Filed
Pursuant to Rule 424(b)(3)
Registration
No. 333-274666
PROSPECTUS
SUPPLEMENT NO. 9
(To
Prospectus dated April 12, 2024)
![](https://www.sec.gov/Archives/edgar/data/1847874/000149315224035827/ex99-1_001.jpg)
Mobile
Infrastructure Corporation
Up
to 37,156,865 Shares of Common Stock
Warrant
to Purchase 2,553,192 Shares of Common Stock
This
prospectus supplement is being filed to update and supplement the information contained in the prospectus, dated April 12, 2024 (the
“Prospectus”), with the information contained in our Current Report on Form 8-K, filed with the Securities and Exchange
Commission on September 11, 2024 (the “Current Report”). Accordingly, we have attached the Current Report to this
prospectus supplement.
The
Prospectus and this prospectus supplement relate to the offer and sale from time to time by the selling securityholders named in the
Prospectus or their permitted transferees of
| (A) | up
to 37,156,865 shares of our common stock, par value $0.0001 per share (the “Common
Stock”), consisting of: |
|
(i) |
3,937,246
shares of Common Stock issued as merger consideration to Color Up (as defined in the Prospectus) in connection with the consummation
of the Merger (as defined in the Prospectus) based upon an implied equity consideration value of $10.00 per share; in 2021, Color
Up purchased 2,624,831 shares of Legacy MIC Common Stock (as defined in the Prospectus) at a price per share of $11.75, which shares
were exchanged in the Merger for the 3,937,246 shares of Common Stock for an effective price per share of approximately $7.83; |
|
|
|
|
(ii) |
up
to 2,553,192 shares of Common Stock issuable upon the exercise of a warrant to purchase Common Stock (the “Warrants”)
at an exercise price of $7.83 per share, which was initially the Legacy MIC Warrant (as defined in the Prospectus); |
|
|
|
|
(iii) |
907,000
shares of Common Stock issued upon the conversion of Class A ordinary shares, par value $0.0001 per share, of Fifth Wall Acquisition
Corp. III, a Cayman Islands exempted company (“FWAC”), in connection with the Domestication (as defined in the
Prospectus) that were originally purchased by Fifth Wall Acquisition Sponsor III LLC, a Cayman Islands limited liability company
(“Sponsor”), in a private placement, which occurred simultaneously with the initial public offering of FWAC, at
$10.00 per share for an aggregate purchase price of $9,070,000; |
|
|
|
|
(iv) |
2,020,000
shares of Common Stock issued upon the conversion of Class B ordinary shares, par value $0.0001 per share, of FWAC, in connection
with the Domestication, originally purchased by the Sponsor for approximately $0.003 per share, comprised of (a) 1,900,000 shares
of Common Stock held by the Sponsor and (b) 120,000 shares of Common Stock transferred by the Sponsor to four former directors of
FWAC; |
|
(v) |
13,787,462
shares of Common Stock issued upon the conversion of 46,000 shares of our Series 2 Convertible Preferred Stock, par value $0.0001
per share, purchased by the Preferred PIPE Investors (as defined in the Prospectus) for $1,000 per share for an aggregate purchase
price of $46,000,000, inclusive of 1,253,404 shares of Common Stock issued to the Preferred PIPE Investors upon the conversion of
Dividends (as defined in the Prospectus), resulting in an effective purchase price of approximately $3.34 per share; and |
|
|
|
|
(vi) |
up
to 13,951,965 shares of Common Stock issuable in the event of our election to issue shares of Common Stock in lieu of cash payments
upon redemption of Common Units (as defined in the Prospectus); and |
This
prospectus supplement updates and supplements the information in the Prospectus and is not complete without, and may not be delivered
or utilized except in combination with, the Prospectus, including any amendments or supplements thereto. This prospectus supplement is
qualified by reference to the Prospectus, including any amendments or supplements thereto, except to the extent that the information
in this prospectus supplement updates and supersedes the information contained therein.
Our
Common Stock is listed on the NYSE American LLC under the symbol “BEEP.” On September 10, 2024, the closing price of our
Common Stock was $3.50. The Warrant will not be listed for trading.
We
are an “emerging growth company” as defined in Section 2(a) of the Securities Act of 1933, as amended, and are subject to
reduced public company reporting requirements. The Prospectus and this prospectus supplement comply with the requirements that apply
to an issuer that is an emerging growth company.
See
the section titled “Risk Factors” beginning on page 9 of the Prospectus to read about factors you should consider before
buying our securities.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of the securities to be issued
under the Prospectus or determined if the Prospectus or this prospectus supplement is truthful or complete. Any representation to the
contrary is a criminal offense.
The
date of this prospectus supplement is September 11, 2024.
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 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): September 11, 2024
MOBILE
INFRASTRUCTURE CORPORATION
(Exact
name of registrant as specified in its charter)
Maryland |
|
001-40415 |
|
98-1583957 |
(State
or other jurisdiction
of
incorporation) |
|
(Commission
File
Number) |
|
(IRS
Employer
Identification
No.) |
30
W. 4th Street
Cincinnati,
Ohio |
|
45202 |
(Address
of principal executive offices) |
|
(Zip
Code) |
Registrant’s
telephone number, including area code: (513) 834-5110
Not
applicable
(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:
☐ |
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, $0.0001 par value per share |
|
BEEP |
|
NYSE
American LLC |
Indicate
by check mark whether the registrant is an emerging growth company 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. ☐
Item
1.01 |
Entry
into a Material Definitive Agreement. |
On
September 11, 2024 (the “Closing Date”), Mobile Infrastructure Corporation (the “Company”) entered
into a credit agreement (the “Credit Agreement”) with Harvest Small Cap Partners, L.P. and Harvest Small Cap Partners
Master, Ltd. (collectively, the “Lenders”). The Credit Agreement provides for, among other things, a $40.4 million
revolving credit facility, maturing on September 11, 2025 (the “Revolving Facility”). Borrowings under the Revolving
Facility will accrue interest at a rate of 15.0% per annum, with interest payable in arrears at maturity or upon repayment of any principal
amount borrowed under the Revolving Facility.
In
consideration for the commitment to provide the Revolving Facility, the Company has agreed to issue (i) 250,000 shares of common stock,
par value $0.0001 per share (“Common Stock”), of the Company to the Lenders on the Closing Date and (ii) an additional
250,000 shares of Common Stock (the “Additional Shares”) if the Company draws $15.0 million or more under the Revolving
Facility (collectively, the “Consideration Shares”). Pursuant to the Joinder Agreement (as defined below), the Consideration
Shares are subject to a 180-day lock-up period commencing on the date of issuance of the Consideration Shares.
In
addition, on the Closing Date, the Lenders executed a joinder agreement (the “Joinder Agreement”) to that certain
Registration Rights Agreement, dated August 25, 2023, pursuant to which the Company has agreed to use its reasonable best efforts to
register the resale of the Consideration Shares via a registration statement on Form S-11 or Form S-3 to be filed with the Securities
and Exchange Commission on the earlier of (i) the date the Company files a post-effective amendment to its Registration Statement on
Form S-11 (File No. 333-274666) following the filing of the Company’s Annual Report on Form 10-K for the fiscal year ended December
31, 2024 and (ii) the thirtieth (30th) day after the Company is eligible to register for resale the Registrable Securities (as defined
in the Registration Rights Agreement) on a registration statement on Form S-3.
The
Credit Agreement contains representations and warranties, covenants and events of default customary for agreements of this type.
Mr.
Jeffrey Osher, co-chair of the Company’s board of directors, is the managing member of No Street Capital LLC, which serves as the
investment manager of Harvest Small Cap Partners, L.P. and Harvest Small Cap Partners Master, Ltd. Accordingly, the Revolving Facility
constitutes a related party transaction for the Company pursuant to Item 404 of Regulation S-K.
The
foregoing description of the Credit Agreement and the Joinder Agreement is a summary only and is qualified in its entirety by reference
to the full text of the Credit Agreement and the Joinder Agreement, copies of which are filed as Exhibit 10.1 and Exhibit 10.2 to this
Current Report and incorporated herein by reference.
Item
2.03 |
Creation
of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement |
The
information contained in the disclosure set forth in Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this
Item 2.03.
Item
3.02 |
Unregistered
Sales of Equity Securities |
The
information contained in the disclosure set forth in Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this
Item 3.02. The Consideration Shares will be exempt from registration under Section 4(a)(2) of the Securities Act of 1933, as amended.
Share
Repurchase Program
In
addition, on September 11, 2024, the Company issued a press release (the “Press Release”) announcing that its board
of directors (the “Board”) authorized a repurchase program (the “Share Repurchase Program”) for
the repurchase of up to $10,000,000 of shares of the Company’s outstanding Common Stock.
Repurchases
may be made from time to time through open market purchases or through privately negotiated transactions subject to market conditions,
applicable legal requirements and other relevant factors. Open market repurchases may be structured to occur in accordance with the requirements
of Rule 10b-18 of the Securities Exchange Act of 1934, as amended. The Company may also, from time to time, enter into Rule 10b5-1 plans
to facilitate repurchases of its shares under this authorization. The repurchase program does not obligate the Company to acquire any
particular amount of its Common Stock and may be suspended at any time at the Company’s discretion. The timing and number of shares
repurchased will depend on a variety of factors, including the stock price, business and market conditions, corporate and regulatory
requirements, alternative investment opportunities, acquisition opportunities, and other factors.
A
copy of the Press Release dated September 11, 2024, regarding the Share Repurchase Program is filed as Exhibit 99.1 to this Current Report
on Form 8-K.
Payment
of Preferred Stock Dividends
Also
on September 11, 2024, the Company announced that the Board declared the payment of accrued and unpaid dividends on the shares of Series
A Preferred Stock, par value $0.0001 per share (the “Series A Preferred Stock”), of the Company, which
will be paid at a rate of $319.81 per share on or about September 30, 2024 and accrued
and unpaid dividends on the shares of Series 1 Preferred Stock, par value $0.0001 per share (the “Series 1 Preferred Stock”),
of the Company, which will be paid at a rate of $299.84 per
share on or about September 30, 2024 (collectively, the “Prior Dividend”). The Prior Dividend will be payable
to the holders of record of the Series A Preferred Stock and the Series 1 Preferred Stock as of the close of business on September 10,
2024. Following the payment of the Prior Dividend, the Company will be current in the payment of all accrued and unpaid dividends for
all past dividend periods on the Series A Preferred Stock and Series 1 Preferred Stock. In addition,
the Board authorized and the Company declared the monthly dividend on the Series A Preferred Stock and the Series 1 Preferred Stock for
September, which will be paid at a rate of $4.791 per share of Series A Preferred Stock
and $4.583 per share of Series 1 Preferred Stock on October 14, 2024 (the “September
Dividend”). The September Dividend will be payable to holders of record of the Series A Preferred Stock and the Series 1 Preferred
Stock as of the close of business on September 29, 2024.
The
declaration and payment of future dividends is subject to the Board’s discretion and will be determined by the Board based on the
Company’s financial condition and such other considerations as the Board deems relevant.
Item
9.01 |
Financial
Statements and Exhibits. |
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.
|
MOBILE
INFRASTRUCTURE CORPORATION |
|
|
|
Date:
September 11, 2024 |
By: |
/s/
Stephanie Hogue |
|
Name: |
Stephanie
Hogue |
|
Title: |
President,
Treasurer, and Corporate Secretary |
EXHIBIT
10.1
CREDIT
AGREEMENT
dated
as of
September
11, 2024
among
MOBILE
INFRASTRUCTURE CORPORATION,
as
Borrower
and
The
Lenders Party Hereto
and
HARVEST
SMALL CAP PARTNERS, L.P.,
as
Administrative Agent
TABLE
OF CONTENTS
ARTICLE
I Definitions |
1 |
|
|
SECTION
1.01 Defined Terms |
1 |
SECTION
1.02 Terms Generally |
14 |
SECTION
1.03 Accounting Terms; GAAP |
14 |
SECTION
1.04 Divisions |
14 |
|
|
ARTICLE
II The Credits |
14 |
|
|
SECTION
2.01 Commitments |
14 |
SECTION
2.02 Loans and Borrowings |
15 |
SECTION
2.03 Requests for Borrowings |
15 |
SECTION
2.04 Funding of Borrowings |
15 |
SECTION
2.05 Termination and Reduction of Commitments |
16 |
SECTION
2.06 Repayment of Loans; Evidence of Debt |
17 |
SECTION
2.07 Prepayment of Loans |
17 |
SECTION
2.08 Equity Consideration |
17 |
SECTION
2.09 Interest |
18 |
SECTION
2.10 Taxes |
19 |
SECTION
2.11 Payments Generally; Pro Rata Treatment; Sharing of Set-offs |
23 |
SECTION
2.12 Mitigation Obligations; Replacement of Lenders |
24 |
SECTION
2.13 Defaulting Lenders |
25 |
|
|
ARTICLE
III Representations and Warranties |
26 |
|
|
SECTION
3.01 Organization; Powers |
26 |
SECTION
3.02 Authorization; Enforceability |
26 |
SECTION
3.03 Governmental Approvals; No Conflicts |
27 |
SECTION
3.04 Financial Condition; No Material Adverse Change |
27 |
SECTION
3.05 Properties |
27 |
SECTION
3.06 Intellectual Property |
27 |
SECTION
3.07 Litigation and Environmental Matters |
27 |
SECTION
3.08 Compliance with Laws and Agreements |
28 |
SECTION
3.09 Investment and Holding Company Status |
28 |
SECTION
3.10 Taxes |
28 |
SECTION
3.11 ERISA |
28 |
SECTION
3.12 Disclosure |
28 |
SECTION
3.13 Insurance |
29 |
SECTION
3.14 Margin Regulations |
29 |
SECTION
3.15 OFAC |
29 |
SECTION
3.16 Solvency |
29 |
SECTION
3.17 Brokers |
29 |
SECTION
3.18 Equity Consideration |
29 |
|
|
ARTICLE
IV Conditions |
30 |
|
|
SECTION
4.01 Effective Date |
30 |
SECTION
4.02 Each Credit Event |
31 |
ARTICLE
V Affirmative Covenants |
31 |
|
|
SECTION
5.01 Financial Statements; Ratings Change and Other Information |
31 |
SECTION
5.02 Notices of Material Events |
32 |
SECTION
5.03 Existence; Conduct of Business |
33 |
SECTION
5.04 Payment of Obligations |
33 |
SECTION
5.05 Maintenance of Properties; Insurance |
34 |
SECTION
5.06 Books and Records; Inspection Rights |
34 |
SECTION
5.07 Compliance with Laws, Charter Documents, etc |
34 |
SECTION
5.08 Use of Proceeds |
34 |
SECTION
5.09 Fiscal Year |
35 |
SECTION
5.10 Environmental Matters |
35 |
SECTION
5.11 Further Assurances |
35 |
|
|
ARTICLE
VI Negative Covenants |
35 |
|
|
SECTION
6.01 Fundamental Changes; Asset Sales |
35 |
SECTION
6.02 Investments, Loans, Advances and Acquisitions |
36 |
SECTION
6.03 Hedging Agreements |
36 |
SECTION
6.04 Restricted Payments |
36 |
SECTION
6.05 Transactions with Affiliates |
36 |
SECTION
6.06 Indebtedness |
37 |
SECTION
6.07 Amendment to Organizational Documents |
37 |
SECTION
6.08 Sanctions |
37 |
|
|
ARTICLE
VII Events of Default |
38 |
|
|
SECTION
7.01 Events of Default |
38 |
SECTION
7.02 Performance by Administrative Agent |
40 |
SECTION
7.03 Application of Funds |
40 |
|
|
ARTICLE
VIII The Administrative Agent |
41 |
|
|
SECTION
8.01 General |
41 |
SECTION
8.02 Administrative Agent May File Proof of Claim |
43 |
|
|
ARTICLE
IX Miscellaneous |
44 |
|
|
SECTION
9.01 Notices |
44 |
SECTION
9.02 Waivers; Amendments |
45 |
SECTION
9.03 Expenses; Indemnity; Damage Waiver |
47 |
SECTION
9.04 Successors and Assigns |
48 |
SECTION
9.05 Survival |
49 |
SECTION
9.06 Counterparts; Integration; Effectiveness; Joint and Several |
50 |
SECTION
9.07 Severability |
50 |
SECTION
9.08 Right of Setoff |
51 |
SECTION
9.09 Governing Law; Jurisdiction; Consent to Service of Process |
51 |
SECTION
9.10 WAIVER OF JURY TRIAL |
52 |
SECTION
9.11 Headings |
52 |
SECTION
9.12 Confidentiality |
52 |
SECTION
9.13 Interest Rate Limitation |
53 |
SECTION
9.14 Fiduciary Duty/No Conflicts |
53 |
SECTION
9.15 Payments Set Aside |
54 |
SCHEDULES: |
|
|
|
|
|
|
|
Schedule
1.01 |
|
– |
Commitments |
|
|
|
|
EXHIBITS: |
|
|
|
|
|
|
|
Exhibit
A |
|
– |
Form
of Note |
Exhibit
B |
|
– |
Form
of Borrowing Request |
Exhibit
C |
|
– |
Form
of Assignment of Tax Compliance Certificates |
CREDIT
AGREEMENT
This
CREDIT AGREEMENT, dated as of September 11, 2024, is entered into by and among MOBILE INFRASTRUCTURE CORPORATION, a Maryland corporation
(the “Borrower”), HARVEST SMALL CAP PARTNERS, L.P., a Delaware limited partnership, as an initial lender (“Onshore
Lender”), HARVEST SMALL CAP PARTNERS MASTER, LTD., a Cayman Islands exempted company, as an initial lender (in such capacity,
the “Offshore Lender” and, together with the Onshore Lender, the “Initial Lenders”; the Initial
Lenders, together with any other Person (including without limitation, any present or future Affiliate of the Initial Lender) that becomes
a party hereto pursuant to an Assignment Agreement, shall be referred to herein as the “Lenders” and each, a “Lender”),
and HARVEST SMALL CAP PARTNERS, L.P., a Delaware limited partnership, as administrative agent for the benefit of the Lenders (in such
capacity, the “Administrative Agent”).
