Mortgage with respect to the property located at 1750 Lake Cook Road, Deerfield Illinois 60015, securing the payments thereon.

(c) It a duly organized and validly existing limited liability company in good standing under the law of the State of Delaware and is duly qualified to conduct business in all jurisdictions where its failure to do so could reasonably be expected to have a Material Adverse Effect on Borrower.

(d) It has all requisite limited liability company power to execute and deliver this Amendment and the other Loan Documents to which it is a party, and to borrow the sums provided for in the Credit Agreement. Borrower has all governmental licenses, authorizations, consents, and approvals necessary to own and operate its Assets and to carry on its businesses as now conducted and as proposed to be conducted, other than licenses, authorizations, consents, and approvals that are not currently required or the failure to obtain which could not reasonably be expected to have a Material Adverse Effect on the Loan Parties, taken as a whole. The execution, delivery, and performance of this Amendment and the other Loan Documents to which it is a party have been duly authorized by Borrower and all necessary limited liability company action in respect thereof has been taken, and the execution, delivery, and performance thereof do not require any consent or approval of any other Person that has not been obtained (except for such consents or approvals as could not reasonably be expected to have a Material Adverse Effect on the Loan Parties, taken as a whole).

(e) The execution, delivery, and performance by Borrower of this Amendment and the other Loan Documents to which it is a party, do not and will not: (i) violate (A) any provision of any federal (including the Exchange Act), state, or local law, rule, or regulation (including Regulations T, U, and X of the Federal Reserve Board) binding on any Loan Party, (B) any order of any domestic Governmental Authority, court, arbitration board, or tribunal binding on any Loan Party, or (C) the

Governing Documents of any Loan Party, or (ii) contravene any provisions of, result in a breach of, constitute (with the giving of notice or the lapse of time) a default under, or result in the creation of any Lien (other than a Permitted Lien) upon any of the Assets of any Loan Party pursuant to, any Contractual Obligation of any Loan Party, or (iii) require termination of any Contractual Obligation of any Loan Party, or (iv) constitute a tortious interference with any Contractual Obligation of any Loan Party, in each case, except as could not reasonably be expected to have a Material Adverse Effect on the Loan Parties, taken as a whole.

(f) Other than such as may have previously been obtained, filed, or given, as applicable, no consent, license, permit, approval, or authorization of, exemption by, notice to, report to or registration, filing, or declaration with, any Governmental Authority is required in connection with the execution, delivery, and performance by the Loan Parties of this Amendment or the Loan Documents to which they are a party, in each case, except as could not reasonably be expected to have a Material Adverse Effect on the Loan Parties, taken as a whole.

(g) This Amendment and the other Loan Documents to which Borrower is a party, when executed and delivered by Borrower, will constitute the legal, valid, and binding obligations of Borrower, enforceable against Borrower in accordance with their terms except as the enforceability hereof or thereof may be affected by: (i) bankruptcy, insolvency, reorganization, moratorium, or other similar laws affecting the enforcement of creditors’ rights generally, and (ii) equitable principles of general applicability (whether considered in a proceeding in equity or law).

(h) No litigation, inquiry, other action or proceeding (governmental or otherwise), or injunction or other restraining order prohibiting, directly or indirectly, the consummation of the transactions contemplated herein shall be pending or, to Borrower’s knowledge, overtly threatened that could reasonably be expected to have: (i) a material adverse effect on Borrower’s ability to repay the Loans or (ii) a Material Adverse Effect on Borrower.

(i) No Event of Default or Unmatured Event of Default has occurred and is continuing as of the date of the effectiveness of this Amendment.

(j) No event or development has occurred as of the date of the effectiveness of this Amendment which could reasonably be expected to result in a Material Adverse Effect with respect to any Loan Party.

(k) The representations and warranties set forth in this Amendment, in the Credit Agreement, as amended by this Amendment and after giving effect to this Amendment, and the other Loan Documents to which Borrower is a party are true, correct and complete in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) on and as of the date hereof, as though made on such date (except to the extent that such representations and warranties relate solely to an earlier date).

(l) This Amendment has been entered into without force or duress, of the free will of Borrower, and the decision of Borrower to enter into this Amendment is a fully informed decision and Borrower is aware of all legal and other ramifications of each such decision.

(m) It has read and understands this Amendment, has consulted with and been represented by independent legal counsel of its own choosing in negotiations for and the preparation of this Amendment, has read this Amendment in full and final form, and has been advised by its counsel of its rights and obligations hereunder.

7. GOVERNING LAW; JURISDICTION AND VENUE; WAIVER OF TRIAL BY JURY. THIS AMENDMENT SHALL BE SUBJECT TO THE PROVISIONS REGARDING GOVERNING LAW, JURISDICTION AND VENUE, AND WAIVER OF TRIAL BY JURY SET FORTH IN SECTIONS 11.6 – 11.8 OF THE CREDIT AGREEMENT, AND SUCH PROVISIONS ARE INCORPORATED HEREIN BY THIS REFERENCE, MUTATIS MUTANDIS.

8. Counterpart Execution. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, taken together shall constitute but one and the same agreement. Delivery of an executed counterpart of this Amendment by telefacsimile or other electronic method of transmission shall be equally effective as delivery of an original executed counterpart of this Amendment. Any party delivering an executed counterpart of this Amendment by telefacsimile or other electronic method of transmission also shall deliver an original executed counterpart of this Amendment, but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Amendment.

9. [Intentionally omitted].

10. Effect on Loan Documents.

(a) The Credit Agreement and the Guaranty, as amended hereby, and each of the other Loan Documents shall be and remain in full force and effect in accordance with their respective terms and hereby are ratified and confirmed in all respects. The execution, delivery, and performance of this Amendment shall not operate, except as expressly set forth herein, as a modification or waiver of any right, power, or remedy of Agent or any Lender under the Credit Agreement or any other Loan Document. Except for the amendments to the Credit Agreement and the Guaranty expressly set forth herein, the Credit Agreement, the Guaranty and the other Loan Documents shall remain unchanged and in full force and effect. The modifications set forth herein are limited to the specifics hereof (including facts or occurrences on which the same are based), shall not apply with respect to any facts or occurrences other than those on which the same are based, shall neither excuse any future non-compliance with the Loan Documents nor operate as a waiver of any Event of Default or Unmatured Event of Default, shall not operate as a consent to any waiver, consent or further amendment or other matter under the Loan Documents, and shall not be construed as an indication that any future waiver or amendment of covenants or any other provision of the Credit Agreement or the Guaranty will be agreed to, it being understood that the granting or denying of any waiver or amendment which may hereafter be requested by Borrower remains in the sole and absolute discretion of Agent and the Lenders. To the extent that any terms or provisions of this Amendment conflict with those of the Credit Agreement or the other Loan Documents, the terms and provisions of this Amendment shall control.

(b) Upon and after the effectiveness of this Amendment, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “herein”, “hereof” or words of like import referring to the Credit Agreement, and each reference in the other Loan Documents to “the Credit Agreement”, the “Guaranty,” “thereunder”, “therein”, “thereof” or words of like import referring to the Credit Agreement or the Guaranty, shall mean and be a reference to the Credit Agreement and the Guaranty as modified and amended hereby.

(c) To the extent that any of the terms and conditions in any of the Loan Documents shall contradict or be in conflict with any of the terms or conditions of the Credit Agreement or the Guaranty, after giving effect to this Amendment, such terms and conditions are hereby deemed modified or amended accordingly to reflect the terms and conditions of the Credit Agreement and the Guaranty as modified or amended hereby.

(d) This Amendment is a Loan Document.

(e) The rules of construction set forth in Section 1.2 of the Credit Agreement are incorporated herein by this reference, mutatis mutandis.

11. Entire Agreement. This Amendment, and the terms and provisions hereof, the Credit Agreement and the other Loan Documents constitute the entire understanding and agreement between the parties hereto with respect to the subject matter hereof and supersede any and all prior or contemporaneous amendments or understandings with respect to the subject matter hereof, whether express or implied, oral or written.

12. Integration. This Amendment, together with the other Loan Documents, incorporates all negotiations of the parties hereto with respect to the subject matter hereof and is the final expression and agreement of the parties hereto with respect to the subject matter hereof.

13. Reaffirmation of Obligations. Borrower hereby reaffirms its obligations under each Loan Document to which it is a party. Borrower hereby further ratifies and reaffirms the validity and enforceability of all of the liens and security interests heretofore granted, pursuant to and in connection with the Security Agreement or any other Loan Document to Agent, on behalf and for the benefit of each member of the Lender Group, as collateral security for the obligations under the Loan Documents in accordance with their respective terms, and acknowledges that all of such liens and security interests, and all collateral heretofore pledged as security for such obligations, continues to be and remain collateral for such obligations from and after the date hereof. Borrower hereby further does grant to Agent, a security interest in the Collateral (as defined in the Security Agreement) in order to secure all of its present and future Obligations.

14. Ratification. Borrower hereby restates, ratifies and reaffirms each and every term and condition set forth in the Credit Agreement and the Loan Documents to which it is a party effective as of the date hereof and as amended hereby.

15. Severability. In case any provision in this Amendment shall be invalid, illegal or unenforceable, such provision shall be severable from the remainder of this Amendment and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

[signature pages follow]

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered as of the date first above written.


									ACRC LENDER LLC, a Delaware limited liability company, as Borrower

						By:			/s/ Elaine McKay
						Name:			Elaine McKay
						Title:			Vice President


									ARES COMMERCIAL REAL ESTATE CORPORATION, a Maryland corporation, as Guarantor

						By:			/s/ Elaine McKay
						Name:			Elaine McKay
						Title:			Vice President


									CITY NATIONAL BANK, a national banking association, as Agent and as a Lender

						By:			/s/ Brandon Feitelson
						Name:			Brandon Feitelson
						Title:			Senior Vice President

Exhibit A

Conformed Credit Agreement

Conformed through Amendment Number SevenEight

Execution Version

═════════════════════════════════════════════════════════

CREDIT AGREEMENT

by and among ACRC LENDER LLC,

as Borrower,

THE LENDERS PARTIES HERETO FROM TIME TO TIME

as the Lenders, and

CITY NATIONAL BANK,

together with its successors and assigns as the Arranger and Administrative Agent

Dated as of March 12, 2014

═════════════════════════════════════════════════════════

TABLE OF CONTENTS

Article I DEFINITION AND CONSTRUCTION

1.1 Definitions

1.2 Construction

Article II AMOUNT AND TERMS OF LOANS

2.1 Credit Facilities

2.2 Rate Designation

2.3 Interest Rates; Payment of Principal and Interest

2.4 Default Rate

2.5 Computation of Interest and Fees Maximum Interest Rate; Letter of Credit

Fee

2.6 Request for Borrowing

2.7 Conversion or Continuation

2.8 Mandatory Repayment

2.9 Voluntary Prepayments; Termination and Reduction in Commitments

2.10 Letters of Credit

2.11 Fees

2.12 Maintenance of Loan Account; Statements of Obligations

2.13 Increased Costs

2.14 Suspension of LIBOR Rate/SOFR Loans

2.15 Funding Sources

2.16 Place of Loans

2.17 Survivability

2.18 [Intentionally Omitted.]

2.19 Mitigation of Obligations

Article III CONDITIONS TO LOANS

3.1 Conditions Precedent to the Initial Extension of Credit

3.2 Conditions Precedent to All Extensions of Credit

3.3 Maturity Date

Article IV REPRESENTATIONS AND WARRANTIES OF BORROWER

4.1 Due Organization

4.2 Interests in Borrower

4.3 Requisite Power and Authorization

4.4 Binding Agreements

4.5 Other Agreements

4.6 Litigation: Adverse Facts

4.7 Government Consents

4.8 Title to Assets; Liens

4.9 Payment of Taxes

4.10 Governmental Regulation

4.11 Disclosure

4.12 Debt

4.13 Existing Defaults

4.14 No Default; No Material Adverse Effect

4.15 Pledged Investments

Article V AFFIRMATIVE COVENANTS OF BORROWER

5.1 Accounting Records and Inspection

5.2 Other Information

5.3 Existence

5.4 Payment of Taxes and Claims

5.5 Compliance with Laws

5.6 Further Assurances

5.7 [Intentionally Omitted]

5.8 [Intentionally Omitted]

5.9 Foreign Qualification

5.10 Promissory Notes

Article VI NEGATIVE COVENANTS OF BORROWER

6.1 Debt

6.2 Liens

6.3 Investments

6.4 [Intentionally Omitted.]

6.5 Dividends

6.6 Restriction on Fundamental Changes

6.7 Sale of Assets

6.8 Transactions with Shareholders and Affiliates

6.9 Conduct of Business

6.10 Amendments or Waivers of Certain Documents; Actions Requiring the

Consent of Agent

6.11 Use of Proceeds

6.12 [Intentionally Omitted]

6.13 Margin Regulation

6.14 Asset Value

Article VII EVENTS OF DEFAULT AND REMEDIES

7.1 Events of Default

7.2 Remedies

Article VIII EXPENSES AND INDEMNITIES

8.1 Expenses

8.2 Indemnity

Article IX ASSIGNMENT AND PARTICIPATIONS

9.1 Assignments and Participations

9.2 Successors

9.3 Register

Article X AGENT; THE LENDER GROUP

10.1 Appointment and Authorization of Agent

10.2 Delegation of Duties

10.3 Liability of Agent

10.4 Reliance by Agent

10.5 Notice of Unmatured Event of Default or Event of Default

10.6 Credit Decision

10.7 Costs and Expenses; Indemnification

10.8 Agent in Individual Capacity

10.9 Successor Agent

10.10 Lender in Individual Capacity

10.11 Withholding Taxes

10.12 Collateral Matters

10.13 Restrictions on Actions by Lenders; Sharing of Payments

10.14 Agency for Perfection

10.15 Payments by Agent to the Lenders

10.16 Concerning the Collateral and Related Loan Documents

10.17 Field Examinations and Examination Reports; Confidentiality;

Disclaimers by Lenders; Other Reports and Information

10.18 Several Obligations; No Liability

10.19 Legal Representation of Agent

10.20 Bank Product Providers

Article XI MISCELLANEOUS

11.1 No Waivers, Remedies

11.2 Waivers and Amendments

11.3 Notices

11.4 Headings

11.5 Execution in Counterparts; Effectiveness

11.6 GOVERNING LAW

11.7 JURISDICTION AND VENUE

11.8 WAIVER OF TRIAL BY JURY

11.9 Independence of Covenants

11.10 Confidentiality

11.11 Complete Agreement

11.12 USA Patriot Act Notice

CREDIT AGREEMENT

THIS CREDIT AGREEMENT, dated as of March 12, 2014, is entered into by and among, on the one hand, the lenders identified on the signature pages hereof (such lenders, together with their respective successors and permitted assigns, are referred to hereinafter each individually as a “Lender” and collectively as the “Lenders”) and CITY NATIONAL BANK, a national banking association (“CNB”), as the arranger and administrative agent for the Lenders (in such capacity, together with its successors and permitted assigns in such capacity, “Agent”), and, on the other hand, ACRC LENDER LLC, a Delaware limited liability company (“Borrower”).

The parties agree as follows:

ARTICLE I

DEFINITION AND CONSTRUCTION

1.1 Definitions. For purposes of this Agreement (as defined below), the

following initially capitalized terms shall have the following meanings:

“ACRC Pledge and Account Control Agreement” means that certain Pledge and Account Control Agreement, dated as of November 19, 2013, by and among Borrower, U.S. Bank National Association, as trustee on behalf of certain certificate holders, and U.S. Bank National Association, as amended, restatement or otherwise modified from time to time.

“Advances” has the meaning set forth in Section 2.1(a).

“Affiliate” means, as applied to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with, that Person. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by,” and “under common control with”), as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of that Person, whether through the ownership of voting securities, by contract, or otherwise; provided, that no issuer of a Specified Third Party Securitization shall be considered an “Affiliate” of such Person.

“Agent” has the meaning set forth in the preamble to this Agreement.

“Agent-Related Persons” means Agent, together with its Affiliates, officers, directors, employees, attorneys, and agents.

“Agent’s Account” means the Deposit Account of Agent identified on Schedule A-1. “Agent’s Liens” means the Liens granted by any Loan Party to Agent under the Loan

Documents.

“Agreement” means this Credit Agreement among Borrower, the Lenders, and Agent, together with all exhibits and schedules hereto, including the Disclosure Statement.

“Application Event” means the occurrence of (a) a failure by Borrower to repay in full all of the Obligations on the Maturity Date, or (b) an Event of Default and the election by Agent or the Required Lenders to require that payments and proceeds of Collateral be applied pursuant to Section 2.3(a)(ii)(E) and (F) of this Agreement.

“Ares Management LLC” means Ares Management LLC, a Delaware limited liability

company.

“Asset” means any interest of a Person in any kind of property or asset, whether real,

personal, or mixed real and personal, or whether tangible or intangible; provided, that “Assets” shall be determined without regard to the effects of consolidation of any issuer of a Specified Third Party Securitization on the financial statements of such Person under Accounting Standards Codification Section 810, as amended, modified or supplemented from time to time, or otherwise under GAAP.

“Assignee” has the meaning set forth in Section 9.1(a).

“Assignment and Acceptance” means an Assignment and Acceptance Agreement substantially in the form of Exhibit A-1.

“Availability” means, as of any date of determination, the amount that Borrower is entitled to borrow as Advances hereunder (after giving effect to all then outstanding Advances and Letters of Credit).

“Bank Product” means any financial accommodation extended to a Loan Party by a Bank Product Provider in connection with Hedging Agreements.

“Bank Product Agreements” means those agreements entered into from time to time by any Loan Party with a Bank Product Provider in connection with the obtaining of any of the Bank Products.

“Bank Product Provider” means each counterparty to a Bank Product Agreement if such counterparty was a Lender or an Affiliate of a Lender on the date of entering into such Bank Product Agreement; provided, however, that no such Person (other than CNB) shall constitute a Bank Product Provider with respect to a Bank Product unless and until Agent shall have received a Bank Product Provider Letter Agreement from such Person and with respect to the applicable Bank Product within such reasonable period agreed to by Agent after the provision of such Bank Product to any Loan Party.

“Bank Product Provider Letter Agreement” means a letter agreement in substantially the form attached hereto as Exhibit B-1, in form and substance reasonably satisfactory to Agent, duly executed by the applicable Bank Product Provider, Borrower, and Agent.

“Basel III” means the agreements on capital requirements, leverage ratio and liquidity standards contained in "“Basel III: A global regulatory framework for more resilient banks and banking systems"”, "“Basel III: International framework for liquidity risk measurement, standards and monitoring"” and "“Guidance for national authorities operating the countercyclical capital buffer"” published by the Basel Committee on Banking Supervision on 16 December 2010, each as amended, supplemented or restated.

“Base LIBOR Rate” means the ICE Benchmark Administration definition of the London InterBank Offered Rates as made available by Bloomberg LP (or, if such service is not available, such other successor to or substitute for such definition or such service as may be designated by Agent in accordance with customary practice in the syndicated loan market), for the applicable monthly period upon which the Interest Period is based for the LIBOR Rate Loan selected by Borrower and as quoted by Agent pursuant to the terms hereof, in the case of an initial LIBOR Rate Loan or a conversion of a Base Rate Loan to a LIBOR Rate Loan, on the date that is two (2) Eurodollar Business Days prior to the Funding Date for such LIBOR Rate Loan or, in the case of a continuation of an existing LIBOR Rate Loan, on the date that is two (2) Eurodollar Business Days before the last Eurodollar Business Day of an expiring Interest Period.

“Base Rate” means the greatest of (a) the Federal Funds Rate plus 0.50%, (b) the rate most recently announced by Agent at its principal office in Los Angeles, California as its “Prime Rate” and (c) the LIBOR Rate for a one month Interest PeriodDaily Simple SOFR plus 1.00 percentage point.

“Base Rate Loan” means each portion of the Advances bearing interest at the Base

Rate.

“Benchmark” has the meaning set forth in Section 2.18(a).

“Benchmark Replacement” has the meaning set forth in Section 2.18(a).

“Benchmark Replacement Date” has the meaning set forth in Section 2.18(a). “Benchmark Transition Event” has the meaning set forth in Section 2.18(b).

“Borrower” has the meaning set forth in the introduction to this Agreement.

“Borrowing Base” means, (I) during any Temporary Increase Period, the Borrowing Base shall be the Temporary Increase Borrowing Base and (II) as of any other date, (a) :

(a) if on such date there are threefour (or such lesser number as

otherwise agreed to by Agent) or more Pledged Investments (the “Minimum Investment Condition”),:

(i) except as otherwise set forth below in clause (a)(ii) the Borrowing Base shall be 5055% of the Fair Market Value of the then extant Pledged Investments, (b) if on any date the Minimum Investment Condition does not apply and any Pledged Investment includes Stock issued by FL3 Holder and (i) the securities issued by FL3 LLC and FL3 Ltd that are held by FL3 Holder constitute Performing Obligations, (ii) 100% of the Stock issued by FL3 Holder constitutes a Pledged Investment, (iii) FL3 Holder holds 100% of the Stock issued by each of FL3 LLC and FL3 Ltd, (iv) no Lien (other than Permitted Liens on the Assets of any Subsidiary of Borrower or Liens securing Debt evidenced by, or Liens permitted under, the FL3 Indenture) exists with respect to any of the Assets of any FL3 Entity, whether then owned or thereafter acquired by such FL3 Entity, or any income or profits therefrom, and (v) no FL3 Entity has any Debt outstanding other than Debt evidenced by or permitted under the FL3 Indenture (subclauses (i)-(v), collectively, the “FL3 Conditions”), the Borrowing Base shall be (1) if the Fair Market Value of the Stock issued by FL3 Holder and held by Borrower is greater than or equal to $100,000,000, $50,000,000, or (2) if the Fair Market Value of the Stock issued by FL3 Holder and held by Borrower is less than $100,000,000, 50; or

(ii) during any Temporary Increase Period, the Borrowing Base shall be 70% of the Fair Market Value of the then extant Pledged Investments (including the Stock of FL3 Holder); or (c)

(b) if on anysuch date the Minimum Investment Condition doeshas not apply and any of the FL3 Conditions are notbeen satisfied on such date, the Borrowing Base shall be $0. For the avoidance of doubt, the Fair Market Value of the Stock issued by FL3 Holder and held by Borrower shall equal the Fair Market Value of the securities issued by FL3 LLC, FL3 Ltd or any other Subsidiary of FL3 Holder, that are held by FL3 Holder.

“Business Day” means a day when major commercial banks are open for business in California and New York, New York, other than Saturdays or Sundays; provided that, when used in connection with a SOFR Loan, or any other calculation or determination involving SOFR, the term “Business Day” means any such day that is also a U.S. Government Securities Business Day.

“Cash Equivalents” means (a) marketable direct obligations issued by, or unconditionally guaranteed by, 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 1 year from the date of acquisition thereof, (b) marketable direct obligations issued by any state of the United States or any political subdivision of any such state or any public instrumentality thereof maturing within 1 year from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either Standard & Poor’s Rating Group (“S&P”) or Moody’s Investors Service, Inc. (“Moody’s”), (c) commercial paper maturing no more than 270 days from the date of creation thereof and, at the time of acquisition, having a rating of at least A-1 from S&P or at least P-1 from Moody’s, (d) certificates of deposit or bankers’ acceptances maturing within 1 year from the date of acquisition thereof issued by any bank organized under the laws of the United States or any state thereof having at the date of acquisition thereof combined capital and surplus of not less than $250,000,000, (e) demand deposit accounts maintained with any bank organized under the laws of the United States or any state thereof having combined capital and surplus of not less than $1,000,000,000, so long as the amount maintained with any individual bank is less than or equal to $1,000,000 and is insured by the Federal Deposit Insurance Corporation, or larger amounts, to the extent that such amounts are covered by insurance which is reasonably satisfactory to Agent, (f) demand deposit accounts maintained with any of the financial institutions listed on Schedule A-2 hereto (as may be modified from time to time upon reasonably prompt written notice to the Agent following the establishment of such an account), Affiliates thereof, or any Lender that is a bank that is insured by the Federal Deposit Insurance Corporation, and (g) Investments in money market funds substantially all of whose assets are invested in the types of assets described in clauses (a) through (e) above.

“Change of Control Event” means the occurrence of any of the following events: (a) any “person” or “group” (within the meaning of Section 13(d) or 14(d) of the Exchange Act) shall become, or obtain rights (whether by means of warrants, options or otherwise) to become, the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of a percentage of the total voting power of all classes of capital stock of Guarantor entitled to vote generally in the election of directors, of thirty-five percent (35%) or more; (b)

Guarantor shall cease to own and control, of record and beneficially, directly or indirectly one-hundred percent (100%) of the outstanding membership interests of the Borrower; (c) Ares Commercial Real Estate Management LLC shall cease to be one-hundred percent (100%) owned and controlled, of record and beneficially, by Ares Management LLC or one or more of its Affiliates or (d) neither Ares Commercial Real Estate Management LLC nor any Affiliate of Ares Management LLC is actively involved on an ongoing basis in the investment decisions of Guarantor and its Subsidiaries.

“Closing Date” means the March 12, 2014.

“CNB” has the meaning set forth in the preamble to this Agreement.

“Collateral” has the meaning ascribed thereto in the Security Agreement.

“Collateral Account” has the meaning ascribed thereto in the Security Agreement. “Collections” means all cash, checks, notes, instruments, and other items of payment. “Compensated Lender” has the meaning set forth in Section 11.2.

“Conforming Changes” means, with respect to either the use or administration of any SOFR-Based Rate or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Business Day”, the definition of “Interest Period,” or any similar or analogous definition, if applicable, the addition of a concept of “interest period”, if applicable, timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of any breakage costs and other technical, administrative or operational matters) to this Agreement and the other Loan Documents that Agent decides may be appropriate to reflect the adoption and implementation of any such rate and to permit the administration thereof by Agent in a manner Agent determines in connection with the administration of this Agreement and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such changes will become effective without any further action or consent of any Borrower.

“Contingent Obligation” means, as to any Person and without duplication of amounts, any written obligation of such Person guaranteeing or intended to guarantee (whether guaranteed, endorsed, co-made, discounted, or sold with recourse to such Person) any Debt, noncancellable lease, dividend, reimbursement obligations relating to letters of credit, or any other obligation that pertains to Debt, a noncancellable lease, a dividend, or a reimbursement obligation related to letters of credit (each, a “primary obligation”) of any other Person (“primary obligor”) in any manner, whether directly or indirectly, including any written obligation of such Person, irrespective of whether contingent, (a) to purchase any such primary obligation, (b) to advance or supply funds (whether in the form of a loan, advance, stock purchase, capital contribution, or otherwise) (i) for the purchase, repurchase, or payment of any such primary obligation or any Asset constituting direct or indirect security therefor, or (ii) to maintain working capital or equity capital of the primary obligor, or otherwise to maintain the net worth, solvency, or other financial condition of the primary obligor, or (c) to purchase or make payment for any Asset, securities, services, or noncancellable lease if 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.

“Contractual Obligation” means, as applied to any Person, any material provision of any material indenture, mortgage, deed of trust, contract, undertaking, agreement, or other instrument to which that Person is a party or by which any of its Assets is subject.

“Daily Balance” means, as of any date of determination and with respect to any Obligation, the amount of such Obligation owed at the end of such day.

“Daily Simple SOFR” means, for any day (a “SOFR Interest Day”), a rate per annum (rounded upward to the next one-sixteenth (1/16th) of one percentage (0.0625%), if necessary) equal to the greater of (a) SOFR for the day that is two (2) Business Days prior to (i) if such SOFR Interest Day is a Business Day, such SOFR Interest Day or (ii) if such SOFR Interest Day is not a Business Day, the Business Day immediately preceding such SOFR Interest Day and (b) 0.35% ; provided, that if the Agent decides that any such convention is not administratively feasible for the Agent, then the Agent may establish another convention in its reasonable discretion.

“Daily Simple SOFR Loan” means each portion of the Advances bearing interest based upon Daily Simple SOFR.

“Debt” with respect to any Person, means: (i) all indebtedness, whether or not represented by bonds, debentures, notes, securities, or other evidences of indebtedness, for the repayment of money borrowed, (ii) all indebtedness representing deferred payment of the purchase price of property or assets, (iii) all indebtedness under any lease which, in conformity with GAAP, is required to be capitalized for balance sheet purposes, (iv) all indebtedness under guaranties, endorsements, assumptions, or other contingent obligations, in respect of, or to purchase or otherwise acquire, indebtedness of others, and (v) all indebtedness secured by a lien existing on property owned, subject to such lien, whether or not the indebtedness secured thereby shall have been assumed by the owner thereof; provided, that “Debt” shall be determined without regard to the effects of consolidation of any issuer of a Specified Third Party Securitization on the financial statements of such Person under Accounting Standards Codification Section 810, as amended, modified or supplemented from time to time, or otherwise under GAAP.

“Defaulting Lender” means any Lender that (a) has failed to fund any amounts required to be funded by it under this Agreement on the date that it is required to do so under this Agreement, (b) notified Borrower, Agent, or any Lender in writing that it does not intend to comply with all or any portion of its funding obligations under this Agreement, (c) has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement or under other agreements generally (as reasonably determined by Agent) under which it has committed to extend credit, (d) failed, within one Business Day after written request by Agent, to confirm that it will comply with the terms of this Agreement relating to its obligations to fund any amounts required to be funded by it under this Agreement, (e) otherwise failed to pay over to Agent or any other Lender any other amount required to be paid by it under this Agreement within one Business Day of the date that it is required to do so under this Agreement, unless the subject of a good faith dispute, or (f) (i) becomes or is insolvent or has a parent company that has become or is insolvent, or (ii) becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or has a parent company that has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment.

“Defaulting Lender Rate” means (a) for the first 3 days from and after the date the relevant payment is due, the Federal Funds Rate, and (b) thereafter, the interest rate then applicable to Advances that are Base Rate Loans.