WITNESSETH:
WHEREAS,
the Initial Lenders, on a joint and several basis, have agreed to extend a subordinated unsecured credit facility (the “Facility”)
to the Borrower consisting of up to $40,400,000 aggregate principal amount of Commitments, the proceeds of which will be used in accordance
with SECTION 5.08 hereunder.
NOW,
THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as
follows:
ARTICLE
I
Definitions
SECTION
1.01 Defined Terms. As used in this Agreement, the following terms have the meanings specified below:
“Administrative
Agent” has the meaning set forth in the preambles hereto.
“Affiliate”
means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or
is Controlled by or is under common Control with the Person specified.
“Applicable
Percentage” means, with respect to any Lender, the percentage of the Total Commitments represented by such Lender’s Commitment.
If the Commitments have terminated or expired, the Applicable Percentages shall be determined based upon the Commitments most recently
in effect, giving effect to any assignments.
“Assignment
and Acceptance” means an assignment and acceptance entered into by a Lender and an assignee (with the consent of any party
whose consent is required by SECTION 9.04), and accepted by the Administrative Agent, in a form approved by the Administrative Agent.
“Availability
Period” means the period from and including the Effective Date to but excluding the date that is thirty days (30) prior to
the Stated Maturity Date.
“Borrower”
has the meaning set forth in the preamble hereto.
“Borrowing”
means any Loan made during the Availability Period.
“Borrowing
Request” means a request by the Borrower for a Borrowing in accordance with SECTION 2.03.
“Business
Day” means any day other than Saturday, Sunday or any other day on which commercial banks in New York, New York are authorized
or required by law to close.
“Bylaws”
means the Borrower’s bylaws as in effect on the date hereof, as the same may be amended from time to time.
“Capital
Lease Obligations” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified
and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized
amount thereof determined in accordance with GAAP.
“Capital
Stock” means, collectively, all shares of capital stock (whether denominated as common or preferred stock), equity interests,
partnership, limited liability company, or membership interests, joint venture interests or other ownership interests in or equivalents
of or in a Person (other than an individual), whether voting or non-voting, and to the extent not included in the foregoing, any of a
member’s or partner’s control rights in such Person, including the rights to manage or participate in management, voting
rights, inspection rights and other rights.
“Charter
Document” means the Borrower’s articles of incorporation, as the same may be amended from time to time.
“Code”
means the Internal Revenue Code of 1986, as amended from time to time.
“Commitment”
means, with respect to each Lender, the commitment of such Lender to make Loans hereunder, expressed as an amount representing the maximum
aggregate amount of such Lender’s Credit Exposure hereunder, as such commitment may be reduced from time to time pursuant to SECTION
2.05 or assignments by or to such Lender pursuant to SECTION 9.04. The initial amount of such Lender’s Commitment is
set forth on Schedule 1.01, or in the Assignment and Acceptance pursuant to which such Lender shall have assumed its Commitment,
as applicable. The initial aggregate amount of the Lenders’ Commitments is $40,400,000.00.
“Common
Stock” has the meaning given to such term in the Charter Document.
“Control”
means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise, which includes the customary powers of a managing member
of any limited liability company, any general partner of any limited partnership, or any board of directors of a corporation. “Controlling”
and “Controlled” have meanings correlative thereto.
“Credit
Exposure” means, with respect to any Lender at any time, the sum of the outstanding principal amount of such Lender’s
Loans at such time.
“Debtor
Relief Laws” means any applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement, insolvency, fraudulent
conveyance, reorganization, or similar laws affecting the rights, remedies, or recourse of creditors generally, including without limitation
the Bankruptcy Code and all amendments thereto, as are in effect from time to time during the term of this Agreement.
“Default”
means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
“Defaulting
Lender” means any Lender that: (a) has failed to fund all or any portion of its Loans within two (2) Business Days of the date
such Loans were required to be funded hereunder unless such Lender notifies Administrative Agent and Borrower in writing that such failure
is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent,
together with any applicable default, shall be specifically identified in such writing) has not been satisfied; (b) has notified the
Borrower or Administrative Agent that it does not intend to comply with its funding obligations or has made a public statement to that
effect with respect to its funding obligations hereunder (unless such notification or public statement relates to such Lender’s
obligation to fund a Loan hereunder and indicates that such position is based on such Lender’s good faith determination that a
condition precedent (specifically identified and including the particular Default, if any) to funding a Loan is not or cannot be satisfied)
or under other agreements generally in which it commits to extend credit; (c) has failed, within two (2) Business Days after written
request by the Administrative Agent or the Borrower (and the Administrative Agent has received a copy of such request), to confirm in
a manner reasonably satisfactory to the Administrative Agent that it will comply with its funding obligations hereunder; or (d) has,
or has a direct or indirect parent company that has: (i) become the subject of a proceeding under any Debtor Relief Law; (ii) had a receiver,
conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation
of its business or a custodian appointed for it; or (iii) in the good faith determination of the Administrative Agent, taken any material
action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment; 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; provided, further, that 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 by such Lender.
“Designated
Jurisdiction” means any country, region, or territory to the extent that such country, region, or territory itself, or its
government, is the subject or target of any Sanction.
“Dollars”
or “$” refers to lawful money of the United States of America.
“Effective
Date” means the date on which the conditions specified in SECTION 4.01 are satisfied (or waived in accordance with SECTION
9.02).
“Eligible
Assignee” means any Person who is an Affiliate of, or is managed by, No Street GP LP.
“Environmental
Laws” means all applicable laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, or binding
agreements issued, promulgated or entered into by any Governmental Authority, relating in any way to the environment, preservation or
reclamation of natural resources, the management, release or threatened release of any Hazardous Material or to health and safety matters
and includes (without limitation) the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et
seq., the Hazardous Materials Transportation Act, 49 U.S.C. § 1801 et seq., the Federal Insecticide, Fungicide, and Rodenticide
Act, 7 U.S.C. § 136 et seq., the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq., the Toxic
Substances Control Act, 15 U.S.C. § 2601 et seq., the Clean Air Act, 42 U.S.C. §7401 et seq., the Clean Water
Act, 33 U.S.C. § 1251 et seq., the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq., (to the extent
the same relates to any Hazardous Materials), and the Oil Pollution Act of 1990, 33 U.S.C. § 2701 et seq., as such laws have
been amended or supplemented, and the regulations promulgated pursuant thereto, and all analogous state and local statutes.
“Environmental
Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation,
fines, penalties or indemnities), of the Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) violation
of any Environmental Law, (b) exposure to any Hazardous Materials in violation of any Environmental Law, (c) the Release or threatened
Release of any Hazardous Materials into the environment in violation of any Environmental Law or (d) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Equity
Consideration” has the meaning assigned to such term in SECTION 2.08.
“Equity
Interests” means, with respect to any Person, all of the shares, partnership or membership interests, economic and other rights,
participations or other equivalents (however designated) of Capital Stock of such Person, all of the warrants, options or other rights
for the purchase or acquisition from such Person of shares of Capital Stock of such Person, all of the securities convertible into or
exchangeable for shares of Capital Stock of such Person or warrants, rights or options for the purchase or acquisition from such Person
of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, membership
or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests
are outstanding on any date of determination.
“Equity
Percentage” means the aggregate ownership percentage of Borrower in each of its non-wholly owned direct and indirect subsidiaries,
which shall be calculated as the greater of (a) Borrower’s nominal capital ownership interest in such Subsidiary as set forth in
such Subsidiary’s organizational documents, and (b) Borrower’s economic ownership interest in such Subsidiary, reflecting
Borrower’s share of income and expenses of such Subsidiary.
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from time to time.
“ERISA
Affiliate” means any trade or business (whether or not incorporated) that, together with the Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated
as a single employer under Section 414 of the Code.
“ERISA
Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder
with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) the existence with respect to any Plan
of an “accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived;
(c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding
standard with respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV
of ERISA with respect to the termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from
any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer
Plan from the Borrower or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that
a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.
“Event
of Default” has the meaning assigned to such term in ARTICLE VII.
“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) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or
for the account of such Lender with respect to an applicable interest in a Loan or its Commitment pursuant to Legal Requirements in effect
on the date on which (i) such Lender acquires such interest in the Loan or its Commitment (other than pursuant to an assignment request
by the Borrower under SECTION 2.12(b) as a result of costs sought to be reimbursed pursuant to SECTION 2.10) or (ii) such
Lender changes its lending office, except in each case to the extent that, pursuant to SECTION 2.10, 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 2.10 and
(d) any U.S. federal withholding Taxes imposed under FATCA.
“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 and any agreement entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules
or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and any rules implementing
such intergovernmental agreements and/or Sections of the Code.
“Facility”
has the meaning given to such term in the preamble hereto.
“Federal
Funds Effective Rate” means, for any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of
the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published
on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is
a Business Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions
received by the Administrative Agent from three (3) Federal funds brokers of recognized standing selected by it.
“Financial
Officer” means the president, chief financial officer or the chief accounting officer of the Borrower.
“Foreign
Lender” means, if Borrower is a U.S. Person, a Lender that is not a U.S. Person, and if Borrower is not a U.S. Person, a Lender
that is resident or organized under the laws of a jurisdiction other than that in which Borrower is resident for tax purposes.
“GAAP”
means generally accepted accounting principles in the United States of America, subject to the provisions of SECTION 1.03.
“Governmental
Authority” means the government of the United States of America, 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.
“Guarantee”
of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing
or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”)
in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or
pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for
the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity
capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support
such Indebtedness or obligation; provided, that the term Guarantee shall not include endorsements for collection or deposit in
the ordinary course of business.
“Hazardous
Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances or wastes, including
petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical
wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law; provided, that Hazardous Materials
shall not include any such substances or wastes utilized or maintained at the Real Property in the ordinary course of business and in
accordance with all applicable Environmental Laws.
“Hedging
Agreement” means any interest rate protection agreement, foreign currency exchange agreement, commodity price protection agreement
or other interest or currency exchange rate or commodity price hedging arrangement.
“Indebtedness”
of any Person means, without duplication, (a) all obligations of such Person for borrowed money or with respect to deposits or advances
of any kind, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, including mandatorily redeemable
preferred stock, (c) all obligations of such Person upon which interest charges are customarily paid, (d) all obligations of such Person
under conditional sale or other title retention agreements relating to property acquired by such Person, (e) all obligations of such
Person in respect of the deferred purchase price of property or services (excluding current accounts payable incurred in the ordinary
course of business), (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent
or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby
has been assumed, (g) all Guarantees by such Person of Indebtedness of others (excluding non-recourse carve-out guarantees until such
time as a claim has been filed for breach thereof), (h) all Capital Lease Obligations of such Person, (i) all obligations, contingent
or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, (j) all obligations, contingent
or otherwise, of such Person in respect of bankers’ acceptances, and (k) all obligations contingent or otherwise, of such Person
with respect to any Hedging Agreements (calculated on a mark-to-market basis as of the reporting date) currently due and payable (but
excluding any mark-to-market obligations not currently due and payable). The Indebtedness of any Person shall include the Indebtedness
of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor
as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor. Indebtedness shall be calculated on a consolidated basis in accordance
with GAAP, and including (without duplication) Borrower’s Equity Percentage of Indebtedness for non-wholly owned direct and indirect
subsidiaries.
“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 the immediately preceding clause (a), Other
Taxes.
“Initial
Lenders” has the meaning set forth in the preamble hereto.
“KeyBank”
means KeyBank, National Association.
“KeyBank
Credit Agreement” means that certain Credit Agreement, dated as of March 29, 2022, by and among MVP REIT Operating Partnership,
LP, a Subsidiary of the Borrower, and certain other indirect Subsidiaries of the Borrower, KeyBank, as a lender and as administrative
agent for the benefit of the lenders, KeyBanc Capital Markets, as lead arrangers, and the lenders party thereto from time to time, as
the same may be amended, restated, supplemented, waived or otherwise modified from time to time in accordance with the terms thereof
and as permitted by the terms hereunder, the Subordinated Agreement and the other Loan Documents.
“KeyBank
Loan Documents” has the meaning given to the term “Loan Documents” in the KeyBank Credit Agreement.
“Legal
Requirement” means any law, statute, ordinance, decree, requirement, order, judgment, rule, regulation (or interpretation of
any of the foregoing) of, and the terms of any license or permit issued by, any Governmental Authority.
“Lenders”
means the Persons listed on Schedule 1.01 and any other Person that shall have become a party hereto pursuant to SECTION 9.04,
other than any such Person that ceases to be a party hereto pursuant to SECTION 9.04.
“Lien”
means, with respect to an asset, (a) any mortgage, deed of trust, lien (statutory or other), pledge, hypothecation, negative pledge,
collateral assignment, encumbrance, deposit arrangement, charge or security interest in, on or of such asset; (b) the interest of a vendor
or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially
the same economic effect as any of the foregoing) relating to such asset; (c) the filing under the Uniform Commercial Code or comparable
law of any jurisdiction of any financing statement naming the owner of the asset to which such Lien relates as debtor; (d) any other
preferential arrangement of any kind or nature whatsoever intended to assure payment of any Indebtedness or other obligation; and (e)
in the case of securities, any purchase option, call or similar right of a third party with respect to such securities, including any
dividend reinvestment or redemption plans.
“Loan
Documents” means this Agreement, the Notes and all other instruments, agreements and written obligations executed and delivered
by the Borrower in connection with the Transactions contemplated hereby.
“Loans”
means the revolving loans made by the Lenders to the Borrower pursuant to SECTION 2.01 of this Agreement.
“Lock-Up
Period” has the meaning set forth in the RRA Joinder Agreement and Lock-Up.
“Material
Adverse Effect” means a material adverse effect on (a) the business, assets, operations, or condition, financial or otherwise,
of the Borrower and its Subsidiaries, taken as a whole, (b) the ability of Borrower to perform its obligations under the Loan Documents
or (c) the rights of or benefits available to the Administrative Agent or the Lenders under the Loan Documents.
“Material
Contract” means any contract or other arrangement (other than Loan Documents), whether written or oral, to which the Borrower
is a party as to which the breach, nonperformance, cancellation or failure to renew by any party thereto could reasonably be expected
to have a Material Adverse Effect.
“Maturity
Date” means the earliest of: (a) the Stated Maturity Date; or (b) the date upon which Administrative Agent declares the Obligations
due and payable after an Event of Default has occurred and is continuing.
“Maximum
Rate” shall have the meaning set forth in SECTION 9.13.
“Multiemployer
Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
“Non-Recourse
Exclusions” means, with respect to any Non-Recourse Indebtedness of any Person, any industry standard exclusions from the non-recourse
limitations governing such Indebtedness, including, without limitation, exclusions for claims that (i) are based on fraud, intentional
or willful misrepresentation, misapplication or misappropriation of funds, gross negligence or willful misconduct, (ii) result from intentional
mismanagement of or physical waste at the Real Property securing such Non-Recourse Indebtedness, or from gross negligence or willful
misconduct, (iii) arise from the presence of Hazardous Materials on the Real Property securing such Non-Recourse Indebtedness (whether
contained in a loan agreement, promissory note, indemnity agreement or other document), (iv) are the result of any unpaid real estate
taxes and assessments (whether contained in a loan agreement, promissory note, indemnity agreement or other document), (v) result from
the borrowing Subsidiary and/or its assets becoming the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding,
or (vi) arise from other acts, omissions, or circumstances that are set forth in the documents governing Non-Recourse Indebtedness of
the Borrower’s Subsidiaries.
“Non-Recourse
Indebtedness” means Indebtedness that is not Recourse Indebtedness.
“Note”
means a promissory note in the form attached hereto as Exhibit A payable to a Lender evidencing certain of the obligations of
the Borrower to such Lender and executed by Borrower, as the same may be amended, supplemented, modified or restated from time to time;
“Notes” means, collectively, all of such Notes outstanding at any given time.