“Deficiency Amount” has the meaning set forth in Section 6.5.

“Deposit Account” means any “deposit account” (as that term is defined in the UCC). “Designated Account” means account number 8188090603 of Ares Commercial Real

Estate Corporation maintained with Bank of America, or such other deposit account of Borrower (located within the United States) designated, in writing, from time to time, by Borrower to Agent.

“Direct Competitor” means any Person who is a direct competitor of Borrower if Agent or the assigning Lender have actual knowledge of the foregoing (including, upon notification by Borrower); provided, that in connection with any assignment or participation, the assignee with respect to such proposed assignment that is an investment bank, a commercial bank, a finance company, a fund or other entity which merely has an economic interest in any such Person, and is not itself such a direct competitor of Borrower, shall be deemed not to be a Direct Competitor for the purposes of this definition so long as it does not exercise direct control over, or is controlled directly by or under common control with, such Person that is a direct competitor of Borrower.

“Disclosure Statement” means that certain statement, executed and delivered by a Responsible Officer of Borrower, that sets forth information regarding or exceptions to the representations, warranties, and covenants made by Borrower herein, as amended from time to time in accordance with this Agreement.

“Distribution” has the meaning set forth in Section 6.5. “Dollars” or “$” means United States dollars.

“Eligible Transferee” means (a) a commercial bank organized under the laws of the United States, or any state thereof, and having total assets in excess of $250,000,000, (b) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development or a political subdivision of any such country and which has total assets in excess of $250,000,000, provided that such bank is acting through a branch or agency located in the United States, (c) a finance company, insurance company, financial institution, or fund that is engaged in making, purchasing, or otherwise investing in commercial loans in the ordinary course of its business and having (together with its Affiliates) total assets in excess of $250,000,000, (d) any Lender, (e) any Affiliate (other than individuals) of a Lender, (f) so long as no Event of Default has occurred and is continuing, any other Person approved by Agent and Borrower (which approval of Borrower, except in the case of a proposed assignment to a Direct Competitor, and Agent shall not be unreasonably withheld, delayed, or conditioned), and (g) during the continuation of (i) a Payment Default or an Insolvency Default or (ii) any other Event of Default that has been continuing for a period of at least 30 days, any other Person approved by Agent which approval shall not be unreasonably

withheld, delayed or conditioned; provided that in no event shall a Loan Party or an Affiliate of a Loan Party constitute an Eligible Transferee.

“Environmental Law” means any applicable federal, state, provincial, foreign or local statute, law, rule, regulation, ordinance, code, binding and enforceable guideline, binding and enforceable written policy, or rule of common law now or hereafter in effect and in each case as

amended, or any judicial or administrative interpretation thereof, including any judicial or administrative order, consent decree or judgment, in each case, to the extent binding on Borrower or its Subsidiaries, relating to the environment, the effect of the environment on employee health, or Hazardous Materials, in each case as amended from time to time.

“Eurocurrency Reserve Requirement” means the sum (without duplication) of the rates (expressed as a decimal) of reserves (including, without limitation, any basic, marginal, supplemental, or emergency reserves) that are required to be maintained by banks during the Interest Period under any regulations of the Federal Reserve Board, or any other governmental authority having jurisdiction with respect thereto, applicable to funding based on so-called “Eurocurrency Liabilities”, including Regulation D (12 CFR 224).

“Eurodollar Business Day” means any Business Day on which major commercial banks are open for international business (including dealings in Dollar deposits) in New York, New York and London, England.

“Event of Default” has the meaning set forth in Article VII of this Agreement. “Exchange Act” means the Securities Exchange Act of 1934, as amended or

supplemented from time to time, and any successor statute, and all of the rules and regulations issued or promulgated in connection therewith.

“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) withholding Taxes imposed on amounts payable to or for the account of such Recipient with respect to an applicable interest in a Loan or Revolver Commitment pursuant to a law in effect on the date on which (i) such Recipient acquires such interest in the Loan or Revolver Commitment (other than pursuant to an assignment request by Borrower under Section 11.2) or (ii) in the case of a Lender, such Lender changes its lending office, except in each case to the extent that, pursuant to Section 10.11, amounts with respect to such Taxes were payable either to such Lender'’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 10.11(b), (c) or (j) and (d) any Taxes imposed under FATCA.

“Extended Maturity Date” has the meaning set forth in Section 3.3.

“Fair Market Value” shall mean, with respect to any Pledged Investment at any time,

(a) the sum of (i) the outstanding principal amount of such Pledged Investment plus (ii) any proceeds of such Pledged Investment consisting of Cash and Cash Equivalents held in the Collateral Account minus (b) the amount of any impairment charge or other reduction in value determined by Borrower in its sole discretion with respect to such Pledged Investment (such impairment charge or other reduction in value to be reasonably determined by Borrower in a manner that is consistent with the calculations of impairment charges or other reductions in value with respect to such Pledged Investments reported by Guarantor to the holders of its Securities or on the Borrower’s or Guarantor’s financial statements) and that has been designated as such by the Borrower in a Pledged Investments Certificate delivered in accordance with Section 5.2 (provided that Borrower may

reverse or reduce the amount of any such charge by delivery of a subsequent Pledged Investments Certificate).

“Federal Funds Rate” shall mean, for any day, the rate per annum (rounded upwards, if necessary, to the next 1/100th of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with member banks of the Federal Reserve System arranged by Federal funds brokers, as published by the Federal Reserve Bank of New York on the next succeeding Business Day or if such rate is not so published for any Business Day, the Federal Funds Rate for such day shall be the average rounded upwards, if necessary, to the next 1/100th of 1% of the quotations for such day on such transactions received by the Agent from three Federal funds brokers of recognized standing selected by the Agent.

“Federal Reserve Board” means the Board of Governors of the Federal Reserve System or any successor thereto.

“Fee Letter” means that certain fee letter, dated contemporaneously herewith, between Borrower and Agent.

“FINRA” means the Financial Industry Regulatory Authority. “FL3 Entity” means any of FL3 Holder, FL3 LLC or FL3 Ltd.

“FL3 Holder” means ACRC 2017-FL3 Holder LLC, a Delaware limited liability

company.

“FL3 Indenture” means that certain Indenture, dated on or about Match 2, 2017, among

FL3 Ltd, as issuer, FL3 LLC, as co-issuer, Wells Fargo Bank, National Association, as advance agent and note administrator, and Wilmington Trust, National Association, as trustee, as amended, restated, supplemented or otherwise modified from time to time.

“FL3 LLC” means ACRE Commercial Mortgage 2017-FL3 LLC, a Delaware limited liability company.

“FL3 Ltd” means ACRE Commercial Mortgage 2017-FL3 Ltd., a Cayman Limited Liability Company.

“Funding Date” means the date on which any Advance is made by the Lenders. “Funding Losses” has the meaning set forth in Section 2.6(b)(ii).

“GAAP” means generally accepted accounting principles in the United States of America in effect from time to time.

“Governing Documents” means, with respect to any Person, the certificate or articles of incorporation, by-laws, or other organizational documents of such Person.

“Governmental Authority” means any federal, state, local, or other governmental department, commission, board, bureau, agency, central bank, court, tribunal, or other instrumentality, domestic or foreign.

“Guarantor” means Ares Commercial Real Estate Corporation, a Maryland corporation.

“Guaranty” means that certain general continuing guaranty, dated contemporaneously herewith, by the Guarantor in favor of Agent, for the benefit of the Lender Group and the Bank Product Providers.

“Hazardous Materials” means (a) substances that are defined or listed in, or otherwise classified pursuant to, any applicable laws or regulations as “hazardous substances,” “hazardous materials,” “hazardous wastes,” “toxic substances,” or any other formulation intended to define, list, or classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity, or “EP toxicity”, (b) oil, petroleum, or petroleum derived substances, natural gas, natural gas liquids, synthetic gas, drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil, natural gas, or geothermal resources, (c) any flammable substances or explosives or any radioactive materials, and (d) asbestos in any form or electrical equipment that contains any oil or dielectric fluid containing levels of polychlorinated biphenyls in excess of 50 parts per million.

“Hedging Agreement” means any interest rate, foreign currency, commodity or equity swap, collar, cap, floor or forward rate agreement, or other agreement or arrangement designed to protect against fluctuations in interest rates or currency, commodity or equity values (including any option with respect to any of the foregoing and any combination of the foregoing agreements or arrangements), and any confirmation executed in connection with any such agreement or arrangement.

“Holdout Lender” has the meaning set forth in Section 11.2. “Indemnified Liabilities” has the meaning set forth in Section 8.2.

“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of Borrower under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.

“Indemnitee” has the meaning set forth in Section 8.2.

“Initial Maturity Date” has the meaning set forth in Section 3.3.

“Insolvency Default” means an Event of Default described in Sections 7.1(d), (e) or (f)

hereof.

“Insolvency Proceeding” means any proceeding commenced by or against any Person

under any provision of the Bankruptcy Code or under any other state or federal bankruptcy or insolvency law, assignments for the benefit of creditors, formal or informal moratoria, compositions, extensions generally with creditors, or proceedings seeking reorganization, arrangement, or other similar relief.

“Intercompany Subordination Agreement” means an intercompany subordination agreement, dated as of even date with this Agreement, executed and delivered by Borrower, Guarantor, and Agent, the form and substance of which is reasonably satisfactory to Agent.

“Interest Payment Date” means the first day of each month.

“Interest Period” means, (a) with respect to any Term SOFR Loan, the period commencing on the date such Term SOFR Loan is made (including the date a Base Rate Loan or Daily Simple SOFR Loan is converted to a Term SOFR Loan or a Term SOFR Loan is continued) and ending on the numerically corresponding day of the calendar month that is one, three or six months thereafter, as specified in the Request for Borrowing (in each case subject to the availability thereof); provided that (i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, and (ii) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period, and (b) with respect to any LIBOR Rate Loan, the period commencing on the date such LIBOR Rate Loan is made (including the date a Base Rate Loan is converted to a LIBOR Rate Loan, or a LIBOR Rate Loan is renewed as a LIBOR Rate Loan, which, in the latter case, will be the last day of the expiring Interest Period) and ending on the date which is one (1), two (2), three (3), six (6) months, or, if

available to all Lenders, twelve (12) months thereafter, as selected by Borrower; provided, however, that no Interest Period may extend beyond the Maturity Date.

“Issuing Lender” means CNB or any other Lender that, at the request of Borrower and with the consent of Agent, agrees, in such Lender’s sole discretion, to become an Issuing Lender for the purpose of issuing Letters of Credit pursuant to Section 2.10.

“July 2014 Credit Agreement” means that certain Credit Agreement, dated as of July 30, 2014, by and among Borrower, the lenders party thereto, and CNB, as arranger and administrative agent as amended, supplemented, or otherwise modified as permitted hereunder.

“July 2014 Loan Documents” means the July 2014 Credit Agreement and the other “Loan Documents” as such term is defined in the July 2014 Credit Agreement and any documents, instruments and agreements entered into in connection with any amendment, supplement,

restatement, replacement or refinancing thereof, as amended, modified, supplemented or restated from time to time in accordance with the terms of the July 2014 Credit Agreement.

“L/C Disbursement” means a payment made by the Issuing Lender to a beneficiary of a Letter of Credit pursuant to such Letter of Credit.

“Lender” and “Lenders” have the respective meanings set forth in the preamble to this Agreement, and shall include any other Person made a party to this Agreement in accordance with the provisions of Section 9.1.

“Lender Group” means, individually and collectively, each of the Lenders (including the Issuing Lender) and Agent.

“Lender Group Expenses” means all (a) reasonable and documented costs or expenses (including taxes, and insurance premiums) required to be paid by Borrower or any other Loan Party under any of the Loan Documents that are paid, advanced, or incurred by Agent, (b) reasonable and documented fees or charges paid or incurred by Agent in connection with the Lender Group’s transactions with Borrower or any other Loan Party, including, fees or charges for photocopying, notarization, couriers and messengers, telecommunication, public record searches (including tax lien, litigation, and UCC searches and, if required, including searches with the United States Patent and Trademark Office, or the United States Copyright Office, the department of motor vehicles), filing, recording, publication, appraisal (including periodic collateral appraisals or business valuations to the extent of the fees and charges (and up to the amount of any limitation) contained in this Agreement or the Fee Letter), and if reasonably requested by the Agent, real estate surveys, real estate title policies and endorsements, and environmental examinations, but excluding, for the avoidance of doubt, any Taxes of Agent , (c) reasonable and documented costs and expenses incurred by Agent in the disbursement of funds to Borrower or other members of the Lender Group (by wire transfer or otherwise), (d) reasonable and documented costs and expenses paid or incurred by Agent or any Lender to correct any default or enforce any provision of the Loan Documents, or in gaining possession of, maintaining, handling, preserving, storing, shipping, selling, preparing for sale, or advertising to sell the Collateral, or any portion thereof, irrespective of whether a sale is consummated, (e) reasonable and documented fees and expenses of Agent (including internal allocations of costs) related to collateral examinations of the books of the Loan Parties to the extent of the fees and charges (and up to the amount of any limitation) contained in this Agreement or the Fee Letter, (f) reasonable and documented costs and expenses of third party claims or any other suit paid or incurred by the Agent or any Lender in enforcing or defending the Loan Documents or in connection with the transactions contemplated by the Loan Documents or the Lender Group’s relationship with any Loan Party, (g) Agent’s reasonable and documented costs and expenses (including reasonable and documented attorneys fees of one counsel) incurred in structuring, drafting, reviewing, administering, syndicating, or amending the Loan Documents, and (h) Agent’s and each Lender’s reasonable and documented costs and expenses (including attorneys, accountants, consultants, and other advisors reasonable and documented fees and expenses) incurred in terminating, enforcing (including attorneys, accountants, consultants, and other advisors reasonable and documented fees and expenses incurred in connection with a “workout,” a “restructuring,” or an Insolvency Proceeding concerning Borrower or any other Loan Party or in exercising rights or remedies under the Loan Documents), or defending the Loan Documents, irrespective of whether suit is brought, or in taking any Remedial Action concerning the Collateral.

“Lender-Related Person” means, with respect to any Lender, such Lender, together with such Lender’s Affiliates, officers, directors, employees, attorneys, and agents.

“Letter of Credit” has the meaning set forth in Section 2.10(a). “Letter of Credit Fee” has the meaning set forth in Section 2.3(d).

“Letter of Credit Usage” means, as of any date of determination, the aggregate undrawn amount of all outstanding Letters of Credit.

“LIBOR Rate” means the rate per year (rounded upward to the next one-thousandth (1/1000th) of one percent (0.001%), if necessary) determined by Agent to be the quotient of (a) the Base LIBOR Rate divided by (b) one minus the Eurocurrency Reserve Requirement for the Interest Period; which is expressed by the following formula:

Base LIBOR Rate divided by (1 - Eurocurrency Reserve Requirement).

“LIBOR Rate Loan” means each portion of an Advance bearing interest at the LIBOR

Rate.

“Lien” means any lien, hypothecation, mortgage, pledge, assignment (including any assignment of rights to receive payments of money) for security, security interest, charge, or encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any agreement to give any security interest).

“Loan” means an Advance made by the Lenders (or Agent on behalf thereof) to Borrower pursuant to Section 2.1 of this Agreement, and “Loans” means all such Advances.

“Loan Account” has the meaning set forth in Section 2.12.

“Loan Documents” means this Agreement, the Guaranty, the Letters of Credit, , the Fee Letter, the Security Agreement, the Intercompany Subordination Agreement, and any and all other documents, agreements, or instruments that have been or are entered into by Borrower or Guarantor, on the one hand, and Agent, on the other hand, in connection with the transactions contemplated by this Agreement.

“Loan Party” means Borrower or Guarantor, and “Loan Parties” means, collectively, jointly and severally, Borrower and the Guarantor.

“Margin Securities” means “margin stock” as that term is defined in Regulation U of the Federal Reserve Board.

“Material Adverse Effect” means, with respect to a specified Person, a material and adverse effect on the business, operations, Assets, or condition (financial or otherwise) of such Person and its Subsidiaries, taken as a whole.

“Maturity Date” means (a) the Extended Maturity Date if the One Year Extension Option is available to, and exercised, by Borrower in accordance with the terms and conditions of Section 3.3, (b) the Second Extended Maturity Date if the Second Year Extension Option is available to, and exercised, by Borrower in accordance with the terms and conditions of Section

3.3 and (c) at all other times, the Initial Maturity Date.

“Maximum Revolver Amount” means (a) if during the Temporary Increase Period, the Temporary Increase Revolver Amount and (b) at all other times, $50,000,000$75,000,000.

“Obligations” means (a) all loans (including the Advances), debts, principal, interest (including any interest that accrues after the commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding), premiums, liabilities (including all amounts charged to Borrower’s Loan Account pursuant hereto), contingent reimbursement obligations with respect to outstanding Letters of Credit, obligations (including indemnification obligations), fees (including the Letter of Credit Fee and the fees provided for in the Fee Letter), charges, costs, expenses (including Lender Group Expenses) (including any portion thereof that accrues after the commencement of an Insolvency Proceeding, whether or not allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding), lease payments, guaranties, covenants, and duties of any kind and description incurred and outstanding by Borrower to the Lender Group pursuant to or evidenced by the Loan Documents and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and

including all interest not paid when due and all expenses that Borrower is required to pay or reimburse by the Loan Documents, by law, or otherwise, and (b) all Bank Product Obligations. Any reference in this Agreement or in the Loan Documents to the Obligations shall include all extensions, modifications, renewals, or alterations thereof, both prior and subsequent to any Insolvency Proceeding.

“One Year Extension Option” has the meaning set forth in Section 3.3. “Originating Lender” has the meaning set forth in Section 9.1(e).

“Participant” has the meaning set forth in Section 9.1(e).

“Payment Default” means an Event of Default described in Section 7.1(a) hereof. “Performing Obligations” means, with respect to any Investment of Borrower, all

covenants and obligations set forth in the agreements governing such Investments and instruments (if any) evidencing such Investments, including but not limited to payment obligations, are complied with in all material respects by the parties thereto in accordance with the terms thereof (giving effect to any grace period or cure periods therein).

“Permitted Discretion” means a determination made in the exercise of reasonable (from the perspective of a secured lender) business judgment.

“Permitted Liens” means: (a) Liens for taxes, assessments, or governmental charges or claims the payment of which is not, at such time, required by Section 5.4 hereof, (b) any attachment or judgment Lien either in existence less than 30 calendar days after the entry thereof, or with respect to which execution has been stayed, or with respect to which payment in full above any applicable deductible is covered by insurance (so long as no reservation of rights has been made by the insurer in connection with such coverage), and Liens incurred to secure any surety bonds, appeal bonds, supersedeas bonds, or other instruments serving a similar purpose in connection with the appeal of any such judgment, in each case, so long as such judgments do not constitute an Event of Default under Section 7.1(h) of the Agreement, (c) banker’s Liens in the nature of rights of setoff arising in the ordinary course of business of Borrower, (d) Liens granted by Borrower to Agent in order to secure its Obligations under this Agreement and the other Loan Documents and Bank Product Agreements to which it is a party, (e) Liens and deposits in connection with workers’ compensation, unemployment insurance, social security and other legislation affecting Borrower and its Subsidiaries, (f) Liens arising by operation of law in favor of carriers, warehousemen, landlords, mechanics, materialmen, laborers or employees for sums that are not yet delinquent or are being contested in good faith, (g) Liens described in the Disclosure Statement with respect to Section 4.8 hereof, if any, but not the extension of coverage thereof to other property or assets, (h) easements, rights of way, zoning restrictions and similar encumbrances on real property and minor irregularities in the title thereto that do not (i) secure obligations for the payment of money or (ii) materially impair the value of such property or its use by any Loan Party or any of its Subsidiaries in the normal conduct of such Person’s business,

(i) leases or subleases granted to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries, (j) Liens in connection with the financing of insurance premiums in the ordinary course of business which attach solely to the proceeds thereof or any premium refund, (k) Liens in favor of any escrow agent solely on and in respect of any cash earnest money deposits made by Borrower incurred in the ordinary course of business and in connection with any letter of intent or purchase agreement (to the extent that the acquisition or disposition with respect thereto is otherwise permitted hereunder), (l) Liens encumbering customary initial deposits and margin deposits, and similar Liens and margin deposits, and similar Liens attaching to commodity trading accounts and other brokerage accounts incurred in the ordinary course of business, (m) Liens deemed to exist as a matter of law in connection with permitted repurchase obligations incurred in the ordinary course of business or set-off rights, (n) Liens in favor of collecting banks arising under Section 4-210 of the UCC,

(o) Liens on the equity Securities of any Subsidiary of the Borrower and the proceeds thereof securing Debt of such Subsidiary and any guaranty by Borrower of any such Debt, (p) Liens granted under the ACRC Pledge and Account Control Agreement (as in effect on the Closing Date), to the extent that such Liens solely secure the Debt described in the ACRC Pledge and Account Control Agreement (as in effect on the Closing Date) as being secured by such Liens,

(q) Liens granted by Guarantor to Ares Management LLC in and to the Securities of ACRC Holdings LLC pursuant to the terms of the Pledge Agreement (as defined in the July 2014 Credit Agreement), and (r) other Liens granted by Borrower in the ordinary course of its business with respect to obligations that do not exceed $100,000 in the aggregate.

“PH” means Paul Hastings LLP.

“Pledged Investments” means Borrower’s or a Guarantor’s now owned or hereafter acquired right, title, and interest in and to the Investments set forth on Schedule B-1 (as such Schedule may be updated from time to time in accordance with Section 5.2(a)) and the proceeds and products, whether tangible or intangible, of any of the foregoing so long as such Investments

(a)

are subject to a valid and perfected first priority Agent’s Lien, (b) are owned by Borrower or a Guarantor free and clear of all other Liens (other than Liens in favor of Agent), and (c) constitute Performing Obligations. (or in the case of Stock issued by FL3 Holder that constitutes an Investment, such securities issued by FL3 LLC and FL3 Ltd that are held by FL3 Holder shall constitute Performing Obligations). Unless otherwise agreed by Agent in writing, an Investment shall not be included as nor constitute a Pledged Investment if:

(a) (i) such Investment (the “Designated Investment”) does not constitute a Performing Obligation (or in the case of Stock issued by FL3 Holder that constitutes an Investment, such securities issued by FL3 LLC and FL3 Ltd that are held by FL3 Holder does not constitute a Performing Obligations) or does not constitute secured Debt held directly by Borrower or a Guarantor or, in the case of a Designated Investment consisting of Stock issued by FL3 Holder that constitutes an Investment, securities issued by FL3 LLC and FL3 Ltd and are held by FL3 Holder so long as 100% of the Stock issued by FL3 Holder is held by Borrower or a Guarantor, (ii) the following fraction (expressed as a percentage): (A) the sum of the aggregate principal balance of such secured Debt evidenced by the Designated Investment (or in the case of a Designated Investment consisting of Stock issued by FL3 Holder, such secured Debt issued by FL3 LLC and FL3 Ltd that are held by FL3 Holder) plus the aggregate principal amount of all other Debt secured by a Lien on the collateral securing the Debt evidenced by the Designated Investment (or in the case of a Designated Investment consisting of Stock issued by FL3 Holder, the aggregate principal amount of all other Debt secured by a Lien on the collateral securing the Debt issued by FL3 LLC and FL3 Ltd) divided by (B) the applicable “as is” appraised value (as of the date of origination of the Designated Investment, but subject to and reductions in the value thereof on Borrower’s books and records thereafter) for the collateral for the Debt evidenced by such Designated Investment, is greater than 90%, or (iii) the secured Debt evidenced by the Designated Investment (other than a Designated Investment in FL3 Holder, but without limiting the provisions of clause (b) below with respect thereto) is pari passu or junior in priority (whether pursuant to the waterfall applicable to the Designated Investment, an intercreditor agreement or otherwise) to other Debt secured by a Lien on the collateral securing the Debt evidenced by the Designated Investment; or

(b) in the case of a Designated Investment consisting of Stock issued

by FL3 Holder that constitutes an Investment (it being understood that the individual Investments that make up such securitization will be treated as separate Investments for determining the Minimum Investment Condition), (i) such securities issued by FL3 LLC and FL3 Ltd that are held by FL3 Holder fail to constitute Performing Obligations, (ii) 100% of the Stock issued by FL3 Holder does not constitute an Investment held by Borrower or a Guarantor that is subject to an Agent’s Lien, (iii) FL3 Holder does not hold 100% of the Stock issued by each of FL3 LLC and FL3 Ltd, (iv) any Lien (other than Permitted Liens on the Assets of any Subsidiary of Borrower or Liens securing Debt evidenced by, or Liens permitted under, the FL3 Indenture) exists with respect to any of the Assets of any FL3 Entity, whether then owned or thereafter acquired by such FL3 Entity, or any income or profits therefrom, (v) any FL3 Entity has any Debt outstanding other than Debt evidenced by or permitted under the FL3 Indenture or (vi) the conditions in the waterfall in the FL3 Indenture (or in any documentation evidencing Debt held by any FL3 Entity) for the payments or proceeds of collateral securing the Debt issued by FL3 LLC and FL3 Ltd that are held by FL3 Holder to be applied to the payment of such Debt are not then satisfied or such payments and/or

proceeds of collateral are not applied to such Debt. For the avoidance of doubt, the Fair Market Value of the Stock issued by FL3 Holder and held by Borrower shall equal the Fair Market Value of the securities issued by FL3 LLC, FL3 Ltd or any other Subsidiary of FL3 Holder, that are held by FL3 Holder.

“Pledged Investments Certificate” means a certificate in the form of Exhibit P-1 or any other form agreed to by Agent and Borrower.

“Pro Rata Share” means, as of any date of determination:

(a) with respect to a Lender’s obligation to make Advances and

receive payments of principal, interest, fees, costs, and expenses with respect thereto, (i) prior to the Revolver Commitments being terminated or reduced to zero, the percentage obtained by dividing (y) such Lender’s Revolver Commitment, by (z) the aggregate Revolver Commitments of all Lenders, and (ii) from and after the time that the Revolver Commitments have been terminated or reduced to zero, the percentage obtained by dividing (y) the aggregate outstanding principal amount of such Lender’s Advances by (z) the aggregate outstanding principal amount of all Advances,

(b) with respect to a Lender’s obligation to participate in Letters of Credit, to

reimburse the Issuing Lender, and to receive payments of fees with respect thereto, (i) prior to the Revolver Commitments being terminated or reduced to zero, the percentage obtained by dividing

(y) such Lender’s Revolver Commitment, by (z) the aggregate Revolver Commitments of all Lenders, and (ii) from and after the time that the Revolver Commitments have been terminated or reduced to zero, the percentage obtained by dividing (y) the aggregate outstanding principal amount of such Lender’s Advances by (z) the aggregate outstanding principal amount of all Advances, and

indemnification obligations arising under Section 10.7), (i) prior to the Revolver Commitments being terminated or reduced to zero, the percentage obtained by dividing (y) such Lender’s Revolver Commitment, by (z) the aggregate amount of Revolver Commitments of all Lenders, and (ii) from and after the time that the Revolver Commitments have been terminated or reduced to zero, the percentage obtained by dividing (y) the outstanding principal amount of such Lender’s Advances, by (z) the outstanding principal amount of all Advances; provided, however, that if all of the Advances have been repaid in full and Letters of Credit remain outstanding, Pro Rata Share under this clause shall be determined based upon subclause (i) of this clause as if the Revolver Commitments had not been terminated or reduced to zero and based upon the Revolver Commitments as they existed immediately prior to their termination or reduction to zero.

“Qualified Purchaser” means “qualified purchaser” within the meaning of Section 2(a)(51) of the Investment Company Act of 1940, as amended, and the rules promulgated thereunder.

“Recipient” means (a) Agent, (b) any Lender and (c) any Issuing Lender, as applicable. “Regulatory Change” has the meaning set forth in Section 2.13.

“Remedial Action” means all actions taken to (a) clean up, remove, remediate, contain, treat, monitor, assess, evaluate, or in any way address Hazardous Materials in the indoor or outdoor environment, (b) prevent or minimize a release or threatened release of Hazardous Materials so they do not migrate or endanger or threaten to endanger public health or welfare or

the indoor or outdoor environment, (c) restore or reclaim natural resources or the environment,

(d) perform any pre-remedial studies, investigations, or post-remedial operation and maintenance activities, or (e) conduct any other actions with respect to Hazardous Materials, in each case, as required by applicable Environmental Laws.

“Replacement Lender” has the meaning set forth in Section 11.2. “Report” has the meaning set forth in Section 10.17.

“Request for Borrowing” means an irrevocable written notice from any of the individuals identified on Exhibit R-1 attached hereto (or, in certain cases, two of such individuals, all as set forth in further detail in Exhibit R-1 attached hereto) to Agent of Borrower’s request for an Advance or for the issuance of a Letter of Credit, which notice shall be substantially in the form of Exhibit R-2 attached hereto.

“Request for Conversion/Continuation” means an irrevocable written notice from any of the individuals identified on Exhibit R-1 attached hereto (or, in certain cases, two of such individuals, all as set forth in further detail in Exhibit R-1 attached hereto) to Agent pursuant to the terms of Section 2.7, substantially in the form of Exhibit R-3 attached hereto.

“Required Lenders” means, at any time, Lenders whose aggregate Pro Rata Shares (calculated under clause (c) of the definition of Pro Rata Shares) exceed 50%; provided that, (i) at any time there are 2 or more Lenders (who are not Affiliates of one another), “Required Lenders” must include at least 2 Lenders (who are not Affiliates of one another) and (ii) the Advances and Revolver Commitments of any Defaulting Lender shall be excluded for purposes of determining the Required Lenders.