“Obligations”
means the payment of the principal sum, interest, charges and indebtedness with respect to the Loans (as may be evidenced by the Notes),
including any extensions, renewals, replacements, increases, modifications and amendments thereof, given by Borrower to the order of
the respective Lenders, the payment, performance, discharge and satisfaction of each covenant, warranty, representation, undertaking
and condition to be paid, performed, satisfied and complied with by Borrower under and pursuant to this Agreement or the other Loan Documents,
the payment of all costs, expenses, legal fees and liabilities incurred by Administrative Agent and the Lenders in the enforcement or
collection thereof, and the payment, performance, discharge and satisfaction of all other liabilities and obligations of the Borrower
under the Loan Documents to the Administrative Agent or any Lender, whether now existing or hereafter arising, direct or indirect, absolute
or contingent, and regardless of whether such Indebtedness, obligations, and liabilities are direct, indirect, fixed, contingent, joint,
several, or joint and several, and whether direct or indirect (including those acquired by assumption), absolute or contingent, due or
to become due, now existing or hereafter arising, and including interest and fees that accrue after the commencement by or against Borrower
or any Affiliate thereof of any proceeding under any bankruptcy or other insolvency proceeding naming such person as the debtor in such
proceeding, regardless of whether such interest and fees are allowed claims in such proceedings.
“OFAC”
has the meaning set forth in SECTION 3.15.
“Offshore
Lender” has the meaning set forth in the preambles hereto.
“Onshore
Lender” has the meaning set forth in the preambles 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 2.12(b) as a result of costs sought to
be reimbursed pursuant to SECTION 2.10).
“PBGC”
means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
“Permitted
Investments” means:
(a)
direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of
America), in each case maturing within one year from the date of acquisition thereof;
(b)
investments in commercial paper maturing within 270 days from the date of acquisition thereof and having an investment grade credit
rating on the date of acquisition;
(c)
investments in certificates of deposit, banker’s acceptances and time deposits maturing within 180 days from the date of
acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic
office of any commercial bank organized under the laws of the United States of America or any State thereof which has a combined
capital and surplus and undivided profits of not less than $500,000,000;
(d)
fully collateralized repurchase agreements with a term of not more than 90 days for securities described in clause (a) above and
entered into with a financial institution satisfying the criteria described in clause (c) above;
(e)
investments in Subsidiaries and non-wholly owned direct and indirect subsidiaries made in accordance with this Agreement;
and
(f)
any investments permitted under Section 6.03 of the KeyBank Facility Agreement or hereunder.
“Person”
means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
“Plan”
means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412
of the Code or Section 302 of ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“Preferred
Stock” has the meaning given to such term in the Charter Document.
“Real
Property” means, collectively, all interest in any land and improvements located thereon (including direct financing leases
of land and improvements owned by the Borrower or any of its Subsidiary), together with all equipment, furniture, materials, supplies
and personal property now or hereafter located at or used in connection with the land and all appurtenances, additions, improvements,
renewals, substitutions and replacements thereof now or hereafter acquired by the Borrower or any Subsidiary thereof.
“Recipient”
means each of the Administrative Agent and any Lender.
“Recourse
Indebtedness” means Indebtedness in which the recourse of the applicable lender or lenders to the obligor for nonpayment is
not limited to such lender’s Lien on an asset or assets, including any guarantee of payment by the Borrower, whether direct or
indirect, of any of its Subsidiaries, or by any of the Borrower’s Subsidiaries, whether direct or indirect, of the Borrower or
any other Subsidiary of the Borrower, and any Non-Recourse Exclusions at such time a written claim for payment of an amount of money
under such agreement from such Person is made with respect thereto. If a Subsidiary is a single purpose entity which owns a real property
asset and has Indebtedness which is limited in recourse to that real property asset, such Indebtedness shall not be considered “Recourse
Indebtedness”, unless Borrower has guaranteed such Indebtedness on a recourse basis as of the applicable date of determination.
“Registration
Rights Agreement” means that certain Registration Rights Agreement, dated as of August 25, 2023, among the Borrower, Fifth
Wall Acquisition Sponsor III LLC, a Cayman Islands exempted limited company, each person listed on Schedule A thereto, as a FWAC Sponsor
Holder (as defined therein), each person listed on Schedule B thereto, as a MIC Holder (as defined therein), and each person listed on
Schedule C thereto, as Preferred Holder (as defined therein), as amended, restated, supplemented, waived or otherwise modified from time
to time in accordance with the terms thereof.
“REIT”
means a real estate investment trust under Section 856(a) of the Code.
“Related
Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers,
employees, agents and advisors of such Person and such Person’s Affiliates.
“Release”
means any release, spill, emission, leaking, pumping, pouring, dumping, emptying, injection, deposit, disposal, discharge, dispersal,
leaching or migration on or into the indoor or outdoor environment or into or out of any property in violation of applicable Environmental
Laws.
“Required
Lenders” means, as of any date of determination, Lenders having more than 50% of the Total Commitments or, if the Commitments
of each Lender to make Loans have been terminated pursuant to ARTICLE VII, Lenders holding in the aggregate more than 50% of the
aggregate Obligations; provided that the Commitment of, and the portion of the Obligations held or deemed held by, any Defaulting
Lender shall be excluded for purposes of making a determination of Required Lenders; provided further that any time there are
two (2) or fewer Lenders hereunder, Required Lenders shall mean all Lenders that are not Defaulting Lenders.
“Restricted
Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any ownership
interests in the Borrower or any of its Subsidiaries, or any payment (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such ownership
interests in the Borrower or any option, warrant or other right to acquire any such shares of Capital Stock of the Borrower.
“RRA
Joinder Agreement and Lock-Up” means a registration rights joinder agreement and lock-up, in a form reasonably satisfactory
to the Borrower, executed by each Lender receiving Common Stock pursuant to this Agreement, and delivered to the Borrower on or before
the Effective Date.
“Sanction(s)”
means any economic or financial sanctions, sectoral sanctions, secondary sanctions, trade embargoes and anti-terrorism laws, including
but not limited to those imposed, administered or enforced from time to time by a United States Governmental Authority (including, without
limitation, OFAC), a Canadian Governmental Authority, the United Nations Security Council, the European Union, Her Majesty’s Treasury
or other relevant sanctions authority.
“Sanctioned
Person” means any Person that is (i) any Person listed in any Sanctions-related list of designated Persons maintained by any
Governmental Authority of the United States of America, including without limitation, OFAC or the U.S. Department of State, or by the
United Nations Security Council, Her Majesty’s Treasury, the European Union or any other applicable Governmental Authority or otherwise
the subject or target of any Sanctions, (ii) any Person located, operating, organized or resident in a Designated Jurisdiction, (iii)
an agency of the government of a Designated Jurisdiction, or (iv) any Person owned or controlled by any Person or agency described in
any of the preceding clauses (i) through (iii).
“Stated
Maturity Date” means September 11, 2025.
“Subordination
Agreement” means that certain subordination agreement, dated as of the date hereof, among KeyBank, the Borrower, the Administrative
Agent and the Lenders, as the same may be amended, restated, supplemented, waived or otherwise modified from time to time pursuant to
the terms hereof and thereof.
“Subsidiary”
means, with respect to Borrower (for the purposes of this definition, the “parent”), at any date, any corporation,
limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent
in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such
date, as well as any other corporation, limited liability company, partnership, association or other entity (a) of which securities or
other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a
partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held by parent, or (b) that
is, as of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent.
“Taxes”
means any and all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments,
fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Total
Commitment” means the sum of the Commitments of the Lenders, as in effect from time to time. On the Effective Date, the Total
Commitment equals $40,400,000.
“Total
Credit Exposure” means, as of any date of calculation, the aggregate amount of the Credit Exposure of all Lenders as of such
date.
“Transactions”
means the execution, delivery and performance by the Borrower of the Loan Documents, the borrowing of Loans, the issuance of the Equity
Consideration, and the use of the proceeds thereof.
“Trigger
Date” means the date on which the aggregate funded Borrowings (including Borrowings that have been repaid pursuant to SECTION
2.07) equal or exceed $15,000,000, which shall occur on the Effective Date in connection with the initial Borrowing Request.
“U.S.
Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.
“U.S.
Tax Compliance Certificate” has the meaning set forth in SECTION 2.10(f)(ii)(2)(C).
“Withdrawal
Liability” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer
Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
“Withholding
Agent” means the Borrower and the Administrative Agent.
SECTION
1.02 Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,”
“includes,” and “including” shall be deemed to be followed by the phrase “without limitation.” The
word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires
otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to
such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions
on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include
such Person’s successors and assigns, (c) the words “herein,” “hereof,” and “hereunder,” and
words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d)
all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits
and Schedules to, this Agreement and (e) the words “asset” and “property” shall be construed to have the same
meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION
1.03 Accounting Terms; GAAP. 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 and shall be determined, as to the Borrower and its Subsidiaries,
on a consolidated basis; provided that, if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to
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 the Administrative 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 such provision shall be interpreted 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.
SECTION
1.04 Divisions. For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware
law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person
becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original
Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized
on the first date of its existence by the holders of its Equity Interests at such time.
ARTICLE
II
The
Credits
SECTION
2.01 Commitments. Subject to the terms and conditions set forth herein, each Lender agrees to make revolving loans (each, a “Loan”)
to the Borrower from time to time during the Availability Period in an aggregate principal amount that will not result in the Total Credit
Exposure of the Lenders exceeding the Total Commitment; provided however, that no Lender shall be obligated to make a Loan in
excess of such Lender’s Applicable Percentage of the difference between (A) the Total Commitment and (B) the Total Credit Exposure.
Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Loans.
SECTION
2.02 Loans and Borrowings. Each Loan shall be made as part of a Borrowing consisting of Loans made by the Lenders ratably in accordance
with their respective Commitments. The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender
of its obligations hereunder; provided that the Commitments of the Lenders are several and no Lender shall be responsible for any other
Lender’s failure to make Loans as required.
SECTION
2.03 Requests for Borrowings. To request a Borrowing, the Borrower shall notify the Administrative Agent of such request by telephone
not later than 12:00 noon, New York, New York time, two (2) Business Days before the date of the proposed Borrowing. Each such telephonic
Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a
written Borrowing Request in the form of Exhibit B attached hereto and hereby made a part hereof and signed by the Borrower. Each
such telephonic and written Borrowing Request shall specify the following information in compliance with SECTION 2.02:
(i)
the aggregate amount of the requested Borrowing;
(ii)
the date of such Borrowing, which shall be a Business Day; and
(iii)
the location and number of the Borrower’s account to which funds are to be disbursed, which shall comply with the requirements
of SECTION 2.04.
SECTION
2.04 Funding of Borrowings.
(a)
Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds
by 12:00 noon, New York, New York time, to the account of the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders. The Administrative Agent will make such Loans available to the Borrower by wire transfer to such account or in
such manner as may be designated by the Borrower in the applicable Borrowing Request. The failure of any Lender to advance the proceeds
of its Applicable Percentage of any Borrowing Required to be advanced hereunder shall not relieve any other Lender of its obligation
to advance the proceeds of its Applicable Percentage of any Borrowing required to be advanced hereunder.
(b)
Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing that such Lender
will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume
that such Lender has made such share available on such date in accordance with paragraph (a) of this Section and may, in reliance upon
such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of
the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to
the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date
such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of
such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of the Borrower, the interest rate applicable to the corresponding Loan
made to the Borrower. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s
Loan included in such Borrowing. If Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping
period, the Administrative Agent shall promptly remit to Borrower the amount of such interest paid by Borrower for such period. Any payment
by Borrower shall be without prejudice to any claim Borrower may have against a Lender that shall have failed to make such payment to
the Administrative Agent.
(c)
Each Lender may designate its principal office or a branch, subsidiary or Affiliate of such Lender as its lending office (and the office
to whose accounts payments are to be credited) for Loans and change its lending office from time to time by notice to Administrative
Agent and Borrower. In such event, such Lender shall continue to hold the Note, if any, evidencing its loans for the benefit and account
of such branch, subsidiary or Affiliate. Each Lender shall be entitled to fund all or any portion of its Commitment in any manner it
deems appropriate, consistent with the provisions of this SECTION 2.04, but for the purposes of this Credit Agreement such Lender
shall, regardless of such Lender’s actual means of funding, be deemed to have funded its Commitment in accordance with the interest
option selected from time to time by the Borrower for such Borrowing period.
SECTION
2.05 Termination and Reduction of Commitments.
(a)
Unless previously terminated by the Administrative Agent or Borrower in accordance with this Agreement, the Commitments shall terminate
on the Maturity Date.
(b)
The Borrower may from time to time reduce the Commitments, provided that each reduction in the Commitments shall be in an amount that
is at least $5,000,000 and an integral multiple of $5,000,000. The Borrower shall not reduce the Commitments if, after giving effect
to any concurrent prepayment of the Loans in accordance with SECTION 2.07, the Total Credit Exposure would exceed the Total Commitment.
(c)
The Borrower shall notify the Administrative Agent of any election to reduce the Commitments under SECTION 2.05(b) at least three
(3) Business Days prior to the effective date of such reduction, specifying such election and the effective date thereof. Promptly following
receipt of any notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each notice delivered by the Borrower
pursuant to this Section shall be irrevocable. Any reduction of the Commitments shall be permanent. Each reduction in the Commitments
shall be made ratably among the Lenders in accordance with their respective Commitments. A reduction in the outstanding principal balance
shall not constitute a reduction in the Commitments without the notice required above being delivered to Administrative Agent as set
forth above.
SECTION
2.06 Repayment of Loans; Evidence of Debt.
(a)
The Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of each Lender the then unpaid principal
amount of each Loan on the Maturity Date. At the request of each Lender, the Loans made by such Lender shall be evidenced by a Note payable
to such Lender in the amount of such Lender’s Commitment.
(b)
Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the Indebtedness of the Borrower to
such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender
from time to time hereunder.
(c)
The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, (ii) the amount
of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount
of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof.
(d)
The entries made in the accounts maintained pursuant to paragraph (b) of this Section shall be prima facie evidence of
the existence and amounts of the obligations recorded therein; provided that the failure of any Lender or the Administrative Agent
to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay the Loans in accordance
with the terms of this Agreement.
SECTION
2.07 Prepayment of Loans.
(a)
The Borrower shall have the right at any time and from time to time to prepay, without penalty, any Borrowing in whole or in part, subject
to prior notice in accordance with paragraph (b) of this Section.
(b)
The Borrower shall notify the Administrative Agent in writing of any prepayment hereunder not later than 12:00 p.m. noon, New York, New
York time, five (5) Business Days before the date of such prepayment. Each such notice shall be irrevocable and shall specify the prepayment
date and the principal amount of each Borrowing or portion thereof to be prepaid. Promptly following receipt of any such notice relating
to a Borrowing, the Administrative Agent shall advise the Lenders of the contents thereof. Each partial prepayment of any Borrowing shall
be in an amount that is an integral multiple of $100,000. Each prepayment of a Borrowing shall be applied ratably to the Loans included
in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by SECTION 2.09
(c)
Amounts to be applied to the prepayment of Loans pursuant to any of the preceding subsections of this Section shall be applied to prepay
ratably the Loans of the Lenders.
SECTION
2.08 Equity Consideration. Subject to SECTION 2.08(c), the Borrower agrees to pay to each Initial Lender additional interest
on the Loans, payable in kind in shares of Common Stock of the Borrower (the “Equity Consideration”), which Equity
Consideration shall be earned and payable as follows:
(a)
On the Effective Date, a portion of the Equity Consideration equal to (i) 83,000 shares of Common Stock of the Borrower shall be issued
to the Onshore Lender, and the Borrower shall register on such date the Onshore Lender as the registered owner of such shares and (ii)
167,000 shares of Common Stock of the Borrower shall be issued to the Offshore Lender, and the Borrower shall register on such date the
Offshore Lender as the registered owner of such shares; and
(b)
On the Trigger Date, a portion of the Equity Consideration equal to (i) 83,000 shares of Common Stock of the Borrower shall be issued
to the Onshore Lender, and the Borrower shall register on such date the Onshore Lender as the registered owner of such shares and (ii)
167,000 shares of Common Stock of the Borrower shall be issued to the Offshore Lender, and the Borrower shall register on such date the
Offshore Lender as the registered owner of such shares.
(c)
The Borrower’s obligation to pay the Equity Consideration shall be subject to each Lender executing, on or prior to the Effective
Date, a RRA Joinder Agreement and Lock-Up, pursuant to which each Initial Lender shall (i) agree to the Lock-Up Period and (ii) accede
to the Registration Rights Agreement and agree to be bound by the terms thereof.
(d)
The Administrative Agent and each Initial Lender acknowledges and agrees that all shares of Common Stock comprising the Equity Consideration
shall, on the date on which such shares of Common Stock are issued to such Initial Lender as set forth herein, be subject to the Lock-Up
Period and the other provisions of the RRA Joinder Agreement and Lock-Up.
(e)
The Borrower, the Administrative Agent and each Lender acknowledges and agrees that all shares of Common Stock comprising the Equity
Consideration shall, on the date on which such shares of Common Stock are issued to such Lender as set forth herein, be subject to the
registration rights set forth in, and other provisions of, the Registration Rights Agreement.
(f)
The Equity Consideration shall not be refundable under any circumstances.
SECTION
2.09 Interest.
(a)
The aggregate principal amount of the Loans shall bear interest at the lesser of (i) a rate of fifteen percent (15.00%) per annum or
(ii) the Maximum Rate.
(b)
Other than the Equity Consideration, which shall be paid in the manner and at the times set forth in Section 2.08, accrued interest on
the principal amount of each Loan shall be payable in arrears on the Maturity Date; provided that in the event of any prepayment
of any Loan, accrued interest on the principal amount repaid or prepaid shall be payable on the date of such prepayment.
(c)
All computations of interest on the Loans and of other fees to the extent applicable shall be based on a 365-day year and paid for the
actual number of days elapsed.
SECTION
2.10 Taxes.
(a)
All payments by the Borrower hereunder and under any of the other Loan Documents shall be made without setoff or counterclaim, and free
and clear of and without deduction or withholding for any Taxes, except as required by Legal Requirements. If any Legal Requirement (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 Legal Requirements 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
2.10) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been
made.
(b)
The Borrower shall timely pay to the relevant Governmental Authority in accordance with Legal Requirements, or at the option of the Administrative
Agent timely reimburse it for the payment of, any Other Taxes.
(c)
The Borrower shall jointly and severally indemnify each Recipient, within ten (10) days after demand therefor, for the full amount of
any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this SECTION 2.10)
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 Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent
manifest error; provided that the determinations in such statement are made on a reasonable basis and in good faith.
(d)
Each Lender shall severally indemnify the Administrative Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes
attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Indemnified
Taxes and without limiting the obligation of the Borrower to do so) and (ii) any Excluded Taxes attributable to such Lender, in each
case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising
therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive
absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing
to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any
amount due to the Administrative Agent under this subsection.
(e)
As soon as practicable after any payment of Taxes by Borrower to a Governmental Authority pursuant to this SECTION 2.10, Borrower
shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative
Agent.
(f)
(i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document
shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative
Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit
such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by
the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Legal Requirements or reasonably requested
by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such
Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding
two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in the immediately
following clauses (ii)(1), (ii)(2) and (ii)(4) shall not be required if in the Lender’s reasonable judgment such completion, execution
or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial
position of such Lender.
(ii)
Without limiting the generality of the foregoing, in the event that Borrower is a U.S. Person:
(1)
any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender
becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative
Agent), an electronic copy (or an original if requested by the Borrower or the Administrative Agent) of an executed IRS Form W-9 (or
any successor form) certifying that such Lender is exempt from U.S. federal backup withholding tax;
(2)
any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such
number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under
this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever
of the following is applicable:
(A)
in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect
to payments of interest under any Loan Document, an electronic copy (or an original if requested by the Borrower or the Administrative
Agent) of an executed IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant
to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document,
IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business
profits” or “other income” article of such tax treaty;
(B)
an electronic copy (or an original if requested by the Borrower or the Administrative Agent) of an executed IRS Form W-8ECI;
(C)
in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a
certificate substantially in the form of Exhibit C-1 to the effect that such Foreign Lender is not a “bank” within
the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of Borrower within the meaning of Section 881(c)(3)(B)
of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance
Certificate”) and (y) executed copies of IRS Form W-8BEN or W-8BEN-E; or
(D)
to the extent a Foreign Lender is not the beneficial owner, an electronic copy (or an original if requested by the Borrower or the
Administrative Agent) of an executed IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E, a U.S. Tax
Compliance Certificate substantially in the form of Exhibit C-2 or Exhibit C-3, IRS Form W-9, and/or other
certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or
more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may
provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit C-4 on behalf of each such direct and indirect
partner;
(3)
any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such
number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under
this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), an electronic
copy (or an original if requested by a Borrower or the Administrative Agent) of any other form prescribed by Legal Requirements as a
basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation
as may be prescribed by Legal Requirements to permit the Borrower or the Administrative Agent to determine the withholding or deduction
required to be made; and
(4)
if a payment made to a Recipient under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Recipient
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 Recipient shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by
Legal Requirements and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed
by Legal Requirements (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 Recipient has complied with such Recipient’s obligations under FATCA or
to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include
any amendments made to FATCA after the date of this Agreement.
Each
Recipient agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect,
it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability
to do so.
(g)
If any party determines, in its sole discretion exercised in good faith, that it has received a refund (or credit in lieu of a refund)
of any Taxes as/to which it has been indemnified pursuant to this SECTION 2.10 (including by the payment of additional amounts
pursuant to this SECTION 2.10), it shall pay to the indemnifying party an amount equal to such refund (or credit in lieu of a
refund) but only to the extent of indemnity payments made under this SECTION 2.10 with respect to the Taxes giving rise to such
refund (or credit in lieu of a refund), net of all reasonable third party out-of-pocket expenses (including Taxes) of such indemnified
party actually incurred and without interest (other than any interest paid by the relevant Governmental Authority with respect to such
refund (or credit in lieu of a refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified
party the amount paid over pursuant to this subsection (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 (or credit in lieu of a refund) to such Governmental
Authority. Notwithstanding anything to the contrary in this subsection, in no event will the indemnified party be required to pay any
amount to an indemnifying party pursuant to this subsection 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
(or credit in lieu of a refund) has not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts
with respect to such Tax had never been paid. Each party shall take all reasonable actions requested by any other party to assist such
other party, at the sole expense of the other party, to recover from the relevant Governmental Authority any Taxes in respect of which
amounts were paid by such other party pursuant to this SECTION 2.10. This subsection 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 reasonably deems confidential) to the
indemnifying party or any other Person.
(h)
Each party’s obligations under this SECTION 2.10 shall survive the resignation or replacement of the Administrative Agent
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.
(i)
AMOUNTS BORROWED UNDER THIS CREDIT AGREEMENT ARE ISSUED WITH ORIGINAL ISSUE DISCOUNT (“OID”) WITHIN THE MEANING OF
SECTION 1273 OF THE CODE. The parties agree that no amount of interest accrued or payable under this Agreement is contingent interest
that is excluded from the definition of portfolio interest pursuant to Section 871(h)(4) of the Code. Lenders may obtain information
regarding the amount of OID, the issue price, the issue date, and the yield to maturity relating to the notes by contacting the Borrower
as set forth in SECTION 9.01.
(j)
The parties agree that the Equity Consideration shall be treated as interest for U.S. federal income tax purposes and shall be reported
in accordance with the Code and the Income Tax Regulations promulgated thereunder (as such regulations may be amended from time to time,
including corresponding provisions of succeeding regulations) as such.
SECTION
2.11 Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a)
The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees, or of amounts payable
under SECTION 2.10, or otherwise) prior to 1:00 p.m., New York, New York time, on the date when due, in immediately available
funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative
Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its main offices at 505 Montgomery Street, Suite 1250, San Francisco, California 94111,
except that payments pursuant to SECTION 2.10 and SECTION 9.03 shall be made directly to the Persons entitled thereto.
If the Administrative Agent receives a payment for the account of a Lender prior to 1:00 p.m., New York, New York time, such payment
must be delivered to the Lender on the same day and if it is not so delivered due to the fault of the Administrative Agent, the Administrative
Agent shall pay to the Lender entitled to the payment interest thereon for each day after payment should have been received by the Lender
pursuant hereto until the Lender receives payment, at the Federal Funds Effective Rate. If any payment hereunder shall be due on a day
that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment
accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in Dollars.
(b)
If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, interest
and fees then due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards
payment of principal then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then
due to such parties.
(c)
If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans
and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall
purchase (for cash at face value) participations in the Loans of other Lenders to the extent necessary so that the benefit of all such
payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their
respective Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise
thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without
interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and
in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or
sale of a participation in any of its Loans to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate
thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent
it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise
against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor
of the Borrower in the amount of such participation.
(d)
Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders hereunder that the Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders
the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders, severally agrees to repay
to the Administrative Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the Federal
Funds Effective Rate.
(e)
If any Lender shall fail to make any payment required to be made by it pursuant to SECTION 2.04(b) or SECTION 2.11(d),
then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received
by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such
unsatisfied obligations are fully paid.
SECTION
2.12 Mitigation Obligations; Replacement of Lenders.
(a)
Each Lender will notify the Borrower of any event occurring after the date of this Agreement which will entitle such Person to compensation
pursuant to SECTION 2.10 as promptly as practicable after it obtains knowledge thereof and determines to request such compensation,
provided that such Person shall not be liable for the failure to provide such notice. If the Borrower is required to pay any additional
amount to any such Person or any Governmental Authority for the account of any Lender pursuant to SECTION 2.10, then such Lender
shall use reasonable efforts to avoid or minimize the amounts payable, including, without limitation, the designation of a different
lending office for funding or booking its Loans hereunder or the assignment of its rights and obligations hereunder to another of its
offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to SECTION 2.10, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed
cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable and documented
costs and expenses incurred by any Lender in connection with any such designation or assignment.
(b)
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 2.10, or if any Lender defaults in its obligation to fund Loans hereunder, 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 SECTION 9.04), all its interests, rights and obligations under this
Agreement to an 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 received the prior written consent of the Administrative Agent, which consent shall
not unreasonably be withheld, (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, 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), and (iii) in the case of any such assignment
resulting from payments required to be made pursuant to SECTION 2.10, such assignment will result in a reduction in such compensation
or payments. A Lender shall not be required to make any such assignment and 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.
SECTION
2.13 Defaulting Lenders.
(a)
Adjustments. Notwithstanding anything to the contrary contained in this Credit Agreement, if any Lender becomes a Defaulting Lender,
then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:
(i)
Waivers and Amendments. That Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect
to this Credit Agreement shall be restricted as set forth in SECTION 9.02.
(ii)
Reallocation of Payments. Any payment of principal, interest, fees or other amounts received by Administrative Agent for the account
of a Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to ARTICLE VII or otherwise, and including any amounts
made available to Administrative Agent by that Defaulting Lender pursuant to SECTION 9.08), shall be applied at such time or times
as may be determined by Administrative Agent as follows: first, to the payment of any amounts owing by that Defaulting Lender
to Administrative Agent hereunder; 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 Credit
Agreement, as determined by Administrative Agent; third, if so determined by Administrative Agent and the Borrower, to be held
in a non-interest bearing deposit account and released in order to satisfy obligations of such Defaulting Lender to fund Loans under
this Credit Agreement; fourth, to the payment of any amounts owing to the non-Defaulting 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 that Defaulting Lender’s
breach of its obligations under this Credit Agreement; 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 Credit Agreement; and 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 4.02 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. 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 shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably
consents hereto.
(iii)
Certain Fees. A Defaulting Lender shall not be entitled to receive any Equity Consideration pursuant to SECTION 2.08 for
any period during which such Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise
would have been required to have been paid to such Defaulting Lender).
(b)
Defaulting Lender Cure. If the Borrower and Administrative Agent agree in writing in their reasonable discretion that a Defaulting
Lender has taken such action that it should no longer be deemed to be a Defaulting Lender, Administrative Agent will so notify the parties
hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include
arrangements with respect to any cash collateral), such Defaulting Lender will, to the extent applicable, purchase that portion of outstanding
Loans of the other Lenders or take such other actions as Administrative Agent may determine to be necessary to cause the Loans to be
held on a pro rata basis by the Lenders in accordance with their Applicable Percentages, whereupon such Defaulting Lender will cease
to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or
on behalf of the Borrower while such Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly
agreed by the affected parties, no cessation in status as Defaulting Lender will constitute a waiver or release of any claim of any party
hereunder arising during the period that such Lender was a Defaulting Lender.
ARTICLE
III
Representations
and Warranties
The
Borrower represents and warrants to the Lenders and the Administrative Agent that:
SECTION
3.01 Organization; Powers. The Borrower is a corporation duly organized and validly existing under the laws of the State of Maryland.
The Borrower has the requisite power and authority to own its properties and assets and to carry on its business as now conducted, and
is qualified to do business in each jurisdiction where the nature of the business conducted or the property owned or leased requires
such qualification or where the failure to be so qualified to do business would have a Material Adverse Effect.
SECTION
3.02 Authorization; Enforceability. The Transactions are within the corporate powers of the Borrower and have been duly authorized
by all necessary corporate action. This Agreement and the Loan Documents have been duly executed and delivered by the Borrower and constitute
the legal, valid and binding obligation of the Borrower, enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.
SECTION
3.03 Governmental Approvals; No Conflicts. The Transactions (a) do not require any consent or approval of, registration or filing
with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect
or which shall be completed at the appropriate time for such filings under applicable securities laws, (b) will not violate any applicable
law or regulation or the Charter, By-laws or other organizational documents of the Borrower or any of the Borrower’s Subsidiaries
or any order of any Governmental Authority, (c) will not violate or result in a default under any indenture, agreement or other instrument
binding upon the Borrower or any of the Borrower’s Subsidiaries or its assets, or give rise to a right thereunder to require any
payment to be made by the Borrower or any of the Borrower’s Subsidiaries, and (d) will not result in the creation or imposition
of any Lien on any asset of the Borrower or any of the Borrower’s Subsidiaries, in each case except as disclosed in writing to
the Administrative Agent.
SECTION
3.04 Financial Condition; No Material Adverse Change.
(a)
Borrower has delivered to Administrative Agent, to the extent available, the most recently available copies of the financial statements
and reports described in SECTION 5.01 hereof. Such financial statements present fairly, in all material respects, the financial
position and results of operations and cash flows of the Borrower and its consolidated Subsidiaries as of such dates and for such periods
in accordance with GAAP, except as provided therein.
(b)
Since December 31, 2023, no event has occurred which could reasonably be expected to have a Material Adverse Effect.
SECTION
3.05 Properties.
(a)
Each of the Borrower and its Subsidiaries has title to, or valid leasehold interests in, its real and personal property material to its
business, except for minor defects in title that do not interfere with its ability to conduct its business as currently conducted or
to utilize such properties for their intended purposes.
(b)
Each of the Borrower and its Subsidiaries owns, or is licensed to use, all patents and other intellectual property material to the Borrower’s
business, and the use thereof by the Borrower and its Subsidiaries does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
SECTION
3.06 Intellectual Property. To the knowledge of the Borrower, the Borrower owns, or is licensed to use, all patents and other
intellectual property material to its business, and the use thereof by the Borrower does not infringe upon the rights of any other Person,
except for any such infringements that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION
3.07 Litigation and Environmental Matters. There are no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Borrower, threatened against or affecting the Borrower or any of the Borrower’s
Subsidiaries (i) as to which there is a reasonable possibility of an adverse determination and that, if adversely determined, could reasonably
be expected, individually or in the aggregate, to result in a Material Adverse Effect or (ii) that involve this Agreement or the Transactions.
SECTION
3.08 Compliance with Laws and Agreements. The Borrower is in compliance with all laws, regulations and orders of any Governmental
Authority applicable to it or its property and all indentures, agreements and other instruments binding upon it or to its knowledge,
its property, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect; and no Default has occurred and is continuing or would result from the consummation of the Transaction, in each case
except as disclosed in writing to the Administrative Agent.
SECTION
3.09 Investment and Holding Company Status. Neither the Borrower nor any of the Borrower’s Subsidiaries is (a) an “investment
company” as defined in, or subject to regulation under, the Investment Company Act of 1940 or (b) a “holding company”
as defined in, or subject to regulation under, the Public Utility Holding Company Act of 1935.
SECTION
3.10 Taxes. The Borrower and each of the Borrower’s Subsidiaries has timely filed or caused to be filed all income and other
material Tax returns and reports required to have been filed in any jurisdiction (taking into account any available extensions for which
the Borrower has filed and (to the extent applicable) which have been granted) and has paid or caused to be paid all income and other
material Taxes, assessments, fees, and other governmental charges required to have been paid by it, except such Taxes that are being
contested in good faith by appropriate proceedings and for which such Person has set aside on its books adequate reserves.
SECTION
3.11 ERISA. No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA
Events for which liability is reasonably expected to occur, could reasonably be expected to result in a Material Adverse Effect. The
Borrower does not have any Plans as of the date hereof. As to any future Plan the present value of all accumulated benefit obligations
under each Plan (based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87) will not exceed the
fair market value of the assets of such Plan, and the present value of all accumulated benefit obligations of all underfunded Plans (based
on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87) will not exceed the fair market value of
the assets of all such underfunded Plans.
SECTION
3.12 Disclosure. The Borrower has disclosed or made available to the Lenders all agreements, instruments and corporate or other
restrictions to which it or any of its Subsidiaries is subject, and all other matters known to it, that, in the aggregate, could reasonably
be expected to result in a Material Adverse Effect. None of the reports, financial statements, certificates or other information furnished
by or on behalf of the Borrower to the Administrative Agent or any Lender in connection with the Transactions and the negotiation of
this Agreement or delivered hereunder (as modified or supplemented by other information so furnished) contains any material misstatement
of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that, with respect to projected financial information, the Borrower represents only that such information
was prepared in good faith based upon assumptions believed to be reasonable at the time.