“Revolver Commitment” means, with respect to each Lender, its commitment in respect of the Revolving Credit Facility, and, with respect to all Lenders, their commitments in respect of the Revolving Credit Facility, in each case as such Dollar amounts are set forth beside such Lender’s name under the applicable heading on Schedule C-1 or in the Assignment and Acceptance pursuant to which such Lender became a Lender hereunder, as such amounts may be reduced or increased from time to time pursuant to assignments made in accordance with the provisions of Section 9.1.

“Revolving Credit Facility” means the revolving credit facility described in Section 2.1(a) hereof.

“Revolving Credit Facility Usage” means, at the time any determination thereof is to be made, the aggregate Dollar amount of the outstanding Advances at such time.

“Risk Participation Liability” means, as to each Letter of Credit, all reimbursement obligations of Borrower to the Issuing Lender with respect to such Letter of Credit, consisting of

(a) the amount available to be drawn or which may become available to be drawn, (b) all amounts that have been paid by the Issuing Lender with respect thereto to the extent not reimbursed by Borrower, whether by the making of an Advance or otherwise, and (c) all accrued and unpaid interest, fees, and expenses payable with respect thereto.

“SEC” means the Securities and Exchange Commission of the United States of America or any successor thereto.

“Second Extended Maturity Date” has the meaning set forth in Section 3.3. “Second One Year Extension Option” has the meaning set forth in Section 3.3.

“Securities” means the capital stock, membership interests, partnership interests (whether limited or general) or other securities or equity interests of any kind of a Person, all warrants, options, convertible securities, and other interests which may be exercised in respect of, converted into or otherwise relate to such Person’s capital stock, membership interests, partnership interests (whether limited or general) or other equity interests and any other securities, including debt securities of such Person.

“Securities Account” means a securities account (as that term is defined in the UCC). “Security Agreement” means that certain security agreement, dated contemporaneously

herewith, between Borrower and Agent.

“SOFR” means, with respect to any Business Day, a rate per annum equal to the secured overnight financing rate for such Business Day published by the SOFR Administrator on the SOFR Administrator’s Website on the immediately succeeding Business Day.

“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).

“SOFR Administrator’s Website” means the website of the Federal Reserve Bank of New York, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.

“SOFR-Based Rate” means Daily Simple SOFR and the Term SOFR Reference Rate, as applicable.

“SOFR Loan” means each portion of the Advances bearing interest at a SOFR-Based

Rate.

“Specified Third Party Securitization” means any securitization transaction that was

not established or sponsored by Guarantor or any of its Affiliates.

“Subsidiary” means, with respect to any Person, any corporation, partnership, association, joint venture, limited liability company or other entity (heretofore, now or hereafter established) of

which at least a majority of the securities or other ownership interests having by the terms thereof ordinary voting power to elect a majority of the board of directors or other persons performing similar functions of such corporation, partnership, limited liability company or other entity (without regard to the occurrence of any contingency) is at the time directly or indirectly owned or controlled by such Person or one or more Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person, and shall include all Persons the accounts of which are consolidated with those of such Person pursuant to GAAP; provided, that no issuer of a Specified Third Party Securitization shall be considered a “Subsidiary” of Guarantor or any of its Affiliates.

“Taxes” means any tax based upon or measured by net or gross income, gross receipts, sales, use, ad valorem, transfer, franchise, withholding, payroll, employment, excise, occupation, premium or property taxes, or conduct of business, together with any interest and penalties, additions to tax and additional amounts imposed by any federal, state, local, or foreign taxing authority upon any Person.

“Temporary Increase Borrowing Base” means as of any date, (a) if on such date (i) there are three (or such lesser number as otherwise agreed to by Agent) or more Pledged Investments or (ii) any Pledged Investment includes Stock issued by FL3 Holder and (1) the securities issued by FL3 LLC and FL3 Ltd that are held by FL3 Holder constitute Performing Obligations, (2) 100% of the Stock issued by FL3 Holder constitutes a Pledged Investment, (3) FL3 Holder holds 100% of the Stock issued by each of FL3 LLC and FL3 Ltd, (4) no Lien (other than Permitted Liens on the Assets of any Subsidiary of Borrower or Liens securing Debt evidenced by, or Liens permitted under, the FL3 Indenture) exists with respect to any of the Assets of any FL3 Entity, whether then owned or thereafter acquired by such FL3 Entity, or any income or profits therefrom, and (5) no FL3 Entity has any Debt outstanding other than Debt evidenced by or permitted under the FL3 Indenture (subclauses (1)-(5), collectively, the “Temporary Borrowing Base Conditions”), the Temporary Increase Borrowing Base shall be 67.33% of the Fair Market Value of the then extant Pledged Investments (including the Stock of FL3 Holder) and (b) if on any date any of the Temporary Borrowing Base Conditions are not satisfied on such date, the Temporary Increase Borrowing Base shall be $0. For the avoidance of doubt, the Fair Market Value of the Stock issued by FL3 Holder and held by Borrower shall equal the Fair Market Value of the securities issued by FL3 LLC, FL3 Ltd or any other Subsidiary of FL3 Holder, that are held by FL3 Holder

“Temporary Increase Period” means, during any calendar year, the period commencing on the date Agent’s approves Borrower’s request to increase the Maximum Revolver Amount to the Temporary Increase Revolver Amount, as provided for in Section 2.6(d), and ending on the date which is one hundred twenty (120) days after such date; provided, however, unless approved in writing by the Agent, that there shall be no more than one Temporary Increase Period during any calendar year and no Temporary Increase Period may extend beyond the Maturity Date.

“Temporary Increase Revolver Amount” means $75,000,000.Period” means any period commencing on the date of a payoff of a Pledged Investment, or any other disposition of a Pledged Investment that would cause such Investment to no longer constitute a Pledged Investment in Agent’s sole discretion, and continuing until the earlier of (i) the date a replacement Investment reasonably satisfactory to Agent becomes a Pledged Investment hereunder or (ii) the date that is 45 days after the date of the commencement of such period (as may be extended by Agent in its sole discretion).

“Term SOFR” means, for any Interest Period for a Term SOFR Loan, the greater of (a) the Term SOFR Reference Rate (rounded upward to the next one-sixteenth (1/16th) of one percent (0.0625%), if necessary) for a tenor comparable to the applicable Interest Period on the day 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 and (b) 0.35%.

“Term SOFR Activation Notice” has the meaning set forth in Section 2.6(j).

“Term SOFR Administrator” means the CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by Agent in its reasonable discretion).

“Term SOFR Loan” means each portion of the Advances bearing interest based upon Term SOFR.

“Term SOFR Reference Rate” means the rate per annum determined by Agent as the forward-looking term rate based on SOFR.

“Total Unrestricted Cash” has the meaning set forth in Section 6.5.

“UCC” means the New York Uniform Commercial Code as in effect from time to

time.

“Unmatured Event of Default” means an event, act, or occurrence which, with the

giving of notice or the passage of time, would become an Event of Default.

“U.S. Government Securities Business Day” means 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.

“Withholding Agent” means any Loan Party and Agent.

1.2 Construction. Unless the context of this Agreement clearly requires

otherwise, references to the plural include the singular and to the singular include the plural, the part includes the whole, the term “including” is not limiting, and the term “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase “and/or.” References in this

Agreement to a “determination” or “designation” include estimates by Agent (in the case of quantitative determinations or designations), and beliefs by Agent (in the case of qualitative determinations or designations). The words “hereof,” “herein,” “hereby,” “hereunder,” and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement. Article, section, subsection, clause, exhibit, and schedule references are to this Agreement unless otherwise specified. Any reference herein to this Agreement or any of the Loan Documents includes any and all alterations, amendments, restatements, changes, extensions, modifications, renewals, or supplements thereto or thereof, as applicable, made in accordance with the terms hereof or thereof. Any reference herein or in any other Loan Document to the satisfaction or repayment in full of the Obligations, any reference herein or in any other Loan Document to the Obligations being “paid in full” or “repaid in full” (except as set forth in Section 2.3(a)(v)), and any reference herein or in any other Loan Document to the action by any Person to repay the Obligations in full, shall mean the repayment in full in cash in Dollars (or cash collateralization or receipt of a backup letter of credit or other arrangements reasonably satisfactory to the Agent and the Issuing Lender in accordance with the terms hereof) of all Obligations other than contingent indemnification Obligations as to which no claim has been asserted or is anticipated and other than any Bank

Product Obligations that, at such time, are allowed by the applicable Bank Product Provider to remain outstanding and are not required to be repaid or cash collateralized pursuant to the provisions of this Agreement. All payments hereunder or any other Loan Document in respect of the Obligations shall be made in Dollars.

ARTICLE II

AMOUNT AND TERMS OF LOANS

2.1 Credit Facilities.

(a) Revolving Credit Facility.

(i) Subject to the terms and conditions of this Agreement, and during the term of this Agreement:

(A) each Lender with a Revolver Commitment agrees

(severally, not jointly or jointly and severally) to make revolving loans (“Advances”) to Borrower in Dollars in an aggregate amount at any one time outstanding not to exceed the lesser of (1) such Lender’s Pro Rata Share of the Maximum Revolver Amount less such Lender’s Pro Rata Share of the aggregate Letter of Credit Usage at such time and (2) the Borrowing Base less the aggregate Letter of Credit Usage at such time; provided that at no time shall the sum of such Lender’s aggregate Advances and such Lender’s Pro Rata Share of the aggregate Letter of Credit Usage exceed such Lender’s Revolver Commitment, and

(B) amounts borrowed pursuant to this Section 2.1 may

be repaid at any time during the term of this Agreement and, subject to the terms and conditions of this Agreement, reborrowed prior to the Maturity Date. The outstanding principal amount of the Advances, together with interest accrued thereon, shall be due and payable on the Maturity Date or, if earlier, on the date on which they are declared due and payable pursuant to the terms of this Agreement.

(ii) No Lender with a Revolver Commitment shall have an

obligation to make any Advance under the Revolving Credit Facility on or after the Maturity Date, other than Advances (if any) which are made pursuant to the provisions of Section 2.10(c) and (d) in respect of L/C Disbursements made in respect of Letters of Credit issued prior to the Maturity Date.

(iii) On the Maturity Date, the then outstanding principal

balance of all Advances shall be due and payable in full in immediately available funds. In addition, at least three (3) Business Days prior to the Maturity Date, Borrower shall either (A) provide to Agent, to be held by Agent as cash collateral, for the ratable benefit of the Issuing Lender and the Lenders, immediately available funds in an amount equal to 103% of the Letter of Credit Usage as of such date (which cash collateral shall be used solely to reimburse the Issuing Lender) or (B) make other arrangements (which may include backstop letters of credit) reasonably satisfactory to the Agent and the Issuing Lender. After the Maturity Date, upon the written request therefor by Borrower, as soon as reasonably practicable after receiving such request, Agent shall return to Borrower such amounts held as cash collateral pursuant to the preceding sentence to the extent that the aggregate amount of cash collateral held by Agent exceeds 103% of the then extant Letter of Credit Usage. If at any time after the Maturity Date, the amount of such cash collateral is less than 103% of the then extant Letter of Credit Usage, promptly upon request by Agent, Borrower shall provide additional cash collateral to Agent, to the extent of such deficiency.

(b) [Intentionally Omitted].

2.2 Rate Designation. Borrower shall designate each Loan as a LIBOR RateSOFR Loan or a Base Rate Loan in the Request for Borrowing or Request for Conversion/Continuation given to Agent in accordance with Section 2.6 or Section 2.7, as applicable. Each Base Rate Loan under the Revolving Credit Facility shall be in a minimum principal amount of $500,000 and, thereafter, in integral multiples of $100,000, unless such Advance is being made to pay any interest, fees, or expenses then due hereunder, in which case such Advance may be in the amount of such interest, fees, or expenses, and each LIBOR RateSOFR Loan under the Revolving Credit Facility shall be in a minimum principal amount of $500,000 and, thereafter, in integral multiples of $100,000.

2.3 Interest Rates; Payment of Principal and Interest.

(a) Borrower shall make each payment due hereunder by making, or

causing to be made in Dollars in immediately available funds, the amount thereof available to Agent’s Account, not later than noon (Pacific Time), on the date of payment, for the account of the Lender Group. If Borrower fails to make any such payment in Dollars in immediately available funds when due, Borrower hereby authorizes Agent to charge such interest, Letter of Credit Fees, and all other fees and expenses provided for in this Agreement or the other Loan Documents (as and when payable hereunder or under the other Loan Documents), to Borrower’s Loan Account as an Advance, and if such amounts are charged to Borrower’s Loan Account as a

an Advance, such amounts thereafter shall accrue interest at the rate then applicable to Base Rate Loans hereunder.

(i) Unless Agent receives notice from Borrower prior to the

date on which any payment is due to the Lenders that Borrower will not make such payment in full in Dollars in immediately available funds as and when required, Agent may assume that Borrower has made (or will make) such payment in full to Agent on such date in Dollars in immediately available funds and Agent may (but shall not be so required), in reliance upon such assumption, distribute to each Lender on such due date an amount equal to the amount then due such Lender. If and to the extent Borrower does not make such payment in full in Dollars in immediately available funds to Agent on the date when due, each Lender severally shall repay to Agent on demand such amount distributed to such Lender, together with interest thereon at the Defaulting Lender Rate for each day from the date such amount is distributed to such Lender until the date repaid.

(ii) Except as otherwise provided with respect to Defaulting

Lenders and except as otherwise provided in the Loan Documents (including agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and applied thereto and payments of fees and expenses (other than fees or expenses that are for Agent'’s separate account, after giving effect to any agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders in accordance with their respective Pro Rata Shares. Subject to Section 2.3(a)(iv) below, all payments shall be remitted to Agent and all such payments, and all proceeds of Collateral received by Agent, shall be applied as follows:

(A) first, to pay any fees and Lender Group Expenses

then due to Agent under the Loan Documents, until paid in full,

(B) second, to pay any fees and Lender Group Expenses

then due to the Lenders (other than Defaulting Lenders) under the Loan Documents, on a ratable basis, until paid in full,

(other than Defaulting Lenders) in respect of the Loans until paid in full,

(D) fourth, so long as no Application Event has

occurred and is continuing, to pay the principal of all Advances then due to the Lenders (other than Defaulting Lenders) until paid in full,

(E) fifth, if an Application Event has occurred and is

continuing, ratably (i) to pay the principal of all Advances then due to the Lenders (other than Defaulting Lenders) until paid in full, and (ii) to Agent, to be held by Agent, for the ratable benefit of the Issuing Lender and the Lenders, as cash collateral in an amount up to 103% of the Letter of Credit Usage until paid in full,

(F) sixth, if an Application Event has occurred and is

continuing, to pay any other Obligations (other than Obligations owed to Defaulting Lenders but including the provision of amounts to the Bank Product Providers, as cash collateral in an amount up to the amount determined by the applicable Bank Product Provider, in its Permitted Discretion, as the amount necessary to secure Borrower’s or its Subsidiaries’ Bank Product Obligations that remain outstanding), until paid in full,

(G) seventh, to pay any other Obligations owed to Lenders (other than Defaulting Lenders);

(H) eighth, to pay any Obligations owed to Defaulting Lenders until paid in full, and

(I) ninth, to Borrower (to be wired to the Designated

Account) or such other Person entitled thereto under applicable law.

(iii) Agent promptly shall distribute to each Lender, pursuant to

the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive.

(iv) In each instance, so long as no Application Event has

occurred and is continuing, Section 2.3(a)(ii) shall not apply to any payment made by Borrower to Agent and specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.

(v) For purposes of the foregoing, “paid in full” means

payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding, other than contingent indemnification Obligations as to which no claim has been asserted or is anticipated and other than any Bank Product Obligations that, at such time, are allowed by the applicable Bank Product Provider to remain outstanding and that are not required by the provisions of this Agreement to be repaid or cash collateralized.

(vi) In the event of a direct conflict between the priority

provisions of this Section 2.3 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.3 shall control and govern.

(b) Subject to Section 2.4, each Base Rate Loan shall bear interest

upon the unpaid principal balance thereof, from and including the date advanced or converted, to but excluding the date of conversion or repayment thereof, at a fluctuating rate, per annum, equal to the lesser of (i) the greater of (A) the Base Rate plus 1.00 percentage point and (B) 2.65 percentage points, and (ii) the Highest Lawful Rate. Any change in the interest rate resulting from a change in the Base Rate will become effective on the day on which each change in the Base Rate is announced by Agent. Interest due with respect to Base Rate Loans shall be due and payable, in arrears, commencing on the first Interest Payment Date following the Closing Date, and continuing on each Interest Payment Date thereafter up to and including the Interest Payment Date immediately preceding the Maturity Date, and on the Maturity Date.

shall bear interest upon the unpaid principal balance thereof, from the date advanced, converted, or continued, at a rate, per annum, equal to the lesser of (i) the greater of (A) the LIBOR Rate or the applicable SOFR-Based Rate plus 2.65 percentage points and (B) 2.653.00 percentage points, and (ii) the Highest Lawful Rate. Interest due with respect to each LIBOR Rate Loan and SOFR Loan shall be due and payable, in arrears, on each Interest Payment Date applicable to that LIBOR Rate Loan or SOFR Loan, as applicable, and on the Maturity Date. Anything to the contrary contained in this Agreement notwithstanding, Borrower may not have a total of more than 8 LIBOR Rate Loans and Term SOFR Loans outstanding at any one time.

(d) Borrower shall pay Agent (for the ratable benefit of the Lenders,

subject to any agreements between Agent and individual Lenders), a Letter of Credit fee (in addition to the charges, commissions, fees, and costs set forth in Section 2.10(f)) which shall accrue at a rate equal to 3.00% per annum times the Daily Balance of the undrawn amount of all outstanding Letters of Credit (the “Letter of Credit Fee”). The Letter of Credit Fee shall be due and payable in arrears on each Interest Payment Date.

(e) Unless prepaid in accordance with the terms hereof, the

outstanding principal balance of all Advances, together with accrued and unpaid interest thereon, shall be due and payable, in full, on the Maturity Date.

(f) [intentionally omitted]The parties acknowledge that public and private sector industry initiatives are currently underway to identify new or alternative reference rates to be used in place of the London InterBank Offered Rates referenced in the definition of Base LIBOR Rate. Each party to this agreement should consult its own advisors to stay informed of any such developments. The interest rate on the Loans may be derived from an interest rate benchmark that is, or may in the future become, the subject of regulatory reform.

(g) Any Lender by written notice to Borrower (with a copy to Agent)

may request that Loans made by it be evidenced by a promissory note. In such event, the Borrower shall execute and deliver to such Lender a promissory note, substantially in the form of Exhibit A-2 payable to such Lender (or, if requested by such Lender, to such Lender and its registered assigns). Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 9.1) be represented by one or more promissory notes in such form payable to the payee named therein (or to such payee and its registered assigns). For the avoidance of doubt, assignments of any Loans by Lenders (irrespective of whether promissory notes are issued hereunder) shall be in accordance with the provisions of Section 9.1 of this Agreement. In no event shall the delivery of a promissory note pursuant to this Section 2.3(g) constitute a condition precedent to any extension of credit hereunder.

2.4 Default Rate. Upon the occurrence and during the continuance of an

Event of Default, (a) all Loans then outstanding shall bear interest at a rate equal to the rate otherwise applicable to such Loan plus 2.0 percentage points, and (b) the Letter of Credit Fee shall

be increased to 2.0 percentage points above the per annum rate otherwise applicable thereunder. All amounts payable under this Section 2.4 shall be due and payable on demand by Agent.

2.5 Computation of Interest and Fees Maximum Interest Rate; Letter of Credit Fee.

(a) All computations of interest with respect to the Loans and

computations of the fees (including the Letter of Credit Fee) due hereunder for any period shall be calculated on the basis of a year of 360 days for the actual number of days elapsed in such period (except in the case of Base Rate Loans, which shall be 365 days (or 366 days in a leap year)). Interest shall accrue from the first day of the making of a Loan (or the date on which interest or fees or other payments are due hereunder, if applicable) to (but not including) the date of repayment of such Loan (or the date of the payment of interest or fees or other payments, if applicable) in accordance with the provisions hereof.

(b) Anything to the contrary contained in this Agreement

notwithstanding, Borrower shall not be obligated to pay, and Agent shall not be entitled to charge, collect, receive, reserve, or take interest (it being understood that interest shall be calculated as the aggregate of all charges which constitute interest under applicable law that are contracted for, charged, reserved, received, or paid) in excess of the Highest Lawful Rate. During any period of time in which the interest rates specified herein exceed the Highest Lawful Rate, interest shall accrue and be payable at such Highest Lawful Rate; provided, however, that, if the interest rate otherwise applicable hereunder declines below the Highest Lawful Rate, interest shall continue to accrue and be payable at the Highest Lawful Rate (so long as there remains any unpaid principal with respect to the Loans) until the interest that has been paid hereunder equals the amount of interest that would have been paid if interest had at all times accrued and been payable at the applicable interest rates otherwise specified in this Agreement. For purposes of this Section 2.5, the term “applicable law” shall mean that law in effect from time to time and applicable to this loan transaction which lawfully permits the charging and collection of the highest permissible, lawful, non-usurious rate of interest on such loan transaction and this Agreement, including laws of the State of New York and, to the extent controlling, laws of California or the laws of the United States of America.

2.6 Request for Borrowing.

(a) Each Base Rate Loan shall be made on a Business Day and each

LIBOR RateSOFR Loan shall be made on a Eurodollar Business Day.

(b) Each Loan or Letter of Credit that is proposed to be made after the Closing Date shall be made upon written notice, by way of a Request for Borrowing, which Request for Borrowing shall be irrevocable and shall be given by telefacsimile, mail, electronic mail (in a format bearing a copy of the signature(s) required thereon), or personal service, and delivered to Agent at 555 S. Flower Street, 24th Floor, Los Angeles, CA 90071, telefacsimile number (213) 673-9801, e-mail address brandon.feitelson@cnb.com, as follows:

(i) for a Base Rate Loan, Borrower shall give Agent notice at least one (1) Business Day prior to the date that is the requested Funding Date, and such notice shall specify that a Base Rate Loan is requested and state the amount thereof (subject to the provisions of this Article II).

(ii) for a LIBOR Rate Loan,on and after November 12, 2021, the Borrower shall give Agent notice at least three (3) Eurodollar Business Days before the date the LIBOR Rate Loan is to be made, and such notice shall specify that a LIBOR Rate Loan is requested and state the amount and Interest Period thereof (subject to the provisions of this Article II). Each Request for Borrowing shall be deemed to be ano longer be entitled to request for aadditional LIBOR Rate Loan

unless such Request for Borrowing expressly requests a Base Rate Loan. At any time that an Event of Default has occurred and is continuing, Agent may convert, and shall convert if so requested by the Required Lenders, the interest rate on all outstandingLoans, continue existing LIBOR Rate Loans to, and the rate then applicable to BaseLender Group shall be under no obligation to make or continue LIBOR Rate Loans hereunder. . In connection with each LIBOR Rate Loan, Borrower shall indemnify, defend, and hold Agent and the Lenders harmless against any loss, cost, or expense incurred by Agent or any Lender as a result of (A) the payment of any principal of any LIBOR Rate Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (B) the conversion of any LIBOR Rate Loan other than on the last day of the Interest Period applicable thereto, or (C) the failure to borrow, convert, continue or prepay any LIBOR Rate Loan on the date specified in any Request for Borrowing or Request for Conversion/Continuation delivered pursuant hereto (such losses, costs, and expenses, collectively, “Funding Losses”; provided, that, for the avoidance of doubt, Funding Losses shall not include any losses incurred under Section 2.6(f) or with respect to which Borrower is required to reimburse Agent or any Lender under any other section of this Agreement). Funding Losses shall, with respect to Agent or any Lender, be deemed to equal the amount reasonably determined by Agent or such Lender to be the excess, if any, of (I) the amount of interest that would have accrued on the principal amount of such LIBOR Rate Loan had such event not occurred, at the LIBOR Rate that would have been applicable thereto, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert, or continue, for the period that would have been the Interest Period therefor), minus (II) the amount of interest that would accrue on such principal amount for such period at the interest rate which Agent or such Lender would be offered were it to offer, at the commencement of such period, Dollar deposits of a comparable amount and period in the London interbank market. A certificate of Agent or a Lender delivered to Borrower setting forth any amount or amounts that Agent or such Lender is entitled to receive pursuant to this Section 2.6(b)(ii) shall be conclusive absent manifest error.

(iii) for a SOFR Loan, Borrower shall give Agent notice at least three (3) Business Days before the date the SOFR Loan is to be made, and such notice shall specify that a SOFR Loan is requested and state the amount and, in the case of a Term SOFR Loan, the Interest Period thereof (subject to the provisions of this Article II). Each Request for Borrowing shall be deemed to be a request for a SOFR Loan unless such Request for Borrowing expressly requests a Base Rate Loan. At any time that an Event of Default has occurred and is continuing, Agent may convert, and shall convert if so requested by the Required Lenders, the interest rate on all outstanding SOFR Loans to the rate then applicable to Base Rate Loans hereunder.

respect to a Base Rate Loan or a LIBOR RateSOFR Loan is received by Agent not later than 10

a.m. (Pacific Time), on a Business Day or Eurodollar Business Day, as applicable, such day shall be treated as the first Business Day or Eurodollar Business Day, as applicable, of the required notice period. In any other event, such notice will be treated as having been received immediately before 10 a.m. (Pacific Time), of the next Business Day or Eurodollar Business Day, as applicable, and such day shall be treated as the first Business Day or Eurodollar Business Day, as applicable, of the required notice period.

(d) To request that a Temporary Increase Period commence, Borrower shall give Agent written notice of such request, which written notice shall be irrevocable and shall be giventhe commencement of any period the Minimum Investment Condition is not satisfied by telefacsimile, mail, electronic mail (in a format bearing a copy of the signature(s) required thereon), or personal service, and delivered to Agent at 555 S. Flower Street, 24th Floor, Los Angeles, CA 90071, telefacsimile number (213) 673-9801, e-mail address brandon.feitelson@cnb.com, at least three (3) Business Days prior to the date when Borrower requests that such Temporary Increase Period commences, provided that Agent may, at its sole discretion, deny such request to commence such

Temporary Increase Period; provided further that a Temporary Increase Period may only occur once during any calendar year and may not in any event extend beyond the Maturity Datethe Minimum Investment Condition is not satisfied.

(e) Promptly after receipt of a Request for Borrowing pursuant to

Section 2.6(b), Agent shall notify the Lenders, not later than 1:00 p.m. (Pacific Time) on the Business Day immediately preceding the Funding Date applicable thereto (in the case of a Base Rate Loan), or the third Eurodollar Business Day preceding the Funding Date (in the case of a LIBOR RateSOFR Loan), by telecopy, electronic mail (in a format bearing a copy of the signature(s) required thereon), telephone, or other similar form of transmission, of the requested Loan. Each Lender shall make the amount of such Lender’s Pro Rata Share of the requested Loan available to Agent in immediately available funds, to Agent’s Account, not later than 10:00

a.m. (Pacific Time) on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such Loans, Agent shall make the proceeds thereof available to Borrower on the applicable Funding Date by transferring to the Designated Account immediately available funds equal to the proceeds that are requested by Borrower to be sent to Borrower in the applicable Request for Borrowing; provided, however, that Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Loan if Agent shall have actual knowledge that

(1) one or more of the applicable conditions precedent set forth in Article III will not be satisfied on the requested Funding Date for the applicable Loan unless such condition has been waived, or

(2) the requested Loan would exceed the Availability on such Funding Date.

(f) Unless Agent receives notice from a Lender, prior to 9:00 a.m. (Pacific Time) on the date of such Loan, that such Lender will not make available as and when required hereunder to Agent for the account of Borrower the amount of that Lender’s Pro Rata Share of the Loan, Agent may assume that each Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrower on such date a corresponding amount. If and to the extent any Lender (other than CNB) shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender’s Loan on the date of such Loan for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such Loan, at a rate per annum equal to the interest rate applicable at the time to the Loans composing such Loan, without in any way prejudicing the rights and remedies of Borrower against the Defaulting Lender. The failure of any Lender to make any Loan on any Funding Date shall not relieve any other Lender of any obligation hereunder to make a Loan on such Funding Date, but no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on any Funding Date.

(g) (i) Notwithstanding the provisions of Section 2.3(a)(ii), Agent shall

not be obligated to transfer to a Defaulting Lender any payments made by Borrower to Agent for the Defaulting Lender’s benefit or any proceeds of Collateral that would otherwise be remitted hereunder to the Defaulting Lender, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments (i) first, to Issuing Lender to the extent of the portion of any payment made by Issuing Lender pursuant to a Letter of Credit that was required to be, but was not, paid by the Defaulting Lender, (ii) second, to each other non-Defaulting Lender ratably in

accordance with their Revolver Commitments (but only to the extent that such Defaulting Lender’s Loan was funded by such other non-Defaulting Lender), (iii) third, to a suspense account maintained by Agent, the proceeds of which shall be retained by Agent and may be made available to be re-advanced to or for the benefit of Borrower (upon the request of Borrower and subject to the conditions set forth in Section 3.2) as if such Defaulting Lender had made its portion of Loans (or other funding obligations) hereunder, and (iv) fourth, from and after the date when all other Obligations have been paid in full, to such Defaulting Lender in accordance with tier (H) of Section 2.3(a)(ii). Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by Agent for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents (including the calculation of Pro Rata Share in connection therewith) and for the purpose of calculating the fee payable under Section 2.11(b), such Defaulting Lender shall be deemed not to be a “Lender” and such Lender’s Revolver Commitment shall be deemed to be zero; provided, that the foregoing shall not apply to any of the matters governed by Section 11.2(a) through (c). This Section shall remain effective with respect to such Defaulting Lender until the earlier of (y) the date on which all of the non-Defaulting Lenders, Agent, Issuing Lender, and Borrower shall have waived, in writing, the application of this Section 2.6(g) to such Defaulting Lender, or (z) the date on which such Defaulting Lender makes payment of all amounts that it was obligated to fund hereunder, pays to Agent all amounts owing by Defaulting Lender in respect of the amounts

that it was obligated to fund hereunder, and, if requested by Agent, provides adequate assurance of its ability to perform its future obligations hereunder (on which earlier date, so long as no Event of Default has occurred and is continuing, any remaining cash collateral held by Agent pursuant to Section 2.6(g)(ii) shall be released to Borrower). The operation of this Section shall not be construed to increase or otherwise affect the Revolver Commitment of any Lender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrower of its duties and obligations hereunder to Agent, Issuing Lender or to the Lenders other than such Defaulting Lender. Any failure by any Defaulting Lender to fund amounts that it was obligated to fund hereunder shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolver Commitment of such Defaulting Lender, such substitute Lender to be reasonably acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations, but including (1) all interest, fees, and other amounts that may be due and payable in respect thereof, and (2) an assumption of its Pro Rata Share of its participation in the Letters of Credit); provided, that any such assumption of the Revolver Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrower’s rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund, including Borrower’s right to require Defaulting Lender to reimburse Borrower for any fees, charges or expenses incurred by Borrower under this Section 2.3(g) as a result of the failure by any Defaulting Lender to fund amounts that it was obligated to fund hereunder. In the event of a direct conflict between the priority provisions of this Section 2.6(g) and any other provision contained in this Agreement or any other Loan Document, it is the intention of the parties hereto that such provisions be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.6(g) shall control and govern.