SECTION
3.13 Insurance. Borrower shall maintain (or cause its Subsidiaries (or tenants)) to maintain insurance (on a replacement cost
basis) with financially sound and reputable insurance companies against such risks and in such amounts as is customarily maintained by
Persons engaged in similar businesses or as may be required by any Legal Requirement. Such insurance shall, in any event, include terrorism
coverage, but solely to the extent that such coverage is available on commercially reasonable terms (including price). Such insurance
policies and programs (or such other similar policies as are permitted pursuant to SECTION 5.05) are currently in full force and
effect, and, together with payment by the insured of scheduled deductible payments, are in amounts sufficient to cover the replacement
value of the respective assets of the Borrower and its Subsidiaries.
SECTION
3.14 Margin Regulations. The Borrower is not engaged, nor will engage, in the business of purchasing or carrying margin stock
or extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board),
and no proceeds of any Loan will be used to purchase or carry any margin stock.
SECTION
3.15 OFAC. None of the Borrower, any of the Borrower’s Subsidiaries, or any other Affiliate of the Borrower is (or will
be) (i) a Sanctioned Person, (ii) located, organized or resident in a Designated Jurisdiction or (iii) to the best of the Borrower’s
knowledge, without any independent inquiry, is or has been (within the previous five (5) years) engaged in any transaction with any Sanctioned
Person or any Person who is located, organized or resident in any Designated Jurisdiction to the extent that such transactions would
violate Sanctions, or (iv) has violated any Anti-Money Laundering Law in any material respect. The Borrower and its Subsidiaries, and
to the knowledge of the Borrower, each director, officer, employee, agent and Affiliate of the Borrower and its Subsidiaries, is in compliance
with the Anti-Corruption Laws in all material respects. The Borrower has implemented and maintain in effect policies and procedures designed
to promote and achieve compliance with the Anti-Corruption Laws and applicable Sanctions.
SECTION
3.16 Solvency. As of the Effective Date and after giving effect to the Transactions, including all Loans made or to be made hereunder,
the Borrower is not insolvent on a balance sheet basis such that the sum of such Person’s assets exceeds the sum of such Person’s
liabilities, the Borrower is able to pay its debts as they become due, and the Borrower has sufficient capital to carry on its business.
SECTION
3.17 Brokers. Neither the Borrower nor any of its Subsidiaries has engaged or otherwise dealt with any broker, finder or similar
entity in connection with this Agreement or the Loans contemplated hereunder.
SECTION
3.18 Equity Consideration. The Equity Consideration has been duly authorized and, when issued and paid for in accordance with
the terms of this Agreement will be duly and validly issued, fully paid, non-assessable and free and clear of all Liens, other than restrictions
on transfer (1) provided for in the RRA Joinder Agreement or the Charter Documents or (2) imposed by applicable securities laws, and
shall not be subject to preemptive or similar rights. Assuming the timely filing of any filings required by applicable federal and state
securities laws, the Equity Consideration will be issued in compliance with all applicable federal and state securities laws.
ARTICLE
IV
Conditions
SECTION
4.01 Effective Date. The obligations of the Lenders to make Loans hereunder shall not become effective until the date on which
each of the following conditions is satisfied (or waived in accordance with SECTION 9.02):
(a)
The Administrative Agent (or its counsel) shall have received from the Borrower either (i) a counterpart of this Agreement and all other
Loan Documents to which it is party signed or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy
or other electronic transmission of a signed signature page of each such Loan Document other than the Notes) that the Borrower has signed
a counterpart of the Loan Documents, together with copies of all Loan Documents.
(b)
The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated
the Effective Date) of counsel for the Borrower, and such other counsel as the Administrative Agent may approve, covering such matters
relating to the Borrower, the Loan Documents or the Transactions as the Required Lenders shall reasonably request. The Borrower hereby
requests such counsel to deliver such opinion.
(c)
The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of the Borrower, the authorization of the Transactions and any other
legal matters relating to the Borrower, this Agreement or the Transactions, all in form and substance satisfactory to the Administrative
Agent and its counsel.
(d)
The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Effective Date, including,
to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(e)
The Administrative Agent (or its counsel) shall have received evidence, in form and substance reasonably satisfactory to it, that all
necessary consents under the KeyBank Credit Agreement for the consummation of the Transactions have been obtained.
(f)
The Administrative Agent shall have received the Equity Consideration required to be paid on the Effective Date pursuant to SECTION
2.08(a).
(g)
The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower,
confirming satisfaction of the conditions set forth in this Section and compliance with the conditions set forth in clauses (a) and (b)
of SECTION 4.02.
The
Administrative Agent shall notify the Borrower and the Lenders of the Effective Date, and such notice shall be conclusive and binding.
SECTION
4.02 Each Credit Event. The obligation of each Lender (as applicable) to make a Loan on the occasion of any Borrowing is subject
to the satisfaction of the following conditions:
(a)
The representations and warranties of the Borrower set forth in this Agreement or in any other Loan Document shall be true and correct
on and as of the date of such Borrowing, except to the extent that such representations and warranties specifically refer to an earlier
date, in which, case they shall be true and correct as of such earlier date, and except that for purposes of this SECTION 4.02(a),
the representations and warranties contained in SECTION 3.04 shall be deemed to refer to the most recent financial statements
furnished pursuant to clauses (a) and (b), respectively, of SECTION 5.01.
(b)
At the time of and immediately after giving effect to such Borrowing, no Default shall have occurred and be continuing.
(c)
The Borrower shall have complied with SECTION 2.03.
Each
Borrowing shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified
in this Section.
ARTICLE
V
Affirmative
Covenants
Until
the Commitments have expired or been terminated and the principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full, the Borrower covenants and agrees with the Lenders that:
SECTION
5.01 Financial Statements; Ratings Change and Other Information. The Borrower will furnish to the Administrative Agent and each
Lender:
(a)
within 120 days after the end of each fiscal year of the Borrower, the Borrower’s audited consolidated balance sheet and related
statements of operations, stockholders’ equity and cash flows as of the end of and for such year, together with all notes thereto,
setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by Deloitte & Touche LLP
or other independent public accountants of recognized national standing and in good standing with the Public Company Accounting Oversight
Board to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results
of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b)
within 60 days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower, the Borrower’s
consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows as of the end of and for such
fiscal quarter and the then elapsed portion of the fiscal year, together with all notes thereto, setting forth in each case in comparative
form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal
year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results
of operations of the Borrower on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit
adjustments;
(c)
promptly after the same become publicly available for Forms 10-K and 10-Q described below (unless available publicly), and upon written
request for items other than Forms 10-K and 10-Q described below, copies of all periodic and other reports, proxy statements and other
materials filed by the the Borrower or any Subsidiary with the Securities and Exchange Commission (including registration statements
and reports on Form 10-K, 10-Q and 8-K (or their equivalents)), or any Governmental Authority succeeding to any or all of the functions
of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case
may be;
(d)
simultaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities
involving amounts of $1,000,000 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or
referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect
of the Indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e)
concurrently with the delivery of the financial statements referred to in Sections 5.01(a) and (b), a duly completed certificate signed
by a Financial Officer of the Borrower (i) certifying as to whether a Default has occurred and, if a Default has occurred, specifying
the details thereof and any action taken or proposed to be taken with respect thereto, (ii) certifying the accuracy of the statement
set forth in Section 5.01(d), and (iii) attaching a copy of the compliance certificate delivered by the Borrower to KeyBank pursuant
to the KeyBank Credit Agreement for the corresponding period;
(f)
on or before the last day of each fiscal quarter, a statement of Borrower’s calculation of all interest that shall have accrued
on the Loans during that fiscal quarter;
(g)
promptly upon becoming aware thereof, notice of the breach, nonperformance, cancellation or failure to renew by any party under any Material
Contract; and
(h)
promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of
the Borrower or any Subsidiary of the Borrower or compliance with the terms of the Loan Documents, as the Administrative Agent or any
Lender may reasonably request.
SECTION
5.02 Notices of Material Events. The Borrower will furnish to the Administrative Agent and each Lender written notice of the following
promptly after it becomes aware of same (unless specific time is set forth below):
(a)
the occurrence of any Default, which notice shall describe such occurrence with reasonable specificity and shall state that such notice
is a “notice of default”;
(b)
within five (5) Business Days after the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental
Authority against or affecting the Borrower or any of its Affiliates that, if adversely determined, could reasonably be expected to result
in a Material Adverse Effect;
(c)
within ten (10) days of any judgment not covered by insurance, whether final or otherwise, against Borrower or any of its Subsidiaries,
alone or together with any other judgment, is in an amount in excess of $2,500,000;
(d)
within five (5) Business Days after the occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred,
could reasonably be expected to result in liability of the Borrower and its Subsidiaries in an aggregate amount exceeding $2,500,000;
(e)
within three (3) Business Days after becoming aware of (i) any known Release, or threat of Release, of any Hazardous Materials in violation
of any applicable Environmental Law; (ii) any violation of any Environmental Law that the Borrower or any Subsidiary thereof reports
in writing or is reportable by such Person in writing (or for which any written report supplemental to any oral report is made) to any
federal, state or local environmental agency or (iii) any written inquiry, proceeding, or investigation, including a written notice from
any agency of potential environmental liability, of any federal, state or local environmental agency or board, that in the case of either
clauses (i) – (iii) above could otherwise reasonably be expected to have a Material Adverse Effect; and
(f)
any other development that results in, or could reasonably be expected to result in, a Material Adverse Effect.
Each
notice delivered under this Section shall be accompanied by a statement of a Financial Officer or other executive officer of Borrower
setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect
thereto. Within five (5) Business Days after receiving any notice under this SECTION 5.02, the Administrative Agent will forward
a copy thereof to each of the Lenders, together with copies of any certificates or other written information that accompanied such notice.
SECTION
5.03 Existence; Conduct of Business. The Borrower will, and will cause each of its Subsidiaries to, do or cause to be done all
things necessary to preserve, renew and keep in full force and effect its legal existence and the rights, licenses, permits, privileges
and franchises material to the conduct of its business; provided that the foregoing shall not prohibit any merger, consolidation, liquidation
or dissolution permitted under SECTION 6.01.
SECTION
5.04 Payment of Obligations. The Borrower will, and will cause each of its Subsidiaries to, pay its obligations, including Tax
liabilities, that, if not paid, could result in a Material Adverse Effect before the same shall become delinquent or in default, except
where (a) the validity or amount thereof is being contested in good faith by appropriate proceedings, (b) the Borrower or such Subsidiary
has set aside on its books adequate reserves with respect thereto in accordance with GAAP and (c) the failure to make payment pending
such contest could not reasonably be expected to result in a Material Adverse Effect.
SECTION
5.05 Maintenance of Properties; Insurance.
(a)
The Borrower will, and will cause each of its Subsidiaries or tenants, as applicable, to, (i) keep and maintain all property material
to the conduct of its business in good working order and condition, ordinary wear and tear excepted, and (ii) maintain, with financially
sound and reputable insurance companies, insurance in such amounts and against such risks as required pursuant to (b) below.
(b)
The Borrower shall, at its own cost and expense, procure and maintain for the benefit of the Borrower and the Administrative Agent, insurance
policies issued by such insurance companies, in such amounts, in such form and substance, and with such coverages, endorsements, deductibles
and expiration dates as are reasonably acceptable to the Administrative Agent, taking into consideration the property size, use, and
location that a commercially prudent lender would require.
SECTION
5.06 Books and Records; Inspection Rights.
(a)
The Borrower will, and will cause each of its Subsidiaries to, keep proper books of record and account in which full, true and correct
entries are made of all dealings and transactions in relation to its business and activities.
(b)
The Borrower will, and will cause each of its Subsidiaries to, permit any representatives designated by the Administrative Agent or any
Lender, upon reasonable prior notice and subject to rights of tenants, to visit and inspect its properties, to examine and make extracts
from its books and records, and to discuss its affairs, finances and condition with its officers and independent accountants, all at
such reasonable times and as often as reasonably requested.
SECTION
5.07 Compliance with Laws, Charter Documents, etc.. The Borrower will, and will cause each of its Subsidiaries to, comply with
(i) all laws, rules, regulations and orders of any Governmental Authority applicable to it or its property, (ii) the provisions of its
corporate charter, partnership agreement, limited liability company agreement or declaration of trust, as the case may be, and other
charter documents and bylaws, (iii) all agreements and instruments to which it is a party or by which it or any of its properties may
be bound, (iv) all applicable decrees, orders, and judgments, and (v) all licenses and permits required by applicable laws and regulations
for the conduct of its business or the ownership, use or operation of its properties, except, in each case, where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
SECTION
5.08 Use of Proceeds. The proceeds of the Loans shall only be used (i) to redeem or repurchase Preferred Stock and Common Stock
of the Borrower, including any shares of Preferred Stock redeemed or repurchased by the Borrower for cash on or after August 1, 2024,
(ii) to pay accrued and unpaid distributions on the Borrower’s outstanding Preferred Stock through the Effective Date, (iii) to
repay up to $5,000,000 of the outstanding principal amount owed by the Borrower under the KeyBank Credit Agreement, and (iv) for payment
of fees and expenses relating to the Transactions; provided that (x) the proceeds of the Loan shall not be used to pay any dividends
that accrue on the Borrower’s outstanding Preferred Stock after the Effective Date, and (y) the proposed terms of any repurchases
of Common Stock using the proceeds of the Loans pursuant to clause (i), including, without limitation, the maximum number of shares to
be repurchased and the offer price, must be approved in advance by the Administrative Agent.
SECTION
5.09 Fiscal Year. Borrower shall maintain as its fiscal year the twelve (12) month period ending on December 31 of each year.
SECTION
5.10 Environmental Matters. Borrower shall comply and shall cause each of its Subsidiaries and each Real Property owned or leased
by such parties to comply in all material respects with all applicable Environmental Laws currently or hereafter in effect, except to
the extent noncompliance could not reasonably be expected to have a Material Adverse Effect.
SECTION
5.11 Further Assurances. At any time upon the request of the Administrative Agent, Borrower will (or will cause each of its Subsidiaries
to), promptly and at its expense, execute, acknowledge and deliver such further documents and perform such other acts and things as the
Administrative Agent may reasonably request to evidence the Loans made hereunder and interest thereon in accordance with the terms of
this Agreement.
ARTICLE
VI
Negative
Covenants
Until
the Commitments have expired or terminated and the principal of and interest on each Loan and all fees payable hereunder have been paid
in full, the Borrower covenants and agrees with the Lenders that:
SECTION
6.01 Fundamental Changes; Asset Sales. The Borrower will not, nor will it permit any Subsidiary to:
(a)
merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer,
lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets or all or substantially
all of the Equity Interests of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except
that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing (i) any Person
may merge into, or consolidate with, the Borrower in a transaction in which the Borrower is the surviving entity, (ii) any Person not
a Subsidiary may merge into, or consolidate with, any Subsidiary of Borrower in a transaction in which the surviving entity is the Subsidiary,
(iii) any Subsidiary may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (iv) any
Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests
of the Borrower and is not materially disadvantageous to the Lenders, (v) any Subsidiary may merge into (or consolidate with) or liquidate
or dissolve into, any other Subsidiary, and (vi) any Subsidiary of Borrower may sell, transfer, lease or otherwise dispose of its assets
to Borrower or to any other Subsidiary; provided that any such merger involving a Person that is not a wholly owned Subsidiary immediately
prior to such merger shall not be permitted unless also permitted by SECTION 6.02; or
(b)
engage to any material extent in any business other than the ownership, development, operation and management of parking properties and
businesses reasonably related thereto, except as allowed by SECTION 6.02, without the prior written consent of the Lenders. For
the avoidance of doubt, the Borrower shall not materially alter its business plan to acquire and develop or re-develop parking properties.
SECTION
6.02 Investments, Loans, Advances and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, purchase,
hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any Equity
Interests, evidences of Indebtedness (subject to SECTION 6.06 below) or other securities (including any option, warrant or other
right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, or make or permit to exist any investment
or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets
of any other Person constituting a business unit, except Permitted Investments.
SECTION
6.03 Hedging Agreements. The Borrower will not, and will not permit any Subsidiary to, enter into any Hedging Agreement, other
than Hedging Agreements entered into in the ordinary course of business to hedge or mitigate risks to which the Borrower or any Subsidiary
is exposed in the conduct of its business or the management of its liabilities.
SECTION
6.04 Restricted Payments. The Borrower will not, and will not permit any of its Subsidiaries to, declare or make, or agree to
pay or make, directly or indirectly, during any calendar month, any Restricted Payment, except that any of the following Restricted Payments
are permitted: (a) after remediation of the Borrower’s status as a REIT, provided no Event of Default under SECTION 7.01(a),
SECTION 7.01(f), SECTION 7.01(g), or SECTION 7.01(h) has occurred and is continuing and the Obligations have not
been accelerated pursuant to SECTION 7.01, Restricted Payments by the Borrower in an amount equal to the minimum amount required
to maintain its status as a REIT, (b) provided no Default or Event of Default is then in existence and subject to SECTION 5.08,
Restricted Payments made by the Borrower to its respective equity holders, and (c) Restricted Payments declared and paid ratably by Subsidiaries
to the Borrower with respect to their Capital Stock or Equity Interest.
SECTION
6.05 Transactions with Affiliates. The Borrower will not, and will not permit any of its Subsidiaries to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) the Transactions, (b) in the ordinary course of business at prices and on terms
and conditions not less favorable to the Borrower or such Subsidiary than could be obtained on an arm’s-length basis from unrelated
third parties, (c) transactions in connection with asset or property managers and investment managers that are Affiliates of the Borrower
on market terms, (d) transactions between or among Borrower and its wholly owned Subsidiaries not involving any other Affiliate, and
(e) any Restricted Payment permitted by SECTION 6.04.
SECTION
6.06 Indebtedness. Borrower shall not, without the prior written consent of the Administrative Agent, create, incur, assume, Guarantee
or be or remain liable, contingently or otherwise with respect to any Indebtedness on a recourse or non-recourse basis, except: (a) Indebtedness
under this Agreement; (b) Indebtedness arising pursuant to, or expressly permitted by the terms of, the KeyBank Credit Agreement and
the KeyBank Loan Documents, (c) Indebtedness in connection with Indebtedness of the Borrower’s Subsidiaries that is permitted hereunder
whose recourse is solely for so-called “bad-boy” acts, including without limitation, (i) failure to account for a tenant’s
security deposits, if any, for rent or any other payment collected by a borrower from a tenant under the lease or another licensee, all
in accordance with the provisions of any applicable loan documents, (ii) fraud or a material misrepresentation made by the Borrower,
or the holders of beneficial or ownership interests in the Borrower, in connection with the financing evidenced by the applicable loan
documents; (iii) any attempt by Borrower to divert or otherwise cause to be diverted any amounts payable to the applicable lender in
accordance with the applicable loan documents; (iv) the misappropriation or misapplication of any insurance proceeds or condemnation
awards relating to the Real Property; (v) voluntary or involuntary bankruptcy by Borrower; (vi) any environmental matter(s) affecting
any Real Property which is introduced or caused by Borrower or any holder of a beneficial or ownership interest in Borrower; and (vii)
waste; (d) Indebtedness for trade payables and operating expenses incurred in the ordinary course of business but not incurred through
(i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact
extended in connection with normal purchases of goods and services; (e) Indebtedness of the Borrower in respect of taxes, assessments,
governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time
be required to be made in accordance with the provisions of SECTION 5.04; and (f) Indebtedness in respect of judgments only to
the extent, for the period and for an amount not resulting in the occurrence and continuance of an Event of Default.
SECTION
6.07 Amendment to Organizational Documents. Without the prior written consent of Administrative Agent, which consent shall not
be unreasonably withheld, conditioned or delayed, Borrower shall not amend, modify or waive any rights under its Charter Document, Bylaws
or other organizational documents in any manner, except: (a) modifications necessary to clarify existing provisions of such organizational
documents; (b) modifications which would not have a Material Adverse Effect, and (c) modifications in connection with mergers, consolidations,
investments and other transactions not otherwise prohibited by the other provisions of this Agreement.
SECTION
6.08 Sanctions. The Borrower shall not permit the proceeds of any Loan: (a) to be lent, contributed or otherwise made available
to fund any activity or business in any Designated Jurisdiction; (b) to fund any activity or business of any Sanctioned Person or any
Person located, organized, formed, incorporated or residing in any Designated Jurisdiction or who is the subject of any Sanctions; (c)
in any other manner that will result in any material violation by any Person (including any Lender or Administrative Agent) of any Sanctions;
or (d) to be used in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything
else of value, to any Person in violation of any Anti-Corruption Laws.
ARTICLE
VII
Events
of Default
SECTION
7.01 Events of Default. If any of the following events (“Events of Default”) shall occur:
(a)
the Borrower shall fail to pay any principal or any interest on any Loan when and as the same shall become due and payable, whether at
the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b)
the Borrower shall fail to pay any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable
under any Loan Documents, when and as the same shall become due and payable, and such failure shall continue unremedied for a period
of over three (3) Business Days (such three (3) Business Day period commencing after written notice from the Administrative Agent as
to any such fee);
(c)
any representation or warranty made or deemed made by or on behalf of the Borrower in or in connection with any Loan Document or any
amendment or modification thereof or waiver thereunder, or in any report, certificate, financial statement or other document furnished
pursuant to or in connection with this Agreement or any amendment or modification hereof or waiver hereunder, shall prove to have been
incorrect in any material respect when made or deemed made;
(d)
the Borrower shall fail to observe or perform any covenant, condition or agreement contained in ARTICLE V or ARTICLE VI,
other than SECTIONS 5.03, 5.04, 5.05, 5.06(a), 5.07 and 5.10;
(e)
Borrower shall fail to observe or perform any covenant, condition or agreement contained in any Loan Document (other than those specified
in clause (a), (b) or (d) of this Article), and such failure shall continue unremedied for a period of over thirty (30)
days after notice thereof from the Administrative Agent to the Borrower (which notice will be given at the request of any Lender) and
if such default is not curable within thirty (30) days and the Borrower is diligently pursuing cure of same, the cure period may be extended
for thirty (30) days (for a total of sixty (60) days after the original notice from the Administrative Agent) upon written request from
the Borrower to the Administrative Agent;
(f)
an involuntary proceeding shall be commenced or an involuntary petition shall be filed (in each instance, other than by the Lender(s)
seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any Subsidiary of the Borrower or its debts, or
of a substantial part of its assets, under any federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter
in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or
any Subsidiary of the Borrower or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue
undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered;
(g)
the Borrower or any Subsidiary of the Borrower shall (i) voluntarily commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter
in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described
in clause (f) of this Article, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for such Person or for a substantial part of its assets, (iv) file an answer admitting the material allegations
of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action
for the purpose of effecting any of the foregoing;
(h)
the Borrower or any Subsidiary of the Borrower shall become unable, admit in writing its inability or fail generally to pay its debts
as they become due;
(i)
one or more (i) judgments for the payment of money in an aggregate amount in excess of $1,000,000 or (ii) non-monetary final judgments
against the Borrower or any Subsidiary of Borrower that have, or could reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect, shall be rendered against the Borrower, any Subsidiary of the Borrower or any combination thereof and, in
each case, the same shall remain undischarged for a period of thirty (30) consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of such Person to enforce any such
judgment;
(j)
an ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that
have occurred, could reasonably be expected to result in liability of the Borrower and its Subsidiaries in an aggregate amount exceeding
$10,000,000;
(k)
the Borrower shall default under any Material Contract and such default shall continue unremedied for a period of over thirty (30) days
after notice thereof from the Administrative Agent to the Borrower (which notice will be given at the request of any Lender) and if such
default is not curable within thirty (30) days and the Borrower is diligently pursuing cure of same, the cure period may be extended
for 30 days (for a total of 60 days after the original notice from the Administrative Agent) upon written request from the Borrower to
the Administrative Agent, provided further such cure period shall terminate in the event any such Material Contract shall be terminated
as a result of such default;
(l)
the Borrower shall (or shall attempt to) disavow, revoke or terminate any Loan Document to which it is a party or shall otherwise challenge
or contest in any action, suit or proceeding in any court or before any Governmental Authority the validity or enforceability of any
Loan Document;
(m)
the Borrower or Subsidiary thereof defaults under (i) the KeyBank Credit Agreement, (ii) any Recourse Indebtedness in an aggregate amount
equal to or greater than $25,000,000 at any time, or (iii) any Non-Recourse Indebtedness in an aggregate amount equal to or greater than
$50,000,000 at any time.
Then,
and in every such event (other than an event described in clause (f) or (g) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the
Borrower, take some or all of the following actions, at the same or different times: (i) terminate the Commitments, and thereupon the
Commitments shall terminate immediately, (ii) declare the Loans and all other Obligations then outstanding to be due and payable in whole
(or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and
thereupon the principal of the Loans and all other Obligations so declared to be due and payable, together with accrued interest thereon
and all fees and other obligations of the Borrower accrued hereunder, shall become due and payable immediately, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by the Borrower, and (iii) exercise any other rights or remedies
provided under this Agreement or any other Loan Document, or any other right or remedy available by law or equity; and in case of any
event described in clause (f) or (g) of this Article, the Commitments shall automatically terminate and the principal of
the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder,
shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby
waived by the Borrower.
SECTION
7.02 Performance by Administrative Agent. Should the Borrower fail to perform any covenant, duty, or agreement contained herein
or in any of the Loan Documents, and such failure continues beyond any applicable cure period, Administrative Agent may, but shall not
be obligated to, perform or attempt to perform such covenant, duty, or agreement on behalf of such Person. In such event, Borrower shall,
at the request of Administrative Agent promptly pay any amount expended by Administrative Agent in such performance or attempted performance
to Administrative Agent at Administrative Agent’s office, together with interest thereon at the rate provided in SECTION 2.09.
Notwithstanding the foregoing, it is expressly understood that neither Administrative Agent nor Lenders assume any liability or responsibility
for the performance of any duties of Borrower, or any related Person hereunder or under any of the Loan Documents or other control over
the management and affairs of the Borrower, or any related Person, nor by any such action shall Administrative Agent or Lenders be deemed
to create a partnership arrangement with the Borrower or any related Person.
SECTION
7.03 Application of Funds. In the event that, following the occurrence and during the continuance of any Event of Default, any
monies are received in connection with the enforcement of any of the Loan Documents shall, subject to the provisions of SECTION 2.04,
be applied by Administrative Agent in the following order:
First,
to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and
disbursements of counsel to Administrative Agent and amounts payable under SECTION 2.09) payable to Administrative Agent in its
capacity as such;
Second,
to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest and fees)
payable to the Lenders (including fees, charges and disbursements of counsel to the respective Lenders and amounts payable under SECTION
2.09), ratably among them in proportion to the respective amounts described in this clause Second payable to them;
Third,
to payment of that portion of the Obligations constituting accrued and unpaid interest on the Loans and other Obligations, ratably among
the Lenders in proportion to the respective amounts described in this clause Third payable to them;
Fourth,
to payment of that portion of the Obligations constituting unpaid principal of the Loans, ratably among the Lenders in proportion to
the respective amounts described in this clause Fourth held by them; and
Last,
the balance, if any, after all of the Obligations have been paid in full, to Borrower or as otherwise required by Law.
ARTICLE
VIII
The
Administrative Agent
SECTION
8.01 General. Each of the Lenders hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative
Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof,
together with such actions and powers as are reasonably incidental thereto. In the event of conflicting instructions or notices given
to the Borrower by the Administrative Agent and any Lender, the Borrower is hereby directed and shall rely conclusively on the instruction
or notice given by the Administrative Agent.
The
Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from,
lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were
not the Administrative Agent hereunder.
The
Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality
of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise
any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required
to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances
as provided in SECTION 9.02), provided that Administrative Agent shall not be required to take any action that, in its
opinion or the opinion of its counsel, may expose Administrative Agent to liability or that is contrary to any Loan Document or applicable
law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that
may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and (c)
except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure
to disclose, any information relating to the Borrower that is communicated to or obtained by the Person serving as Administrative Agent
or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the
consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in SECTION 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative
Agent shall be deemed not to have knowledge of any Default (other than a payment Default) unless and until written notice thereof is
given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the
contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article
IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The
Administrative Agent agrees that, in fulfilling its duties hereunder, it will use the same standard of care it utilizes in servicing
loans for its own account.
The
Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper
Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by
the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the
making of a Loan that by its terms must be fulfilled to the satisfaction of a Lender, Administrative Agent may presume that such condition
is satisfactory to such Lender unless Administrative Agent shall have received notice to the contrary from such Lender prior to the making
of such Loan. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants
and other experts selected by it, and shall not be liable for any action taken or not taken by it in good faith in accordance with the
advice of any such counsel, accountants or experts.
The
Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed
by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights
and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent
and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection
with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent.
Subject
to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign
at any time by notifying the Lenders and the Borrower, and may be removed by the Required Lenders in the event of the Administrative
Agent’s gross negligence or willful misconduct. Upon any such resignation or removal, the Required Lenders shall have the right,
with the approval of Borrower (provided no Default has occurred and is continuing), which approval shall not be unreasonably withheld,
to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its resignation or is removed, then the retiring Administrative
Agent may, on behalf of the Lenders, appoint a successor Administrative Agent which shall be a Lender, an Affiliate of a Lender or a
bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative
Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder.
The fees payable by the Borrower to a successor Administrative Agent for its own behalf shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions
of this Article and SECTION 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents
and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative
Agent. The Administrative Agent shall cooperate with any successor Administrative Agent in fulfilling its duties hereunder.
Each
Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based
on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Administrative
Agent agrees to provide the Lenders with copies of all material documents and certificates received by the Administrative Agent from
Borrower in connection with the Loans.
SECTION
8.02 Administrative Agent May File Proof of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Borrower, Administrative Agent (irrespective
of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective
of whether Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention in such
proceeding or otherwise:
(a)
to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations
that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders
and Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and
Administrative Agent and their respective agents and counsel and all other amounts due the Lenders and Administrative Agent under SECTION
2.09 and otherwise hereunder) allowed in such judicial proceeding; and
(b)
to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same.
Any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Lender to make such payments to Administrative Agent and, in the event that Administrative Agent shall consent to
the making of such payments directly to the Lenders, to pay to Administrative Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of Administrative Agent and its agents and counsel, and any other amounts due Administrative Agent hereunder.
Nothing
contained herein shall be deemed to authorize Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender
any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize
Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.
ARTICLE
IX
Miscellaneous
SECTION
9.01 Notices . Except in the case of notices and other communications expressly permitted to be given by telephone, all
notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by telecopy, as follows: if to the Borrower, to
MOBILE
INFRASTRUCTURE CORPORATION
250
E 5th Street
Suite
2110
Cincinnati,
OH 45202
Attn.:
Manuel Chavez III, Chief Executive Officer
With
a copy to:
VENABLE
LLP
750
E Pratt Street, Suite 900
Baltimore,
MD 21202
Attention:
Hirsh Ament
Telephone:
(410) 244-7425
Email:
hmament@venable.com
if
to the Administrative Agent, to
HARVEST
SMALL CAP PARTNERS L.P.
505
Montgomery Street, Suite 1250
San
Francisco, CA 94111
Attention:
Jeff Osher
With
a copy to:
SHARTSIS
FRIESE LLP
425
Market Street, 11th Floor
San
Francisco, CA 94105
Attn:
James J. Frolik
Telephone
No.: (415) 421-6500
E-mail:
jfrolik@sflaw.com
(b)
if to any other Lender, to it at its address (or telecopy number) set forth on the signature pages of this Agreement, or as provided
to Borrower in writing by the Administrative Agent or the Lender.
Any
party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties
hereto. All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed
to have been given (i) if given by telecopy, when such telecopy is transmitted to the telecopy number specified in this Section and the
appropriate confirmation is received (or if such day is not a Business Day, on the next Business Day); (ii) if given by mail (return
receipt requested), on the earlier of receipt or three (3) Business Days after such communication is deposited in the mail with first
class postage prepaid, addressed as aforesaid; or (iii) if given by any other means, when delivered at the address specified in this
Section; provided that notices to the Administrative Agent under ARTICLE II shall not be effective until received.
Documents
and notices required to be delivered to the Lenders pursuant to this Agreement may be delivered electronically and if so delivered, shall
be deemed to have been delivered on the date on which such documents are posted on Borrower’s behalf on an Internet or intranet
website, if any, to which each Lender and Administrative Agent have access (whether a commercial, third-party website or whether sponsored
by Administrative Agent). Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the
documents referred to above, and in any event shall have no responsibility to monitor compliance by Borrower with any such request by
a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
Notwithstanding the foregoing, no document shall be deemed to have been electronically delivered to the Administrative Agent or to any
Lender unless such Internet or intranet website is set up to automatically deliver notice of postings thereon to the email address(es)
that the Administrative Agent or such Lender may specify.
SECTION
9.02 Waivers; Amendments.
(a)
No failure or delay by the Administrative Agent or any Lender in exercising any right or power hereunder or under any other Loan Document
shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance
of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power.
The rights and remedies of the Administrative Agent and the Lenders hereunder and under any other Loan Document are cumulative and are
not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any
departure by the Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section,
and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting
the generality of the foregoing, the making of a Loan shall not be construed as a waiver of any Default, regardless of whether the Administrative
Agent or any Lender may have had notice or knowledge of such Default at the time.