(ii) If any Letter of Credit is outstanding at the time that a Lender becomes a Defaulting Lender then:

(A) such Defaulting Lender’s Pro Rata Share of the Letter of Credit

Usage (“Letter of Credit Exposure”) shall be reallocated among the non-Defaulting Lenders in accordance with their respective Pro Rata Shares but only to the extent (x) the sum of all non-Defaulting Lenders’ aggregate Advances plus such Defaulting Lender’s Pro Rata Share of the aggregate Letter of Credit Usage does not exceed the total of all non-Defaulting Lenders’ Revolver Commitments and (y) the conditions set forth in Section 3.2 are satisfied at such time;

(B) if the reallocation described in clause (A) above cannot, or can

only partially, be effected, Borrower shall within one Business Day following notice by the Agent, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (A) above), pursuant to a cash collateral agreement to be entered into in form and substance reasonably satisfactory to the Agent, for so long as such

Letter of Credit Exposure is outstanding; provided, that Borrower shall not be obligated to cash collateralize any Defaulting Lender’s Letter of Credit Exposure if such Defaulting Lender is also the Issuing Lender;

Lender’s Letter of Credit Exposure pursuant to this Section 2.3(g)(ii), Borrower shall not be required to pay any Letter of Credit Fees to Agent for the account of such Defaulting Lender pursuant to Section 2.3(d) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure during the period such Letter of Credit Exposure is cash collateralized;

(D) to the extent the Letter of Credit Exposure of the

non-Defaulting Lenders is reallocated pursuant to this Section 2.3(g)(ii), then the Letter of Credit Fees payable to the non-Defaulting Lenders pursuant to Section 2.3(d) shall be adjusted in accordance with such non-Defaulting Lenders’ Letter of Credit Exposure;

(E) to the extent any Defaulting Lender’s Letter of Credit Exposure

is neither cash collateralized nor reallocated pursuant to this Section 2.3(g)(ii), then, without prejudice to any rights or remedies of the Issuing Lender or any Lender hereunder, all Letter of Credit Fees that would have otherwise been payable to such Defaulting Lender under Section 2.3(d) with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Issuing Lender until such portion of such Defaulting Lender’s Letter of Credit Exposure is cash collateralized or reallocated;

(F) so long as any Lender is a Defaulting Lender, the Issuing

Lender shall not be required to issue, amend, or increase any Letter of Credit, in each case, to the extent (x) the Defaulting Lender’s Pro Rata Share of such Letter of Credit cannot be reallocated pursuant to this Section 2.3(g)(ii) or (y) the Issuing Lender has not otherwise entered into arrangements reasonably satisfactory to the Issuing Lender and Borrower to eliminate the Issuing Lender’s risk with respect to the Defaulting Lender’s participation in Letters of Credit; and

(G) Agent may release any cash collateral provided by Borrower

pursuant to this Section 2.3(g)(ii) to the Issuing Lender and the Issuing Lender may apply any such cash collateral to the payment of such Defaulting Lender’s Pro Rata Share of any Letter of Credit Disbursement that is not reimbursed by Borrower pursuant to Section 2.10(c).

(h) All Advances shall be made by the Lenders contemporaneously

and in accordance with their Pro Rata Shares. It is understood that (i) no Lender shall be responsible for any failure by any other Lender to perform its obligation to make any Advance (or other extension of credit) hereunder, nor shall any Revolver Commitment of any Lender be increased or decreased as a result of any failure by any other Lender to perform its obligations hereunder, and (ii) no failure by any Lender to perform its obligations hereunder shall excuse any other Lender from its obligations hereunder.

(i) In the event that Borrower elects to have a portion of the proceeds

of any prepayment of the Loans invested or deposited in a Collateral Account pursuant to the provisions of Section 2.8(g)(iii), Agent may (in its discretion) apply such proceeds that are held in the Collateral Account at any time to the Loans in accordance with Section 2.8(g)(iii) so long as either (i) an Event of Default has occurred and is continuing,.

(j) Notwithstanding anything in this Agreement to the contrary, the

Lender Group shall be under no obligation to make any Term SOFR Loans hereunder, whether made in connection with a Request for Borrowing, Request for Conversion/Continuation or (ii) unless otherwise agreed by Borrower, Agent and the Lenders do not incur a Funding Loss as a result thereof (or do not require Borrower to reimburse, until such time as the Agent has provided written notice to the Borrower (which notice may made by email) that the administration of Term SOFR is administratively feasible for the Agent and that the Lender Group are able to make Term SOFR Loans on a go forward basis (such notice, the “Term SOFR Activation Notice”). The Agent shall use commercially reasonable efforts to deliver a Term SOFR Activation Notice as soon as reasonably practical once the administration of Term SOFR is administratively feasible for the Agent and that the Lenders for any such Funding Loss)Lender Group are able to make Term SOFR Loans on a go forward basis; provided however that the Lender Group shall have no liability to the Loan Parties or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any failure or delay on the part of Agent to deliver a Term SOFR Activation Notice.

2.7 Conversion or Continuation.

(a) Subject to the provisions of clause (d) of this Section 2.7 and the

provisions of Section 2.14, Borrower shall have the option to (i) convert all or any portion of the outstanding Base Rate Loans equal to $500,000, and integral multiples of $100,000 in excess of such amount, to a LIBOR RateSOFR Loan, and (ii) convert all or any portion of the outstanding LIBOR RateSOFR Loans equal to $500,000 and integral multiples of $100,000 in excess of such amount, to a Base Rate Loan, and (iii) upon the expiration of any Interest Period applicable to any of its LIBOR Rate Loans, continue all or any portion of such LIBOR Rate Loan equal to

$500,000, and integral multiples of $100,000 in excess of such amount, as a LIBOR Rate Loan, and the succeeding Interest Period of such continued Loan shall commence on the expiration date of the Interest Period previously applicable thereto; provided, however, that a LIBOR Rate Loan only may be converted or continued, as the case may be, on the expiration date of the Interest Period applicable thereto; provided further, however, that if, (A) before the expiration of an Interest Period of a LIBOR Rate Loan, Borrower fails timely to deliver the appropriate Request for Conversion/Continuation, such LIBOR Rate Loan automatically shall be continued as a LIBOR Rate Loan with an Interest Period of one (1) month and (B) if Borrower delivers a Request for Conversion/Continuation that does not specify the applicable Interest Period, such request shall be deemed to be a request for an Interest Period of one (1) month.

(b) Borrower shall by telefacsimile, mail, electronic mail (in a format

bearing a copy of the signature(s) required thereon), personal service or by telephone (which shall be confirmed by one of the other means of delivery), subject to Section 2.7(a) above, deliver a Request for Conversion/Continuation to Agent (i) no later than 10 a.m. (Pacific Time), one (1) Business Day prior to the proposed conversion date (in the case of a conversion to a Base Rate Loan), and (ii) no later than 10 a.m. (Pacific Time), three (3) Eurodollar Business Days before (in the case of a conversion to, or a continuation of, a LIBOR RateSOFR Loan). A Request for Conversion/Continuation shall specify (x) the proposed conversion or continuation date (which shall be a Business Day or a Eurodollar Business Day, as applicable), (y) the amount and type of the Loan to be converted or continued, and (z) the nature of the proposed conversion or continuation.

lieu thereof) shall be irrevocable and Borrower shall be obligated to convert or continue in accordance therewith.

(d) No Loan (or portion thereof) may be converted into, or continued

as, a LIBOR Rate Loan with an Interest Period that ends after the Maturity Date.Notwithstanding anything herein to the contrary, upon the expiration of any Interest Period applicable to a LIBOR Rate Loans, such LIBOR Rate Loans shall be converted on the expiration date of the Interest Period applicable thereto to Daily Simple SOFR Loans. After the initial conversions set forth in this Section 2.7(d), such Loans shall thereafter be subject to the other provisions of this Section 2.7.

2.8 Mandatory Repayment.

(a) The Revolver Commitments, including any commitment to issue

any Letter of Credit, shall terminate on the Maturity Date and (without limiting Borrower’s obligations to either (i) provide to Agent cash collateral in respect of the outstanding Letters of Credit or (ii) make other arrangements (which may include backstop letters of credit) reasonably satisfactory to the Agent and the Issuing Lender, at least three (3) Business Days prior to the Maturity Date or in accordance with the provisions of Section 2.1(a)(iii)) all Loans, all interest that has accrued and remains unpaid thereon, all contingent reimbursement obligations of Borrower with respect to outstanding Letters of Credit, all unpaid fees, costs, or expenses that are payable hereunder or under any other Loan Document, and all other Obligations immediately shall be due and payable in full without notice or demand (including either (i) providing cash collateral to be held by Agent in an amount equal to 103% of the Letter of Credit Usage, (ii) making other arrangements (which may include backstop letters of credit) reasonably satisfactory to the Agent and the Issuing Lender or (iii) causing the original Letters of Credit to be returned to Agent), on the Maturity Date.

(b) In the event that, at any time, the sum of the then outstanding

Revolving Credit Facility Usage and the Letter of Credit Usage exceeds the then extant amount of the Maximum Revolver Amount, then, and in each such event, promptly upon obtaining notice of such excess (and in any event within two (2) Business Days of obtaining such notice) Borrower shall repay the amount of such excess to Agent for the benefit of the Lenders.

Revolving Credit Facility Usage and the Letter of Credit Usage exceeds the then extant Borrowing Base, then, promptly (and in any event, within 1 Business Day of the occurrence of such excess), Borrower shall repay the amount of such excess to Agent for the benefit of the Lenders.

(d)

At least once during each 6 consecutive month period, Borrower

shall repay to Agent, for the benefit of the Lenders, an amount of outstanding Loans so that the outstanding principal amount of Loans shall remain at $5,000,000 or less for at least ten consecutive days thereafter; once during the term of this Agreement, at Borrower’s election upon Borrower

providing written notice to Agent, so long as no Event of Default has occurred and is continuing, such repayment shall only be required once during a consecutive nine (9) month period.

(e) Within 3 Business Days of the date of the issuance by Borrower of

any equity Securities, Borrower shall prepay the outstanding principal amount of the Obligations (as defined in the July 2014 Credit Agreement) under the July 2014 Credit Agreement in an amount equal to 100% of the net cash proceeds (net of reserves for any reasonably expected expenses) received by Borrower in connection with such issuance. Any remaining net cash proceeds from such issuance after prepaying the outstanding principal amount of such “Obligations” under the July 2014 Credit Agreement shall be applied to prepay the Obligations. The provisions of this Section 2.8(e) shall not be deemed to be implied consent to any such issuance otherwise prohibited by the terms of this Agreement.

(f) Within 3 Business Days of the date of incurrence by Borrower of

any Debt (other than Debt permitted under Section 6.1), Borrower shall prepay the outstanding principal amount of the Obligations (as defined in the July 2014 Credit Agreement) under the July 2014 Credit Agreement in an amount equal to 100% of the net cash proceeds (net of reserves for any reasonably expected expenses) received by Borrower in connection with such incurrence. Any remaining net cash proceeds from the incurrence of such Debt after prepaying the outstanding principal amount of such “Obligations” under the July 2014 Credit Agreement shall be applied to prepay the Obligations. The provisions of this Section 2.8(f) shall not be deemed to be implied consent to any such incurrence otherwise prohibited by the terms of this Agreement.

(g) All prepayments of the Loans made pursuant to this Section 2.8

shall (i) so long as no Application Event shall have occurred and be continuing, be applied ratably to the outstanding principal amount of the Loans, until paid in full, (ii) if an Application Event shall have occurred and be continuing, be applied in the manner set forth in Section 2.3(a)(ii), and (iii) so long as an Event of Default has not occurred and is not continuing, to the extent that such prepayments are to be applied to the Advances pursuant to Section 2.8(g)(i) above, be applied, first, ratably to Advances that are Base Rate Loans, until paid in full, and, second, ratably to Advances that are LIBOR Rate Loans or SOFR Loans, until paid in full; provided, however that if Borrower provides Agent with prior written notice of Borrower’s election not to apply such proceeds to the principal amount of any such LIBOR Rate Loan or SOFR Loan prior to the last date of the Interest Period with respect to such LIBOR Rate Loans or SOFR Loan, the amount which would otherwise be applied against such LIBOR Rate Loans or SOFR Loans pursuant to this Section 2.8(g)(iii) shall instead be wired to the Collateral Account described by Borrower in such notice, pending its application by Agent pursuant to the provisions of Section 2.6(i).

2.9 Voluntary Prepayments; Termination and Reduction in Commitments.

(a) Subject to the provisions of Section 2.3(a), Borrower shall have the

right, at any time and from time to time, to prepay the Loans without penalty or premium. Borrower shall give Agent written notice no later than noon (Pacific Time) on the date of such prepayment with respect to Base Rate Loans and, not less than 1 Eurodollar Business Day prior written notice of any such prepayment with respect to LIBOR Rate Loans, and not less than 1 Business Day prior written notice of any such prepayment with respect to SOFR Loans. In each case, such notice shall specify the date on which such prepayment is to be made (which shall be a Business Day or Eurodollar Business Day, as applicable), and the amount of such prepayment. Each such prepayment shall be in an aggregate minimum amount of $500,000 and shall include interest accrued on the principal amount prepaid to, but not including, the date of payment in accordance with the terms hereof (or, in each case, such lesser amount constituting the amount of all Loans then outstanding). Any voluntary prepayments of principal by Borrower of a LIBOR Rate Loan prior to the end of the applicable Interest Period shall be subject to Section 2.6(b)(ii).

(b) Borrower has the option, at any time upon 3 Business Days prior

written notice to Agent, to terminate this Agreement and terminate the Revolver Commitments hereunder without penalty or premium by paying to Agent, in cash, the Obligations (including contingent reimbursement obligations of Borrower with respect to outstanding Letters of Credit and including all Bank Product Obligations other than contingent indemnification Obligations as to which no claim has been asserted or is anticipated and other than any Bank Product Obligations that are allowed by the applicable Bank Product Provider to remain outstanding and are not required to be repaid or cash collateralized pursuant to the provisions of this Agreement) in full (including (x) either (i) providing immediately available funds to be held by Agent for the benefit of the Issuing Lender and the Lenders in an amount equal to 103% of the Letter of Credit Usage, (ii) making other arrangements (which may include backstop letters of credit) reasonably satisfactory to the Agent and the Issuing Lender or (iii) causing the original Letters of Credit to be returned to the Issuing Lender, and (y) providing immediately available funds (in an amount determined by the Bank Product Providers as sufficient to satisfy the reasonably estimated credit exposure) to be delivered to the Bank Product Providers on account of the Bank Product Obligations (other than contingent indemnification Obligations as to which no claim has been asserted or is anticipated and other than any Bank Product Obligations that are allowed by the applicable Bank Product Provider to remain outstanding and are not required to be repaid or cash collateralized pursuant to the provisions of this Agreement)); provided that the Revolver Commitments shall not be terminated if after giving effect to any concurrent prepayment of the Loans in accordance with Section 2.9(a), the aggregate amount of the Revolving Credit Facility Usage and Letter of Credit Usage would exceed the aggregate amount of the Revolver Commitments. Promptly following receipt of any notice, Agent shall advise the Lenders of the contents thereof. Each notice delivered by Borrower pursuant to this Section 2.9(b) shall be irrevocable; provided that a notice of termination of the Revolver Commitments delivered by Borrower may state that such notice is conditioned upon the effectiveness of other credit facilities, in which case such notice may be revoked by Borrower (by notice to Agent on or prior to the specified effective date) if such condition is not satisfied. If Borrower has sent a notice of termination pursuant to the provisions of this Section, then (subject to the proviso in the preceding sentence) the Revolver Commitments shall terminate and Borrower shall be obligated to repay the Obligations (including contingent reimbursement obligations of Borrower with respect to outstanding Letters of Credit and including all Bank Product Obligations other than contingent indemnification Obligations as to which no claim has been asserted or is anticipated

and other than any Bank Product Obligations that are allowed by the applicable Bank Product Provider to remain outstanding and are not required to be repaid or cash collateralized pursuant to the provisions of this Agreement) in full on the date set forth as the date of termination of this Agreement in such notice (including (X) either (I) providing immediately available funds to be held by Agent for the benefit of the Issuing Lender and the Lenders in an amount equal to 103% of the Letter of Credit Usage, (II) making other arrangements (which may include backstop letters of credit) reasonably satisfactory to the Agent and the Issuing Lender or (III) causing the original Letters of Credit to be returned to the Issuing Lender, and (Y) providing immediately available funds (in an amount determined by the Bank Product Providers as sufficient to satisfy the reasonably estimated credit exposure) to be delivered to the Bank Product Providers on account of the Bank Product Obligations (other than contingent indemnification Obligations as to which no claim has been asserted or is anticipated and other than any Bank Product Obligations that are allowed by the applicable Bank Product Provider to remain outstanding and are not required to be repaid or cash collateralized pursuant to the provisions of this Agreement). Any termination of the Revolver Commitments under this clause (b) shall be permanent.

written notice to Agent, to reduce the Revolver Commitments without penalty or premium to an amount not less than the sum of (A) the Revolving Credit Facility Usage as of such date, plus (B)

the principal amount of all Advances not yet made as to which a request has been given by Borrower under Section 2.6(b), plus (C) the amount of all Letters of Credit not yet issued as to which a request has been given by Borrower pursuant to Section 2.10(a) plus (D) the Letter of Credit Usage. Each such reduction shall be in an amount which is not less than $500,000 (unless the Revolver Commitments are being reduced to zero and the amount of the Revolver Commitments in effect immediately prior to such reduction are less than $500,000). Each notice delivered by Borrower pursuant to this Section 2.9(c) shall be irrevocable. Once reduced under this clause (c), the Revolver Commitments may not be increased. Each such reduction of the Revolver Commitments shall reduce the Revolver Commitments of each Lender proportionately in accordance with its Pro Rata Share thereof.

2.10 Letters of Credit.

(a) Subject to the terms and conditions of this Agreement (including

without limitation the provisions of Article III and this Section 2.10(a)), upon the request of Borrower made in accordance herewith not later than seven (7) days before the Maturity Date, the Issuing Lender shall issue letters of credit denominated in Dollars for the account of Borrower and, if requested by Borrower, for the benefit of one of its Affiliates (each, a “Letter of Credit”), and, subject to the provisions of Section 2.1(a)(iii), the Issuing Lender shall amend, renew or extend any Letter of Credit. Each request for the issuance of a Letter of Credit, or the amendment, renewal, or extension of any outstanding Letter of Credit, shall be made in writing by any of the individuals identified on Exhibit R-1 attached hereto (or, in certain cases, two of such individuals, all as set forth in further detail in Exhibit R-1 attached hereto) and delivered to the Issuing Lender and Agent via hand delivery, telefacsimile, or other electronic method of transmission reasonably in advance of the requested date of issuance, amendment, renewal, or extension. Each such request shall be in form and substance satisfactory to the Issuing Lender in its sole and absolute discretion and shall specify (i) the amount of such Letter of Credit, (ii) the

date of issuance, amendment, renewal, or extension of such Letter of Credit, (iii) the expiration of such Letter of Credit, (iv) the name and address of the beneficiary thereof, (v) the identity of Borrower’s Affiliate for whose benefit such Letter of Credit shall be issued in the event that Borrower requests that the issuing Lender issue a Letter of Credit for the benefit of one of its Affiliates, and (vi) such other information (including, in the case of an amendment, renewal, or extension, identification of the outstanding Letter of Credit to be so amended, renewed, or extended) as shall be necessary to prepare, amend, renew, or extend such Letter of Credit. It is hereby acknowledged that the Issuing Lender shall have no obligation to issue a Letter of Credit

(A) if, after giving effect to the issuance of such requested Letter of Credit, (1) the Letter of Credit Usage would exceed $25,000,000, (2) the Letter of Credit Usage would exceed the Maximum Revolver Amount less the amount of the Revolving Credit Facility Usage, or (3) the Letter of Credit Usage would exceed the Borrowing Base at such time less the amount of the Revolving Credit Facility Usage, (B) at any time when one or more of the Lenders is a Defaulting Lender, but only until such time as either (1) the Revolver Commitments of the Defaulting Lender or Defaulting Lenders have been assumed by a Lender that is not a Defaulting Lender, (2) the Maximum Revolver Amount has been reduced by the amount of such Defaulting Lender’s or Defaulting Lenders’ Revolver Commitments or (3) such Defaulting Lender’s Letter of Credit exposure has been cash collateralized, (C) if any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing such Letter of Credit, or any law applicable to the Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Issuing Lender with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not

otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the Issuing Lender in good faith deems material to it, or (D) if the issuance of such Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters of credit generally. Agent shall provide a report to each Lender on a quarterly basis setting forth the then current Letter of Credit Usage and Lender’s Pro Rata Share thereof.

(b) Each Letter of Credit shall have an expiry date no later than the

earlier to occur of (i) one year after the issuance or renewal of such Letter of Credit and (ii) the Maturity Date, and all Letters of Credit shall be in form and substance acceptable to the Issuing Lender in its sole and absolute discretion. Notwithstanding the foregoing, to the extent Borrower so requests with respect to any new Letter of Credit issued hereunder, the Issuing Lender agrees to issue a Letter of Credit that has automatic renewal provisions (each, an “Auto-Renewal Letter of Credit”). Unless otherwise directed by the Issuing Lender, Borrower shall not be required to make a specific request to the Issuing Lender for any such renewal. Once an Auto-Renewal Letter of Credit has been issued, each Lender with a Revolver Commitment shall be deemed to have authorized the Issuing Lender to permit the renewal of such Letter of Credit at any time prior to an expiry date not later than the Maturity Date (subject to the cash collateral requirement of Section 2.1(a)(iii)); provided that the Issuing Lender shall not permit any such renewal if (x) the Issuing Lender has determined in its reasonable discretion that it would have no obligation at such time to issue such Letter of Credit in its renewed form under Section 2.10(a), or (y) it has

received notice on or before the day that is seven Business Days before the renewal date from Agent, any Lender or Borrower that one or more of the applicable conditions specified in Section

3.2 (other than 3.2(d)) are not then satisfied. The foregoing to the contrary notwithstanding, any change to the face amount of any Letter of Credit shall only be made pursuant to an amendment thereto in accordance with the provisions of this Agreement, and in no event shall Agent or the Issuing Lender issue a Letter of Credit which provides for an automatic increase, automatic decrease or other automatic change to the face amount of any Letter of Credit.

of Credit, Borrower shall reimburse such L/C Disbursement to the Issuing Lender by paying to Agent an amount equal to such L/C Disbursement not later than 1:00 p.m. (Pacific Time) on the date that such L/C Disbursement is made, if Borrower shall have received written or telephonic notice of such L/C Disbursement prior to 9:00 a.m. (Pacific Time) on such date, or, if such notice has not been received by Borrower prior to 9:00 a.m. (Pacific Time) on such date, then not later than 1:00 p.m. (Pacific Time) on the Business Day immediately following the day that Borrower receives such notice. Such reimbursement shall be made in Dollars. In the absence of such reimbursement, the L/C Disbursement immediately and automatically shall be deemed to be an Advance hereunder and, thereafter, shall bear interest at the rate then applicable to Advances that are Base Rate Loans under Section 2.3. To the extent an L/C Disbursement is deemed to be an Advance hereunder, Borrower’s obligation to reimburse such L/C Disbursement shall be discharged and replaced by the resulting Advance. To the extent Borrower has provided to Agent cash or Cash Equivalents to cash collateralize outstanding Letters of Credit pursuant to the provisions of this Agreement, and if no other reimbursement obligation for a separate L/C Disbursement exists, then Agent may utilize the cash collateral to reimburse the Issuing Lender for such L/C Disbursement. Promptly following receipt by Agent of any payment from Borrower pursuant to this paragraph, Agent shall distribute such payment to the Issuing Lender or, to the extent that Lenders have made payments pursuant to Section 2.10(d) to reimburse the Issuing Lender, then to such Lenders and the Issuing Lender as their interests may appear.

(d) Promptly following receipt of a notice of L/C Disbursement

pursuant to Section 2.10(c) which is deemed to be an Advance hereunder, each Lender agrees to fund in Dollars in immediately available funds its Pro Rata Share of any Advance deemed made pursuant to the foregoing subsection on the same terms and conditions as if Borrower had requested such Advance and Agent shall promptly pay to the Issuing Lender the amounts so received by it from the Lenders. By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Lender or the Lenders, the Issuing Lender shall be deemed to have granted to each Lender, and each Lender shall be deemed to have purchased, a participation in each Letter of Credit, in an amount equal to its Pro Rata Share of the Risk Participation Liability of such Letter of Credit, and each such Lender agrees to pay to Agent in Dollars in immediately available funds, for the account of the Issuing Lender, such Lender’s Pro Rata Share of any payments made by the Issuing Lender under such Letter of Credit. In consideration and in furtherance of the foregoing, each Lender hereby absolutely and unconditionally agrees to pay to Agent in Dollars in immediately available funds, for the account of the Issuing Lender, such Lender’s Pro Rata Share of each L/C Disbursement made by the Issuing Lender and not reimbursed by Borrower on the date due as provided in clause (c) above, or of any reimbursement payment required to be refunded to Borrower for any reason. Each Lender acknowledges and agrees that its obligation to

deliver to Agent, for the account of the Issuing Lender, an amount in Dollars in immediately available funds equal to its respective Pro Rata Share of each L/C Disbursement made by the Issuing Lender pursuant to this Section 2.10(d) shall be absolute and unconditional and such remittance shall be made notwithstanding the occurrence or continuation of an Event of Default or Default or the failure to satisfy any condition set forth in Article III hereof. If any such Lender fails to make available to Agent the amount of such Lender’s Pro Rata Share of each L/C Disbursement made by the Issuing Lender in respect of such Letter of Credit as provided in this Section, (i) such Lender shall be deemed to be a Defaulting Lender, (ii) Agent (for the account of the Issuing Lender) shall be entitled to recover such amount on demand from such Lender together with interest thereon at the Defaulting Lender Rate until paid in full, and (iii) Agent shall be authorized by Borrower and each Lender to request that the Lenders fund an additional Advance equal to such Defaulting Lender’s Pro Rata Share of such L/C Disbursement (subject in any event to the limitation set forth in the proviso in Section 2.1(a)(i)(A)).

(e) Borrower hereby agrees to indemnify, save, defend, and hold the

Lender Group harmless from any loss, cost, expense, or liability, and reasonable attorneys fees incurred by the Lender Group arising out of or in connection with any Letter of Credit; provided, however, that Borrower shall not be obligated hereunder to indemnify for any loss, cost, expense, or liability to the extent that it is found in a final non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, willful misconduct or violation of the express terms of this Agreement by the Issuing Lender or any other member of the Lender Group. The indemnity set forth above is in addition to any other indemnity set forth in this Agreement or in any other Loan Document (including the indemnities by Borrower set forth in Section 8.2 hereof), and shall not be deemed to limit the provisions of any other indemnity or any other similar provision set forth herein or therein. Borrower agrees to be bound by the Issuing Lender’s good faith interpretations of any Letter of Credit issued by the Issuing Lender to or for Borrower’s account, even though this interpretation may be different from Borrower’s own, and Borrower understands and agrees that the Lender Group shall not be liable for any error, negligence, or mistake, whether of omission or commission, in following Borrower’s instructions or those contained in the Letter of Credit or any modifications, amendments, or supplements thereto. Borrower hereby acknowledges and agrees that neither the Lender Group nor the Issuing Lender shall be responsible for delays, errors, or omissions resulting from the malfunction of equipment in connection with any Letter of Credit.

(f) Any and all charges, commissions, fees, and costs incurred by the

Issuing Lender relating to Letters of Credit shall be Lender Group Expenses for purposes of this Agreement and immediately shall be reimbursable by Borrower to Agent for the account of the Issuing Lender; it being acknowledged and agreed by Borrower that the issuance charge imposed by the Issuing Lender is fixed at 0.125% per annum times the undrawn amount of each Letter of Credit, which shall in no event be less than a minimum of $500 and no greater than a maximum of $1,500, and that the Issuing Lender also imposes a schedule of charges for amendments, extensions, drawings, and renewals, which shall be no more than the rates therefor that have been most recently published by CNB.