(b)
Neither this Agreement nor any provision hereof may be waived, amended or modified, nor may any Event of Default be waived except pursuant
to an agreement or agreements in writing entered into by the Borrower and the Required Lenders or by the Borrower and the Administrative
Agent with the consent of the Required Lenders; provided that no such agreement shall (i) increase or reduce (except in accordance
with SECTION 2.05(b)) the Commitment of any Lender without the written consent of such Lender, (ii) reduce the principal amount
of any Loan or reduce the rate of interest thereon, or reduce any fees payable hereunder, without the written consent of each Lender
affected thereby, (iii) postpone the scheduled date of payment of the principal amount of any Loan, or any interest thereon, or any fees
payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment,
without the written consent of each Lender affected thereby, (iv) change SECTION 2.11(b) or SECTION 2.11(c) in a manner
that would alter the pro rata sharing of payments required thereby, without the written consent of each Lender, (v) change any of the
provisions of this Section or the definition of “Required Lenders”, or any other provision hereof specifying the number or
percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender, (vi) release the Borrower from its obligations under the Loan Documents, except as specifically
provided for herein, without the written consent of each Lender, (vii) other than as set forth in the Subordination Agreement, further
subordinate the Loans without the written consent of each Lender or (viii) waive or modify any conditions of extending the Loans set
forth in SECTION 2.13 without the written consent of each Lender affected thereby; provided further that no such agreement
shall amend, modify or otherwise affect the rights or duties of the Administrative Agent without the prior written consent of the Administrative
Agent.
(c)
There shall be no amendment, modification or waiver of ARTICLE VIII or any other provision in the Loan Documents that affects
the rights or duties of the Administrative Agent under this Agreement or any of the other Loan Documents without the written consent
of the Administrative Agent.
(d)
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver
or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender
may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting
Lender may not be increased or extended without the consent of such Lender; and (y) any waiver, amendment or modification requiring the
consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders
shall require the consent of such Defaulting Lender.
(e)
Notwithstanding the fact that the consent of all the Lenders is required in certain circumstances as set forth above: (1) each Lender
is entitled to vote as such Lender sees fit on any reorganization plan that affects the Loans, and each Lender acknowledges that the
provisions of Section 1126(c) of the Bankruptcy Code supersede the unanimous consent provisions set forth herein; and (2) the
Required Lenders may consent to allow a Loan Party to use cash collateral in the context of a bankruptcy or insolvency proceeding. Administrative
Agent may, after consultation with Borrower, agree to the modification of any term of this Credit Agreement or any other Loan Document
to correct any printing, stenographic or clerical errors or omissions that are inconsistent with the terms hereof.
(f)
If Administrative Agent shall request the consent of any Lender to any amendment, change, waiver, discharge, termination, consent or
exercise of rights covered by this Credit Agreement, and not receive such consent or denial thereof in writing within ten (10) Business
Days of the making of such request by Administrative Agent, as the case may be, such Lender shall be deemed to have given its consent
to the request.
(g)
Notwithstanding anything to the contrary in this Section, if the Administrative Agent and the Borrower have jointly identified an ambiguity,
omission, mistake or defect in any provision of this Agreement or an inconsistency between provisions of this Agreement, the Administrative
Agent and the Borrower shall be permitted to amend such provision or provisions to cure such ambiguity, omission, mistake, defect or
inconsistency so long as to do so would not materially adversely affect the interests of the Lenders. Any such amendment shall become
effective without any further action or consent of any of other party to this Agreement. The Administrative Agent shall provide a copy
of each such amendment to the Lenders promptly after execution thereof.
SECTION
9.03 Expenses; Indemnity; Damage Waiver.
(a)
The Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the Administrative Agent and its Affiliates, including the
reasonable fees, charges and disbursements of counsel for the Administrative Agent, in connection with the preparation and administration
of this Agreement or any amendments, modifications or waivers of the provisions hereof (whether or not the Transactions shall be consummated);
provided, that the Borrower shall not be responsible for any expenses set forth in this clause (i) incurred by the Administrative Agent
and its Affiliates in connection with the preparation of this Agreement in excess of $25,000 unless the Borrower has provided its prior
written consent to such expense, and (ii) all out-of-pocket expenses incurred by the Administrative Agent or any Lender, including the
reasonable fees, charges and disbursements of any counsel for the Administrative Agent or any Lender, in connection with the enforcement
or protection of its rights in connection with this Agreement, including its rights under this Section, or in connection with the Loans
made hereunder, including all such out-of-pocket expenses incurred during any waivers, workout, restructuring or negotiations in respect
of such Loans.
(b)
Subject to SECTION 9.03(a), the Borrower shall indemnify the Administrative Agent and each Lender, and each Related Party of any
of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses, including the fees, charges and disbursements of any counsel
for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution
or delivery of this Agreement or any agreement or instrument contemplated hereby, the performance by the parties hereto of their respective
obligations hereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or the use
of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated
by the Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of its Subsidiaries,
or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract,
tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not,
as to any Indemnitee, be available to the extent that (i) such losses, claims, damages, liabilities or related expenses resulted from
the gross negligence or willful misconduct of such Indemnitee as determined by a court of law in a final non-appealable judgment, or
the failure of the Indemnitee to make advances pursuant to its Commitment in breach of its obligations hereunder or (ii) to the extent
such indemnified liabilities arise from claims solely among the Indemnitees.
(c)
To the extent that the Borrower fails to pay any amount required to be paid by it to the Administrative Agent under paragraph (a)
or (b) of this Section, each Lender severally agrees to pay to the Administrative Agent, such Lender’s Applicable Percentage
(determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided
that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred
by or asserted against the Administrative Agent in its capacity as such.
(d)
To the extent permitted by applicable law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of,
in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan
or the use of the proceeds thereof. Neither Borrower nor any Indemnitee referred to in paragraph (b) above shall be liable for
any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients
by Borrower or such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the Transactions other than for direct or actual damages resulting from the gross negligence
or willful misconduct of Borrower or such Indemnitee as determined by a final and nonappealable judgment of a court of competent jurisdiction.
SECTION
9.04 Successors and Assigns.
(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 the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower without such consent 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 and, to the extent expressly contemplated hereby, the Related Parties
of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b)
(i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may 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)
with the prior written consent (such consent not to be unreasonably withheld) of:
(A)
the Borrower, provided that no consent of the Borrower shall be required for an assignment to a Lender (other than a Defaulting
Lender), an Eligible Assignee or, if an Event of Default has occurred and is continuing, any other assignee; and
(B)
the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment to a Lender
or an Eligible Assignee.
(ii)
Assignments shall be subject to the following additional conditions:
(A)
except in the case of an assignment to a Lender or an Eligible Assignee or an assignment of the entire remaining amount of the assigning
Lender’s Commitment or Loans, the amount of the Commitment or 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 $1,000,000.00 unless the Borrower and the Administrative Agent otherwise consent, provided that no such consent of Borrower
shall be required if an Event Default has occurred and is continuing;
(B)
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 Loans or the Commitment assigned;
(C)
No such assignment shall be made: (1) to the Borrower or any Affiliate or Subsidiary of the Borrower (other than a Lender or an Eligible
Assignee); (2) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute
any of the foregoing Persons described in this clause (2); or (3) to a natural person; and
(D)
the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance.
(c)
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 such assignment shall make such additional
payments to 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 Borrower and Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by such Defaulting Lender,
to each of which the applicable assignee and assignor hereby irrevocably consent), to: (A) pay and satisfy in full all payment liabilities
then owed by such Defaulting Lender to Administrative Agent or any Lender hereunder (and interest accrued thereon) and (B) acquire (and
fund as appropriate) its full pro rata share of all Loans 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 Credit Agreement until such compliance occurs.
(d)
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; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION
9.05 Survival. All covenants, agreements, representations and warranties made by the Borrower herein and in the certificates or
other instruments delivered in connection with or pursuant to this Agreement shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of this Agreement and the making of any Loans, regardless of any investigation
made by any such other party or on its behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in
full force and effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid and so long as the Commitments have not expired or terminated. The provisions of SECTION 2.10
and SECTION 9.03 and ARTICLE VIII shall survive and remain in full force and effect regardless of the consummation
of the Transactions, the repayment of the Loans, the expiration or termination of the Commitments or the termination of this Agreement
or any provision hereof.
SECTION
9.06 Counterparts; Integration; Effectiveness; Joint and Several.
(a)
This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute
an original, but all of which when taken together shall constitute a single contract.
(b)
This Agreement and any separate letter agreements with respect to fees payable to the Administrative Agent constitute the entire contract
among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written,
relating to the subject matter hereof.
(c)
Except as provided in SECTION 4.01, this Agreement shall become effective when it shall have been executed by the Administrative
Agent and when the Administrative Agent shall have received counterparts hereof which, when taken together, bear the signatures of each
of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
(d)
Each Person constituting the general partner of Borrower shall be bound jointly and severally with one another to make, keep, observe
and perform the representations, warranties, covenants, agreements, obligations and liabilities imposed by this Agreement and the other
Loan Documents upon the “Borrower.”
(e)
The Borrower agrees that it shall never be entitled to be subrogated to any of the Administrative Agent’s or any Lender’s
rights against another Person or any collateral or offset rights held by the Administrative Agent or the Lenders for payment of the Loans
until the full and final payment of the Loans and all other obligations (other than contingent obligations for which no claim has been
made) incurred under the Loan Documents and final termination of the Lenders’ obligations, if any, to make further advances under
this Agreement or to provide any other financial accommodations to the Borrower.
SECTION
9.07 Severability. Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity,
legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction
shall not invalidate such provision in any other jurisdiction.
SECTION
9.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender and each of its Affiliates is
hereby authorized, upon the prior consent of the Administrative Agent or the Required Lenders, at any time and from time to time, to
the fullest extent permitted by law, to set off and apply any and all obligations at any time owing by such Lender or Affiliate to or
for the credit or the account of the Borrower against any of and all the obligations of the Borrower now or hereafter existing under
this Agreement held by such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement and although
such obligations may be unmatured. Each Lender agrees promptly to notify the Borrower after any such setoff and application made by such
Lender, provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of each
Lender under this Section are in addition to other rights and remedies (including other rights of setoff) which such Lender may have.
In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately
to the Administrative Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall
be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and
the Secured Parties, and (b) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable
detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
SECTION
9.09 Governing Law; Jurisdiction; Consent to Service of Process.
(a)
This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.
(b)
The Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of the state
and federal courts located in New York, New York, and any appellate court from any thereof, in any action or proceeding arising out of
or relating to this Agreement or any other Loan Document, or for recognition or enforcement of any judgment, and each of the parties
hereto hereby irrevocably and unconditionally agrees that all claims in respect of such action or proceeding may be heard and determined
in such State or, to the extent permitted by law, such Federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the Administrative Agent or any Lender may otherwise have to bring
any action or proceeding relating to this Agreement or any other Loan Document against the Borrower or its properties in the courts of
any jurisdiction.
(c)
The Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection
which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement
or any other Loan Document in any court referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(d)
Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in SECTION 9.01. Nothing
in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.
SECTION
9.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT
OR THE TRANSACTIONS (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT
OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION
9.11 Headings. Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.
SECTION
9.12 Confidentiality. Each of the Administrative Agent and the Lenders agrees to maintain the confidentiality of the Information
(as defined below), except that Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and
agents, including accountants, legal counsel and other advisors (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
requested by any regulatory authority, (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal
process, (d) to any other party to this Agreement, (e) in connection with the exercise of any remedies hereunder or any suit, action
or proceeding relating to this Agreement or the enforcement of rights hereunder, (f) subject to an agreement containing provisions substantially
the same as those of this Section, to any assignee of, or any prospective assignee of, any of its rights or obligations under this Agreement,
(g) with the consent of the Borrower, (h) to any Person in connection with any Hedging Agreement, (i) to the extent such Information
(i) becomes publicly available other than as a result of a breach of this Section or (ii) becomes available to the Administrative Agent
or any Lender on a nonconfidential basis from a source other than the Borrower, or (j) to the National Association of Insurance Commissioners
or any other similar organization or any nationally recognized rating agency that requires access to information about a Lender’s
or its Affiliates’ investment portfolio in connection with ratings issued with respect to such Lender or its Affiliates. For the
purposes of this Section, “Information” means all information received from the Borrower relating to the Borrower or its
business, other than any such information that is available to the Administrative Agent or any Lender on a nonconfidential basis prior
to disclosure by Borrower; provided that, in the case of information received from the Borrower after the date hereof, such information
is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as
provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree
of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
SECTION
9.13 Interest Rate Limitation. If at any time there exists a maximum rate of interest which may be contracted for, charged, taken,
received or reserved by the Lenders in accordance with applicable law (the “Maximum Rate”), then notwithstanding anything
herein to the contrary, at any time the interest applicable to any Loan, together with all fees, charges and other amounts which are
treated as interest on such Loan under applicable law (collectively, the “Charges”), shall exceed such Maximum Rate,
the rate of interest payable in respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited
to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been paid in respect of such Loan but were not
payable as result of the operation of this Section shall be cumulated and the interest and Charges payable to the Lenders in respect
of other Loans or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest
thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by the Lenders. If, for any reason whatsoever,
the Charges paid or received on the Loans produces a rate which exceeds the Maximum Rate, the Lenders shall credit against the principal
of the Loans (or, if such Indebtedness shall have been paid in full, shall refund to the payor of such Charges) such portion of said
Charges as shall be necessary to cause the interest paid on the Loans to produce a rate equal to the Maximum Rate. All sums paid or agreed
to be paid to the holders of the Loans for the use, forbearance or detention of the Loans shall, to the extent permitted by applicable
law, be amortized, prorated, allocated and spread in equal parts throughout the full term of this Agreement, so that the interest rate
is uniform throughout the full term of this Agreement. The provisions of this Section shall control all agreements, whether now or hereafter
existing and whether written or oral, between the parties hereto. Without notice to the Borrower or any other person or entity, the Maximum
Rate, if any, shall automatically fluctuate upward and downward as and in the amount by which such maximum nonusurious rate of interest
permitted by applicable law fluctuates.
SECTION
9.14 Fiduciary Duty/No Conflicts. The Administrative Agent, each Lender and their Affiliates (collectively, solely for purposes
of this paragraph, the “Lenders”), may have economic interests that conflict with those of the Borrower, its stockholders
and/or their affiliates. Borrower agrees that nothing in the Loan Documents or otherwise will be deemed to create an advisory, fiduciary
or agency relationship or fiduciary or other implied duty between any Lender, on the one hand, and Borrower, its stockholders or its
affiliates, on the other. The Borrower acknowledges and agrees that (i) the Transactions (including the exercise of rights and remedies
hereunder and thereunder) are arm’s-length commercial transactions between the Lenders, on the one hand, and the Borrower, on the
other, and (ii) in connection therewith and with the process leading thereto, (x) no Lender has assumed an advisory or fiduciary responsibility
in favor of Borrower, its stockholders or its affiliates with respect to the Transactions (or the exercise of rights or remedies with
respect thereto) or the process leading thereto (irrespective of whether any Lender has advised, is currently advising or will advise
Borrower, its stockholders or its Affiliates on other matters) or any other obligation to Borrower except the obligations expressly set
forth in the Credit Documents and (y) each Lender is acting hereunder solely as principal and not as the agent or fiduciary of Borrower,
its management, stockholders, creditors or any other Person. Borrower acknowledges and agrees that it has consulted its own legal and
financial advisors to the extent it deemed appropriate and that it is responsible for making its own independent judgment with respect
to such transactions and the process leading thereto. Borrower agrees that it will not claim that any Lender has rendered advisory services
of any nature or respect, or owes a fiduciary or similar duty to Borrower, in connection with such transaction or the process leading
thereto in its capacity as a Lender.
SECTION
9.15 Payments Set Aside. To the extent that any payment by or on behalf of the Borrower is made to the Administrative Agent or
any Lender, or the Administrative Agent or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff
or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant
to any settlement entered into by the Administrative Agent or such Lender in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment
had not been made or such setoff had not occurred, and (b) each Lender severally agrees to pay to the Administrative Agent upon demand
its applicable share (without duplication) of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon
from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in
effect.
[Signature
Pages Follow]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized representatives as
of the day and year first above written.
|
BORROWER: |
|
|
|
|
MOBILE INFRASTRUCTURE CORPORATION, |
|
a Maryland Corporation |
|
|
|
|
By: |
/s/ Manuel
Chavez |
|
Name: |
Manuel Chavez |
|
Title: |
Chief
Executive Officer
|
|
ADMINISTRATIVE AGENT: |
|
|
|
|
HARVEST SMALL CAP PARTNERS, L.P., |
|
a Delaware limited partnership, as Administrative Agent |
|
|
|
|
By: |
Harvest
Small Cap Partners GP LLC
its
general partner
|
|
|
|
|
By: |
/s/ Jeffrey Osher |
|
Name: |
Jeffrey Osher |
|
Title: |
Managing Member |
[Signature
Page to Credit Agreement]
|
ONSHORE LENDER: |
|
|
|
|
HARVEST SMALL CAP PARTNERS, L.P., |
|
a Delaware limited partnership, as Onshore Lender
|
|
|
|
|
By: |
Harvest Small Cap Partners GP LLC |
|
|
its
General Partner
|
|
|
|
|
By: |
/s/ Jeffrey Osher |
|
Name: |
Jeffrey Osher |
|
Title: |
Managing
Member
|
|
OFFSHORE
LENDER:
|
|
|
|
|
HARVEST SMALL CAP PARTNERS MASTER, LTD., |
|
a Cayman Islands exempted company, as Offshore Lender |
|
|
|
|
By: |
/s/ Michael Moscuzza |
|
Name: |
Michael Moscuzza |
|
Title: |
Director |
SCHEDULE
1.01
Name | |
Commitment | | |
Applicable Percentage | |
HARVEST SMALL CAP PARTNERS, L.P. | |
$ | 13,420,000 | | |
| 33 | % |
HARVEST SMALL CAP PARTNERS MASTER, LTD.
| |
$ | 26,980,000 | | |
| 67 | % |
| |
| | | |
| | |
TOTAL | |
$ | 40,400,000.00 | | |
| 100 | % |
EXHIBIT
10.2
JOINDER
TO REGISTRATION RIGHTS AGREEMENT AND LOCK-UP AGREEMENT
THIS
JOINDER TO REGISTRATION RIGHTS AGREEMENT AND LOCK-UP AGREEMENT (this “Joinder and Lock-up Agreement”) is entered into
as of September 11, 2024 (the “Effective Date”), by and among Mobile Infrastructure Corporation, a Maryland corporation
(the “Company”), and Harvest Small Cap Partners, L.P., a Delaware limited partnership, and Harvest Small Cap Partners
Master, Ltd., a Cayman Islands exempted company (each, a “Stockholder” and, collectively, the “Stockholders”).