(g) If by reason of (i) any change after the Closing Date in any

applicable law, treaty, rule, or regulation or any change in the interpretation or application thereof by any Governmental Authority, or (ii) compliance by the Lender Group with any direction,

request, or requirement (irrespective of whether having the force of law) of any Governmental Authority or monetary authority including, Regulation D of the Federal Reserve Board as from time to time in effect (and any successor thereto):

(x) any reserve, deposit, or similar requirement is or shall be imposed or modified in respect of any Letter of Credit issued hereunder, or

(y) there shall be imposed on the Lender Group any other condition regarding any Letter of Credit issued pursuant hereto, and the result of the foregoing is to increase, directly or indirectly, the cost to the Lender Group of issuing, making, guaranteeing, or maintaining any Letter of Credit or to reduce the amount receivable in respect thereof by the Lender Group, then, and in any such case, Agent may, at any time within a reasonable period after the additional cost is incurred or the amount received is reduced, notify Borrower, and Borrower shall pay on demand such amounts as Agent may specify to be necessary to compensate the Lender Group for such additional cost or reduced receipt, together with interest on such amount from the date of such demand until payment in full thereof at the rate then applicable to Base Rate Loans hereunder. The determination by Agent of any amount due pursuant to this Section, as set forth in a certificate setting forth the calculation thereof in reasonable detail, shall, in the absence of manifest or demonstrable error, be final and conclusive and binding on all of the parties hereto.

For the avoidance of doubt, Sections 2.10(e)-(g) shall not apply to Taxes, which shall be governed by Section 10.11.

2.11 Fees.

(a) Unused Line Fee. An unused line fee shall be due and payable quarterly in arrears on the first day of each fiscal quarter in an amount equal to 0.375% per annum times the result of (i) $50,000,00075,000,000, less (ii) the sum of (A) the average Daily Balance of Advances that were outstanding during the immediately preceding fiscal quarter, plus (B) the average Daily Balance of the Letter of Credit Usage during the immediately preceding fiscal quarter; provided that no unused line fee shall be due and payable if the average Daily Balance of Advances that were outstanding during the immediately preceding fiscal quarter was greater than 75% of the Maximum Revolver Amount. Notwithstanding the foregoing, no unused line fee shall accrue or be payable with respect to the unused Revolver Commitments of any Defaulting Lender for the period for which it is a Defaulting Lender.

(b) Fee Letter Fees. Borrower shall pay to Agent, as and when due and

payable under the terms of the Fee Letter, the fees set forth in the Fee Letter.

2.12 Maintenance of Loan Account; Statements of Obligations. Agent shall

maintain an account on its books in the name of Borrower (the “Loan Account”) on which Borrower will be charged with all Loans made by the Lenders (or Agent on behalf thereof) to Borrower or for Borrower’s account and all interest, fees, and expenses (in each case, as and when payable hereunder or under the other Loan Documents (which shall exclude Bank Product Obligations)). Agent shall render statements regarding the Loan Account to Borrower, including principal, interest, fees, and including an itemization of all expenses owing, and, subject to the entries in the Register, which shall be controlling absent manifest error, such statements shall be conclusively presumed to be correct and accurate (absent manifest error) and constitute an account stated between Borrower and Agent unless, within 90 days after receipt thereof by Borrower, Borrower shall deliver to Agent written objection thereto describing the error or errors contained in any such statements.

2.13 Increased Costs. If after the Closing Date, the adoption of, or any change

in, any applicable law, rule, or regulation, or any change in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof, or compliance by Agent or the Lenders (or their Affiliates) with any request, guideline, or directive (irrespective of whether having the force of law) of any Governmental Authority (a “Regulatory Change”) shall impose, modify, or deem applicable any reserve, special deposit, or similar requirement (including any such requirement imposed by the Federal Reserve Board, but excluding with respect to any LIBOR Rate Loan any such requirement included in the calculation of the LIBOR Rate, as applicable) against Assets of, deposits with, or for the account of, or credit extended by, Agent or the Lenders (or their Affiliates) or shall impose on Agent or the Lenders (or their Affiliates) or the interbank eurodollar market or any other condition affecting its LIBOR Rate Loans or its SOFR Loans, as applicable, or its obligation to make LIBOR Rate Loan or SOFR Loans, as applicable, then, Agent may, by written notice given to Borrower, require Borrower to pay to the Lender Group such additional amounts as shall compensate the Lender Group for any such increased cost, reduction, loss, or expense actually incurred by the Lender Group in connection with the Loans for the 90 day period preceding the date on which such notice is given and during each fiscal quarter thereafter. Any such request for compensation by Agent under this Section 2.13 shall set forth the basis of calculation thereof and shall, in the absence of manifest error, be conclusive and binding for all purposes. Notwithstanding anything to the contrary herein, (a) the Dodd–Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines and directives relating thereto or issued in connection therewith, all interpretations and applications thereof, and (b) all requests, rules, guidelines and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, and in each case pursuant to Basel III, for the purposes of this Agreement be deemed to be adopted subsequent to the date hereof regardless of the dated enacted, adopted or issued.

2.14 Suspension of LIBOR Rate/SOFR Loans.

(a) If Agent, on any Eurodollar Business Day, is unable to determine

the Base LIBOR Rate applicable for a new, continued, or converted LIBOR Rate Loan for any reason, or any law, regulation, or governmental order, rule or determination, makes it unlawful for any Lender to make a LIBOR Rate Loan, Agent shall give notice of such changed circumstances to Administrative Borrower’s right to select and (i) all LIBOR Rate Loans willshall be suspended until Agent is again able to determine the Base LIBOR Rate or such Lender is able to make LIBOR Rate Loans, as the case may be. During such suspension, new Loans, outstanding Base Rate Loans, and LIBOR Rate Loans whose Interest Periods terminate may only be Base Rate Loans. Any such determination shall, in the absence of manifest error, be conclusive and binding for all purposes.immediately converted to Base Rate Loans.

(b) If Agent, on any Business Day, is unable to determine the SOFR-Based Rate applicable for a new or converted SOFR Loan for any reason, or any law, regulation, or governmental order, rule or determination, makes it unlawful for any Lender to fund or maintain such Loan or to continue such funding or maintaining, Agent shall give notice of such changed circumstances to Administrative Borrower and (i) all SOFR Loans shall be immediately converted to Base Rate Loans, and (ii) no Borrower shall be entitled to elect the applicable SOFR-Based Rate (whether at the time when the applicable Loan was made, upon conversion from a Base Rate Loan to such Loan, or upon continuation of such Loan) until Agent determines that it would no longer be unable, unlawful or impractical to do so.

applicable SOFR-Based Rate in respect of a Loan will not adequately reflect the cost to Agent and the Lenders of making, maintaining or continuing such Loan, (i) all SOFR Loans shall be immediately converted to Base Rate Loans, and (ii) Borrowers shall not be entitled to elect the applicable SOFR-Based Rate (whether at the time when the applicable Loan was made, upon conversion from a Base Rate Loan to such Loan) until Agent determines that the circumstances causing such suspension no longer exist.

2.15 Funding Sources. Nothing herein shall be deemed to obligate the Lenders

(or Agent on behalf thereof) to obtain the funds to make any Loan in any particular place or manner and nothing herein shall be deemed to constitute a representation by Agent or any Lender that it has obtained or will obtain such funds in any particular place or manner.

2.16 Place of Loans. All Loans made hereunder shall be disbursed by credit to

(a) with respect to Loans that are requested by Borrower to be sent to Borrower in the applicable Request for Borrowing, to the Designated Account, or (b) as may otherwise be agreed to between Borrower and Agent.

2.17 Survivability. Borrower’s obligations under Section 2.13 hereof shall

survive repayment of the Loans made hereunder and termination of the Revolver Commitments for a period of 90 days after such repayment and termination.

2.18 [Intentionally Omitted.] Benchmark Replacement Setting.

(a) Notwithstanding anything to the contrary herein or in any other

Loan Document (including Section 2.14), upon the occurrence of a Benchmark Transition Event, Agent may at any time thereafter amend this Agreement to replace the then current Benchmark with an alternate benchmark rate selected by Agent, together with any spread or other adjustment to be applied to such alternate benchmark rate (including any mathematical or other adjustments to the benchmark), giving due consideration to any evolving or then existing convention for determining a rate of interest as a replacement to such current Benchmark for U.S. dollar denominated syndicated Agent-originated loans in the U.S. market (the “Benchmark Replacement”) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to this Agreement or any other Loan Document, or further action or consent of the Borrowers, so long as the Agent has not received, by such time, written notice of objection to such Benchmark Replacement from the Lenders comprising the Required Lenders or the Borrower; provided that upon Agent’s receipt of any such notice of objection hereunder, (i) all Loans that bear interest by reference to such Benchmark shall be immediately converted to Base Rate Loans and (ii) the Borrower shall not be entitled to elect such Benchmark (whether at the time when the applicable Loan is made, or upon conversion or the continuation of a Loan) and such Benchmark shall be unavailable until such time as a Benchmark Replacement has occurred, whether pursuant to this Section 2.18(a) or mutual consent pursuant to Section 11.2. During the period referenced in the foregoing sentence, the component of Base Rate based upon the Benchmark will not be used in any

determination of Base Rate. If the Benchmark Replacement as so determined would be less than 0.35%, the Benchmark Replacement will be deemed to be 0.35% for the purposes of this Agreement. Any such amendment will become effective at 5:00 p.m. Pacific Time on the effective date specified in such amendment (such date, the “Benchmark Replacement Date”).

(b) As used in this Section 2.18: (i) “Benchmark” means, initially, with respect to any SOFR Loan, the SOFR-Based Rate upon which such SOFR Loan is based; provided that if a Benchmark Replacement Date has occurred with respect to any such SOFR-Based Rate or any then current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has become effective pursuant to this Section 2.18; and (ii) “Benchmark Transition Event” means the occurrence of one or more of the following events with respect to a then current Benchmark: (A) a public statement or publication of information by or on behalf of the administrator of the Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide such Benchmark (or such component thereof), permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide such Benchmark (or such component thereof); (B) a public statement or publication of information by a governmental authority having jurisdiction over Agent, the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, 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 such Benchmark (or such component thereof) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide such Benchmark (or such component thereof); (C) a public statement or publication of information by a governmental authority having jurisdiction over Agent or the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such Benchmark is no longer, or as of a specified future date will no longer be, representative or is not in compliance or aligned, or as a specified future date will be in compliance or aligned, with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks; (D) the circumstances set forth in Section 2.14 have arisen and such circumstances are unlikely to be temporary; or (E) Agent has determined that U.S. dollar denominated syndicated loans in the U.S. market are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace the then current Benchmark.

Replacement, Agent will have the right from time to time to make Conforming Changes. Agent will promptly notify Administrative Borrower and the Lenders of the implementation of any Conforming Changes.

(d) Any determination, decision or election that may be made by Agent

pursuant to this Section 2.18, 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, will be conclusive and binding absent manifest error and may be made in Agent’s sole discretion and without consent from any Borrower, except, in each case, as expressly required pursuant to this Section 2.18.

(e) Notwithstanding anything to the contrary herein or in any other

Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then current Benchmark is a term rate and either (A) the 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 Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that the tenor for such Benchmark is or will be no longer representative, or is not or will no longer be in compliance or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks, then Agent may modify the definition of “Interest Period” (or any similar or analogous definition, if any) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if the tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then Agent may modify the definition of “Interest Period” (or any similar or analogous definition, if any) for all Benchmark settings at or after such time to reinstate such previously removed tenor.

2.19 Mitigation of Obligations. If any Lender or the Issuing Lender requests

compensation under Section 2.10(g) or Section 2.13, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 10.11, then such Lender or the Issuing Lender shall use reasonable efforts to promptly designate a different one of its lending offices or to assign its rights and obligations hereunder to another of its offices or branches, if (i) in the reasonable judgment of such Lender or the Issuing Lender, such designation or assignment would eliminate or reduce amounts payable pursuant to Sections 2.10(g), 2.13, or 10.11, as applicable, and (ii) in the reasonable judgment of such Lender or the Issuing Lender, such designation or assignment would not subject such Lender or the Issuing Lender to any material unreimbursed cost or expense and would not otherwise be materially disadvantageous to such Lender or the Issuing Lender. Borrower hereby agrees to pay all reasonable and documented out-of-pocket costs and expenses incurred by any Lender or the Issuing Lender in connection with any such designation or assignment.

2.20 Rates Disclaimer. Agent does not warrant or accept responsibility for, and

shall not have any liability with respect to (a) the administration of, submission of, calculation of or any other matter related to any SOFR-Based Rate, any component definition thereof or rates referenced in the definition thereof or any alternative, comparable or successor rate thereto (including any then-current Benchmark or any Benchmark Replacement), including whether the composition or characteristics of any such alternative, comparable or successor rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, any SOFR-Based Rate or any other Benchmark, or (b) the effect, implementation or composition of any Conforming Changes. Agent may select information sources or services in its reasonable discretion to ascertain any SOFR-Based Rate or any component thereof or any other Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to the Loan Parties or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service. In connection with the use or administration of any SOFR-Based Rate, 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 will become effective without any further action or consent of any other party to this Agreement or any other Loan Document. Agent will promptly notify Borrower of the effectiveness of any Conforming Changes.

ARTICLE III

CONDITIONS TO LOANS

3.1 Conditions Precedent to the Initial Extension of Credit. The obligation of

each Lender to make its initial extension of credit hereunder is, in addition to the conditions set forth in Section 3.2 hereof, subject to the fulfillment, to the reasonable satisfaction of Agent and each Lender and its counsel, of each of the following conditions on or before the Closing Date:

(a) Borrower shall have executed and delivered to Agent the

Disclosure Statement required under this Agreement. The form and content of the Disclosure Statement shall be reasonably satisfactory to Agent;

(b) Agent shall have received this Agreement, the Fee Letter, the

Guaranty, the Security Agreement, the Intercompany Subordination Agreement and each other Loan Document not previously delivered to it, each duly executed and delivered by each party thereto (other than Agent or any Lender), each in form and substance reasonably satisfactory to Agent;

this Agreement, of counsel to Borrower, with respect to this Agreement, which written opinions shall be in form and substance reasonably satisfactory to Agent and its counsel;

(d) Agent shall have received certified copies of all effective financing

statements, if any, which name as debtor Borrower, in each case, none of which statements shall evidence Liens other than Permitted Liens;

(e) Agent shall have received a certificate of status with respect to

each Loan Party dated within 30 days of the date of this Agreement, or confirmed by telefacsimile, if telefacsimile confirmation is available, such certificate to be issued by the Secretary of State of the jurisdiction of organization of each Loan Party, which certificate shall indicate that such Loan Party is in good standing in such State;

(f) Agent shall have received certificates of status with respect to each

Loan Party, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Loan Party) in which such Loan Party’s failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Loan Party is in good standing or duly qualified in such jurisdictions;

(g) Agent shall have received a copy of each Loan Party’s Governing

Documents, certified by a Responsible Officer with respect to such Loan Party;

(h) Agent shall have received a copy of the resolutions or the

unanimous written consent with respect to each Loan Party, certified as of the Closing Date by a Responsible Officer of such Loan Party, authorizing (A) the transactions contemplated by the Loan Documents to which such Loan Party is or will be a party, and (B) the execution, delivery and performance by such Loan Party of each Loan Document to which such Loan Party is or will be a party and the execution and delivery of the other documents to be delivered by such Loan Party in connection herewith and therewith;

(i) Agent shall have received a signature and incumbency certificate

of the Responsible Officer with respect to Borrower executing this Agreement, the Fee Letter, the Security Agreement, and the other Loan Documents not previously delivered to Agent to which Borrower is a party, certified by a Responsible Officer with respect to Borrower;

(j) Agent shall have received a signature and incumbency certificate

of the Responsible Officer with respect to Guarantor executing the Guaranty and the other Loan Documents not previously delivered to Agent to which Guarantor is a party, certified by a Responsible Officer with respect to Guarantor;

(k) Borrower shall have paid all fees due on the Closing Date pursuant to the Fee Letter;

(l) Agent shall have received a certificate executed by a Responsible

Officer with respect to each Loan Party to the effect that such Loan Party has obtained all orders, consents, approvals, and other authorizations and has made all filings and other notifications (governmental or otherwise) required in connection with the Loan Documents, other than orders, consents, approvals, authorizations, filings or notifications the failure to obtain or make, as applicable, which could not reasonably be expected to have a Material Adverse Effect on the Loan Parties, taken as a whole;

(m) Agent shall have received a certificate executed by a Responsible

Officer with respect to each Loan Party to the effect that no litigation, inquiry, other action or proceeding (governmental or otherwise), or injunction or other restraining order shall be pending or overtly threatened that could reasonably be expected to have: (i) a material adverse effect on the ability of the Loan Parties, taken as a whole, to repay the Loans and the Letters of Credit, or

(ii) a Material Adverse Effect on the Loan Parties, taken as a whole; and

(n) all other documents and legal matters in connection with the

transactions contemplated by this Agreement shall have been delivered or executed or recorded and shall be in form and substance reasonably satisfactory to Agent and its counsel.

3.2 Conditions Precedent to All Extensions of Credit. The obligation of the

Lender Group (or any member thereof) to make any Advance hereunder (or to extend any other credit hereunder) is subject to the fulfillment, at or prior to the time of the making of such extension of credit, of each of the following conditions:

(a) the representations and warranties of Borrower contained in this

Agreement and the other Loan Documents shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representation or warranty to the extent that such representation or warranty is qualified or modified by materiality) on and as of the date of such extension of credit as though made on and as of such date (except to the extent that such representations and warranties solely relate to an earlier date);

(b) no Event of Default or Unmatured Event of Default shall have

occurred and be continuing on the date of such extension of credit, nor shall either result from the making of such extension of credit;

pursuant to the terms of Section 2.6 hereof;

(d) the proceeds of such extension of credit shall have been, and shall

be (after giving effect to such requested extension of credit), used to (i) fund certain fees, costs and expenses incurred in connection with this Agreement and the other Loan Documents, (ii) finance Investments by Borrower, and (iii) finance general working capital needs and other corporate purposes of the Borrower; and

(e) solely in the case of the first extension of credit hereunder, all

Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement for which the Borrower received an invoice at least 2 Business Days prior to the date of such extension of credit.

3.3 Maturity Date. This Agreement shall continue in full force and effect for a

term ending on the earlier of (the “Initial Maturity Date”): (a) March 1110, 20202022, and (b) such earlier date on which the Loans shall become due and payable in accordance with the terms of this Agreement and the other Loan Documents; provided, however, that to the extent no Event of Default or Unmatured Event of Default has occurred and is continuing at any time on or after December 31, 20192021, Borrower shall have the option at any time prior to the Initial Maturity Date (the “One Year Extension Option”) to extend the term of this Agreement for a one (1) year period beyond the Initial Maturity Date (the “Extended Maturity Date”) to March 10, 20212023,

so long as Borrower (i) pays any and all fees that are required to be paid in connection therewith pursuant to the terms of the Fee Letter, and (ii) provides written notice to Agent of the exercise by Borrower of the One Year Extension Option; provided further that in the case that Borrower exercises the One Year Extension Option in accordance with the terms of this Section 3.3, and to the extent no Event of Default or Unmatured Event of Default has occurred and is continuing at any time on or after December 31, 2020, 2022, Borrower shall have the option at any time prior to the Extended Maturity Date (the “Second One Year Extension Option”) to extend the term of this Agreement for a one (1) year period beyond the First Extended Maturity Date (the “Second Extended Maturity Date”) to March 1011, 2022, 2024, so long as Borrower (i) pays any and all fees that are required to be paid in connection therewith pursuant to the terms of the Fee Letter, and (ii) provides written notice to Agent of the exercise by Borrower of the Second One Year Extension Option.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF BORROWER

Borrower makes the following representations and warranties which, except as set forth in the Disclosure Statement with a specific reference to the Section of this Article IV affected thereby, shall be true, correct, and complete in all material respects (except that such materiality qualifier shall not be applicable to any representation or warranty to the extent that such representation or warranty is qualified or modified by materiality), as of the Closing Date, on and as of the date of each Loan, and on and as of the date of each issuance of, renewal of, or amendment to any Letter of Credit (other than technical amendments to any Letter of Credit that do not change the maturity date thereof, the face amount thereof, the amount of any fees or other charges with respect thereto, or any other material term set forth therein), as though made on and as of the date of the making of such Loan or on and as of the date of such issuance of, renewal of, or amendment to any Letter of Credit (other than technical amendments to any Letter of Credit that do not change the maturity date thereof, the face amount thereof, the amount of any fees or other charges with respect thereto, or any other material term set forth therein) (except to the extent that such representations and warranties relate solely to an earlier date) and such representations and warranties shall survive the execution and delivery of this Agreement and the making of the Loans and the issuance of the Letters of Credit:

4.1 Due Organization. Borrower is a duly organized and validly existing

limited liability company in good standing under the laws of the State of Delaware and is duly qualified to conduct business in all jurisdictions where its failure to do so could reasonably be expected to have a Material Adverse Effect on Borrower.

4.2 Interests in Borrower.

(a) As of the Closing Date, all of the equity interests in Borrower are

owned by the Persons identified in the Disclosure Statement.

(b) Borrower may amend the Disclosure Statement with respect to this

Section 4.2 to reflect changes that would not, individually or in the aggregate, result in a Change of Control Event.

4.3 Requisite Power and Authorization. Borrower has all requisite limited

liability company power to execute and deliver this Agreement and the other Loan Documents to which it is a party, and to borrow the sums provided for in this Agreement. Borrower has all governmental licenses, authorizations, consents, and approvals necessary to own and operate its Assets and to carry on its businesses as now conducted and as proposed to be conducted, other than licenses, authorizations, consents, and approvals that are not currently required or the failure to obtain which could not reasonably be expected to have a Material Adverse Effect on the Loan Parties, taken as a whole. The execution, delivery, and performance of this Agreement and the other Loan Documents have been duly authorized by Borrower and all necessary limited liability company action in respect thereof has been taken, and the execution, delivery, and performance thereof do not require any consent or approval of any other Person that has not been obtained (except for such consents or approvals as could not reasonably be expected to have a Material Adverse Effect on the Loan Parties, taken as a whole).

4.4 Binding Agreements. This Agreement and the other Loan Documents to

which Borrower is a party, when executed and delivered by Borrower, will constitute the legal, valid, and binding obligations of Borrower, enforceable against Borrower in accordance with their terms except as the enforceability hereof or thereof may be affected by: (a) bankruptcy, insolvency, reorganization, moratorium, or other similar laws affecting the enforcement of creditors’ rights generally, and (b) equitable principles of general applicability (whether considered in a proceeding in equity or law).

4.5 Other Agreements. The execution, delivery, and performance by

Borrower of this Agreement and the other Loan Documents to which it is a party, and the execution, delivery and performance by Guarantor of the Loan Documents to which it is a party, do not and will not: (a) violate (i) any provision of any federal (including the Exchange Act), state, or local law, rule, or regulation (including Regulations T, U, and X of the Federal Reserve Board) binding on any Loan Party, (ii) any order of any domestic Governmental Authority, court, arbitration board, or tribunal binding on any Loan Party, or (iii) the Governing Documents of any Loan Party, or (b) contravene any provisions of, result in a breach of, constitute (with the giving of notice or the lapse of time) a default under, or result in the creation of any Lien (other than a Permitted Lien) upon any of the Assets of any Loan Party pursuant to, any Contractual Obligation of any Loan Party, or (c) require termination of any Contractual Obligation of any Loan Party, or (d) constitute a tortious interference with any Contractual Obligation of any Loan Party, in each case, except as could not reasonably be expected to have a Material Adverse Effect on the Loan Parties, taken as a whole.

4.6 Litigation: Adverse Facts.

(a) There is no action, suit, proceeding, or arbitration (irrespective of

whether purportedly on behalf of any Loan Party) at law or in equity, or before or by any federal, state, municipal, or other governmental department, commission, board, bureau, agency, or

instrumentality, domestic or foreign, pending or, to the actual knowledge of Borrower, threatened in writing against or affecting any Loan Party, that could reasonably be expected to have a Material Adverse Effect on the Loan Parties, taken as a whole, or could reasonably be expected to materially and adversely affect such Person’s ability to perform its obligations under the Loan

Documents to which it is a party (including Borrower’s ability to repay any or all of the Loans when due);

(b) None of the Loan Parties is: (i) in violation of any applicable law in

a manner that could reasonably be expected to have a Material Adverse Effect on the Loan Parties, taken as a whole, or (ii) subject to or in default with respect to any final judgment, writ, injunction, decree, rule, or regulation of any court or of any federal, state, municipal, or other governmental department, commission, board, bureau, agency, or instrumentality, domestic or foreign, in a manner that could reasonably be expected to have a Material Adverse Effect on the Loan Parties, taken as a whole, or could reasonably be expected to materially and adversely affect such Person’s ability to perform its obligations under the Loan Documents to which it is a party (including Borrower’s ability to repay any or all of the Loans when due); and

knowledge, investigation pending or, to the best of Borrower’s knowledge, threatened in writing against or affecting any Loan Party that questions the validity or the enforceability of this Agreement or other the Loan Documents, and (ii) there is no action, suit, or proceeding pending against or affecting any Loan Party pursuant to which, on the date of the making of any Loan hereunder or on the date of each issuance of, renewal of, or amendment to any Letter of Credit (other than technical amendments to any Letter of Credit that do not change the maturity date thereof, the face amount thereof, the amount of any fees or other charges with respect thereto, or any other material term set forth therein), there is not in effect a binding injunction that could reasonably be expected to materially and adversely affect the validity or enforceability of this Agreement or the other Loan Documents.

4.7 Government Consents. Other than such as may have previously been

obtained, filed, or given, as applicable, no consent, license, permit, approval, or authorization of, exemption by, notice to, report to or registration, filing, or declaration with, any Governmental Authority is required in connection with the execution, delivery, and performance by the Loan Parties of the Loan Documents to which they are a party, in each case, except as could not reasonably be expected to have a Material Adverse Effect on the Loan Parties, taken as a whole.

4.8 Title to Assets; Liens. Except for Permitted Liens, all of the Collateral and

equity Securities issued by the Loan Parties’ Subsidiaries held by the Loan Parties are free from all Liens of any nature whatsoever. Except for Permitted Liens, the Loan Parties have good and sufficient title to all of their Collateral and equity Securities issued by the Loan Parties’ Subsidiaries held by the Loan Parties. Neither this Agreement, nor any of the other Loan Documents, nor any transaction contemplated under any such agreement will affect any right, title, or interest of any Loan Party in and to any of the Collateral in a manner that could reasonably be expected to have a Material Adverse Effect on the Loan Parties, taken as a whole.

4.9 Payment of Taxes. All tax returns and reports of the Loan Parties (and all

parent entities of such Loan Parties with which any Loan Party is or has been consolidated or combined) required to be filed by it have been timely filed (inclusive of any permitted extensions), and all Taxes, governmental assessments, fees, and amounts required to be withheld and paid to a

Governmental Authority and all other governmental charges in excess of $10,000 in the aggregate imposed upon the Loan Parties, and upon their Assets, income, and franchises, that

are due and payable have been paid, except to the extent that: (a) the failure to file such returns or reports, or pay such Taxes, assessments, fees, withholdings, or other governmental charges, as applicable, could not reasonably be expected to have a Material Adverse Effect on the Loan Parties, taken as a whole, or (b) other than with respect to Taxes, assessments, fees, withholdings, charges or claims which have become a federal tax Lien upon any of any Loan Party’s Assets, such Tax, assessment, fee, withholding, charge, or claim is being contested, in good faith, by appropriate proceedings promptly instituted and diligently conducted, and an adequate reserve or other appropriate provision, if any, shall have been made as required in order to be in conformity with GAAP. Borrower does not know of any proposed, asserted, or assessed tax deficiency against it or Guarantor that, if such deficiency existed and had to be rectified, could reasonably be expected to have a Material Adverse Effect on the Loan Parties, taken as a whole.

4.10 Governmental Regulation.

(a) The Loan Parties are not, nor immediately after the application by

Borrower of the proceeds of the Loans will they be, required to be registered as an “investment company” under the Investment Company Act of 1940, as amended.

(b) No Loan Party holds any interest in any Margin Securities. No part

of the proceeds of the loans made to Borrower will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or for any purpose that violates the provisions of Regulation T, U or X of the Board of Governors.

or any federal, state, or local law, rule, or regulation generally limiting its ability to incur Debt.

4.11 Disclosure. No representation or warranty of any Loan Party contained in

this Agreement or any other document, certificate, or written statement furnished to Agent or any Lender by or on behalf of Borrower with respect to the business, operations, Assets, or condition (financial or otherwise) of the Loan Parties for use solely in connection with the transactions contemplated by this Agreement (other than projections, pro forma financial statements and budgets and information of a general economic or industry-wide nature) contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein, in light of the circumstances under which they were made, not materially misleading. There is no fact actually known to Borrower (other than matters of a general economic industry-wide nature) that Borrower believes reasonably could be expected to have a Material Adverse Effect on the Loan Parties, taken as a whole, that has not been disclosed herein or in such other documents, certificates, and statements furnished to Agent or any Lender for use in connection with the transactions contemplated hereby.

4.12 Debt. Borrower does not have any Debt outstanding other than Debt

permitted by Section 6.1 hereof.

4.13 Existing Defaults. No Loan Party is in default in the performance,

observance or fulfillment of any of the obligations contained in any Contractual Obligation applicable to it, and no condition exists which, with or without the giving of notice or the lapse

of time, would constitute a default under any such Contractual Obligation, except, in any such case, where the consequences, direct or indirect, of such default or defaults, if any, could not reasonably be expected to have a Material Adverse Effect on the Loan Parties, taken as a whole.

4.14 No Default; No Material Adverse Effect.

(a) No Event of Default or Unmatured Event of Default has occurred

and is continuing or would result from any proposed Loan or Letter of Credit.

(b) No event or development has occurred which could reasonably be

expected to result in a Material Adverse Effect with respect to the Loan Parties, taken as a whole.

4.15 Pledged Investments. As to each Investment that is identified by Borrower

as a Pledged Investment on the Schedule B-1 or the most recent Pledged Investments Report submitted to Agent, such Pledged Investments (a) are subject to a valid and perfected first priority Agent’s Lien, (b) are owned by Borrower free and clear of all other Liens (other than Liens in favor of Agent) and (c) constitute Performing Obligations.

ARTICLE V

AFFIRMATIVE COVENANTS OF BORROWER

Borrower covenants and agrees that, so long as any portion of the Revolver Commitment under this Agreement shall be in effect and until payment, in full, of the Loans, with interest accrued and unpaid thereon, all other Obligations (including Obligations in respect of Letters of Credit, unless all such Letters of Credit are cancelled, expire or are cash collateralized or other satisfactory arrangements are made in accordance with the provisions of Section 2.8(a) hereof, other than contingent indemnification Obligations as to which no claim has been asserted or is anticipated and other than any Bank Product Obligations that, at such time, are allowed by the applicable Bank Product Provider to remain outstanding and are not required to be repaid or cash collateralized pursuant to the provisions of this Agreement) and all other amounts due hereunder, and except as set forth in the Disclosure Statement with specific reference to the Section of this Article V affected thereby concerning matters which do not conform to the covenants of this Article V, Borrower will do each and all of the following:

5.1 Accounting Records and Inspection. Maintain adequate financial and

accounting books and records (which may be in the form of the consolidated financial statements and records of Guarantor) in accordance with sound business practices and, to the extent so required, GAAP consistently applied, and permit any representative of Agent (and after the occurrence and during the continuance of an Event of Default, any representatives of each Lender) upon reasonable notice to Borrower, at any time during usual business hours, to inspect, audit, and examine such books and records and to make copies and take extracts therefrom, and to discuss its affairs, financing, and accounts with Borrower’s or Guarantor’s officers and independent public accountants (provided that Borrower shall have the opportunity to be present at any meeting with its independent public accountants); provided that unless an Event of Default has occurred and is continuing, no more than one inspection per year may be made at Borrower’s

expense. Subject to Section 11.10 Borrower shall furnish Agent with any information reasonably requested by Agent regarding Borrower’s business or finances promptly upon request.

5.2 Other Information. Furnish to Agent:

(a) Within 60 days after the end of each of the first three fiscal quarters

of each fiscal year of Borrower, within 75 days of the end of the fourth fiscal quarter of each fiscal year of Borrower, and within 5 Business Days of (i) any determination by Borrower of any impairment charge or other reduction in the Fair Market Value of any Pledged Investment that is determined prior to the end of any fiscal quarter or (ii) the end of each fiscal month so long as the Stock of FL3 Holder constitutes a Pledged Investment, a Pledged Investments Certificate which shall include, among other things, a reasonably detailed calculation of the Fair Market Value of the Pledged Investments; provided, that Agent and Lenders hereby agree and acknowledge that Borrowers may (i) so long as FL3 Holder constitutes a Pledged Investment, add new Investments as Pledged Investments or replace or remove existing Pledged Investments, or (ii) if FL3 Holder does not constitute a Pledged Investment, add new Investments as Pledged Investments or replace existing Pledged Investments so long as no less than three (or such lesser number as otherwise agreed to by Agent) Investments constitute Pledged Investments, in each case, by identifying such new Investments as Pledged Investments for purposes of Schedule B-1 in any Pledged Investments Certificate (which such Investments, subject to the conditions set forth below, will thereafter be deemed to be Pledged Investments on Schedule B-1), so long as (1) such new Investments (A) are subject to a valid and perfected first priority Agent’s Lien, (B) are owned by Borrower free and clear of all other Liens (other than Liens in favor of Agent) and (C) constitute Performing Obligations and (2) Borrower delivers to Agent an updated Pledged Investments Certificate which includes all Pledged Investments, including new Investments to be included. Upon receipt by Agent of such updated Pledged Investments Certificate delivered pursuant to Section 5.2, the Investments identified therein as a Pledged Investment shall thereafter constitute Pledged Investments for all purposes hereunder and any existing Pledged Investment identified in such Pledged Investments Certificate to be released shall be deemed automatically released from the Agent’s Lien under the Loan Documents and shall no longer constitute Pledged Investments hereunder.

(b) notice, as soon as possible and, in any event, within 5 days after

Borrower has knowledge, of: (i) the occurrence of any Event of Default or any Unmatured Event of Default; or (ii) any default or event of default as defined in any evidence of Debt of Borrower or under any material agreement, indenture, or other instrument under which such Debt has been issued, irrespective of whether such Debt is accelerated or such default waived. In any such event, Borrower also shall supply Agent with a statement from a Responsible Officer of Borrower, setting forth the details thereof and the action that Borrower proposes to take with respect thereto; provided, that Borrower shall not be required to provide any information that reasonably would be expected to result in a waiver of any attorney-client privilege of Borrower;

items in respect of Borrower’s internal control matters submitted to Borrower by its independent accountants in connection with each annual audit of the financial condition of Guarantor;

(d) as soon as practicable, written notice of any condition or event

which has resulted or could reasonably be expected to result in a Material Adverse Effect on the Loan Parties, taken as a whole;

(e) promptly upon becoming aware of any Person’s seeking to obtain

or threatening to seek to obtain, in either case in writing, a decree or order for relief with respect to any Loan Party in an involuntary case under any applicable bankruptcy, insolvency, or other similar law now or hereafter in effect, a written notice thereof specifying what action Borrower is taking or proposes to take with respect thereto;

(f) promptly, copies of all amendments to the Governing Documents

of any Loan Party except for (i) immaterial amendments or waivers permitted by such Governing Documents not requiring the consent of the holders of the equity Securities in the applicable Loan

Party, or (ii) amendments or waivers which would not, either individually or collectively, be materially adverse to the interests of the Lender Group;

(g) prompt notice of:

(i) all legal or arbitral proceedings, and all proceedings by or

before any governmental or regulatory authority or agency, against or, to the knowledge of Borrower, threatened in writing against or affecting any Loan Party which, if adversely determined, could reasonably be expected to have a Material Adverse Effect on the Loan Parties, taken as a whole, or on the timely payment of the principal of or interest on the Loans, or the enforceability of this Agreement or the other Loan Documents, or the rights and remedies of the Lender Group hereunder or thereunder, as applicable;

(ii) the acquisition by any Loan Party of any Margin Securities;

(iii) the issuance by any United States of America federal or

state court or any United States of America federal or state regulatory authority of any injunction, order, or other restraint prohibiting, or having the effect of prohibiting or delaying, the making of the Loans or issuing Letters of Credit, or the institution of any litigation or similar proceeding seeking any such injunction, order, or other restraint, in each case, of which Borrower has knowledge; and

(h) [intentionally omitted]

(i) reasonably promptly, such other information and data (other than

monthly financial statements) with respect to the Loan Parties, as from time to time may be reasonably requested by Agent, who may then deliver such information to any Lender (including any information reasonably requested by Agent to enable Agent or any Lender to comply with any of the requirements under Regulations T, U or X of the Federal Reserve Board).

5.3 Existence. Except as permitted by Section 6.6, preserve and keep in full

force and effect, at all times, its existence.

5.4 Payment of Taxes and Claims. Pay all Taxes, governmental assessments,

and other governmental charges in excess of $10,000 in the aggregate imposed upon it or any of

its Assets or in respect of any of its businesses, incomes, or Assets before any penalty or interest accrues thereon, and all claims in excess of $10,000 in the aggregate (including claims for labor, services, materials, and supplies) for sums which have become due and payable and which by law have or may become a Lien upon any of its Assets, prior to the time when any penalty or fine shall be incurred with respect thereto; provided, however, that, unless such Taxes, assessments, charges, or claims have become a federal tax Lien on any of any Loan Party’s Assets, no such Tax, assessment, charge, or claim need be paid if the same is being contested, in good faith, by appropriate proceedings promptly instituted and diligently conducted and if an adequate reserve or other appropriate provision, if any, shall have been made therefor as required in order to be in conformity with GAAP.

5.5 Compliance with Laws. Comply in all material respects with the

requirements of all applicable laws, rules, regulations (including Regulations T, U and X of the Federal Reserve Board), and orders of any Governmental Authority, noncompliance with which could reasonably be expected to have a Material Adverse Effect on the Loan Parties taken as a whole.

5.6 Further Assurances. At any time or from time to time upon the request of

Agent, Borrower shall, and shall cause each other Loan Party to, execute and deliver such further documents and do such other acts and things as Agent may reasonably request in order to effect fully the purposes of this Agreement or the other Loan Documents and to provide for payment of the Loans made hereunder, with interest thereon, in accordance with the terms of this Agreement.

5.7 [Intentionally Omitted].

5.8 [Intentionally Omitted].

5.9 Foreign Qualification. Borrower shall duly qualify to conduct business in

all jurisdictions where its failure to do so could reasonably be expected to have a Material Adverse Effect on Loan Parties taken as a whole.

5.10 Promissory Notes. Within 5 Business Days after the Closing Date (or such

later date as agreed to by Agent in writing in its sole discretion), Loan Parties shall have delivered or caused to be delivered to Agent originals of any promissory notes (together with undated allonges executed in blank with respect to any such promissory notes) or any other instrument evidencing Borrower’s interest in the Pledged Investments.

ARTICLE VI

NEGATIVE COVENANTS OF BORROWER

accordance with the provisions of Section 2.8(a) hereof other than contingent indemnification Obligations as to which no claim has been asserted or is anticipated and other than any Bank Product Obligations that, at such time, are allowed by the applicable Bank Product Provider to remain outstanding and are not required to be repaid or cash collateralized pursuant to the provisions of this Agreement) and all other amounts due hereunder, and except as set forth in the Disclosure Statement with specific reference to the Section of this Article VI affected thereby concerning matters which do not conform to the covenants of this Article VI, Borrower will not do any of the following:

6.1 Debt. Create, incur, assume, permit, guarantee, or otherwise become or

remain, directly or indirectly, liable with respect to any Debt, except:

(a) Debt evidenced by this Agreement and the other Loan Documents;

(b) Contingent Obligations resulting from the endorsement of

instruments for collection in the ordinary course of business;

subordinated pursuant to the Intercompany Subordination Agreement;

(d) Debt which may be deemed to exist pursuant to any performance

bonds, surety bonds, statutory bonds, appeal bonds or similar obligations incurred in the ordinary course of business in an aggregate outstanding amount not to exceed $500,000 at any one time;

(e) Debt in respect of netting services, overdraft protections and

otherwise in connection with deposit accounts incurred in the ordinary course of business;

(f) guaranties in the ordinary course of business of the obligations of

suppliers, customers, franchisees and licensees of Borrower and its Subsidiaries in an aggregate outstanding amount at any one time not to exceed $400,000;

(g) Debt of Borrower under any Hedging Agreements so long as such

Hedging Agreements are used solely as a party of its normal business operations as a risk management strategy or a hedge against changes resulting from market operations and not as a means to speculate for investment purposes on trends and shifts in financial or commodities markets;

(h) Debt incurred in the ordinary course of business under incentive,

non-compete, consulting, deferred compensation, or other similar arrangements incurred by Borrower;

(i) Debt incurred in the ordinary course of business with respect to

the financing of insurance premiums;

(j) Debt in respect of Taxes, governmental assessments or

governmental charges to the extent that payment thereof shall not at the time be required to be made hereunder;

(k) refinancings, renewals, or extensions of Debt described on the

Disclosure Statement with respect to this Section 6.1 so long as: (i) such refinancings, renewals, or extensions do not result in an increase in the then extant principal amount of the Debt so refinanced, renewed, or extended (other than for accrued interest and premiums and fees), (ii) such refinancings, renewals, or extensions do not result in a shortening of the average weighted maturity of the Debt so refinanced, renewed, or extended, nor are they on terms or conditions that, taken as a whole, are materially more burdensome or restrictive to Borrower, and (iii) the Debt that is refinanced, renewed, or extended is not recourse to any Person that is liable on account of the Loans other than those Persons which were obligated with respect to the Debt that was refinanced, renewed, or extended;

(l) Debt described in the ACRC Pledge and Control Agreement as

being secured by the liens permitted pursuant to clause (p) of the definition of “Permitted Liens” (as in effect on the Closing Date);

(m) Debt incurred by Borrower under the July 2014 Loan Documents; and

(n) Debt resulting solely from the granting of Liens by Borrower on equity Securities of one or more of its Subsidiaries, so long as the holder of such Debt does not have recourse against Borrower with respect to such Debt, except solely with respect to the equity Securities of such Subsidiaries of Borrower that secure such Debt.; and

(o) (n) other Debt of Borrower in an aggregate amount not to exceed $500,000 at any time.

6.2 Liens

(a) Create, incur, assume, or permit to exist, directly or indirectly, any Lien on or with respect to any of its Assets, of any kind, whether now owned or hereafter acquired, or any income or profits therefrom, except Permitted Liens, or

(b) enter into, assume, or permit to exist any agreement to refrain from

granting Liens on the Pledged Investments to or for the benefit of the Lender Group.

6.3 [Intentionally Omitted.]

6.4 [Intentionally Omitted.]

6.5 Dividends. At any time that the Revolving Credit Facility Usage is greater

than zero, Borrower shall not make or declare, directly or indirectly, any dividend (in cash, return of capital, or any other form of Assets) on, or make any other payment or distribution on account of, or set aside Assets for a sinking or other similar fund for the purchase, redemption, or retirement of, or redeem, purchase, retire, or otherwise acquire, any interest of any class of equity interests in Borrower, whether now or hereafter outstanding, or grant or issue any warrant, right, or option pertaining thereto, or other security convertible into any of the foregoing, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or Assets or in obligations (collectively, a “Distribution”); notwithstanding the foregoing, Borrower may make

Distributions so long as (a) no Event of Default or Unmatured Event of Default has occurred and is continuing or would result therefrom and (b) no such Distribution could reasonably be expected to result in a violation of any applicable provisions of Regulations T, U or X of the Federal Reserve Board; provided, further, that, notwithstanding any of the foregoing, so long as no Event of Default has occurred and is continuing or would result therefrom, Borrower may make Distributions to Guarantor to enable Guarantor to make distributions to its shareholders in an amount necessary to qualify as a “real estate investment trust” as defined in Section 856 the Code (“REIT”) and avoid the imposition of income and excise tax on Guarantor; provided, further, however, if an Event of Default has occurred and is continuing or would result therefrom, Borrower may make any such Distributions to Guarantor to enable Guarantor to make distributions to its shareholders to qualify as a REIT, solely if the sum of (i) unrestricted cash available to the Guarantor plus (ii) unrestricted cash of Subsidiaries of the Guarantor (other than Subsidiaries of Borrower) that may be distributed to the Guarantor by such Subsidiaries without violating or causing a default under the governing documents and agreements, contracts, indentures and other instruments to which such Subsidiaries are a party (such sum the “Total Unrestricted Cash”), is less than the amount of distributions that Guarantor is required to make for it to continue to qualify as a REIT. If the Total Unrestricted Cash is less than the amount of distributions that Guarantor is required to make for it to continue to qualify as a REIT (the difference between the amount of distributions that Guarantor is required to make for it to continue to qualify as a REIT and the Total Unrestricted Cash, the “Deficiency Amount”), Borrower may make Distributions to Guarantor to enable Guarantor to make distributions to its shareholders to qualify as a REIT, in an amount equal to Borrower’s Pro Rata Share (as defined below) of the Deficiency Amount. For the purposes of the foregoing, “Borrower’s Pro Rata Share” shall mean the portion of the Deficiency Amount equal to (x) the percentage of the Deficiency Amount represented by (i) the aggregate amount of cash available to Borrower and its Subsidiaries, divided by (ii) the sum of (A) the aggregate amount of cash available to Borrower and its Subsidiaries, plus (B) the aggregate amount of restricted cash available to the Guarantor, plus (C) the aggregate amount of restricted cash of Subsidiaries of the Guarantor (other than Borrower and Subsidiaries of Borrower) times (y) the Deficiency Amount. For the avoidance of doubt, any cash available to Borrower and its Subsidiaries shall be deemed restricted cash for the purposes of this Section 6.5.

6.6 Restriction on Fundamental Changes. Change its name, change the nature

of its business, enter into any merger, consolidation, reorganization, or recapitalization, or reclassify its partnership interests (whether limited or general) or membership interests, as applicable, or convey, sell, assign, lease, transfer, or otherwise dispose of, in one transaction or a series of transactions, all or any substantial part of its business or Assets, whether now owned or hereafter acquired (each, a “Fundamental Change”) except:

(a) Borrower may sell Assets in accordance with the provisions of Section 6.7 hereof;

(b) Borrower may change its name or corporate, partnership or limited

liability structure so long as Borrower provides written notice thereof (together with copies of any documents evidencing any such change) to Agent on or before the date that is 60 days after the date when such name or structure change occurs; and

one hand, with and into Borrower, provided that (i) Borrower is the sole surviving entity of such merger, consolidation or reorganization, (ii) the Lender Group’s rights in any Assets of Borrower, including, without limitation, the existence, perfection and priority of any Lien thereon, are not adversely affected by such merger, consolidation or reorganization, (iii) upon the consummation of such merger, consolidation or reorganization, Borrower expressly reaffirms its Obligations to the Lender Group under this Agreement and the other Loan Documents to which it is a party, and (iv) the consummation of such merger, consolidation or reorganization does not result in a Change of Control Event.

6.7 Sale of Assets. Sell, assign, transfer, convey, or otherwise dispose of its

Assets, whether now owned or hereafter acquired, except for (a) the sale, assignment, transfer, conveyance or other disposition of any Asset by Borrower the Distribution of which by Borrower to the holders of its Stock would not result in an Event of Default or an Unmatured Event of Default (provided, however, that a sale, assignment, transfer, conveyance or other disposition of any equity Securities by Borrower will constitute a violation of this Section 6.7 if a Change of Control Event would result therefrom), (b) the sale, assignment, transfer, conveyance or other disposition of obsolete, worn out or surplus tangible property, (c) any sale, assignment, transfer, conveyance or other disposition of Assets for the liquidation, dissolution or winding up of a wholly-owned Subsidiary of Borrower, (d) any transaction permitted by Section 6.5 of this Agreement; (e) any other sale, assignment, transfer, conveyance or other disposition of its Assets so long as, Borrower is in compliance with the covenant set forth in Section 6.14 immediately before such sale, assignment, transfer, conveyance or other disposition of its Assets, and immediately after giving effect thereto.

6.8 Transactions with Shareholders and Affiliates. Enter into or permit to

exist, directly or indirectly, any transaction (including the purchase, sale, lease, or exchange of any Asset or the rendering of any service) with any holder of 5% or more of any class of equity interests of Borrower or any of its Subsidiaries or Affiliates, or with any Affiliate of Borrower or of any such holder, in each case other than (x) a Loan Party, (y) any Subsidiary of Borrower, or

(z) any direct or indirect parent of Borrower that is also a Subsidiary of Guarantor, on terms that are less favorable to such Loan Party, than those terms that might be obtained at the time from Persons who are not such a holder, Subsidiary, or Affiliate, or, if such transaction is not one in which terms could be obtained from such other Person, on terms that are not negotiated in good faith on an arm’s length basis. Prior to Borrower or any of its Subsidiaries engaging in any such transaction described in this Section 6.8, other than transactions in de minimis amounts, Borrower shall determine that such transaction has been negotiated in good faith and on an arm’s length basis; such determination shall be evidenced by a certificate of a Responsible Officer of Borrower to such effect. In no event shall the foregoing restrictive covenant apply to (a) Permitted Investments, (b) any transaction permitted by Section 6.5, (c) the Credit Support Fee Letter (as defined in the July 2014 Credit Agreement) and the Pledge Agreement (as defined in the July 2014 Credit Agreement), or (d) transactions involving the use, transfer, or other disposition of any Assets, to the extent that (i) the Distribution by Borrower of such Assets would not have violated this Agreement and (ii) such use,

transfer, or other Disposition would not otherwise result in an Event of Default or an Unmatured Event of Default.

6.9 Conduct of Business. Engage in any business other than the businesses in

which it is permitted to conduct under its Governing Documents, or any businesses or activities substantially similar or related thereto.

6.10 Amendments or Waivers of Certain Documents; Actions Requiring the

Consent of Agent. Without the prior written consent of Agent and the Required Lenders, which consent shall not unreasonably be withheld or delayed, agree to any amendment to or waiver of the terms or provisions of its Governing Documents except for: (i) immaterial amendments or waivers permitted by such Governing Documents not requiring the consent of the holders of the equity Securities in the Borrower, or (ii) amendments or waivers which would not, either individually or collectively, be materially adverse to the interests of the Lender Group.

6.11 Use of Proceeds. Use the proceeds of the Loans made and Letters of

Credit issued hereunder for any purpose inconsistent with Section 3.2(d) hereof.

6.12 [Intentionally Omitted].

6.13 Margin Regulation. Use any portion of the proceeds of any of the Loans

or Letters of Credit in any manner which could reasonably be expected to cause the Loans, the Letters of Credit, the application of such proceeds, or the transactions contemplated by this Agreement to violate Regulations T, U or X of the Federal Reserve Board, or any other regulation of such board, or to violate the Exchange Act, or to violate the Investment Company Act of 1940.

6.14 Asset Value. Fail to maintain, at any time, together with its Subsidiaries on

a consolidated basis, Assets with an aggregate fair market value of at least $500,000,000.

ARTICLE VII

EVENTS OF DEFAULT AND REMEDIES

7.1 Events of Default. The occurrence of any one or more of the following

events, acts, or occurrences shall constitute an event of default (“Event of Default”) hereunder:

(a) Failure to Make Payments When Due.

(i) Borrower shall fail to pay any amount owing hereunder

with respect to the principal of any of the Loans when such amount is due, whether at stated maturity, by acceleration, or otherwise;

(ii) Borrower shall fail to pay, within 10 days of the date when

due, any amount owing hereunder with respect to interest on any of the Loans or with respect to any other amounts (including fees, costs, or expenses), other than principal, payable in connection herewith;

(b) Breach of Certain Covenants.

(i) Borrower shall fail to perform or comply with any

covenant, term, or condition contained in Article VI of this Agreement;

(ii) Borrower shall fail to perform or comply with any

covenant, term, or condition contained in Section 4.1 of the Security Agreement; or

(iii) Borrower shall fail to perform or comply with any

covenant, term, or condition contained in Sections 5.1, 5.2(a), 5.2(b), 5.6, or 5.9 of this Agreement and such failure shall not have been remedied or waived within 15 days after the occurrence thereof;

(iv) Borrower shall fail to perform or comply with any other

covenant, term, or condition contained in this Agreement or other Loan Documents to which it is a party and such failure shall not have been remedied or waived within 30 days after receipt of notice from Agent of the occurrence thereof; provided, however, that this clause (iv) shall not apply to: (1) the covenants, terms, or conditions referred to in subsections (a) and (c) of this Section 7.1; or (2) the covenants, terms, or conditions referred to in clauses (i), (ii) or (iii) above of this subsection (b);

representation, warranty, or certification made or furnished by Borrower under this Agreement or in any document, letter, or other writing or instrument furnished or delivered by Borrower to Agent or any Lender pursuant to or in connection with this Agreement or any other Loan Document to which it is a party, or as an inducement to the Lender Group to enter into this Agreement or any other Loan Document shall have been false, incorrect, or incomplete in any material respect (except that such materiality qualifier shall not be applicable to any representation or warranty to the extent that such representation or warranty is qualified or modified by materiality) when made, effective, or reaffirmed, as the case may be;

(d) Involuntary Bankruptcy.

(i) If an involuntary case seeking the liquidation or

reorganization of any Loan Party under Chapter 7 or Chapter 11, respectively, of the Bankruptcy Code or any similar proceeding shall be commenced against any Loan Party under any other applicable law and any of the following events occur: (1) such Person consents to the institution of the involuntary case or similar proceeding; (2) the petition commencing the involuntary case or similar proceeding is not timely controverted; (3) the petition commencing the involuntary case or similar proceeding is not dismissed within 60 days of the date of the filing thereof; provided, however, that, during the pendency of such period, the Lender Group shall be relieved of its obligation to make additional Loans; (4) an interim trustee is appointed to take possession of all or a substantial portion of the Assets of any Loan Party; or (5) an order for relief shall have been issued or entered therein;

(ii) A decree or order of a court having jurisdiction in the

premises for the appointment of a receiver, liquidator, sequestrator, custodian, trustee, or other officer having similar powers over any Loan Party to take possession of all or a substantial portion of its Assets shall have been entered and, within 45 days from the date of entry, is not

vacated, discharged, or bonded against, provided, however, that, during the pendency of such period, the Lender Group shall be relieved of its obligations to make additional Loans;

(e) Voluntary Bankruptcy. Any Loan Party shall institute a voluntary

case seeking liquidation or reorganization under Chapter 7 or Chapter 11, respectively, of the Bankruptcy Code; any Loan Party shall file a petition, answer, or complaint or shall otherwise institute any similar proceeding under any other applicable law, or shall consent thereto; any Loan Party shall consent to the conversion of an involuntary case to a voluntary case; or any Loan Party shall consent or acquiesce to the appointment of a receiver, liquidator, sequestrator, custodian, trustee, or other officer with similar powers to take possession of all or a substantial portion of its

Assets; any Loan Party shall generally fail to pay debts as such debts become due or shall admit in writing its inability to pay its debts generally; or any Loan Party shall make a general assignment for the benefit of creditors;

(f) Dissolution. Any order, judgment, or decree shall be entered

decreeing the dissolution of any Loan Party, and such order, judgment or decree shall remain undischarged or unstayed for a period in excess of 45 days;

(g) Change of Control. A Change of Control Event shall occur;

(h) Judgments and Attachments. (i) Borrower shall suffer any money

judgment, writ, or warrant of attachment, or similar process involving payment of money in an amount, net of any portion thereof that is covered by or recoverable by such Loan Party under applicable insurance policies (if any) in excess of $250,000 individually or $1,000,000 in the aggregate and shall not discharge, vacate, bond, or stay the same within a period of 30 days or (ii) Guarantor shall suffer any money judgment, writ, or warrant of attachment, or similar process involving payment of money in an amount, net of any portion thereof that is covered by or recoverable by such Loan party under applicable insurance policies (if any) in excess of

$5,000,000 and shall not discharge, vacate, bond, or stay the same within a period of 30 days;

(i) Guaranty. (1) If the obligation of Guarantor under the Guaranty is

limited or terminated by operation of law or Guarantor thereunder, except to the extent permitted by the terms of the Loan Documents, (2) if Guarantor shall fail to perform or comply with any covenant, term, or condition contained in the Guaranty or other Loan Documents to which it is a party (and except in the case of Section 8(b) of the Guaranty, such failure shall not have been remedied or waived within 15 days after receipt of notice from Agent of the occurrence thereof), or (3) any financial statement, representation, warranty, or certification made or furnished by Guarantor under this Agreement, the Guaranty or in any document, letter, or other writing or instrument furnished or delivered by Guarantor to Agent or any Lender pursuant to or in connection with this Agreement, the Guaranty or any other Loan Document to which it is a party, or as an inducement to the Lender Group to enter into this Agreement or any other Loan Document shall have been false, incorrect, or incomplete in any material respect (except that such materiality qualifier shall not be applicable to any representation or warranty to the extent that such representation or warranty is qualified or modified by materiality) when made, effective, or reaffirmed, as the case may be;

(j) Material Agreements. If there is a default in any material

agreement to which (i) Borrower is a party and such default (A) involves Debt in an aggregate principal amount equal to $500,000 or more and (B) either (i) occurs at the final maturity of the obligations thereunder, or (ii) results in a right by the other party thereto, irrespective of whether exercised, to accelerate the maturity of Borrower’s obligations thereunder or to terminate such agreement or (ii) Guarantor is a party and such default (A) involves Debt in an aggregate principal amount equal to $5,000,000 or more and (B) either (i) occurs at the final maturity of the obligations thereunder, or (ii) results in a right by the other party thereto, irrespective of whether exercised, to accelerate the maturity of Guarantor’s obligations thereunder or to terminate such agreement;

(k) [Intentionally Omitted].

(l) [Intentionally Omitted.];

(m) Agent’s Liens. If any Loan Document that purports to create a

Lien shall fail or cease to create, except to the extent permitted by the terms of any such Loan Document, a valid and perfected Lien on the Assets covered thereby and, except to the extent permitted by the terms hereof or thereof, a first priority Lien on the Assets covered thereby (in each case, for any reason other than the failure of Agent to take any action within its control); provided that the foregoing parenthetical shall not be applicable with respect to any Assets (i) to the extent that Agent’s Lien thereon would be perfected by the filing of a uniform commercial code financing statement in the applicable jurisdiction, (ii) to the extent that such Assets consist of Deposit Accounts or Securities Accounts (or Assets held in such Deposit Accounts or Securities Accounts) or (iii) to the extent that the fair market value of all Collateral of any Loan Party that are not subject to a valid and perfected Lien and, except to the extent permitted by the terms hereof or thereof, a first priority Lien, is greater than $250,000 in the aggregate; and

(n) Loan Documents. Any provision of any Loan Document shall at

any time for any reason be declared to be null and void, or the validity or enforceability thereof shall be contested by any Loan Party, or a proceeding shall be commenced by any Loan Party, or by any Governmental Authority having jurisdiction over any Loan Party, seeking to establish the invalidity or unenforceability thereof, or any Loan Party shall deny in writing that any Loan Party has any liability or obligation purported to be created under any Loan Document.

7.2 Remedies. Upon the occurrence of an Event of Default:

(a) If such Event of Default arises under subsections (d) or (e) of

Section 7.1 hereof, then the Revolver Commitments hereunder immediately shall terminate and all of the Obligations owing hereunder or under the other Loan Documents automatically shall become immediately due and payable (including without limitation the cash collateralization of the Letters of Credit in accordance with the provisions hereof), without presentment, demand, protest, notice, or other requirements of any kind, all of which are hereby expressly waived by Borrower; and

(b) In the case of any other Event of Default that has occurred and is

continuing, the Agent at the request of the Required Lenders, by written notice to Borrower, may

declare the Revolver Commitments hereunder terminated and all of the Obligations owing hereunder or under the Loan Documents to be, and the same immediately shall become due and payable (including without limitation the cash collateralization of the Letters of Credit in accordance with the provisions hereof), without presentment, demand, protest, further notice, or other requirements of any kind, all of which are hereby expressly waived by Borrower.