RECITALS
A.
The Company and Fifth Wall Acquisition Sponsor III LLC, Color Up, LLC, HSCP Strategic III, L.P., Harvest Small Cap Partners, L.P., Harvest
Small Cap Partners Master, Ltd., Bombe-MIC PREF, LLC, and the FWAC Sponsor Holders party thereto entered into that certain Registration
Rights Agreement, dated as of August 25, 2023 (the “Registration Rights Agreement”; Capitalized terms used and not
otherwise defined herein shall have the meanings given to such terms in the Registration Rights Agreement).
B.
In connection with a loan (the “Loan”) from the Stockholders to the Company, as set forth in the Loan Agreement, dated
as of the date hereof (the “Loan Agreement”), by and among the Company and the Stockholders, the Company shall issue
250,000 shares of Common Stock at the Effective Date (as defined in the Loan Agreement) and has committed to issue an additional 250,000
shares of Common Stock to the Stockholders in the event that the Company’s total borrowings under the Loan Agreement equal or exceed
$15,000,000, in each case, in a private placement transaction exempt from the registration requirements of the Securities Act (the “Loan
Shares”).
C.
As a condition to the Loan, the Company agreed to grant the registration rights set forth in the
Registration Rights Agreement with the respect to the Loan Shares.
AGREEMENT
NOW,
THEREFORE, in consideration of the promises and mutual agreements contained herein and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1.
Registration Rights Agreement Joinder.
(a)
On the Effective Date, each Stockholder hereby joins and agrees to be bound by all of the terms and provisions of the Registration Rights
Agreement, as a “Holder”.
(b)
On the Effective Date, Company hereby acknowledges and agrees that the Stockholders shall be entitled to all of the benefits and rights
of a “Holder” and the Loan Shares, if and when issued in accordance with the Loan Agreement, shall be “Registrable
Securities” under the Registration Rights Agreement.
(c)
Notwithstanding anything in this Joinder and Lock-up Agreement or the Registration Rights Agreement to the contrary, each Stockholder
hereby agrees that the Company shall not be required to register the resale of the Loan Shares
held by the Stockholder until the earlier of (i) the date the Company files a post-effective amendment to its registration statement
on Form S-11 (File No. 333-274666) (the “Post-Effective Amendment”) following the filing of the Company’s Annual
Report on Form 10-K for the fiscal year ending December 31, 2024 and (ii) the thirtieth (30th) day after the Company is eligible
to register for resale the Registrable Securities on a registration statement on Form S-3; provided that the Company shall file the Post-Effective
Amendment no later than ten days after the filing of the Company’s Annual Report on Form 10-K for the fiscal year ending December
31, 2024.
(d)
Each Stockholder hereby acknowledges that each such Stockholder has received and reviewed a complete copy of the Registration Rights
Agreement, and agrees that upon execution of this Joinder and Lock-up Agreement, it shall become a party to the Registration Rights Agreement
and shall be fully bound by, and subject to, all of the covenants, terms and conditions of the Registration Rights Agreement as though
an original party thereto as, subject to the terms and conditions set forth in this Joinder and Lock-up Agreement.
2.
Lock-Up.
(a)
Each Stockholder hereby agrees not to Transfer (as defined below) any Loan Shares from and after the Effective Date and until the earlier
of (i) the six (6) month anniversary of the date the Company is required to issue such Loan Shares to the Stockholders pursuant to the
Loan Agreement, and (ii) the date after the Effective Date on which the Company completes a liquidation, merger, capital stock exchange,
reorganization or other similar transaction that results in all of the Company’s stockholders having the right to exchange their
equity holdings of the Company for cash, securities or other property (clause (ii), a “Liquidity Event”, and such
period, the “Lock-up Period”), provided that the foregoing restrictions shall not apply to the Transfer of any or
all of the Loan Shares owned by a Stockholder made in respect of a Permitted Transfer (as defined below); provided, further, that in
any case of a Permitted Transfer, it shall be a condition to such Transfer that the transferee executes and delivers to the Company an
agreement, in substantially the same form of this Joinder and Lock-Up Agreement, stating that the transferee is receiving and holding
the Loan Shares subject to the provisions of this Joinder and Lock-Up Agreement applicable to the Stockholder, and there shall be no
further Transfer of such Loan Shares except in accordance with this Joinder and Lock-Up Agreement. As used herein, “Transfer”
shall mean (A) the sale of, offer to sell, contract or agreement to sell, hypothecate, pledge, hedge, grant of any option to purchase
or otherwise dispose of or agreement to dispose of, directly or indirectly, or establishment or increase of a put equivalent position
or liquidation with respect to or decrease of a call equivalent position within the meaning of Section 16 of the Securities Exchange
Act of 1934, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder with respect
to, any security, (B) entry into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences
of ownership of any security, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or
(C) public announcement of any intention to effect any transaction, including the filing of a registration statement, specified in clause
(A) or (B). As used in this Joinder and Lock-Up Agreement, the term “Permitted Transfer” shall mean a Transfer made:
(1) in the case of Stockholder being an individual, by gift to a member of one of the individual’s immediate family, an estate
planning vehicle or to a trust, the beneficiary of which is a member of the individual’s immediate family, an affiliate of such
person or to a charitable organization; (2) in the case of Stockholder being an individual, by virtue of laws of descent and distribution
upon death of Stockholder; (3) in the case of Stockholder being an individual, pursuant to a qualified domestic relations order; (4)
by distributions from a Stockholder to its members, partners, or shareholders; (5) by virtue of applicable law or the Stockholder’s
organizational documents upon liquidation or dissolution of Stockholder; (6) to any Affiliates (as defined in the Loan Agreement) of
a Stockholder, (7) to any employees, officers, directors or members of a Stockholder or any Affiliates of a Stockholder, or (8) in connection
with the pledge, hypothecation or other granting of a security interest in the Loan Shares to one or more lending institutions as collateral
or security for any loan, advance or extension of credit, or in connection with any foreclosure or enforcement thereunder.
(b)
If any Transfer is made or attempted contrary to the provisions of this Joinder and Lock-Up Agreement, such purported Transfer shall
be null and void ab initio, and the Company shall refuse to recognize any such purported transferee of the Loan Shares as one of its
equity holders for any purpose.
(c)
During the Lock-up Period, stop transfer orders shall be placed against the Loan Shares and each certificate or book entry position statement
evidencing any Loan Shares shall be stamped or otherwise imprinted with a legend in substantially the following form, in addition to
any other applicable legends:
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER SET FORTH IN A JOINDER AND LOCK-UP AGREEMENT, DATED
AS OF SEPTEMBER 11, 2024 BY AND AMONG THE ISSUER OF SUCH SECURITIES (THE “ISSUER”) AND THE ISSUER’S SECURITY HOLDER
NAMED THEREIN, AS AMENDED. A COPY OF SUCH JOINDER AND LOCK-UP AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE ISSUER TO THE STOCKHOLDER
HEREOF UPON WRITTEN REQUEST.”
(d)
The Company agrees to instruct its transfer agent to remove the above legend upon the expiration of a Lock-up Period. Each Stockholder
agrees to deliver to the Company and its transfer agent all information and documents reasonably requested by the Company and the transfer
agent to effect the legend removal and to permit the transfer of any Loan Shares following the end of the Lock-up Period, including an
opinion of the Stockholder’s counsel if reasonably requested.
(e)
For the avoidance of any doubt, (i) each Stockholder shall retain all of its rights as a stockholder of the Company during the Lock-up
Period, including the right to vote, and to receive any dividends and other distributions in respect of, any Loan Shares, and (ii) the
restrictions contained herein shall not apply to any shares of Common Stock or other securities of the Company acquired by a Stockholder
in open market transactions or in any public or private capital raising transactions of the Company or otherwise to any shares of Common
Stock (or other securities of the Company) other than the Loan Shares.
3.
Miscellaneous.
(a)
This Joinder and Lock-Up Agreement may be executed in separate counterparts, each of which shall be an original and all of which taken
together shall constitute one and the same agreement.
(b)
This Joinder and Lock-Up Agreement shall be governed by and construed in accordance with the internal laws of the State of Maryland,
without giving effect to principles of conflicts of laws or choice of law of the State of Maryland or any other jurisdiction which would
result in the application of the law of any jurisdiction other than the State of Maryland.
(c)
If any provision of this Joinder and Lock-Up is in conflict with or inconsistent with any provision of the Registration Rights Agreement,
this Joinder and Lock-Up Agreement shall control, as applicable.
[Remainder
of Page Left Intentionally Blank]
IN
WITNESS WHEREOF, this Joinder and Lock-Up Agreement has been duly executed and delivered by the parties as of the Effective Date.
|
Mobile
Infrastructure Corporation |
|
|
|
|
By:
|
/s/
Manuel Chavez |
|
Name:
|
Manuel
Chavez |
|
Title:
|
Chief
Executive Officer |
|
|
|
|
Harvest
Small Cap Partners, L.P. |
|
|
|
|
By:
|
/s/
Jeffrey Osher |
|
Name:
|
Jeffrey
Osher |
|
Title: |
Managing Member |
|
|
|
|
Harvest
Small Cap Partners Master, Ltd. |
|
|
|
By:
|
/s/
Michael Moscuzza |
|
Name:
|
/s/
Michael Moscuzza |
|
Title:
|
Director |
Exhibit
99.1
![](https://www.sec.gov/Archives/edgar/data/1847874/000149315224035827/ex99-1_001.jpg)
Mobile
Infrastructure Announces Several Actions to Enhance Shareholder Value
|
● |
New Capital Source Enables Settling Preferred Stock Redemptions
for Cash, Eliminating Dilution on the Company’s Shares |
|
● |
Mobile’s Board Authorizes a $10 Million Share Buyback
Program to Opportunistically and Accretively Deploy Capital |
|
● |
Mobile’s Board Will Continue to Explore Strategies
to Address the Gap Between Net Asset Value of $7.25 Per Share and its Current Share Price |
CINCINNATI—(BUSINESS
WIRE) September 11, 2024 — Mobile Infrastructure Corporation (NYSE American: BEEP), (“Mobile”, “Mobile
Infrastructure” or the “Company”), owners of a diversified portfolio of parking assets throughout the United States,
today announced several strategic actions to enhance shareholder value.
The
Company has secured a $40.4 million line of credit from Harvest Small Cap Partners, L.P and Harvest Small Cap Partners Master, Ltd. that
will be used to achieve three primary objectives, namely to:
|
● |
Provide flexibility to fund future preferred stock redemptions
in cash rather than common stock; |
|
● |
Pay all accrued dividends on the preferred stock to date; and |
|
● |
Commence a common stock repurchase plan. |
Mobile
Infrastructure’s Board of Directors also announced that it has authorized a $10 million share buyback program. Repurchases may
be made from time to time through open-market purchases or privately negotiated transactions, subject to market conditions and other
relevant factors.
Jeff
Osher, Co-Chairman of the Board of Directors, stated, “The strategic actions announced today demonstrate our Board and management
team’s focus on increasing shareholder value. This credit facility provides Mobile with capital flexibility to eliminate future
dilution from preferred stock conversions and the associated technical overhang on the stock. The Board’s authorization of a $10
million buyback program reflects our belief that Mobile’s stock is undervalued and represents a compelling opportunity for the
Company to increase shareholder value. We believe that a material gap exists between Mobile’s NAV and the current market price
of its shares, and we are committed to exploring strategic actions to narrow that gap.”
“We
are pleased to address what we believe has been a significant issue impacting the Company’s valuation, namely the preferred equity
conversion to common stock over the past twelve months,” noted Stephanie Hogue, Mobile’s President. “Year-to-date,
these conversions have been highly dilutive. This additional funding provides Mobile with the necessary resources to settle future preferred
share redemptions in cash.”
![](https://www.sec.gov/Archives/edgar/data/1847874/000149315224035827/ex99-1_001.jpg)
Borrowings
under the Line of Credit will accrue interest at a rate of 15.0% per annum, with interest payable in arrears at maturity or upon repayment
of any principal amount borrowed under the Line of Credit. Jeff Osher, Co-Chairman of the Company’s Board of Directors, is the
managing member of No Street Capital LLC, which serves as the investment manager of Harvest Small Cap Partners, L.P. and Harvest Small
Cap Partners Master, Ltd.
Forward-Looking
Statements
Certain
statements contained in this press release are forward-looking statements, within the meaning of the Private Securities Litigation Reform
Act of 1995. All statements included in this press release that are not historical facts (including any statements concerning our net
asset value, our share repurchase program, our assessment of various trends impacting the price of our shares of common stock, other
plans and objectives of management for future operations or economic performance, or assumptions or forecasts related thereto) are forward-looking
statements. Forward-looking statements are typically identified by the use of terms such as “may,” “should,”
“expect,” “could,” “intend,” “plan,” “anticipate,” “estimate,”
“believe,” “continue,” “predict,” “potential” or the negative of such terms and other
comparable terminology.
The
forward-looking statements included herein are based upon the Company’s current expectations, plans, estimates, assumptions and
beliefs, which involve numerous risks and uncertainties. Assumptions relating to the foregoing involve judgments with respect to, among
other things, future economic, competitive and market conditions and future business decisions, all of which are difficult or impossible
to predict accurately and many of which are beyond the Company’s control. Although the Company believes that the expectations reflected
in such forward-looking statements are based on reasonable assumptions, the actual results and performance could differ materially from
those set forth in the forward-looking statements. Factors which could have a material adverse effect on operations and future prospects
include, but are not limited to the fact that we previously incurred and may continue to incur losses, we may be unable to achieve our
investment strategy or increase the value of our portfolio, our parking facilities face intense competition, which may adversely affect
rental and fee income, we may not be able to access financing sources on attractive terms, or at all, which could adversely affect our
ability to execute our business plan, and other risks and uncertainties discussed in the section titled “Risk Factors” of
our final prospectus, filed with the Securities and Exchange Commission (the “SEC”) pursuant to Rule 424(b) under the Securities
Act of 1933 on April 12, 2024, in connection with our registration statement on Form S-11 and subsequent filings the Company makes with
the SEC from time to time, particularly under the sections titled “Risk Factors” and “Management’s Discussion
and Analysis of Financial Condition and Results of Operations,” including the Company’s Annual Report on Form 10-K, filed
with the SEC on March 22, 2024 and Quarterly Reports on Form 10-Q.
Any
of the assumptions underlying the forward-looking statements included herein could be inaccurate, and undue reliance should not be placed
upon any forward-looking statements included herein. All forward-looking statements are made as of the date of this press release, and
the risk that actual results will differ materially from the expectations expressed herein will increase with the passage of time. Except
as otherwise required by the federal securities laws, the Company undertakes no obligation to publicly update or revise any forward-looking
statements made after the date of this press release, whether as a result of new information, future events, changed circumstances or
any other reason. In light of the significant uncertainties inherent in the forward-looking statements included in this press release,
the inclusion of such forward-looking statements should not be regarded as a representation by us or any other person that the objectives
and plans set forth in this press release will be achieved.
![](https://www.sec.gov/Archives/edgar/data/1847874/000149315224035827/ex99-1_001.jpg)
About
Mobile Infrastructure Corporation
Mobile
Infrastructure Corporation is a Maryland corporation. The Company owns a diversified portfolio of parking assets primarily located in
the Midwest and Southwest. As of June 30, 2024, the Company owned 42 parking facilities in 21 separate markets throughout the United
States, with a total of 15,400 parking spaces and approximately 5.2 million square feet. The Company also owns approximately 0.2 million
square feet of retail/commercial space adjacent to its parking facilities. Learn more at www.mobileit.com.
Mobile
Contact
David
Gold
Lynn
Morgen
beepir@advisiry.com
(212)
750-5800
Fifth Wall Acquisition C... (NASDAQ:FWAC)
Historical Stock Chart
From Aug 2024 to Sep 2024
Fifth Wall Acquisition C... (NASDAQ:FWAC)
Historical Stock Chart
From Sep 2023 to Sep 2024