Upon acceleration, Agent (without notice to or demand upon Borrower, which are expressly waived by Borrower to the fullest extent permitted by law), shall be entitled to proceed to protect, exercise, and enforce the Lender Group’s rights and remedies hereunder or under the other Loan Documents, or any other rights and remedies as are provided by law or equity. Agent may determine, in its sole discretion, the order and manner in which the Lender Group’s rights and remedies are to be exercised. All payments received by Agent shall be applied in accordance with Section 2.3(a)(ii).

ARTICLE VIII EXPENSES AND INDEMNITIES

8.1 Expenses. Irrespective of whether any Loans are made hereunder,

Borrower agrees to pay on demand any and all Lender Group Expenses; provided, however, that Borrower is not obligated to reimburse Agent for attorneys’ fees incurred on or before the Closing

Date in connection with the preparation of this Agreement and the other Loan Documents, to the extent that such attorneys’ fees exceed $110,000.

8.2 Indemnity. In addition to the payment of expenses pursuant to Section 8.1

hereof, and irrespective of whether the transactions contemplated hereby are consummated, Borrower agrees to indemnify, exonerate, defend, pay, and hold harmless the Agent-Related Persons and the Lender-Related Persons (collectively the “Indemnitees” and individually as “Indemnitee”) from and against any and all liabilities, obligations, losses, damages, penalties, actions, causes of action, judgments, suits, claims, costs, expenses, and disbursements of any kind or nature whatsoever (including the reasonable and documented fees and disbursements of one counsel for such Indemnitees in connection with any investigation, administrative, or judicial proceeding, whether such Indemnitee shall be designated a party thereto), that may be imposed on, incurred by, or asserted against such Indemnitee, in any manner relating to or arising out of the Revolver Commitments, the use or intended use of the proceeds of the Loans or the consummation of the transactions contemplated by this Agreement, including any matter relating to or arising out of the filing or recordation of any of the Loan Documents which filing or recordation is done based upon information supplied by Borrower to Agent and its counsel (the “Indemnified Liabilities”); provided, however, that Borrower shall have no obligation hereunder to any Indemnitee to the extent that such Indemnified Liabilities are found in a final non-appealable judgment by a court of competent jurisdiction to have resulted from the gross negligence, fraud, or willful misconduct of such Indemnitee or its Affiliates or the violation of the express terms of this Agreement by such Indemnitee or its Affiliates. Each Indemnitee will promptly notify Borrower of each event of which it has knowledge which may give rise to a claim under the indemnification provisions of this Section 8.2. To the extent that the undertaking to indemnify, pay, and hold harmless set forth in the preceding sentence may be unenforceable

because it is violative of any law or public policy, Borrower shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities that is permissible under applicable law or public policy. The obligations of Borrower under this Section 8.2 shall survive the termination of this Agreement and the discharge of Borrower’s other obligations hereunder. This Section 8.2 shall not apply with respect to Taxes, which shall be governed by Section 10.11, other than any Taxes that represent liabilities, obligations, losses or damages, arising from a non-Tax claim.

ARTICLE IX

ASSIGNMENT AND PARTICIPATIONS

9.1 Assignments and Participations.

(a) With the consent of Borrower (which consent of Borrower shall

not be (x) required if (i) a Payment Default or an Insolvency Default has occurred and is continuing or (ii) any other Event of Default has occurred and has been continuing for a period of at least 30 days, or (y) other than with respect to Direct Competitors, unreasonably withheld, conditioned or delayed), any Lender may assign and delegate to one or more assignees (each an “Assignee”) that are Eligible Transferees all, or any ratable part of all, of the Obligations, the Revolver Commitments, the Loans and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000 (or the remaining amount of any Lender’s Revolver Commitment or amount of Loans, if less); provided, however, that Borrower and Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to

Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance, fully executed and delivered by each party thereto, and (iii) the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. Anything contained herein to the contrary notwithstanding, the payment of any fees shall not be required and the consent of Borrower shall not be required if such assignment is in connection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of the assigning Lender.

(b) From and after the date that Agent notifies the assigning Lender

(with a copy to Borrower) that it has received an executed Assignment and Acceptance satisfying clause (a) above and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section

8.2 hereof) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall

cease to be a party hereto and thereto), and such assignment shall effect a novation between Borrower and the Assignee; provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Article X and Section 11.10 of this Agreement. No assignee shall be entitled to the benefits of Section 10.11 unless the Borrower is notified of the assignment and such Assignee has complied with the requirements of Section 10.11.

assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (1) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto,

(2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (3) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (4) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (5) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement as are delegated to Agent, by the terms hereof, together with such powers as are reasonably incidental thereto, and (6) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.

(d)

Immediately upon Agent'’s receipt of the required processing fee

payment and the fully executed Assignment and Acceptance satisfying clause (a) above, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect

the addition of the Assignee and the resulting adjustment of the Revolver Commitments or the Loans arising therefrom. The Revolver Commitment and the Loans allocated to each Assignee shall reduce such Revolver Commitments or Loans of the assigning Lender pro tanto.

(e) Any Lender may at any time sell to one or more commercial banks,

financial institutions, or other institutional Persons not Affiliates of such Lender and who are not Direct Competitors (a “Participant”) participating interests in its Obligations, its Loans, the Revolver Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents (provided that no written consent of Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Loans, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under

this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender’s rights and obligations under this Agreement and the other Loan Documents,

(iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating,

(C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender, or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all amounts payable by Borrower hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. A Participant shall not be entitled to receive any greater payment under Section 10.11 than the applicable Originating Lender would have been entitled to receive with respect to the participation sold to such Participant, except to the extent such entitlement to receive a greater payment results from a change in Law that occurs after the Participant acquired the applicable participation. A Participant shall not be entitled to the benefits of Section 10.11 unless Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of Borrower and Agent, to comply with Section 10.11 as though it were a Lender.

(f) In connection with any such assignment or participation or

proposed assignment or participation, a Lender may, subject to the provisions of Section 11.10, disclose all documents and information which it now or hereafter may have relating to Borrower and its Subsidiaries and their respective businesses.

(g) Any other provision in this Agreement notwithstanding, any

Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.

(h) Each Lender hereby represents and warrants to Borrower that, as of

the Closing Date (or in the case of an Assignee, as of the date that such Person becomes a Lender), it is a Qualified Purchaser.

9.2 Successors. This Agreement shall bind and inure to the benefit of the

respective successors and assigns of each of the parties; provided, however, that Borrower may not assign this Agreement or any rights or duties hereunder without the Lenders’ prior written consent and any prohibited assignment shall be absolutely void ab initio. A Lender may assign this Agreement and the other Loan Documents and its rights and duties hereunder and thereunder pursuant to Section 9.1 hereof and, except as expressly required pursuant to Section 9.1 hereof, no consent or approval by Borrower is required in connection with any such assignment.

9.3 Register.

(a) Agent (as non-fiduciary agent on behalf of Borrower) shall

maintain, or cause to be maintained at one of its offices in Los Angeles, California, a register (the “Register”) on which it enters the name and address of each Lender as the registered owner the Loans (and the principal amount thereof and stated interest thereon) held by such Lender (each, a “Registered Loan”). A Registered Loan may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register and any assignment or sale of all or part of such Registered Loan may be effected only by registration of such assignment or sale on the Register. Prior to the registration of assignment or sale of any Registered Loan, Borrower shall treat the Person in whose name such Registered Loan is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary.

(b) In the event that a Lender sells participations in the Registered

Loan, such Lender, as a non-fiduciary agent on behalf of Borrower, shall maintain (or cause to be maintained) a register on which it enters the name of all Participants in the Registered Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Registered Loans that is subject to such participations) (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant'’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. A Registered Loan may be participated in whole or in part only by registration of such participation on the Participant Register. Any participation of such Registered Loan may be effected only by the registration of such participation on the Participant Register.

ARTICLE X

AGENT; THE LENDER GROUP

10.1 Appointment and Authorization of Agent. Each Lender hereby designates

and appoints CNB as its representative under this Agreement and the other Loan Documents and

each Lender hereby irrevocably authorizes (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to designate, appoint, and authorize) Agent to execute and deliver each of the other Loan Documents on its behalf and to take such other action on its behalf under the provisions of this Agreement and each other Loan Document and to exercise such powers and perform such duties as are expressly delegated to Agent by the terms of this Agreement or any other Loan Document, together with such powers as are reasonably incidental thereto. Agent agrees to act as agent for and on behalf of the Lenders (and the Bank Product Providers) on the express conditions contained in this Article X. The provisions of this Article X (other than Section 10.9 and Section 10.11) are solely for the benefit of Agent, and the Lenders, and Borrower and its Subsidiaries shall have no rights as a third party beneficiary of any of the provisions contained herein. Any provision to the contrary contained elsewhere in this Agreement or in any other Loan Document notwithstanding, Agent shall not have any duties or responsibilities, except those expressly set forth herein, nor shall Agent have or be deemed to have any fiduciary relationship with any Lender (or Bank Product Provider), and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against Agent; it being expressly understood and agreed that the use of the word “Agent” is for convenience only, that CNB is merely the representative of the Lenders, and only has the contractual duties set forth herein. Without limiting the generality of the foregoing, the use of the term “agent” in this Agreement or the other Loan Documents with reference to Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only a representative relationship between independent contracting parties. Each Lender hereby further authorizes (and by its entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to authorize) Agent to act as the secured party under each of the Loan Documents that create a Lien on any item of Collateral. Except as expressly otherwise provided in this Agreement, Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions that Agent expressly is entitled to take or assert under or pursuant to this Agreement and the other Loan Documents. Without limiting the generality of the foregoing, or of any other provision of the Loan Documents that provides rights or powers to Agent, Lenders agree that Agent shall have the right to exercise the following powers as long as this Agreement remains in effect: (a) maintain, in accordance with its customary business practices, ledgers and records reflecting the status of the Obligations, the Collateral, the Collections of Borrower and its Subsidiaries, and related matters, (b) execute or file any and all financing or similar statements or notices, amendments, renewals, supplements, documents, instruments, proofs of claim, notices and other written agreements with respect to the Loan Documents, (c) make Loans, for itself or on behalf of Lenders as provided in the Loan Documents, (d) exclusively receive, apply, and distribute the Collections of Borrower and its Subsidiaries as provided in the Loan Documents,

(e) open and maintain such bank accounts and cash management arrangements as Agent deems necessary and appropriate in accordance with the Loan Documents for the foregoing purposes with respect to the Collateral and the Collections of Borrower and its Subsidiaries, (f) perform, exercise, and enforce any and all other rights and remedies of the Lender Group with respect to Borrower, the Obligations, the Collateral, the Collections of Borrower and its Subsidiaries, or otherwise related to any of same as provided in the Loan Documents, and (g) incur and pay such

Lender Group Expenses as Agent may deem necessary or appropriate for the performance and fulfillment of its functions and powers pursuant to the Loan Documents.

10.2 Delegation of Duties. Agent may execute any of its duties under this

Agreement or any other Loan Document by or through agents, employees or attorneys in fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. Agent shall not be responsible for the negligence or misconduct of any agent or attorney in fact that it selects as long as such selection was made without gross negligence or willful misconduct.

10.3 Liability of Agent. None of the Agent-Related Persons shall (a) be liable

for any action taken or omitted to be taken by any of them under or in connection with this Agreement or any other Loan Document or the transactions contemplated hereby (except for its own gross negligence or willful misconduct), or (b) be responsible in any manner to any of the Lenders for any recital, statement, representation or warranty made by Borrower or any Subsidiary or Affiliate of Borrower, or any officer or director thereof, contained in this Agreement or in any other Loan Document, or in any certificate, report, statement or other document referred to or provided for in, or received by Agent under or in connection with, this Agreement or any other Loan Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document, or for any failure of Borrower or any other party to any Loan Document to perform its obligations hereunder or thereunder. No Agent-Related Person shall be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the books or properties of Borrower or the books or records or properties of any of Borrower’s Subsidiaries or Affiliates.

10.4 Reliance by Agent. Agent shall be entitled to rely, and shall be fully

protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, telefacsimile or other electronic method of transmission, telex or telephone message, statement or other document or conversation believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including counsel to Borrower or counsel to any Lender), independent accountants and other experts selected by Agent. Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Loan Document unless Agent shall first receive such advice or concurrence of the Lenders as it deems appropriate and until such instructions are received, Agent shall act, or refrain from acting, as it deems advisable. If Agent so requests, it shall first be indemnified to its reasonable satisfaction by the Lenders against any and all liability and expense that may be incurred by it by reason of taking or continuing to take any such action. Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement or any other Loan Document in accordance with a request or consent of the requisite Lenders and such request or consent and any action taken or failure to act pursuant thereto shall be binding upon all of the Lenders.

10.5 Notice of Unmatured Event of Default or Event of Default. Agent shall

not be deemed to have knowledge or notice of the occurrence of any Unmatured Event of Default or Event of Default, except with respect to defaults in the payment of principal, interest, fees, and expenses required to be paid to Agent for the account of the Lenders and, except with respect to Events of Default of which Agent has actual knowledge, unless Agent shall have received written

notice from a Lender or Borrower referring to this Agreement, describing such Unmatured Event of Default or Event of Default, and stating that such notice is a “notice of default.” Agent promptly will notify the Lenders of its receipt of any such notice or of any Event of Default of which Agent

has actual knowledge. If any Lender obtains actual knowledge of any Event of Default, such Lender promptly shall notify the other Lenders and Agent of such Event of Default. Each Lender shall be solely responsible for giving any notices to its Participants, if any. Subject to Section 10.4, Agent shall take such action with respect to such Unmatured Event of Default or Event of Default as may be requested by the Required Lenders in accordance with Section 7.2; provided, however, that unless and until Agent has received any such request, Agent may (but shall not be obligated to) take such action (other than any acceleration of the Obligations pursuant to the provisions of Section 7.2, which shall require the consent of the Required Lenders), or refrain from taking such action, with respect to such Unmatured Event of Default or Event of Default as it shall deem advisable.

10.6 Credit Decision. Each Lender acknowledges that none of the

Agent-Related Persons has made any representation or warranty to it, and that no act by Agent hereinafter taken, including any review of the affairs of Borrower and its Subsidiaries or Affiliates, shall be deemed to constitute any representation or warranty by any Agent-Related Person to any Lender. Each Lender represents (and by its entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to represent) to Agent that it has, independently and without reliance upon any Agent-Related Person and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, prospects, operations, property, financial and other condition and creditworthiness of Borrower and any other Person party to a Loan Document, and all applicable bank regulatory laws relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to Borrower. Each Lender also represents (and by its entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to represent) that it will, independently and without reliance upon any Agent-Related Person and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of Borrower and any other Person party to a Loan Document. Except for notices, reports, and other documents expressly herein required to be furnished to the Lenders by Agent, Agent shall not have any duty or responsibility to provide any Lender (or any Bank Product Provider) with any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of Borrower and any other Person party to a Loan Document that may come into the possession of any of the Agent-Related Persons.

10.7 Costs and Expenses; Indemnification. Agent may incur and pay Lender

Group Expenses to the extent Agent reasonably deems necessary or appropriate for the performance and fulfillment of its functions, powers, and obligations pursuant to the Loan Documents, including court costs, attorneys fees and expenses, fees and expenses of financial accountants, advisors, consultants, and appraisers, costs of collection by outside collection agencies, auctioneer fees and expenses, and costs of security guards or insurance premiums paid to maintain the Collateral, whether or not Borrower is obligated to reimburse Agent or Lenders

for such expenses pursuant to this Agreement or otherwise. Agent is authorized and directed to deduct and retain sufficient amounts from the Collections of Borrower and its Subsidiaries received by Agent to reimburse Agent for such out-of-pocket costs and expenses prior to the distribution of any amounts to Lenders. In the event Agent is not reimbursed for such costs and expenses from the Collections of Borrower and its Subsidiaries received by Agent, each Lender hereby agrees that it is and shall be obligated to pay to or reimburse Agent for the amount of such Lender’s Pro Rata Share thereof. Whether or not the transactions contemplated hereby are consummated, the Lenders shall indemnify upon demand the Agent-Related Persons (to the extent not reimbursed by or on behalf of

Borrower and without limiting the obligation of Borrower to do so), according to their Pro Rata Shares, from and against any and all Indemnified Liabilities; provided, however, that no Lender shall be liable for the payment to any Agent-Related Person of any portion of such Indemnified Liabilities resulting solely from such Person’s gross negligence or willful misconduct nor shall any Lender be liable for the obligations of any Defaulting Lender in failing to make a Loan or other extension of credit hereunder. Without limitation of the foregoing, each Lender shall reimburse Agent upon demand for such Lender’s Pro Rata Share of any costs or out of pocket expenses (including attorneys, accountants, advisors, and consultants fees and expenses) incurred by Agent in connection with the preparation, execution, delivery, administration, modification, amendment, or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any other Loan Document, or any document contemplated by or referred to herein, to the extent that Agent is not reimbursed for such expenses by or on behalf of Borrower. The undertaking in this Section shall survive the payment of all Obligations hereunder and the resignation or replacement of Agent.

10.8 Agent in Individual Capacity. CNB and its Affiliates may make loans to,

issue letters of credit for the account of, accept deposits from, acquire equity interests in, and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with Borrower and its Subsidiaries and Affiliates and any other Person party to any Loan Documents as though CNB were not Agent hereunder, and, in each case, without notice to or consent of the other members of the Lender Group. The other members of the Lender Group acknowledge (and by its entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to acknowledge) that, pursuant to such activities, CNB or its Affiliates may receive information regarding Borrower or its Affiliates and any other Person party to any Loan Documents that is subject to confidentiality obligations in favor of Borrower or such other Person and that prohibit the disclosure of such information to the Lenders, and the Lenders acknowledge (and by its entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to acknowledge) that, in such circumstances (and in the absence of a waiver of such confidentiality obligations, which waiver Agent will use its reasonable best efforts to obtain), Agent shall not be under any obligation to provide such information to them. The terms “Lender” and “Lenders” include CNB in its individual capacity.

10.9 Successor Agent. Agent may resign as Agent upon 45 days notice to the

Lenders. If Agent resigns under this Agreement, the Required Lenders shall appoint, with the consent of Borrower (such consent not to be unreasonably withheld or delayed) or, if (i) a Payment Default or an Insolvency Default has occurred and is continuing or (ii) any other Event of Default has occurred and has been continuing for a period of at least 30 days, in consultation with Borrower, a successor Agent for the Lenders. If no successor Agent is appointed prior to

the effective date of the resignation of Agent, Agent may appoint, after consulting with the Lenders and with the consent of Borrower (such consent not to be unreasonably withheld or delayed) or, if (i) a Payment Default or an Insolvency Default has occurred and is continuing or

(ii) any other Event of Default has occurred and has been continuing for a period of at least 30 days, in consultation with Borrower, a successor Agent. If Agent has materially breached or failed to perform any material provision of this Agreement or of applicable law, the Required Lenders may agree in writing to remove and replace Agent with a successor Agent from among the Lenders with the consent of Borrower (such consent not to be unreasonably withheld or delayed). In any such event, upon the acceptance of its appointment as successor Agent hereunder, such successor Agent shall succeed to all the rights, powers, and duties of the retiring Agent and the term “Agent” shall mean such successor Agent and the retiring Agent’s appointment, powers, and duties as Agent shall be terminated. After any retiring Agent’s resignation hereunder as Agent, the provisions of this

Article X shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent under this Agreement. If no successor Agent has accepted appointment as Agent by the date which is 45 days following a retiring Agent’s notice of resignation, the retiring Agent’s resignation shall nevertheless thereupon become effective and the Lenders shall perform all of the duties of Agent hereunder until such time, if any, as the Lenders appoint a successor Agent as provided for above.

10.10 Lender in Individual Capacity. Any Lender and its respective Affiliates

may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with Borrower and its Subsidiaries and Affiliates and any other Person party to any Loan Documents as though such Lender were not a Lender hereunder without notice to or consent of the other members of the Lender Group. The other members of the Lender Group acknowledge (and by its entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to acknowledge) that, pursuant to such activities, such Lender and its respective Affiliates may receive information regarding Borrower or its Affiliates and any other Person party to any Loan Documents that is subject to confidentiality obligations in favor of Borrower or such other Person and that prohibit the disclosure of such information to the Lenders, and the Lenders acknowledge (and by its entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to acknowledge) that, in such circumstances (and in the absence of a waiver of such confidentiality obligations, which waiver such Lender will use its reasonable best efforts to obtain), such Lender shall not be under any obligation to provide such information to them.

10.11 Withholding Taxes.

(a) All payments made by Borrower hereunder or under any note or

other Loan Document will be made without setoff, counterclaim, or other defense. In addition, all such payments will be made free and clear of, and without deduction or withholding for, any present or future Taxes, except as required by applicable law. If any applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by 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

Borrower 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) Agent or Lender receives an amount equal to the sum it would have received had no such deduction or withholding been made; provided, however, that Borrower shall not be required to increase any such amounts if the increase in such amount payable results from Agent’s or such Lender’s own willful misconduct or gross negligence (as finally determined by a court of competent jurisdiction). Borrower will furnish to Agent as promptly as possible after the date the payment of any Tax is due pursuant to applicable law certified copies of tax receipts evidencing such payment by Borrower. If Borrower fails to pay any Indemnified Taxes that are required to be deducted or withheld under this Section 10.11(a), without duplication of any additional amounts already paid pursuant to this Section 10.11(a), Borrower shall indemnify and hold Lender harmless for all Indemnified Taxes, penalties and interest resulting from such failure, together with all reasonable and documented costs and expenses (including attorneys’ fees and expenses). Such indemnification obligation shall survive the payment of all Obligations. For purposes of this Section 10.11, the term “Lender” includes “Issuing Lender” and the term “applicable law” includes FATCA.

(b) Agent shall deliver to Borrower a properly completed and executed

IRS Form W-9 before receiving its first payment under this Agreement and at any other time reasonably requested by Agent or Borrower. If a Lender is entitled to claim an exemption from, or reduction of, United States withholding tax, Lender agrees with and in favor of Agent and Borrower, to deliver to Agent whichever of the following is applicable:

(i) if such Lender claims an exemption from United States

withholding tax pursuant to its portfolio interest exception, (A) a statement of the Lender, signed under penalty of perjury, that it is not (I) a “bank” as described in Section 881(c)(3)(A) of the Code, (II) a 10% shareholder of Borrower or Guarantor (within the meaning of Section 881(c)(3)(B) of the Code), or (III) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and (B) a properly completed and executed IRS Form W-8BEN (or successor form), before receiving its first payment under this Agreement and at any other time reasonably requested by Agent or Borrower;

(ii) if such Lender claims an exemption from, or a reduction of,

withholding tax under a United States tax treaty, two properly completed and executed copies of IRS Form W-8BEN (or successor form) before receiving its first payment under this Agreement and at any other time reasonably requested by Agent or Borrower;

(iii) if such Lender claims that interest paid under this

Agreement is exempt from United States withholding tax because it is effectively connected with a United States trade or business of such Lender, two properly completed and executed copies of IRS Form W-8ECI (or successor form) (together with applicable attachments) before receiving its first payment under this Agreement and at any other time reasonably requested by Agent or Borrower;

(iv) two properly completed and executed copies of IRS Form

W-8IMY (or successor form) before receiving its first payment under this Agreement and at any other time reasonably requested by Agent or Borrower; or

(v) such other form or forms, including IRS Form W-9 (or

successor form), as may be required under the Code or other laws of the United States as a condition to exemption from, or reduction of, United States withholding or backup withholding tax before receiving its first payment under this Agreement and at any other time reasonably requested by Agent or Borrower. Agent and each such Lender agree promptly to notify Agent and Borrower of any change in circumstances which would modify or render invalid any claimed exemption or reduction.

of, withholding tax in a jurisdiction other than the United States or backup withholding, Agent or such Lender agrees with and in favor of Agent and Borrower to deliver to Agent any such form or forms as may be required as a condition to exemption from, or reduction of, foreign withholding or backup withholding tax before receiving its first payment under this Agreement and at any other time reasonably requested by Agent or Borrower.

Agent and each such Lender agrees promptly to notify Agent and Borrower of any change in circumstances which would modify or render invalid any claimed exemption or reduction.

(d) If any Lender claims exemption from, or reduction of, withholding

tax and such Lender sells, assigns, grants a participation in, or otherwise transfers all or part of the Obligations of Borrower, such Lender agrees to notify Agent and Borrower of the percentage amount in which it is no longer the beneficial owner of Obligations of Borrower. To the extent of such percentage amount, Agent and Borrower will treat such Lender’s documentation provided pursuant to Sections 10.11(b), 10.11(c) or 10.11(j) as no longer valid. With respect to such percentage amount, such Lender may provide new documentation, pursuant to Sections 10.11(b), 10.11(c) or 10.11(j), if applicable.

(e) If any Lender is entitled to a reduction in the applicable

withholding tax, Agent may withhold from any payment to such Lender an amount equivalent to the applicable withholding tax after taking into account such reduction. If the forms or other documentation required by subsection (b), (c) or (j) of this Section 10.11 are not delivered to Agent, then Agent may withhold from any payment to such Lender not providing such forms or other documentation an amount equivalent to the applicable withholding tax.

(f) If the IRS or any other Governmental Authority of the United

States or other jurisdiction asserts a claim that Agent or Borrower did not properly withhold tax from amounts paid to or for the account of any Lender due to a failure on the part of the Lender (because the appropriate form was not delivered, was not properly executed, or because such Lender failed to notify Agent or Borrower of a change in circumstances which rendered the exemption from, or reduction of, withholding tax ineffective, or for any other reason) such Lender shall indemnify and hold Agent and Borrower harmless for all amounts paid, directly or indirectly, by Agent or Borrower, as tax or otherwise, including penalties and interest, and including any taxes imposed by any jurisdiction on the amounts payable to Agent under this Section 10.11, together with all costs and expenses (including attorneys’ fees and expenses). The obligation of the Lenders under this subsection shall survive the payment of all Obligations and the resignation or replacement of Agent.

(g) [Intentionally Omitted].

(h) If Agent or any Lender determines, in its sole discretion, that it has

received a refund or credit of any Taxes (each, a “Tax Benefit”) which Borrower has paid an additional or indemnification amount pursuant to this Section 10.11, it shall pay to Borrower an amount equal to such Tax Benefit, net of all reasonable and documented out-of-pocket expenses incurred by Agent or such Lender, as the case may be, in connection with such refund or credit and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that Borrower agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to Agent or such Lender within a reasonable time after receipt of written notice that Agent or such Lender is required to repay such Tax Benefit to such Governmental Authority.

(i) If Borrower determines in good faith that a reasonable basis exists

for contesting Taxes with respect to which the Borrower has paid an additional or indemnification amount pursuant to this Section 10.11 that Borrower believes were not correctly or legally asserted by the relevant Government Authority, Agent or the applicable Lender, as the case may be, shall use reasonable efforts to cooperate with Borrower at Borrower’s expense if requested by Borrower with a view to obtaining a refund, credit or benefit in respect of such Tax.

(j) 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 Borrower and Agent at the time or times prescribed by law and at such time or times reasonably requested by Borrower or Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by Borrower or Agent as may be necessary for Borrower and Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this Section 10.11(j), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

(k) Each party’s obligations under this Section 10.11 shall survive the

resignation or replacement of Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Revolver Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.

10.12 Collateral Matters.

(a) The Lenders hereby irrevocably authorize (and by its entering into

a Bank Product Agreement, each Bank Product Provider shall be deemed to authorize) Agent to, and Agent shall, release any Lien on any Collateral (i) upon the termination of the Revolver Commitments and payment and satisfaction in full by Borrower of all Obligations, (ii) constituting property, including any Subsidiary, being sold or disposed of if a release is required or requested in connection therewith and if Borrower certifies to Agent that the sale or disposition is permitted under Section 6.7 of this Agreement or the other Loan Documents (and

Agent may rely conclusively on any such certificate, without further inquiry), (iii) which is being removed as a Pledged Investment in accordance with Section 5.2, (iv) constituting property in which Borrower or its Subsidiaries owned no interest at the time the Agent’s Lien was granted nor at any time thereafter, or (v) constituting property leased to Borrower or its Subsidiaries under a lease that has expired or is terminated in a transaction permitted under this Agreement. Except as provided above, Agent will not execute and deliver a release of any Lien on any Collateral, release Guarantor from any obligations under any Guaranty, or contractually subordinate any of Agent’s Liens, without the prior written authorization of (y) if the release is not with respect to an immaterial Guarantor, of if, with respect to the Collateral, the release or contractual subordination is with respect to all or substantially all of the Collateral, all of the Lenders, or (z) otherwise, the Required Lenders. Upon request by Agent or Borrower at any time, the Lenders will confirm in writing Agent’s authority to release any such Liens on particular types or items of Collateral pursuant to this Section 10.12; provided, however, that (1) Agent shall not be required to execute any document necessary to evidence such release on terms that, in Agent’s opinion, would expose Agent to liability or create any obligation or entail any consequence other than the release of such Lien without recourse, representation, or warranty, and (2) such release shall not in any manner discharge, affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of Borrower in respect of) all interests retained by Borrower, including, the proceeds of any sale, all of which shall continue to constitute part of the Collateral.

(b) Agent shall have no obligation whatsoever to any of the Lenders

(or the Bank Product Providers) to assure that the Collateral exists or is owned by Borrower or is cared for, protected, or insured or has been encumbered, or that the Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, or enforced or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or

available to Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, subject to the terms and conditions contained herein, Agent may act in any manner it may deem appropriate, in its sole discretion given Agent’s own interest in the Collateral in its capacity as one of the Lenders and that Agent shall have no other duty or liability whatsoever to any Lender (or to any Bank Product Provider) as to any of the foregoing, except as otherwise provided herein.

10.13 Restrictions on Actions by Lenders; Sharing of Payments.

(a) Each of the Lenders agrees that it shall not, until an Event of

Default has occurred and is continuing, without the express written consent of Agent, and that it shall, to the extent it is lawfully entitled to do so, upon the written request of Agent, set off against the Obligations, any amounts owing by such Lender to Borrower or any deposit accounts of Borrower now or hereafter maintained with such Lender. Each of the Lenders further agrees that it shall not, unless specifically requested to do so in writing by Agent (which request shall not be made by Agent unless an Event of Default has occurred and is continuing), take or cause to be taken any action, including, the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral.

(b) If, at any time or times any Lender shall receive (i) by payment,

foreclosure, setoff, or otherwise, any proceeds of Collateral or any payments with respect to the Obligations, except for any such proceeds or payments received by such Lender from Agent pursuant to the terms of this Agreement, or (ii) payments from Agent in excess of such Lender’s ratable portion of all such distributions by Agent, such Lender promptly shall (1) turn the same over to Agent, in kind, and with such endorsements as may be required to negotiate the same to Agent, or in immediately available funds, as applicable, for the account of all of the Lenders and for application to the Obligations in accordance with the applicable provisions of this Agreement, or (2) purchase, without recourse or warranty, an undivided interest and participation in the Obligations owed to the other Lenders so that such excess payment received shall be applied ratably as among the Lenders in accordance with their Pro Rata Shares; provided, however, that to the extent that such excess payment received by the purchasing party is thereafter recovered from it, those purchases of participations shall be rescinded in whole or in part, as applicable, and the applicable portion of the purchase price paid therefor shall be returned to such purchasing party, but without interest except to the extent that such purchasing party is required to pay interest in connection with the recovery of the excess payment.

10.14 Agency for Perfection. Agent hereby appoints each other Lender (and

each Bank Product Provider) as its agent (and each Lender hereby accepts (and by its entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to accept) such appointment) for the purpose of perfecting the Agent’s Liens in assets which, in accordance with Article 8 or Article 9, as applicable, of the Uniform Commercial Code can be perfected only by possession or control. Should any Lender obtain possession or control of any such Collateral, such Lender shall notify Agent thereof, and, promptly upon Agent’s request therefor shall deliver possession or control of such Collateral to Agent or in accordance with Agent’s instructions.

10.15 Payments by Agent to the Lenders. All payments to be made by Agent to

the Lenders shall be made by bank wire transfer of immediately available funds pursuant to such wire transfer instructions as each party may designate for itself by written notice to Agent. Concurrently with each such payment, Agent shall identify whether such payment (or any portion thereof) represents principal, premium, fees, or interest of the Obligations.

10.16 Concerning the Collateral and Related Loan Documents. Each member of

the Lender Group authorizes and directs Agent to enter into this Agreement and the other Loan Documents. Each member of the Lender Group agrees (and by its entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to agree) that any action taken by Agent in accordance with the terms of this Agreement or the other Loan Documents relating to the Collateral and the exercise by Agent of its powers set forth therein or herein, together with such other powers that are reasonably incidental thereto, shall be binding upon all of the Lenders (and such Bank Product Provider).

10.17 Field Examinations and Examination Reports; Confidentiality;

Disclaimers by Lenders; Other Reports and Information. By becoming a party to this Agreement, each Lender:

(a) is deemed to have requested that Agent furnish such Lender,

promptly after it becomes available, (i) a copy of each field examination or examination report

prepared by Agent, and (ii) a copy of each document delivered to Agent pursuant to Sections 5.2(a), (b), (c), (d) and (f)(i) (each a “Report” and collectively, “Reports”), and Agent shall so furnish each Lender with such Reports,

(b) expressly agrees and acknowledges that Agent does not (i) make

any representation or warranty as to the accuracy of any Report, and (ii) shall not be liable for any information contained in any Report,

comprehensive audits or examinations, that Agent or other party performing any examination will inspect only specific information regarding Borrower and will rely significantly upon the books of Borrower and the other Loan Parties, as well as on representations of Borrower’s personnel,

(d) agrees to keep all Reports and other material, non-public

information regarding Borrower and its Subsidiaries and their operations, assets, and existing and contemplated business plans in a confidential manner in accordance with Section 11.10, and

(e) without limiting the generality of any other indemnification

provision contained in this Agreement, agrees: (i) to hold Agent and any other Lender preparing a Report harmless from any action the indemnifying Lender may take or fail to take or any conclusion the indemnifying Lender may reach or draw from any Report in connection with any loans or other credit accommodations that the indemnifying Lender has made or may make to Borrower, or the indemnifying Lender’s participation in, or the indemnifying Lender’s purchase of, a loan or loans of Borrower, and (ii) to pay and protect, and indemnify, defend and hold Agent, and any such other Lender preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including, attorneys fees and costs) incurred by Agent and any such other Lender preparing a Report as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender.

In addition to the foregoing: (x) any Lender may from time to time request of Agent in writing that Agent provide to such Lender a copy of any report or document provided by Borrower to Agent that has not been contemporaneously provided by Borrower to such Lender, and, upon receipt of such request, Agent promptly shall provide a copy of same to such Lender, (y) to the extent that Agent is entitled, under any provision of the Loan Documents, to request additional reports or information from Borrower, any Lender may, from time to time, reasonably request Agent to exercise such right

as specified in such Lender’s notice to Agent, whereupon Agent promptly shall request of Borrower the additional reports or information reasonably specified by such Lender, and, upon receipt thereof from Borrower, Agent promptly shall provide a copy of same to such Lender, and (z) any time that Agent renders to Borrower a statement regarding the Loan Account, Agent shall send a copy of such statement to each Lender.

10.18 Several Obligations; No Liability. Notwithstanding that certain of the

Loan Documents now or hereafter may have been or will be executed only by or in favor of Agent in its capacity as such, and not by or in favor of the Lenders, any and all obligations on the part of Agent (if any) to make any credit available hereunder shall constitute the several (and not

joint) obligations of the respective Lenders on a ratable basis, according to their respective Revolver Commitments, to make an amount of such credit not to exceed, in principal amount, at any one time outstanding, the amount of their respective Revolver Commitments. Nothing contained herein shall confer upon any Lender any interest in, or subject any Lender to any liability for, or in respect of, the business, assets, profits, losses, or liabilities of any other Lender. Each Lender shall be solely responsible for notifying its Participants of any matters relating to the Loan Documents to the extent any such notice may be required, and no Lender shall have any obligation, duty, or liability to any Participant of any other Lender. Except as provided in Section 10.7, no member of the Lender Group shall have any liability for the acts of any other member of the Lender Group. No Lender shall be responsible to Borrower or any other Person for any failure by any other Lender to fulfill its obligations to make credit available hereunder, nor to advance for it or on its behalf in connection with its Revolver Commitment, nor to take any other action on its behalf hereunder or in connection with the financing contemplated herein.

10.19 Legal Representation of Agent. In connection with the negotiation,

drafting, and execution of this Agreement and the other Loan Documents, or in connection with future legal representation relating to loan administration, amendments, modifications, waivers, or enforcement of remedies, PH only has represented and only shall represent CNB in its capacity as Agent and as a Lender. Each other Lender hereby acknowledges that PH does not represent it in connection with any such matters.

10.20 Bank Product Providers. Each Bank Product Provider shall be deemed a

third party beneficiary hereof and of the provisions of the other Loan Documents for purposes of any reference in a Loan Document to the parties for whom Agent is acting. Agent hereby agrees to act as agent for such Bank Product Providers in respect of the Collateral and the Liens granted therein and, by virtue of entering into a Bank Product Agreement, the applicable Bank Product Provider shall be automatically deemed to have appointed Agent as its agent (in respect of the Collateral and the Liens granted therein) and to have accepted the benefits of the Loan Documents; it being understood and agreed that the rights and benefits of each Bank Product Provider under the Loan Documents consist exclusively of such Bank Product Provider’s being a beneficiary of the Liens and security interests (and, if applicable, guarantees) granted to Agent and the right to share in payments and collections out of the Collateral as more fully set forth herein. In addition, each Bank Product Provider, by virtue of entering into a Bank Product Agreement, shall be automatically deemed to have agreed that Agent shall have the right, but shall have no obligation, to establish, maintain, relax, or release reserves in respect of the Bank Product Obligations and that if reserves are established there is no obligation on the part of Agent to determine or insure whether the amount of any such reserve is appropriate or not. In connection with any such distribution of payments or proceeds of Collateral, Agent shall be entitled to assume no amounts are due or owing to any Bank Product Provider unless such Bank Product Provider has provided a written certification (setting forth a reasonably detailed calculation) to Agent as to the amounts that are due and owing to it and

such written certification is received by Agent a reasonable period of time prior to the making of such distribution. Agent shall have no obligation to calculate the amount due and payable with respect to any Bank Products, but may rely upon the written certification of the amount due and payable from the relevant Bank Product Provider. In the absence of an updated certification, Agent shall be entitled to assume that the amount due and payable to the relevant Bank Product Provider is the amount last certified to Agent by such Bank Product Provider as being due and payable (less any

distributions made to such Bank Product Provider on account thereof). Borrower may obtain Bank Products from any Bank Product Provider, although Borrower is not required to do so. Borrower acknowledges and agrees that no Bank Product Provider has committed to provide any Bank Products and that the providing of Bank Products by any Bank Product Provider is in the sole and absolute discretion of such Bank Product Provider. Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Product 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 such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or Guarantor.

ARTICLE XI MISCELLANEOUS

11.1 No Waivers, Remedies. No failure or delay on the part of Agent or any

Lender, or the holder of any interest in this Agreement in exercising any right, power, privilege, or remedy under this Agreement or any of the other Loan Documents shall impair or operate as a waiver thereof, nor shall any single or partial exercise of any such right, power, privilege, or remedy preclude any other or further exercise thereof or the exercise of any other right, power, privilege, or remedy. The waiver of any such right, power, privilege, or remedy with respect to particular facts and circumstances shall not be deemed to be a waiver with respect to other facts and circumstances. The remedies provided for under this Agreement or the other Loan Documents are cumulative and are not exclusive of any remedies that may be available to Agent or any Lender, or the holder of any interest in this Agreement at law, in equity, or otherwise.

11.2 Waivers and Amendments. No amendment or waiver of any provision of

this Agreement or any other Loan Document (other than Bank Product Agreements or the Fee Letter), and no consent with respect to any departure by Borrower therefrom, shall be effective unless the same shall be in writing and signed by the Required Lenders (or by Agent at the written request of the Required Lenders) and Borrower and then any such waiver or consent shall be effective, but only in the specific instance and for the specific purpose for which given; provided, however, that no such waiver, amendment, or consent shall, unless in writing and signed by all of the Lenders directly affected thereby and Borrower, do any of the following:

(a) increase or extend any Revolver Commitment of any Lender;

provided that no amendment, modification or waiver of any condition precedent, covenant, Event of Default or Unmatured Event of Default shall constitute an increase in any Revolver Commitment of any Lender,

(b) postpone or delay any date fixed by this Agreement or any other

Loan Document for any payment of principal, interest, fees, or other amounts due hereunder or under any other Loan Document,

extension of credit hereunder, or reduce any fees or other amounts payable hereunder or under any other Loan Document,

(d) change the Pro Rata Share that is required to take any action hereunder,

(e) amend, modify, or eliminate any of the provisions of Section 9.1 or

the definition of Eligible Transferee with respect to assignments to or participations with a Loan Party or Affiliates of a Loan Party,

(f) amend or modify this Section or any provision of the Agreement

providing for consent or other action by all Lenders,

(g) other than as permitted by Section 10.12, release Agent’s Lien in and to any of the Collateral,

(h) change the definition of “Required Lenders” or “Pro Rata Share”,

(i) other than as permitted by Section 10.12, contractually subordinate any of the Agent’s Liens,

(j) other than as permitted by Section 10.12, release any Loan Party

from any obligation for the payment of money, or

(k) amend any of the provisions of Article X.

and, provided further, however, (a) that no amendment, waiver or consent shall, unless in writing and signed by Agent or the Issuing Lender, as applicable, affect the rights or duties of Agent or the Issuing Lender, as applicable, under this Agreement or any other Loan Document and (b) Borrower may amend the Disclosure Statement from time to time with Agent’s written consent without the consent of any Lender.

If (i) any action to be taken by the Lender Group or Agent hereunder requires the greater than majority or unanimous consent, authorization, or agreement of all Lenders, and a Lender (“Holdout Lender”) fails to give its consent, authorization, or agreement, or (ii) if any Lender is a Defaulting Lender hereunder, or (iii) if any Lender (“Compensated Lender”) requests compensation pursuant to Section 2.13 or if Borrower is required to pay any additional amount to such Lender or any Governmental Authority for the account of such Lender pursuant to Section 10.11, then Agent or, if no Event of Default has occurred and is continuing, Borrower, upon at least 5 Business Days prior irrevocable notice to the Holdout Lender, Defaulting Lender or Compensated Lender, may permanently replace the Holdout Lender, Defaulting Lender or Compensated Lender with one or more substitute Lenders (each, a “Replacement Lender”), and the Holdout Lender, Defaulting Lender or Compensated Lender shall have no right to refuse to be replaced hereunder. Such notice to replace the Holdout Lender, Defaulting Lender or Compensated Lender shall specify an effective date for such replacement, which date shall not be later than 15 Business Days after the date such notice is given. Prior to the effective date of such replacement, the Holdout Lender, Defaulting Lender or Compensated Lender, as applicable, and

each Replacement Lender shall execute and deliver an Assignment and Acceptance, subject only to the Holdout Lender, Defaulting Lender or Compensated Lender, as applicable, being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever. If the Holdout Lender, Defaulting Lender or Compensated Lender shall refuse or fail to execute and deliver any such Assignment and Acceptance prior to the effective date of such replacement, the Holdout Lender, Defaulting Lender or Compensated Lender shall be deemed to have executed and delivered such Assignment and Acceptance. The replacement of any Holdout Lender, Defaulting Lender or Compensated Lender shall be made in accordance with the terms of Section 9.1. Until such time as the Replacement Lenders shall have acquired all of the Obligations, the Revolver Commitments, and the other rights and obligations of the Holdout Lender, Defaulting Lender or Compensated Lender hereunder and under the other Loan Documents, the Holdout Lender, Defaulting Lender or Compensated Lender, as applicable, shall remain obligated to make its Pro Rata Share of Loans and to purchase a participation in each Letter of Credit, in an amount equal to its Pro Rata Share of the Risk Participation Liability of such Letter of Credit.

11.3 Notices. Except as otherwise provided herein, all notices, demands,

instructions, requests, and other communications required or permitted to be given to, or made upon, any party hereto shall be in writing and shall be personally delivered or sent by registered or certified mail, postage prepaid, return receipt requested, or by courier, electronic mail (at such e-mail addresses as a party may designate in accordance herewith), or telefacsimile and shall be deemed to be given for purposes of this Agreement on the day that such writing is received by the Person to whom it is to be sent pursuant to the provisions of this Agreement. Unless otherwise

specified in a notice sent or delivered in accordance with the foregoing provisions of this Section 11.3, notices, demands, requests, instructions, and other communications in writing shall be given to or made upon the respective parties hereto at their respective addresses (or to their respective telefacsimile numbers) indicated on Exhibit 11.3 attached hereto.

11.4 Headings. Article and Section headings used in this Agreement and the

table of contents preceding this Agreement are for convenience of reference only and shall neither constitute a part of this Agreement for any other purpose nor affect the construction of this Agreement. The foregoing shall apply to each other Loan Document mutatis mutandis.

11.5 Execution in Counterparts; Effectiveness. This Agreement may be

executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Agreement. Delivery of an executed counterpart of this Agreement by telefacsimile or other electronic method of transmission shall be equally as effective as delivery of an original executed counterpart of this Agreement. Any party delivering an executed counterpart of this Agreement by telefacsimile or other electronic method of transmission also shall deliver an original executed counterpart of this Agreement but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Agreement. The foregoing shall apply to each other Loan Document mutatis mutandis.

11.6 GOVERNING LAW. EXCEPT AS SPECIFICALLY SET FORTH

IN ANY OTHER LOAN DOCUMENT: (A) THIS AGREEMENT AND THE OTHER

LOAN DOCUMENTS SHALL BE DEEMED TO HAVE BEEN MADE IN THE STATE OF NEW YORK; AND (B) THE VALIDITY OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AND THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF AND THEREOF, AND THE RIGHTS OF THE PARTIES THERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.

11.7 JURISDICTION AND VENUE. TO THE EXTENT THEY MAY

LEGALLY DO SO, THE PARTIES HERETO AGREE THAT ALL ACTIONS, SUITS, OR PROCEEDINGS ARISING BETWEEN ANY MEMBER OF THE LENDER GROUP OR BORROWER IN CONNECTION WITH THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS SHALL BE TRIED AND LITIGATED ONLY IN THE STATE OR FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK; PROVIDED HOWEVER THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT AT AGENT’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE AGENT ELECTS TO BRING SUCH ACTION TO THE EXTENT SUCH COURTS HAVE IN PERSONAM JURISDICTION OVER THE RELEVANT OBLIGOR OR IN REM JURISDICTION OVER SUCH COLLATERAL OR OTHER PROPERTY. BORROWER AND EACH MEMBER OF THE LENDER GROUP, TO THE EXTENT THEY MAY LEGALLY DO SO, HEREBY WAIVE ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 11.7 AND STIPULATE THAT THE STATE AND FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK SHALL HAVE IN PERSONAM JURISDICTION AND VENUE OVER SUCH PERSON FOR THE PURPOSE OF LITIGATING ANY SUCH DISPUTE, CONTROVERSY, OR PROCEEDING ARISING

OUT OF OR RELATED TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS. TO THE EXTENT PERMITTED BY LAW, SERVICE OF PROCESS SUFFICIENT FOR PERSONAL JURISDICTION IN ANY ACTION AGAINST BORROWER OR ANY MEMBER OF THE LENDER GROUP MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO ITS ADDRESS INDICATED ON EXHIBIT 11.3 ATTACHED HERETO.

11.8 WAIVER OF TRIAL BY JURY. BORROWER AND EACH

MEMBER OF THE LENDER GROUP, TO THE EXTENT THEY MAY LEGALLY DO SO, HEREBY EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, CAUSE OF ACTION, OR PROCEEDING ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS, OR IN ANY WAY CONNECTED WITH, OR RELATED TO, OR INCIDENTAL TO, THE DEALINGS OF THE PARTIES HERETO WITH RESPECT TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND IRRESPECTIVE OF WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE. TO THE EXTENT THEY MAY LEGALLY DO SO, BORROWER AND EACH MEMBER OF THE LENDER GROUP HEREBY AGREE THAT ANY SUCH CLAIM, DEMAND, ACTION, CAUSE

OF ACTION, OR PROCEEDING SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 11.8 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE OTHER PARTY OR PARTIES HERETO TO WAIVER OF ITS OR THEIR RIGHT TO TRIAL BY JURY.

11.9 Independence of Covenants. All covenants under this Agreement and

other Loan Documents shall be given independent effect so that if a particular action or condition is not permitted by any one covenant, the fact that it would be permitted by another covenant shall not avoid the occurrence of an Event of Default or Unmatured Event of Default if such action is taken or condition exists.

11.10 Confidentiality. Agent and Lenders each individually (and not jointly or

jointly and severally) agree that material, non-public information regarding Borrower and its Subsidiaries, their operations, assets, and existing and contemplated business plans shall be treated by Agent and the Lenders in a confidential manner, and shall not be disclosed by Agent and the Lenders to Persons who are not parties to this Agreement, except: (a) to attorneys for and other advisors, accountants, auditors, and consultants to any member of the Lender Group, so long as such other attorneys, advisors, accountants, auditors, and consultants are informed as to the confidential nature of such information and are instructed to treat such information as confidential or are otherwise obligated to maintain the confidentiality of such information, (b) to Subsidiaries and Affiliates of any member of the Lender Group (including the Bank Product Providers), provided that any such Subsidiary or Affiliate shall have agreed to receive such information hereunder subject to the terms of this Section 11.10, (c) as may be required by statute, decision, or judicial or administrative order, rule, regulation or any Governmental Authority (other than any state, federal or foreign authority or examiner regulating banks or banking); provided that Agent or any such Lender shall notify Borrower of such requirement prior to any disclosure of such information to a party that Agent or such Lender reasonably believes may not keep such information confidential and shall reasonably cooperate with Borrower in any lawful effort by Borrower to prevent or limit such disclosure or otherwise protect the confidentiality of such information, (d) as may be agreed to in

advance by Borrower or its Subsidiaries or as requested or required by any Governmental Authority pursuant to any subpoena or other legal process; provided that Agent or any such Lender shall notify Borrower of such requirement prior to any disclosure of such information to a party that Agent or such Lender reasonably believes may not keep such information confidential and shall reasonably cooperate with Borrower in any lawful effort by Borrower to prevent or limit such disclosure or otherwise protect the confidentiality of such information, (e) as requested or required by any state, federal or foreign authority or examiner regulating banks or banking, (f) as to any such information that is or becomes generally available to the public (other than as a result of prohibited disclosure by Agent or the Lenders), (g) in connection with any assignment, prospective assignment, sale, prospective sale, participation or prospective participations, or pledge or prospective pledge of any Lender’s interest under this Agreement, provided that any such assignee, prospective assignee, purchaser, prospective purchaser, participant, prospective participant, pledgee, or prospective pledgee shall have agreed in writing to receive such information hereunder subject to the terms of this Section, and (h) in connection with any litigation or other adversary proceeding involving parties hereto which such litigation or adversary proceeding involves claims related to the rights or duties of such parties under this Agreement or the other Loan Documents. The

provisions of this Section 11.10 shall survive for 2 years after the payment in full of the Obligations.

11.11 Complete Agreement. This Agreement, together with the exhibits hereto,

the Disclosure Statement, and the other Loan Documents is intended by the parties hereto as a final expression of their agreement and is intended as a complete statement of the terms and conditions of their agreement with respect to the subject matter of this Agreement and shall not be contradicted or qualified by any other agreement, oral or written, before the date hereof. The foregoing to the contrary notwithstanding, all Bank Product Agreements, if any, are independent agreements governed by the written provisions of such Bank Product Agreements, which will remain in full force and effect, unaffected by any repayment, prepayments, acceleration, reduction, increase, or change in the terms of any credit extended hereunder, except as otherwise expressly provided in such Bank Product Agreement.

11.12 USA Patriot Act Notice. Each Lender hereby notifies the Borrower that

pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56) signed into law October 26, 2001 (the “USA Patriot Act”), it may be required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow such Lender to identify the Borrower in accordance with the USA Patriot Act.

[Signature pages to follow.]

EXHIBITS AND SCHEDULES

Exhibit A-1 Form of Assignment and Acceptance

Exhibit A-2 Form of Secured Promissory Note for Advances

Exhibit B-1 Form of Bank Product Provider Letter Agreement

Exhibit P-1 Form of Pledged Investments Certificate

Exhibit R-1 Persons Authorized to Request a Loan

Exhibit R-2 Form of Request for Borrowing

Exhibit R-3 Form of Request for Conversion/ Continuation

Exhibit 11.3 Addresses and Information for Notices

Schedule A-1 Agent’s Account

Schedule B-1 Pledged Investments

Schedule C-1 Commitments

EXHIBITS TO

AMENDMENT NUMBER EIGHT TO CREDIT AGREEMENT,

AMENDMENT TO SECURITY AGREEMENT,

AND AMENDMENT TO GENERAL CONTINUING GUARANTY

Exhibit A Amended Credit Agreement

Exhibit B Exhibit R-2 Form of Request for Borrowing

Exhibit C Exhibit R-3 Form of Request for Conversion/Continuation

Exhibit D Schedule C-1 List of Commitments

Exhibit E Form of Compliance Certificate

Exhibit F Reaffirmation and Consent of Guarantor

Exhibit F

REAFFIRMATION AND CONSENT

Reference is hereby made to that certain AMENDMENT NUMBER EIGHT TO CREDIT AGREEMENT, dated as of November 12, 2021 (the “Amendment”), by and among on the one hand, the lenders from time to time party thereto (such lenders, together with their respective successors and permitted assigns, are referred to hereinafter each individually as a “Lender” and collectively as the “Lenders”) and CITY NATIONAL BANK, a national banking association, as the arranger and administrative agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, “Agent”), and, on the other hand, ACRC LENDER LLC, a Delaware limited liability company (“Borrower”). All capitalized terms used herein but not otherwise defined herein shall have the meanings ascribed to them in that certain Credit Agreement dated as of March 12, 2014 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among Borrower, Agent, and Lenders. The undersigned Guarantor hereby (a) represents and warrants to Agent that the execution, delivery, and performance of this Reaffirmation and Consent have been duly authorized by Guarantor and all necessary corporate action in respect thereof has been taken, and the execution, delivery, and performance of this Reaffirmation and Consent does not require any consent or approval of any other Person that has not been obtained (except for such consents or approvals as could not reasonably be expected to have a Material Adverse Effect on the Loan Parties, taken as a whole); (b) consents to the amendment of the Credit Agreement as set forth in the Amendment; (c) acknowledges and reaffirms its obligations owing to the Agent and the Lenders under any Loan Documents to which it is a party; (d) restates, ratifies and reaffirms each and every term and condition set forth in the Credit Agreement and other Loan Documents to which it is a party effective as of the date of the Amendment; (e) confirms that all Debt of the Guarantor evidenced by the Loan Documents to which it is a party is unconditionally owing by it to Agent and the Lenders, without offset, defense, withholding, counterclaim or deduction of any kind, nature or description whatsoever; and (f) agrees that each of the Loan Documents to which it is a party is and shall remain in full force and effect.

Although the undersigned has been informed of the matters set forth herein and has acknowledged and agreed to same, the undersigned understands that neither Agent nor any Lender has any obligation to inform it of such matters in the future or to seek its acknowledgment or agreement to future amendments, and nothing herein shall create such a duty.

Delivery of an executed counterpart of this Reaffirmation and Consent by telefacsimile or other electronic method of transmission shall be equally as effective as delivery of an original executed counterpart of this Reaffirmation and Consent. Any party delivering an executed counterpart of this Reaffirmation and Consent by telefacsimile or other electronic method of transmission also shall deliver an original executed counterpart of this Reaffirmation and Consent but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Reaffirmation and Consent.

The validity of this Reaffirmation and Consent, its construction, interpretation and enforcement, and the rights of the parties hereunder, shall be determined under, governed by, and construed in accordance with the law of the State of New York.

[signature page follows]

IN WITNESS WHEREOF, the undersigned has caused this Reaffirmation and Consent to be executed as of the date of the Amendment.


									ARES COMMERCIAL REAL ESTATE CORPORATION, a Maryland corporation

						By:			/s/ Elaine McKay
						Name:			Elaine McKay
						Title:			Vice President

Exhibit 99.1

Ares Commercial Real Estate Corporation Adds New Borrowing Capacity to Support Further Growth

Amends Secured Term Loan to Increase Capacity, Reduce All-in Pricing and Extend Maturity

Increases Size of CNB Facility by $25.0 Million to $75.0 Million

NEW YORK — November 15, 2021 — Ares Commercial Real Estate Corporation (the "Company") (NYSE: ACRE) announced today that it has entered into an agreement to increase its existing Term Loan from $60.0 million to $150.0 million, reduce the all-in pricing from LIBOR plus 5.75% to an initial fixed rate of 4.50% and extend the initial maturity to November 2026.

In addition, the Company announced that it increased the size of its secured revolving facility with City National Bank (“CNB Facility”) from $50.0 million to $75.0 million. Collectively, the Term Loan and the CNB Facility will be used to fund new loan originations, increase the investment portfolio, and for other working capital and general corporate purposes.

“The increases in the Term Loan and the CNB Facility provide us with strategically important and attractive financing to support the growth in our investment activity and help us to achieve our target leverage levels and enhance our earnings,” said Bryan Donohoe, Chief Executive Officer of ACRE. “Utilizing the internal resources of our manager, we were able to execute both financing transactions directly, resulting in significant cost savings to ACRE.”

About Ares Commercial Real Estate Corporation

Ares Commercial Real Estate Corporation is a specialty finance company primarily engaged in originating and investing in commercial real estate loans and related investments. Through its national direct origination platform, the Company provides a broad offering of flexible and reliable financing solutions for commercial real estate owners and operators. The Company originates senior mortgage loans, as well as subordinate financings, mezzanine debt and preferred equity, with an emphasis on providing value added financing on a variety of properties located in liquid markets across the United States. Ares Commercial Real Estate Corporation elected and qualified to be taxed as a real estate investment trust and is externally managed by a subsidiary of Ares Management Corporation. For more information, please visit www.arescre.com. The contents of such website are not, and should not be deemed to be, incorporated by reference herein.

Forward-Looking Statements

Statements included herein, may constitute “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995, Section 27A of the Securities Act of 1933, as amended and Section 21E of the Securities and Exchange Act of 1934, as amended, which relate to future events or the Company’s future performance or financial condition. Such statements are intended to be identified by using words such as “believe,” “expect,” “intend,” “estimate,” “anticipate,” “will,” “project,” “plan” and similar expressions in connection with any discussion of future operating or financial performance. Readers are cautioned not to put undue reliance on such forward-looking statements. These statements are not guarantees of future performance, condition or results and involve a number of risks and uncertainties. Actual results may differ materially from those in the forward-looking statements as a result of a number of factors, including the risks described from time to time in its filings with the Securities and Exchange Commission. Any forward-looking statement, including any contained herein, speaks only as of the time of this press release and Ares Commercial Real Estate Corporation undertakes no duty to update any forward-looking statements made herein.

Investor Relations Contact:

Ares Commercial Real Estate Corporation

Carl Drake or Veronica Mendiola Mayer

(888) 818-5298

iracre@aresmgmt.com